Scumbagging the Second Amendment
The Supreme Court has granted certiorari in United States v. Rahimi, after a ruling by the Fifth Circuit Court of Appeal (Texas), setting aside Rahimi's conviction, under 18 U.S.C. § 922(g)(8), for possessing a firearm in violation of a civil restraining order based on a judicial finding that he represented “a credible threat to the physical safety of” his domestic partner.
Rahimi asserted that his conviction was invalid because he had a constitutional right to possess the weapon in question. He argues that § 922(g)(8) is unconstitutional on its face.
That Mr. Rahimi is a poster boy for the type of scumbag no one in their right mind would want possessing a firearm is beyond dispute. His record includes a lengthy criminal history the most recent episodes of which included drug dealing, burglary, two assaults on women with a firearm, the latter of which was accompanied by brandishing a gun, and firing it into the air while arguing with a potential witness. For these accomplishments Rahimi was convicted and sentenced in a Texas state court. When he gets out, he will never be allowed to possess a firearm. Nevertheless, the Department of Justice decided to pursue Mr. Rahimi on federal charges.
On the first appeal from his federal conviction, the Fifth Circuit rejected Rahimi's constitutional claim. The court ruled, that under the “two-part balancing test” in use at the time, Rahimi's rights were “outweighed” by the compelling state interest in maintaining the peace, tranquility and safety of the realm.
After Rahimi was packed off to prison but, before his judgement was final, the Supreme Court decided N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen, (2022), __U.S.__, 142 S. Ct. 2111, which changed the Second Amendment legal landscape. Under Bruen a person has a presumptive right to posssess weapons in “common use” among the public, and it is the government's burden to prove that the restriction or deprivation of the right is justified by some analogue in the “history and tradition” of the Second Amendment. Rahimi thereupon mounted a second challenge to § 922(g)(8) and, this time, “in light of Bruen” the Fifth Circuit reversed.
Needless to say, the anti-gun lobby -- which has finally stopped making a secret of its desire to abrogate the Second Amendment -- has raised a hutesium et clamor against a ruling that will cruelly subject the country and its millions of innocent children to the bloody rack and ruin of gun violence. Not only is Rahimi's scumbaggery the main ballast of their argument, but in a perverse way he has become the anti-hero of their cause.
However, a facial challenge to a statute considers only the text of the statute itself, not its application to the particular circumstances of an individual. The question properly before the Fifth Circuit was whether, § 922(g)(8), as written and in abstract principle passes constitutional muster. Of course, the law would not be the law without there being a wrinkle and, as written, § 922(g)(8) is something of a clunker.
That statute prohibits possessing a firearm in violation of a civil protective order. The order must have prohibited stalking or threatening a domestic partner (1) based on a finding that the person “represents a credible threat to the physical safety” to said partner OR (2) “explicitly prohibits the use, attempted use, or threatened use of physical force against such” said partner. In other words, § 922(g)(8) can be violated without there having been any finding of “dangerousness.”
This second condition was so obviously flawed that the Fifth Circuit had previously held that it contained an “implied” finding of dangerousness. (United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), cert. denied, 536 U.S. 907 (2002).) As thus patched up, section §922 (g)(8) rests on a civil judicial finding of that the subject of the order represents a danger to a particular person.
“A well regulated militia... the right of the people to keep and bear arms...”
By phrasing the question in that manner the Fifth Circuit transubstantiated the issue of “my rights” into the more primary existential question of whether “I” am part of “Us.” That it seems to me is a rather important question, especially when we recall the lamentable history of regimes that have excluded categories of people from their national community.
There is no question that a member of “we the people” can disenfranchise himself by his conduct. The concept is known as “civil death.” But our Constitution provides specific means and limitations on how that is done; namely, after conviction by jury trial with assistance of counsel. It is not the conviction that causes a man to forfeit his membership in the the community but rather the decision of his fellow people. In civilian countries like France or Germany, it suffices for agents of the State, professionally trained judges, to make the decision as to whether someone should incur civil death and thereby be excluded -- for a time or forever -- from walking freely among fellow citizens.
But neither England nor the United States have ever followed the civil law. In our tradition a man's right as “one of a people” can only be taken away by the people, and the Sixth Amendment specifies that this is to be taken literally. As Justice Scalia put it, “Judges, it is sometimes necessary to remind ourselves, are part of the State -- and an increasingly bureaucratic part of it, at that” (Apprendi v. New Jersey (2000) 530 U.S. 466, 498.) It is the jury that functions as circuit-breaker in the State’s machinery of justice (Blakely v. Washington (2004) 542 U. S. 296, 307.)
Now, it is true that the overwhelming majority of cases are disposed of by plea. But that does derogate from the principle at issue. Every plea must be based on a voluntary and knowing waiver of the process accorded. Anyone who wants to be judged by his peers, face to face, has the absolute right to appeal to the circuit breaker.
This is yet another example of the ways in which the Bill of Rights enshrines not only individual rights but the right and power of popular control over government and over our own destinies. No judge, magistrate, agent, bureaucrat, or lackey can exclude you; only the people can say that you are no longer part of the people. You can't get more fundamentally democratic than that.
Of course, a popular decision while a necessary condition is not a sufficient one. In addition to a determination by jury, the decision must accord with substantive standards and due process of law. In a word, there must be good cause and reason for finding someone unworthy to participate in the community of the free. The shorthand for all of this is the well known truism that a person may loose his rights through and upon conviction for a crime or for a certain class of crime. Nevertheless, it is important to bear in mind what lies behind the shorthand.
The Department of Justice would have it that a person can be excluded from the national community and the rights shared therethrough, by the say-so of a civil order made by an agent of the state, pursuant to no specified criteria or standard of proof. The only contingency is that the subject of the order receive “actual notice” and be given the opportunity “to participate.” What this boils downs to in practice is a showing that notice was mailed to him at his last known address.
To justify this sort of regime, the Government pointed to various historical analogues in English and Colonial law. The first of these was the Statute of Northampton, 2 Edw. 3, (1328), and various copy-cat statutes, which prohibited “riding about armed to the terror of the King's subjects” (ne de chivaucher ne de daler arme). As I have written elsewhere, what the statute actually prohibited was using arms to terrify the people. The statutes in question invariably resort to phrases such “with force and arms,” or “affrayers,” or “breakers of the peace,” or “go armed offensively.” As such, these statutes (English and Colonial) presupposed a primary right to lawfully bear arms, and the universal acceptance of this right cannot in good faith be doubted by anyone familiar with the historical and legal record from King Alfred (850) to James Madison (1791). As stated by the Fifth Circuit,
“In substance, the early “going armed” laws that led to weapons forfeiture are not relevantly similar to § 922(g)(8). First, those laws only disarmed an offender after criminal proceedings and conviction. By contrast, § 922(g)(8) disarms people who have merely been civilly adjudicated to be a threat to another person.”
The Government's second argument relied on various English and Colonial laws which had authorized the seizure of weapons from “dangerous” classes of people. Or, as the Government summarized it, “persons and disaffected persons perceived as threatening to the crown.” The difficulty with this line of argument is that the persons deemed “dangerous” were either Protestants (under Charles II and James II), or Irish and Catholics (after the Glorious Revolution) or slaves and Indians (in the Colonies). The perversity of the Government's argument is truly astonishing. If anything, the Second Amendment was designed to forestall precisely those kinds of status-based forfeitures.
Lastly, the Government sought to rely on various surety laws by means of which an individual who could show that he had “just cause to fear” that another would injure him or destroy his property could “demand surety of the peace against such person.” If the party of whom surety was demanded refused to post surety, he would be forbidden from carrying a weapon in public absent special need. The similarity between § 922(g)(8) and surety laws is obvious. Where the analogy breaks down is that surety laws did not confiscate or prohibit possession of the weapon itself. The Government's argument that the right to possess arms can be based on a civil finding of dangerousness; and, therefore, if a finding of dangerousness is sufficient to condition your right it ought to be sufficient to abrogate it as well.
The Justice Department is hoping that the outrageousness of Rahimi's conduct will distract and obscure the pernicious principle being asserted. In seeking Supreme Court review, the Government has sought to portray the Fifth Circuit's ruling as one that would hog tie the authorities from taking any reasonable measures to counteract a patently dangerous and, indeed, deranged person from committing further gun violence. Needless to say, the Anti-Gun activists and media followed up with the appropriate rhetoric qua reportage. Since it makes for such salacious reading we might as well quote the Government's brief in full:
“... Zackey Rahimi was a drug dealer who mostly sold marijuana and occasionally sold cocaine. In December 2019, Rahimi and his girlfriend C.M. had an argument in a parking lot in Arlington, Texas. C.M. tried to leave, but Rahimi grabbed her wrist, knocking her to the ground. He then dragged her back to his car, picked her up, and pushed her inside, causing her to hit her head on the dashboard. Realizing that a bystander had seen him, he retrieved a gun and fired a shot. In the meantime, C.M. escaped the car and fled the scene. Rahimi later called her and threatened to shoot her if she told anyone about the assault.What this stunning narration glides over is the fact that prior to be charged with the federal offence, Rahimi had been convicted on state charges of “terroristic threat of a family/household member, discharge of a firearm in certain municipalities, and family violence assault causing bodily injury.” (see United States v. Rahimi (5th Cir., June 8, 2022, No. 21-11001) [pp. 3 fn. 2].) After conviction and sentence on these state charges, Rahimi admitted and pleaded guilty to the federal charges, reserving the right to appeal the constitutionality of the federal statute. The federal district court then imposed a prison term to run consecutive to the state sentence.
“In February 2020, after giving Rahimi notice and an opportunity for a hearing, a Texas state court granted C.M. a restraining order, which was valid for two years. C.A. ROA 12-18. The court found that Rahimi had “committed family violence” and that such violence was “likely to occur again in the future.” . The court accordingly prohibited Rahimi from committing family violence and from threatening, harassing, or approach ing C.M. or her family. . The order also suspended Rahimi’s handgun license, prohibited him from possessing a firearm, and warned him that possessing a firearm while the order remained in effect may be a federal felony. Rahimi signed an acknowledgement that he had 'received a copy of this protective order in open court at the close of the hearing in this matter.'
“Rahimi, however, defied the restraining order. In August 2020, he tried to communicate with C.M. on social media and approached her house in the middle of the night, prompting state police to arrest him for violating the order. C.A. ROA 218. And in November 2020, he threatened another woman with a gun, leading the State of Texas to charge him with aggravated assault with a deadly weapon.
“Rahimi then participated in a series of five shootings in December 2020 and January 2021. First, after someone who had bought drugs from him “started talking ‘trash’ ” on social media, he went to the man’s home and fired bullets into it using an AR-15 rifle. The next day, after colliding with another vehicle, he alighted from his car, shot at the other driver, fled, re- turned to the scene, fired more shots at the other car, and fled again. Three days later, Rahimi fired a gun in the air in a residential neighborhood in the presence of young children. . A few weeks after that, a truck flashed its headlights at Rahimi when he sped past it on a highway; in response, Rahimi slammed his brakes, cut across the highway, followed the truck off an exit, and fired multiple shots at another car that had been traveling behind the truck. Finally, in early January, Rahimi pulled out a gun and fired multi- ple shots in the air after a friend’s credit card was declined at a fast-food restaurant.”
“Police officers identified Rahimi as a suspect in those shootings and secured a search warrant for his home. A search of his room uncovered a .45- caliber pistol, a .308-caliber rifle, pistol and rifle magazines, ammunition, approximately $20,000 in cash, and a copy of the restraining order. [ as a result of which he was indicted for violating 18 U.S.C. 922(g)(8]”
In his first federal appeal (the June 8, 2022 case, cited above), Rahimi argued that the state and federal sentences should run concurrently because, after all, it was all part of his singlular deranged and dangerous propensity. The supposedly reactionary Fifth Circuit rejected this claim on the ground that “the pending state charges are not a part of the same course of conduct as Rahimi's possession of a firearm in violation of a restraining order” inasmuch as federal offence arose two and 12 months after the state prior state charges. (United States v. Rahimi (5th Cir., June 8, 2022, No. 21-11001) [pp. 4].) At the same time the Fifth Circuit rejected Rahimi's constitutional challenge.
What the Government elides gracefully is that there was plenty of time for the Texas courts to issue an order restraining Rahimi from possessing a firearm. In fact, they had done so and if Texas did not do so again it was because Rahimi was being packed off to prison in any case. Despite all the tears and rending of garments, this was not a case where the authorities were rendered helpless in their attempts to control an armed, violent and dangerous lunatic. The good and peaceable citizens of the United States and the Great State of Texas can sleep tight at night knowing that Rahimi's dangerous are under lock and key.
What remains then is a facial challenged to a criminal statute that is based on the deprivation of a constititional right issued by a civil magistrate who decides that a person represents a danger to another. That's it. No further requirement or qualification. In defending 922(g)(8), the Government is arguing for the deprivation of a constitutional under a totally undefined standard of determination.
As Judge Hoo, noted in his concurring opinion, “civil protective orders are too often misused as a tactical device in divorce proceedings—and issued without any actual threat of danger. ... Judges may face enormous pressure to grant civil protective orders—and no incentive to deny them.” That is true enough, but the situation is far worse.
Because, by definition, a "danger" is a possible or, to some degree, a probabable harm, a "danger" can always be said to presently exist and is impossible to deny. Authorities intuitively understand this which is why they speak of "potential dangers," which sounds like it is saying something more when, in fact, it is saying less. Unless tethered to enumerated and specific objective criteria, a finding of dangerousness is not only easily made but, worse yet, is no more than a self-certifying excoriation. The inherent capriciousness of such findings make them the favourite tool of tyrants. It is precisely for that reason that the Government and gun control activists wish to mesmerize people with “dangers.” This is the same Administration that has a track record of exerting government pressure to censor “dangerous” or “hateful” speech by gagging or cancelling social media accounts. Once they establish the principle that constitutional rights can be taken away through such vague and facile “findings” liberty ceases to be guaranteed. This is not the beginning of a slippery slope, it is the end of it. It is nothing a true and honest liberal in the mold of justice Douglas, Brennan or Black would have countenanced.
Although the Fifth Circuit opinion did not mention Apprendi or Blakely the way it initially framed the question indicates that it clearly had those cases in mind. The Bill of Rights presupposes the loss of the rights it protects, but it does so by the means it prescribes.
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UPDATE -- Democrats Trying to Smear Thomas off the Court
In writing Friday's article on the Demorats' “gunning” for Justice Thomas, we we cited a letter from Rosylnn R. Mauskopf, Director of the Administrative Office of the United States Court's to Senator Sheldon Whitehouse, explaining the “personal hospitality exception” to 5 U.S.C. ¶ 7573.
We thought it suspiciously curious that Mauskopf's letter referred to an inquiry from Senator Whitehouse, dated 21 February 2023, concerning the same “personal hospitality” exception. That inquiry meant that prior to the “bombshell” Pro Publica report on Thomas' vacations, somebody on Capitol Hill was nosing about the Supreme Court's regulations concerning “gifts”.
In our mind, the inference was plain: the Democrats on the Hill and their scribblings in the media were out to get Thomas and, once he fell, Alito. The only problem was that two dots do not a connection make.
What I mean by this is simple. Two dots make a correlation, but something more is needed to flesh out either a cause or a conspiracy. In my case, that “cause” was my general historical knowledge of how humans behave in the political arena. Simply put, read enough and you get good at smelling shit.
But convincing others requires more than bragging “I am good at this stuff.” Well, as fate would have it the third point was published just this weekend, Truthout, a progressive on line source, which ran a headline entitled:
We thought it suspiciously curious that Mauskopf's letter referred to an inquiry from Senator Whitehouse, dated 21 February 2023, concerning the same “personal hospitality” exception. That inquiry meant that prior to the “bombshell” Pro Publica report on Thomas' vacations, somebody on Capitol Hill was nosing about the Supreme Court's regulations concerning “gifts”.
In our mind, the inference was plain: the Democrats on the Hill and their scribblings in the media were out to get Thomas and, once he fell, Alito. The only problem was that two dots do not a connection make.
What I mean by this is simple. Two dots make a correlation, but something more is needed to flesh out either a cause or a conspiracy. In my case, that “cause” was my general historical knowledge of how humans behave in the political arena. Simply put, read enough and you get good at smelling shit.
But convincing others requires more than bragging “I am good at this stuff.” Well, as fate would have it the third point was published just this weekend, Truthout, a progressive on line source, which ran a headline entitled:
Lawmakers Urge Chief Justice Roberts to Probe Clarence Thomas’s Secret Trips
calls mount for Thomas to be investigated after accepting millions in undisclosed gifts from billionaire Harlan Crow.
HERE
calls mount for Thomas to be investigated after accepting millions in undisclosed gifts from billionaire Harlan Crow.
HERE
Ho, ho, ho, ho ho-ooh. And who might those mounting lawmakers be perchance?
Breathlessly, Truthout reports that: “In a letter led [sic] by” Whitehouse... the Democrats ... cited Thursday's BOMBSHELL REPORT by Pro Publica....” etc.
Cunningly omitted was the fact that Whitehouse had been sniffing at the base of this bomb, at least, since February. The utterly fake narrative thus presented was that intrepid journalists from Pro Publica had uncovered a scandal, and now, the stunned and surprised Democrats were indignantly calling for an investigation.
Not, not and NOT. Not only does the letter “led” by Whitehouse confirm that he was looking for indignation back in February, it reveals without doubt that the Demorats and their scribblings in the media began circling their prey in June of 2011 (see links on page 2 of the letter.)
In that month Think Progress ran a story entitled:
Ah yes... the ubiquitous “linked to” so favoured by cops lying in their search warrant affidavits.... The essence of this scurrilous report was:
Other than this flagrant misstatement of fact, nothing in the article supports an inference that the American Enterprise Institute gave anything of value to Thomas.
Then, after falsely stating that it had, Think Progress back pedaled, with “To be clear, there is no direct evidence that Crow lavished gifts on Thomas in order to switch his vote in any of these cases. “
What Think Progress can't stand is that think-alike conservatives associate with one another and, in doing so, inform and support one another's outlooks. That is true but exactly the same might be said of the Democrats, of any one, and even of Marxists!!!
What it all boils down and stacks up to is that the Demorats are now embarked on a contrived and coordinated campaign to smear Thomas off the bench.
We have never argued that the Supreme Court should be “above politics.” The Supreme Court is eminently a political institution. To think or argue otherwise is just plain stupid. But it is a politics grounded in the constraints of grammar and logic as distinct from that other politics which is grounded in number and power.
The Democrats are degrading both. In consistently, resorting to trumped up scandals and repeated calls for the impeachment of their opponents, the Democrats are turning the politics of compromise and consensus into political bloodletting. They will rue the day; and, if they don't, then we will.
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“In a letter led by Sen. Sheldon Whitehouse (...)
Breathlessly, Truthout reports that: “In a letter led [sic] by” Whitehouse... the Democrats ... cited Thursday's BOMBSHELL REPORT by Pro Publica....” etc.
Cunningly omitted was the fact that Whitehouse had been sniffing at the base of this bomb, at least, since February. The utterly fake narrative thus presented was that intrepid journalists from Pro Publica had uncovered a scandal, and now, the stunned and surprised Democrats were indignantly calling for an investigation.
Not, not and NOT. Not only does the letter “led” by Whitehouse confirm that he was looking for indignation back in February, it reveals without doubt that the Demorats and their scribblings in the media began circling their prey in June of 2011 (see links on page 2 of the letter.)
In that month Think Progress ran a story entitled:
Second Harlan Crow Connected Group Has a Perfect Litigation Record Before Justice Thomas
Ah yes... the ubiquitous “linked to” so favoured by cops lying in their search warrant affidavits.... The essence of this scurrilous report was:
Harlan Crow ... donates to the American Enterprise Institute.It was worse. What Think Progress actually wrote was: “AEI filed at least three briefs in the Supreme Court after giving Thomas this very expensive gift.”
The American Enterprise Institute filed briefs in the Supreme Court.
Crow gave gifts to Thomas.
Q.E.D.
Other than this flagrant misstatement of fact, nothing in the article supports an inference that the American Enterprise Institute gave anything of value to Thomas.
Then, after falsely stating that it had, Think Progress back pedaled, with “To be clear, there is no direct evidence that Crow lavished gifts on Thomas in order to switch his vote in any of these cases. “
What Think Progress can't stand is that think-alike conservatives associate with one another and, in doing so, inform and support one another's outlooks. That is true but exactly the same might be said of the Democrats, of any one, and even of Marxists!!!
What it all boils down and stacks up to is that the Demorats are now embarked on a contrived and coordinated campaign to smear Thomas off the bench.
We have never argued that the Supreme Court should be “above politics.” The Supreme Court is eminently a political institution. To think or argue otherwise is just plain stupid. But it is a politics grounded in the constraints of grammar and logic as distinct from that other politics which is grounded in number and power.
The Democrats are degrading both. In consistently, resorting to trumped up scandals and repeated calls for the impeachment of their opponents, the Democrats are turning the politics of compromise and consensus into political bloodletting. They will rue the day; and, if they don't, then we will.
©
Anti-Gunners Gunning for Thomas
Anti-Gun Fanatics know that their efforts to erradicate guns from American society are ultimately doomed to failure when the measures they have undertaken finally reach the Supreme Court. Accordingly, they are determined to unpack the Court by running Justice Thomas from the bench by means of a vicious, vile smear campaign based on false charges and innuendo.
Legal Backgound
Thomas wrote the majority opinion in New York Rifle and Pistol Assoc. v. Bruen, which insulated the Second Amendment from so-called “balancing tests” designed to weasle around and readjust inconvenient legal provisions that are considered outmoded or inexpedient. These “tests” -- which are not “tests” in any scientific way -- are simply a form of rhetorical triangulation through which a law's alleged “social purpose” (given as point “C”) is used to move the law from point “A” to point “B”.
For example, the Sixth Amendment affirms the right to confront and cross-examine witnesses, in the flesh. Alas, a certain key witness may have died. Can the prosecution introduce a hearsay statement the witness gave to a neighbour shortly after the incident in question? Not unless a corpse can be cross-examined. But no problem, the requiremet can be “balanced” away. The real purpose of the right to cross-examination is to insure the “reliability” of testimony. But that's not the only way to insure “reliability.” The “trustworthiness” of a statement can be ascertained by other means; namely, by judges taking into account various factors and the totality of the circumstances in which the hearsay statement was made. Voilá. No need to cross-examine the corpse. Justices Scalia and Thomas debunked this “test” for what it was, and restored the right of cross-examination to its constitutional prominence.
Liberals have hated Scalia and Thomas ever since. Liberals don't much care about cross-examination; what really exercises them is taking away a “test” that allows them to read rights into and out of the Constitution, au gout. The debate on how to “interpret” law has been going on since the very beginning of the Court and it is interesting to see which justices fall on which side of the issue in any given case. But, as for the present, Liberals hate the fact that Scalia and Thomas opposed reading gay rights into the Constitution and prevented reading gun rights out of it.
Let's be clear about one thing. The majority of gun-control legislation being enacted by liberal bastion states is patently unconstitutional under Bruen and the liberal democrats know it. They don't care; they are throwing down the gauntlet. This was made abundantly -- indeed flagrantly -- clear by Governor Hochul who took to the podium to denounce the Bruen decision and then vowed to re-enact the very same law that the Court had just declared unconstitutional. The only changes Hochul made was to make the “new” law even more flagarantly unconstitutional.
The day the Bruen decision was handed down, Hochul took to the podium to denounce this “shocking absolutely shocking decision” that had “ taken away our rights to have resonable restrictions” on guns. [Watch]
Hochul was followed by a parade of activists:
Not only was the “revised” legislation cast in the teeth of the Court. Hochul knows it is unconstitutional. Under the “balancing test,” she said, the question was “do the means justify the infringement” And it is precisely that infringement that New York and copy cat legislation in Illinois, California and Washington seeks to effect.
But it cannot be effected so long as Thomas, the hated lynchpin, remains on the Court, and so the Liberals have now raised a new storm of outrage over what they say is Thomas' “corruption.” As is always the case with these sorts of smears, the proof lies in the salaciousness.
More to the point was 5 U.S.C § 7353 which prohibits “gifts” to federal employees. Under the act, “shall solicit or accept anything of value from a person— whose interests may be substantially affected by the performance or nonperformance of the individual’s official duties.” However, a supervising ethics office “is authorized to issue rules or regulations implementing the provisions of this section and providing for such reasonable exceptions as may be appropriate.”
As regards the Supreme Court, the supervision ethics office is the Judicial Conference of the United States Committee on Financial Disclosure. That committee previously carved out an exception for personal hospitality extended for a non business purpose. In other words, having dinner at a friend's house, or spending an afternoon on his yacht, or vacationing with him at a dude ranch he owns, is not considered a “gift” under Section 7353.
From that empty point of departure, Pro Publica went on to list all the non gifts Thomas had received from Harlan Crow. Crow, we are told:
In case Pro Publica hasn't heard, the United States is an oligarchy. It is ruled by a numerically small caste of ultra-wealthy individuals and families, who are interconnected by school ties, business ties, political orientation, cultural interests, inter-marriages and inter-divorces. Take any prominent person, go Wiki and follow the links on who their parents were, who their spouses are, whom they clerked for, campaigned for, worked for and were recommended by.... Within clicks you will enter into the vast incestuous network that is the United States' ruling class.
This network divides into sub-networks according to region (East, West, South, Midwest...) and nature of activity (defence, finance, health, environment, law, social causes). But they are all networks nonetheless and this means that they involve people meeting one another, talking to one another, scratching each other's backs and sucking each other off... literally and metaphorically. If this were to stop, the country would cease to function.
What about George Soros or Bill Gates? Do they not meet up with their acolytes and fund their causes? The billionaire Pritzker family has been actively funding trans-gender causes (in tandem with vested medical interests). Governor Pritzker made two half million dollar donations to the successful campaigns of two sitting state Supreme Court justices. Does Pritzker not have business before the court? What does Pro Publica have to say about that? Nothing, because Pro Publica likes Pritzker's political orientation and is offended by Thomas's.
Ruling caste networks are noting unique to the United States. All countries at all times are so ruled, and this caste, by whatever name it may be known, always operates on the basis of unwritten (“secret”) understandings and favours. 18 U.S.C. § 201 outlaws bribery -- the giving or offering of anything of value for the purpose of influencing an official act. This is colloquially known as the quid pro quo statute, and it outlaws the tip of the iceberg.
Section 7353 slides down a little further. It prohibits federal employees from accepting “anything of value” from a person “doing business with, or conducting activities regulated by, the [recipient's] employing entity.” Thus, even if there is no express or even tacitly understood qui pro quo, if you have business before the E.P.A you cannot make a gift to an employee of the E.P.A. On its face, this is a form of strict liability.
However, subdivision (a)(2) goes further. It prohibits gifts from a person “whose interests may be substantially affected by the performance or nonperformance of the individual’s official duties.” On its face, this provision would make it impossible for any Supreme Court justice to accept anything of value from anyone, because the very nature of the Supreme Court is to issue rulings which substantially affect either all of our interests or those of large chunks of people.
Congress was aware of the fact that it had legislated overbroadly and for that very reason Section (b)(1) set up a “supervising ethics office...to issue rules or regulations implementing the provisions of this section and providing for such reasonable exceptions as may be appropriate.” In other words, let some committee figure it out.
Not surprisingly the Judicial Conference on [ ] Financial Disclosure, determined that accepting a trip on a billionaire oil-man's yacht was not a prohibited type of gift. This is known as the “personal hospitality” exception to Section 7353. Judge Thomas states that he asked the committee for its advice ands followed its advice on whether his trips and visits with Crowe were required to be reported.
In March of this year, the Judicial Conference revised its rule so as to disallow the “personal hospitality” exception for anything more than being taken out to dinner or visiting a person's home for “non business” purposes. The Conference explicitly affirmed the “substantially affected” clause of subdivision (a)(2). How, the justices of the Supreme Court will abide this rule, remains to be seen. Perhaps they will all have to follow the example of Justice Van Devanter (loathed by liberals because he struck most the New Deal) who lived alone in a hotel room for the entirety of his tenure on the Court and associated with no one except his Presbyterian church and a childrens charity.
But whatever the case, Justice Thomas did nothing wrong and as for appearances, they were no different than those of any other justice on the Court, none of whom have the decency to follow Van Devanter's monkish example.
What is truly choice in all of this is that Ruth Bader Ginzburg, icon and idol of the left, got her position on the Court of Appeal and then on the Supreme Court only on account of intense “personal hospitality” efforts of her husband, a major donor to the Democratic Party. Not a peep from the left on that.
As for the liberal base of Pro Publica, the FemGuardian and the New York Slime , they will live to rue the vicious and vile smear game they have begun with such feigned outrage and fake tears of piety.
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For example, the Sixth Amendment affirms the right to confront and cross-examine witnesses, in the flesh. Alas, a certain key witness may have died. Can the prosecution introduce a hearsay statement the witness gave to a neighbour shortly after the incident in question? Not unless a corpse can be cross-examined. But no problem, the requiremet can be “balanced” away. The real purpose of the right to cross-examination is to insure the “reliability” of testimony. But that's not the only way to insure “reliability.” The “trustworthiness” of a statement can be ascertained by other means; namely, by judges taking into account various factors and the totality of the circumstances in which the hearsay statement was made. Voilá. No need to cross-examine the corpse. Justices Scalia and Thomas debunked this “test” for what it was, and restored the right of cross-examination to its constitutional prominence.
Liberals have hated Scalia and Thomas ever since. Liberals don't much care about cross-examination; what really exercises them is taking away a “test” that allows them to read rights into and out of the Constitution, au gout. The debate on how to “interpret” law has been going on since the very beginning of the Court and it is interesting to see which justices fall on which side of the issue in any given case. But, as for the present, Liberals hate the fact that Scalia and Thomas opposed reading gay rights into the Constitution and prevented reading gun rights out of it.
Let's be clear about one thing. The majority of gun-control legislation being enacted by liberal bastion states is patently unconstitutional under Bruen and the liberal democrats know it. They don't care; they are throwing down the gauntlet. This was made abundantly -- indeed flagrantly -- clear by Governor Hochul who took to the podium to denounce the Bruen decision and then vowed to re-enact the very same law that the Court had just declared unconstitutional. The only changes Hochul made was to make the “new” law even more flagarantly unconstitutional.
The day the Bruen decision was handed down, Hochul took to the podium to denounce this “shocking absolutely shocking decision” that had “ taken away our rights to have resonable restrictions” on guns. [Watch]
Hochul was followed by a parade of activists:
“With this action, New York has sent a message to the rest of the country that we will not stand idly by and let the Supreme Court reverse years of sensible gun regulations." (Lt. Gov. Antonio Delgado.)
What the Supreme Court didn’t take into account when they ruled on Bruen is that New Yorkers are tough, and this fight is far from over, (Mom's for Action)
“If NRA leaders thought New Yorkers would roll over when the Supreme Court recklessly struck down a portion of a hundred-year-old gun safety law, they don’t know New Yorkers very well,” (Everytown for Gun Safety)
Our elected leaders in New York have accomplished a remarkable feat today — fixing, in just a few days, a problem the Court has created with their dangerous decision-making, (Mom's for Action)
“The Bruen decision made by extremist, unelected judges was wrong and dangerous, and now our grassroots army is working with our elected officials to make it right. (Mom's for Action.)
Not only was the “revised” legislation cast in the teeth of the Court. Hochul knows it is unconstitutional. Under the “balancing test,” she said, the question was “do the means justify the infringement” And it is precisely that infringement that New York and copy cat legislation in Illinois, California and Washington seeks to effect.
But it cannot be effected so long as Thomas, the hated lynchpin, remains on the Court, and so the Liberals have now raised a new storm of outrage over what they say is Thomas' “corruption.” As is always the case with these sorts of smears, the proof lies in the salaciousness.
Pro Publica's hit piece starts off with the allegation “For more than two decades, Thomas has accepted luxury trips virtually every year from the Dallas businessman [Harlan Crow] without disclosing them. ... The extent and frequency of Crow’s apparent gifts to Thomas have no known precedent in the modern history of the U.S. Supreme Court.”Apparent? That one word betrays the shabbiness of the work. Ah... but there was not one betrayal but two.
"[Thomas'] failure to report the flights appears to violate a law passed after Watergate that requires justices, judges, members of Congress and federal officials to disclose most gifts, two ethics law experts said. He also should have disclosed his trips on the yacht, these experts said."Needless to say, Pro Publica did not bother to mention which law Thomas “apparently” violated. 28 U.S.C. § 455 requires a judge to disqualify himself if he has a financial interest in the case or previously represented a party in the case or had personal knowledge of facts in dispute. That was not within the gist of Pro Publica's allegations.
More to the point was 5 U.S.C § 7353 which prohibits “gifts” to federal employees. Under the act, “shall solicit or accept anything of value from a person— whose interests may be substantially affected by the performance or nonperformance of the individual’s official duties.” However, a supervising ethics office “is authorized to issue rules or regulations implementing the provisions of this section and providing for such reasonable exceptions as may be appropriate.”
As regards the Supreme Court, the supervision ethics office is the Judicial Conference of the United States Committee on Financial Disclosure. That committee previously carved out an exception for personal hospitality extended for a non business purpose. In other words, having dinner at a friend's house, or spending an afternoon on his yacht, or vacationing with him at a dude ranch he owns, is not considered a “gift” under Section 7353.
From that empty point of departure, Pro Publica went on to list all the non gifts Thomas had received from Harlan Crow. Crow, we are told:
is an influential figure in pro-business conservative politics, [!]Thomas
was an early patron of the powerful anti-tax group Club for Growth and has been on the board of AEI for over 25 years. [!]
sits on the board of the Hoover Institution, another conservative think tank. [!]
has donated to the Federalist Society and given millions of dollars to groups dedicated to tort reform and conservative jurisprudence. AEI and the Hoover Institution publish scholarship advancing conservative legal theories [!]
boarded a large private jet headed to Indonesia. If he had hired a private jet it would have cost $500,000.00 [!]And this proves, what exactly?
Thomas typically spends about a week every summer at Crow’s private resort in the Adirondacks. [!]
gone with Crow to the Bohemian Grove, [!]
and so on...]
Through his largesse, Crow has gained a unique form of access, spending days in private with one of the most powerful people in the country.Nothing in this crescendo of indecencies shows that Crow or Thomas did anything illegal. Pro Publica admits that “[t]he pair have become genuine friends, according to people who know both men.” What outrages the liberal rag is that two conservatives meet, socialize and talk about stuff. Oh the corruption!!!
The extent and frequency of Crow’s apparent gifts to Thomas have no known precedent in the modern history of the U.S. Supreme Court.
Oh the Bullshit
In case Pro Publica hasn't heard, the United States is an oligarchy. It is ruled by a numerically small caste of ultra-wealthy individuals and families, who are interconnected by school ties, business ties, political orientation, cultural interests, inter-marriages and inter-divorces. Take any prominent person, go Wiki and follow the links on who their parents were, who their spouses are, whom they clerked for, campaigned for, worked for and were recommended by.... Within clicks you will enter into the vast incestuous network that is the United States' ruling class.
This network divides into sub-networks according to region (East, West, South, Midwest...) and nature of activity (defence, finance, health, environment, law, social causes). But they are all networks nonetheless and this means that they involve people meeting one another, talking to one another, scratching each other's backs and sucking each other off... literally and metaphorically. If this were to stop, the country would cease to function.
What about George Soros or Bill Gates? Do they not meet up with their acolytes and fund their causes? The billionaire Pritzker family has been actively funding trans-gender causes (in tandem with vested medical interests). Governor Pritzker made two half million dollar donations to the successful campaigns of two sitting state Supreme Court justices. Does Pritzker not have business before the court? What does Pro Publica have to say about that? Nothing, because Pro Publica likes Pritzker's political orientation and is offended by Thomas's.
Bribe versus Gift
Ruling caste networks are noting unique to the United States. All countries at all times are so ruled, and this caste, by whatever name it may be known, always operates on the basis of unwritten (“secret”) understandings and favours. 18 U.S.C. § 201 outlaws bribery -- the giving or offering of anything of value for the purpose of influencing an official act. This is colloquially known as the quid pro quo statute, and it outlaws the tip of the iceberg.
Section 7353 slides down a little further. It prohibits federal employees from accepting “anything of value” from a person “doing business with, or conducting activities regulated by, the [recipient's] employing entity.” Thus, even if there is no express or even tacitly understood qui pro quo, if you have business before the E.P.A you cannot make a gift to an employee of the E.P.A. On its face, this is a form of strict liability.
However, subdivision (a)(2) goes further. It prohibits gifts from a person “whose interests may be substantially affected by the performance or nonperformance of the individual’s official duties.” On its face, this provision would make it impossible for any Supreme Court justice to accept anything of value from anyone, because the very nature of the Supreme Court is to issue rulings which substantially affect either all of our interests or those of large chunks of people.
Congress was aware of the fact that it had legislated overbroadly and for that very reason Section (b)(1) set up a “supervising ethics office...to issue rules or regulations implementing the provisions of this section and providing for such reasonable exceptions as may be appropriate.” In other words, let some committee figure it out.
Not surprisingly the Judicial Conference on [ ] Financial Disclosure, determined that accepting a trip on a billionaire oil-man's yacht was not a prohibited type of gift. This is known as the “personal hospitality” exception to Section 7353. Judge Thomas states that he asked the committee for its advice ands followed its advice on whether his trips and visits with Crowe were required to be reported.
In March of this year, the Judicial Conference revised its rule so as to disallow the “personal hospitality” exception for anything more than being taken out to dinner or visiting a person's home for “non business” purposes. The Conference explicitly affirmed the “substantially affected” clause of subdivision (a)(2). How, the justices of the Supreme Court will abide this rule, remains to be seen. Perhaps they will all have to follow the example of Justice Van Devanter (loathed by liberals because he struck most the New Deal) who lived alone in a hotel room for the entirety of his tenure on the Court and associated with no one except his Presbyterian church and a childrens charity.
But whatever the case, Justice Thomas did nothing wrong and as for appearances, they were no different than those of any other justice on the Court, none of whom have the decency to follow Van Devanter's monkish example.
What is truly choice in all of this is that Ruth Bader Ginzburg, icon and idol of the left, got her position on the Court of Appeal and then on the Supreme Court only on account of intense “personal hospitality” efforts of her husband, a major donor to the Democratic Party. Not a peep from the left on that.
As for the liberal base of Pro Publica, the FemGuardian and the New York Slime , they will live to rue the vicious and vile smear game they have begun with such feigned outrage and fake tears of piety.
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The Rights of Recruits to be issued Arms....
As viewable on Colion Noire's blog, some Anti-Gun Jihadist was constitution thumping and declaiming (in an angry tone of voice to be sure) that “The Congress shall have Power. . . To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; . . . “ and “to provide for organizing, arming and disciplining the militia. “ (Art. I, § 8.) This supposedly proved that there was no such thing as an individual right to possess arms but rather that the Second Amendment did no more than refer to various enumerated powers in Section 8. Barking straight into the camera: “that means you get your militia arms from the government. You don't get to buy them by yourself.”
In other words, the Bill of Rights guarantees the "right" of a recruit to be issued arms upon being drafted. Brilliant!
If emphasis won arguments, this crusader certainly won the day. But informed reason and logic are seldom found in noise. What this anti-gunner, who goes by the name of Adrian Fontes, seems to have forgot the Militia Act of 1792, which provided for the enrollment of “every free able-bodied white male citizen” between the ages of 18 and 45 into a militia company...." Section 1 of the Act specified,
You also don't get to understand things simply by pounding the literal text of a document. Sola Scriptura may work in mathematics and certain branches of abstract philosophy but in literature and law the meaning of words has to be derived from their social and historical context. Americans have a strong tradition of pounding the plain meaning of words from a sorely-beaten text. Alas, the true meaning of something tends to be more nuanced; and, in our present case, nuance originates in medieval England.
In other words, the Bill of Rights guarantees the "right" of a recruit to be issued arms upon being drafted. Brilliant!
If emphasis won arguments, this crusader certainly won the day. But informed reason and logic are seldom found in noise. What this anti-gunner, who goes by the name of Adrian Fontes, seems to have forgot the Militia Act of 1792, which provided for the enrollment of “every free able-bodied white male citizen” between the ages of 18 and 45 into a militia company...." Section 1 of the Act specified,
“That every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.”So yes, Instructor Fontes, you do get to buy them by yourself. In fact, you were required to.
You also don't get to understand things simply by pounding the literal text of a document. Sola Scriptura may work in mathematics and certain branches of abstract philosophy but in literature and law the meaning of words has to be derived from their social and historical context. Americans have a strong tradition of pounding the plain meaning of words from a sorely-beaten text. Alas, the true meaning of something tends to be more nuanced; and, in our present case, nuance originates in medieval England.
The Assize of Arms - Hen. 2 (1181)
Whoever possesses one knight's fee shall have a shirt of mail, a helmet, a shield, and a lance; and every knight shall have as many shirts of mail, helmets, shields, and lances as he possesses knight's fees in demesne.In early Anglo-Saxon days, common defence was based on the fyrd -- an army mobilised from freemen to defend the local area or to join in a royal expedition. The idea was simple: a freeman was expected to be armed and to respond to a summons with whatever he had of use in the cause. King Henry's statute was designed to impose some regularity as to what kind of arms a free man should possess. And it might be noted that they were all weapons of war! designed to kill!!!!
Moreover, every free layman who possesses chattels or rents to the value of 16m. shall have a shirt of mail, a helmet, a shield, and a lance; and every free layman possessing chattels or rents to the value of 10 marks shall have a hauberk, an iron cap, and a lance.
Item. All burgesses and the whole community of freemen shall have a gambeson, [padded doublet] an iron cap and a lance;
If anyone having these arms die, his arms shall remain to his heir. If, however, the heir is not of age to use arms in time of need, that person who has wardship over him shall also have custody of the arms and shall find a man who can use the arms in the service of the lord king until the heir is of age to bear arms, and then he shall have them
Item, no Jew shall keep in his possession a shirt of mail or a hauberk, but he shall sell it or give it away or alienate it in some other way so that it shall remain in the king's service.
(And lest anyone think that a sword was just a silly pokey type of thing. Not. It was a highly crafted very lethal, forged steel razor blade that could clear cut through a limb as through butter. )
The straight line from statute of 1181 to the act of 1792 ran through the entire course of English history. That history shows that the English were an armed people and that collective defence, whether local or national, depended on calling forth men who were armed and trained in arms.
A decree of Edward III in 1363 provided that:
“Whereas the people of our realm, rich and poor alike, were accustomed formerly in their games to practise archery – whence by God's help, it is well known that high honour and profit came to our realm, and no small advantage to ourselves in our warlike enterprises...[be it decreed] that every man in the same country, if he be able-bodied, shall, upon holidays, make use, in his games, of bows and arrows... and so learn and practise archery.” (Morgan, R.B., ed. Readings in English Social History: From Pre-Roman Days to AD 1837. Cambridge University Press. (2014) [1st pub. 1923] p. 150.)Likewise, a decree of Henry VIII ordered that every village was to maintain targets on its green on which local men were to practice shooting “in holy days and other times convenient.”
This long-standing tradition of the fyrd was accepted as a matter of course by the Colonists. They hardly needed to legislate on the matter for it was simply the custom and usage of the land.
There is a deleterious tendency among Americans to think that upon crossing the pond, the Colonists started a “new” society and forgot the old. On the contrary, the baggage they brought over as much included English law as it did English.
That said, a kind of reverse historical dynamic arose. As one might imagine, medieval England was something of a wild place. There were multiple invasions by or battles with Danes, Normans, Scots and Irish. There were vast solitary areas of forest, heath and bog. As of the early 17th century, England became more settled and urbanized. Even the protracted Civil War from 1649, (when Charles I was beheaded) to 1688 (when James II was run out of town), had more of a modern than medieval quality.
But as 1607 and 1619, the situation in America went backward, toward a more primitive wildness. The only difference was that Danes, Normans, Scots and Irish got replaced with Iroquois, Mohicans, Cherokee and so on. Of necessity, the tradition of the fyrd acquired a new vitality. Thus, it is hardly surprising then that Connecticut, Maryland, Virginia South Carolina, and Georgia all required men to carry arms at church.
No man able to bear arms to go to church or Chappell ... without fixed gun and 1 charge at least of powder and shot."(Maryland)AND
"All persons whatsoever upon the Sabaoth daye [who] frequente divine service and sermons ... [to] beare armes [and] bring their pieces swordes, poulder and shot (Virginia)At least two colonies required carrying arms to other public public gatherings. For example a ordinance in Rhode Island provided: "It is ordered, that no man ... shall come to any public Meeting without his weapon." Virginia, Massachusetts, Rhode Island, and Maryland all enacted some requirements for travellers to carry arms.
Doubtless, as things settled down, some of these expedients fell into disuse. Nevertheless, the fyrd now called a militia remained the principal way in which the Colonists provided for their defence, and no one questioned the right and the duty of able-bodied men to keep arms.
What was open to question, both in England and in the newly independent United States was the relationship between a “militia” and a regular “army;” between local authority (whether called a state, a “county,” “duchy,” or “baronage” ) and the central authority (whether called the “king” or the “federal government.”)
At this point, we have to mention that at no time did the King not maintain a core army. In fact, the whole purpose of “knights” was to serve as a professional “officer” corps, which freemen would support and by whom they would be directed.
When freemen were actively enrolled in the King's army for a campaign, they undoubtedly fell under what we would call military discipline. It could hardly be otherwise. But they were not a standing army.
As of the 17th century, with Cromwell's establishment of a “Model Army” the concept of a true standing army began to gain hold. But precisely because England was at war with itself at the time who controlled the army and “what about the militia?” became unclear. When the monarchy was restored, Charles II's first concern was to disband the army which was almost exclusively Protestant. When these rebanded as “militia,” he went after those. Thus, after James II was exiled, the 1688 Bill of Rights guaranteed the right of Protestants to keep arms for their defence (while at the same time the Crown went about disarming the Irish and taking their horses, to boot).
Things were a little more harmonious in the colonies, but equally ambiguous. Each colony had its own militia system. But, very nicely and free of charge, the Crown also provided regular army contingents to defend the colonies as a whole against the French, Indians and Spanish. The colonists were very happy with this arrangement... perhaps precisely because it provided the flexibility of ambiguity. They only became displeased with the regular army when it was used to confiscate illegal rum, enforce limitations on commerce or -- horror of horrors -- actually protect the Indians!!!
(Oh yes! If Americans actually read beyond the preamble of the Declaration of Independence, which the likes of Obama never tired of reciting ad nauseam, they might discover a thing of two.)
This ambiguous colonial situation replicated itself in the Constitutional Convention of 1787-1789. As is well known, the core tug of war at the convention was the power-relationship between sovereign states and the new national government. This was a repeat, under modern labels, of the old medieval tug-of-war between the barons and the king; at any rate: central authority versus local autonomy. This tugging and its fudging are at the heart of American Liberalism (as opposed to the French varietal which is much more logical but, in my view, less satisfactory).
As respects the army and the militia, there were basically three viewpoints: (1) that of the “radical Whigs” who wanted nothing but State run, popular, local militias and were hostile to any standing army; (2) that of the “moderate Whigs” who agreed but saw the necessity for some kind of standing army or core of trained professionals, and (3) Hamiltonians, who admired the French model, wanted a strong national Army and Navy and (by the way) saw no need for a Bill of Rights, on the ground that since “the People” were now sovereign how could they possibly reserve rights against themselves. (Logique, n'est ce pas?)
In true British fashion, the newly minted Americans fudged. The First Fudge was found in Enumerated Powers of Section 8, which granted Congress the power to:
(a) To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;Clearly, these enumerations were a balancing act. It must be asked, if Congress has the power to “raise and support” an Army and to “provide and maintain” a Navy, why bother with militias at all? Just raise such armies and navies as Congress sees fit. That's the way Frederick the Great did it! But ...oh no... something called “the Militia” is distinctly preserved. If you didn't know the history you might be excused from wondering what the difference between and “army” and a “militia” was. The text itself doesn't tell you.
(b) To provide and maintain a Navy [note: no two year limitation];
(c) To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
(d) To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.
But what historical tradition tells us is that those state-based popular armies, based on an armed citizenry, were implicitly preserved. What the Constitution granted was the power “to provide for the calling forth” of them. Huh?
Why the pussy-footing? If Congress has the power to raise an army why doesn't it simply have the power to “call forth” the militia? Clearly, the Framers were ill-at-ease here, so they gave Congress the power to make preparations for that day when Congress might call forth the militias. The last clause gave some indication as to what this might entail; namely, to provide for arming and disciplining the Militia and governing that part of them as may be employed in national service. In other words, actual “active duty” federal control over the Militia only applied when and to the extent the militia were called forth and employed in federal service. Otherwise, what Congress has the power to do is to provide uniformity of regulations and, if desired, funding. In other words, the state militias were preserved, but since the Framers didn't want this to end up as a useless hodgepodge of different arms and regulations, Section 8 allowed Congress to provide uniform standards for such time as they might be employed by the federal government. (Think of the effort to “coordinate” the national armies within NATO.) However, none of this gave Congress the power to take over the militia or even to issue arms to the militia, as a general propostion.
As is well known, Madison and others remained ill-at-ease with the powers accorded to the federal government, and in order to counter-balance Section 8's grant of powers, they insisted on a Bill of Rights making explicit what powers were not granted. It is within this context that the Second Amendment must be understood.
That Amendment killed two birds with one stone. It made clear, albeit obliquely, that the militias of a “free state” were preserved. But it also made clear that the fyrd too is preserved. The medieval and colonial system of a militia that is drawn from a pre-existing armed population was expressly confirmed by “the right to keep and bear arms.”
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I have never been hostile to the argument that “to bear arms” might refer to bearing them “in service.” I think it clearly has that meaning. But within the thousand year arc of English and Colonial history, it also meant to bear them as individuals for general purposes. Issuing from and calling upon English tradition, the Framers expected men to render military service but that did not mean that they were otherwise unarmed; on the contrary, they were armed in expectation of military service and for other purposes. Nothing in legal text or history or social conditions supports such a contrary contention.
Adrian Fontes makes the anachronistic mistake of thinking that Section 8 modifies the Second Amendment. Nope. The Second Amendment was designed to clarify Section 8.
Further clarification was provided by the Militia Act of 1792 which, as stated, went the other way, giving Congress general oversight of the militia. In the original act, the president's power to “call forth” (or “activate” in modern usage) the militia was made contingent on his obtaining a judicial warrant for that purpose. In light of “disturbances” in the West which required swift action, this embarrassment was removed in 1795; henceforth, the president had summary authority to call forth the militia as needed for federal purposes.
Unfortunately, the propensity to use words carelessly confuses things. Many summaries on Google state that the Militia Act (1792) provided for the "conscription" of adult age males. The word conscription implies a standing militia of men on active duty. That was not the case. The Act required the enrollment of males aged 18 to 45. What this meant, in modern language, was that men were registered for the militia, akin in modern times to registering for the draft. The States might prescribe when the militias were “called out to exercise” and/or what discipline should be followed when called “into service;” but otherwise men were free to go about their business.
The popular and haphazard nature of the militias in the early nineteenth century cannot be stressed enough. The language of the statutes are much more “imposing” than the reality. When Abraham Lincoln was a young man, the militia in his district was called forth by the governor to suppress some disturbance up-river. The men gathered together on the green with whatever guns and knives they had and wondered what to do. Well... first thing was they needed a leader and so they elected Lincoln (who was the tallest of the bunch and good at wrestling) to be their captain. Lincoln himself had little idea of what to do and so he ordered his men to march up-river. After marching up and around, pitching camp, and telling stories around the campfire, they marched around and back down, and then disbanded. Mission accomplished. Doubtless, there were other better regulated militias, but what I wish to stress is the popular nature of the militia as free men assembled with arms.
In my opinion, the core theme of the Bill of Rights is to preserve three main popular assemblies of citizens: (1) assembling to peaceably petition; (2) assembling with arms and (3) assembling as juries. In the Hamiltonian scheme there is no need for any of these. Once legislators are duly elected by free citizens, there is no need for the demos to meet and petition (i.e. raise a ruckus). Write to your congressman or vote him out. As for trials, what an absurdity to allow a bunch of untrained and probably half literate yahoos to investigate the facts and apply the law! Law is a matter for professionally trained judges, as in France. As for assembling with arms, if you want to do that enlist in the King of Prussia's army. But this was not the English or the American way. If anyone thinks that juries were much different from Lincoln's militia band, think again.
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| A jury of peers |
But as Justice Scalia wrote, the jury was preserved as a circuit breaker against judges too much in the employ of the Government. So too the other two rights.
No government can provide for its own dissolution; and, indeed, one of the impetuses for calling the constitutional convention was the need to put down rebellions that had broken out. Government must oppress, otherwise anarchy prevails. At the same, time the Framers did not want it to have unlimited powers of oppression. The original Constitution established a system of split sovereignty coupled with republican "checks and balances." The Bill of Rights added specific limitations coupled to the further bullwark of popular circuit breakers.
Make no mistake, the jury has the power to “return a verdict in the teeth of the law and the facts.” We don't encourage them to do so, but they retain the power so to do. Similarly, the Framers retained to the people the power of popular protest and the power to resist tyranny. In Federalist Paper 10, Madison discussed the risks and dangers of free speech; and yet to abolish it, he wrote, would make as little sense as abolishing air simply because oxygen imparts force to fire. Again, in Federalist Paper 78, Madison specifically notes that the popular retention of arms is a bulwark against tyranny. Is there any child that does not understand that "tyranny" as often as not operates under colour of law and is imposed by those who legitimately acquired power?
To some, the constitutional edifice may seem a ridiculous muddle and hodgepodge. But as Justice Holmes famously said, “the life of the law is not logic but experience.” (N'est ce pas?)
The experience of the colonists was such that while establishing a stronger central government, they nevertheless retained the limited sovereignty of the states, popular powers and the autonomy of the individual as both a responsible and participating member of society. Unlike Justice Breyer's “bureaucratic world of perfect equity” and safety, the system may be theoretically muddled but it preserves the ability to remain free.
In the nineteenth century numerous issues arose concerning what was a “federal purpose” and in what manners concurrent state-federal jurisdiction operated with respect to the militias.
What can be said briefly, is that over the course of a century, the militias gradually metamorphosed into the National Guard and the Army, which started out in 1790 as a regiment of 700, grew into a standing, professional military, the very thing the Founders had feared. Worse, during reconstruction and industrialization, the Army itself was used to put down “insurrections,” “disturbances” and labour strikes, culminating in General MacArthur's outrageous suppression of the veteran Bonus Marchers.
But all of this is policy. The principle of the matter remains the Second Amendment which stands before and above all else. Attempts to reduce the Bill of Rights to a mere iteration of expediencies reflects a profoundly subversive misunderstanding of the American political concept.
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More Medicine! More Medicine!
Another shooting and another storm of hysterical outrage from all the usual suspects, resorting to all the usual rhetorical tricks and traps. "Yet another ...!", "How long Oh Lord....?" and "Give us more gun control! Give us more gun control!"
What I find contemptible is that the facts of the case are barely known and yet the cry goes up for more gun control. Don't we at least need a diagnosis based on facts before we know what medicine to prescribe? Or will any medicine do so long as it is in a big enough dose.
What is known as of this writing is that the assailant, a 28 year old woman, was armed with two "assault style rifles" and a handgun, or so it is reported. It is important to the copy writers at the New York Times to work in assault style rifles in some manner; but were they actually used to do the shooting?
Has anyone paused their scribbling long enough to ask how in hell one walks about with two rifles and a pistol? It seems rather cumbersome to me and leads directly to the question of: how was what handled when?
Was the woman actually carrying all three weapons? Often in these reports the word "armed" is used to describe the fact that guns were located in the trunk of a car or some such. So, was she armed in this (misleading) sense or was she actually carrying?
My suspicion is that the shooting was done with the pistol which was probably a semi-automatic. But I don't know and I can't draw any conclusions about anything until I do know.
What I do know is that the facts are irrelevant to the usual suspects. The anti-gun hysterics are shedding crocodile tears and pumping "yet another shooting" of innocent children for all it is worth in their crusade to nullify the Second Amendment.
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Mexico: A Case Study in Gun Control
About 20 years ago, I took a trip to Mexico. I arrived as scheduled and took a cab to the house where I would be staying. The house was located in a very upscale neighbourhood of Mexico City -- the sort of place where there is no commercial hustle and bustle and where stately houses sit behind gates and walls. No one answered the door.
WTF? After ringing and waiting, I began to think that perhaps we had gotten my time of arrival mixed up. For some reason, I had packed my watch, and so I sat on my suitcase wondering what to do and what time it was. (Yes... there was a time before cell phones.)
As I sat, a young man in his early thirties came out of an adjacent residence and headed toward a parked car. He had a watch. So I got up, walked over toward him and in correct and flawless Spanish said, “Excuse me, señor, but you wouldn't happen to...”
He immediately snapped to. A look of fear and dread came over him and he quite literally ran to his car, open and slammed the door and drove away in a panic.
WTF? Mexico had always been a friendly and, most of all, a courteous place and in many ways it still is. This sort of reaction was inconceivable to me.
My hosts eventually arrived and I told them about this encounter ending with, “...and as you can see, I was dressed neatly” in loafers, slacks and Brooks Brothers shirt.... “Ah well,” my host replied, “that was probably what set him off...”
WTF? As it turns out, Mexico was experiencing a “epidemic” of kidnappings. The standard modus operandi was for a neatly dressed gentleman to politely approach and take you off-guard, at which point accomplices would emerge from nowhere and hustle you into a waiting car. Then the call...
Kidnappings have gotten so ubiquitous that there are now professional “kidnap brokers,” sitting behind shiny desks in fancy offices, whose job (for a fee) is to negotiate the ransom with or without the interference of the police as the case may be. Sometimes the negotiations work; sometimes the don't.
Mexico has strict gun control. You can possess certain firearms in your home or designated places, but they must be registered and licensed. As many American tourists have discovered to their grief, failure to comply can lead to a five year prison sentence. “As with much of the rest of Mexican law enforcement, corruption is a major element of the gun licensing system.”
I have always laughed at how gringos misconceive of Mexico and how they confuse politeness and reserve with lack of ingenuity or initiative. The difficulty to legitimately acquire firearms has led to a gun-rental business through which criminals can rent the guns they need for the occasion.
Of course, the bigger criminals are themselves the gun cartels...
Gun control, clearly works, right?
But! But! But! the gun control fetishists will reply, look at Denmark, Norway and Sweden. They have gun controls and they are perfect societies! Precisely. They are perfect societies but not because they have gun control.
As usual American liberals got it inside out and upside down. If gun control works in European countries, it is only because those societies have already achieved a certain level of social justice and economic security which are the cornerstones of a sense of community which in turn is the actual precondition for law and order. American Republicans likewise got it backwards in thinking that “law and order” gives rise to a sense of community. Nope.
All one has to do is compare Mexico to Sweden. Mexico far outpaces Sweden in cultural and economic vitality and in gross-domestic product. It is currently the 15th strongest economy in the world, at least 15 places ahead of Sweden. But for all that, Mexico suffers a very high level of economic disparity. Per capita GDP in Sweden is 60K a year; in Mexico, 10K. In other words, Mexico suffers from acute income disparity; Sweden does not.
Income disparity is not the only indicator of everything. But one has to be an idiot not to know, at this point, that crime and poverty are handmaidens. It's really very simple. The word “community” derives from “com” + muneris, meaning mutual service or obligation. In other words, a society in which all look out for each, and each owes a responsibility to the whole. When community is lacking, “self-help” of necessity prevails.
Mexico has a crime problem because it has an economic disparity problem. The same is true in the United States, despite the fact that it is still the wealthiest country in the world. In fact its tremendous wealth actually distorts the significance of the figures. Per capita income of GDP in the United States in 70K a year, but for 50% of the country it is under 50K. The individualized median income is 30K. In other words, in terms of income distribution, the United States is more like Mexico than Sweden.
There was a time, back in the Fifties and Sixties, when the United States was more like Sweden; but our political and financial elites, Demorat and Republoscum alike, intentionally decided to Mexicanize the country back in the late 70's and 80's. To put it simply: the gig economy (scrambling for scraps) is the diametric opposite of community; and, as I have said, without community there is no cohesion and hence more crime.
I have little patience with Republicans and their inane and outdated Smithian yap about free markets, rising tides and trickle-down. Trust me; it is dead on arrival. All economics has always been the result of intervention. The issue is the kind of intervention we want. When I listen to Republicans blabbering about “too many dollars chasing too few goods” I have to wonder if they are really that stupid or if they are just whores to the corporations unilaterally raising prices because they can get away with it.
But I have even less patience with liberals, who have avoided underlying issues in their own inimitable and equally inane way. Has anyone ever noticed how liberals are always chasing after some issue -- the race issue, the women issue, the disability issue, the gay issue, the trans issue, the gun-safety issue... ANYTHING but the 401(k) issue...
Liberals are culled from the upper middle class; the “Ten Percent”. They instinctively know (that is, they know without knowing it) who and what butters their bread. Oh yes! Housing affordability is a crisis! Something must be done! And what might that be? Building more houses, so as to increase supply and hence lower prices? And then? What happens to your little “nest egg” of ever-appeciating real estate value? Some 30 something can't afford a house and your 60-something “nest egg” just doubled in value and you don't see the connection? Are you as stupid as Republicans?
This has been going on for decades. Back in the 60's Phil Ochs, composed a song, Love me! I'm a Liberal, which is as timely now as it was then. And so, ever in avoidance of the economic elephant in the room, the liberals are chasing after the next Issue-in-Avoidance. ... Gun control. If only we get rid of a symptom (“gun violence”) the cause will go away...
Well...politics is nothing if not rampant stupidities. One might as well demand that birds not chirp. But when the chirping starts to chip away and subvert the Bill of Rights, at that point I draw the line.
The right to keep and bear arms, is the second foundational principle of our society. It is at the essence of “what we are about” as a people. If liberals don't get it, they should go to an ashram, cross their legs and meditate on the Bill of Rights until they achieve Foundational Enlightenment.
The Mexican Constitution (1917) also guarantees the right to possess arms:
"The inhabitants of the United Mexican States have the right to possess arms in their homes for their security and legitimate defense with the exception of those prohibited by federal law and of those reserved for the exclusive use of the Army, Navy, Air Force, and National Guard. Federal law shall determine the cases, conditions and place in which the inhabitants may be authorized to bear arms."
Therein lies a fundamental difference. One that leaves you defenceless when a stranger approaches you to ask for the time....
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