Archive for the ‘US Constitution’ Category

General Counsel Unconstitutional?

This is more of a question than a statement, but since the Fourth Amendment has a specificity requirement wouldn’t a remit to just go forth and investigate violate that?

The fact that the Mueller Investigation is turning up evidence of thinigs beside Russian Collusion, which was its remit reminds me of a general warrant. General warrant wereissued by the English Secretary of State for the arrest of the author, printer, or publisher of a seditious libel, without naming the persons to be arrested. Such warrants were banned by Parliament in 1766.

Here is the black letter law on one.

A general warrant refers to a warrant providing a law-enforcement officer with broad discretion or authority to search and seize unspecified places or persons. A general warrant lacks a sufficiently particularized description of the person or thing to be seized or the place to be searched. General warrants are unconstitutional because they do not meet the Fourth Amendment’s specificity requirements..

The Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.[1}

It seems to me that if the investigation related to Russian Interference than the remit can’t be to go forth and find evidence of crimes without that being in violation of the Fourth Amendment. As the court pointed out in U.S. v. George,  975 F.2d 72, 74 (2d Cir. 1992): the language any other evidence relating to the commission of a crime was unconstitutional. That’s because it was ” plainly is not sufficiently particular with respect to the things to be seized because it effectively granted the executing officers’ “virtually unfettered discretion to seize anything they [saw].”

it seems to me that any investigation would have to have specific limits or it violates the Fourth Amendment.

[1] this from the North Carolina Constitution:

General warrants, whereby any officer or other person may be commanded to search suspected places without evidence of the act committed, or to seize any person or persons not named, whose offense is not particularly described and supported by evidence, are dangerous to liberty and shall not be granted.

Imagine this actually happening at the US Constitutional Convention.

The Good News: Catherine the Great has promised to give us a Donkey Show if we create an Electoral College.
The Bad News: It won’t be for another 230 years or so.

Next, Let’s ensure that we will have gun mayhem and mass shootings in the future.

Oh, cake!



Originalism and the Second Amendment

This is all very simple since according to people who claim to believe in Originalism, “Constitutional interpretation should remain anchored in the original meaning of the Constitution’s text, which is the source of the Court’s authority and legitimacy.” Using that definition:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The text of the Second Amendment begins with “A well regulated Militia” which is “necessary to the security of a free State“. The language of the text does not mention Self-defence, hunting, target practise, or any other non-militia uses. It is a well established rule or statutory interpretation that inclusio unius est exclusio alterius  which means  that ‘including one excludes another’. The example given where I found this was the statement ‘no dogs allowed’ under this rule would mean that panthers were allowed.

Likewise, the fact that the Militia is specifically referenced would lead one to conclude that this text addresses the militia, but does not cover uses other than the militia.

Likewise, a search of the US Constitution shows that it addresses the militia, but personal defence is not addressed. Likewise, the preamble of the text makes it clear that one of the reasons for adopting the Constitution is to deal with matters of the common defence. However, there are people who claim to follow originalism who are willing to ignore the actual text of the Constitution to advance their beliefs.

The actual wording of the Constitution makes it clear that the Militia and Common defence are covered, but personal uses of weapons aren’t.  I am not going to get into the grammar of the Second Amendment since that isn’t really germane if one is going solely upon the text. Anyway, Dennis Baron addresses that issue in his amicus brief to the Heller decision and this essay where he demonstrates that the founders would indeed have seen this as only relating to the militia.

Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803). But even without that landmark ruling, it would have been clear to 18 th -century readers that the first part of the Second Amendment was bound to the second part in a cause-and- effect relationship, that the right to bear arms was tied by the framers directly to the need for a well-regulated militia.

The Second Amendment was pretty much considered settled case law which was thrown into disarray by Heller and McDonald. US v. Cruikshank, 92 U.S. 542 (1875) wasn’t very helpful since it addressed private action, but Presser v. Illinois, 116 U.S. 252 (1886) and US v. Miller, 307 U.S. 174 (1939) both made it clear that the Second Amendment related to the Militia. Miller is usually not properly represented in recent “Second Amendment Scholarship” and totally ignored in the Heller and McDonald decisions because it is “not helpful”.

Indeed, it is not helpful to the recent decisions which were ultra vires because they amended the Constitution to add a new meaning to the Second Amendment, as this essay demonstrated. I would also add that Justice William O. Douglas addressed Miller and glossed it in his dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972) , which somehow is omitted in lists of SCOTUS cases mentioning the Second Amendment. Which is too bad since Justice Douglas was a member of the Supreme Court when Miller was decided, which makes him a very good source for how that case should be read.

Justice Douglas pointed out that in Second Amendment jurisprudence:

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.

The Heller and McDonald decisions are examples of Judges failing to follow the rule of law, precedent, and their claimed theory of judicial interpretation. As I pointed out, those two decisions are ultra vires and should be ignored, which is easy since they are incredibly limited in their scope. But even then, some daring justice should show that the emperor has no clothes in these decisions.

Anyway, one doesn’t need to go far if you believe that the text of the Constitution is determining in how to interpret the Second Amendment that it only applies to the militia. It is quite obvious that the Second Amendment relates to the militia from the text. But the Heller and McDonald decisions made it clear that the text was optional, which means that Originalism is a nonsensical school of constitutional interpretation.

Sorry, but Laci is no longer taking new cases.

From the Washington Post:

A suspect in an interrogation told detectives to “just give me a lawyer dog,” the Louisiana Supreme Court ruled that the suspect was, in fact, asking for a “lawyer dog,” and not invoking his constitutional right to counsel. It’s not clear how many lawyer dogs there are in Louisiana, and whether any would have been available to represent the human suspect in this case, other than to give the standard admonition in such circumstances to simply stop talking.

While Laci strongly believes in the Constitutional Right to Counsel, she is no longer taking cases.  Even if she were willing to take this case on, she is not licensed to practise in Louisiana.

Too bad the PD was unaware of this blog, since he could have used Laci as a quite willing Canine counsel for his client in cases of judges with acute robeitis.

The Ultimate Slam Dunk Argument Against the Individual Right Interpretation of the Second Amendment.

One thing that Heller and McDonald demonstrated was that it didn’t really care about the Second Amendment within the Constitutional Context. That means that those two cases are an absurdity in “Second Amendment Jurisprudence”. The absurdity starts with its minimalisation of what Heller described as the “preferatory clause”. The reason for the nonsensical nature of the “individual right” interpretation is that it takes the Second Amendment out of legislative and historic context.

But one need not go beyond the four corners of the document to show this is an absurd interpretation of the Second Amendment since it is presumed that a legal document will be interpreted so as to be internally consistent. A particular section of the document shall not be divorced from the rest of the act. Thus, if the Constitution mentions certain goals or subjects in the preamble, it must be considered within the terms of those goals and subjects.

There are two versions of the Amendment and I will use this one for the purposes of the argument I will be making for the purpose of clarity:

“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

That means the phrase “A well regulated militia being necessary to the security of a free state” was pretty much ignored or discounted in Scalia’s analysis. This is despite the rule of constitutional interpretation that “It cannot be presumed that any clause in the Constitution is intended to be without effect.” The individual right interpretation means that not only is the “preferatory clause” mere surplusage, entirely without meaning, but so is the rest of the text

Of course, the “Individual right” theory also neglects the preamble, which most people seem to stop reading after the first three words:

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

I would assert that both the preamble of the Constitution and the “preferatory clause” are important to the analysis of the Second Amendment within the proper constitutional context. That is because the document needs to be read as a whole. Doing that it becomes clear that one of the purposes of the US Constitution is to address matters of “the common defence”.

From Plato’s Laws through common law and until modern legal systems, preambles to constitutions have played an important role in law and policy making. The preamble to the United States Constitution has become a legend. The phrase “We the people of the United States” and the remaining forty-five words of the preamble are the most well-known part of the Constitution, and the section that has had the greatest effect on the constitutions of other countries. And yet, the preamble remains a neglected subject in the study of American constitutional theory and receives scant attention in the literature. This is a shame since a preamble is the part of the constitution that best reflects the constitutional intentions of its drafters.

The interpretive role of preambles is rooted in the common law tradition. Edward Coke asserted that preambles to an act of parliament are a “good mean to find out the meaning of the statute” and “the key to open understanding thereof”, they are “the key to the statute and the key to the makers.” William Blackstone referred to preambles as intended “to help the construction of an act of parliament.” Blackstone noted that whenever the statute is dubious, “the proem, or preamble, is often called in to help the construction of an act of parliament.” However, in a case of conflict between the preamble and the body of the act, the body of the act prevails. This is still considered good law in common law states. Some have a specific clause indicating the significant role of preambles in statutory interpretation.

The preamble may not be legally binding, but it is key to understanding the rest of the document and should be given weight in any constitutional analysis. Any interpretation that runs contrary to these principles is questionable. Anything which assumes something which is not covered by the main text must be suspect, which the individual rights interpretation does in spades.

This takes us to two concepts of statutory interpretation: (1) only items which are specifically mentioned are addressed within a law. (2) items which are not specifically mentioned are not covered by the statute.

Which takes us to Article I, Section 8, Clause 16, which gives Congress the power:

“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;”

Note that Congress is given the power to ARM the militia. Only Congress has this power under the Constitution. This is where the individual rights theory provides the usual misquotations removed from their context, which in the case of the Patrick Henry “Let everyman be armed quote” is tragic since it is clear that Henry was concerned with the above section of the Constitution, not a personal right to arms, when one reads it in context.

I really don’t want to get too much into how this one sentence has been mangled and removed from constitutional context in the attempt to create a right which does not exist. The grammar is handled in this article: Dennis Baron, Guns and Grammar: The Linguistics of the Second Amendment. I will say that Prof. Baron would give the “preferatory” clause far more weight than it was given in the Heller decision:

Reading the Second Amendment as a statement in which every word counts follows from the opinion articulated by Chief Justice John Marshall: “It cannot be presumed that any clause in the constitution is intended to be without effect” (Marbury v. Madison, 1803). But even without that landmark ruling, it would have been clear to 18th-century readers that the first part of the Second Amendment was bound to the second part in a cause-and-effect relationship, that the right to bear arms was tied by the framers directly to the need for a well-regulated militia.

If you wish to go outside the Constitution, there are many more problems with the Individual right interpretation. In fact, both the Heller and McDonald decisions were exercises in sophistry which removed the interpretation from an “originalist” and “constitutionalist” context and placed them into pure fantasy. If anything, the Heller and McDonald decisions are unconstitutional exercises of power by judicial amendment of the constitution. McDonald even more so since it somehow neglected Article I, Section 8, Clause 16 and created a right which was present in state laws in contrast to its non-existence in the US Constitution.

I am truly disappointed by the praise of the emperor’s new clothes in McDonald v Chicago by the justices willingness to separate the Second Amendment from Constitutional context by even countenancing that it had nothing to do with Article I, Section 8, Clause 16. How does Congress’ power “incorporate” to the States without an amendment to the Constitution? McDonald can only be described as silly buggers and not really precedent.

State v. Buzzard, 4 Ark. (2 Pike) 18 (1842), puts the absurdity of the individual right assertion:

However captivating such arguments may appear upon a merely casual or superficial view of the subject, they are believed to be specious, and to rest upon premises at variance with all the fundamental principles upon which the government is based; and that, upon a more mature and careful investigation, as to the object for which the right was retained their fallacy becomes evident. The dangers to be apprehended from the existence and exercise of such right, not only to social order, domestic tranquillity and the upright and independent administration of the government, but also to the established institutions of the country, appears so obvious as to induce the belief that they are present to every intelligent mind, and to render their statement here unnecessary. [1]

The revisionist theory that the Second Amendment somehow applies to a context outside the common defence is beautifully destroyed since it does not withstand scrutiny within the four corners of the US Constitution.

It is even more devastated if we are going to go outside the document since we need to have the “scholars” explain how:

  1.  The concept of self-defence did not allow for the use of deadly force as a first option when the Constitution was written.  Deadly force at that time was a LAST option. There was a duty to retreat. Deadly force could only be used if there was no lesser alternative and all other options had been exhausted.  You had to have your back to the wall to be able to kill someone.
    –carrying a weapon would create a presumption that you intended to do harm.
  2.  Where are the other versions of “gun rights” in Common Law nations?
  3. The issue of civilian control of the military, which fear of standing armies is a common thread in English political thought.  It was mentioned in the debates in relation to this Amendment, whereas personal defence was next to nonexistent.
  4. regulation of private arms has always been a part of the common law.
  5. When primary source material is read in its complete form, it highlights the above issues and the lack of concern with a right to own a weapon outside the context of the common defence.
  6. Why the US Constitution would concern itself with matters of “personal defence”, especially in light of point (1) above?
  7. Why state constitutional provisions explicitly mention this right, but it is not mentioned in the US Constitution.

There are far too many flaws in the Individual Right interpretation of the Second Amendment when one looks at it critically. There are even more flaws in the “precedent” set by Heller-McDonald despite its “friendliness” to firearms regulation. These are dangerous decisions to be left in the common law cannon.

It is a shame that Heller and McDonald have been allowed to create mischief in the US legal system.

I will not even bother readdressing the absurdity of the associated insurrection theory of the Second Amendment since it is so far from the Constitutional contexts as to be laughable. The fact that so many people are willing to accept it in their ignorance is astounding.

[1] Compare Buzzard to the part of Presser v Illinois,  116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886), which says:

Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

Sic semper proditores (Thus always to traitors)

BundyOK, all you supposed “Constitutionalists” out there:
  1.  The Constitution makes it clear that waging war on the US is treason (Article III, Section iii–it’s the only crime mentioned in the Constitution!). 18 USC Chapter 115 tells you what laws you are violating and it was passed in accordance with US Constitution Article VI.
  2.  The Second Amendment does not explicitly repeal any of the main Constitutional provisions relating to treason and insurrection.
  3.  Just because you don’t like it doesn’t mean it is unconstitutional.
Dennis v. United States, 341 U.S. 494 (1951) puts paid to the insurrectionist theory:
“The obvious purpose of the statute is to protect existing Government, not from change by peaceable, lawful and constitutional means, but from change by violence, revolution and terrorism. That it is within the power of the Congress to protect the Government of the United States from armed rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to the argument that there is a “right” to rebellion against dictatorial governments is without force where the existing structure of the government provides for peaceful and orderly change.”

Verb sap.

Just curious about the “get away with murder” laws

Yet another wrinkle in the assertion that the Second Amendment in some way allows for “self-Defence”:

The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process Clause. Due process deals with the administration of justice and thus the Due Process Clause acts as a safeguard from arbitrary denial of life, liberty, or property by the Government outside the sanction of law.

The general common law principle is that the law allows only reasonable force to be used in the circumstances and, what is reasonable is to be judged in the light of the circumstances as the accused believed them to be (whether reasonably or not). The jury should be directed to look at the particular facts and circumstances of the case in deciding whether a defendant had used only reasonable force.  After all, the defendant will always be of the opinion he used reasonable force.

Only reasonable force may be used.  Despite a common belief to the contrary, one is not at liberty to shoot dead a burglar wandering around one’s house if one does not fear for one’s own life in common law.

Anyway, historically Clause 39 of Magna Carta provided:

No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.

This came into US law via the Due Process guarantees of the US Constitution found in the Fifth and Fourteenth Amendments.
The Fifth Amendment to the United States Constitution provides:

[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law .

The Fourteenth Amendment to the United States Constitution provides:

[N]or shall any State deprive any person of life, liberty, or property, without due process of law .

The issue here is that these laws allow for summary justice and vigilantism outside of the legal process.  One should not take the law into his/her own hands for the purposes of revenge, retribution, or sheer vigilantism.  The rule of law must be maintained and violence discouraged by a proper legal system for it to have any authority.

Of course, this is just a musing, but perhaps it will be taken up by someone else who is offended by the allowance of murder by an out of whack US legal system.

Additional thoughts on this topic:

I should have mentioned the concept of wergild, which was a value placed on every human being and every piece of property in the Salic Code. If property was stolen, or someone was injured or killed, the guilty person would have to pay weregild as restitution to the victim’s family or to the owner of the property.

The important aspect of this was that the payment of weregild performed an important legal mechanism in early Germanic society since the other common form of legal reparation at this time was blood revenge.

The foundation of the American legal system rests on the Rule of Law, a concept embodied in the notion that the United States is a nation of laws and not of men. Under the rule of law, laws are thought to exist independent of, and separate from, human will. Even when the human element factors into legal decision making, the decision maker is expected to be constrained by the law in making his or her decision. In other words, police officers, judges, and juries should act according to the law and not according to their personal preferences or private agendas.

Vigilantism is the people’s complete disregard for the rule of law. The problem is that vigilantes risk starting a cycle of violence and lawlessness in which the victims of vigilantism take the law into their own hands to exact pay-back.

There is a reason that Clause 29 of Magna Charta provided that:

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

These laws are a denial of justice and right which has been sanctioned by the state.

There is a reason that the force used for self-defence is that which is reasonable to stop the threat yet respecting life.

And justice.    There is a long case line that works to promote the rule of law and discourage vigilantism in the Common Law (and other legal systems)

Further clarification:

Another statement of the concept of due process guaranteed by the US Constitution’s  Fifth and Fourteenth Amendments.

The Human Rights Act 1998 incorporates into English law Article 2 Convention for the Protection of Human Rights and Fundamental Freedoms, which defines the right to life as follows:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.”

More on the US National Mythology

There a quite a few thoughts floating about in the post, but they all hail back to the concept of the US national myth. Professor Richard Holmes summarises some of it in this statement from The American War of Independence: The Rebels and the Redcoats:

“The War of Independence plays such an important part in American popular ideology that references to it are especially prone to exaggeration and oversimplification. And two uncomfortable truths about it – the fact that it was a civil war (perhaps 100,000 loyalists fled abroad at its end), and that it was also a world war (the Americans could scarcely have won without French help) – are often forgotten.”

The part that is important is that the War for American Independence was one of many civil wars and insurrections which have occurred in the United States and that the Loyalists, or Tories, played an important part in that conflict.  We know that not too many people wanted war with Britain at the beginning of the War for Independence, but we don’t know how many people actually opposed the war.

What we do know is that Thomas Paine’s “Common Sense” and The Declaration of Independence  are the most potent propaganda documents in American History.  Both were written for the purpose of justifying an armed struggle for independence which would set a bad precedent for future generations.  Many people who style themselves as “patriots” in the US do not cite the Constitution (at least not correctly) to justify their position of armed struggle against the US.

The rebel leaders, also known as the founding fathers, only represented about 27% of two and quarter million colonists (although they said it was 33%), but even if this was correct they knew they would have never won power through a referendum, so as they possess considerable propaganda skills, they called themselves Patriots, contrived incidents such as the so called “Boston massacre”, portrayed their own vested interests as philanthropic ideals, and incited a reign of terror, aimed at civil authorities to disrupt society.  We can also add in that the “Sons of Liberty” would intimidate those showing loyalist tendencies.  The rebel’s strategy of attacking Loyalists, tarring and feathering them, encouraging boycotts, and other tactics used  to force them to resign their posts or change their business practises.  Those Loyalists that remained passive and the Non-aligned were forced under the threat of death to swear and sign oaths of allegiance to the rebel cause.

In reality, Hancock was a very wealthly smuggler, but the British had undercut his overpriced business.  He had been summoned  to appear in court at a time he and Samuel Adams were known to have been in Lexington at the time of the Battle. The others including Sam Adams (a failed businessman accused of embezzlement), Allen, Paine, Franklin, Jefferson, and Madison were bitter men, who for various reasons held grievances against the British.  I have mentioned before that it could have been a personal slight which cause Franklin to side with the Rebels (his son William was a tory).

The Loyalists were of many kinds and conditions. There was a religious dimension. Presbyterians were apt to be Patriots, Anglicans often Tories. Many slaves, tempted by freedom, joined Loyalist units, such as Lord Dunmore’s Ethiopian Regiment; so did many, though not all, of the Native American tribes on the frontier. Quakers and Catholics sided with the king, and so did many settlers of German and Dutch origin, as well as most Scots Highlanders, who had sworn an oath of loyalty to the Hanoverian crown in defeat and were not about to go back on it. Some tenant farmers fought alongside their Tory landlords, while others were Loyalists out of hostility to Patriot landlords. Some were tempted by promises of land, others by the fact that the king’s armies paid in a gold-backed currency, not paper dollars.

But, the founding myth paints the War for Independence as on against a foreign foe, rather than a Civil War.  And a quite brutal Civil War at that given how those who may have wanted to follow the law were brutalised by those who only saw violent conflict as being the solution to their problems.

The Loyalists were of many kinds and conditions. There was a religious dimension. Presbyterians were apt to be Patriots, Anglicans often Tories. Many slaves, tempted by freedom, joined Loyalist units, such as Lord Dunmore’s Ethiopian Regiment; so did many, though not all, of the Native American tribes on the frontier. Quakers and Catholics sided with the king, and so did many settlers of German and Dutch origin, as well as most Scots Highlanders, who had sworn an oath of loyalty to the Hanoverian crown in defeat and were not about to go back on it. Some tenant farmers fought alongside their Tory landlords, while others were Loyalists out of hostility to Patriot landlords. Some were tempted by promises of land, others by the fact that the king’s armies paid in a gold-backed currency, not paper dollars.

Like other civil wars, the American revolution was marked by brutality on a sickening scale. Both sides shot and hanged prisoners without mercy, and on at least two occasions Patriots enforced the gruesome punishment of hanging, drawing and quartering. While the Native American braves recruited to fight for the crown by the Johnson and Butler chieftains of the Mohawk valley scalped, tortured and sometimes burned their prisoners alive, the Patriots tarred and feathered Loyalists, or forced them to ride on a sharpened rail, and many Loyalist houses were looted and burned. Patriotic legend remembers the violence of British officers, but rebel officers, including General Washington himself, could be ruthless when policy recommended it. The future father of his country once proposed shooting a few Tories to “strike terror into the others”.

I would add that any “gun grabbing” which may have been


Brown Bess showing Crown ordinance markings indicating it as royal property.

done by the British Authorities was most likely legal since the arms were crown property (via the Colonies). The Brown Bess Muskets in their fully accepted form the barrels had Ordnance Proofs and the locks were marked with a crowned broad arrow (known as “The King’s Mark”) as well as individual inspector’s marks. The parts were government property and is was a serious offense to be caught with them in your possession if not authorized to have them.  Of course, another part of the founding myth is that the Colonials pull their personal weapons from above the mantle to toss out the evil British.

There is a reverence for the time of the US’s founding which makes no sense.  Their words are taken as being carved in stone and they could do no wrong.  On the other hand, how much of the thuggery of the Tea Party movement might actually be accurate.  After all, the founders were not friends of democracy and equality despite protestations to the Contrary.

But, the real issue was that the time of the War for Independence was a very turbulent one.  The “single most contentious issue” in the First Continental Congress in 1774 was about the extent to which the British Parliament could regulate the U.S. economy, including these and other limits on navigation as well as acts that sought to prohibit manufacturing in the colonies (so that the colonies would need to import from Britain, instead).  Staughton Lynd and David Waldstreicher  review the history in some detail, and conclude in “Free Trade, Sovereignty, and Slavery: Toward and Economic Interpretation of American Independence”:

“The commercial dispute preceded the constitutional, not just once but again and again in these years. It is important that colonists melded economic and constitutional arguments under the category of sovereignty–but not so important that we should ignore the originating nature of economic forces.”

One of these economic issues were the taxes which resulted from the French and Indian, or Seven Years War, which began in the North American Colonies.  The people who objected to “Taxation without Representation” were all too willing to run up the bill when others were paying.  But, the Ironic part was that they chose to use a route to independence which would ultimately lead to financial disaster with the Continental Dollar depreciating badly during the war, giving rise to the famous phrase “not worth a continental”.

But, the collapse of the Colonial Economy was one of many disasters precipitated by the ill thought out “independence movement” of the 1760s-70s.  George Washington wrote about Shays’ Rebellion that:

“I am mortified beyond expression when I view the clouds that have spread over the brightest morn that ever dawned in any country… What a triumph for the advocates of despotism, to find that we are incapable of governing ourselves and that systems founded on the basis of equal liberty are merely ideal and fallacious.”

Perhaps time has come to look at this period with a far more critical eye than has been given due to a religious reverence to the founders which is far from justified.

See also:

Counterproductive politics

There is an interesting interview on today’s Newshour about the rise of the religious right in the US. One of the interviewees points out that the number of evangelical Christians in the US is declining due to its involvement in religion.

I’ve found that gunloon comments tend to reinforce my belief that the US needs gun control due to the fact that these people are not responsible and have no idea of what right the Second Amendment was intended on protecting. Add in that the institution of militia is pretty much an anachronism. In fact, the militia was irrelevant at the time of the Revolution (see Adam Smith’s Wealth of Nations).

Anyway, we have already seen that the Heller-McDonald decisions have nor resulted in much in roads being made in the field of gun rights. And as the word of Revolution go “if you go carrying pictures of Chairman Mao, you ain’t going to make with anyone anyhow”.

Perhaps saying that a variant of “Political Power comes from the barrel of a gun” will backfire on them as badly as failing to heed that religion and politics should not be intertwined.

Nobody else believes in the collective right theory of the Second Amendment…

Yeah, if that’s true, why are you so scared of Goodwin Liu?

The obstructionists in the US Senate are fucking around with his appointment because Godwin Liu appears to agree with me that the Second Amendment applies to those well-regulated militias:

The Supreme Court has seen fit to rein in some of the most activist lower-court decisions. . . . But additional cases continue to test the limits. See, e.g., United States v. Emerson, 270 F.3d 203, 227–29 (5th Cir. 2001) (agreeing with district court that Second Amendment confers an individual right to bear arms, notwithstanding contrary indications in United States v. Miller, 307 U.S. 174, 178 (1939)).

From his article Separation Anxiety: Congress, The Courts, And The Constitution, 91 Georgetown Law Journal 439 (Jan. 2003) co-written with Hillary Clinton!

Liu is a law professor and dean at U.C. Berkeley who as a nominee has the American Bar Association’s highest rating, was nominated for a seat on the 9th Circuit Court of Appeals by President Obama over a year ago, and has since been approved by the Judiciary Committee three times. He has been hailed as one of his generation’s great legal minds by legal experts of both parties and across the ideological spectrum on the grounds that he is too qualified.

And he agrees with me and the four supreme court justices that dissented in Heller-McDonald, of course.

Guess you can’t have too many of us out there saying you people are spouting ignorant bullshit who can refute you with evidence that withstands scrutiny.

And Heller-McDonald cannot withstand legal and intellectual scrutiny.

Alice Paul was right!

Alice Paul believed that to have freedom from legal sex discrimination requires an Equal Rights Amendment that affirms the equal application of the Constitution to all citizens. This is despite the Fourteenth Amendment beginning:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.

This is the man who wrote an opinion that ended the DC gun ban--spot the conflict.

The problem is that some people didn’t get the message about that, in particular one who has shown that he can find Constitutional language “is mere surplusage — is entirely without meaning”. This is despite Marbury v. Madison saying that “It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.” The even more frightening aspect is that this is a view held by the majority of the US Supreme Court that it can rewrite the Constitution, rather than interpret laws.

Alex Pareene in Salon states that:

Ok, well, all the Amendment says is that equal protection under the laws will be afforded to citizens, not “straight male citizens,” or whatever distinction Scalia’s making here. Scalia can be very literal-minded sometimes, like when he explains that the Eighth Amendment doesn’t forbid torture because interrogations aren’t “punishment.” Other times, he gets fuzzier with the language; despite the fact that the government is not allowed to establish or promote religion, Scalia is OK with “under God” in the Pledge of Allegiance. The Constitution always happens to only mean whatever an ultra-conservative Republican asshole thinks it means, isn’t that funny?

Alas, Alex, Scalia has gotten away with twisting the Constitution without too much of a peep from the legal community, let alone the general populace. In fact, Scalia’s Heller decision was held as the “correct” interpretation by many who should know much better.

The real problem is that there is no Constitutional means for telling the Supreme Court that it has it wrong: Short of a hue and cry for Scalia to be impeached. The problem is that Scalia’s bad decisions and poor judgement have gone without comment.

Which gets us back to Alice Paul, The Equal Rights Amendment is needed in order to prevent a rollback of women’s rights by conservative/reactionary political votes, and to promote laws and court decisions that fairly take into account women’s as well as men’s experiences. We now have a concrete example of a Supreme Court Justice who is more than willing to rewrite the Constitution rather than interpret it using precedent (e.g. DC v. Heller). Scalia is kind enough to point out that the political arena is the one place where we can send idiots like him a message (Impeachment and removal from office would be nice). Instead, the right is using the Court system to attack our rights. Judges, such as Scalia and Silverman, are all too willing to ignore precedent and the statute’s wording in order to trash the Constitution.

Thus, something such as this:

The Equal Rights Amendment
Section 1. Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.
Section 2. The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.
Section 3. This amendment shall take effect two years after the date of ratification.

Which makes it clear that discrimination because of Sex, rather than mere reliance upon the 14th Amendment’s equal protection clause is needed. Some people are too stupid to realise that women are persons.

An interesting Web Page

Things That Are Not In the U.S. Constitution:

* The Air Force
* Congressional Districts
* The Electoral College
* Executive Order
* Executive Privilege
* Freedom of Expression
* (Absolute) Freedom of Speech and Press
* “From each according to his ability…”
* God
* Immigration
* Impeachment means removal from office
* Innocent until proven guilty
* It’s a free country
* Judicial Review
* Jury of Peers
* “Life, Liberty and the Pursuit of Happiness”
* Marriage
* Martial Law
* No taxation without representation
* Number of Justices in the Supreme Court
* “Of the people, by the people, for the people”
* Paper Money
* Political Parties
* Primary Elections
* Qualifications for Judges
* The right to privacy
* The right to travel
* The right to vote
* The separation of church and state
* The Separation of Powers Clause
* Slavery
* “We hold these truths to be self-evident”

I was looking up material on another topic, but these were particularly interesting to me.

Freedom of Expression

It is often said that one of the rights protected by the 1st Amendment is the freedom of expression. This site, in fact, uses that term in its quick description of the amendment: “Freedom of Religion, Press, Expression.” But “expression” is not used in the amendment at all. This term has come to be used as a shorthand, a term of art, for three of the freedoms that are explicitly protected: speech, petition, and assembly. While the use of “freedom of expression” is ubiquitous in this area of 1st Amendment study, it is important to note exactly what “freedom of expression” refers to – let this be such a note.

(Absolute) Freedom of Speech and Press

The Constitution does protect the freedom of speech of every citizen, and even of non-citizens — but only from restriction by the Congress (and, by virtue of the 14th Amendment, by state legislatures, too). There are plenty of other places where you could speak but where speech can and is suppressed. For example, freedom of speech can be and often is restricted in a work place, for example: employers can restrict your right to speak in the work place about politics, about religion, about legal issues, even about Desperate Housewives. The same restrictions that apply to the government do not apply to private persons, employers, or establishments. For another example, the government could not prohibit the sale of any newspaper lest it breech the freedom of the press. No newsstand, however, must carry every paper against its owners’ wishes.

See also the concept of compelled or coerced speech:

The guarantees of civil liberty are but guarantees of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them…The very essence of the liberty which they guarantee is the freedom of the individual from compulsion as to what he shall think and what he shall say…

Harlan Stone’s dissent in Minersville School District v. Gobitis, 310 U.S. 586 (1940)

American Independence: A blessing or a curse?

The person who asked this question was none other than Patrick Henry.  To be quite honest, I am of the opinion that if the founders were to return to modern day American, they would be extremely disappointed in how their experiment turned out, which was the basis of my A Message from the Founders post. Additionally, the quote from Patrick Henry scholar, Henry Mayer, I mention in this post informed my comment:

The first man to speak identified himself as Patrick Henry. He explained that the group had been transported from 1774 to see what would become of their notion of Independence from Britain. Henry was extremely upset at misquotations made by “organisations such as The National Rifle Association and its ilk” regarding the ratification of the Constitution. “These remarks were in regard to the Militia and not private ownership of firearms”.

I have been thinking about the following quote from Patrick Henry and how it might relate to his opinion of the current state of the Union.

After Patrick Henry died, his family found among his papers one sealed envelope with this written on it: ” Enclosed are the resolutions of the Virginia Assembly, in 1765, concerning the Stamp Act. Let my executors open this paper.” There was a copy of the resolutions in his handwriting inside. On the back of the paper containing the resolutions was written in Henry’s handwriting:

“The within resolutions passed the House of Burgesses in May, 1765. They formed the first opposition to the Stamp Act, and the scheme of taxing America by the British Parliament. All the colonies, either through fear, or want of opportunity to form an opposition, or from influence of some kind or other, had remained silent. I had been for the first time elected a burgess a few days before, was young, inexperienced, unacquainted with the forms of the house, and the members that composed it. Finding the men of weight averse to opposition, and the commencement of the tax at hand, and that no person was likely to step forth, I determined to venture, and alone, unadvised, and unassisted, on the blank leaf of an old law-book, wrote the within. Upon offering them to the house, violent debates ensued. Many threats were uttered, and much abuse cast on me, by the party for submission. After a long and warm contest, the resolutions passed by a very small majority, perhaps of one or two only. The alarm spread throughout America with astonishing quickness, and the ministerial party were overwhelmed. The great point of resistance to British taxation was universally established in the colonies. This brought on the war which finally separated the two countries, and gave independence to ours. Whether this will prove a blessing or a curse, will depend upon the use our people make of the blessings which a gracious God had bestowed upon us. If they are wise, they will be great and happy. If they are of a contrary character, they will be miserable. Righteousness alone can exalt them as a nation. Reader, whoever thou art, remember this; and in thy sphere, practice virtue thyself, and encourage it in others.

What does he mean by virtue?  Is he talking about characteristics that promote individual and collective well being? Does he mean it in the Aristotlean sense of being a mean between two extremes (For example, courage is the mean between cowardice and foolhardiness, confidence the mean between self-deprecation and vanity, and generosity the mean between miserliness and extravagance)?  Or is he talking about the Sainted personality which Americans desire, but human nature falls far short of being?

Also, there is a thin distinction between righteousness and self-righteousness. If he means righteousness as acting in accord with divine or moral law, was he truly righteous in engaging in his actions that caused the US to move into the mess it currently is in? Self-righteousness is a feeling of smug moral superiority derived from a sense that one’s beliefs, actions, or affiliations are of greater virtue than those of the average person. It can give one conviction that their actions are correct when they are very wrong.

But the most important piece of this is “If they are of a contrary character, they will be miserable.

We see a lot of self-righteous persons of contrary character in modern US politics.  US Politics is that of  division, which is most certainly contrary.  It seeks to promote various interests above others, often (as in the case of “gun rights”) that interest runs contrary to public interest.  The Right exploits single issues and manipulates religious faith to direct workers into voting for candidates who are a threat to their economic interests.

To Quote the Wisconsin AFL-CIO:

Union members have been fighting attacks on worker rights and protections on many fronts. These are not random, unconnected attacks. They are the result of a coordinated strategy by a corporate-funded ideological movement that aims to eventually destroy the labor movement. Other progressive movements have seen hard won gains attacked and eroded as well.

Think of fascism as an infection of the body politic that can occur when there isn’t a strong leftist working class identified party. Neither US party works toward the interest of the workers. Chris Hedges wrote a great piece called Ralph Nader Was Right About Barack Obama about how he is just as much of a tool of big business as was Dubious Bush. But Liberals are to blame for failing to provide an alternative to the reactionary politics which is the norm in the United States.

Given the current state of affairs in the US, I am certain that Patrick Henry would have been a Tory.  But hindsight is 20-20 and he didn’t realise the mess he was creating for future generations when he acted so ill-advisedly in demanding independence before the nation was ready for it.

Shays’ Rebellion

I am amazed that there isn’t more interest in this little bit of US History. I tend to blog about it since it is actually a very important event in US Constitutional history. In fact, it is a good point to mention when people discuss the insurrection theory.

How original is Scalia?

Since Scalia bases a good portion of his Second Amendment analysis in DC v. Heller on the first clause being “prefatory”–

Nelson Lund, for example, helped shift the focus of Second Amendment interpretation by characterizing its first clause as “prefatory” and its second clause as “operative” — and received a Second Amendment chair funded by the NRA for his work. A Hein Online search for the terms “operative,” “prefatory,” and “second amendment” suggests that Nelson Lund was the first academic to introduce this terminology into the Second Amendment literature. See Nelson Lund, The Past and Future of the Individual’s Right to Arms, 31 GA. L. REV. 1 (1996). Nelson Lund is the Patrick Henry Professor of Constitutional Law and the Second Amendment at the George Mason University School of Law. This position was created thanks to a one million dollar commitment to GMU School of Law by the National Rifle Association Foundation announced in 2003. Press Release, $1 Million Endows Professorship at George Mason University (Jan. 28, 2003). Justice Scalia relies on the distinction between “prefatory” and “operative” in describing the relationship of the amendment’s first and second clause. See, e.g., Heller, 128 S.Ct. at 2789 (“The Second Amendment is naturally divided into two parts: its prefatory clause and its operative clause.”).

The problems is that, as has been pointed out, Scalia also uses Blackstone’s commentaries on the Laws of England and is bound by the language of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803):

The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction…It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it.

Blackstone would look to the proeme (the “prefatory clause”) for guidance in interpreting the language (see previous post and this).

So, the idea of “prefatory” and “operative” came about over 200 years after the drafting of the Bill of Rights (1996).

Hardly original.