Tag Archives: Natural Law

Right of Rebellion

25 Sunday Jan 2015

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

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

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

old_man

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

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

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

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

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

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

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

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

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

Article two evokes the Natural Law: “All men have certain natural, essential, and inherent rights – among which are, the enjoying and defending life and liberty; acquiring, possessing, and protecting, property; and, in a word, of seeking and obtaining happiness. ”  Made-man law is or is supposed to be an expression of the natural law. David Miller, et al., eds, The Blackwell Encyclopedia of political Thought (Oxford 1987).

Plato asserted that freedom from and doubt of human law is the “indispensable” beginning of the search for natural law.  Strauss, Natural Right and History, pg. 84, U. Chicago Press, 1953.

St. Thomas Aquinas and Saint Augustine posit that any law “which is not just seems to be no law at all.  Hence a law has as much force as it has justice.”  St. Thomas, Treatise on Law, R.J. Henle, S.J., editor, pg. 287, U. Notre Dame Press, 1993.  St. Thomas goes on to say that a civil or earthly law with conflicts with natural law is a perversion rather than a law.  Again, once an entire government loses its claim to justice the people have a duty to reform or disband said non-government.

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

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

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

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

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

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

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

The Second Amendment: English Common Law Pre-History

02 Tuesday Apr 2013

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

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

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

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

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

English_Bill_of_Rights_of_1689_(middle)

(English Bill of Rights.  Google.)

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

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

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

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

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

militia

(Early Militia.  Google.)

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

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

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

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

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

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

More Ancient Legal Doctrines of Self-Defense/Preservation

26 Tuesday Mar 2013

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This is the second installment in my new series about the Second Amendment, militias, government, and the natural right of self/defense.  After a few more segments I’ll get to the American experience.  This column is concerned with more ancient sources. Read on.

My last segment concerned the Natural Law and the provisions therein allowing for armed resistance of force and tyranny.  For those not acquainted with Natural Law (American attorneys, etc.), it is the universal law instituted by God for the management of human societies.  God’s first draft was extraordinarily simple, as He supposed that people would be capable of easily governing themselves in paradise.  The law was codified as: “Don’t eat that fruit.”  Unfortunately, the first humans were as dense as their descendants today.  They ate the fruit and thus complicated our lives forever. 

God later attempted to set out ten simple laws He expected us to obey.  True to our fallen, fallible, self-determining ways, we messed those up too.  After constantly displaying an inability to adhere to the simple, the ancient Hebrews began to demand of God a “modern” system of government for themselves.  They seemed jealous of surrounding Peoples who had, among other things, kings.  God, in His omnipotence, offered that they Hebrews didn’t really need or want a king.  They begged to differ, instituted a king, and began to suffer immediately.

After the failure of the kings, and the subjugation of the people by more powerful earthly empires, God sent His Son in yet another attempt to clarify His law.  Jesus, simultaneously ratifying the existing law and providing an alternative route to salvation, issued another simple commandment.  We have not been too quick to pick on that one either.  Thus, it appears that people are stuck with their worldly trappings and their constant inability to deal honestly ad logically therewith until the Second Coming.  Thus, in our present state, and if we are even capable, we must attempt to relate our world to the eternal principles of the Lord.  That is Natural Law.  Having ignored and broken the concrete mandates given us, we are left to guess at how such Law applies to our civilizations.  Unlike the laws of science, math, and physics, which are difficult but possible to extrapolate and apply, the Laws of society are much less definable.  This grasping process has been the work of scholars and theologians for millennia. 

The Law as applied to self-preservation has been called the first law of nature.  This makes sense as, without resorting to keeping ourselves from harm, most of the other “laws” we can divine seem to matter little. 

Previously, I examined several Bible verses which supported the right of self-defense and preservation.  I also cited the Catechism of the Catholic Church regarding the duty (not only the right) to defend oneself and those in one’s charge.  This doctrine has existed for thousands of years.  We are commanded: “Rescue the weak and needy; Deliver them out of the hand of the wicked.”  Psalm 82:4. 

King David, definitely not a pacifist, praised God, saying, “Blessed be the Lord my strength which teacheth my hands to war, and my fingers to fight.”  Psalms 144:1.  First Samuel 25:13 described an Israelite muster: “And David said unto his men, Gird ye on every man his sword.  And they girded on every man his sword; and David also girded on his sword.”  The Israelites were a militia, not a standing army, note that David and every man was equipped with his sword, not a government issue model.  Men were expected to report for duty already armed with their own weapons.  That means they had to keep and bear those weapons in order to fulfill their duties to their society.  This was also the early American situation, as it should be today.

These weapons were and are necessary to preserve freedom in society.  Any sane man will pray that he never need use any measure of force in defense however, he should be ready to do so if necessary.  The fifth or sixth Commandment (depending on how counted) clearly sets forth God’s intention to preserve life:  “Thous shalt not kill.”  It is also translated, “Thou shalt not murder.”  Exodus 20:13, Deuteronomy 5:17. 

The second translation is a prohibition on illicit killing, the first is a total ban.  In a perfect world it would be natural to follow a total ban on killing others made in God’s image.  However, as noted above, we have removed ourselves from perfection, be it temporarily.  Thus, given where we are, while we should strive for perfection, we may be limited to keeping from unlawful killings. 

In Leviticus, it appears that everything carries the death penalty.  Many of these provisions have actually been codified into civil law over the ages.  I’m not sure if anyone was ever executed for eating a shrimp.  However, Leviticus gave us the basis for many capital crimes still such today.  Accordingly, killers (murderers) may be executed in contravention of the Lord’s prohibition on killing.  Leviticus 24:16-17.  Numbers and Deuteronomy give further qualification as to which killings are crimes versus accidents. 

Coupled with those passages I cited last time, these dictates seem to logically indicate that force, including lethal force, may be used to repel unjust criminal activities.  The attendant duty upon us is to use the least force necessary to accomplish our defense.

Jesus exercised the ultimate restraint, in this regard, while enduring His treatment at the hands of His native detractors and Pilate.  Jesus made clear His purpose: “I came into the world…to bear witness to the truth; and all who are on the side of truth listen to my voice.”  John 18:38.  Demonstrating an eternal human misunderstanding, Pilate replied “What is truth?”  His purpose was not to overthrow earthly tyranny, but to provide an eternal alternative.  Rather than being an act of non-self-defense, Christ’s actions were the ultimate act of defense of others.  This truth may have been lost on one Roman, it was not on all Romans.

American law has been greatly influenced by our colonial past and our origins under the English Constitutional and common law.  In turn, English law was dependant on ancient Rome for many of its sources.  It must be remembered that the Kingdom of Britain once co-existed with the Eastern Roman Empire.  Thus, the legal traditions passed to the Isle of Britannia were those of earlier Roman glory – from the Republic and the earlier Western Empire.  From the founding of Rome until the time of Cicero, Roman laws were largely unwritten, even the Constitution.  Codification cam much later, under Justinian.  The Codex Justianius was issued in 529 A.D., five decades after the fall of the West.  The Digesta of ancient law was written soon thereafter.  Thus, began our tradition of dual sources of law – statutes and case-law. 

justinian_venice_rgzm

(Justinian.  Google.)

I previously cited to the Codex for its express allowance of the use of armed force to deter attack, by private parties and government agents.  This dual provision is tremendous as it presupposed that no-one is above the law and that even government force may be repelled when illegitimate.  Increasingly in America, the government takes the opposite position – that it is infallible and may not be resisted, even when tyrannical.  This is nonsense and may be disregarded as such.

In the next installment I will delve into the English tradition regarding arms and defense.  This tradition slowly coalesced into the modern theory of the militia being comprised of armed individual men.  Here, I will briefly note some of the long-standing traditions concerning arms in the British Isles before the rise of the common law and the Magna Carta.

“England” has been populated by various peoples probably for about 10,000 years.  The earliest peoples there were organized along the lines of families and tribes, each with its own society and rules.  It is obvious that most of these people were armed as they were constantly at war with one another and with the occasional outsider.  It is clear as mud as to what extent they retained formal doctrines regarding rights, arms, militia duties, etc.  “Self” defense often involved the entire tribe and was given to degenerating into all out war.  We could assign the Lex Talionis “the law of revenge” or the “law of the jungle” as the chief governing principle of these early Britons. 

As the centuries B.C. counted down, civilization and order began to grow in the Isles.  Legend has it that King Arthur was able to unite most of the peoples of lower England under his banner.  Whether he pulled a sword out of a stone is another matter but it seems that by his time (7th Century B.C.) swords were common among the people, both for use defensively and for militia service. 

Thus, when the Romans arrived in 43 B.C., they found a fierce and well armed people, not at all amenable to taming.  Four centuries of Roman occupation saw many changes in English life, including the ordering of the militias more along the lines of precise Legionary lines.  This, civil and engineering upgrades, and Christianity generally served to the benefit of the people, then and following the Roman’s departure.

Following the Romans, came the Angles, the Saxons, and eventually the Normans, each of whom introduced new character to England.  By at least the Twelfth Century England had evolved into a nation-state, not entire undistinguishable from its present form.  Then, standing armies were rare and the kings relied upon their subjects to form militias during times of needs.  Accordingly, free-men were expected, even ordered to keep arms for their and the common defense.  Assize of Arms, Henry II (1181).

King John signed the Magna Carta in 1215 which, in Section 61, provided for armed rebellion of sorts (lead by the nobility) in the event the Crown became tyrannical.  This process, of course, necessitated the continued institution of armed citizens.

magna carta

(Magna Carta Memorial, Runnymede, England.  Google.)

Next time, I will move forward in history and begin covering more modern English sources concerning the people, their rights, especially concerning arms and defense.  This will serve as a prelude to the customs of those English persons who colonized America, carrying the ancient traditions with them.

Natural Origins of Self-Defense

21 Thursday Mar 2013

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

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

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

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

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

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

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

JESUS-620_1587358a

(The ultimate Defender.  Google.)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

sword

(In case of emergency only.  Google.)

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

Gun Rights Survey

21 Thursday Mar 2013

Posted by in Legal/Political Columns

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This morning I recived an email from The Second Amendment Foundation, a toothier NRAish organization, for those of you unfamiliar.  You can see the email as a website here: http://smna.conservativecontacts.com/track?t=v&enid=ZWFzPTEmbWlkPTExODA3Jm1zZ2lkPTgzMDAmZGlkPTQwMCZlZGlkPTQwMCZzbj0xNjc4MjMwMCZlaWQ9bG92ZXR0cEBlYXJ0aGxpbmsubmV0JmVlaWQ9bG92ZXR0cEBlYXJ0aGxpbmsubmV0JnVpZD1sb3ZldHRwQGVhcnRobGluay5uZXQmcmlkPTYwMjYxJmVyaWQ9NjAyNjEmZmw9Jm12aWQ9JnRnaWQ9JmV4dHJhPQ==&&&2100&eu=200&&&.  I hope the link works; the site contains a ten question survey, which I decided to turn into a short column.  Read on, friends.

By the way, check out the SAF: http://www.saf.org/.  They produced the video I posted a while back about racism in gun controls.  They do good work on behalf of our freedom.  Sign up for their email updates.

I took the liberty of cutting and pasting the survey whole from the email here, without permission.  I figure they won’t mind as I am promoting them.  Anyway, The questions are “yes” or “no” answerable.  I took the opportunity to show you how I would answer along with further explanation.  Here we go:

QUESTION 1: Do you own a semi-automatic firearm that has a detachable magazine, folding stock, or pistol grip?
YES NO
I would answer Yes, although all of you know I don’t really own any firearms.  I don’t belive in them…

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(Guns, like cigars and tobacco products are very dangerous.  Avoid both…)
QUESTION 2: Do you own a clip or magazine that holds more than ten rounds?
YES NO
 Again, with the above “truthful…” caveat, I answer Yes.
QUESTION 3: Do you think the Feinstein Gun Ban would reduce gun violence?
YES NO
 NO!  Gun control has nothing at all to do with ending violence.  Every country which enacts strict gun control (see Britain, Australia, etc.) experiences a dramatic increase in violent crime.  Gun control is about disarming the people so as to make them helpless in the face of tyranny.
QUESTION 4: Do you think you could need more than 10 rounds in a self-defense situation?
YES NO
 Yes!  Abosolutely!  The other day at the 2A forum at ASU (GRU), someone asked me this question.  I responded with the case of a local gun dealer who was confronted by 4 armed thugs in his shop.  They drove a van through the wall in hopes of a 100% discount on his merchandise.  Fortunately, he was armed with an AR-15 with a 30 round magazine.  It took all 30 rounds to convince the “shoppers” to vacate the premises.  There is no rational reason to limit the capacity of self-defense as the chance of danger is never so limited.
QUESTION 5: Do you oppose all attempts to ban semi-automatic firearms?
YES NO
 Yes!  I oppose all attempts to ban any firearms – semi-automatic, AUTOMATIC, black-powder, or any other kind.  The free People should have available for their protection any and all means of defending their liberty and their lives.
QUESTION 6: Do you oppose regulations that limit the amount of ammunition you may purchase?
YES NO
 Yes!  Like the guns themselves, the only limits on the amount of ammunition one purchases should be desire and ability to pay.  I tend to oppose regulations period.
QUESTION 7: Do you believe gun control laws will only hurt law abiding citizens?
YES NO
 No.  Surprised?  Don’t be.  I think gun control hurts everyone.  Even a convicted felon might find a need for weaponry if attacked in a situation not of his creation.  Gun control only helps ACTIVE criminals – the government, banksters, street thugs, etc.  I don’t want to help any of these types.
QUESTION 8: Would you feel safer if all law-abiding citizens possessed firearms?
YES NO
 No.  Again, hear me out.  While I support the general right of all qualified, responsible individuals to possess firearms, there are a large number of my fellow citizens I do no trust.  I would not fell safer if every Tom, Dick, and Harry had a gun.  Some of these folks can’t operate automobiles or shopping carts without trouble.  They sure as heck aren’t competent to use weapons.  But, I leave this to them, the Lord, and anyone but the government to sort out.  You and I owning guns makes me safer (you too), regardless of how we feeeeeel.
QUESTION 9: Should laws that protect our self-defense such as the Stand Your Ground Law exist?
YES NO
 Yes, although the need for such laws is a sad commentary on our society.  The right to self defense is as natural as the laws of phsyics.  We should not need laws to protect the right, though it seems better to have them and not need them than the alternative.  Overall, I would prefer if people stopped committing crimes thus eliminating the need in the first place.  Again, that’s out of my personal power to control.
QUESTION 10: Do you believe the 2nd Amendment was written to protect U.S Citizens against a tyrannical take over?
YES NO

Yes!  There is no doubt about it.  While hunting, collecting, and sport shooting are all important, as is the right of defense against criminals and dangerous critters, the real purpose of the 2A was to ensure the People would always be able to resist tyranny if necessary.  Thank God we do not face such a situation today.  Such tyranny would only come from a regime that did things like tax our incomes and threaten us with death by drones – unheard of in Amerika.

There you have it!  My answers and views de jure.  Perhaps you have similar or divergent views.  You are entitled to them and, by all means, feel free to list them here in response to mine.  I only ask that, for any opinion you hold, make sure it is the result of reason and not a knee-jerk or parroted position.  Think for yourselves.  Arm yourselves.  Live free and prosper!

Gaining Ground, Moving Forward

20 Wednesday Mar 2013

Posted by in News and Notes, Other Columns

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This blog has nearly taken on a life of its own; it has become a ride on which I am not only the driver (author) but I am also a passenger.  In my role as passenger I am delighted every day to see the new places I am taken.  Of course, as the driver, I have a huge degree of input as to where I go.  It’s kind of a circle … kind of … I guess.  I hope you are enjoying the ride too.

Yesterday, I supposed I would expand on my writings concerning the Second Amendment and related topics.  The idea was born during the wonderful Forum on the Second Amendment I participated in at Augusta State University (GRU) and some of the confusion and misinformation I perceived among the audience and my fellow, learned presenters.  I already have a book in draft mode on the subject.  In fact, I’ve been working on it for about 12 years now – I haven’t gotten very far in organizing a huge mass of notes and my thoughts. 

The old blog, I have found, not only allows me to quickly publish articles which, by all indications, are appreciated by a wide range of people; it also gives me a chance to go through certain subjects piece by piece in a somewhat logical order.  I find this beyond refreshing, academically speaking.  Each post is a potential chapter-starter for later, more in-depth publications.  I started this forum with two ideas in mind: 1) entertain people with my mad ravings; 2) use it as a forum to sell the books I have in various stages of publication readiness.  The first part comes naturally to me.  I had no earthly idea how to go about the second.  Now, after several months of plodding through, the concept is just presenting itself to me.

If you have ideas (who doesn’t) and want to communicate those ideas with the world beyond simple posts on Facebook or Tweets, then I highly recommend you start a blog.  Use WordPress like I do or any other forum.  They are numerous, FREE, and easy to use – I’m a Luddite and I get this stuff.  I would love to add you to my “blogs I follow” tab over on the left.  Write about anything or everything.  There are no standards here (except those we create ourselves) and possibilities are limitless.

They really are limitless.  In addition to my initial goals, I have added permanent pages which feature and promote my professional business services, my academic aspirations, businesses I respect, and many other things.  While I’ve received some businesses from the site, I have yet to receive a donation.  Shame on you Scrooges…  Just kidding.  Heck, I don’t even list a way to give even if you wanted to.  May have to fix that…

Okay, enough babbling.  I have outlined eight areas I will cover concerning the Second Amendment and related topics, though the number is subject to change.  That’s one of the great things about blogging – you can change anything at any time without restriction.  The first in the series will focus on the Natural Law origins of self-defense in general, the precursor to the Second Amendment’s right to keep and bear arms.  The theory existed long before man devised physical weapons, when his only defense came from his actually two arms, right and left.  It’s eternal.  That is the main point of my first column which will debut soon.

gun-control-laws-gun-control-2nd-amendment-politics

(Google.)

Site News:

Today I am pleased to announce the arrival of the site’s fourth sponsor: Createspace!  See their ad on the left (with all other ads and information).  The services they offer are geared towards publishing in the modern world.  I am using them for my books (soon, soon).  Check out all of their unique features, which go beyond books.  This is a gateway to listings on Amazon, Kindle, and other sales avenues – without having to appease a big publishing company or deal with an agent.  Look into it!

I updated my CV (big resume), see above, today with some more current information – much of it the result of this site. 

This evening I get a new column out.  I have several near completion on a variety of topics.  It all depends on work and family considerations and how I feel…  Stay tuned. 

In The News:

Let’s see…war, rumor of war, economic woes worldwide, double-crosses, turmoil, crises … same old stuff.

Here’s something I find fascinating and potentially very useful and educational!  MIT (Massachusetts Institute of Technology for those of you in Cornfield) did something almost unthinkable a few years ago.  They basically placed their entire curriculum on the internet completely free to all takers!  Check it out: http://ocw.mit.edu/index.htm.  They count some 2500 courses are available – again all for FREE.  Here’s their promo: “Empowering Minds: Through OCW, educators improve courses and curricula, making their schools more effective; students find additional resources to help them succeed; and independent learners enrich their lives and use the content to tackle some of our world’s most difficult challenges…”

158124-59C_MIT

(MIT. Google.)

Essentially, one can now receive a self-guided education from one of the finest universities in the world for free.  I think some courses are limited or exclude – like security sensitive nuclear classes.  Otherwise, just about everything available in Boston is available to you on the same computer you’re looking at now.

I regret that I have not made full use of the program, despite knowing about it for some time.  I vow to change that.  In the future I intend to report on what I learn soon.  They offer programs in history, economics, and political science, among many others.  I need to pick something out and explore it.  You should to.

Constitutional Law

13 Wednesday Mar 2013

Posted by in Legal/Political Columns

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

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

tribe conlaw

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

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

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

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

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

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

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

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

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

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

The General Welfare Clause

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

The Commerce Clause

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

The Necessary and Proper Clause

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

National Security

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

Taxation

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

A Few Rights

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

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

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

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

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

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

Legal “Education”

12 Tuesday Mar 2013

Posted by in Legal/Political Columns

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This post follows Muddling Through College.  It is intended as a truthful assessment of what life in law school is like and the relationship between legal education and the practice of law and society in general.  As with my undergraduate article, I realize that my experience is dated by a good decade.  Actually, it’s been a pretty bad decade – especially for the legal industry.  Therefore, again, I have tried to incorporate “modern” materials herein as well.

I once heard attorney-turned radio talk show host, Neal Boortz state that when he began practice law in the early 1970s, the law was still a profession.  He then said when he left the law in the early 1990s to pursue radio full-time, the law had degenerated into a trade.  Several times I recall him saying the happiest day of his life was the day he put his status with the Georgia State Bar in the inactive category.  I will update his cycle now – the law has further degenerated into a racket.

The average attorney is greeted by society with all the warmth and affection people normally reserve for a visiting termite.  I hear lawyer jokes every week.  Most are pretty damn funny.  I am one of the few attorneys not offended by these jokes.  Most attorneys do get offended even if they don’t show it.  The reason is that most know the jokes have a great basis in truth and they don’t want to admit the facts.

Mr. Boortz once said, speaking of attorneys, “No other group has done more to help and to damage our society.”  He’s right.  Lawyers were behind the Revolution, the Declaration of Independence, The Constitution, the civil rights movement, and numerous other causes for freedom.  You never hear lawyer jokes in a criminal court.  In a jail holding area or cell block, we are greeted like rock stars.  However, pick any oppressive, illegal, dishonest, or otherwise unsavory law, business, or relationship and you’ll find lawyer DNA all over it.  As a judge I once clerked for said, “It’s amazing how bad most attorneys are.”

The bad begins in law school.  There are about 200 law schools in America which have received the ABA’s seal of approval.  There are more which operate by special rules within their respective states.  U.S. News and World Report ranks and categorizes law schools every year based on a set of semi-relevant criteria.  Schools fight hard to place high on the list.  I don’t see the point.  Judging by the performance of their graduates, all the schools seem equally bad.

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(This cat never practiced law and won’t teach you anything.  Google Images.)

Max “I Hope They Serve Beer in Hell” Tucker wrote an awesome article, http://lewrockwell.com/orig14/max-t1.1.1.html, on reasons NOT to attend law school.  Read it!  I agree with every single thing he said.  By the way, I fell under the Want To Change the World category.  I learned its damn near impossible to change a neighborhood, let alone the world.  And, most people don’t want any change – they enjoy their serfdom.

After four (or 6, 8, etc.) years in college one must score decently on the LSAT and submit a rigorous application in order to gain entry into even the lowest ranking law school.  Once there, one is suddenly trust into an environment that eerily resembles high school.  That’s the law school effect, everyone reverts to teenager-ish behavior and attitudes.  Nothing is actually taught in law school except how to look up information and fill out forms.  You can learn a thing or two in a specialized elective class but nothing therein will appear on the dreaded bar exam of any state.  Given the sad state of the profession, dependant on the exam’s function as a brutal hazing to enter the fraternity, you would think law professors would concentrate on the subjects covered by the bar and the methodology employed for the tests (Byzantine).  They do not.  In fact, after graduating you MUST take a private prep course in order to have any chance of passing the test.  I theorize that any well-educated person could take such a class and pass the bar.  I was not supposed to tell you that.

The majority of instructional time is instead devoted to instilling reverence for the system.  Courts, judges, and their opinions (case-law) are sold as the Gospel.  Rebels like me are interested in core concepts behind the law and the betterment of humanity.  The average student simply accepts the drivel and becomes a system cog.  As I have stated elsewhere, the average lawyer does not know and does not care why we have law or where the law comes from.  Natural Law may as well be officially forbidden by the ABA.

Once one passes the bar and gets that first legal job another enormous short-coming becomes alarmingly clear.  Law schools do not prepare anyone to practice law.  A friend of mine, a Federal Magistrate Judge once asked me, “Remember when you got out, and knew nothing?”  New attorneys are thrown to the wolves.  Half can’t hack it; I think 50% is the current percentage who leave the law sooner than later.  The other 50% live in a nightmarish state, dreaming of getting out. 

In the old days, and in a few foreign countries (Scotland comes to mind), students of the law would apprentice with an existing attorney or law firm for a number of years in order to prepare for actually practicing law.  They would simultaneously “read the law” on their own to gain a full understanding of core concepts.  After satisfying their mentors, the apprentices would be admitted as attorneys, with or without examination.  That’s how Thomas Jefferson, John Adams, Abradamn Lincoln and Cicero did it.  Today, only California, Maine, Vermont, Virginia, and Washington still allow “reading” and I imagine it is discouraged.  This process denies law schools reason to exist and deprives budding young lawyers of their $100,000+ school loan debts.  Students might also emerge ready to practice if allowed to study under a competent attorney.  I’m not supposed to tell you any of this.

I have applied for several positions, academic and administrative, at a variety of law schools of late.  I am hoping my experience will give me an advantage.  One would think it was.  I make a particular point to explain that I want to help as many young people as possible actually prepare for the racket….er…profession.  Oddly, many law professors have never practiced law a day in their lives, many aren’t even members of a bar.  It makes sense, in a way, as law school has absolutely nothing to do with practicing.  That evil bar exam (truly a horror worthy to justify the myths) has nothing to do with school or practice either.  Like the schooling, it’s just there – an unavoidable obstacle to tackle.

Law students become attorneys disillusioned, in debt, unprepared, and in today’s market, with slim job prospects.  Most new attorneys today, who can find a job, earn less than $60,000 per year.  The big bucks go to the elite few who land jobs with major law firms.  At those firms, newbies (with all the problems I mentioned) can start at $150,000 or better.  For that pay, they have to “bill” 2500 hours a year.  Billing 2500 means working 4000; that means working 80-100 hour weeks, every week, for about $30-$40 per hour.  Tucker gives examples of jobs that pay that well, don’t require all the time and hassle, and don’t necessitate wasting 3 years in law school.  Remember, those are the best of the best jobs.  Most big firm associates wash out quickly or else end up in mental institutions or under bridges.

lawyer

(Welcome aboard, young associate.  Google Images.)

Ponder what I have written here if you think you want to join the lawyer club.  Some people are meant to be attorneys and will do well at their chosen work.  Most will drudge on miserably until the retire, die, or go nuts.  Some, like me get out.  Well, I’m trying to get out.  Leaving the law can be like leaving a street gang.  You have to walk a gauntlet to exit.  Please pray I make it.  As for you, avoid the whole racket if you can.

PS: I issue a challenge to all attorneys and law school faculties!  Change the system!  Concentrate on the theory and the practice of the law itself and dispense with the case worship, the obsolete mysteries, and the false illusions of nobility.  For you, read Alan Watson’s The Shame of American Legal Education, 2d ed. (Vandeplas Publishing, 2006).  Watson, of Scottish legal training, nails the problems of the American system.  Let’s change it.

Don’t Drone Me, Bro!

07 Thursday Mar 2013

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This post rambles from subject to subject.  Be forewarned.

Drones…

Just last night I thrilled you, my dear readers, with a few news stories concerning the law.  While Attorney General Eric “Fast and Furious” Holder refuses to prosecute super-rich banksters for criminal wrong-doing, he has no problem using drones to murder “ordinary” Americans for any reason or no reason.  Well, in his defense, He said the drones would only be used to thwart catastrophic events like the 9/11/2001 or Pearl Harbor attacks.  I don’t believe him.  It doesn’t matter since he’s not in charge of when the triggers are squeezed. 

This morning I was listening to the radio and had the privilege of hearing my friend Austin Rhodes (WGAC, 580 AM, Augusta) give his morning commentary.  He initially praised Senator Rand Paul (Ron’s son) for his filibuster yesterday which targeted the administration’s dystopian law enforcement policies.  Then he surprised me.  He, playing devil’s advocate, asked if a drone strike on David Koresh (remember him?) in 1993 would have prevented the later bloodshed at Koresh’s Seventh Day Adventist Church in Waco, Texas.  At first I was indignant but then I realized the value of his question.  The ultimate answer is “who knows?”  No-one does for certain.

It is my opinion that the government was out to get Koresh and his senior worshippers and would have slaughtered them all anyway.  Austin and I disagree on the nature of the events that unfolded in Waco twenty years ago.  That’s the beauty of America, we can agree to disagree.

There was much disagreement in early 1993, regarding the pre-assualt on the church.  For instance, the warrant obtained by the Imperial stormtroopers was defective.  Perhaps they could not decide on what, if anything, was wrong with Koresh and Co.  That might explain the defects in the law sited to obtain the warrant.  The local Sheriff and the State of Texas disagreed with the feds that crimes were being committed in the church.  A JAG officer (military attorney), when asked about the legality of deploying military assets for this domestic law enforcement “operation,” disagreed with his inquirers.  He reported the scheme was illegal, a violation of the Posse Comitatus Act, etc.  The first Stormtroopers on the scene must have disagreed about the wisdom of carrying communication devices in case something went wrong, whether to open fire immediately upon exiting their horse trailer (official police version), and whether the church members would return fire.

In the end, the dissenters were silenced.  The rest is history.  As I recall the Empire had several grounds for the War in Waco: 1) income tax evasion; 2) illegal drugs; 3) illegal firearms; and 4) the abuse of children.  I think they eventually proved the tax count as they can prove that against almost anyone due to the psychotic nature of our tax laws and regulations.  I think there was no evidence of the guns or drugs – any existing specimens would have been destroyed in the government’s fire.  As for the children, while I recall some survivors insisted there had been some sort of impropriety, most (all?) of the children were killed in the fire or crushed to death beneath the Army’s 70-ton tank.  Some may have been shot by snipers.  Anyway, there wasn’t a lot of evidence after the fact.

Still, none of this answers Austin’s question.  I’ll pose a question which is easy to answer definitively: Would a drone strike on Rev. Koresh been legal?  Two questions, really – Would the drone strike have been ethical?  The answer to both questions is a certain “NO!” 

The Fifth Amendment to the Constitution is clear – “No person shall be … deprived of life, liberty, or property, without due process of law…”  (Emphasis added).  The Fourteenth Amendment backs up the Fifth’s Due Process provision.  These concepts date back the Magna Carta in 1215.  The truth is eternal, it remains the same in 1215, 1791, 1993, or 2013.  The theory is that if the government wants to kill someone, they must adhere to a certain process.  We generally refer to the key part of the process as a trial (Jury, evidence, and stuff).  The theory jives with what that crazy carpenter, Jesus Christ, talked about twelve centuries before King John admitted his authority was not arbitrary.

For those of you who might have heard Austin and taken his question as a simple endorsement by mistake, how about this: Would Sheriff Whittle’s use of a drone against Scott Dean saved us the trouble and expense of a trial?  He was convicted, after all, by twelve wise citizens.  The fact of his innocence and his accuser’s later recantation are irrelevant for this discussion.  For those of you fortunate enough not to live in Cornfield County, Scott Dean was a County Commissioner.  He adopted some girls.  One of the girls, a teenager with a history of lying in court, accused him of a heinous crime.  He denied any guilt but was convicted none the less.  He went to prison.  Then, his lying adopted daughter, safely out of the country, admitted she made the story up and Dean was in fact innocent.

Since the recent revelation of Dean’s innocence I’m sure the twelve men and women who sent him to prison have the utmost difficulty sleeping at night.  Can you imagine the Sheriff’s guilt and shame had he used a drone instead of the law?  Natural Law and its proper extensions in the corporeal world are important.  “I’d give the Devil benefit of law, for my own safety’s sake!”  Saint Thomas More, A Man For All Seasons, 1966.

Due Process of law is a Natural Right to which every person is entitled when human laws exist.  This was obvious to earlier generations of Americans.

Too Big…

In my recent second installment of Slavery In America, https://perrinlovett.wordpress.com/2013/03/05/slavery-in-america-part-ii-of-iii/, I mentioned the Big Club members who are invested in our modern plantation.  The giant banks are charter members of the club.  I mentioned their immunity from criminal prosecution last night.  It seems they are too big to fail, too big to jail, and they are rapidly sucking up all the wealth in this country.  See this story: http://theeconomiccollapseblog.com/archives/corporatism-a-system-of-control-designed-by-the-monopoly-men-of-the-global-elite.  It’s about “corporatism,” the fascists’ bastardization of capitalism.  It’s an excellent article from an eye-opening site.

It Could Be Worse…

We could all be stuck in a cage and abandoned at the car wash…

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(This poor guy was!  He was happily adopted though!)

Yeah, ramblin more than normal… 🙂