Sunday, March 17, 2013

GUN FEVER ON THE KANAWHA (Pub Date 3/23/2013)

“We had to destroy the town in order to save it.” An Air Force major as quoted by AP reporter Peter Arnett.

In the late sixties that quote came to signify the futility and absurdity of America’s presence in Vietnam. It perfectly captured the mindset of those so obsessed with the fight that they lost sight of what they were fighting for. And so it seems to be with certain West Virginia legislators whose fevered imaginations have conjured a flurry of anti-gun control measures that, far from defending the principles they claim to revere -- personal freedom, local control, and constitutional rights – do harm to them all.

The Charleston Gazette reports that “33 bills have been introduced to boost pistol-carrying and assault weapon ownership” in West Virginia, some of them of such studied silliness that they’re actually useful since they will never become law and helpfully remind us of the ridiculousness of those who propose them.

Delegates Eric Householder, Larry Kump, Larry Faircloth, and Mike Folk of Berkeley County have proposed House Bill 2580 which provides that, “all future federal, state, and local statutes, laws, ordinances, and rules concerning firearms, firearm accessories, ammunition, and their accouterments(sic) are invalid and unenforceable."

Note that the provisions of this bill extend to federal law, which the authors know is beyond the reach of state statutes, making the proposed bill unconstitutional on its face. Other bills, while just as silly, are not so benign.

The House recently passed Bill 2760, which nullifies all county and local gun ordinances, such as those in Charleston and Martinsburg. Delegate Householder told the Hagerstown Herald Mail, “I voted for it because I don’t think cities and municipalities should be able to enact their own gun control laws.” “If they do, they overstep and infringe on everyone’s Second Amendment rights.”

The misguidedness of Householder’s reasoning, if it can be called that, is stunning specifically because the bill does nothing about laws that infringe on second amendment rights. Amendments to the Constitution and the rights they confer are protected by -- you guessed it -- the Constitution -- the supreme law of the land. So, local laws that contravene the second amendment are already null and void with or without this or any other state statute. In fact, the only laws to which House Bill 2760 would apply are those that are constitutional, such as local prohibitions against carrying firearms in public buildings.

In addition to vacating laws that are constitutional, House Bill 2760 is also a powerful example of a one-size-fits-all state mandate being imposed on communities. We wait in breathless anticipation for the next election campaign when the hypocrites-in-waiting who voted for this bill claim to believe in “local control”. And there will be lots of them since only four members of the House, one of them Jefferson County Delegate Stephen Skinner, had the good sense to vote “no”.

Just as pernicious is another bill sponsored by eleven Democrats, which according to the Associated Press, if enacted, will expand West Virginia’s existing “Stand Your Ground” law so that in addition to allowing residents to “use physical force to repel home intruders or any attackers” it will allow them “to use force to defend another person who is attacked, or to defend any piece of movable property.” The bill also reportedly removes language from current law that requires self-defense to be ‘proportionate’ to the attack.

If you’re not disturbed by the prospect of one fourteen year-old being allowed to shoot another because “he grabbed my Mountain Dew” (a piece of movable property), consider that under the law, one is considered to be “attacked” if one merely “reasonably believes” that another “may” inflict harm. So, what happens if two gang members or two feuding neighbors, both of them armed, encounter one another on the street and both “reasonably believe” they are at risk? Are they allowed to shoot it out? Apparently.

What’s tragic is that this legislative hysteria is going on against the backdrop of West Virginia’s inexorable climb in the prevalence of guns and the frequency of gun deaths. Already we’ve surpassed New Jersey and New York where, as in most of the rest of the country, the rates of violent crime and gun deaths are declining. But, not here.

Perhaps the saddest irony of the legislature’s posturing and pontificating on the issue of guns is a letter sent by speaker of the house Rick Thompson to Beretta USA, a gun manufacturer. The company is based in Maryland, where a new gun control law was recently passed. Thompson, trying to seize the moment, suggested that Beretta move its headquarters to West Virginia where “the state’s long support of the Second Amendment and our close proximity to your current headquarters, makes us an excellent choice for Beretta USA in your relocation efforts.”

Of course, Beretta, like most companies, won’t move here. Why? Because West Virginia’s economy is putrid, we don’t offer an educated workforce, infrastructure is lousy, and budgets for education and other services are being cut – all issues that the legislature should be concerning itself with instead of descending into an orgy of gun rights mania.

The legislators who are putative defenders of the Constitution, guardians of personal freedom, and proponents of safety by arming everyone would do well to recall another famous Vietnam era quote from cartoonist Walt Kelly whose character, Pogo, warns, “We have met the enemy and he is us.”

Sean O’Leary can be contacted at A version of this column with links to the sources can be found at Sean O’Leary’s blog,

Monday, March 4, 2013


According to his office’s press release West Virginia Attorney General Patrick Morrisey sent a letter to President Obama on February 11th “expressing his concerns about the current direction of the Environmental Protection Agency (EPA), and urging the President to change the agency’s “current path” by nominating a more reasonable successor to recent EPA Administrator Lisa Jackson”. As an example of the EPA’s unreasonableness, the highly publicized letter cited the agency’s “delay in issuing a permit for a West Virginia mining site“ which, “resulted in the layoff of nearly 150 workers”.

The problem is that it wasn’t true. There was no layoff (1), a fact revealed not by a reporter or a news organization. It had to be pointed out by a guy named Rob Goodwin in a letter to the editor in the Charleston Gazette.

Sadly, gaps between rhetoric and fact, like the one in Morrisey’s letter, are commonplace in West Virginia -- in its politics, in its news reporting, and in its lawmaking.

One of the few journalists to readily acknowledge the problem is Ken Ward, Jr. of the Charleston Gazette. Ward recently issued a series of tweets bemoaning the frequency with which lawmakers make unsubstantiated claims and are assisted by reporters who echo the claims, neither demanding sources nor checking the facts. So, when at a recent hearing on reforming the procedures under which teachers are hired and fired, Senator Bob Plymale claimed that grievance judges almost always side with seniority, Ward tweeted to a reporter covering the hearing, “Does he have data to support that?”

Of course, Plymale didn’t.

Meanwhile, Ward has shown us how it should b done. Last year, in the wake of the Upper Big Branch mine tragedy, Governor Earl Ray Tomblin signed a “monumental” mine safety bill, which, a Ward story revealed, did almost nothing. The law didn’t require real-time ventilation and monitoring of coal dust, which caused the UBB explosion. “New” rock-dust standards were redundant having been enacted two years earlier. An “anonymous mine safety tip line” was also already in existence. A requirement that miners be tested for drugs addressed an issue that has never been tied to a mining disaster and which had nothing to do with the UBB explosion. And the bill’s increased fines for safety violations have not been implemented to this day.

It’s important to note that Ward’s story wasn’t an “opinion piece”. It didn’t stake out a position either “for” or “against” the law. Nor was it really an example of “investigative journalism” since the facts contained in the story required only a comparison of the new law’s provisions to existing state and federal law. The story was simply a solid piece of reporting that presented the new law in the context of the facts. And they, not Ward’s opinion, undercut the governor’s claim that the law was “monumental”.

Sadly, Ward’s work is a rarity. Consequently, we’re regularly confronted with bogus claims and heavily hyped, but vacuous pieces of legislation that attract fawning press coverage with nary a trace of analysis.

Since 2010 West Virginia has been cutting corporate income taxes ostensibly to stimulate job growth, but with no quantitative evidence that jobs have been added. Meanwhile the state will lose over $191 million in revenue by 2017 and now faces the prospect of painful budget cuts.

Similarly, West Virginia hands out roughly $100 million annually in corporate tax incentives, loans, and grants without any analysis of their effect. Only every three years does the Commerce Department provide the legislature with a report and even there it omits the names of recipient companies, the size of their incentives, and any results that have or have not been achieved.

Then there’s the EPA’s supposed “War on Coal”, which is widely believed to have cost West Virginia thousands of jobs. Yet, there is no data to support the claim, nor is the absence of that data often reported. Meanwhile, there is abundant data showing that massive miner job losses have resulted from automation, the increased use of strip mining and mountaintop removal, and, most recently, the emergence of inexpensive natural gas as a competitor to coal. But, state leaders would rather blame the EPA and reporters let them.

Similarly, the natural gas boom is regularly said to be creating tens of thousands of jobs in the state. At last count fewer than a thousand jobs have been created and there has been no measurable increase in economic activity or employment in the counties where drilling is most prevalent, all facts which are almost never noted in stories about “the boom”.

Finally, the governor is considering whether West Virginia should expand Medicaid under Obamacare. He publicly wrings his hands over the costs to the state, which are almost never quantified. Meanwhile, he and the press regularly fail to mention the $600 million in federal funds that expansion will inject every year into the state’s economy.

In short, West Virginia is often an accountability-free zone where content-free politicking combines with fact-free news coverage to produce impact-free laws – laws that may appeal to public sentiment, but which accomplish little or nothing often at the price of draining the state of resources.

Former Defense Secretary, Donald Rumsfeld, observed that there are known knowns, known unknowns, and unknown unknowns, but in West Virginia we’re also afflicted with knowable unknowns and we’re afflicted with them because we’re just too lazy to ask or, better yet, demand.


(1) See the last paragraph of page 34 of CONSOL Energy's February 7, 2013 10-K filing with the Securities & Exchange Commission, which reads in part:

"Thus far, CONSOL Energy subsidiaries have been able to continue operating their existing mines. However, CONSOL Energy was affected by a delay in permitting in 2012 for a new coal mine in Mingo County, WV, which resulted in a Worker Adjustment and Retraining Notification Act (WARN) notice being issued for employees scheduled to begin work on the new mine. Since 2007, CONSOL Energy has undertaken permitting activities to permit a new surface mine with a post mine land use plan for a five mile stretch of connecting highway that is part of the King Coal Highway corridor. CONSOL of Kentucky entered into a Memorandum of Understanding in conjunction with the Federal Department of Highways Administration and the U.S. Army Corps of Engineers, to coordinate the design of the valley fills to serve as highway infrastructure. However, the EPA objected to CONSOL Energy's water discharge permit on the grounds of their April 2010 Appalachian guidance, which resulted in CONSOL Energy's issuance of a WARN notice on October 30, 2012 for 145 employees who were planned to work at the new coal mine. CONSOL Energy was able, in this instance, to redeploy these employees to work at another adjacent coal mine property for which a permit was already issued. However, there is no assurance that the permit for a new coal mine will be issued, or that CONSOL Energy would be able to re-deploy its employees under future similar circumstances."