Moral Issues Become Legal Issues

One man’s vice is another man’s criminal act. The problem is that sometimes the man determining what is criminal doesn’t agree with me. That makes me a lawbreaker, even when I indulge behind closed doors, or with other like-minded individuals.

We have so many instances where the good intentions of the lawmakers create a backlash by the populace.

The first thing that comes to my mind is the Emancipation Proclamation. The slavery question, in spite of our views now, was seen as an intrusion into state’s rights and individual rights. What happened? …. the Civil War happened. People don’t take kindly to their particular position being legislated out of existence. What really happens is that the activity just goes underground and morphs into something that is less visible and more palatable. Do we still have slavery? Sure, we see every day in the news that the slave trade is alive and well, but being conducted underground by criminals. I am not commenting on the morality of the situation, just the fact that legislating against something does not stop it. Every rebellion is a war of sorts

Next biggie in my mind is the opium “crisis” in the 1800’s. Prior to 1890, laws concerning opiates were strictly imposed on a local city or state-by-state basis. One of the first was in San Francisco in 1875 where it became illegal to smoke opium only in opium dens. It did not ban the sale, import or use otherwise. In the next 25 years, different states enacted opium laws ranging from outlawing opium dens altogether to making possession of opium, morphine and heroin without a physician’s prescription illegal. These laws were mostly enacted to deal with the increasing Chinese immigrant population who brought their customs and accepted use of opium and other opium derivatives. Lawmakers saw their populace taking up the customs of the immigrants and took exception to that. Opium and heroin have been illegal for nearly 100 years.

Next? Marijuana. Many are asking about the legal history of marijuana and how it ended up in the category of drugs deemed most dangerous by the federal government (Schedule I). This is an interesting history and worth your reading and investigation. It is too long and involved for these purposes but interesting enough to mention. It is important to go back to what was happening in the United States in the early 1900’s just after the Mexican Revolution. The country saw the success the West Coast had in stifling the Chines immigrants’ customs. At this time, we saw an influx of immigration from Mexico into states like Texas and Louisiana. Not surprising, these new Immigrants brought with them their native language, culture and customs. One of these customs was the use of cannabis as a medicine and relaxant.

Mexican immigrants referred to this plant as “marihuana”. While Americans were very familiar with “cannabis” because it was present in almost all tinctures and medicines available at the time, the word “marihuana” was a foreign term. So, when the media began to play on the fears that the public had about these new citizens by spreading claims about the “disruptive immigrants” with their dangerous native behaviors including marihuana use, the rest of the nation did not know that this “marihuana” was a plant they already had in their medicine cabinets and its plant cousin was used to make most of the ropes used on sailing vessels in the world.

The demonization of the cannabis plant was an extension of the demonization of the immigrants. In an effort to control and keep tabs on these new citizens, El Paso, TX borrowed a play from San Francisco’s playbook, which had outlawed opium decades earlier in an effort to control Chinese immigrants. The idea was to have an excuse to search, detain and deport Mexican immigrants. Marijuana became that excuse. This method of controlling people by controlling their customs was quite successful, so much so that it became a national strategy for keeping certain populations under the watch and control of the government.

During hearings on marijuana law in the 1930’s, claims were made about marijuana’s ability to cause men of color, (their words, not mine), to become violent and solicit sex from white women among other vile and outrageous behaviors. (No one mentioned that alcohol caused the same behaviors). This imagery became the backdrop for the Marijuana Tax Act of 1937 which effectively banned its use and sales. By that time, you would think that they would have learned by the failed Prohibition campaign. Marijuana has been illegal for approximately 75 years, but its use has only grown and the criminal element along with it.

What next? Gambling – casino type gambling. By the end of 1910, virtually all gambling is outlawed in the United States. It wasn’t until Nevada re-legalized casinos in 1931, that casino gambling became legal in the United States. Organized crime was already involved in illegal gambling and took their expertise into the legal gaming industry. They supplied the alcohol that helped fuel the end of prohibition. Now, many states have legalized casino gambling or other forms of gambling for the revenue streams — another loss for the moral imperative.

Prohibition of alcohol – the promise of utopia. In 1919, the eighteenth amendment of the U.S. Constitution effectively established the prohibition of alcoholic beverages in the United States by declaring the production, transport, and sale of alcohol, (though not the consumption or private possession), illegal. People who were normally law abiding, failed and refused to honor the law of the land and contributed to that period of lawlessness. The eighteenth amendment is the only amendment to the U.S. Constitution that has ever been repealed. In 1933, under pressure from law enforcement and the population, Congress was convinced to repeal Prohibition. Prohibition lasted 14 years and cost many lives, established organized crime’s foothold in the U.S. and gave them the financing to branch out in other areas of illegal behaviors that the public demanded.

Every parent has experienced a child who has been burned, some seriously, when admonished to not touch the stove because it is hot. Is it that human behavior demands to take part in risky behaviors even when warned of the consequences? Does society have a need to control the individual behavior of its citizens? Evidently not, just ask John Geddes Lawrence Jr., Tyron Garner, and Robert Eubanks.

We allow alcohol and not other recreational drugs. I am not making a case for drug use, but the hypocrisy of a culture that condones one type of recreational drug and not another. I guess they learned not to take on alcohol again.

Dependency and addiction are often touted as reasons for protecting the populace against a demon indulgence. Statistically, and chemically, sugar is as addicting as most recreational drugs and almost as damaging.

Why am I discussing this? Because there is a move to ban guns….again. No one is talking about the root cause of the evil that uses the inanimate gun to do its will. We have seen the futility of prohibition of anything. Prohibition of alcohol and drugs has resulted in criminal elements providing the things that the people want with the gangs fighting for the opportunity to provide the contraband.

We spend millions of dollars treating dependencies due to the problems that they cause in society. We are seeing a move to treat the causes of the addiction and weaning the person away from an artificial method of dealing with life and problems. Escape or recreation? It makes no matter to society, or the abuser. Society tries to prohibit it and the user goes to any means to help resolve his need. The abuse of guns is a symptom of something deeper than “the gun made me do it.” Until we can find the root cause and do something to fix it, we should not accept the placebo effect of banning guns. Think Prohibition and all the “normal” people who became lawbreakers.

If you seem to see a little trail of reasoning behind prohibition, you are probably correct. Mostly it is minorities, colored, race, socio-economic status, or some group the other group does not like for some reason.

I believe a little bit of the red-neck and I say that affectionately — white male, conservative is now being targeted as an undesirable, and those trying to ban guns are afraid of a person who is different and has an independent streak. So far, no member of the NRA has participated in any of the shootings that are the ostensible reason for banning guns. Actually, most of the shooters are of a liberal bent and a lot bent. Society needs to declare war on the mistaken idea that any person who is dissatisfied is entitled to have their perceived problem taken up by society and resolved in their favor IMMEDIATELY and if not, they are ENTITLED to strike out in any way they see fit, a tantrum, if you will. Because you worked, saved and sacrificed does not mean they get what you have NOW, or can throw a tantrum (riot) and get their way NOW. I believe most of our shooters are spoiled brats that didn’t get their way and were not taught socially acceptable ways to resolve their conflicts.

Call me old fashioned, but I think we have capitulated to the demands of an ever increasing appetite for immediacy and “me and mine”.

History has taught us prohibition is futile, and no, this generation has not found a way to make it work. If someone wants it, they will find a way to get it. It is the old law of supply and demand.

If someone demands it, someone will supply it. Always have, always will.

If you have the time and the January 2013 Issue of Dockline, read my article “Into the Fray”. If you don’t have it, call and ask for it. I can e-mail you a copy, or you can come by my office and pick it up at no charge.


Weston Cotten is admitted to practice in all Texas Courts, the Southern District, Eastern District, Northern District, Western District Federal Courts, and the U. S. Tax Court, though not certified as to any legal specialization. I have been licensed to practice for 35 years. My areas of practice include Probate and Estate preservation, business formation and operations, real estate, Social Security Disability and Bankruptcy law and obviously meddling into people’s affairs. He is a local, solo practice attorney with his office located at 5223 Garth Road, Baytown, TX 77521, moving to 1500 E. Wallisville Rd., Highlands, TX on or before May 1, 2018.

Please visit my website at, or call at 281-421-5774.