Tag Archives: English common law

Jeff Sessions Goes All Common Law, All County Guardian

13 Tuesday Feb 2018

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Says the AG:

“I want to thank every sheriff in America. Since our founding, the independently elected sheriff has been the people’s protector, who keeps law enforcement close to and accountable to people through the elected process,” Sessions said in remarks at the National Sheriffs Association winter meeting, adding, “The office of sheriff is a critical part of the Anglo-American heritage of law enforcement.”

Interesting that he’s not going after the weed or re-explaining something to Congress.

Very interesting that such an innocuous phrase might generate fear of “nefarious meaning.”

Most interesting that a 1970’s television show theme had it right:

He has no fear,
he’s always here,
his morale stands alone.
A man of dreams,
who guards our things as if they were his own.
He walks the streets from early dawn,
he stands behind our laws.
Both big and small,
he bends them all,
who dares to fight his cause.

-Sheriff Lobo, Frankie Lane.

That was the way it was, the way it was supposed to be…

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Lobo.

New Hampshire Nullification

20 Monday Jun 2016

Posted by in Legal/Political Columns, News and Notes

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They are serious about “Live Free or Die”in the Granite State. A buddy of mine just bought a house there and I’m sure he will appreciate the following “leave me alone” news.

The New Hampshire House passed a bill that would make it the first state in the nation to require courts to inform juries of their right to vote not guilty when the verdict would produce an unjust result. This right, which all juries possess but may not be aware of, is called jury nullification. The bill is now awaiting approval in the Senate.

Yes, all juries in the United States possess the right and authority to nullify a law as it affects a particular defendant via a not guilty vote. Think of it as a vote of conscious. Here’s an example from a case that really happened. An underaged, teenage girl took some naughty selfies and sent them to a friend. Kids do stupid things like that. Governments do worse. The state where she lived (actually happened in multiple places) charged her with manufacturing and distributing child pornography – pictures of herself. The government even acknowledged her as both the suspect and the victim. This is near the absolute height of stupidity. A conviction would put such an innocent (if silly) girl on the sex offender registry, which is supposed to protect innocent (even silly) people from real predators. Supposed to. Really, it’s just another state scheme for power.

If such a stupid case ever made it to a jury, the jury could (regardless of the technicalities of the law) return a verdict of “not guilty” as a guilt verdict (even if correct under the law and by the facts) would be an injustice to the young girl – the victim also, remember.

The Free Thought story goes on:

Even if government has proved that someone is guilty under its law, a jury can let the person go free if it disagrees with the law and the punishment. This is one of the few ways in which citizens have power within the system to counter the irrational tendencies of centralized bureaucracy.

New Hampshire currently allows the defense “to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” However, the House bill would have judges explain this right to juries which, according to the Tenth Amendment Center, makes it “more likely that a juror will consider this option.”

Judges would be required to make the following statement:

“Even if you find the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case, a guilty verdict will yield an unjust result, and you may find the defendant not guilty.”

…

If the New Hampshire bill makes it through the Senate and past the governor, it will be an historic moment in the American justice system. The current legal system is hostile to the idea of jury nullification, with judges threatening “secret juries” and police defying injunctions by removing activists.

However, in past times, jury nullification was viewed as a primary and necessary function of juries. As the Cato Institute points out:

“You can’t find references to “jury nullification” around the time of the American Revolution. That’s because it was considered to be part and parcel of what a jury trial was all about. If jurors thought the government was treating someone unjustly, they could acquit and restore that person’s liberty. Jury trials were celebrated–and explicit provisions were put into the Constitution so that the government could not take them away.”

Perhaps New Hampshire can remind the nation that we are not bound by the dictates of government, and we still have the power to protect our fellow citizens from state-sanctioned injustice.

Openly hostile is putting it mildly. A few states indirectly dance around the issue. For instance, the Georgia Constitution expressly says juries are the judges of the facts and the law. However, in reality in the Peach State – as in most jurisdictions, the judge declares himself the arbiter of what the law is and how the law applies to a given case. Judges give “charges” on the law to a jury at the conclusion of evidence and arguments. Some, most charges are “pattern” and are given preemptively by the judge right out of a handbook (complied by other judges in conference). The parties can make special suggestions. But, in no case, will it be permitted to tell the jury they can find a defendant not guilty because they disagree with the law.

Judges put people in jail for contempt and even jury tampering for even trying to get the word out about nullification. That’s hostility in an attempt to preserve power. As CATO points out, this is part of the traditional system for juries. Not just in America and England but all the way back to Athens and Rome. The violent prevention of nullification knowledge is just another part of the near-terminal decline of the trial by jury.

republicbroadcasting.org.

New Hampshire is often in the vanguard of freedom fighting in the U.S.A. Let’s hope the Senate and Governor feel as strongly about decent legal tradition as the House did.

…well…

I did a little follow-up research and discovered that the Senate did not follow through. Instead, on or around May 5th they let the Bill (HB 1270) die a procedural death. Very noble of them. Perhaps more than a few members will suffer a similar electoral fate come November. Anyway, there’s always next session. Live free or nullify.

Reading The Law: The Ancient Alternative to Law School

07 Monday Dec 2015

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A few days ago I wrote a column about the trials and tribulations of a beautiful, talented young woman enrolled and embattled at the Moritz College of Law at THE Ohio State University. I’ve also written about my legal education.

Law schools have become a collection of expensive but houses where, if one can tolerate the boredom and foolishness, one is allowed the honor of applying for a state license to practice law. The courses studied in these schools bear little resemblance to the actual law. Graduation does not guarantee admittance to the Bar. Bar test preparation is left to the student once he graduates.

Many determined and intelligent students will succeed on their own merits. A few law schools do a fair job readying students for the profession; most are dismal in their attempts. Alan Watson, of whom I have sung praise before, is the preeminent expert on legal philosophy. He wrote a book, The Shame of American Legal Education, which should be required reading for any American giving serious thought to attending law school.

Watson decries the lack of intellectual rigor and dependence of the case method (religious study of court interpretation of the law) which plague American law colleges. He praises the system of his native Scotland where students attend school for a shorter period of time and actually learn both the letter of and the ideas behind the law. Following graduation the Scots apprentice under established barristers to round out their education and transition into the field.

It’s a far better approach than we Americans use. It is similar to our old system which we adopted from the British. They had adopted it from the Romans and the Greeks.

For ages attorneys were educated men who studied the law under the tutelage of a practicing attorney. A few had a short period of standardized class time at a college. This formal lecturing range from a few weeks to a year. Upon completion of the apprenticeship the budding lawyers were either certified by a local court or eligible to sit for Bar examination (if any) or they just started working on their own.

The institution was known as “reading the law.” Most of the greatest attorneys of history were produced this way. Their ranks include: Solon, Cato, Cicero, St. Thomas More, William Blackstone, Thomas Jefferson, John Adams, John Jay, Lysander Spooner, Abraham Lincoln, James Byrnes, and Robert Jackson. All of these men were accomplished attorneys. Some were titans of the field.

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Cato the Elder.

In America this was the standard of legal instruction from colonial times until the early 20th Century. The College of William and Mary was the first American school with formal law lectures. These were designed to enhance the student’s apprenticeship. Jefferson attended lectures at William and Mary.

Young men were encouraged to read the law, to understand theory and application:

If you are absolutely determined to make a lawyer of yourself the thing is more than half done already. It is a small matter whether you read with any one or not. I did not read with any one. Get the books and read and study them in their every feature, and that is the main thing. It is no consequence to be in a large town while you are reading. I read at New Salem, which never had three hundred people in it. The books and your capacity for understanding them are just the same in all places.

Always bear in mind that your own resolution to succeed is more important than any other one thing.

Abraham Lincoln, 1855

Things began to change in the late 1800s. It was then the newly formed American Bar Association began to lobby states to restrict licensing to those who had attended law schools. Later the ABA commenced its practice of certifying the schools. This cartel approach of command and control protected the monopoly of the existing bar members. The results, from a quality viewpoint, were mixed. Blackstones and Jeffersons are hard to come by these days.

The radical expansion of law school power coincided with the massive growth of government. Both resulted in the growth and increased complexity of the laws. As Cicero noted, more laws means less justice. Of course, justice had nothing to do with these trends. They were premised entirely on control and money.

Nonetheless a few states still adhere to the reading tradition although it is frowned upon. Those who stand to lose prestige and tuition frown a lot.

California, Maine, New York, Vermont, Virginia, and Washington still allow reading in place of law schooling. Each has its own standards and in some a period of law school attendance is required. Out of over 80,000 new lawyers minted in 2013, less than 100 read the law.

The surviving process of reading has been lauded of late by Business Insider and the New York Times. Both note the difficulties faced by a reader.

“The A.B.A. takes the position that the most appropriate process for becoming a lawyer should include obtaining a J.D. degree from a law school approved by the A.B.A. and passing a bar examination,” said Barry A. Currier, managing director of accreditation and legal education for the group.

Robert E. Glenn, president of the Virginia Board of Bar Examiners, was less circumspect. “It’s a cruel hoax,” he said of apprenticeships. “It’s such a waste of time for someone to spend three years in this program but not have anything at the end.”

NY Times.

Of course, anything but the cartel’s way is a hoax. The frowners frown. Never mind the vast number of students who drop out of law school or graduate but cannot pass the bar. At least they paid tuition.

A few organizations exist to perpetuate the old tradition. Sterling Education Services is one. “What if, instead of a traditional law school degree and six-figure debt, you could take the bar exam and achieve your goal through hands-on legal experience?” – Sterling. These groups offer study aids and seminars. They’re looking to cash in on the alternative. Then again, these are the exact same bar prep services law school graduates turn to immediately after law school.

Though frowned upon this ancient alternative is viable. If a lawyer reads the law in a reading state and passes that state’s bar, he can then apply in other states. It would certainly warrant examination by those considering the legal profession. Those who follow this path follow in the footsteps of giants.

Trial By Combat

27 Wednesday May 2015

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Not too long ago I wrote about my experiences with the American Jury system in the 21st Century.  It is broken.  End of story.  Any acquittal you read about is an anomaly – a celebration of truth and luck in a world gone wrong.  Juries are no longer the last check against tyranny they were intended to be in ancient Rome or Athens.

Most people plead guilty to criminal offenses.  Most of the rest elect to the convicted (not just tried) by a state appointed and employed Judge.  The small few who make it before a jury – not of their peers – are usually found guilty.  Everything goes the state’s way. Many celebrate this fact. I do not.  We were supposed to have due process and equality under the law.  This is especially important to the little person facing the endless resources of the government.  It is also, now, a fiction.  We have none of it.  Just convictions.

united-states-courthouse

(Temple of doom.  Google.)

The defendant in the Boston Bombing trial, Dzhokhar Tsarnaev, was convicted and sentenced to death.  His was one of the oddest trials I have ever heard of.  It lacked even the plausible credibility of some Soviet-era show trials.  In June Tsarnaev learns whether the judge will condemn him to die.  He surely will be executed.

If, indeed, he did commit the alleged terror attack, Tsarnaev deserves to die.  However, as I have noted before, there is amble evidence to suggest a government link to the plot. If the government is involved in any way, there is usually a plot participation.  This might not excuse Tsarvaev but it would implicate others.  It won’t though.  There was absolutely no mention or murmur of this in court on Tsarnaev’s account.  Alarmingly, there was no murmur at all from the defendant.  There was no defense whatsoever.

In a way the defense strategy made some sense.  They knew, as do I, there is no hope for honest truth or justice in an American court.  Accordingly, they adopted an approach which plead Tsarnaev guilty while attempting to shift the blame to the defendant’s dead brother.  The ultimate attempt was not to evade a conviction (a given) but, rather, to avoid the death penalty.  The approach did not work.

The government opened with a sympathetic case – no-one likes terror attacks on innocent people.  The defense then opened by acknowledging the crime and the defendant’s participation therein.  “Yeah, he did it. But…”  They closed the same way.

Then, the government called witnesses.  These were victims who had survived the attack.  They told the jury and court of their terrible injuries.  Terrible as they are, they do not establish, at all, any criminal culpability.  No mind – Tsarnaev had already admitted guilt. In most cases these statements of victims come at the very end of the trial – after guilt has been adjudicated.  They are usually used to determine what level of punishment is deserved of the convicted.  This case saw all phases conveniently wrapped into one show.  No challenge or examination at all was conducted on behalf of the accused.

I, as a defense attorney, could have lessened the blow of these witnesses but asking them if they had ever seen (in person) my client before.  None of them had.  They had no way to link Tsarnaev to the crime scene.

That tenuous link came from a video and pictorial collage presented by the government. Cameras are everywhere these days and there were numerous shots of the Tsarnaev brothers at the Marathon.  Nothing showed them setting off or planting the bombs. Then again, the defendant had already admitted his guilt.

No challenge came to this presentation.  There was equal evidence of former government employees – current “security” contractors at the event – with the same backpacks and in the same places as the accused.  The difference was that several (not presented) photos showed the brothers leaving with laden backpacks while the agents walk away unencumbered.  Nevermind.  Guilt admitted, remember.

The government presented weak findings as to how the alleged bombs were made.  A good munitions expert could have dissected these as ridiculous.  None did.  All evidence was submitted without protest.  There was then the matter of an alleged admission written on the walls of a hideout boat.  No objections.

Given what they were presented with the jury rightly found the defendant guilty.  He lost his gamble as to the jury’s recommendation of death.  That should have come as no surprise.  To the open-eyed and open-minded it should come as an alarm as to where the system has settled.

This is no system in which to place any faith of fairness.  The prosecution will get whatever it seeks in most cases.  Nothing will change.  There are efforts to reform the game but it is too far gone.  There is no public support for such efforts.  Thus, any alternative seems logical, if it be at all feasible.

Before I go further let me state that everyone is entitled to a defense at trial in cases of alleged criminal offense.  Ages ago several British soldiers were tried and acquitted in the Boston Massacre.  Their attorney believed in justice, no matter how unpopular the accused.  His name was John Adams.  You may have heard of him, he served as our second President.

There is an older, if more archaic, alternative to the jury system in criminal or civil cases.  You have never heard of it.  No American lawyers understand it nor would they encourage it.  The Courts will surely be averse to it though it has never been stricken from the codified law (like that matters anymore).  No law school will teach it.  No agent of the state would wish to face it.  No right-minded person would assert the alternative. But, it is there.

There is (or was) a thing called Trial by Combat.

Trial by combat (also wager of battle, trial by battle or judicial duel) was a method of Germanic law to settle accusations in the absence of witnesses or a confession in which two parties in dispute fought in single combat; the winner of the fight was proclaimed to be right. In essence, it was a judicially sanctioned duel. It remained in use throughout the European Middle Ages, gradually disappearing in the course of the 16th century.

Wikipedia (May 27, 2015).

trial-by-combat-granger

(Fighting it out.  Google.)

Wikipedia says this was a Germanic legal tradition, which is true.  However, the custom was known to many other ancient cultures.  Also, it continued into the somewhat modern age.

The defense continued in regular practice into the Seventeenth and even Eighteenth Centuries.  The accused or defendant would assert or demand his right. The prosecutor or plaintiff or a chosen champion would then join the accused in singular combat.  This was to the death or to a submission – usually death.  I cannot imagine too many district attorneys, police officers, or offended ex-wives going along, willingly, with such strategy. Then again, I cannot see most fat, lazy Americans demanding such a right let alone conducting such as trial.

In 1774 an attempt was made in Parliament, partly in response to the Boston Tea Party, to abolish the practice.  This and all other reform efforts failed.  No bill or law has ever rescinded the ancient right.  The right was in place, part of the English Common Law, when the American colonies declared independence from the King.  Thus, the right remained available to Americans.  Mostly, such spectacles took form in gentlemanly duels – outside of the courts.  Alexander Hamilton participated in one of these with fatal consequences.

Still, no state or Congress has ever formally repealed the practice.  The courts have not definitively ruled on it either.  This is the case in old England as well as in America.

As recently as 2002 a demand for trial by combat was made in Britain.  In Suffolk a man made the demand as his defense in an administrative hearing concerning the local DMV. The magistrates in charge, deeming, him deranged at best, ignored him and fined him a small sum for failing to register (or de-register) his motorcycle.  No appeal was made.

You would likely never assert this right as a defense or alternative course of trial.  Nor would I.  However, if facing severe criminal charges and punishment, trial by combat might mean the difference between prison and a mental hospital.  Which seems better to you?

If, though, you should succeed in joining a wager of arms, you may count yourself among the fortunate, even mythical, few.  In a federal criminal matter you may consider yourself Fingolfin doing battle with Melkor himself.  May the honor and victory be yours.

The Second Amendment

04 Monday Mar 2013

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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?