Sales taxes and shelf prices in the United States

One of the many complaints the rest of the world has with the United States, and it’s one on which I share some sentiment, is with a particular part of our tax policy: that we don’t include sales taxes in the shelf price. And there are a couple reasons why, starting with…

More than one tax

One thing much of the rest of the world forgets or never understands is the United States is a federated constitutional republic of 50 sovereign States. Note that word: sovereign. Each State has sovereignty separate from the United States. Each State has its own laws separate of everyone else. Meaning they all have their own taxes.

But within each State, we also aren’t paying just one sales tax.

Every State empowers their counties and municipalities to enact their own taxes to raise revenue for their own expenses. Property taxes are a classic example. As is sales taxes. Five States do not have a statewide sales tax: Alaska, Delaware, Montana, New Hampshire, and Oregon.

But in every city in every other State in the United States, you’re subject to the statewide sales tax and the city sales tax where the transaction takes place. You may also be subject to a third tax, that being the county level. And possibly additional “local option” taxes or other special sales taxes.

Okay, not really a valid excuse. Just include all of that in the shelf price, right? Well that’s not so easy because of math. More specifically…

Fractional pennies and rounding

This is the main crux of the matter. Let’s lead with an example.

On a recent grocery store run, I bought just 1 item for $12 – it was a take & bake lasagna. The e-receipt shows three taxes applied to it: 2% to Kansas, 1.48% to Johnson County, and 1.38% to Lenexa. On the one item, that came to about 58 cents in sales taxes.

And calculating those three taxes, the 2% one is straightforward, just 24 cents. But the 1.48% and 1.38% include fractions of a penny – 17.76 cents and 16.56 cents, respectively. So the total is 58.32 cents, which gets rounded off at the register. And as most items on the shelf are not even dollar prices, you’re pretty much guaranteed to have factional pennies coming into play. With the lasagna, if the shelf price was $11.99 instead of an even $12, the sales taxes would be 23.98 cents, 17.74 cents, and 16.54 cents.

So including the sales taxes in the shelf price introduces a bit of a dilemma when you start talking about far more than just one item.

Round down and you deprive the government of tax revenue it’s entitled to by law when you aggregate that rounding across billions of line items per day. With the lasagna, rounding down would mean 17 cents and 16 cents on the county and city taxes, respectively, or 57 cents total taxes collected. And if the shelf price was $11.99 instead of an even $12, it would be 56 cents total since the 23.98 cents would be rounded down to 23 cents.

Round up, though, and the government collects more than the law permits. Which is illegal.

Round off at all, up or down depending on where the numbers fall, and it could go either way. In the example with the $11.99 shelf price, all three taxes would be rounded up, meaning, again, the government would be collecting more than the law allows.

The best way to ensure the tax calculation is fair to all parties involved is calculating the sales tax across the aggregate totals of eligible items at the register, then rounding to the nearest penny. This also avoids the complication of having to account for fractions of a penny in the inventory and pricing systems, which likely aren’t coded to accommodate that. Along with separate values being tracked for each sales tax collected, meaning separate aggregations.

It’s just easier, overall, and more fair calculating the taxes on the subtotal.

Sure it does mean you can’t know till the final total how much you’re going to be spending, and people have been burned by that. But that’s also why you should keep a ballpark percentage in your head of how much over the shelf price you’ll likely be paying for something.

If you’re only paying one sales tax, and that sales tax doesn’t result in fractions of pennies (which can only happen if all shelf prices are even dollar amounts), including it in the shelf price is relatively easy. But we aren’t doing that in the United States.

But that also doesn’t mean we’re doing sales taxes wrong, which is largely the implication whenever anyone points out that the United States is doing something different from the rest of the world.

Bump stocks and automatic operations

So according to the ATF and Sotomayor’s dissent in the “bump stock” case, Garland v. Cargill, these two operations are identical:

rm *.NEF

and

rm DSC_0001.NEF
rm DSC_0002.NEF
rm DSC_0003.NEF
rm DSC_0004.NEF
rm DSC_0005.NEF
rm DSC_0006.NEF
rm DSC_0007.NEF
rm DSC_0008.NEF
rm DSC_0009.NEF
rm DSC_0010.NEF
rm DSC_0011.NEF
rm DSC_0012.NEF
rm DSC_0013.NEF
rm DSC_0014.NEF
rm DSC_0015.NEF
rm DSC_0016.NEF
rm DSC_0017.NEF
rm DSC_0018.NEF
rm DSC_0019.NEF
rm DSC_0020.NEF

Yeah, obviously not. Sure they might have the same result, but they aren’t identical in operation.

The first command automatically removes all files matching the wildcard, similar to holding the trigger on a machinegun, with Ctrl+C to interrupt the operation before it completes being the same as removing your finger from the trigger before the magazine is emptied. The second list of commands is removing each file you want to delete individually, which is the same as pulling the trigger for each round you want to fire.

And the equivalent of a bump stock is taking the second list of commands and putting it in a script.

The Supreme Court got it right here in ruling that bump stocks don’t convert a semi-automatic firearm into an automatic firearm. Just as putting a list of rm commands in a script doesn’t make it the same as an rm command using a wildcard.

Now the Supreme Court did NOT say that bump stocks are protected by the Second Amendment. They said only that the ATF exceeded its authority in conjuring a rule that attaching a bump stock to a rifle makes it a machinegun. Congress can still act and make bump stocks illegal – though I doubt they will since all legislative attempts at Congress failed.

But 15 States have banned them, and those bans are still in effect after today’s ruling.

Challenging a repeal

So a UNANIMOUS decision by the Supreme Court in FDA v. Alliance for Hippocratic Medicine quashes the entire lawsuit several pro-life groups brought against the FDA regarding mifepristone (i.e., the “abortion pill”), saying the groups who brought the lawsuit do not have standing.

Which makes sense.

This whole case stems from the fact the FDA relaxed regulations on the administration of mifepristone. That is, in effect, a repeal in part of a regulation. And while the Supreme Court stopped short of saying this, I’d argue that when the government repeals anything, be it a statute or a regulation, in whole or in part, NO ONE has standing to challenge that. The ex post facto provision of the Constitution is the reason why, since it means that any repeal applies only going forward.

Imagine if religious organizations or members of the military filed suit against Congress over the Don’t Ask Don’t Tell Repeal Act of 2010…. How exactly would they have Article III standing for such a case?

How would anyone have standing to challenge a repeal of a law or regulation? I personally cannot think of a single circumstance where the government repealing a statute or regulation, in whole or in part, is something anyone would ever have standing to challenge.

It’s enacting new laws or regulations that has that potential, but not until those laws or regulations are enforced, and only those upon whom those new laws or regulations are enforced have standing to challenge said laws or regulations.

But challenging a partial repeal of a regulation? Seriously? Again, how could anyone have standing to challenge that?

About that Hope Woodard video

If you have no idea who Hope Woodard is, don’t fret. I didn’t either until Courtney Ryan’s video on the matter showed up on my YouTube feed:

Now the original TikTok video is gone. From looking around other comments sections, Hope was apparently getting… rape and death threats for this video. Who knew this would be a touchy subject? Anyway…

First, let’s go over what Hope said:

I was with a friend of mine yesterday, and we were getting a piece of pizza. And one of the guys behind the counter, he was so cute. And we did have a little smile exchange.

And she goes, “Oh my gosh.” And then she goes “Hope, you have to teach me how to flirt.”

And I was like, “Well okay.” So I just wrote my number down on a napkin and I gave it to him.

And she was like, “I can’t believe you did that so easy. What if he has a girlfriend?”

And I said “What? I’ll probably never hear from that guy. I don’t care about him. I don’t know him. He might have a girlfriend. I hope he does. I bet she’s beautiful. And I think he treats her well. You don’t give your number away, you don’t flirt because you really, really want something. You just flirt because it’s fun. Who cares about that guy? You think I’d ever actually like him. No offense, he works at a pizza shop. All love, I’m sure he’s in a great band.”

But anyways, this is your sign. Give your number away today. But when you give it away, don’t expect anything. Because it’s not for them. It’s for you.

It seems everyone, including Courtney, got hung up on her words about the pizza guy, despite the fact she didn’t say much about him. She’s just not into guys who work at pizza parlors. And she just wasn’t that into this specific guy. Why is that such a big deal? And I mean that in all seriousness, why is this such a big deal?

And her message is completely lost (and now deleted) by people who got hung up on it. Do people think she was saying those things right in front of the pizza guy?

Or is her honesty the issue? Sure, she took a slight jab at his job with her honesty that she doesn’t think she’d ever like him because he works at a pizza shop, but otherwise hopes he has a good life and a beautiful girlfriend he treats very well. And I know there’s been a lot of backlash in recent years about women having unreasonable and unrealistic preferences. But what about not wanting to date a guy who works at a pizza parlor is unreasonable or unrealistic?

Did she denigrate pizza guys? No. She didn’t say anything degrading about the work or food service in general. She just said she wouldn’t date someone who works at a pizza shop.

So where exactly is the problem here?

Flirting and being a flirt

And it seems a lot of people have no idea what flirting is or what it genuinely looks like, since a lot of people have also taken issue with what Hope said about flirting despite her being absolutely right. Flirting is entirely about fun. Acting amorously without serious intent. I wrote an entire article about it.

It isn’t flirting if your intentions are for more than having a fun few moments with someone. Let me repeat that: it is NOT flirting if your intentions are for more than having a fun few moments with someone. And she had a fun few moments with him. Smile exchange, scrawling down her number without a care for whether he calls or texts.

And also having the confidence in herself to just… scrawl down her number and hand it to him. Note that word: confidence. It’s important.

I do still have some degree of social anxiety. Being a street photographer has allowed me to overcome that. Since I wouldn’t be getting the shots if I didn’t get over myself and take the risk in approaching people.

And much like Hope’s friend in the above video, there’ve been plenty of photographers who have flat out asked me how I get the shots. “How do you do it?” And I tell them… I just do it. Though I’ve yet to openly demonstrate that in front of another photographer in much the same way Hope did with her friend. It would absolutely be very interesting if that chance arose. Perhaps I need to start wearing a body camera and posting videos of that to YouTube and TikTok. And then watch all the hate come in about how I’m bothering women, and how they’re just agreeing because they’re afraid of how I’ll react if they say No, and bullshit like that. Anyway…

Her message

What was Hope’s overall message that got lost in the noise over the pizza guy? It’s the same as what I just said about my street photography, and it’s much the same message in other videos about dating on her TikTok channel: get over yourself. In her case, it’s get over yourself and give out your number, even if you aren’t serious about doing anything with the people you’re giving it to.

Since you miss every shot you don’t take. But you need to get over yourself and put yourself out there and take those risks to boost your self-confidence to get the partner you ultimately want. Not to tell yourself “I hope they call or text”, because then you’re setting yourself up for disappointment. Whereas if you keep your expectations low and don’t care whether they do call or text, there’s no risk of disappointment. Instead the risk is one of surprise if they do reach out.

Assumptions

And it’s wild the assumptions people are making about her. Just as you shouldn’t judge an entire relationship from one video on TikTok, something that is unfortunately extremely common, it’s equally unwise to judge an entire person based on one TikTok video. And in a rather telling fashion, everyone who is saying Hope is in the wrong for “judging” the pizza guy – despite there being no judgment or denigration at all – are judging her based on a few lines from one video.

Courtney in the video above even does much the same. She describes the video as “really… cruel?”, “disappointing”, and “unnecessarily mean”, and misinterprets the video as “essentially making fun of [the pizza shop worker]”. I’m pretty sure we were watching the same video, but her interpretation of it definitely makes it sound like we weren’t. It’s like summarizing a movie from a handful of scenes despite watching the entire thing.

Again, sticking to what Hope said about the pizza guy and largely ignoring everything else. All because she openly admitted to…. having a preference.

Give me a break.

Hope didn’t do or say anything wrong here. Everyone just needs to lighten the fuck up.

Lavazza and the point of diminishing returns

One concept I feel a lot of people in the espresso communities need to learn, or re-learn, is “point of diminishing returns”, sometimes also called the “law of diminishing returns”. It’s a concept I recently recalled when talking about photography equipment. In short, it’s the point after which you are no longer getting value commensurate to the money you are spending.

The idea comes up a lot with gaming computers and selecting parts and trying to find the optimal point in terms of price versus performance, enthusiasts nothwithstanding.

With photography equipment, the concept is the same. Are you shelling out for a 60+ MP camera, or 100+ MP medium format, for photos that will only ever be seen on a computer screen? Would a 20MP or 24MP camera work just as fine for where you’re publishing photos?

And with espresso, the question really needs to be asked regarding not just equipment – e.g., machines like the Decent DE1 lineup – but also coffee. There’s this obsession among espresso enthusiasts with roast date. And I get it, since the fresher off the roast date you can get, the better the coffee is going to taste, since coffee does go stale unless it’s properly stored. That’s the narrative everyone is being sold.

“Buy local!”

“Avoid mass produced coffee!”

“Starbucks is the devil!”

I’m sure we’ve all heard these at one point or another. And with COVID, the emphasis on “buy local” was apt since it was smaller businesses – including the smaller coffee roasters – who suffered under the government-mandated concentration of commerce to the largest companies.

And I fell for that spell as well.

Being in Kansas City the default name for coffee is The Roasterie since they’re… everywhere. Their Super Tuscan was my go-to blend till I discovered Messenger Coffee when I moved to Rosehill Point in Lenexa in 2016, which is right behind Black Dog Coffeehouse, a Messenger Coffee partner. I fell in love with the flavor and it fast became my default and the baseline against which I’d measure other coffees I would try.

When I moved to Kansas City, KS, after buying my house, I discovered Filling Station off Johnson Drive (across from Shawnee Mission North High School) is also a Messenger Coffee partner, so bought beans from them. I just prefer the convenience of doing that over ordering it online. And Messenger doesn’t allow me to order for pickup at their plant like The Roasterie.

Then I lost my job.

Living off savings and having to cut back meant cutting out Messenger Coffee and its nearly $2 per day expense on beans. 18 USD for a 12oz bag of whole beans that lasted typically about 10 days with my normal rate of consumption. That wasn’t the only reason I looked for alternatives. As about the time I lost my job, Messenger was making changes to their branding and product lineup with their partners that I didn’t like. So the timing was perfect for finding a new direction.

After the spectacular failure that was Verena Street “espresso”, I recalled a coffee brand I’d encountered early on when I first looked at making a home espresso setup: Lavazza.

And, even better, it was available on Amazon and could be delivered overnight. A 1kg bag of the Lavazza Espresso 5/10 intensity blend for $19 including the overnight delivery charge and sales taxes. Almost 3x the coffee for the same price I was paying for Messenger’s Relay Espresso blend.

Let me repeat that: 3x the coffee. For. the same. price.

I wasn’t too keen on the flavor profile for that one, so tried the Barista Gran Crema 7/10 intensity for about 3 USD more, and I’ve stuck with that since.

So when I recalled the concept of “point of diminishing returns” when discussing photography equipment recently, it brought me back to coffee and how, for the last several months, I’d been buying a mass produced brand for a fraction of the price of the local roast that had become my default.

And it brings up this question: is Messenger Coffee two to three times better than Lavazza? No.

Indeed the flavor profiles are pretty similar, but Lavazza’s Barista Gran Crema actually wins out for me. I’m not a coffee enthusiast with a sophisticated palate and taste detection that rivals the best sommeliers. And my unemployment had me realizing that the more expensive coffees fail when it comes to the value proposition.

And with my Airscape canisters, the beans stay reasonably fresh for about the entire month the bag has no issue lasting. (Though I will soon be looking into a mason jar vacuum sealer for storing coffee beans over using the Airscape.)

I’ve said before that we need to stop complicating espresso. And that really also needs to start with the coffee. Go with a local roaster if you want and, more importantly, can afford to. But don’t dismiss the value question and avoid larger brands like Lavazza and Illy simply to… avoid the larger brands. Don’t be afraid to explore. Don’t fall for the spell of the roast date and avoid adding larger roasters into that exploration.

You might find something you like that will also save you a ton of money in the long run.

Revisiting Trump and the Fourteenth Amendment

So the Supreme Court of the United States ruled that States cannot exclude former-President (and current Republican front-runner) Donald Trump from their Republican primary ballots. I wrote an article basically saying much the same back in November 2022.

So where did the Supreme Court and I agree, and where did we not?

“officers of the United States”

First off, let’s get this out of the way. While it was argued by Trump’s attorneys that the President is not an “officer of the United States” as inferred in the Constitution, the Supreme Court ultimately did not rule on that point.

But they didn’t need to. Because it isn’t yet relevant.

For it to become relevant, two things would have to happen, in this order:

  1. Trump, or another former President, would need to be convicted in a Federal Court under 18 USC §2381 or §2383, with that conviction not being vacated by a Court, and
  2. They would then need to win the election for the office of President.

And given the likelihood for this to happen, this is a question that will likely never be addressed simply because it won’t ever need to be.

Section 5

This was really the entirety of the Supreme Court’s ruling. Section 5 of the Fourteenth Amendment says simply, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” So Congress alone is granted that authority by the Fourteenth Amendment.

Its ratification did not stop ex-Confederates from seeking and being elected to Federal office. The issue was simply Congress had yet to define an enforcement mechanism, meaning, by default, Congress never saw the Amendment as self-enforcing. And Section 5 explicitly disavows any idea that it is self-enforcing.

Congress’s Section 5 power is critical when it comes to Section 3. Indeed, during a debate on enforcement legislation less than a year after ratification, Sen. Trumbull noted that “notwithstanding [Section 3] … hundreds of men [were] holding office” in violation of its terms. Cong. Globe, 41st Cong., 1st Sess., at 626. The Constitution, Trumbull noted, “provide[d] no means for enforcing” the disqualification, necessitating a “bill to give effect to the fundamental law embraced in the Constitution.” Ibid. The enforcement mechanism Trumbull championed was later enacted as part of the Enforcement Act of 1870, “pursuant to the power conferred by §5 of the [Fourteenth] Amendment.” General Building Contractors Assn., Inc. v. Pennsylvania, 458 U. S. 375, 385 (1982); see 16 Stat. 143–144.

I mentioned the Enforcement Act of 1870 in my previous article. It provided for a “writ of quo warranto” for removing any person who was holding any Federal office in violation of Constitutional requirements – it was not limited only to the Fourteenth Amendment. Currently there is no Federal “quo warranto” statute. Instead that power is held by the District of Columbia with authorization by Congress and adjudicated by the United States District Court for the District of Columbia.

And absent “quo warranto”, Congress has absolute authority to impeach someone who is holding an office without proper qualification. The House and Senate have the unquestionable authority to refuse to seat and to eject someone who is not qualified to hold a seat in the respective Chambers.

For example, if it was true and could be proven that Obama was not a natural born citizen of the United States, the House absolutely could have him impeached on that point. Same for any person who was convicted of treason, insurrection, or, largely, any crimes against the sovereignty of the United States. The House and the Senate have that unquestionable, irreversible authority.

After the Enforcement Act of 1870 was largely repealed following the Second World War, the only direct enforcement mechanism for Section 3 left intact is the Federal criminal statutes for treason and insurrection, 18 USC §§2381, 2383, respectively.

So, in short, only Congress has the power to enforce Section 3, contrary to the assertions of the State of Colorado. And the Supreme Court also used much the same assertions to back up their reasoning that I used in my article.

Separate sovereigns

The Court also highlighted a complication that we’re already seeing. “The result could well be that a single candidate would be declared ineligible in some States, but not others, based on the same conduct (and perhaps even the same factual record).” And we’re already seeing this.

Due to the separate sovereigns doctrine.

Normally this doctrine is applied with regard to the Double Jeopardy Clause of the Fifth Amendment, but the concept is apt here. Each States is the controller of their own elections, deciding who has access to their ballots and who does not. This is why candidates for President have to gain approval from each State individually to be on the ballot in that State. There is no overarching Federal qualification process each State must honor – though that’d make Federal elections for third party candidates far easier.

Did they go too far?

Justices Barrett, Sotomayor, Kagan, and Jackson alleged in the two concurring opinions that the majority went a bit far in (and these are my words) “hammering home” the point that the States cannot enforce Section 3. But what they’re saying doesn’t seem to jive with the final decision of the Court, making me wonder if there was a much broader decision initially that was scaled back on the objections of the concurring Justices.

First, Justice Barrett:

This suit was brought by Colorado voters under state law in state court. It does not require us to address the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.

Reading the decision, I don’t see this occurring in the slightest. For one, the question isn’t complicated in the least. It’s straightforward. And the Court didn’t declare herein that Federal legislation is the “exclusive vehicle through which Section 3 can be enforced”. That had already been declared previously by Chief Justice Chase back in 1869. The Court herein merely reiterated it.

And Justice Sotomayor (with whom Kagan and Jackson joined) went so far into left field she hopped the fence and kept going. Again, I wonder if there was initially a much broader opinion that was then scaled back after Barrett and Sotomayor wrote their concurrences. This sentence in Sotomayor’s opinion gives reason to believe this: “They decide novel constitutional questions to insulate this Court and petitioner from future controversy. Ante, at 13.” Except there is nothing on page 13 matching what she is describing.

What was initially there?

Yet the Court continues on to resolve questions not before us. In a case involving no federal action whatsoever, the Court opines on how federal enforcement of Section 3 must proceed. Congress, the majority says, must enact legislation under Section 5 prescribing the procedures to “‘”ascertain[] what particular individuals”’” should be disqualified. Ante, at 5 (quoting Griffin’s Case, 11 F. Cas. 7, 26 (No. 5,815) (CC Va. 1869) (Chase, Circuit Justice)). These musings are as inadequately supported as they are gratuitous.

Note the year on the “Griffin’s Case” citation. 1869. The year after the Fourteenth Amendment was ratified. And the year before the Enforcement Acts of 1870 were passed into law under President Ulysses S. Grant.

More specifically, Chase issued his opinion in May 1869. Senator Trumbull, noted above, said what is quoted on April 8, 1869. So Senator Trumbull also recognized what Chief Justice Chase would eventually rule: that the Amendment required an enforcement mechanism for removing ex-Confederates who were disqualified by the Fourteenth Amendment and that no such enforcement mechanism yet existed.

Now the object of the amendment is to unseat every officer, whether judicial or executive, who holds civil or military office in contravention of the terms of the amendment. Surely a construction which fails to accomplish the main purpose of the amendment, and yet necessarily works the mischief and inconveniences which have been described, and is repugnant to the first principles of justice and right embodied in other provisions of the constitution, is not to be favored, if any other reasonable construction can be found.

Is there, then, any other reasonable construction? In the judgment of the court there is another, not only reasonable, but very clearly warranted by the terms of the amendment, and recognized by the legislation of congress. The object of the amendment is to exclude from certain offices a certain class of persons. Now, it is obviously impossible to do this by a simple declaration, whether in the constitution or in an act of congress, that all persons included within a particular description shall not hold office. For, in the very nature of things, it must be ascertained what particular individuals are embraced by the definition, before any sentence of exclusion can be made to operate. To accomplish this ascertainment and ensure effective results, proceedings, evidence, decisions, and enforcements of decisions, more or less formal, are indispensable; and these can only be provided for by congress.

Now, the necessity of this is recognized by the amendment itself, in its fifth and final section, which declares that “congress shall have power to enforce, by appropriate legislation, the provision of this article.”

There are, indeed, other sections than the third, to the enforcement of which legislation is necessary; but there is no one which more clearly requires legislation in order to give effect to it. The fifth section qualifies the third to the same extent as it would if the whole amendment consisted of these two sections. And the final clause of the third section itself is significant. It gives to congress absolute control of the whole operation of the amendment These are its words: “But congress may, by a vote of two-thirds of each house, remove such disability.” Taking the third section then, in its completeness with this final clause, it seems to put beyond reasonable question the conclusion that the intention of the people of the United States, in adopting the fourteenth amendment, was to create a disability, to be removed in proper cases by a two-thirds vote, and to be made operative in other cases by the legislation of congress in its ordinary course. This construction gives certain effect to the undoubted intent of the amendment to insure the exclusion from office of the designated class of persons, if not relieved from their disabilities, and avoids the manifold evils which must attend the construction insisted upon by the counsel for the petitioner.

It results from the examination that persons in office by lawful appointment or election before the promulgation of the fourteenth amendment, are not removed there from by the direct and immediate effect of the prohibition to hold office contained in the third section; but that legislation by congress is necessary to give effect to the prohibition, by providing for such removal. And it results further that the exercise of their several functions by these officers, until removed in pursuance of such legislation, is not unlawful.

Now remember, this was before the Enforcement Acts. The Fourteenth Amendment declared a disqualification for office that took effect immediately upon its ratification, one that Congress could remove – and the Court noted in a footnote that Congress did just that with the election of Nelson Tift.

But the mere declaration of the disqualification isn’t enough since, as Chase and Trumbull pointed out, Section 3 is not self-enforcing. Congress must enact legislation providing for its enforcement. And that’s where the aptly-named Enforcement Act of 1870 comes into play.

All the Court said in the majority opinion is simply that Congress alone has that authority.

All that, though, was repealed in 1948. What was left behind is the insurrection statute along with the “writ of quo warranto” process in the District of Columbia, along with, of course, the House’s impeachment power.

The Court today needed to resolve only a single question: whether an individual State may keep a Presidential candidate found to have engaged in insurrection off its ballot. The majority resolves much more than the case before us. Although federal enforcement of Section 3 is in no way at issue, the majority announces novel rules for how that enforcement must operate. It reaches out to decide Section 3 questions not before us, and to foreclose future efforts to disqualify a Presidential candidate under that provision. In a sensitive case crying out for judicial restraint, it abandons that course.

Again, the majority did no such thing. It said that enforcement falls only with Congress and that currently the only enforcement vehicle is, as mentioned, 18 USC §2381 and §2383. They didn’t address Federal enforcement of Section 3 in the slightest in what was published except to say, again, that only Congress can enforce it and highlight how it’s currently to be enforced.

But why did the Court do this?

In my opinion, it’s to foreclose any alternate ideas that might be brought before the Court as to how Trump might be declared ineligible under the Fourteenth Amendment. Such as, since the Court brought up Congress, attempting to appeal to Congress for a joint resolution or something amounting to a bill of attainder.

That’s the “hammering home” I mentioned earlier.

And I feel they did that to close any loopholes with the hope of keeping any potential future cases off their docket, since, this being an election year, any such cases would likely require expedited handling, disrupting their other business. So if they can prevent that by writing an opinion that says, in short, “States can’t enforce Section 3, and Congress can only do so via proper legislation”, then they’re closing the question on what Congress can do before it’s even asked.

No wiggle room. No loophole.

Inspect your holsters!

Holsters serve two important purposes: they carry your firearm and, more importantly, they retain your firearm.

The retention mechanisms in holsters are extremely important. Not only do they keep your firearm in the holster while you’re moving around, but should also make it so a random person isn’t able to just grab your firearm and run:

So if you don’t have a holster with good retention, remedy that shortfall. Now! (I personally recommend the ShapeShift from Alien Gear.)

But having the holster isn’t enough. You do need to periodically test the retention in your holster to make sure it not only still holds your firearm securely, but that someone also can’t just grab your firearm and unholster it.

Retentions wear out over time, so it’s important to periodically inspect them and replace the holster (or just the shell, if in the case of a lot of IWBs) if the retention is failing or not adequately retaining your firearm.

So what’s bringing this up? The Los Angeles Sheriff’s Department (LASD) recently had an… incident. A 17 year-old woman managed to take a deputy’s firearm from his holster and turned it on herself:

It is alleged the female reached toward the deputy’s firearm and retrieved the firearm from the deputy’s holster. During the altercation, it is alleged that the female suffered from a self-inflicted gunshot wound with what we believe to be the deputy’s firearm.

Which given the type of retention in law enforcement holsters, that normally shouldn’t be possible. With heavy emphasis on NORMALLY. A worn or faulty retention could allow that to happen, though. In a comment on the article reporting this incident, I said this:

Okay the LASD needs to inspect everyone’s holsters to ensure the retention mechanisms are working as expected, or completely re-evaluate what holsters they’re issuing to their officers.

And depending on what actually happened, the Los Angeles Sheriff might order an inspection of every officer’s holsters just to make sure retentions are working as expected. Any that are found to be defective will be replaced. And there’s the possibility they issue completely different holsters to their officers.

But either way, the only person who should be able to unholster a firearm is the person wearing it. So if the young woman in question was able to unholster the officer’s firearm despite the retentions that should be built into that holster, it’s safe to say the retentions failed or were defective out of the gate.

So let this be a reminder to test the retention on your holster. And if you don’t have a retention holster, get one. Again, I recommend the Alien Gear ShapeShift and have been using it since I bought it nearly 6 years ago as of this writing.

Sidestepping Miranda

Several years ago I wrote an article going after an appellate court decision out of Washington that, in short, allowed police (in that State, at least) to sidestep the Fourth Amendment and obtain evidence they otherwise wouldn’t have been able to get while still abiding by the Constitution. Here, the focus is shifting to the Fifth Amendment and how police were able to get a confession from two suspects, who were also minors at the time of their arrests, without actually talking to them.

The case in question comes out of Florida on a habeas corpus petition to the Court of Appeals for the Eleventh Circuit. In that case, then-16 year-old Jimmie Bowen shot and killed a rival gang member, shot and wounded a second adult, and shot and killed a 10 month-old infant sitting in that second adult’s lap. Bowen and his getaway driver, 17 year-old Bernard Jones, were fingered by one of Bowen’s associates, and they were arrested.

Upon an attempt at questioning, in a very smart move typically not seen out of youths, let alone gang members, Bowen lawyered up and the interrogation ended before it could go anywhere. But here’s where things get shaky: police put Bowen and Jones in the same room pending transfer to a juvenile detention facility. That room was monitored by security cameras with audio recording, and Bowen and Jones started discussing the incident, in short giving police… everything they would need to more-or-less guarantee a conviction.

Quoting the Eleventh Circuit discussing the trial motion to suppress their conversation (note: Solis is the arresting officer):

At the suppression hearing, Solis shared several motivations for putting Bowen and Jones in the room together. He first testified that it was so they could await transportation to the Juvenile Assessment Center. But he later admitted to recognizing that the two suspects might speak to each other about the murders—indeed, hoping they would—and conceded that this possibility informed his decision to put them in the same room.

The trial court denied the motion to suppress, and that was used as a basis for appeal. After exhausting all State-level options, Bowen appealed to the United States District Court for the Southern District of Florida for habeas corpus relief. And the District Court ruled that Bowen’s Miranda rights were violated. But the Eleventh Circuit reversed.

I’ve written on Miranda numerous times, stating specifically that the Fifth Amendment only protects you from being compelled to self-incriminate, and that it offers no protection when you willingly do so. And with Bowen and Jones, I fully agree there was no compulsion to self-incriminate.

But there’s another question to ponder: what is the likelihood Bowen and Jones would have self incriminated had the police not put them in the same room?

Bowen (and also his mother) asserted his Fifth Amendment rights before being placed into an environment where a confession was expected. It was the actions of the police that led to the confession, not anything Bowen did of his own free will. Had Bowen and Jones not been placed in the same room, it’s likely there never would’ve been any confession.

But as the Eleventh Circuit noted in their decision, Solis put them in the same room hoping they’d talk to each other. The officer hoped to get everything that could have come from an interrogation without needing to actually interrogate. To get everything that could have come from an interrogation after Bowen had asserted his Miranda rights.

The officer intentionally attempted to sidestep Miranda and the Fifth Amendment. And the trial court and now the Eleventh Circuit let it stand.

If this case is appealed to the Supreme Court, I hope they grant certiorari and emphasize that point specifically and rule that Bowen’s Miranda rights were violated. The police should not be allowed to create the environment in which a person willingly self-incriminates after that person has invoked their rights.

When “unanimous” isn’t

When a jury in a criminal trial returns a unanimous verdict of “guilty”, we generally presume they are in 100% agreement on that verdict. But are they?

Hannah Gutierrez was recently convicted in the negligent homicide that occurred on the set of the movie Rust. And while one could readily presume that means all of the jurors were in complete agreement on all facts going into that verdict, the jury instructions… shed light on the fact that may not actually be what happened.

The issue stems from the words “and/or” in the jury instructions.

The Massachusetts Appellate Court ruled in 1998 that including “and/or” in the jury instructions was “so confusing and misleading as to engender great doubt about whether the jury was unanimous with respect to some part or all aspects of its verdict or whether the jury may have convicted the defendant by finding the presence of less than all the elements the prosecution was required to prove”.[Commonwealth v. Johnson, 700 N.E.2d 270, 272-73 (Mass. App. Ct. 1998)]

And in quoting the above, the New Mexico Supreme Court issued a ruling earlier this month overturning a conviction because of “and/or” in the jury instructions and remanding for a new trial:

Based on the significant risk of jury confusion and misdirection created by the 2 use of the ambiguous term and/or in identifying Defendants’ underlying course of 3 conduct in the jury instructions as framed, we reverse Defendants’ reckless child 4 abuse convictions and remand for a new trial consistent with this opinion.

And when you’re talking about complicated matters of law that are supposed to be understood by a lay person on a jury, ambiguous jury instructions are going to be a problem. And jury instructions have been cause for many appeals of criminal convictions.

And as the Massachusetts Supreme Court ruled in 1998, quoted above, the inclusion of “and/or” opens up the possibility that a jury could be split on the facts but still convict, possibly even split on whether every fact required by law to be proven has actually been proven.

Jury instructions serve a vital purpose in a criminal and civil trial. They are explanations of the law that tell the jury what specifically they are being asked to determine, what facts they are to decide as the finders of fact have actually been proven. Beyond reasonable doubt in a criminal trial, beyond a mere preponderance of the evidence in a civil trial. And faulty jury instructions have been subject to appeal… a lot.

A jury’s verdict of guilty is to be unanimous. When a jury returns a verdict of “guilty”, it is right to presume it means all facts required to be proven beyond reasonable doubt have actually been proven such, and the jury is saying so unanimously. And the jury instructions must reflect that. Meaning judges need to be careful to not include “and/or” in such a way that a jury could wrongly believe they can return “guilty” even when they are split on all necessary facts.

So if such was also the case leading to Hannah Gutierrez’s conviction, then that conviction absolutely should be vacated and a new trial ordered with proper jury instructions given.

Check your mainboard battery

Build Log:

So let’s talk for a moment about a small part on your mainboard that might have a lot more influence over your system’s stability and even performance than is readily apparent. Given the title, I’m talking about the humble little BIOS battery. That simple and easy-to-overlook CR2032 coin battery on every mainboard.

So why am I bringing this up? Nasira – hence the inclusion of this in that category.

Currently Nasira’s mainboard is the X99 mainboard I bought when I upgraded my wife’s system to X99 back in… 2016. So about 8 years ago. And I upgraded Nasira from its original 990FX platform to X99 only a touch over a year ago. But it had been performing more-or-less solidly up until recently.

This past Saturday I tried to install a TrueNAS update through the web UI. The installation appeared to go well until the system went down for reboot. It never came back up. And the symptoms that appeared made me, at first, wonder if the TrueNAS update had again failed. Immediately I started wondering if I was about to lose a fourth SSD.

Fourth SSD?!?

Recall back in August last year that I was diagnosing some rather odd issues with the system not wanting to boot. After trying to install yet another TrueNAS update. At first I thought the issue was the 10+ year-old power supply when it was actually the 5+ year-old ADATA SSD, so SSD #1.

I replaced it with an Inland 128GB SSD from Micro Center, SSD #2. That died in November, so all of three months, and I replaced it with a Crucial BX500 240GB SSD that I also bought from Micro Center, SSD #3. And that didn’t even make it a month before dying – though I think it was showing SMART errors from day 1. But DOA parts happen.

So now the boot SSD is the HP NVMe SSD that I initially installed as an SLOG, so SSD #4. Anyway…

Like I said, the symptoms made me wonder if I was about to lose that SSD as well. It was still being detected by the system without issue. GRUB would load as well. But attempting to boot into TrueNAS caused the system to hang. Similar symptoms to what I was seeing before.

Except it wasn’t hanging trying to go into the BIOS, telling me the drive was initializing as expected, so this shouldn’t be a hardware failure. (Mostly.)

Corrupted update?

So did the TrueNAS update corrupt the system? That was my initial thought.

So I prepared a Rocky Linux boot drive with the intent of migrating Nasira to that and jettisoning TrueNAS entirely. Except… it wouldn’t boot. The UEFI boot failed to load, and the non-UEFI boot option would halt the system with either an “uncompression error” or “32-bit relocation outside of kernel”. Google searches on the latter pointed to this being a hardware problem.

Strange… Aside from the mainboard, processor, and graphics card, none of the other hardware was really all that old. And there’s no reason to think anything became unseated.

But it would occasionally, though not consistently, fail to POST entirely, not showing a picture and not allowing me into the BIOS. Resetting or powering off completely kicked it back to life and I was able to get into the BIOS to access the boot menu. And sometimes I’d get an error that the overclock failed.

So I pulled Nasira out of the rack and opened her up.

That’s when the glint of the CR2032 caught my attention. How old was that battery? Had it ever been replaced? Likely not. So I popped it out – system was unplugged, so this also did a BIOS reset – and replaced it with a fresh Energizer CR2032.

And on a fresh boot with a fresh battery, the system was a lot more responsive. And stable. And the Rocky Linux install loaded without issue. But I decided to let it boot into TrueNAS, which also came up without issue.

The system has been stable since. And performing better than previously, actually. So that’s something I really should’ve done last year before I put this board into service as Nasira.

So yeah, check your mainboard battery!

Another unexpected benefit! (Update: 2024-04-01)

Today was the first scrub since changing the mainboard battery and… the first with out any checksum errors.

Recall that Nasira is running on a consumer X99 mainboard with an i7-5820k, so no ECC RAM. And I’d been getting checksum errors with every monthly scrub since putting it into service. Until today. So there could’ve been something about the dying CR2032 that led to checksum errors when performing a scrub, which is definitely odd, to say the least.

If I get checksum errors on the May 1 scrub, I’ll update accordingly.

Update: 2024-05-01 – No checksum errors again on this scrub.

How often to replace it?

The lifespan of the CR2032 on your mainboard is dependent on several factors. The quality of the cell easily being the biggest one. How often the system is running versus how often it’s powered off being another.

And the CR2032 batteries that come with most mainboards aren’t the best quality available. But they also don’t really need to be.

And that no CR2032 cells were included was one thing that stood out when I bought the Machinist mainboards that went into my router and virtualization machine. But these coin cells are also Lithium cells, which generally cannot be included in air freight. But it also meant that I could more-or-less guarantee it gets a high quality battery.

So how can you know if you have a quality CR2032? Look up the brand and see if there is any information as to how long the battery can last in storage. Since all cells lose energy over time – that’s just the nature of it – and lower quality cells will degrade faster. While your system is powered on, that battery is sitting idle, meaning it’s every so slowly degrading.

Typically these cells should last 5 years in storage. Higher quality cells are generally rated for longer – Duracell advertises a 10 year lifespan under ideal storage conditions. While the system is powered off, that battery is being used to power the volatile storage for the BIOS, so it’ll drain faster. But it isn’t drawing a lot of current – we’re talking microamps- so it’ll still take a couple years for an idle mainboard to drain it.

And 5 years has generally been the guideline for how often to replace the battery.

One thing to also point out: you can’t always use idle voltage to determine whether the battery is dead. Nominal idle voltage for a CR2032 is 3V. Sure if it tests well below that with no load, then it’s definitely dead. But it might also register 3V when it is actually dead.

Instead you need to have a resistance load – 1kΩ works fine – on the battery when testing the voltage. You can find DIY solutions online for this. You just need a coin cell adapter, 1kΩ resistor, and a voltage display of some kind.

It’s generally a good idea to replace the battery if the mainboard had been sitting unused for a very extended period of time – e.g. Greg Salazar’s attempt to build an X58 system from a brand new, unused mainboard (the battery absolutely needed replacing, but that wasn’t the only problem). If you’re buying a mainboard on eBay that’s more than a few years old and the seller doesn’t mention in the listing they replaced the battery, just replace it as soon as you get it to avoid it giving you any issues.

Different mainboards will react differently to a dead or dying battery. Some will still POST but may display a warning that the battery needs replaced. And with those boards, it’ll also display a message that the BIOS was reset if the battery completely dies. Some will not POST at all.

And then you might get stability issues like I noticed with the ASUS X99 board in question. And given some stability issues I’ve had playing with the Sabertooth X99 I still have laying around, I might just see if replacing the battery alleviates that issue.

So if you’re noticing some weird system stability issues, it might be worthwhile to change out that battery. A simple, cheap little part that’s quick to replace, and something a lot of us likely overlook. Especially if the mainboard is older – again, I bought Nasira’s mainboard in 2016 – and you don’t recall ever replacing it or you know it’s never been replaced.

Make sure, though, to replace it with a quality brand as well – Duracell and Energizer are who I typically go for – to ensure the new battery will also last.

Make sure as well that you replace the battery with the system unplugged. This isn’t for any kind of safety concern, but so the CMOS is also cleared. Yes, this means you’ll need to change all your settings back and reapply any overclock, but it’ll also ensure the CMOS doesn’t have any potentially-corrupt data.