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PERRIN LOVETT

~ Deo Vindice

PERRIN LOVETT

Tag Archives: Declaration of Independence

Happy Independence (If Any) Day 2017

04 Tuesday Jul 2017

Posted by perrinlovett in News and Notes

≈ Comments Off on Happy Independence (If Any) Day 2017

Tags

America, Declaration of Independence, Fourth of July, freedom

It’s the Fourth of July, America! 241 years ago, we broke “free” of Great Britain.

Some thoughts on the same:

From Last July, Here.

My Freedom Prepper column this morning.

Gary North on the Fourth:

The colonists had a sweet deal in 1775. Great Britain was the second freest nation on earth. Switzerland was probably the most free nation, but I would be hard-pressed to identify any other nation in 1775 that was ahead of Great Britain. And in Great Britain’s Empire, the colonists were by far the freest.

I will say it, loud and clear: the freest society on earth in 1775 was British North America, with the exception of the slave system. Anyone who was not a slave had incomparable freedom.

…

So, as a result of the American Revolution, the tax burden tripled.

The debt burden soared as soon as the Revolution began. Monetary inflation wiped out the currency system. Price controls in 1777 produced the debacle of Valley Forge.

Pat Buchanan on whether We are still a People, a Nation:

With this July 4 long weekend, many writers have bewailed the animus Americans exhibit toward one another and urged new efforts to reunite us. Yet, recall again those first words of Jefferson in 1776:

“When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them…”

Are we approaching such a point? Could the Constitution, as currently interpreted, win the approval of two-thirds of our citizens and three-fourth of our states, if it were not already the supreme law of the land? How would a national referendum on the Constitution turn out, when many Americans are already seeking a new constitutional convention?

All of which invites the question: Are we still a nation? And what is a nation? French writer Ernest Renan gave us the answer in the 19th century:

“A nation is a soul, a spiritual principle. Two things … constitute this soul, this spiritual principle. One is the past, the other is the present. One is the possession in common of a rich legacy of memories; the other is present consent, the desire to live together, the desire to continue to invest in the heritage that we have jointly received.

“Of all cults, that of the ancestors is the most legitimate: our ancestors have made us what we are. A heroic past with great men and glory … is the social capital upon which the national idea rests. These are the essential conditions of being a people: having common glories in the past and a will to continue them in the present; having made great things together and wishing to make them again.”

Does this sound at all like us today?

Watching our Lilliputians tearing down statues and monuments, renaming buildings and streets, rewriting history books to replace heroes and historical truths with the doings of ciphers, are we disassembling the nation we once were?

These are things to ponder in between the beer, burgers, and fireworks. Celebrate, today, but also think.

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Happy Fourth!

Sobering Thoughts on Independence

04 Monday Jul 2016

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

≈ 1 Comment

Tags

America, Declaration of Independence, freedom, government, Paul Craig Roberts, The People, tyranny

Paul Craig Roberts offers up some incredibly poignant commentary on American freedom and independence, some of which dove-tails with my post earlier this morning:

On July 4th all across America, there will be patriotic speeches about our soldiers who gave their lives for their country. To an informed person, these speeches are curious. I am hard-pressed to think of any examples of our soldiers giving their lives for our country. US Marine General Smedley Butler had the same problem. He said that his Marines gave their lives for United Fruit Company’s control of Central America. “War is a racket,” said General Butler, pointing out that US participation in World War I produced 21,000 new American millionaires and billionaires.

When General Butler said “war is a racket,” he meant that war is a racket for a few people getting rich on the backs of millions of dead people. According to the article in the American Journal of Public Health, during the 20th century 190 million deaths could be directly and indirectly related to war.

…

In the United States, patriotism and militarism have become synonyms. This July 4th find the courage to remind the militarists that Independence Day celebrates the Declaration of Independence, not the American Empire. The Declaration of Independence was not only a declaration of independence from King George III but also a declaration of independence from unaccountable tyrannical government. The oath of office commits the US officeholder to the defense of the US Constitution from enemies ”foreign and domestic.”

In the 21st century, Americans’ worst enemies are not al Qaeda, Iran, Russia, and China. America’s worst enemies are our own presidents who have declared repeatedly that the orchestrated “war on terror” gives them the right to set aside the civil liberties guaranteed to every citizen by the US Constitution.

  • Paul Craig Roberts, LRC Archives, July 4, 2016.

His is a dual archive column of considerable length for a holiday read but well worth the effort. Today is a day for Americans to celebrate individuals standing up against government and tyranny (synonyms, really), not for standing up and cheering the government on.

freepik.com

Happy Independence Day!

04 Monday Jul 2016

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

≈ 1 Comment

Tags

America, Declaration of Independence, England, freedom, government, King George III, revolution, The People

Every month has a fourth day. July is special because on that particular fourth day the Second Continental Congress adopted the Declaration of Independence. The thirteen American colonies, already at war with Great Britain, declared themselves sovereign states and completely free from the Crown.

Thomas Jefferson, Timothy Matlack, et al, listed various offenses committed by King George III such to necessitate the war and declaration. I have noted a few of the major complaints against the King and included illustrative pictures for reference. Among the several accusations it was alleged the King:

Improperly governed by interrupting the due order of legislative authorities – (like this);

post-gazzette.com

Obstructed justice – (like this);

David Griffin

Sent government agents to harass and rob the people – (like this);

offthegridnews.com

Kept standing armies among the people in peace time so as to subjugate the civil authority to the martial – (like this);

infowars.com

Imposed taxes on the people – (like this);

defensetax.com

Deprived the people of jury trials – (like this); and

wsj.com

Imported armies of hostile foreigners – (like this).

stridentconservative.com

Funny there are so many examples today of problems thought solved 240 years ago.

Here is the entire text of the Declaration:

IN CONGRESS, July 4, 1776.

The unanimous Declaration of the thirteen united States of America,

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

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, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.–Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our Brittish brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which, would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

harrisongreetingcards.net

Amidst all the fireworks, cookouts, and state adulation, please take a moment to consider the reasons why the United States declared Independence from Great Britain. Ask yourselves if those values are worth reconsidering today.

Happy birthday, America!

 

 

 

 

 

 

 

Right of Rebellion

25 Sunday Jan 2015

Posted by perrinlovett in Legal/Political Columns

≈ 2 Comments

Tags

America, anarchy, arms, Constitution, Declaration of Independence, freedom, Hew Hampshire, King George, law, Natural Law, Plato, revolution, Saint Augustine, Saint Thomas Aquinas, Second Amendment, The People, tyranny

I have an affection for New Hampshire.  The air is clean.  The people are friendly.  They have mountains and beaches relatively close together.  There’s no income tax.  It’s close to Boston.  It’s far enough away from Boston.  The Granite State is just a beautiful place and bears a beautiful motto – Live Free or Die.

The State Constitution is also unique among written political charters.  While generally resembling other such State documents as well as that of the United States this New England version has a stark difference.  It’s something I am not aware of, in writing, anywhere else in the world.  It contains a “Right of Revolution,” which I, here, call a Right of Rebellion (semantics).

“Government being instituted for the common benefit, protection, and security, of the whole community, and not for the private interest or emolument of any one man, family, or class of men; therefore, whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.”  N. H. Const., Sect. I, Art 10 (entirety, as amended, 2007).

old_man

(The Old Man of the Mountain [NH natural wonder], Google Images)

Re-read the above and let the meaning sink in.  The free people not only have a natural right but a duty to reform a corrupted government.  When all other usual and peaceful methods of redress fail, the people are authorized to resist evil.  Otherwise the people become subjects – slaves.  That’s what “slavish” means: “of or characteristic of a slave; especially : basely or abjectly servile…”  Webster’s English Dictionary, http://www.merriam-webster.com.

Further, such acquiescence is “absurd,” being illogical and futile.  This is the literary embodiment of that spirit which lead early Americans to cast off the yoke of King George III.

“When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”  U.S. Declaration of Independence, Para. 1, July 4, 1776.

The Declaration proceeds with a long list of oppressive grievances committed by the King. A recount of usual redress follows: “We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”

Then, the Declaration: “That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved…”

Mind you, this is the spirit of the former America.  Today such sentiment is almost sacrosanct.  Look into the heart of nearly any purported American and one finds either a zealous appreciation for total government or, at the least, a complete resolve to do nothing conducive to the ends of liberty.  Worse than the loss of freedom in Columbia is the veneration of the forces which have brought forth the doom of tyranny.  There exists in America today a cult of statism.

The New Hampshire Constitution provides an outline for the heretics who would still be free.  The entire document is worth reviewing – please click here and read.

Article one artfully defines the sole legitimate reason for government: “All men are born equally free and independent; therefore, all government of right originates from the people, is founded in consent, and instituted for the general good.”

Article two evokes the Natural Law: “All men have certain natural, essential, and inherent rights – among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness. ”  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).

Plato asserted 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.

St. Thomas Aquinas and Saint Augustine posit that any 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.  Again, once an entire government loses its claim to justice the people have a duty to reform or disband said non-government.

Article two-a, mimics the Second Amendment and puts teeth behind the other declarations: “All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state.”  New Hampshire, with some of the least restrictive gun laws in the nation, has an on-again, off-again habit of allowing carry even inside the State Capital building.  N.H. lawmakers allow concealed weapons in House chambers, Boston Globe, Jan. 7, 2015.  Note that NH consistently ranks as one of the safest, crime free states in the Union.  101 Reasons to Move to New Hampshire, Free State Project.

Those aiming to reform government or create anew must be able and willing to forcefully defend their cause.

The question arises as to when, exactly, does new for such cause becomes necessary and proper.  People acting out individually whenever they are personally slighted does not seem just cause.  Such action would inevitably lead to anarchy in the lowest sense of the word.

Article three notes, to this end: “When men enter into a state of society, they surrender up some of their natural rights to that society, in order to ensure the protection of others; and, without such an equivalent, the surrender is void.”  However, Article four affirms that “Among the natural rights, some are, in their very nature unalienable, because no equivalent can be given or received for them.”

So, while individuals may not personally rebel without great need, they must retain the means to do so should collective need present itself.

How do or how will we know when this time comes?  I do not pretend to be an expert nor arbiter of this process.  For now I offer only mental food for thought.  I do, however, reserve the right to expand on this theme in the future.

PS: the forgoing is not a paid endorsement of New Hampshire.

The Second Amendment: English Common Law Pre-History

02 Tuesday Apr 2013

Posted by perrinlovett in Legal/Political Columns

≈ 3 Comments

Tags

America, American Revolution, arms, Assize of Arms, colonies, Commentaries on the Laws of England, Declaration of Independence, Empire, England, English, English Bill of Rights, English Civil War, Glorious Revolution, gun control, Jamestown, King, King James II, Liberty, Magna Carta, Mayflower, militia, Myles Standish, Natural Law, oppression, Parliament, peace, Pilgrims, Plymouth, police, regulars, rights, Rome, Second Amendment, Sir. William Blackstone, standing army, Statute of Einchester, The People, tyranny, War, weapons

In my last column in this series I ended by reviewing some of the ancient British customs regarding arms and defense.  This article concerns those more readily available but still usually uncited English legal traditions dating to several hundred years before the American Revolution.  Again, as with purely ancient intellectuals, those who preserved and lived this period of history regarded the rights of defense, self-preservation, and, necessarily, arms to be the stuff of natural law.  They regarded these rights as to defense from criminals, defense against foreign threats, and, particularly, as to thwarting domestic tyranny.

This common law tradition was already set in writing in the twelfth and thirteenth centuries with the Assize of Arms (1181) and the Magna Carta (Great Charter, 1215).  In 1285 the Statute of Winchester mandates that all citizens provide arms, according to their respective abilities, for militia usage.  Through this period and until the seventeenth century, England had little in the way of a professional military or police force.  Citizens were expected to do their part in order to fulfill both roles.  This meant that the people were expected (required even) to keep and, at times, bears their own arms. 

Two calamitous events during the seventeenth century dramatically effected the legal tradition: the Civil War of 1642 and the Glorious Revolution in 1688.  While the former is often painted as a power struggle and the latter a religious conflict, both were concerned foremost with who would control the power of the Crown.  In 1689, these and other events, lead to the English Bill of Rights.  The Bill was fully known as “An Act Declaring the Rights and Liberties of the Subject and Settling the Succession of the Crown;” in light of the recent religious (power) struggles it was riddled with references to Protestants and Catholics, which I will disregard here as unnecessary.

Very similar in nature to the American Declaration of Independence, the Bill lists a litany of charges against the late King James, II.  Among these were the following: “[R]aising and keeping a standing army within this kingdom in time of peace without consent of Parliament, and quartering soldiers contrary to law;” and “[C]ausing several good subjects … to be disarmed … contrary to law.”

Accordingly, the Lords assembled at Westminster declared certain rights and liberties as inviolable.  Two of these addressed the above problems: “That the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law;” and “That the subjects … may have arms for their defence suitable to their conditions and as allowed by law.” 

English_Bill_of_Rights_of_1689_(middle)

(English Bill of Rights.  Google.)

The Reader will recall that standing armies were a feared tool of tyranny during and after the American Revolution and also as far back as the days of the Roman Republic.  The presumed method for national defense (against all agents of evil) was a heavily armed citizenry which could assemble as needed in the form of a militia.  The seventeenth century also saw increased professionalism and modernization within the English militia.  This, in turn, partly gave way to the ensuing establishment of a permanent “Redcoat” army as the Kingdom gradually assumed the role of a major world Empire.

As we well know, part of that Empire was based here, in North America, in the territory which eventually became the United States.  Those earliest parts (colonies) were first established at Jamestown in 1607 and at Plymouth in 1620.  These had been preceded by the lost/abandoned colonies of Popham (Maine) in 1607 and Roanoke in 1585. 

Jamestown was the site of numerous battles and all out wars fought between the English and the native indians (Chesapeake).  It was the birthplace of the modern state of Virginia.  In 1691 Plymouth Colony merged with The Massachusetts Bay Colony in what is now modern Massachusetts, all being part of the greater Dominion of New England. 

Plymouth, from the very start was a model citizen militia society.  While a few students today are still aware of the Pilgrims and their Atlantic crossing aboard the Mayflower, fewer still are knowledgable as to the martial force necessary to carve out the new world.  The Mayflower’s first stop was at Provincetown Harbor in November of 1620.  Desiring a better location, and to take advantage of the hospitable New England winter, they later removed to Plymouth at the end of December.  Most remained aboard ship while a team of men worked during the day to raise a village from the ground.  Twenty armed men were left ashore every night to prevent marauding.  These men were average citizens who provided their own weapons; 911 was not an available option.

Early relations with the local indians were mixed at best.  As more and more colonists arrived the indians perceived the impending loss of their lands and many became hostile.  Myles Standish was a trained military officer and was placed in charge of security in the new colony.  Many view him as somewhat of a hot head.  At any rate he was forced to organize militias from among Englishmen in order to repel attacks by natives.  “Major” wars erupted in 1637 and 1675.  Each time the militia was sent forth to battle, not any group of regular troops.  It was by the force of common people bearing arms that America was crafted from the central-eastern part of the continent. 

militia

(Early Militia.  Google.)

Regular military units were called in during the next century first to assist and bolster the militias against common enemies (the French) and, later, to do battle with the militia.  This latter action contributed greatly to the Founders’ desire for a continued militia force instead of a full-time army in young America.  The early Americans were also governed in their views by the pre-existing English law and several legal commentators.

Perhaps the greatest commentator of his time regarding natural defense, along with natural law and the civil laws of England in general was Sir. William Blackstone (1723 -1780).  Blackstone was an attorney and politician who published from 1765 – 1769 the Commentaries on the Laws of England, a classic still refered to and cited by the law. 

Blackstone’s commentary on defense and other matters, generally, has resonance even today.  He famously wrote: “It is better that ten guilty persons escape than one innocent suffer.”  In modern, fading America, the forces of anti-self-defense gun control stupidly prefer to disarm any and all persons, leaving them to suffer whatever fate criminals have in store for them, than to see a tiny minority of deranged persons have the possibility of committing crimes.  All the more stupid is the abundant evidence that such an approach leads only to suffering innocents concurrent with rampant criminal behavior.  Defiance of natural law is as successful as defiance of gravity or physics.

Chapter One, Book One of Blackstone’s treatise is entitled: On the ABSOLUTE Rights of Individuals (emphasis added).  The final absolute right of individuals set forth therein is “that of having arms for their defense.”  Blackstone called this right “a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.”

Blackstone went into further detail, describing the various remedies available to the people in cases of tyranny: first, use of the courts; second, petitions to the King and to Parliament; and finally, when all else fails, having and using their arms to repel tyranny.

At last we draw near to that time when the American colonists repelled the tyranny of the mother country.  In my next segment I will discuss the traditions regarding defense and arms in America before the introduction of the Second Amendment.  As with their ancient predecessors, these traditions echoe still in our modern world.

Natural Origins of Self-Defense

21 Thursday Mar 2013

Posted by perrinlovett in Legal/Political Columns

≈ 2 Comments

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10 Commandments, 11th Commandment, aggressor, American, Aristotle, banksters, Bible, Catechism, Catholic Church, Cato, Christ, Christians, Chuck Baldwin, Cicero, civil government, Codex Justinianus, Confucius, Constitution, criminal, David Kopel, Declaration of Human Rights, Declaration of Independence, duty, Eastern, Exodus, God, government, Hitler, Hobbes, Jesus, John, John Locke, justice, King George III, law, leviathan, Liberty, man, Matthew, Michael Grant, money-lenders, murder, Natural Law, Nicomachean Ethics, NRA, On Duties, oppression, Paul, Peter, Plato, political science, political theory, Pope John Paul II, Proverbs, religion, rights, Roman Empire, Roman Law, Roman Republic, Romans, Saint Thomas Aquinas, Second Amendment, self-defense, society, Summa Theologica, sword, The People, The Republic, Timothy, tyranny, U.N., victim, vigilante, weapons, Western

This is the first in a new series, an expansion of my both my Natural Law column and Second Amendment and related columns.  Here, I briefly examine the ancient and eternal theories behind the basic rights which gave rise to the doctrine enshrined in the Second Amendment.

Legal practitioners and law and political science scholars, along with the general public, many politicians, and the media, often make the common mistake of looking only to the text of the Constitution (State or federal) or recent court cases in order to gain perspective into the meaning and/or application of the Second Amendment (and related State protections).  While government protection of our rights is vital (the only reason for government), rights do not come from government.

My examination here is theoretic in nature and, thus, seeks out existential sources which provide both definition and supporting argumentative and empirical evidence which are fixed throughout history and across all geographic areas.  Of course, as my ultimate view is towards the American experience, I will pay closer attention to sources from Western civilization.

The Bible is replete with approval of self-defense.  “If anyone does not provide for his relatives, and especially for members of his household, he has denied the faith and is worse than an unbeliever.”  1 Timothy 5:8.  This would seem to encompass the responsibility to keep one’s family safe to the extent possible.  “If a thief is found breaking in and is struck so that he dies, there shall be no bloodguilt for him, but if the sun has risen on him, there shall be bloodguilt for him. He shall surely pay. If he has nothing, then he shall be sold for his theft.”  Exodus 22:2-3.  This provision is the basis for the common-law doctrine against burglary, originally extended to night-time attacks.  The matter of daylight adds an interesting perspective.  Again, this passage addresses a thief, not a would-be murderer of rapist.  It is divine commentary on the value of human life over mere possessions when an opportunity exists to examine the intent of a criminal.  While it is not a prohibition against using force to deter a thief, the provision indicates the Lord’s wish that force not exceed the attendant circumstantial need.

Paul continues this theme of limited aggression in Romans 12:19: “Beloved, never avenge yourselves, but leave it to the wrath of God, for it is written, ‘Vengeance is mine, I will repay, says the Lord.'”  Again, God does not seem opposed to immediate use of force to deter violence but, once danger has passed, he commands that we leave judgment to him.  This is backed by the Old Testament: “Do not say, ‘I will repay evil’; wait for the Lord, and he will deliver you.”  Proverbs 20:22.  Again, for Christians, after the fact of a crime, the matter is God’s to handle.  This is the basis for a general prohibition against vigilante justice.

In Romans 13, often mis-cited as a justification for any and all government action being divine, Paul extolls the virtues of political agencies instituted in God’s Name.  When such an entity exists, then it has God’s authority to pursue prosecution of criminal matters.  I refuse to accept that this concept applies to all governments – I doubt God approved of Hitler’s action, for instance.  Rev. Chuck Baldwin, http://chuckbaldwinlive.com/home/, has extensively commented on this subject – http://www.romans13truth.com/.

Jesus Christ, himself, tacitly endorsed armed defense: “And let the one who has no sword sell his cloak and buy one.”  Luke 22:36.  I say “tacitly” because of the caveats Jesus placed on the use of force, essentially limiting it to only urgent circumstances.  Christ urged us to “turn the other cheek” when possible.  Matthew 5:39.  He also admonished Peter to sheath his sword while repairing the injure Peter had inflicted with his sword.  John 18:11.  Jesus, while defending the 10 Commandments, issued an 11th: “love one another.”  John 13:34.  The Son’s words places strict constraints on the Father’s allowance of the use of force.  It does not foreclose the concept.

JESUS-620_1587358a

(The ultimate Defender.  Google.)

Jesus only once resorted to the use of force, personally.  When He discovered the money-changers (the banksters of their time) abusing the Holiness of the Temple, Jesus violently drove them away.  John 2:15.  This underscores the possibility of defense as an immediate solution, without resort to formal authority or the eventual actions of the Lord.  The Church has formally detailed both the right to such defense as well as the moral duty of such action in need.  “Legitimate defense can be not only a right but a grave duty for one who is responsible for the lives of others. The defense of the common good requires that an unjust aggressor be rendered unable to cause harm.”  Catechism of the Catholic Church (“CCC”): 2265 (emphasis added)(see also CCC: 1909).

The Church also commands dignity be afforded to the human body, generally: “This dignity entails the demand that he should treat with respect his own body, but also the body of every other person, especially the suffering”  CCC: 1004.  While this backs the general prohibition against unlawfully harming others, it also reminds the Believer to respect even his enemy and attempt to limit his forcible response to criminal activity as far as possible to minimize harm.

“… [I]n the case of legitimate defence, in which the right to protect one’s own life and the duty not to harm someone else’s life are difficult to reconcile in practice. Certainly, the intrinsic value of life and the duty to love oneself no less than others are the basis of a true right to self-defence. The demanding commandment of love of neighbour, set forth in the Old Testament and confirmed by Jesus, itself presupposes love of oneself as the basis of comparison: ‘You shall love your neighbour as yourself’ (Mk 12:31). Consequently, no one can renounce the right to self-defence out of lack of love for life or for self.”  Pope John Paul II, Encyclical Letter Evangeliun Vitae (The Gospel of Life), 1995.

The eminent scholar, David Kopel, has documented the general agreement among Eastern Religions along these ideas.  In his review of Confucianism, Taoism, Hinduism, Sikhism, Jainism, and Buddhism, Kopel explodes common myths that these religions do not allow for proper use of self-defense.  David B. Kopel. “Self-Defense in Asian Religions” Liberty Law Review 2 (2007): 79, 80-81 (http://works.bepress.com/david_kopel/20).

Kopel’s expose is excellent.  He also touches on the Eastern version of Baldwin’s critique of Romans 13: “Although Confucianism, like most other religions, has been used by tyrants to claim that revolution is immoral, Confucius himself ordered a revolution against an oppressive regime.”  Id, at 163.  Only the “religion” of the State would decree that the government is above the Natural Law.

Commenting on Exudus 2, above, Saint Thomas Aquinas said, “it is much more lawful to defend one’s life than one’s house. Therefore neither is a man guilty of murder if he kills another in defense of his own life.”  Aquinas, Summa Theologica.

“If a man, in self-defense, uses more than necessary violence, it will be unlawful: whereas if he repel force with moderation his defense will be lawful, because according to the jurists, ‘it is lawful to repel force by force, provided one does not exceed the limits of a blameless defense.’ Nor is it necessary for salvation that a man omit the act of moderate self-defense in order to avoid killing the other man, since one is bound to take more care of one’s life than of another’s.”  Id.

Plato noted that when one acts in true self-defense, taken as a natural right, one may actually do the criminal perpetrator (in addition to the victim and society) a service: if the criminal survives, he may reflect on his wrongdoing positively.  Plato, The Republic, The Problem of Justice.  Plato’s great student, Aristotle, agreed.  Aristotle noted that a true case of self-defense is not necessarily a voluntary action.  Thus, any suffering from the act of defense may be attributed to the aggressor and not the defender.  Aristotle, Nicomachean Ethics.

The possession of weapons and their defensive usage, though regulated, was allowed in both the Roman Republic and the Empire. “We grant to all persons the unrestricted power to defend themselves, so that it is proper to subject anyone, whether a private person or a solider … to immediate punishment in accordance with the authority granted to all [up to, and including, death, if warranted].”  Codex Justinianus 3.27.1.  The Romans regarded the right to use weaponry in defense as implicit to the right itself.

The mighty Cicero opined: “There exists a law, not written down anywhere, but inborn in our hearts; a law which comes to us not by training or custom or reading but by derivation and absorption and adoption from nature itself; a law which has come to us not from theory but from practice, not by instruction but by natural intuition. I refer to the law which lays it down that, if our lives are endangered by plots or violence or armed robbers or enemies, any and every method of protecting ourselves is morally right.” Cicero, “In Defence of Titus Annus Milo,” Selected Speeches of Cicero, Michael Grant translation, 1969.  Again, the esteemed David Kopel gives excellent analysis to this ancient Natural Law position in The Sword and the Tome, America’s 1st Freedom, NRA, 2009.

Cicero’s titanic predecessor, the black-robed Cato, made an interesting analogy along the lines of Jesus’s act of retribution noted above (as noted by Cicero himself): Cato was asked by an ambitious Roman, “What is the most profitable about property?”  Cato answered, “To raise cattle with great success.”   The young man then asked, “What is the second most profitable?”  Cato answered, “Raising cattle with moderate success.”  The inquirer pressed again, “The third most profitable?”  “Raising cattle with little success.”  Finally, the young man cut to his presupposed profession, “How about money-lending?”  Cato answered (somewhat in advance of Jesus), “How about murder?”  Cicero, On Duties.

I by no means equate money-lending or banking with murder but it appears the subject was considered by multiple ancient sources.  It seems the evil of the banksters in as eternal as natural law.  Defense against the predation of this wicked class may be something to consider.

Later political theorists expounded the virtue and necessity of self-defense.  John Locke described self-defense as the first among Natural Rights.  Locke, Second Essay on Civil Government.  Hobbes concurred in this assertion, regardless of the state of any society.  Hobbes, Leviathan, 1651.  Even the craven and generally useless United Nations begrudgingly attempted to acknowledge this fundamental truth: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation.  Everyone has the right to the protection of the law against such interference or attacks.”  Universal Declaration of Human Rights, U.N. General Assembly, Article 12, December 10, 1948.

In the earliest American tradition, we find acknowledgment of the Natural Law (before the adoption of the Second Amendment).  The Declaration of Independence (1776) begins: “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” (Emphasis added).  The Declaration then enumerates the crimes of King George, among them many of which might be defended against under the doctrine explained herein.

sword

(In case of emergency only.  Google.)

Again, self-defense is a God-given, eternal right.  It is also a duty, one to be exercised only in dire need and with a grave sense of responsibility.  As with all matters of Natural Law, man-made legislation must attempt as closely as humanly possible to approximate the divine purposes of the Law.  In the next installment of this series, I intend to examine more ancient legislation regarding weapons and self-defense, specifically Roman Law.

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?

Interposition, Nullification, and Secession

25 Monday Feb 2013

Posted by perrinlovett in Uncategorized

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Last year I started this humble blog with a short column on the unGodly ObamaCare decision from the Supreme Court, https://perrinlovett.wordpress.com/2012/06/28/the-shared-responsibility-tax-obamacare-a-hit-with-the-supremes-4/.  ObamaCare is not about healthcare for anyone.  It is merely an Insurance Company welfare scheme with taxes that no-one knew were taxes (not even Obama) and bankruptcy-inducing mandates. 

At the end of that early missive I promised to cover possible solutions to the mounting problem of federal tyranny.  Specifically, I named interposition, nullification, and secession as possibilities.  Let’s talk about those now, briefly.

Well, first let’s see how the Republicans did with reversing the law as they boasted they would.  I recall some GOPer saying they would overturn the nightmarish law before the Supremes even got to rule on it.  Didn’t happen.  After the ruling they said they would eliminate the massive tax act before their chosen man, Mittens Romney, the founder of the ObamaCare School of Medicine, won the election.  None of that happened either.  With the nation staring down the barrel of a potentially economy-wrecking gun, they said they would stop the law before it took effect on January 1st of this year.  Having proven themselves to be lying, delusional idiots, we can write off the buffoons of the Elaphantitis party.

Back to my proposals – I’ll take them in the order I first set forth, as that seems to be the hierarchy from least to most extreme.

Interposition

Interposition is a process whereby a State of the American Union declares an Act of Congress or some other federal action to be UnConstitutional and positions itself as a shield between the feds and the citizens of the State.  Wikipedia says that the federal courts have held this an illegitimate theory and that only they have the power of Constitutional review – “Judicial Review.”  See: http://en.wikipedia.org/wiki/Interposition.  Wiki doesn’t mention it by name, but the theory of Judicial Review originated, federally speaking, in the case of Marbury v. Madison, 5 U.S. 137 (1803).   Maybe you’ve heard of this landmark case, students of “Constitutional Law” are taught to revere it.  I was never impressed. 

First, this was one of a shady series of early Supreme Court cases concerning personal profits unfit for court review at all.  Second, if this case did deserve formal investigation and resolution, then such should have been undertaken by the political branches whom the matter concerned anyway.  Third, and most importantly, judicial review by the federal courts is a legal fiction.  Nowhere in the Constitution is the right granted the courts to rule so authoritatively on our laws.  Had the Framers intended such power, they would have written it in; several State Constitutions do grant this power to State Courts (Georgia, for example).

I do not withhold the ability of any court to say a law is UnConstitutional.  Courts should point such out when discovered.  In fact, any branch may make that determination.  President Bush, the Dimmer, said that the McCain-Feingold Campaign Finance law was UnConstitutional, then signed it anyway.  Before that, obviously, Congress had deliberated on the law and must have sensed its illegality.  Bush remarked that the Supreme Court would have to make the ultimate determination.  They did.  Ironically, the Court essentially said (and rightly) the law concerned only the political branches and since both had approved the measure, they would too out of deference.  I had an outrageously humorous “discussion” about this fiasco with a political celebrity in 2004; I’ll relate that in a future post.  This was a case of government gone wild.  Of the three branches, law-making is the art of Congress; correcting bad laws is also.

Anyone who can read and think can declare a law within or without the bounds of the Constitution.  I do it all the time.  However, my power of enforcement is rather weak to say the least.  The theory of interposition, and that of nullification, comes from the ability of the States to so declare a law.  Their power is greater than mine and their authority is a bit more grounded than that of the Courts.  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  U.S. Const., Amendment 10.  UnConstitutional laws are those based in authority which is not among those very few expressly Constitutionally delegated powers of the national government ,and thus, are within the purview of the States to affect.  The Tenth Amendment’s reference to “the people” is as fuzzy a concept as anything else in man’s law.  Ultimately, under our form of republican government, the people have the final say on authority as exercised by their voting.  The people prove time and again to be useless guardians of their own liberties.

Interposition was made famous long ago by the Virginia and Kentucky Resolutions (1798), which declared the States’ ability to invalidate federal law.  The practice was used to various effect in the 1800’s.  Times have changed dramatically (for the worse) since that Century, with the States giving away a great deal of their former power.  There was also the matter of the war between the States which decided by force and murder, rather than by law, some of these issues. 

Nullification

Nullification is essentially Interposition but with an added declaration by a State or States they will not enforce a federal law or allow enforcement within their territory.  This theory was set forth also by the afore-noted Resolutions.  It has been erroneously dismissed by the courts.  And, it would seem to reside in a previous time.  The theory has raised its head recently though, as it does from time to time.  A few States have begun to void federal laws in principle at least.  Montana, for example, has decided that certain federal firearms laws do not apply within the Montana state lines.  It remains to be seen whether Montana or other modern States will actually take any action necessary to give life to their declarations.

In the old days, States did just that.  The 19th Century was repeat with State and local agents boldly denying the federal government on certain matters.  When a federal agent or officer appeared to enforce a particular objectionable action, the locals would run the fellow out of town on a rail, literally sometimes.  A great read on the subject is Thomas Woods’s Nullification (2010), http://www.amazon.com/Nullification-Resist-Federal-Tyranny-Century/dp/1596981490. 

Again, with the demise of State power and authority in general (see the 16th and 17th Amendments, etc.) the plausibility of nullification seems a dim prospect. 

Secession

Dimmer still, is the ultimate practice of State dissent.  The original 13 colonies of England, once they had declared their independence from the King, became 13 independent nations.  They joined together to fight the Revolutionary War and then entered into a Federation for mutual benefit.  A federation is a group of sovereign entities which come together for some purpose; they remain sovereign.  The Constitution changed none of this.  No language therein makes the federal union permanent and eternally binding upon the member States.

Should a State find itself at unacceptable odds with the central government, it has the power to dissolve its connections and become a completely separate nation again.  Several State assemblies expressly said so when they ratified the Constitution.  This is in complete keeping with the spirit of the Declaration of Independence, just substitute U.S.A. for King George, III. 

Again, and again and again, the States have not only given up power to Washington over the years, they have also become somewhat dependent on D.C. and tend to exhibit a slavish loyalty thereto.  This all renders the prospect of a State succeeding in the 21st Century remote.  There are secessionist movements in some States, like the Free Vermont Republic.  The FVR even has its own flag, but little chance of success. 

There is also the specter of Mr. Lincoln’s illegal war.  The war decided nothing formally or legally.  Wars are not rational undertaking, just pure contests of military power.  Since 1865 the several States have all but abandoned their military power while Washington has assembled the most awesome and dreaded arsenal in the history of mankind.  While secession remains a perfectly legal option, the odds of success do not favor the States.

Where We Are

In today’s political climate none of these three solutions are likely to receive formal discussion by the several States, let alone action.  Deprived of legal and political solutions, what then are we to do? 

Some people with means are beginning to leave the United States for smaller, freer countries.  I do not begrudge them their decisions.  However, I do not like the idea of being run out of my homeland and into a foreign country where, as history dictates, anything can and will happen.  In a way, I would rather stay and face the devil I know here.

There is always the ability of the States or of Congress to call for a new Constitutional Amendment or even a Convention wherein objectionable laws might be remedied.  Amendments are hard to pass these days.  It’s hard to get Congress or the legislature of any State to act productively or intelligently.  Honestly, the idea of a new Constitutional Convention scares me.  While one could hypothetically end with great advances in Liberty, such as returning to the Articles of Confederation or just eliminating the national government completely, I fear, given the weakness of the people and their representatives, we could end up with something far worse.  Imagine 1984, Farenheit 451, Nazi Germany and the old Soviet Union all rolled into one!

Every two years or so the citizens of the States have the opportunity to turn out at least a third of the federal government’s elected morons.  The power to change the government lies with the people by their dismissing representatives who do not do their bidding.  The people must not be aware of this authority or else, they must approve of their government as is.  Options grow thin.

Time will eventually change everything.  5,000 years from now most people living won’t remember the United States.  Given the self-destructive tendencies of our government, it is likely we need not wait that long.  Either way, awaiting the inevitable collapse of leviathan, like expectations of the end of days, is tedious at best.

I’ll see if I can come up with something else more actionable.  You work on it too.

Posse Comitatus

20 Wednesday Feb 2013

Posted by perrinlovett in Uncategorized

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I love follow-up stories.  The other day I did a piece about military drones killing Americans and mentioned the Posse Comitatus Act as a possible solution.  I said I’d have more to say about the Act soon.  Here it is:

On June 18th of this year we will all celebrate the 135th birthday of the Posse Comitatus Act, 18 U.S.C. § 1385.  Happy Birthday, Pos-Com!!!  Maybe you do not share my zeal?  Perhaps you have never heard of this great Act or maybe you don’t know what it means.  Allow me to educate you.  The Posse Comitatus Act means absolutely nothing.  Those who will celebrate the creation of this dead letter are those who should be prosecuted under it – namely those members of the various executive branches of the Federal and state governments. 

“18 U.S.C. § 1385” is a legal citation to the United States Code, referring to Section 1385 of Title 18.  Title 18 is the federal criminal code thus, Posse Comitatus creates a criminal offense.  Like 99.99% of federal criminal laws it only sets forth a felony offense and punishment.  Unlike most federal crimes though, the Act carries a lower than usual maximum sentence and it HAS NEVER BEEN PROSECUTED!

In law school I wrote a lengthy research paper on the Act – Posse Comitatus – written for my advanced Constitutional Decision-Making seminar taught by the very Honorable Professor John B. Anderson.  Anderson represented the people of Illinois’s 16th Congressional District for twenty years.  You may recall his 1980 independent run for President against Jimmy Carter and Ronald Reagan.  You may also recall his book The American Economy We Need from 1984.

I consider Professor (as I always call him) Anderson a good friend.  Once he and his wife, Keke, graciously received my wife and I at their beautiful home on a visit to Washington.  However, back when I initially presented my paper proposal to him he seemed a bit skeptical.  I suspect that, at the time, even he had not heard of the Act.  As the semester progressed though our Nation’s Capital came under the terror of the Beltway snipers.  Anderson called me one day and said he had just heard a news report on the radio about the snipers, the hunt therefore, and … the Posse Comitatus Act.  He was hooked and I received an “A” for my efforts. 

Over the ensuing decade I have ripped the paper apart, added to it, and conducted additional research on the Act and many related matters.  In the not to distant future (later in 2013 perhaps) I look forward to publishing a book based in part on my original thesis.  The book is tentatively called A Well Regulated Militia (Amazon/CreateSpace/Kindle) and will relate to all things Second Amendment, Militia, and tyranny prevention (and reversal).  This would include, for reasons cited herein, below, the Pose Comitatus Act.  This work will be far more substantial than The Time Given (soon, I promise), though that treatise is no less important to the scope of human happiness than anything else I write.

I hope the book-buying public also gives my work an “A” and I experience mass market financial success.  Remember, you need not actually read a book; what counts is buying it (multiple copies if possible).  I have limited the many notes and many of the citations which accompanied my old paper and which will inevitably appear in the book.  For the book I intend to clean them up, eliminate them if possible, or relegate them to the seldom viewed “Notes” section at the back. I hear notes, like charts and graphs, drive down sales.  Pictures have been known to help though:

Minutemen-1776

(Our Posse.  Source: Google images).

The history of the Act is a great part of the history of the 19th century in America.  As you may recall in the middle of that century we had a rather unpleasant incident which resulted in the deaths of about 600,000 men.  I refuse to call it The Civil War because it wasn’t.  A “civil war” is where two or more factions fight for control of a central government.  In our case, the Southerners wanted to be free of Washington, not in control of it.  It also wasn’t a declared war (I’ve had debates with other attorneys about what that meant). My northern friends often ask me my opinions about the war.  I can sum the up easily: it was as deadly as it was unnecessary. 

I am in the minority of honest legal historians who believe that the southern states had every authority to seceed from the union.  I think any state today has that same authority.  Nothing in the Constitution compels eternal membership and several states expressly reserved the ability to withdraw at any time.  They asserted a Natural Law position which, being universal, would seem to apply to even those states which joined without such reservation. 

Back in the Nineteenth Century, America was plagued with major problems – debt, financial scams, economic warfare, lying politicians, and, of course, slavery.  Come to think of it, the more things change, the more they stay the same.

You may recall from history that once the “war” was over and the Union reunited, a probationary period was imposed on the southern states.  This period was known as Reconstruction.  It was rank with abuse.  In numerous cases the legislatures of southern states and other institutions were invaded or harassed by regular army troops.  The Posse Comitatus Act was passed partly in  response to these alarming events. 

“Posse Comitatus” is a Latin phrase roughly meaning “power of the county.”  “Posse” in latin is a verb which means to “be able” or to “have power”.  “Comitatus” means “company” or “retinue.”  In other words, it refers to the local militia – those men available for service in times of crisis.   An aside, suited for a future article: “militia” does not correlate with the “National Guard.” 

The concept of the militia predates and was well established at the time of our nation’s founding.  Congress still acknowledges the militia separately from the Guard; the Guard and the militia are differentiated under Titles 10 and 32 of the U.S. Code.  Every State maintains a militia (at least in the law books) separate from the Guard.  In Georgia, the State militia is officially the Georgia State Defense Force.  See: O.C.G.A. § 38-2-23, et seq. 

The Guard was instituted in the early twentieth century and is essentially a back-up force for the regular national army – it is sometimes on loan to the several States.  Enough on that for now.

The Pose Comitatus Act reads, in its entirety: “Whoever, except in cases and circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”   18 U.S.C. § 1385.   

The Act (let’s call it the “PCA” from here out) originally started out as an amendment to the Army Appropriations Bill (H.R. 4867) for the fiscal year ending in 1879.  This would be during the forty-fifth congress, second session, in 1878.  The initial mention of the concept of the PCA as an amendment came from Rep. William Kimmel of Maryland on May 20, 1878.  Kimmel was cut off in mid speech by time constraints; however, he successfully laid the framework for the PCA amendment.  See: 7 Cong. Rec. 3586. 

H.R. 4867, PCA and all, eventually became law on June 18, 1878, hence the pending birthday celebration.  See: 7 Cong. Rec. 4686.  Some scholars have speculated the PCA was enacted only to end the use of he army in supervising southern elections and legislative sessions.  Earlier I said the PCA was partly enacted for the reasons said scholars state.  I, however, dug deep into Congressional history (boy, what fun) and found a more complicated picture. 

The roots behind the theory of Posse Comitatus go much deeper and further back in history than the American Republic.  The concept was present at the end of the Roman Republic, more than twenty centuries ago.  Gauis Curio attempted to disarm Caesar’s returning army in order to preserve domestic tranquility.  See: Caesar, The Gallic War, Loeb Classical Library, 587 (Harvard U. Press, 2000).  As you know, Caesar “crossed the Rubicon” and the Empire shortly thereafter commenced.

In early America the fear of armed military forces present in everyday life was of grave concern to our Founding Fathers.  Beginning the Declaration of Independence with a nod to Natural Law, Thomas Jefferson listed the first grievance against King George that “He has kept among us, in times of peace, standing armies without the consent of our legislature. … He has affected to render the military independent of and superior to the civil power.”  Dec. Independence, para. 13 – 14 (1776).  Jefferson listed various other similar complaints against the King.

Jefferson was not alone in his fear of standing armies, provisions against which found their way into both the Articles of Confederation and the Constitution (remember the Constitution?).  In The Federalist Papers, Alexander Hamilton, himself not the greatest proponent of freedom, railed against the standing army as “unsupported by any precise or intelligible designations of reasons.”  The Federalist, No. 27 (Hamilton).   

The Forty-Fifth Congress considered several issues in developing the PCA: a standing army versus a militia; limited central government; and, the proper (if any) uses for an army within the confines of the territory of the Republic.  A sub-issue of concern at the end of the 19th Century was the potential rise of communism, which Congress greatly and rightly feared.  Karl Marx was still alive at the time of the PCA debate, his works on “economics” relatively fresh off the presses.  Rep. Abram S. Hewitt of New York commented on the subject: “If you want to fan communism, increase your standing army and you will have enough of it.”  7 Cong. Rec. H. 3538 (1878). 

Rep. Kimmel stated the then current use of the army in domestic affairs was a direct “violation of the Constitution.”  He cited numerous examples of federal troops aiding tax agents, governors, sheriffs, and district attorneys in Georgia, Kentucky, Michigan, and New York.  7 Cong. Rec. 3580 – 3582.  Again, it is popularly said that the PCA was the result of Southern states fed up with the misuse of federal soldiers during elections. Most of Kimmel’s examples were responses to tax collections and labor disputes.  In 1878, as today, New York and Michigan are generally regarded as northern states.  Other Representatives related similar troubles all across the country.  The problem was national in scope.

In the Senate the debate continued.  Senator Benjamin Hill of Georgia remarked, “A posse comitatus is a wholly different thing from an army; it is different in every respect from an army…”  7 Cong. Rec. 4246.  He continued, “it never was lawful, it never shall be lawful, to employ the army as a posse comitatus until you destroy the distinction between civil power and the military power in this country.”  Id. 

As the PCA is a criminal law and given the federal Empire’s love of prosecuting any and everything, one would expect numerous cases under the PCA over the past century or so.  One would be mistaken.  There has never been one single case brought against anyone under the PCA.  This may be due to the fact that the most likely suspects are government officials.  They don’t like to go after their own.  Honor among thieves you know.

The closest semblance of judicial review of the PCA has been in the form of indirect rulings in cases involving other crimes.  Defendants have asserted, as a defense, an alleged violation of the PCA by government officials executing some duty (such as drug enforcement).  This defense universally fails.  I will not bore my audience with any particular cases, though they date from at least 1975 and continue into this Century.

Oddly, I, the great authority on this matter, was once threatened with the potential of facing a PCA violation!  Yes, yours truly, Perrin Lovett.  It all stemmed from one of those lovely anti-family law cases of which I have previously expounded: https://perrinlovett.wordpress.com/2013/02/09/anti-family-law/.  I believe it was a custody dispute. 

Anyway, the defendant was a member of the U.S. Army stationed at Camp Zama in Japan.  Thus, I was tasked with the trouble of perfecting International legal service of process which is not necessarily the easiest thing to do.  I decided to circumvent technicalities by having the defendant simply acknowledge he had received my petition.  Not having an exact address for him, I contacted several offices at the Camp in an attempt to solicit their help in the matter.  The Provost Marshall’s office quickly told me they could not assist with serving a civil lawsuit without running afoul of the PCA.  They actually said that; you know, from the history given here, this type of situation was not within the original intention of Congress.  I pointed out that I was not asking for such, just for friendly information.  As luck would have it, I located the defendant on my own and the case went forward.  As usual, no-one was happy.  Correction: I am happy to have avoided being the only PCA prosecution in history.

Back to reality.  There have been cases innumerable of the military becoming involved in civil law enforcement – from the “war” on drugs to the massacre at Waco, to the Wounded Knee massacre, to the hunt for the D.C. snipers, etcetera, ad nauseum.  Why then, have there been no criminal cases arising from the incidents?

The answer lies in the actions of both the Executive branch and, especially, with Congress.  Exception after exception to the PCA have been enacted over the long years.  Congress has all but rendered the PCA a dead letter to the point the Act is useless for its intended purpose.  

It is somewhat interesting that, having taken the teeth away, Congress has not fully repealed the PCA.  This may be because federal laws never die, they linger forever, used or not.  Amazingly, as recently as 2005, the 107th Congress reaffirmed the spirit of the PCA, literally, but not meaningfully.  “The Congress reaffirms the continued importance of …[the PCA] … and it is the sense of Congress that nothing in this Act [H.R. 5005 – creating the Department of Homeland Security] should be construed to alter the applicability of such section to any use of the Armed Forces as a posse comitatus to execute the laws.”  H.R. 5005 § 780(a) – (b). 

The Homeland Security debacle … Act … followed the Patriot Act and decades of “war” on drugs, crime, and your freedom.  Various National Defense Authorization Acts have followed.  The result has been the complete decimation of the PCA.  President Bush (No. 43) and his successor, Barack Obama, have made clear their intention to use the military whenever necessary, wherever needed, to keep us safe, of course.  Obama even claims he can use military weapons to kill without Due Process.  The protests against his claim are less than deafening.  I protest!

I have some suggestions for changes and improvements to restore the vitality of the PCA.  This is one of the few instances where you will ever hear me call for a new or continued statute.  In the name of freedom, Congress should amend the PCA first to kill all of the previous exemptions.  Second, they should specify that the law only applies to those members of the federal, state, or local governments who would dare to use federal military force to accomplish civil law enforcement of any kind; they could define a violation as an act of government employee-specific treason. 

The punishment could be expanded accordingly.  Perhaps the original punishment might be appropriate in minor cases.  Others, such as those which involve the mass killing of American citizens could be made capital felonies.  Congress has the Constitutional authority to also limit the review of any conviction from any court – including the Supreme Court; thus, when a high official (an attorney general for example) orders Army tanks to drive into a church and burn the worshippers within alive, that official could be convicted under the PCA and immediately hanged in public.  This might serve as a warning to future would-be tyrants. 

Again, this is only a suggestion.  I do not relish the idea of killing even to avenge killing.  I reconsider, reluctantly, when the dread act(s) have the potential of continuing against all of the free people.

This leads me back to my article on drones picking off the voting, tax-suffering public, https://perrinlovett.wordpress.com/2013/02/15/droning-on-and-on/.  A President, already forbidden to use military drones against domestic targets (his already unConstitutional Orders overridden by my proposed law) might think twice about defying the law if he knew the gallows awaited his defiance.

The issues raised herein may likely lead to other related articles.  All of which concern you and those you hold dear.  It is your freedom, security, and happiness that drives me to raise the alarm – the same alarm raised by the Founders and the forgotten members of the forty-fifth Congress.  Bless their wisdom and fore-sighted concern.

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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