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PERRIN LOVETT

~ Deo Vindice

PERRIN LOVETT

Tag Archives: Bill of Rights

Tonight: Justice! and a Little More Justice!

22 Friday Feb 2019

Posted by perrinlovett in Legal/Political Columns

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8th Amendment, Bill of Rights, Epstien, justice, law, pedos, Supreme Court

Last fall I mentioned a case before the Nine, dealing with excessive fines and the waning Bill of Rights. They must have read that as they voted unanimously to uphold a shred of liberty.

The US Supreme Court ruled unanimously on Wednesday that the Excessive Fines Clause in the 8th Amendment applies to state and local governments.

Announced in an opinion written by Justice Ruth Bader Ginsburg on her second day back on the bench following a December cancer surgery, the ruling limits states’ abilities to seize property and impose fines deemed excessive on citizens who break the law.

“For good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties,” wrote Ginsburg, as the court sided with Tyson Timbs of Marion Indiana, whose $42,000 Land Rover SUV was seized by the state following a guilty plea for selling $385 worth of heroin to an undercover detective.

The larger development may be Ginsburg writing “Anglo-American history.” Easy, sister – don’t go overboard and allude to The Posterity at a time like this.

And, what a great time this week has been. Special people, nationwide, are getting a little justice – Juicy Smallest (whatever), R. (“Rape?”) Kelly, and maybe even Jeff Epstein.

Federal prosecutors, under former Miami U.S. Attorney Alex Acosta, broke the law when they concealed a plea agreement from more than 30 underage victims who had been sexually abused by wealthy New York hedge fund manager Jeffrey Epstein, a federal judge ruled Thursday.

While the decision marks a victory for crime victims, the federal judge, Kenneth A. Marra, stopped short of overturning Epstein’s plea deal, or issuing an order resolving the case. He instead gave federal prosecutors 15 days to confer with Epstein’s victims and their attorneys to come up with a settlement. The victims did not seek money or damages as part of the suit.

It’s not clear whether the victims, now in their late 20s and early 30s, can, as part of the settlement, demand that the government prosecute Epstein. But others are calling on the Justice Department to take a new look at the case in the wake of the judge’s ruling.

“As a legal matter, the non-prosecution agreement entered into by the U.S. Attorney’s Office in the Southern District of Florida does not bind other U.S. Attorneys in other districts. They are free, if they conclude it is appropriate to do so, to bring criminal actions against Mr. Epstein and his co-conspirators,’’ said lawyer David Boies, representing two of Epstein’s victims who claim they were trafficked by Epstein in New York and other areas of the country.

No need to wait on a judicial decision from any District. We’re under a declared State of Emergency. Light Epstein, Acosta, and the other enemies up, Mr. Trump. Let the good times (and heads) roll.

They Really Don’t Need a Stinking Warrant

01 Wednesday Jun 2016

Posted by perrinlovett in Legal/Political Columns, News and Notes

≈ 1 Comment

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America, Bill of Rights, cigars, Constitution, FDA, Founders, Fourth Amendment, Fourth Circuit, freedom, government, law, police, police state, privacy, searches, The People

America: THE land of freedom, right? Well, economically speaking, we certainly are freer than most of the world, say countries like Somalia or North Korea. It terms of developed, civilized nations, we’re number 11.

nimbus-image-1464816580423

Freedom Index 2016, Heritage.

Switzerland and Australia are numbers 4 and 5 under “free” by the way. Again, that’s economic freedom or the lack thereof – taxes, business regs, etc.

In terms of personal freedom America is nowhere near where it used to be. Those specific rights protected by the Constitution are all but a memory. The Fourth Circuit Court of Appeals just sided with the 5th, 6th and 11th Circuits to deep-six the Fourth Amendment and the protection against unreasonable searches of persons, papers, and things.

When law enforcement asks a company for cellphone records to track location data in an investigation, is that a search under the Fourth Amendment?

By a 12-3 vote, appellate court judges in Richmond, Virginia, on Monday ruled that it is not — and therefore does not require a warrant.

The 4th Circuit Court of Appeals upheld what is known as the third-party doctrine: a legal theory suggesting that consumers who knowingly and willingly surrender information to third parties therefore have “no reasonable expectation of privacy” in that information — regardless of how much information there is, or how revealing it is.

Research clearly shows that cell-site location data collected over time can reveal a tremendous amount of personal information — like where you live, where you work, when you travel, who you meet with, and who you sleep with. And it’s impossible to make a call without giving up your location to the cellphone company.

This issue will likely make it to the high court one day where this precedent will be upheld. The developing theory is that no-one, outside of government criminals like Hillary Clinton, has any right or expectation to privacy – anywhere or regarding anything.

Google.

There are ways around such blatantly  Unconstitutional measures. However, the “law” has decided that taken such tactical precautions is evidence of wrong-doing all by itself. Damned if you do, damned if you don’t. Such measures also elude the technical capabilities of most people anyway.

The worn-out line of the sheep goes: “If you’re not doing anything wrong, you have nothing to worry about.” Two problems there: 1) you don’t know what they consider “wrong”, and; 2) how about when the government is wrong? What then? Move to a freer country? There are at least ten out there – one right next door to the U.S. Sit in your house and do absolutely nothing? That can be considered an indication of criminal intent or an invitation for a “welfare check-in” by the police.

The odds are you do not have anything to worry about. Obey the government in general, don’t make any waves, and they will probably leave you alone. Probably was not what the Founders had in mind with the Bill of Rights though. They desired protection from ALL government overreach.

Overreach is all the government does these days. I noted the other day that the FDA is out to kill off the cigar industry. The draconian regulations are about to begin. I’ve got a lot more coming on that soon. Please note thought, if you read my thoughts on a cellular device (or most any device) the cops may be watching. Worried about that? You should be…

Powers Vs. Rights

16 Wednesday Dec 2015

Posted by perrinlovett in Legal/Political Columns

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America, anarchy, Articles of Confederation, Bill of Rights, Congress, Constitution, Courts, fantasy, freedom, God, government, law, law school, Liberty, Lysander Spooner, monarchy, Natural Law, politics, republic, rights, States, The People

This post concerns the force and effect of the United States Constitution and similar documents. I’ll stick with the U.S. version for simplicity and because most state and many foreign constitutions are based on the federal version.

The old parchment is divided into several articles and subsequent amendments. Each of these deals with different legal concepts. Article One grants certain powers to Congress. Article Two does the same for the executive. Amendment Three prohibits the government from sheltering soldiers in your house during peacetime. There are seven primary articles and twenty-seven amendments.

Aside from formal division the Constitution may be properly divided into two parts. Good Constitutional Law professors cover this in first year law school. The notice is generally lost amid a mad scramble to interpret Byzantine case-law and make a living as an attorney. The lesson is almost completely unknown outside of law and political theory education.

The first effective feature of the Constitution is that is allows powers for the government. In fact the Constitution created the federal government. In 1789 those seeking strong central political control replaced the Articles of Confederation which had loosely united the several (and wholly independent) states for a very few mutually beneficial purposes. The first ten amendments, the Bill of Rights, came along two years later as almost an afterthought.

The anti-federalists were concerned that certain fundamental rights needed official recognition and legal protection. Their theory was that a strong government, even of republican nature, could run roughshod over the freedoms of the people – like a dictatorial monarch. The amendments were added without much fuss as it was then concerned the new government, its keepers, and their successors would never seek to abridge such rights as freedom of speech, bearing arms, or freedom from illegal arrest and punishment. No one saw any harm in the additions.

The inclusion of those additional protections proved both prophetic and pointless. Those ten amendments and a few others comprise the other practical function of the Constitution – protection of individual rights.

In an ideal world government would only exist to protect people from those things they would be otherwise vulnerable to. The proper function of law and politics would be a careful balancing of the power of the government and the rights of the people. Powers versus rights. Some legal scholars still wax elegantly about the concept. Their conceptualization is largely just conceptual.

The new federal government lost little time in enacting various laws which curtailed individual liberty. The trend continues to this day in addition to the habit of constantly expanding the realm of federal authority light years beyond what the Constitution allows. The courts, allegedly the arbiters of the balancing test, have largely consented to this gross shift. They too wasted no time in inventing new authority for themselves – “judicial review” for example.

Any review usually ends up empowering the state. They are on the same team after all. The people, now bereft of representation and appellate avenues, are on the outside looking in. Lawyers gleefully await court decisions to tell them what laws really mean. The public, largely fat and ignorant, continues to support this corrupt system with astounding zealous patriotism.

As a result of all this what we are left with is a central government of unlimited power ruling over a nation of peasants who are happy to receive whatever liberty the rulers confer upon them. Every once in a while one or another branch kindly reaffirms some right. These are usually in trivial matters. However, the march to greater control never ceases. It works well as most do not favor freedom. Under the faux two-party system, most go along so long as their side wins on a somewhat regular basis.

In truth, they lose. We all lose. All except for the corrupt politicians and beaurocrats and their corporate crony enablers. The system is wrecked and bears nearly resemblance to even that central authoritarian regimes of the late seventeen Century let along an ideal state.

In modern reality ignorance abounds. Some speak of the right of the government to do some thing or the other. Governments have no rights as they are artificial constructs. Only human individuals have rights. These rights are natural, God-given. Governments can only protect or (more often) abridge those freedoms.

Others decry freedom outright. They declare the people have too many rights. For them, in their simple lives, they may be right. Argument for order and justice is lost on them and a waste of time.

There are those who indulge in the fantasy that a return to the original text and intent of the Constitution would usher in utopia. If this myth was anything but, I could agree with them. The federal government of 1791 would be infinitely better than what we suffer today. That of the Articles would be better yet.

The myth lovers assert the Constitution established a national government of limited scope. Maybe they are correct in theory. In real life no government worth its salt stays limited for long. Geometric growth of government is an iron law of political science.

bbnhyu66667

So it is with freedom and central authority. Mencken.

Lysander Spooner said it best of the lost war of Rights versus Powers: “But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.” He elaborated: “A man’s natural rights are his own, against the whole world; and any infringement of them is equally a crime, whether committed by one man, or by millions; whether committed by one man, calling himself a robber, (or by any other name indicating his true character,) or by millions, calling themselves a government.”

I find my view of anarchy criticized at times as belief in fantasy. It is said that men, by their very nature, cannot be trusted for long to maintain free, peaceful association and mutual respect. This, sadly, may be true. It, then, is also true that an honest man, desiring to remain free, cannot trust a government, any government. Belief in central authority is thus misguided. Tell you what, you have your fantasy and I’ll have mine. The rest of you have a choice to make: support powers or support rights.

The Lesser American Flag Flap

06 Wednesday May 2015

Posted by perrinlovett in Legal/Political Columns, News and Notes

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America, banks, Bill of Rights, Constitution, Courts, criminals, Facebook, First Amendment, flag, freedom, Georgia, government, insanity, IRS, Libya, Mordor, NFL, people, protest, slavery, taxes, theft, Tom Brady, War, Washington

A long time ago I penned a column called The Great American Flag Flap (I think).  It was published somewhere and I think it was about the attempt of various rednecks to anger blacks by flying the Confederate Battle Flag.   Maybe I have the parties backwards.  It was about nonsense nonetheless.

It has come to my attention that there currently rages across the land a new flag-related issue.  This time it concerns the American Flag.  Maybe you’ve heard the news. A group of black (???) students at a Georgia University (always in Georgia, God help us…) decided to walk on the U.S. Flag in protest of … something.  There’s a lot to protest in Amerika today.  I fully understand that.

Those students have drawn considerable protest of their protest.  Also, other students (?) elsewhere have started threading on flags.

flag beard

(Here some bearded yahoo stands on the Flag for something… WDTN.com.)

By the letter of the law (in a book somewhere) this activity is illegal flag desecration. However, the courts have consistently ruled that flag walking (burning, etc.) is free speech protected by the First Amendment.  Remember the First Amendment?  The Constitution?  Rule of law and all that???

I call this post The LESSER American Flag Flap for a reason.  The fact is, all things considered, flag trampling does not overly concern me.  Some of my friends on Facebook see it otherwise.  I have received several requests to condemn these flag protests as a dire threat to everything America allegedly stands for.  I understand this but I am still not concerned.

The protest protesters say things like the following.  Cleetus from Heehaw Junction, West Virginia says, “that thar flag stands for the men who died for our freedoms!”  Lucy Lou from South Hick, Mississippi screams, “theys don’t understand what we has been through as democratic peoples!”  Jethro from the upstate of New York avers: “We have a flag for a democrats.  The country needs a hero.  Yous guys needs to know that the service of the armed forces means more work here.  The terrorists are everywhere!” Well said, Jethro.

I disagree with all of these statements though I respect the sentiment behind them all – except Jethro’s – not sure what he’s rambling about.

Here’s my problem.  Right now, we have a government hell bent on taxing and regulating our people into the grave.  The same government wants to bomb and invade all other peoples on earth.  The police run around murdering people SS style.  There are no jobs.  The children can’t read or eat.  We are beset with hoards of illiterate invaders who are determined to obtain every benefit the welfare office offers.  Bridges are collapsing.  James Brown is dead.  Amidst all this, I’m supposed to be upset because some kid somewhere stepped on a piece of fabric?  I think not.

I just heard the NFL received a 243 page report on Delate-gate.   Tom Brady is in the crosshairs.  Mind you, that’s about 243 more pages than we saw about the 2012 death and destruction at the Benghazi Consulate.

It’s worse.  The head cover-upper of Benghazi is the Democratic front runner for President in 2016.  The leading Republican is a guy named Bush.  See a pattern?

The short, pointless war in Libya was designed solely to steal the soverign wealth fund of that country from the long-suffering people of Libya.  Some $200 Billion dollars worth of funds were whisked out of Libya and into the hands of a British Bank.  No explanation given, no questions asked.  The predicament now over that money is how much our criminal friends at Goldman Sachs were entitled to.

Keep your eye on the soft football, folks.

The crown of insanity sits atop the head of our central imperial government.  Despite robbing a hundred million Americans every year, the IRS still claims you have rights!

IMG_20150506_141614198

(The Tax Slave Bill of Rights.  IRS/Morgoth.)

Ten rights to be exact.  Do not confuse these with the defunct Bill of Rights which once accompanied the charter of the Mordor on the Potomac.  The tenth “right” brought laughter to my lips: The right to a fair and just tax system!  I tell you that no such thing exists in nature or in fiction.  The system is place is plain but in no way fair.  You simply pay what they tell you or they seize your property and put you in jail.  Resist and they will do away with you.  Just, huh?

Maybe I’m wrong.  Maybe a little more respect for flags and footballs is all necessary to cure the ills of the free world.  Maybe the sun will rise in the West tomorrow.

Constitutional Law

13 Wednesday Mar 2013

Posted by perrinlovett in Legal/Political Columns

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16th Amendment, abortion, activists, America, anarchy, Anti-Federalists, Articles of Confederation, attorneys, Bill of Rights, case-law, Coca-Cola, commerce clause, Congress, Constitution, Constitutional Law, Courts, dissent, Dred Scott v. Sandford, drones, due process, equal protection, Federal Reserve, First Amendment, freedom, General Welfare Clause, Germany, government, Jacobson v. Mass., Japan, John Marshall, judges, law, law school, legal education, Liberty, liberty interests, Max Tucker, McCulloch v. Maryland, Michael Bloomberg, murder, National Security, Natural Law, Necessary and Proper Clause, New York, Ninth Amendment, ObamaCare, patriotism, philosophy, professors, Rand Paul, republic, rights, Roe v. Wade, science, scrutiny, Second Amendment, slavery, States, stict construction, students, Supreme Court, tariffs, taxation, taxes, Tenth Amendment, The People, United States, voting, War Between the States, Washington, wheat, Wickard v. Filburn, World War II

This article is an extension of my recent columns on The Constitution, https://perrinlovett.wordpress.com/2013/03/08/the-united-states-constitution/, and Legal “Education,” https://perrinlovett.wordpress.com/2013/03/12/legal-education/.  One would think that the matter of Constitutional law would have been covered in my article on the Constitution itself – unless one also read my treatise on law schooling.

Oddly, in my experience, the Constitution itself is not required reading for Constitutional law classes. Rather, some imported parts of the document are set forth in the text-book used by the professor. This strikes me as intellectually dishonest and unwise, akin to using a dangerous power tool without first reading the directions. Herein, I briefly cover the usual course material from such as class. The professors, many of whom have never been in a court, let alone argued for or against the Constitution, regurgitate the rulings of different courts regarding a limited number of subjects. While there is an occasional discussion of the reasoning behind the opinions, they are generally viewed as sacred, unswerving law. Rare instances where history has determined the rulings to be invalid (i.e. Dred Scott v. Sandford, 60 U.S. 393 (1857)– slavery is okay pre war between the States) are swept under the proverbial rug, written off as mistakes made due to the prevailing thoughts of the cases’ times.

tribe conlaw

(Prof. Laurence Tribe’s ConLaw Book.  Google Images.)

As I have written elsewhere, no reference to Natural Law is made and no critical thought is given to the “why” behind the laws. As Max Tucker wrote recently, any student who dares to pose dissenting views or arguments is detested noticeably by the other students and the faculty. Rarely, student are given the opportunity to delve into the deeper meanings of the cases they study. I was fortunate to be able to write a short essay on the effects of Scott, in which I decried its universal sadness and the role it played in the schism in our nation circa 1861. Part of my essay was read aloud to the class by our professor – another rarity, a former practicing attorney. My points were well accepted. Of course, I had the benefit of over a century of progress on my side. Other topics, which require hypothetical deconstruction, are roundly ignored.

As with all other areas of the law, Constitutional law has degenerated into a study of the constantly shifting case-law which arises under the Constitution.  By the way, I always capitalize the “C” in Constitution out of reverence for the document and its place in our Republic (I do the same for “Republic” too).  I have explained my philosophical troubles and doubts about the Constitution but, due to my sworn allegiance to it, I am honor-bound to defend its ideals.

Case-law study is important and has a valid place in the legal practice.  After all, most attorneys make a living pushing various issues in courts through individual cases.  Each provision of any law is subject to some interpretation as part of its application to the circumstances of the real world.  The trick of “strict construction” application of the Constitution is to adhere as closely as possible to the text and plain meaning of the old parchment.  I follow strict construction as my approach to most laws, in and under the Constitution.  The first fork of any analysis is to determine if the issue scrutinized is compatible with the underlying law.  If the two are compatible, then the analysis shifts to application of your set of facts to the law.  If there is an incongruity, then it is necessary to decide whether the law is improper or if the facts are insufficient for action.

Here’s a brief, over-generalized example, ripped from the recent headlines!:  Mary lives in New York City; she is an avid consumer of Coca-Cola beverages, particularly in large volumes.  Mary went to the corner store in Hell’s Kitchen and ordered a 40-ounce frozen Coke treat.  She was informed by the clerk that a drink of such heft was just outlawed by the wise and magnanimous mayor of NYC, Michael “Soda Jerk” Bloomberg.  Mary, offended and hurt, contacts an attorney in order to take action against the mayor and the city.  Her attorney files a lawsuit seeking an injunction or some other remedy to force the city to curb its policing of soft drink size.  Upon reviewing the case, a judge decides that NYC’s ordinance is too vague to be enforceable and strikes it down accordingly.  Mary happily continues on her guest for obesity.  This represents proper application and analysis of the law and the facts – in this case Mary’s freedom to drink liquid sugar in peace.

Had Mary had a more pressing cause – say a desire to legally and permanently rid herself of a troublesome in-law and she requested her attorney file a similar action to invalidate New York’s statute against murder, her attorney would have likely declined the case.  If he was a fool, and filed an action anyway, the attorney would lose as any court would side with the law irregardless of Mary’s malicious desires.  While it is proper to allow peaceful people to purchase and consume products of their desire, it would be improper and an affront to Natural Law, to allow someone to kill another person without good cause (i.e. self-defence). 

These examples are extremely simple, but they demonstrate my core points.  The problem in the law has arisen from the over deference to certain laws as applied to the real world.  Today, the Constitution is not interpreted as strictly dictated by its own terms or by my previous explanation of the powers it grants.  As I noted before, a few select clauses have been given immortal omnipresence to the extent the entire document has been rendered a nearly lost cause.  All of these clauses give extra, unintended authority to the government to regulate and control everything.  Through various cases over the years, the courts have essentially made up the law or, at least by their interpretation of the laws, have allowed over-reaching actions of the government to stand as legitimate.

Popular of late is the criticism of “activist judges” who take on the role of a legislator in their quests to rewrite the laws of Congress.  Some courts have gone so far as to divine new rights and powers mentioned nowhere in the Constitution.  Roe v. Wade, 410 U.S. 113 (1973) is a poster case for such activism.  In Roe, the Supreme Court opined that abortion of unborn children is a right of pregnant women.  This right stems, allegedly, from the women’s “liberty interest” in their own bodies.  While not found in the text of the Bill of Rights (or elsewhere), this right does exist and should be protected.  However, the right, like all rights, has limits.  The high Court did not adequately consider the rights of the unborn children to be secure in the integrity of their own bodies during its decision.  Instead, the Court issued an incomprehensible psuedo-scienticifc approach to determined when a life becomes a life.  Medical science has definitely answered any related questions in favor of the unborn.  However, as is, about 1 Million children are murdered every year thanks to the Roe decision.  This was a case of improper balancing of competing interests under the umbrella of the law.

I do not roundly condemn “activists.”  Sometimes it is advantageous for a jurist to heavily scrutinize the law if the law actually impinges on protected rights.  The New York soda decision is a good, if oddly worded, example.  Problems happen when judges do not universally review the impact of a law, standing or undone.  It is also impermissible in a Republic for a court to institute new law – the domain of the legislature only. 

I will herein briefly explain a few of those key clauses and ideas of the Constitution which have given the federal government unlimited power over your lives.  These are the basis for Constitutional study in law schools.  In summary it suffices to say that they can and do anything they please, without hinderance.

The General Welfare Clause

This clause purportedly allowed Congress to use its defined powers for the betterment of all people.  It has been held it “has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments.”  Jacobson v. Massachusetts, 197 U.S. 11 (1905).  However, in conjunction with other provisions, the clause has been used to justify countless spending sprees directed towards the profit of a select few, often at the expense of the People.

The Commerce Clause

Congress has the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Courts and commentators have tended to discuss each of these three areas of commerce as a separate power granted to Congress.” Constitution, Art. I, Section 8, Clause 3.  Rather than regulating commerce between the listed entities, this clause has been egregiously abused to empower Congress to regulate anything which can conceivably occur wishing any of the stated territories.  The poster case of the clause is Wickard v. Filburn, 317 U.S. 111 (1942) in which the Supreme Court declared that wheat grown by a farmer may not necessarily be used privately by the farmer because such use (bread baking) might negatively affect interstate commerce, the ability of bread companies to sell the farmer bread.  While defying belief, this case and its ilk are recited as if dictated by Jesus by law professors coast to coast.  The Commerce Clause saw minor setbacks in the 1990s but it remains as the basis for most criminal and civil statutes enacted by Congress.  Arguing against commerce connections in court is as successful as herding alley cats.  I know this from personal experience.

The Necessary and Proper Clause

This clause, known also as the “elastic clause,” appears in Article I, Section 8, Clasue 18.  It provides that Congress can authorize the steps required to implement their other enumerated powers.  The Anti-Federlists argued against this provision, fearing it would allow the central government to assume endless power in the name of affecting those valid programs instituted under the named authorities.  Turns out they were right.  In conjunction with the Commerce Clause, the Necessary and Proper clause has been used to justify federal intrusion into everything.  It was necessary and proper to prohibit farmers from utilizing their own crops to preserve commerce, and so forth.

National Security

“Patriotism” is regarded as the last refuge of a scoundrel.  Frequently, it is the first.  There exists an idea that an allegation that a legal measure is warranted in order to preserve security or defeat some enemy regardless of any other factors.  Frequently, the government will assert this as a defense in a court case in order to avoid any discussion of the underlying subject matter (torture, internment of citizens, etc.).  This tactic usually stops the case dead in its tracks.  In a true emergency such a policy might serve a valid purpose.  However, as we now are told we live under perpetual threat of all sorts of impropriety, the argument is used as a universal repeal of our rights.  History indicates that “emergencies” never go away.  For instance, 68 years after winning World War II, we still station troops in Japan and Germany.  We also have a portion of our incomes withheld prematurely for taxation purposes – this was supposed to be a temporary war-time measure of WWII.  History also shows that a government will do anything to maximize its power under a security “threat,” including the manufacture of threats from nothing.

Taxation

“That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create….”  Chief Justice John Marshall, McCulloch v. Maryland, 17 U.S. 316 (1819).  Governments have proven themselves able to destroy just about anything, they create next to nothing.  Originally, our government was funded by tariffs and import fees and simple requests to the States for assistance.  The advent of the 16th Amendment gave Washington awesome power to take as much money as the need from the people’s labors.  The illegal Federal Reserve scheme allows them to create additional monies at will.  The courts have constantly upheld the power of taxation even when Congress didn’t know they were implementing a tax.  See: The Obamacare decision, Slip Opinion 11-393, June 28, 2012.  Taxation gets its own law school class – where it is worshipped like a god.  Dissenters are frowned upon as heretics (I know…).

A Few Rights

Over the years, several levels of scrutiny have been assigned to several pet rights.  I am suspicious of each of these levels and will not bore you with their application.  For the most part they apply rights based on classification of persons and against the backdrop of government “interests.”  It is interesting that usually deference is given to a particular law; the law is presumed Constitutional absence some showing that it is an abuse impermissible under one of the abstractly devised levels of scrutiny.  I would prefer deference to the Liberty of the People, with the government left to prove conclusively their law does not infringe that right or that any infringement is necessary in order to secure greater liberties for all.

Most Constitutional law teaching about “rights” center on the First Amendment.  There is usually a class devoted singularly to the subject.  The First is worthy of great attention.  However, too often the cases studied thereunder tend to regard outrageous acts.  Rather than securing rights to fundamental speech for example, such as protesting abortion, educating potential jurors, and protecting free speech during an election, the courts have wasted much time protecting things like naked dancing and wearing offensive sloganed t-shirts. 

Voting rights, due process, and equal protection in general have also received great review.  However, given the steady deterioration of fundamental due process and equal protection, it is obvious there is a systemic bias towards the government over the free people.  For example, Rand Paul’s protests aside, next to nothing has been done in response to the President’s plan to murder Americans in America using drones and no legal process.  The scheme is likely to survive (hopefully unused) due to deference to vague assertions of “national security.”

The rest of the Constitution is left in the dark void of undecided law.  It is either taken for granted that such matters will be resolved in due course by the courts or simply that the provisions have no effect.  In law school I was bluntly told that the Second, Ninth and Tenth Amendments didn’t exist.  I found this hard to believe.  Now, with several positive court cases to lean on, the Second has been given some legitimacy though many “scholars” still remain grounded in the ancient, misdirected past.  On Tuesday, March 19, 2013 I will attend a symposium on the Second Amendment, replete with reference to these lost interpretations.  I have several questions sure to generate discussion and maybe laughter among the gathering.  Join me if you will.

If you teach Constitutional law, incorporate the actual text into your class. It could be a prerequisite, covered at the beginning of the semester and then referred to during the subsequent discussion of cases.  Attorneys need to familiarize themselves with the text of the Constitution, everyone else should too.

Together, each of us acting as we may, we may be able to slowly restore a rational teaching and application of the Constitution.  Perhaps someday we will return to the looser confines of the Articles of Confederation, allowing the member States of the Union (closer to their respective citizens) to affect policies towards the People.  With an eye towards ultimate freedom, I can envision an even less restrictive society.  I am reminded that “anarchy is better than no government at all.”  I’m not sure society is ready for that level of responsibility yet.  Someday…

The United States Constitution

08 Friday Mar 2013

Posted by perrinlovett in Legal/Political Columns

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The United State Constitution is a historical anomaly.  The Constitutions of the several States are as well.  Our English predecessors had a Constitution of sorts as did the Romans long before.  These are however, rarities.  Many nations today have “constitutions” or charters which allege the rule of law, but which in reality are no different from the dictatorships and dominions of old.

Traditionally, most people have lived under one regime or another which ruled by the whims of men and the force they could exert.  Ayn Rand discussed this phenomenon, labelling it “Attila and the Witch Doctor.”  For the New Intellectual (1961).  Attila is representative of the ruling big man, a brute whose law” extends from the barrel of a gun or the tip of a spear.  The Witch Doctor is the “holy” man who finds some “divine” reason to justify Attila’s power and also placated the people to avert their suspicion or anger.

In 1775 the American colonists were under the rule of a gentler Attila, King George, III, who was constrained by Parliament and the English Constitution.  He even had a state-chartered church to serve as the Witch Doctor.  The next year the colonists declared their independence from England and instituted on earth thirteen new nations.  During the Revolutionary War these nations were united in Congress due to their dire predicament.  In 1781 the 13 states adopted the Articles of Confederation (the ratification process began in 1777) which tied them loosely together for mutual benefit.

Not being satisfied with loose ties, in 1789 the early Americans drafted a stronger document to commence a stronger central government – the Constitution.  The first ten amendments to the document, the Bill of Rights, came along in 1791. 

Constitution_Pg1of4_AC

(The Constitution.  Federal Archives.)

People like me are always rallying to the Constitution, its limits on government power, and it’s protection of individual rights.  When comparing the reality of modern American government to the government set forth in the original text of the Constitution, the two things seem polar opposites.  Thus, the constant call for a return to Constitutional government.  There is no doubt, from a libertarian perspective, the latter would be far easier to accept than the former. 

However, the problem I have finally come to terms with is that the two opposites are really the same thing – separated only by time.  Again, I quote Lysander Spooner: “But whether the Constitution really be one thing, or another, this much is certain – that it has either authorized such a government as we have had, or has been powerless to prevent it.  In either case, it is unfit to exist.”  “Unfit” is a harsh assessment, but it is probably the most intellectually honest view. 

I have personally sworn (affirmed) several oaths to support and defend the Constitution as an attorney.  Then, immediately, I have been told to look the other way as nearly every provision of the document is rendered moot.  The government these days does what it wants, end of discussion.  Its power is always on display.  If one or two of your rights happen to be respected, be happy.  The government will tell you it gave you those rights!  There is no respect for the letter of the Supreme Law.

In 2009, then Speaker of the House, Nancy Pelosi, was asked by a reporter, “Madam Speaker, where specifically does the Constitution grant Congress the authority to enact an individual health insurance mandate?”  Mrs. Pelosi responded with indignation, “Are you serious?  Are you serious?”  She then put on the record that the question was not serious.  http://www.aim.org/guest-column/yes-nancy-pelosi-we-are-serious/.  The question was dead serious and the true answer is “nowhere.”  Truth gets in the way.

Rep.  James Clyburn clarified the issue: “There’s nothing in the Constitution that says that the federal government has anything to do with most of the stuff we do.”  http://online.wsj.com/article/SB10001424052970203917304574412793406386548.html.  Jimmy was brutally honest.  Over the long-span of our Republic, a few pet phrases and ideas in the old parchment have been used to systematically justify the awesome growth of the federal government – the commerce clause, the necessary and proper clause, the general welfare clause, national defense, and taxation.  Today, when most of what the government does is illegal, they don’t even try to justify their actions.

This was hard for me to accept as an attorney.  Actually, I never did accept it.  In many (most) cases there absolutely nothing I could do for the interests of true justice and Constitutional fidelity.  However, I remain one of the few who will stand on principle to the point of Quixotic excess.  I do not fear being labeled wrong when I am right.

Here’s how the Constitution was supposed to work.  It was quite simply compared to today’s leviathan.

First, please read the Constitution.  Here’s a link: http://www.archives.gov/exhibits/charters/constitution.html.  This is the official site of the Constitution, complete with pictures of the original text.  Make it a “Favorites” link on your browser. 

The Constitution created the federal government, divided into three branches.  The branches were listed in order of importance.  Article One defines and empowers the legislative branch, Congress.  The powers of Congress or the legislative authority it has are mainly derived from Section Eight though a few powers reside elsewhere (some have been added by subsequent Amendments).  The powers enumerated in the text are the only powers which Congress may legally exercise.  The Tenth Amendment says so.  The number of these powers is the subject of some speculation among libertarians.  Some count the individual sub-sections only.  Some delineate each power from the subsections – I follow this approach.  Some extrapolate reasonable relations between the individual powers.  However you calculate them, the powers are few in number.  Let’s say there are about 30.  That’s it!  Those are the only things the government is supposed to do. 

Today we are trapped under tens of thousands of laws and countless regulations which cover literally everything imaginable.  The regulations are issued by various agencies, supposedly to implement the laws Congress passes.  You can find this mind-boggling collection of verbosity at: http://www.gpo.gov/fdsys/browse/collectionCfr.action?collectionCode=CFR.  Don’t make too close of a study; the regulations change constantly.  In my view none of these rules are valid as they are not the expressly permitted work of Congress.  However, the agencies that make them have armies of men with guns to ensure compliance.

Article Two concerns the executive, The President. The President’s authority is even more minimal than Congress’s.  He is supposed to only attempt to enforce the valid laws Congress passes, run the day-to-day operations of the government, and prosecute wars as declared by Congress.  That’s about it. 

Of course, today the President is a virtual government unto himself.  The executive’s ability to take “emergency” action and the constant acquiescence to these actions by the other branches, have made the President the most dangerous part of the central government.  He issues Executive Orders, which were originally only supposed to concern policy implementation within his administration, but today are taken as Acts of Congress (without Acts of Congress).  My view is that almost all of these Orders are invalid.  There again, the President is in charge of all those armies of armed men and the regular military too.  He usually gets his way.

Article Three concerns the federal Judiciary.  This article only established the Supreme Court.  It left another power to Congress to create and empower inferior courts of different kinds.  Originally, legal matters were supposed to be handled by State Courts for the most part, with the Supreme Court deciding differing outcomes from different States when a controversy arose.  Many libertarians think the judiciary has become too powerful.  Perhaps it has.  Most attorneys take the opinions of the courts to be divine.  I do not, for the most part, agree.  Congress has the ultimate authority over law in this nation and has the power to override a contrary court decision.  Congress also has the express authority to limit the jurisdiction of the courts, meaning Congress can prohibit a court from reviewing certain matters.  Congress rarely uses this power.

The rest of the original articles explain various concepts, procedures, and guarantees.  Perhaps the most important feature of the remaining articles is in Article Five – the procedure for adding Amendments to the Constitution.  This has been done 27 times since the original charter was enacted.

The Bill of Rights, those first 10 amendments, was added as a cautious afterthought.  The rights therein were acknowledged as Natural Law in origin and eternal.  In 1789 all ten were taken as a given.  The Founders assured everyone, including each other, that due to its explicitly limited nature, the new government would never be a threat to individual liberties.  There was no point in adding statements of protection.  But, in 1791, suspicion gave way to action, and several core rights were definitely stated and protected.  They have been poorly defended of late.

The remaining seventeen amendments were added over the course of years.  Most granted the government more power.  Only one of those has ever been repealed – the 21st Amendment, the only one ratified following State Convention origination, repealed the 18th Amendment, which outlawed alcohol.  In my estimation, of all the Acts of the federal government in its entire history, none were more cruel than the 18th Amendment.  During a period of dramatically increasing federal power and erosion of individual liberty, the government decided to take away the People’s ability to legally drink their serfdom away.  Thank God it was erased after only 14 years.  True to form though, the government could not simply end prohibition, rather, the ability to regulate alcohol was passed on the States.  The ATF and your State’s revenue department bear witness to the enduring character of legislative folly.

In conclusion, while the Constitution may be revered as creating a government of limited powers, it still created a government.  That government has vastly exceeded its authorized power to the detriment of our Liberty.  I would like to see a return to The Articles of Confederation or some other less powerful central state.  This is not likely to happen.  The best alternative would be to simply adhere to the Constitution as written, no more.  This is equally unlikely to occur.  As is, we will have to wait until time takes its toll on the remains of the Republic.  This process may not be pleasant for us.  Plato described the cycle of the theoretical state about 2500 years ago – we would appear to be somewhere near the end.  Aristocracy gives way to timocracy (rule of land owners).  Timocracy becomes oligarchy (the rule of an elite).  Oligarchy degenerates into democracy.  Democracy can also be called “ochlocracy” or mob rule.  Ultimately this paves the way for a despot to seize power.  The cycle then repeats. 

We can really only hope that someday, a future generation will learn from our mistakes and correct them.  History says that correction won’t last long.

The Second Amendment

04 Monday Mar 2013

Posted by perrinlovett in Legal/Political Columns

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This is a follow-up to some of my recent columns, Posse Comitatus, A Short History of Gun Control in America, and others.  The Second Amendment and its subject matter have been in the news recently as part of the never-ending “debate” over gun control.  The Amendment has also received special attention from the U.S. Supreme Court twice in the past five years. 

My purpose here is to explain what the Amendment means and what most commentators (even pro-firearms authors) miss in their reading and application.  Even if you do not own guns or have an interest in them, this issue affects you and your Liberty.  Somewhere in the writing process I realized I should have divided this into several segments.  My apologies for the heft of the article.  Sadly, I didn’t even get to add in half of what I should – maybe a book is in order?  certainly a follow-up’s follow-up.

“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.”  Second Amendment to the U.S. Constitution (1791)(entirety). 

minutemen-revolutionary-war-11

(Minutemen staring down British Regulars.  Google Images.)

The Second Amendment has absolutely NOTHING to do with hunting, sport shooting, and weapon collecting.  Those activities are important and are rights which derive from Natural Law.  However, they are ancillary to the purpose of the 2nd Amendment.  Ancillary also are the issues of self-defense and defense of others and of property from attacks by common criminals.  They to are the absolute rights of the People (absolute, under appropriate circumstances).  However, none of these things, which are commonly attributed to the true nature of the 2nd Amendment and gun ownership, fall under the actual purpose of the Amendment.

There are two primary reasons why the 2nd Amendment was included in the Bill of Rights.  First, the Founders wanted a heavily armed population so that the nation and the constituent States might be well defended from foreign or outside aggression and invasion.  Second, and most important, the Founders wanted the People heavily armed in order to overthrow or repel the State governments or the federal, national government in the event said government ever became tyrannical in nature and operation.  The true purpose of an armed people is to resist tyranny.  This is not only the right of the People, it is also their solemn duty.

Politicians do not like being reminded of this fact these days.  Perhaps their guilty consciences get the better of them given the nature of modern government – as close to tyrannical as just about any in history.  For reasons given herein and, those which I plan to elaborate on in a future column about arms, the ticks have little to fear.  As I have written elsewhere, most humans like to be controlled.  In the absence of fair masters, they will take any master that comes along.  I hope you, by your nature or by reading this article, are a member of the few who prefer freedom to slavery.  Your existence makes the tyrants sweat.

For the longest time the Second Amendment was largely written off by the legal “profession.”  When I was in law school I was told the Amendment (and a few others) didn’t really exist.  I found this strange.  The Amendment was there in the text of the Constitution and its plain language made perfect sense (the 10th Amendment was the same way).  Try as I could, I could never locate the provision which allowed for the murder of babies.  The law school community regards this right, in blasphemy, as if it had been written by God himself. 

Then again, law school has little to do with the law.  The one thing that was not required reading in my Constitutional law classes was the Constitution.  No mention was made of the natural underpinnings of the Constitution.  It’s no wonder most attorneys emerge from this environment without the slightest knowledge of whence our laws are derived.  I was different, I always am.  I read the old documents and inquired as to why certain things were included and excluded textually.  I read a lot.  At the time, the only legal textbook in print which even mentioned the 2nd Amendment was the one compiled by Laurence H. Tribe of Harvard law fame.  His mention was very brief, but at least he had the curtsey to include it at all. 

Most Consitutional law education focuses on two things: 1) the supreme power of the government and; 2) a few pet rights with plenty of case law material for professors to quote (the 1st Amendment, for instance).  I also have columns underway to explain both the Constitution (briefly) and the convoluted subject of Constitutional law.  You’ll have to wait for those.

As I said, the 2nd Amendment received little official attention for many years.  Early in our history and it that of our English forebears, the concept of a well armed population was well enshrined.  It was taken as a given that men would be armed.  The Founders went the brave extra step and set the armed people as defenders of their own Liberty against the heinous forces of organized government. 

Thomas Jefferson was rightly fearful of the problems posed by a standing government army.  The Declaration of Independence was full of accounts of the crimes committed by King George through his armies.  The mandate for a militia rather than a professional army found its way into the Articles of Confederation, Article 4.  While armies are allowed under the Constitution, they are supposed to be limited to a two-year duration, they were meant as an emergency measure.  U.S. Constitution, Article I, Section 8.

In the debates leading to the Constitutional Convention, both the Federalists (in favor of the Constitution) and the Anti-Federalists (fearful of a strong central government) denounced the practice of standing armies as grave threats to liberty. 

Writing for the Federalists Alexander Hamilton, himself not the greatest proponent of decentralized liberty, reiterated the common saying of the time that standing armies “ought not be kept up, in time of peace.”  Federalist, No. 26.  In No. 28 Hamilton asked mockingly, against the fact of armed State militias, when could the federal government ever amass a sufficiently threatening army?  As Monday morning’s historical quarterback, I suppose the answer was “in about 200 years.”  Hamilton also thought the two-year budgetary limitation placed on the army would render it ineffective for tyrannical purposes.  Federalist, No. 24.  Out of the pocket again, we now have a standing army fighting numerous “wars” despite the absence of a federal budget for four years.

The Anti-Federalists were equally fearful of a central army.  In his Tenth Letter, January 24, 1788, “Brutus” (most likely New York judge Robert Yates) warned of two dangers presented by a standing army.  First, it could be used by leaders against the people in order to usurp power.  Second, the armies themselves could “subvert the forms of government, under whose authority they were raised…”  As examples he cited the once free and constitutional Roman Republic and British Empire. 

Interestingly, the Second Amendment could have contained anti-army language.  The Virginia Convention proposed a Bill of Rights (June 27, 1788), which would have had the second amendment as seventeenth.  It would have read: “That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in times of peace, are dangerous to liberty, and therefore ought to be avoided, as far as circumstances and protection of the community will admit, and that, in all cases, the military should be under strict subordination to, and governed by, the civil power.”  I rather like that.  The Pennsylvania Minority had put forth a similar proposal on December 18, 1787. 

During the forty-fifth Congress, Rep. William Kimmel of Maryland, author of the Posse Comitatus Act, echoed the sentiments of the Founders as he quoted Tacitus, “Is there any escape from a standing army but a well-disciplined militia?”  7 Cong. Rec. 3579.  He also quoted Lord Bacon, who remarked of the Tudor years of English history, a “mercenary army is fittest to invade a country but a militia to defend it.”  Id.  Many were the quotes from members of the House and Senate on similar points.

The issue faded as the 19th Century progressed because it was still taken for granted that free people should be armed.  As I noted in Gun Control, the States and the federal government from this period to the present, began to enact various illegal, and progressively worse restrictions on gun ownership.  The 2nd Amendment did make appearances in law and court cases though during this period of general dormancy.  I will discuss two such cases here.

In Dred Scott v. Sandford, 60 U.S. 393 (1857), the Supreme Court ignobly affirmed black slaves were property as opposed to people.  However, the Court’s reasoning touched on the 2nd Amendment.  If slaves were considered human beings, then they would be entitled to human rights – such as the right to bear arms.  This case gave silent acknowledgment to the 2nd Amendment, which law professors somehow overlooked or wrote off.  It also slaps their Supreme Court worship in the face.  The fallibility of their god also seems lost on them. 

In United States v. Miller, 307 U.S. 174 (1939), the Supreme Court held the 2nd Amendment only protected firearms with militia “value.”  Mr. Miller was arrested for illegal possession of a short-barreled shotgun, one of the weapons regulated under the UnConstitutional 1934 National Firearms Act.  I always thought this case made some sense.  If the only guns protected are those of use to the militia or the military, then it would seem the people have a right to own those types of weapons.  And, if they are entitled to own those, why not allow them all lesser guns (like short-barreled shotguns).  Subsequently, shotguns of reduced length came in useful to the army GIs and Marines in Vietnam and other tight, uncomfortable places. 

The delusional legal community took Miller  to mean something else, something only a law professor could belive – that the 2nd Amendment protects a government’s “right” to keep arms.  The deliberate misinterpretation of Miller during the last half of the 20th Century gave rise to the idiotic “collective rights” theory, an impossibility in and of itself.  The theory lead to the belief of leftists and statists alike that the 2nd Amendment gave the government the “right” to organize a body such as the National Guard.  This was ludicrous.  Only individual persons have rights.  Individuals with rights can join together in the exercise of those rights, but the rights themselves never acquire group status.  The status certainly never transcends from the people, individually speaking, to the government.  Governments have powers, not rights. 

The point was finally clarified (as if such a plainly worded sentence needs clarification…) by the U.S. Supreme Court in two cases early in our current Century.  In District of Columbia v. Heller, 554 U.S. 570 (2008) the high Court overturned D.C.’s illegal law restricting handgun ownership.  The Court also held the Second Amendment did in fact confer upon the people a fundamental right to keep and bear arms.  The collectivists were crushed.  The Court actually noted the Natural Law right of self-defense.  The law professors were confused.  The opinion limited its reach to federal laws and enclaves (like D.C.) and appended certain language regarding “traditional” uses of firearms.  The Court also made notable mention of the proper relationship between the people and the militia, but they did not reach my ultimate conclusion from Miller. 

In my humble but professional opinion (I are a Constitutional and firearms law litigator person, after all), the legal opinion rendered by the D.C. Circuit Court of Appeals in its earlier hearing and decision of Heller, D.C. v. Parker, 478 F.3d 370 (2007)(Parker was then a co-plaintiff with Heller and several others), was a far better recitation of the 2nd Amendment, its meaning and origins.  Judge Laurence Silberman went to great lengths to explain the original meaning of the “militia” and its prerequisite condition of an armed people.  I will comment on this subject a little later, in my own words.

I met Judge Silberman at a legal education luncheon (CLE) in 2008, while Heller was pending the Supreme Court.  I thanked him for his contribution.  However, as is so often my way, I was disgruntled that afternoon and made my usual sarcastic comments to kick off the meeting.  CLE’s do that to me.  Imagine paying a good sum of money for a decent lunch which you can’t enjoy because some dude or dudette is babbling on about the law.  Anyway, I recall referring to D.C. as “the District of Corruption.”  I did this before a small gathering of government attorneys and government-dependent attorneys.  Judge Silberman gave me a nervous chuckle, the rest of the crowd was aghast at my … honesty.

Anyway, the 2008 opinion was good enough of a start.  Two years later the Court added to the new body of 2nd Amendment law.

In MacDonald v. Chicago, 561 U.S. 3025 (2010) the Court, in striking down an illegal Chicago law, “incorporated” the effect of the Second Amendment to the States, via the 14th Amendment.  Many libertarian scholars are dubious of the theory of incorporation but I will not touch on that here other than to say the 2nd Amendment must be respected by the States.  This makes sense, as far as it goes, as no entity may legitimately violate fundamental human rights.  The Court also included some dangerous language in the decision, particularly regarding the possibility laws may place “reasonable restrictions” on firearms ownership.  The reference may prove a trojan horse for gun owners, especially in light of those restrictions already in place (NFA and GCA) which are now taken for granted.  I do not take them so and I have no faith in government to keep any additional restrictions “reasonable.”

Other, newer cases are working their way through the courts, generally with good success.  I think the Amendment is finally getting some of the respect it deserves.  I also don’t think Congress will act to rashly regarding new restrictions, yet, even in the face of the ridiculous hysteria raised of late. 

I began by stating the Second Amendment is about the people resisting government tyranny.  I do not advocate herein the violent overthrow of the government.  Such action, even if warranted, would likely end in disaster.  Besides, given the suicidal tendencies of the federal and most state governments, such action would seem pointless.  I said “even if warranted” because once any government exceeds its scope and purpose to the point it becomes a threat to, rather than a defender of, the Liberties of the People (the only real reason for the existence of government), then again, it is the right and duty of the people to shrug off such tyranny.  When such action is taken legitimately, it is not an act of rebellion.  In fact, at such point, it is the government which is in rebellion and deserving of correction.  This may be subject matter for another future column.

The Founders, being highly suspicious of standing armies in the service of a central government, determined to set up a militia as a proper alternative.  A “militia” is merely the organization to some degree of all the armed men in a jurisdiction.  Every State in the Union still maintains a militia, completely separate from the National Guard.  The militia of a given state is generally divided into two classes – the “organized” militia and the unorganized.  The organized consists of members of the State defense force, whatever it may be termed.  These are voluntary citizen forces under control of the Governor.  They are generally neutered these days but retain the ability to become a combat ready force.  The unorganized force consists of all able-bodied males (and certain females) between certain ages (adults, generally).  I am a proud member of the unorganized Georgia militia!

These militias are primarily at the disposal of the States and can only be utilized by the federal government in certain cases.  The main point of this system is that the weapons are supposed to be in the hands of the people, not the government.  This is specifically true regarding infantry weapons.  A militia member should, today, be able to report for duty with any weapons available to a modern infantryman.  This would include fully automatic rifles (including SAWs) and shoulder launcher systems (Stingers, etc.).

We currently are restricted from such weapons, illegally, by the NFA and the GCA and amendments.  Also, as a counter to my central premise of militia dominance, the federal government has done a terrible job regulating the militias.  The States have all but abdicated their independence and authority to Washington.  Washington has also taken advantage of this situation by raising and maintaining huge standing, professional military forces in perpetuity.  This is all contrary to the intent and the language of the Constitution.  The American people have also undergone a dramatic transformation.  Regarding these instant issues, the populace tends to regard militias as dangerous bands of domestic terrorists while literally worshipping the federal Imperial military.  How many yellow ribbon decals have you seen promoting the militia?

This leads me to my final point, the concept that so many people miss regarding the Second Amendment.  Most historical analysis has focused on the “militia” preface and the “right of the people” action clause, or both together (see Judge Silberman).  What everyone seems to miss is the “security of a free state.”  A state, according to the Founders and their wisdom could only be preserved by an armed people serving as the militia.  The key word here is – “FREE.”  Given the decline of liberty, seemingly demanded by the people, can we be said to live in a free state anymore?  If we do not, is anything else important?  I would, of course, answer affirmatively.  I’m not so sure about my fellow countrymen.  This may provide material for a future column.  Your thoughts?

How to Interact with the Police

26 Tuesday Feb 2013

Posted by perrinlovett in Uncategorized

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Don’t talk.  Do not ever talk to the police under any circumstances whatsoever, ever.  Ever.  This is the general libertarian legal advice given by good lawyers who wish to spare their clients and anyone else listening the possibility of unwittingly implicating themselves in criminal activity, whether they were actually involved or not.

I like this advice and tend to give it to clients myself.  However, as with most legal issues, this matter is not quite that simple.  Well, maybe it is, but there are reasons why you might need to address the cops.  I’ll get to those a little later.

On March 10, 2013 I will address the Libertarian Party of the greater Augusta, Georgia area.  I was asked to speak on the subject of citizen interaction with the police in general and, more specifically, interactions involving a citizen carrying a firearm.  I will do so happily.  This column is a preview of what I will likely discuss.

There are two federally recognized (sometimes) natural rights which are affected by such situations – actually, they are different tangents of the same right – the right to self-preservation.  The first involves not implicating oneself in wrongdoing, the second involves the right of self-defense.  The Constitution lists these rights under Amendments V and II, respectively.  All State Constitutions recognize the same rights to a degree somewhere within their texts.  I’ll stick with federal language as a universal representation:

The Fifth Amendment reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

The above subject primarily deals with the “witness against himself” clause, though due process is implicated as well.

The Second Amendment reads: “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.”  This relates, obviously, to carrying a weapon while interacting with the police.

Both of these rights, despite laws and court rulings in their favor, have experienced considerable erosion since the ratification of the Bill of Rights (most rights have).  I will not necessarily discuss the origin of the rights, their history, or their decline herein.  As is, I will just accept them as plainly written.

Back to not talking to the police.  Many attorneys, including yours truly, generally advise against talking to government employees of any stripe, not simply the police.  This extends to telephone conversations (including 911 calls) as such calls are frequently recorded.  I recently posted a link to this video (Don’t Talk to the Police): http://www.youtube.com/watch?v=6wXkI4t7nuc.  The video is a 50 minute discussion of our subject by Regent Law School (Virginia) law professor James Duane.  The advice is excellent.  You’ll notice though that immediately after saying he will never talk to the police, professor Duane talks to a police officer.  There are almost always exceptions to a general rule.

I’ll cover a few of those now.  If you are a law professor who gives such a talk and you invite a police officer to participate, you will need to talk to the police.  If you’re a nice person who walks by a cop on a sunny morning, you might say, “Good Morning!” – that’s talking to the police.  If your child is kidnapped late one night you will probably call the police before anyone else.  If you are the victim of another type of violent crime you might talk.  If you are drunk, high, suffering from low blood sugar, or under a mental delusion, you might talk to the police, not remembering any of this advice at the time.  If your friend, relative, co-worker, or neighbor is a cop …  you get the picture.

Other government employees sometimes require your verbal attention too.  These examples are almost too numerous to list.  They range from telling a campaigning CongressCritter to buzz off when he disturbs your breakfast at the local cafe (happened to me once) to asking a clerk where the county vehicle tag office is.

Most of these examples are innocent enough.  However, sometimes the police arrest and persecute people for innocent interactions.  I had a client once who singed an insurance policy while paying for it.  He was later arrested and charged with felony insurance fraud based on his signature.  The crime didn’t even involve his particular policy.  In such cases, no advice is sufficient; one must engage a competent attorney and fight the system.

My subject matter here is really how to interact with the cops when you are approached about a possible criminal action wherein you might be a suspect. 

I recall from law school there are three tiers of citizen-police encounters.  The first is a simple and voluntary meeting (like some of my above examples) wherein the citizen is free to leave.  If you find yourself in a Tier One and you suspect the officer is probing you, ask if you are free to leave.  If you are, do so immediately.  Remember you do not have to say anything to the police no matter what they ask or say.  In these simple situations you can just walk away and terminate the encounter.

The second tier is known in legal circles as a Terry stop (see: Terry v. Ohio, 392 U.S. 1 (1968).  It is also more commonly called an investigatory stop.  That means the approaching officer is officially investigating some alleged or potential criminal wrongdoing.  The citizen is not necessarily free to leave and is technically under detention, even if temporarily so.  A Tier One becomes a Terry stop if the officer responds that the citizen is not free to leave.  At this point the citizen should shut up.  The exceptions are again to ask if you are free to leave or if you are under arrest and to tell the officer you do not consent to any searches.  Do not ever consent to searches.

The police are not supposed to arbitrarily initiate Terry stops (they do sometimes).  Rather, they are supposed to have “articulable suspicion” that a crime has or may have been committed and that the citizen is a likely suspect or witness.  The standard for such suspicion varies from jurisdiction to jurisdiction and by the individual case, though the common maxim is the officer must have something more than a hunch about the possible crime.  Fuzzy, yes.

Terry stops originate from many sources: tips or reports of crime, something the officer witnesses, an emergency, a man-hunt, or something else.  Frequently, the police have nothing at all in the way of evidence.  Thus, they turn to the citizen for incriminating evidence.  Citizens offer the evidence against themselves voluntarily in most cases.  If you ever saw the TV show Cops, then you know a suspect will immediately start babbling on about what he did or didn’t do.  This usually digs the suspect a nice hole – with bars.  This is why you shouldn’t say anything.  Do not help the police do their job.  At this point you will either be arrested, further temporarily detained, or released regardless of what you say.  Talking won’t help, so don’t do it.

The third tier is a formal arrest.  If you are arrested you must absolutely cease talking period.  At some point the police will advise you of your Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966)) – you know these from TV.  They will tell you you have the right to remain silent and that anything you say can and will be used against you.  Did you get that?  Anything you say will be used against you.  Give them nothing.  Under arrest you only make one statement, repeatedly in necessary: “I want an attorney.”  The police usually stop questioning at that point, sometimes they don’t.  Just do not answer or make any other statements – at all.  Be silent as you have the right.

Silence is the better rule in most of these encounters.  By talking you will either implicate yourself or possibly give the officer(s) something else to consider in your prosecution.  Sometimes officers hear things wrong or falsely report what a citizen says.  They can make you out to be a liar.  You’re not lying if you’re not talking.

I have been retained by several clients just over the issue of voluntary interrogations.  I stopped the practice entirely after so many such incidents.  The client would get a call from the police, asking the client to “come downtown” to answer a few questions or make a statement.  Once a client demanded to visit the Sheriff to make a statement all on his own – over a non-issue.  My constant advice to all of these folks was to not go and to say nothing.  Most did not listen and I had to accompany them to the Q&A sessions.  At those meetings I objected to each and every question the police asked and every statement the client uttered.  That did not stop most of these people.  I have literally watched as people talked themselves into felony prosecutions.  Seeing the process as pointless and potentially liability-inducing on my part, I stopped participating.  Don’t put your attorney through such torture.  Don’t talk.

I’ve also been hired by clients after they talked to the police.  I have read many statements and listened to many recording wherein a client essentially convicted himself.  Often, without their own damning, idiotic testimony through such statements, the government would never have had a case to try.  Don’t talk to the police.

Firearms add an extra dimension to the issue.  America is the most heavily, privately armed country in the world.  We should rejoice!  The primary reason for the Second Amendment was to ensure the People would always be able to fend off a tyrannical government, all other purposes are ancillary.

Unfortunately, much has changed since 1791.  Today, many Americans are afraid of firearms (and much else) and defer unwisely to the government for protection.  Their fears are fueled by a few isolated stories from the lamestream media.  Many of these cases, I suspect, are false-flag operations of the government, ginned up to alarm the frightened people.  Remember always – “The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.” – H.L. Mencken.

In the old days, no-one looked twice at a person carrying a gun in public.  It was what Americans did.  You can still find the practice accepted in many rural communities.  The practice is open and notorious in Switzerland (God bless the Swiss). 

Swiss Militia man

(A Swiss Militia member openly carrying a battlefield rifle in a grocery store.  The blonde woman is not concerned – free people are not.  Source: Google Images.)

The local LP sent me a video of a law student telling off a police officer who “detained” the student over a firearm.  I seem to have misplaced the video link.  You can surely find it or something similar on Youtube.  Here’s my take on the matter.  First, Americans have every right to go armed just about anywhere they want to, even though many jurisdictions illegally attempt to block this right.  Second, sometimes discretion is the better part of valor – more on that in a second.  Third, in the Georgia and much of the South, we are lucky to have pro-gun law enforcement.  Many officers welcome armed citizens. 

Let’s assume for argument’s sake, you encounter an officer with a dimmer view of freedom.  Georgia and most other States allow concealed carry of weapons – usually with a permit.  I think those permits are UnConstitutional.  A few States like Vermont do not regulate of require such licenses.  This issue is slowing making its way through the courts.  We will see what becomes of it.  For now, if you carry concealed, play the government’s game.

To avoid an unwanted and unnecessary confrontation over your gun, carry concealed.  If they (the police or the easily alarmed) can’t see the weapon, they can’t inquire about it.  Some State’s licenses come with the requirement that a citizen inform any approaching or present law officer that they have a license and are carrying.  North and South Carolina come to mind.  This is also UnConstitutional.  Georgia is not such a State.  Say nothing in Georgia.  In fact, if you have the gun well concealed, say nothing wherever you are.  If they don’t know, they don’t know – and they don’t need to.

If you carry openly, which is your right, you may expect someone to alert the police to “a man with a gun.”  As a result, you may be approached by an officer.  This would be a quasi-tier one/two encounter.  Carrying a gun itself is not justification for any suspicion of wrongdoing.  The police will inquire anyway.  They may go as far as to handcuff you while they check your license and the gun.  This a violation of your civil rights.  I had a friend who was stopped by a traffic officer in Ludowici, Georgia one night.  The officer inquired about my friend’s pistol and took the gun to “check it.”  The officer then announced he would have to keep the gun until the next day in order to verify it really belonged to my friend and was carried properly.  This was in keeping with Ludowici’s long-standing policy of public harassment.

Before I became really upset about the story my friend told me it had ended well.  The Ludowici police chief, realised his officer had broken the law, immediately dispatched a courier to hand deliver the gun back to my friend.  As my friend was happy, the issue died.  A bloodless victory is the best kind as we say in court.

However, if you find yourself in a similar situation, the best thing to do is keep quiet.  Do not tell off the officer as the afore-noted law student did, even though you are completely right.  The police sometimes get nervous and arrest or murder “uppity” civilians and make up a good excuse for their actions in their report.  The street is not the place to fight for your rights – unless the officer endangers your life.  You can use force against the police if necessary, just as you would against any other armed thug.  But, these situations are messy at best. 

It is usually after such an encounter you should act – by contacting an attorney.  You may very well have a civil rights action against the police (State or local) under 42 U.S.C. § 1983 (or a Bivens action against federal officers [Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1971)]).  An attorney can advise you in a particular case.

Two more specific situations, very briefly.  First, if you are involved in a self-defense shooting you will likely have contact with the police.  In such cases always identify yourself as the victim of the underlying crime.  In order to legally use deadly force against another, one must reasonable belive that one’s life is in imminent danger from a criminal actor who simultaneously posses the ability and the proximity to in fact endanger innocent life.  This is the general public standard, in most jurisdictions you have more leeway on your own property (stand your ground and castle statutes).

If you have to shoot someone (I hope you never do), report only the fact of the crime and that you ended it per the standard I just stated.  The police may want additional statements.  Do not make them.  Tell the officer you take the matter very seriously and that you need to, accordingly, speak with your attorney before making any additional statements or answering any other questions.  Again, if you are arrested (not always a given, here), say absolutely nothing.  I am referral attorney for the Armed Citizen’s Legal Defense Fund, based in Washington State, http://www.armedcitizensnetwork.org/.  The Fund has produced an excellent series of videos on this subject.  Legal and tactical shooting experts discuss in-depth how to handle these situations with your gun and with the law.  I recommend you purchase and review these videos. 

Second, if you are at home and the police knock on the door, do not open it.  Do not let the police in volutarily for any reason.  This by itself constitutes a consentual search (at least cursory).  If the police have authority (a warrant) to enter your home, they will do it rather than asking you for permission.  If they ask, they have no authority.  Don’t help them gain it.  I have former clients in prison because they opened a door for the police.  Don’t do it and don’t talk to them. 

Remember, in a specific case you may have, consult with a specific attorney for legal advice.

As for advice, nothing herein constitutes legal advice.  Consider this, rather, a general legal education.  When you see the police use common sense and do not talk if you can help it.  Doing the first and refraining from the second may save you many headaches.

Natural Law

15 Friday Feb 2013

Posted by perrinlovett in Legal/Political Columns

≈ 10 Comments

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Ninety-Nine percent of lawyers in the United States graduate from law school and practice their profession without much if any consideration of the ultimate underpinnings of the laws, regulations, and processes with which they work.  I mean something deeper and more eternal that a mere constitution or the tradition of Anglo-American law.  This lack of knowledge is not necessarily their fault.  Law schools rarely teach or even mention said underpinnings.  Legislatures, executive officers, and courts now operate without the slightest acknowledgment of that from whence they derive their just authority.  Most citizens seemed confused about the nature and base concepts of law, rights, and justice generally.  This is all forgivable to a fault (especially for the lay audience).  Let me tell you briefly about where “law” comes from.

Long ago, policy makers and attorneys such as Thomas Jefferson, Thomas Paine, and Patrick Henry did understand and acknowledge the source of their governmental efforts and the results thereof.  This deeper sense of purpose was never limited to American statesmen.  Pre-Americans and even pre-Christians such as William Blackstone, Cicero, Aristotle, and Solon also were aware of the greater power behind their actions.

That power and influence is called “Natural Law,” sometimes referred to as “Natural Rights” and similar names.  These are fundamental concepts which are imbued into each human spirit by their Creator.  Made-man law is or is supposed to be an expression of the natural law.  David Miller, et al., eds, The Blackwell Encyclopedia of political Thought (Oxford 1987).  Some argue that the individual rights associated with natural law must be or may be curtailed to a degree in a complex society.  Miller, et al, supra.  I, like many libertarians, disagree with this notion insofar as one person’s rights do not become an infringement on the rights of another.

So, where did natural law come from?  To answer that question let us journey back in time – way back, to the beginning of time, if fact.  Natural law along with all principles of science, measure, and understanding were created by God, the Almighty, as a product of His grand universal creation.

The concepts of natural law are, thus, as eternal and fixed as the laws or rules of physics or mathematics.  Regarding those rules of “hard” science, humans are on a continuing mission to explore, understand, master, and apply the same.  So it is with natural law.  Being imperfect and tainted by original sin, it is unlikely that we shall ever have complete mastery of any of these ideas.  Therein lies another agony resulting from the original disobedience and the ensuing free will dominated “knowledge” with which mortals outside the garden must grapple.  As natural law relates to human behavior and society – “soft” sciences, academically speaking, it is much more difficult to grasp, let alone use than some other universal truths.  Four plus four equals eight and gravity almost always attracts separate bodies together.  Whether people should have a king or a board of selectmen is a wholly different and subjective problem.

As a note, one need not be a Christian or a believer in any specific faith in order to respect natural law.  For those so inclined, just consider it another facet or force of the universe we happen to inhabit.  As alluded to above, many, many philosophers and legal scholars and practitioners observed natural law millenia before the founding of the United States and centuries before Christ.

In describing the “visible world” the Catechism of the Catholic Church (“CCC”) (No. 341) describes man’s progressive discovery of the laws of nature as he observes the interaction and beauty of the universe.  “The natural law is written and engraved in the soul of each and every man, because it is human reason ordaining him to do good and forbidding him to sin…”  Pope Leo XIII, Libertas, 597; CCC, 1954.

God originally, long after the expulsion from paradise, gave us ten simple Commandments by which to live – they are a direct and further exemplification of natural law.  Jesus gave us the most simple explanation possible of natural law with his Law of the Gospel, “new commandment:” “love one another.”  John 13:34; CCC, 1970.  People, it seems, are unwilling or simply unable to follow clear, simple admonishment.  The history of the past twenty centuries bears this out.

As a result of our collective incompetence, we are now subject to laws, regulations, and rules both innumerable and incomprehensible (and mostly unnecessary).  However, at their core, if these human statutes are valid, they are based on some interpretation of natural law.

“The natural law is immutable, permanent throughout history.  The rules that express it remain substantially valid.  It is a necessary foundation for the erection of moral rules and civil law.” CCC, 1979 (entirety).  The question for us, is how to interpret and apply these immutable principles as we create civil law.  Rest assured that nothing we do will ever be perfect.  The best we can strive for is an approximation.  Harken though and remember that this whole body of law is contained in our souls; we only need to tap into it when necessary.  This never-ending task has been the study of great men throughout history.

In Natural Right and History, Leo Strauss explored the origins and ideas of natural law.  He noted  Plato’s theory that freedom from and doubt of human law is the “indispensable” beginning of the search for natural law.  Strauss, Natural Right and History, pg. 84, U. Chicago Press, 1953.  This means “thinking outside the box” about law, rather than civil disobedience – although that may come later.  Strauss goes on to differentiate between the “classical” view of the law as espoused by Socrates, Plato, Aristotle, and Saint Thomas Aquinas and the “modern” (17th century and on) views held by Locke, Hobbs, and more contemporary thinkers.

Some of these differences are obviously products of their time and the accumulation and interpretation of previous work.  Others are matters of opinion, albeit well-reasoned opinion.  St. Thomas’s observations along with those of other Christian theologians are influenced by Biblical and Church teachings; however, this concept would not be wholly lost on ancient Greek or Roman philosophers.  In their time, those ancients usually attributed the law to nature itself, with perhaps a whimsical nod to Olympus.  As Juvenal quipped: “The wrath of the gods may be great, but it certainly is slow.”  Satirae, XIII, 100.

I will go no further, directly, with Strauss’s differentiation.  This is the interpretation of Perrin Lovett and is mostly concentrated towards a modern, American view of the law and how it applies to our societal relations.

Before we get back to our America we still need a bit more history.  An exhaustive examination of natural law was one of the central themes of St. Thomas Aquinas’s great Treatise on Law, part of his larger Summa Theologica.  Expanding upon Plato and Aristotle’s “outside the box” approach, Thomas concludes, with reference assistance of Saint Augustine that law “which is not just seems to be no law at all.  Hence a law has as much force as it has justice.”  St. Thomas, Treatise on Law, R.J. Henle, S.J., editor, pg. 287, U. Notre Dame Press, 1993.  St. Thomas goes on to say that a civil or earthly law with conflicts with natural law is a perversion rather than a law.  Thus, did Walden and others, claim a basis for civil disobedience to repugnant laws.

Saint Thomas notes that natural law may be divined directly from principle (i.e. a law against murder would be based on God’s commandment not to kill or the principle that each human has a right to live).  The other more subjective method is through examination of generalities.  Enter, here,  the fuzziness of the human brain.  A natural law-compliant statute which prohibits murder may also prescribe punishment for murder; what the punishment should be and how it is applied is a matter of determination based on assessment of the factors of the case, with natural law as a field guide.  See: St. Thomas, Treatise, supra, pg 288.

Seemingly, most of the core laws of our nation and our states derive (or did derive)from Biblical or other ancient sources.  Most are straightforward in definition.  Murder is prohibited in Georgia the same as it is in California (and just about every jurisdiction worldwide).  The procedure governing a murder case and punishment following a conviction are also dictated by law.  In keeping with natural law, a criminal defendant should be accorded all protections of Due Process, else his conviction, if any, is tainted with perversion.  In name and theory at least, American laws and courts have erected elaborate barriers to protect an accused citizen from state malfeasance.  Consideration of possible punishments, as well as any type of considerable sub-crime (manslaughter, for example) have been designed (again in theory) to assess the factors and circumstances of each particular case.

Often voices arise in a society, particularly regarding emotionally charged cases, crying for “justice” at all costs.  These voices essentially call for lynchings based on such novel theories as: “Everyone knows so and so is guilty!” and “Some people just need killing!”  On our quest for natural law, we must put aside emotion and observe the larger picture.  That picture encompasses the possibility that even a seemingly guilty criminal may still be innocent; our procedures of justice are the mechanisms for definitive (though imperfect [humans again]) adjudication.  “It is better that ten guilty persons escape, than that one innocent suffer.”  Sir. William Blackstone, Commentaries on the Laws of England, 1783 (this sentiment has been echoed by Benjamin Franklin and Voltaire to name a few).

Blackstone commented that nothing is more essential to the “common good” than the protection of individual liberties.  Blackstone, Commentaries, supra.  This reasoning was shared by Thomas Jefferson and John Locke, etc.

Jefferson, of course penned the Declaration of Independence.  In its first paragraph our great severing/founding document based the authority of the American people on the “Laws of Nature and of Nature’s God.”  The second paragraph is (was) well known: “We hold these truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights…”  (italicized emphasis added).  Those rights are the natural rights enjoyed by every human, which need not be necessarily acknowledged by any document and can never be legitimately infringed upon by any government.  The rest of the Declaration was dedicated to addressing King George’s abuse of those rights and the implementation of the natural law recourse – secession.

Those were core values on display to the whole world in perhaps the most stunning social experiment in human history.  Natural law gave life to the Articles of Confederation, an entity devoted to mutual aid and protection for the betterment of all member states and their respective citizens.  Shortly thereafter, the Constitution came into being.  Again, some attempted to forge a stronger union with the steel of natural law.  Certain of nature’s rights were expressly set forth in the Bill of Rights.  This was a case of core values mingling with the fire of powerful government – a dangerous combination.  As the two plus centuries have made clear, one government is as capable as another is usurping power for its own ends while concurrently infringing on the rights of its people.

It is when we consider statutes and rules outside of the “core” of our natural human experience that real problems are confronted.  Imagine, if you will, a man alone on an island.  He is his own society and, if he wishes, his own government.  His natural rights are as intact in the middle of the uncharted Pacific as they would be in mid-town Manhattan.  He has, for instance, that right to live or for self-preservation.  Absent some new addition to his little society, a rule against murder would prove difficult to adhere to; murder is the unlawful, unreasonable, and voluntary killing of a human being by another human being.  Absent another person our Islander need not fear murder.  He might find himself facing suicide or starvation though and then his rights to his own person would become his chief concern.

This simple Robinson Crusoe example should translate form a desert isle to any more complex society.  However, some laws deal with issues not conducive to reason in any circumstance.  A bill or statute proposing farm aid to certain large corporations based on their stated financial needs, the aid to come from either taking directly from the rest of society or by decreasing the value of that society’s currency (if the currency be fiat in nature) is a completely different, non-core matter.  However, politics, financial tricks, and smoke and mirrors aside, such a dilemma may still be decided along natural lines.  Governments today generally do not have legitimate money to give away nor are they capable of productively earning such monies.  A giveaway scheme necessarily involves taking from someone else.  Is this not theft?  Is theft not forbidden by the Creator’s Law?  Heaven aside, the earthly consideration here is one of justice.

“All virtue is summed up in dealing justly.”  Aristotle, Nicomachean Ethics, 325 B.C.  Justice would seem to forbid stealing from one group to pay off another, no matter how well-connected the recieving class might be.  You, the reader, must know that our government has long since abandoned this rational debate.  As a result we have those laws innumerable.  Sadly, this has been a long-standing problem.  “The more laws, the less justice.”  Cicero, De Officies, 44 B.C.

As mentioned earlier, the wisdom of the ancients was once of common knowledge and practice in our Western world.  George Washington wrote, “The administration of justice is the firmest pillar of Government.”  Geo. Washington, Letter to Edmond Randolph, 1789.  After his visit to America, Alexis Comte de Tocqueville stated: “When I refuse to obey an unjust law, I do not contest the right of the majority to command, but I simply appeal from the sovereignty of the people to the sovereignty of mankind.”  de Tocqueville, Democracy in America, 1835.

Common sense even protruded into the Twentieth Century.  One who knew best, Dwight Eisenhower said, “Peace and justice are two sides of the same coin.”  Eisenhower, radio address, 1957.  Universally speaking: “Injustice anywhere is a threat to justice everywhere.” Dr. Martin Luther King, Jr., Letter from the Birmingham, AL Jail, 1963.

Unfortunately for us, the voices of justice and reason have been growing steadily fewer and father between.  Today our American government bears almost no resemblance to that which was established long ago while memories of tyranny were still fresh.  Rather than engage in justice, let alone its quest, our politicians constantly engage in vote-buying schemes of unimaginable proportions.  Solon’s observation has never been truer: “Laws are like spider’s webs which, if anything small falls into them they ensnare it, but large things break through and escape.”  Quoted by Diogenes Laertius, Lives and Opinions of Eminent Philosophers, 3rd Cent. A.D.

For a final example, this analogy to a spider web is demonstrated time and again in the new Amerika.  When greedy bankers make horrible, criminal (but foreseeable) mistakes and risk the financial ruin of the world, they are bailed out and pass freely through our laws.  The poor, middle class, and average citizens are caught, seemingly forever, in a legal cesspool of debt and oppression.

treewater

(Natural law is as common as the beauty of Nature itself)

I will not end on a sour note.  Rather, I offer a humble solution.  If we are to be free as God’s children are supposed to be, we must cast off the burdensome trappings of our current governments.  For that process to begin our citizens must each commence their individual quests throughout their spirits for natural law and justice.  In particular, our lawyers and law students need to demand formal classical education, or else, they must take it upon themselves to learn what has been lost.  While all of you have great deal of research and reflection to do and I may follow-up with more reasoning and explanations, I hope this article starts the process.

Perrin Lovett

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