The United States Constitution

08 Friday Mar 2013

Posted by perrinlovett in Legal/Political Columns

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

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

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

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

(The Constitution. Federal Archives.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Second Amendment

04 Monday Mar 2013

Posted by perrinlovett in Legal/Political Columns

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

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

“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Second Amendment to the U.S. Constitution (1791)(entirety).

(Minutemen 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?

A Short History of Gun Control In America

02 Saturday Mar 2013

Posted by perrinlovett in Legal/Political Columns

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Guns have been in the news again and again lately. The guns I am writing about are the privately owned guns of our citizens. Sadly, these patriotic men and women have not glorified for the millions of lives they save every year, usually without firing a shot. Rather, the entire institution of gun-ownership has been demonized by the media and the lowlifes of the political class based on a tiny number of sensationalized murder cases. This phenomenon happens from time to time and is always accompanied by a call for more gun control.

Before I get to control and its history, I want to address the most dangerous guns in America and elsewhere – publically owned or government guns. These weapons pose a true threat to the health and security of our citizens and potentially pose a dire threat to our civil liberties and freedom. Governments throughout history have proven themselves to be the least trustworthy possessors of weaponry. In the 20th century alone governments murdered more than 200 million innocent victims with their military weapons. I cannot speak for the rest of the world, but in America we need to seriously confront this lethal problem.

The Founder’s were naturally distrustful of an armed government, particularly a standing government army. That is why they placed stringent restrictions on the army and, at the same time, embedded the right of the people to possess arms as a check against government tyranny. I am working on a series of columns along these lines which will compliment my previous article Posse Comitatus, https://perrinlovett.wordpress.com/2013/02/20/posse-comitatus/.

Ultimately, I will reach the conclusions that we need to abolish all control laws which are directed against private citizens, we need to return to the militia model of defense, we should abolish our standing armies (this is a rather unpopular idea, for all the wrong reasons), and we need to disband or disarm the most of the police forces in America. Those remaining law enforcement officers which might survive should return to their Natural Law function – protecting the rights of the people, as opposed to carrying out the edicts of the state. For now, I will concern myself with giving you a brief education about gun control in the United States.

Where did the idea of gun control come from? I’m not sure when and where it first originated, though I have an idea the concept has been around longer than firearms themselves. A few gun control advocates are earnestly interested in stopping crime and helping people. Most are not. Essentially, the majority of gun controllers are the same breed of would-be tyrants who have plagued mankind for eons. First I imagine they demanded rock control, then sword control and now, gun control. It is really all a scheme to deprive people of their natural rights of self-defense and self-preservation. Tyrants do not like armed people. Armed people are dangerous to tyrants. Personally, I like the idea of endangered tyrants. Perhaps we could, in the near future, save a couple and place them on display at zoos. To hell with the rest. “When governments fear the people, there is liberty. When the people fear the government, there is tyranny.” – Thomas Jefferson.

Gun control was present during the colonial period of American history. White Europeans attempted to limit the availability of firearms to groups like slaves and native American indians. Just before and during the Revolutionary War, the British attempted to disarm the entire rebellious population. Their theory was that unarmed people would have a much harder time ousting the red-coat armies.

Independent American gun control first began after the nation was freed of King George. In early America gun control was first initiated in against blacks, both slaves and free men. Racist tyrannical whites did not want the downtrodden slaves or free blacks to defend themselves. Armed slaves might just free themselves, after all. This process derived from various State laws which outright forbid blacks from owning guns. The KKK was an early gun-control advocacy organization (a fomer-day Brady campaign, if you will). The injustice was nominally cured by the Federal Civil Rights Act of 1866 and the 14th Amendment to the U.S. Constitution (1868). I say nominally, because the States found clever ways to circumvent the new Acts. The favored trick was to tax gun sales so as to price the poor (which usually included blacks) out of the gun market. As I will demonstrate shortly, rather than stamp out this hideous policy, the feds later adopted it.

So far in our history gun control has only affected “undesirable” populations – slaves, blacks, and the poor. In the late 19th Century New York City enacted a ban on the concealed carry of firearms by just about everyone. This new law was designed to protect pick-pockets and thieves, key constituents of Tammany Hall and the Democrats of the city (birds of a feather…). It seems Boss Tweed’s cronies got too many complaints from their thieving electorate about people with concealed weapons thwarting robberies. As far as I know, this was the first color-blind ban on concealed weapons. New York has ever been a nest of nobility.

In the early 20th Century most Americans (except blacks and the poor here and there) were free to own whatever type of weapons they both desired and could afford to purchase. I have read the true statement that any child who wanted one and had the money to pay for it, could mail-order a Browning .50-caliber machine gun and have it delivered to their home. Yet, mysteriously, there was little crime in this far away “wild west” America. Crime seemed to come along later with heavy federal regulation of firearms. Numerous studies have definitively linked the two.

As I noted earlier, the federal government enacted legislation which imposed a tax and registration on the ownership of certain types of firearms. This first occurred with the National Firearms Act (NFA) of 1934, 26 U.S.C. 53. This law was part of the overall scheme to deprive Americans of fundamental civil liberties. I have previously noted the dread year of 1913, with the creation of the Federal Reserve and the ratification of the 16th and 17th Amendments. Like plantation slaves, tax slaves with weapons pose a risk to their masters. Americans may have seen a rise in violent crime through the 20th Century because their “leaders” emulated the gun laws of well-known criminals.

“The most foolish mistake we could possibly make would be to allow the subject races to possess arms.” – Adolph Hitler.

(Adolph Hitler, gun control proponent. Google Images.)

On November 11, 1938 Hitler and his government enacted sweeping gun-control legislation, the Weapons Act of 1938. This Act was aimed at a particular subject “race” – jews. “Jews … are prohibited from acquiring, possessing, and carrying firearms and ammunition, as well as truncheons or stabbing weapons. Those now possessing weapons and ammunition are at once to turn them over to the local police authority.” 1938 Nazi Act, Section One. The rest of the Act made possession of weapons by jews criminal, with proscribed punishments.

On October 22, 1968 President Lyndon “Bane of Freedom” Johnson signed into law the National Gun Control Act (GCA) of 1968, 18 U.S.C. 44. This Act imposed additional infringements on the ownership of guns. It was allegedly imposed as a crime-fighting measure however, it was obviously intended to further limit the availability of weapons to the law-abiding members of society. Crime exploded in tis aftermath. Many scholars have properly analogized the GCA to the Nazi Act of 1938, with “Jews” being removed. The GCA was also pushed into law by racists who wanted to further discriminate against blacks. By this time, the bigots knew better than to simply switch the word “black” in place of “jew.” The result was the same – more disarmed Americans.

Both the NFA and the GCA are policed by the Federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (the AFT). Both are blatant violations of the Second Amendment. Every year, when not supplying military weapons to the Mexican drug cartels, the ATF wasted millions or billions of taxpayer dollars setting up sting operations in order to oppress otherwise innocent Americans through enforcement of these illegal laws. I have represented several of these poor persons in court.

Of course, gun control has grown by leaps and bounds in and out of the federal government in the ensuing decades. There has been a great deal of push-back against these laws, but the main pillars of disarmament still stand. Things keep getting worse. In 1986, arch-“conservative” Ronald Reagan signed into law a tax reform bill which, among other things, capped the supply of “class III” firearms. Class III weapons are those such as fully automatic guns and destructive devises (military-grade weapons). This, again, has had the effect of pricing these weapons beyond the means of most people. It also deprives us access to modern weaponry. It is virtually impossible to obtain a post-1986 weapon without spending hundreds of thousands or millions of dollars (one must become a dealer or a manufacturer to do so).

Thus, Americans are denied access to the very weapons we need the most, those which can be effectively used to thwart government aggression, including mis-use of the standing army. The Founders were on to something.

(The Second Amendment is not about duck hunting. Google Images.)

I could run on for another 1500 words or more with this subject. Instead I will stop here and provide more information in my upcoming columns on the Second Amendment and related articles. In the meantime, do not heed the siren’s call for more gun controll, we need a good deal less. Guns Up!

The Decline and Fall of Something…

28 Thursday Feb 2013

Posted by perrinlovett in Uncategorized

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In my popular Posse Comitatus column, https://perrinlovett.wordpress.com/2013/02/20/posse-comitatus/, I made a possibly confusing and unfair allusion to Caesar bringing about the demise of the Roman Republic and ushering in the Empire. It seems that “crossing the Rubicon” is too simply of an explanation for what really happened. The actual process from republic to empire lasted for decades and involved many actors in addition to Caesar.

The Roman Republic existed from roughly 500 B.C. until 27 B.C. Most republics do not make it that long. Ours, if it can still be credibly called a republic, is coming apart at the seams after only 237 years. The Roman Republic replaced the line of monarchs who had ruled Rome for over two and a half centuries. It was succeeded by the Empire, which lasted from 27 B.C. until the German Odoacer set himself up as the first King of Italy in 476 A.D.

During the Republic the government was operated by a Senate (congress) and one or two Consuls (presidents). Most public officials were limited to one-year terms. Many of these public offices, including the Consuls, survived into the Empire, though with greatly reduced authority. There had been a tremendous amount of political strife for over 100 years before Augustus Caesar (Caesar Divi F. Augustus) became the First Emperor.

Caesar (Julius Caesar of the first Triumvirate) returned from war and was expected or feared to take dictatorial control of the Republic. He became a dictator of sorts, but he never got the chance to fully dominate the Senate, being assassinated on March 15, 44 B.C. His murder at the hands of Casca, Brutus, and Cassius is one of the better known events of ancient history. However, the conspiracy included dozens of Senators. Allegedly (according to Tacitus?), once Caesar was killed, the chief leaders of the conspiracy called out repeatedly to Cicero by name, as if to showcase their good works. It is also alleged Cicero waved off the acts and attention in disgust.

(Cicero, champion of Constitutional republicanism. Google Images).

Many have theorized Cicero was a co-conspirator. I don’t think so. Marcus Tullius Cicero was a lawyer, statesman, Senator, and former Consul (63 B.C.) and is widely considered one of antiquities foremost figures. His influence on Latin language is still felt with prominence today. I quote he frequently as he was one of the most critical opponents of the Constitutional demise and all dictatorial actions. He would be one of my two picks as the Ron Paul of his day, the other being the black-robed Cato. Despite his constant opposition to totalitarianism, I do not think he would have sanctioned murder as a means to eliminate the practice. I think his morals, nobility, and steadfast dedication to the law would have prevented his involvement.

Heedless of his own peril Cicero kept up his criticism of Mark Anthony and Company (the Second Triumvirate) and was, in 43 B.C., labeled an enemy of the state and hunted down mercilessly. He was captured on December 7, 43 B.C. and immediately murdered by Anthony’s troops. His last words (according to Plutarch?) were allegedly: “There is nothing proper about what you are doing, soldier, but do try to kill me properly.” He was decapitated and his head and hands displayed publicly in Rome.

This brutal display of lawlessness and savagery was formerly utilized by would-be or quasi dictators. Gauis Marius and Lucius Sulla had used similar tactics against their enemies. Such horrific treatment was the most high-tech form of intimidation at the time, drones were still more than 2000 years away.

Marius served seven terms (at intervals from 107 – 86 B.C.) as Consul despite laws enacting terms limits. His power was derived from constant warfare and the need for “emergency” powers from the Senate. War and “emergency” powers go hand in hand with dictatorship. If you haven’t watched the news in the past 12 years, perhaps you did, at least, see the three Star Wars prequel movies.

Sulla served two terms as Consul (82 – 81 B.C.) and, like Marius, gained much power as a petty dictator through war powers. Sulla’s wars were not confined to foreign enemies, marching on Rome itself in 82 B.C. The Senate foolishly conferred upon him dictatorial powers for life. These he immediately began to use, murdering 1,000s of enemies, with no semblance of Due Process. Previously, the Republic had prided itself on justice and faithful execution of the laws, rather than of citizens and nobles.

So, you see, Caesar has a product of his times as much as a dictator. His short reign came in the middle of a century marked by Constitutional decline. Caesar is the best remembered name from the period though his actual power differed little from that of his predecessors and successors. He could have done eternally great service to the Republic and perhaps changed centuries of history if he had followed in the footsteps of one of his ancient precursors.

History also remembers Lucius Quinctius Cincinnatus, mostly out of awe for his humility in power. Cincinnatus was Consul and was granted dictatorial powers during a time of war twice, in 458 B.C. and again in 439 B.C. Unlike 99% of historical figures granted such rare authority, Cincinnatus immediately abandoned his high position once crises abated. Perhaps Caesar had such intention but was not allowed time to exercise it. Perhaps not.

I hope you have seen, within this column, parallels to modern America. To me they seem both unmistakable and also unmistakably dire in their warnings to us.

We currently have a President who, unchallenged essentially, claims the right to murder American citizens without Due Process. At the same time, we have a craven opposition party which, rather than impeach and remove the usurper, propose to give him Constitutional powers beyond his office. All of this, consequently, stems from “emergencies” whether martial or economic. This has become an established pattern since 2001 though it has roots much older.

This year we mark the 100th anniversary of some of the most destructive Acts in our history. In 1913 the 16th and 17th Amendments killed the States’ fading power against the central government and the Federal Reserve began it’s mission to enslave the nation (publicly and privately) in debt while enabling Washington to potentially spend without limit. Around the same time the National Guard was formalized and strengthened, giving Washington military control over the entire nation.

The ensuing 100 years saw an exponential growth in government, the decline of civil liberties, constant foolish wars, and the nationalization of serfdom.

Having recently lost our Cicero and Cato figures to retirement, we can only pray for a latter-day Cincinnatus.

Politics

27 Wednesday Feb 2013

Posted by perrinlovett in Uncategorized

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“Politics” comes from ancient Greek roots. “Poly,” of course, means “many” and “Ticks” are little blood-sucking parasites. Thus, “politics” means: many little blood-sucking parasites. I really wish I could attribute that definition to my own genius but I feel overly honest today.

(Emperor Palpatine, the ultimate politician. Source: Google Images.)

Wikipedia says “politics” is “the art or science of influencing people on a civic, or individual level…” See: http://en.wikipedia.org/wiki/Politics.

I have studied politics (formally and informally) since around 1980. In those days, everyone in the South tended to be Democrats, party-wise. My parents were proud Democrats at the time and were horrified when Ronald Reagan won the Presidency. I watched on. As the years progressed, I decided I was a “conservative” and, therefore, a Republican, much like Reagan.

I watched Family Ties back then and might have been influenced by the antics of Alex P. Keating. Then came the Rush Limbaugh era; I listened everyday after high school while working as a runner for a local law firm. I knew Rush was right. Well, something in my subconscious had doubts. In college I drifted into libertarian thought and have remained there ever since. As the years pass I become closer and closer to a full-blown anarchist.

During this time, while I descended from a believer in minimal government to a dreamer about no government, reality took a turn for the worse. The whole of my dear country seems to have gone the other way! Whereas we had a big government when I was a child, now we have a GIGANTIC monstrosity of a government that seems to grow geometrically ever second.

Hence my disconnect from the world of practical politics. It is patently obvious that there is no discernible difference between the two major parties in America – they both lead to bigger and more controlling governance. Over the years I supported several politicians in various ways – both Republicans and Libertarians (I have Democrat friends too). My support usually faded away with my short, rambling attention span. I have never been a member of any party. I am proud of that; I hate political parties.

(Politicians soliciting contributions. Google Images.)

In his Farewell Address to the nation, President George Washington devoted nearly two pages to warning the people about party politics. He began: “Let me now take a more comprehensive view, and warn you in the most solemn manner against the baneful effects of the Spirit of Party, generally.” Thereupon he listed the many dangers of “faction” at the expense of Public Liberty. He closed with a thought on excessive party politics: “A fire not to be quenched; it demands a uniform vigilance to prevent its bursting into a flame, lest instead of warming it should consume.” See: The Founder’s Almanac, pp. 309 – 310, The Heritage Foundation, Washington 2002. Given Washington’s fame and standing you would think more people would have listened; they did not and American “democracy” became an all-consuming conflagration.

H.L. Mencken wrote in the Minority Report (1956): “Under democracy one party always devotes its chief energies to trying to prove that the other party is unfit to rule – both commonly succeed, and are right.” Mencken defined “democracy” as “the theory that the common people know what they want, and deserve to get it good and hard.” Every election since has proved him right on both counts.

The most excited I ever got about any election(s) was in 2008 and 2012 supporting Ron Paul. I knew then Dr. Paul was an anomaly in American politics. My fellow citizens chose a different path and now Dr. Paul is retired. With him, at the end of 2012, went Rep. Dennis Kucinich. Washington is now devoid of any statesmen whatsoever and the only small impediments to Total Government are gone. I would like to believe Dr. Paul’s son, the other Dr. Paul, will follow in his father’s hallowed footsteps; I don’t think it will happen.

I have decided to waste no more time following the stupidity (which worsens daily) of field level politics. My personal academic concentration is now centered on political theory or philosophy and the history thereof. A good friend of mine says that America is finished, like a $500 car in need of $5000 worth of repairs. For our generation I fear he may be on to something. Still, I hold some hope for the future.

My fledgling professional academic career is and will be focused on educating younger persons about the mistakes of faith in politics and government, the evils resulting from such faith, and alternatives to the status quo.

Perhaps the most honest book ever written about American politics is Parliament of Whores by P.J. O’Rourke (1991). The title says it all. Inside the reader will discover, among many other witty things, a whole section of chapters entitled, The Three Branches of Government: Money, Television and Bullshit. Perfect.

Government and politics in general, particularly in America, really do center on O’Rourke’s three “branches.”

Money in politics is not necessarily the root of all evil, but it certainly is the tool of all evil in politics. It takes a lot of money to get elected to national or state office in the first place. Savy politicians set up campaign funds legally designed to break or sidestep any campaign finance laws in the way. Then the ticks turn around and suck blood from any source to fill their funds. Sometimes they contribute a little of their own money but most of it comes from “donors.” People all over give a little here and there to help some bozo get elected; once elected the bozo ignores the little people. The big bucks come from the special interest groups, they get the politician’s attention post-election.

Money flows into Washington, D.C. and the several State capitals by the dump truck load. Giant corporations and the super rich constantly brib ..er.. give to elected officials in all kinds of ways. Sometimes they support a pet project of the tick’s (charity, etc.), sometimes they provide booze and hookers, they give kickbacks and favors, and sometimes they just give plain old cash in brown- paper grocery bags. The amount of money flowing into the Capital is astounding, but it pales in comparison to the money flowing out.

This year, like last year, the federal government will spend something like 3.5 Trillion dollars per its official “budget.” I just put “budget” between quotation marks because Congress hasn’t put forth an actual budget, as required by the Constitution, in years. Alarmingly, the vast majority of federal spending is on UnConstitutional programs. The government spends a huge percentage of that money out of debt. Fully a third of the budget is borrowed these days. Check out the U.S. Debt Clock for a good fright: http://www.usdebtclock.org/. In fact, I believe the borrowed sum exceeds the amount paid by individual taxpayers. Corporations also pay for a larger portion of the budget than do the individual taxpayers. However, as with any business expense, corporations pass their taxes along to customers via higher prices for their goods and services. So the People ultimately pay those taxes as well. Aaaaand, guess who guarantees the huge debts run up by the ticks? Yes, taxpayers again. So, Ma and Pa America have to pay for all the illegal, unnecessary spending of the government, even when they receive no representation for their money.

Like I said, most government programs are not grounded in the Constitution and are therefore illegal. Of the $3.5 trillion spent, Medicare and Medicaid get about $800 billion. They are not in the Constitution. Social Security, the third rail of tick-dom, gets a similar amount. Not in the Constitution. Our never-ending, foreign, undeclared wars of aggression get a slightly smaller amount. Being undeclared and indefensible, they to are also illegal. The total of interest on the national debt, federal pension costs, and various welfare programs get a similar amount of funding. Like undeclared warfare, specific welfare is also illegal. As none of the programs are needed there is no need for all the federal employees vested in those pensions. If the government didn’t spend so damn much money there would be no debt and, thus, no interest. The “legitimate” functions of the federal government are mostly unnecessary anymore, and those that are should really only cost us a few hundred billion dollars per year at most. That could easily be covered by tariffs and import fees – as the government was supposed to be funded and was funded for years without trouble.

I could go on and on with the money stuff but we still have television and bullshit….

Television is really representative of all major media, both news and entertainment, in this nation. Whether you get your news on TV, from the radio, or from a print medium, it’s all the same. The government puts out a line of crap and the media runs with it. Very seldom in America are we treated to any critical reporting anymore. Remember those special interests? They own the media nearly completely. Towing the line is part of the overall scheme.

This scheme extends into non-news entertainment. Reality shows, pro sports, pop music and other trivial pursuits are the modern bread and circuses of Amerika. While you drunkenly watch 300-pound men decked out in pink play with a ball, the government is stealing you blind and destroying your country. The ticks laugh at you too.

Bullshit. It’s a crude term but it accurately describes everything I’ve been writing about. It’s also all you ever get from the government. Mostly everything you hear, see, or read from the government or its pet media are outright lies. Very little the ticks do is honest or important so they have to concoct wild stories to get you to go along – provided you even pay attention, most people do not. For instance, when Washington goes to war the ticks always say it’s over something noble like “keeping the world safe for democracy” or “fighting the ‘terrorists’.” Saying they want to keep profits high for the military-industrial complex (a special interest) doesn’t sound as good. When President Obama announced ObamaCare, he didn’t say he wanted windfall profits for the insurance and finance companies of America (special interests). He said it was all to help the children, or the less fortunate, or you and me. Bullshit!

And when the government and the ticks tell the truth, it’s truly frightening. The Whitehouse says it will use drones to kill Americans without Due Process. You better believe they will! When Congress authorizes an illegal ponzi scheme like Social Security or an illegal monopoly like the Federal Reserve (the biggest special interest of all), they do so openly and with impunity.

My point is … well, I’ve already made it – I do not like modern, practical politics and for good reason.

The next time you come into contact with a tick, instead of giving it money and voting it into office, get out the tweezers and the alcohol. I’m Perrin Lovett and I approve this message.

Interposition, Nullification, and Secession

25 Monday Feb 2013

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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:

(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.