Letter to House Speaker Opposing Assault Weapon Ban

I am opposed to this legislation because it barks up the wrong tree. It resorts to scare tactics instead of addressing the actual underlying causes of gun-related deaths. The legislative “findings” are speculative, ideological opinions without support in non-partisan data.

1. “[G]un violence is a threat to the public health and safety...” “Gun violence” is a vague, ambiguous and misleading term. “Violence” signifies an injury to a third person or object; however, the overwhelming number of gun-related deaths are suicides. Nationally, suicides account for 54% of all gun deaths. (Pew Research, “What the Data Says...” (2/22).) In Washington state the number is 70%. Since 1968, suicides have always outstripped murders. (Ibid). So-called “assault weapons” are not used to commit suicide; neither are high capacity magazines. In fact it is difficult to imagine how a person committing suicide could even get to triggering the eleventh round.

2. “Assault weapons have been used in the deadliest mass shootings in the last decade...” This is a rhetorical teaser masquerading as a fact. Yes, so-called assault weapon(s) “have been used”... but what are the numbers? The data show that, in 2020, handguns were involved in 59% of the 13,620 U.S. gun murders and non- negligent manslaughters (Pew, op. cit., 2/22) So-called assault weapons “were involved in a mere 3% of firearm murders.” (Ibid.) I would challenge whoever compiled these legislative findings to produce data showing that ordinary crimes (non-suicide, non-mass shooting) are committed with semi-automatic “assault” rifles.

3. As for “mass shootings” the FBI "Active Shooter Incidents 2021," lists zero such incidents for Washington. The overwhelming majority of such incidents were in California which already banned assault weapons. The FBI's description of the 61 incidents at pp. 21-28 of its report indicates that 54 of the incidents were committed with handguns; six with a “rifle” and one (#23) with a “semi-automatic rifle.” One.

4. The U.S. Secret Service, National Threat Assessment, recently released a report analyzing the 173 “targeted [mass] attacks” in the period 2016-2020. Of the 73% of incidents in which firearms were used, 74% used handguns and 32% used long guns, of which 26% (n=33 of 126) were semi-automatic. Only one firearm was fully automatic (i.e. a “military style” weapon.) The task force recommended multiple behavioral assessment interventions (Id., pp. iii-v, 50-51) but not one of its recommendation involved outlawing so-called “assault rifles” or for that matter any weapon at all.

Thus Bill 1240 seeks to ban a lawful weapon that is not or that is negligibly used in “mass-attack violence” situations and which haven't taken place in the state at all, while ignoring the weapon (handguns) that is used in 70% of all gun-related deaths. A more useless feel-good exercise of pointless legislation could not be imagined. The Legislative findings are nothing but factually empty, ideologically motivated conclusory statements swimming in ambiguous terminology and fear mongering insinuations.

I am assuming that the proponents of this bill will be unswayed by the Supreme Court's definitive interpretation of the Second Amendment. Gov. Hochul of New York enunciated the attitude well enough. Therefore I will not address any constitutional issues. Suffice to say, that given its own stated goals, the proposed legislation is useless and is not rationally related to its avowed ends. The proponents would better use their energies addressing the economic, medical and psychological factors resulting in an astonishingly high rate of suicide in this state.

As a person who both in and out of uniform was sworn to uphold the Constitution, the fundamental principles enunciated in the Bill of Rights (all of it), trump all other considerations of policy. “Progressive” as I might generally be, I cannot and will not vote for anyone who derogates or infringes on any of the fundamental rights that had defined our nation's political character since its inception.

Sincerely,


Letter to Representatives Opposing Permit to Purchase Law

I am opposed to House Bill 1143, and its companion bill in the Senate, because (1) they are constitutionally violative in their present form and (2) that there are better and more constitutionally friendly ways to achieve the bill's stated objectives.

(1)

The Bill of Rights set out a sequence of carefully structured rights that together reflect a certain and fundamental conception of society. They are not ad hoc benefits but rather establish the essential political nature of our country; not simply the balance between governors and governed but the relationship between the people themselves.

The right to speak is not simply the right to sound off in a closet but to converse, dispute and agree with others. The right to a jury trial is likewise the right to have, not some authority, but untrained fellow citizens make the decision as to whether to forfeit a person's freedom. Both these rights entail well known risks of which the Framers were well aware. But they explicitly rejected the notion that an attendant risk should qualify or negate the right. It is constitutionally inconceivable that a permit or training should be required for jury duty or to exercise free speech, even if it is granted that well-trained, well-informed people would make better jurors and betters talkers in general.

The same considerations apply to the Second Amendment. Both England and Colonial America were freely armed societies. The army, the militias and the constabularies were drawn *from* people who were self armed. For both political and personal purposes the Framer's insured the right to keep and bear arms. To be hostile to that provision is to be hostile to the conception behind the Bill or Rights as a whole.

(2)

It is undeniable that, in all things, a trained person is better than an untrained one. I have no objection to promoting training in firearms. My objection is to making it mandatory and (worse yet) to using it as a means to discourage the exercise of fundamental right.

If the Legislature is genuinely interested in promoting firearm safety training, the way to do that is to incorporate firearm training in high school curricula. When this country was rural there was not a boy or girl who did not learn how to shoot. There is no reason why that instruction should not be undertaken now by schools. Likewise county sheriff's offices could offer training programs to adults, for a very minimal fee and/or encouraged by a tax credit. Programs such as these would achieve the *avowed* objective of the proposed legislation without being punitive in character or constitutionally obnoxious.

Sincerely...

DEMON GUN

Another shooting and once again another assault on our eardrums from all the usual suspects. Without any information on the incident, except that a shooting had occurred in an Asian venue, a chorus of Gun Prohibition furies immediately pounced on the opportunity to denounce "another act of gun violence."

The Democrats in particular jumped at the chance to be proactive about an issue that does not involve redistribution of wealth from their donor class or their uppper middle class base.

Not to be outdone, self-avowed "community leaders" joined in bewaling another "hate crime" that afflicted a "community" already under "assault." Hours after this denunciation sheriffs disclosed that the prime suspect was himself Asian.

After the usual denunciations Governor Gretchen Whitmer of Michigan concluded by saying "Let’s wrap our arms around the community and put in the work to prevent these senseless acts of violence."

Yessss!!! Hear, Hear!! Enough is Enough !!!! BAN GUN

OK... but how does one prevent a "senseless" act?

The word "senseless" means "Destitute of, deficient in, or contrary to, sense ... foolish; unwise; unreasonable, absurd, ilogical, irrational, pointless."

The idea of prevention is to take logical and practical steps which are reasonably calculated to prevent a knowable occurrence; for example, using a condom, covering windows with plywood, and so on.

But something that is "senseless" is unknowable until it takes place. Before it takes place it exists in the universe of randommness. How is it possible to prevent a randomn occurrence? It is like trying to predict chaos.

The inane hysteria that emits from Gun Prohibitionists is reflected in the term "gun violence" which has convinced them that the "thing" at issue - violence - is something done by guns; that the gun is in someway the cause of the violence. That's the way adjectival nouns work.

To attribute to an object -- a cut piece of stone or a tree perhaps -- the ability to cause something is the core of all fetish totems and taboos. But that is precisely what Gun Prohbitionists have done, just the way their erstwhile predecessors attributed all evil in society to demon rum.

So now we have Demon Gun.

Guns don't act senselessly; people do. If people are acting senselessly the remediative efforts must be directed at the psychological, social and economic causes. Banning guns is to chase after a chimeral solution.

As to chimeral solutions, Sheriff Luna stated, "California has some of the strictest gun laws in the country... let's look across our nation and see what works and what doesn’t. I can tell you this - the status quo's not working."

And what precisely is the "status quo"? California has among the strictest gun laws in the country. Simply the list (not the text) of statutes prohibiting gun use, possession and regulation is three pages long. The state's "Assault Weapons Identification Guide" goes on for 96 pages. What more is left?

California's gun control regime has obviousely failed. It will continue to fail because it is blaming the stone for the hand that threw it.

CNN reports that "The gun wrestled away from the man in Alhambra was a Cobray M11 9mm semi-automatic weapon according to a law enforcement official." What can be said is that the gun is not listed in 96 page Identification Guide.

The Cobray M11 is designed to take 30-round magazines which are now illegal in California. (Penal Code 32310(c)) For some reason law enforcement had yet to clarify, as of this writing, whether the gunman had an illegal magazine or whether he used a legal 10 round magazine.

But it really makes no difference. If the gun or the magazine were illegal, it just goes to show how laws do not prevent crime. Laws can punish crimes, but why anyone in his or her right mind would think that laws prevent crime is beyond me.

If the gun or the magazine was not prohibited it just goes to show that California will have to ban all guns outright. "Mass shootings" are defined as those involving three or more persons. Anyone who thinks that a mass shooting cannot be accomplished with shotguns, revolvers or bolt action rifles doesn't know weapons. That it is easier to kill with a semi-automatic does not mean gun violence cannot be accomplished with non automatics.

Banning all guns outright which is what Gun Prohibitionists are really after and what they will have to do if they continue to pursue their Total Safety in Senselessness agenda.

Since when has prohibition worked? In the lead up to the 18th Amendment, ardent, monomaniacal prohibitionists traced all evil to Demon Rum. They assured us that once alcohol was banned "there will be world peace." I'm not kidding, I saw the film footage with my own eyes. The day after the amendment was pased the mafia was born in this country. And, speaking of crime, how's the war on drug working?

We laugh at primitive people who make a taboo of some Byanyang Tree, but gun-controllers are no different. They have a fear infused gun fetish. They are convinced that if they abolish guns they will have cured the psychological and socio-economic causes of senseless acts. Like all primitive fanatics they will trample on everything and anything in pursuit of their ghostly solution, including the Constitution.

Democrats have become the party of subversive insanity.

© 2A Zone

EIGHT POINTS ON GUN PROHIBITION LEGISLATION

1.    The Bill of Rights established Principles not Policies.

The Bill of Rights establishes existential principles that govern the whole framework of our social, political and economic life. It is to politics what axioms are to geometry. The Bill of Rights sets limits on what policies the government can enact. That's what “no law” and “shall not infringe” mean. As to the principles established, it is a "No Trespassing" sign.

2. The Bill of Rights does not need to be subject to any “Balancing Test.”

In law, “balancing tests” are used to factor in competing interests in forming legislation or arriving at judicial decisions. But the Bill of Rights is not a collection of legislative policies. The balancing struck by the Framers was the Bill of Rights itself. The convention debates and the Federalist Papers show, the Framers were very atuned to the benefits and risks of each and every provision of the Bill of Rights.

3. The Second Amendment is not about Guns.

The Bill of Rights was not concerned with objects but with human behavior in the social and political context. The Second Amendment is part of a triad of rights designed to insure raw popular participation in public affairs.  The Framers understood the risks of liberties and the dangers of tyranny and it was with those risks that they were concerned. They reserved three fundamental non-legislative, non-judicial, non-military popular rights:

(a) the popular right to assemble, to speak and to incite (as Justice Douglas wrote “all speech is incitement”)

(b) the right of a non-professional, popular and independent jury (as Justice Scalia wrote: “the jury serves as a circuit breaker.”)
(c) the popular right of individuals to keep and bear arms. (as Madison wrote, the right of people to be armed is the ultimate bulwark against tyranny.)

4. The Second Amendment's Purposes included Self-Defense.

At the time of ratification English and American law recognized the natural “right of having and using arms for self-preservation and defence.” (“1 William Blackstone, Commentaries on the Laws of England § 144 (1765) Of the Absolute Right of Individuals”). The existence of modern police forces does not abrogate that right because as a matter of law the police have no duty to respond and cannot be sued if they fail to. If the State cannot guarantee a person's safety it has no interest or business in taking away his or her means of self defense.

5. The Right to Keep & Bear Arms is not Dependent on Militia Service.

The argument that the right to keep and bear arms is "connected only to service in the militia" is patently absurd.  Do those who advance this rationale mean to say that Framers felt it important to protect the right of recruits to be issued arms upon enlistment in a militia?  Those who advance this argument have got it upside down, in England and in Colonial America, the army or the militia and policing all presupposed the existence of an armed citizenry. And it is precisely an armed citizenry that the Second Amendment insures.

6. It is not Relevant that the Framers did not “envision” Assault Rifles.

It makes no more sense to say that the Second Amendment should be revised because assault weapons were not envisioned that it would be to say that the First Amendment can be “modified” because the the Framers did not envision that propaganda power of modern mass media. What the Framers understood was that weapons of any sort can be used to inflict great injury against unarmed people, especially if taken by surprise. The Staute of Northampton, which was known to all colonists, prohibited riding with force and arms into a crowd in order to terrorize the people. At the time the statute was enacted a military style sword was a hardened steel razor blade that was capable of slicing through a neck or arm like a knife through butter. (That's why they wore steel armor.) In a crowded place it could kill several people in a matter of seconds. Did the Framers envision such a sword attached to a spinning rotary device? Who knows; but they understood the risks of armed anti-social behavior, including the killing of three or more people, which is the current definition of a so-called “mass” killing.

7. The Proposed Bills will not Address and Underlying Social Problems

“Gun violence”is an ambiguous noun-adjective that creates a rhetorical shibboleth which suggest that “guns” do harm to people. Actually guns do not do anything. They are inanimate objects. It is humans who do violence with, among other things, guns. Attributing causality to an inanimate object is to indulge in a primitive, fetishistic taboo. Cold, unemotional statistics show that most gun-related deaths are committed in crimes by minorities in their mid teens and twenties and in suicides by white men over age 65 which account for 55% to 70% of all gun related deaths. Suicides are not committed with assault rifles or high capacity magazines (unless it takes eleven rounds to blow one's brain out). The country has an elder suicide problem, and legislative efforts are better addressed at solving that problem.

8. The Legislation is a Dishonest Subterfuge that Discredits the Law

If Gun Prohibitionists want to repeal the Second Amendment, the Constitution provides them with the means to do so. The Framers made amendments difficult precisely because at issue are principles and not mere policies. Failing the ability to amend, and having their arguments rejected by the supreme judicial authority under the Constitution, the bills' proponents seek repeal by subterfuge, enacting regulatory measures that are so onerous and burdensome as to make compliance practically impossible. A parent who sets tasks or goals that are designed to insure a child's failure is guilty of abuse. So too when the power to regulate is used to destroy. Such clever subterfuges bring the law into contempt and will deepen political cynicism.


©2023, Justin Law

The Despicable Democrats

I have never voted Republoscum and vowed that I never would; but what the Demorats are doing is so despicable I cannot see that I have a choice.

Let the premise be clear: the Demorats do not represent ordinary Americans, whether the poor, the working poor or the distressed middle-class. The Rats as much as the Scum represent the corporate oligarchy and its coterie of vassals and hangers-on. As the British labour leader, Tony Benn, put it decades ago: “America is a One Party State; just have two of them.”

The Demorats have utterly failed to deliver on any of their so-called progressive promises. In 1992, the Demorats rejected trade-unionism in favour of free-trade, gutting welfare, and law n' order. In 2008, vowing an end to a “long night of darkness,” the Demorats flooded banks with money, continued neo-con wars, and hung the middle-class out to dry. In 2016, they rejected what they disparaged as the progressive agenda in favour of something the BitchWitch called “incremental progressivism” -- in plain English: “chicken feed.” Again, in 2020, the Demorats and the country's Liberal Establishment, led by the Slime-of-Record, left no stone unturned in order to defeat Bernie Sanders; in other-words to suppress a popular groundswell that, on the issues advocated, commanded 60% to 70% approval nation wide. And “no stone” included endorsing a woman who had crash-landed in her home state's primary and a lead candidate who was so prone to walking in circles and gumbling gaffes that he was kept out of sight in the basement. At least Benjamin Harrison had the decency to run from his front porch.

Once again, the Demorats employed their “What-you-see-is-not-the-real-me” tactic. Somehow, Joe Biden, the college varsity football player who got himself declared 4F on account of asthma, and who, throughout his career, had been pro-bank and pro-war, was peddled as Union Man Joe -- a gruff n' tumble guy who would push large chunks of the progressive agenda through Congrease.

Well... (as if it were not fully foreseeable) Bernie's My Friend Joe strategy proved as successful as Wile E. Coyote's running into a wall. (In fact, it was so foreseeable one can be excused from wondering if Bernie wasn't pogey bait for millenials all along.)

Instead of putting bread on the table for working Americans, the Demorats have offered their usual cornucopia of “cultural,” “social,” and “civil rights” issues -- all of which have the primary benefit of not in any way affecting the portfolios of the party's donor class. Even Blacks were getting tired of the game, seeing as five decades of Overcoming Promises had produced, at most, a mouse. So the Demorats went in pursuit of new issues. Suddenly transphoria issues blazed into the firmament. Concededly, public their-room access and teaching sexual-orientation alternatives to six year olds migh be of transcendental importance to the country's 0.3% transgender community, but it is of no practical benefit to the rest of us. Not with inflation raging at an official 8.5%.

Ah, but it is of great use to both the Demorats and the Republoscum. For while cultural issues are of no tangible, material, benefit to people, they have this near magickle power to get people riled up and make people forget their actual grievances. As James Madison put it,

So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts. Fed. Paper No. 10.

Poor Madison! He never thought that he was writing a political manual for our two major parties. A pox on them both.

But the Demorats havetaken the matter a step further - a step which requires me to speak truth to subversion. This far, and no more!

As I have commented on before, in pursuit of their Woke Agenda, the Demorats have launched an assault on the First Amendment, getting their henchlings in Social Media to flag and block speech that is “violent,” “racist,” “sexist,” subjectively “offensive” “false” and “misleading.” These were always the rallying cries of censors and the favourite bugaboos of tyrants. Nothing more need be said.

Not content with eviscerating the First Amendment the Demorats are now going after the Second. The rallying cry in this crusade is to put an end to something called “gun violence.” The term, like most labels-of-convenience, is prejudicial to clear thinking. The term implies that guns=violence, or better yet, guns=death. But what is really at issue is violent acts committed by humans armed with guns. Why don't the Gun Prohibitionists speak of “human violence”? Because to do so would -- God forbid! -- point to the true cause at issue; and if it's anything the Demorats hate it's true causes.

With that caveat in mind, let us examine how much violence committed with guns there is. According to Pew Research, in 2002 45,222 people died from gun-related injuries. Of these, 54% were suicides (24,292), while 43% were murders (19,384) In 2020, handguns were involved in 59% of the 13,620 U.S. "gun murders and non-negligent manslaughters." Switching between "gun" and "firearm" murders does not make for clarity, but the Pew report is unequivocaly clear that: "Rifles – including so-called assault weapons – were involved in 3% of firearm murders." Using the 19,384 number that stacks up to 581 deaths. (The Gun Violence Archive, calculates 518.)

Right off the bat, these Pew Research statistics, betray what an utter canard the hysterical campaign against military assault!!!! rifles. They, and their “high capacity” magazines are responsible for at most 581 deaths; and actually less given that not all rifles are "military assault style" guns. Of course while any death is sad, and while the occasional mass shooting event presents a horrible spectacle, policy decisions are based on gross phenomena, on major trends. From a statistical and policy point of view “MILITARY STYLE ASSAULT RIFLE VIOLENCE!!” is a non-existence category.

Aristotle wrote that the role of spectacle in drama was to use suspend judgement; to dull the mind the shock or awe. The same is true in politics.

Getting the mind back into gear, the real issue is (and always has been) hand-guns. Of course, the Demorats don't want the issue framed in that way, because to outlaw hand-guns would unequestionably void the Second Amendment. So instead, they shift gears and complain about “high capacity magazines.”

Once again, let us examine the statistics. How many bullets does it take to blow one's own brain out? Answer: “high capacity magazines” are not at issue in 54% of all gun-relate deaths.

Of the 43% of gun-related murders, how many involved the use of “high capacity magazines.” Typically, “high capacity magazines” are those which hold 20-30 rounds. But with a few rare exceptions, most pistols sold in the United States come equipped with magazines that hold between 10 and 17 rounds. Those holding 10 rounds are generally compact or subcompact models. Recent anti-gun legislation has defined a high capacity magazine as one holding more than 10 rounds. Thus, the question that has to be asked is: how many of the 43% gun-related murders have entailed the use of more than 10 rounds?

Or: how many times did you shoot your wife?

I have not found an answer. Common sense tells me that most single-person murders do not require ten or more rounds, presuming the shooter can shoot straight. One has to imagine the types of scenarious in which homicides occur: deliberated murder of a person, heated spousal quarrels, drunken fooling around, liquor store robberies and car-jackings. Most of these can be, and most likely are, accomplished with under 10 rounds. The situation in which the perpetrator will even be carrying an extra magazine in his pocket is most likely gang-related “missions.”

All of which brings us to the last question: how many shootings are mass murders anyway? The standard defintion for some years was: four or more victims. Needless to say, Gun Prohibitionists, have wratcheted the number down to three. The FBI defines “active shooter incidents,” as “one or more individuals actively engaged in killing or attempting to kill people in a populated area.” Using the FBI’s definition, 38 people – excluding the shooters – died in such incidents in 2020.

Wikipedia contains a list of mass shootings in the United States since 1949. Since year 2000, the vast majority of these “mass” shootings have involved under 10 deaths per incident. Where more have been involved, there were usually other circumstances which painted a more nuanced picture.

For example: in 2002, 17 people are listed as being killed in the so-call D.C. Sniper Attacks. However, the attacks occurred over a ten month period. In the 1987 Flight 1771 killing, 43 persons are listed as being killed; three shot the cockpit, the rest when the plane crashed. Also in 1987, the Dover Arkansas mass shooting involved eight shot by pistol, seven by strangulation and one by drowning. Turning away from creative statistics, a perousal of these incidents show that, on average, most of these mass shootings involved between 3 and 7 victims of shooting.

Thus, to conclude, the prohibition of 10+ magazines is solution in search of a problem. Of course, any “gun violence” is a problem, but there is not a gun-violence problem in the United States. Not when contrasted with the 38,824 vehicle deaths or the 71,238 deaths in 2021 from fentanyl and the 32,856 deaths from meth. In terms of policies one might think there are more important priorities than banning an “assault style” weapon that is used in 1% of gun deaths (452). To be sure, possession of fentanyl or meth is already outlawed but that only serves to show that outlawing things doesn't work.

But the prohibitionist mentality is implaccable. The alcohol prohibitionists would not be deterred until they effected a constitutional amendment and eo instante created the mob, interstate crime and gun violence such as never before had been seen. Gee thanks. But at least Carry Nation (or her successors-in-rage) bothered with an amendment. The Gun Prohibitionists prefer the snake-in-the-grass. They are trying to eviscerate the Second Amendment with a thousand “reasonable regulations.”

There is nothing reasonable about them at all. One call all but hear them cackling with glee as they scribble out section after section after paragraph, after sub-paragraph, after item, after item, of pre-requisites, prohibitions, limitations, fees requirements. They are proceeding thus because they know that they cannot repeal the Second Amendment at the ballot box; and so they proceed by stealth and back of hand. It is despicable in its cunning and dishonesty.

This sort of thing might achieve the object of desire but it does so at the price of destroying law. Law, we might well remember, is simply a form of speech. It requires a certain good faith. Or as Thucydides said, “simplicity of speech is the mark of a noble man.” Just as speech is destroyed by sophistry and by the perversion of meaning, so too law is destroyed by devices such as are being employed by the Gun Prohibitionists. They should be forwarned. For if we are turned from a nation of law into a nation of mere devices then we are undone.

In the name of equal contempt, I am constrained to say that the Republoscum gerrymandering devices are also depicable. The difference is that what the Demorat Gun Prohibitionists are doing goes one step further and targets what the Framers felt was important enough to be enshrined as the second most fundamental of all rights, and they are doing so by means of vicious technicalities the sole purpose of which is to make compliance with the law impossible. Think about that: make compliance with the law impossible.

For shame.

Had the Demorats delivered on their vaunted promise of social welfare and economic equality, one might at least feel that the price was worth the basket of fish. But they failed at even that. Throughout history, most dictators have taken away freedom but given bread. Not them. It is a stark choice indeed between two parties each of which is comprised of narcissistic, millionaire pricks who whore themselves out to a plutocratic oligarchy and who do absolutely nothing for the average working person. But when one of those wretched parties takes after two of the three most fundamental rights in our constitution, my choice is clear.

©2AZone

Ortrud of Albany connives again

Speaking to an adoring crowd of anti-speed activists, Governor Ortrud of Albany made it clear that she would not accept a Supreme Court ruling for an answer. “We are ready for 'em” she said.

“There is no rational reason for people to posses and drive fast cars,” Governor Ortrud said. “It is an absolute fact that the faster a car goes the more likely it is to be involved in an accident and the more likely the accident will be FATAL ... to INNOCENT people, children and cats crossing the street”

Ortrud continued: “No person needs to drive more than 25 miles per hour. Our Founding Persons never envisioned VEHICLES OF MASS DESTRUCTION that could travel over even 10 mph. When they authorized Congress to regulate interstate commerce they never imagined sixteen wheelers carreening destructively down the road at 70 mph.

“A High Speed Capacity ASSAULT VEHICLE in the hands of oversexed teenage boys and frustrated menopausal women represents a CLEAR AND PRESENT DANGER to society, she said. “Only police, firemen and ambulance drivers need High Speed Capacity Assault Vehicles. Everyone else can either walk, bike or drive low voltage e-carts.”

To achieve these laudable goals and evidently relishing her own cleverness, Ortrud of Albany proposed a laundry list of licensing requirements that would make it burdensome to the point of impossibility to qualify for an open road HSCV permit. Among these requirements were

“an in person interview,
“household member contact information
“social media viewing information...”

WHOOOA!!! “social media viewing information”? What kind of information? That you have a Facebook account? Well, that's nice but that doesn't tell you much, just about everyone has some kind of social media account. What the bill obviously seeks is the content of those accounts: who your friends are, what topics have interested you, what feelings or opinions you have expressed on various topics.

Don't Turn Around -- The Kommisar's in Town.

To be free is to be free from surveillance. Anything less is a prison. Apart from the grotesque and outrageous violation of all truly liberal norms, this requirement is paradigmatic of tyrannical absurdity. By what standard shall social media “information” be evaluated? What specific kinds of things should a license examiner look for and how should he factor them in with other criteria?

Given the number of feelings, the number of attitudes, the number of opinions people have about the number of things it is possible to have opinions, attitudes and feelings about, such criteria would necessarily be infinite. Any possible “list” of “red flags” to focus on would still be as thick as a telephone book.

Nor is it simply a question of quantity. Words, emotions, opinions are not just numbers. They are qualitative things and these are always subject to nuance and context. And supposing the “nuance” is grasped, how then is it to be connected to the causal likelihood of any supposed conduct?

The whole foundation of this sort of legislation is an illusory falsehood: the idea that we can predict aberrational behaviour. We cannot because by definition the behaviour deviates from norms; i.e. from that which is predictable. So we are left with the small beer of “correlations” and “associations.” As Mark Twain said, “there are lies, damned lies and statistics.”

Even assuming the veracity of the damned lies, rights accrue to individuals not to abstractions. Not only that, but the whole of our legal system is based on the assumption of free choice. It is for that reason that we do not bar poor people from entering stores based on the statistic that “shoplifting has been associated with lower socio-economic status.” Nor, until now, have we banned people from buying High-speed Capacity Vehicles on the ground that their Facebook page showed an “inappropriate” or “troubling” interest in race cars and bungi chord jumping.

Thus, the very kernel of Ortrud's licensing process is pure, undiluted arbitrariness, leaving it up to the examiner whether he or she or they likes your “in person appearance,” your “attitudes,” your opinions, your sarcasm, your likes and disklikes.

Ortrud of Albany enjoying her Legislative Triumph

“A tyrant knows no law but her own caprice.” (Voltaire.) What Ortrud's caprice ignores is that privacy is a fundamental constitutional right. It is axiomatic that the exercise of one constitutional right cannot be conditioned on giving up another. You know, as in “we'll give you a jury trial, alright; so long as you give up your right not to testify.”

The hypocrisy of so-called liberals on this score is nauseating. We have no doubt that Governor Ortrud is of the “my body my choice” persuasion. We would be astonished if she felt anything less than that a woman's right to “dispose” of her fetus should not be “limited” or “conditioned” by intrusive consent and consultation requirements or waiting periods. Aha... but when it comes to something she doesn't like, then the reverse is the case. Shameless.

Ortrud's Plot to ensnare Lohengrin in an electric go-cart deserves to ignominiously fail.

Gun Control, Cop Control and Self Control under the Bill of Rights

In the past months a spate of shootings once again focused public attention on armed violence in the United States.  Most of the attention focused on the group shootings in Illinois and Wisconsin.

Strangely enough, the liberal-progressive media gave scant attention to two other shootings which occurred at the same time.  In Anaheim, California, the police carried out a curbside execution, in plain view, of a suspect who was lying helplessly on the ground.  Not covered at all, was a story reported in the U.K.’s Guardian,

“Friday 3 August 2012 13.21 EDT. The FBI says it is "monitoring" the case of a police suspect who officers claim fatally shot himself in the head despite having his hands cuffed behind his back in the rear of a patrol car.  • • • The incident has raised questions, not least over how officers apparently failed to find the gun on Carter during an initial search. It has also been said that the suspect died as a result to a gunshot wound to the right temple. Carter was left-handed ....” [ Full Article ]

The police executions triggered predictable protests from the minorities involved but were mostly ignored by middle class liberals who continued to tear their hair out over the Second Amendment.  Once again, political discourse suffered from curious disconnects, an ignorance of history and an undue focus on one’s own immediate wants -- or as increasingly the case  -  on one’s private injuries and fears.

Gun control and cop control are two sides of the same political coin. The solution to both aspects of the problem is greater citizen training and participation in the policing of communities. This solution is not just a choice among policy options.  The necessity for individual civic participation is a constitutional assumption.  Keeping and bearing arms is correlative with the right to bear witness and render jury verdicts.  These two rights are cornerstones of civic duty and implicate direct popular involvement and control over the essentials of public life.  

This legal conclusion begins with a sociological question.

On reading about the Aurora killings, we wondered if such armed insanity occurred when people were habituated to living with and using arms on a daily basis. It did not seem to us that it did.  Certainly crime and lunacy have always existed; but gun advocates are right when they insist that it is people -- not guns -- who commit crimes.

Liberals can dance around this fact all they want, but the sum and substance of their arguments is that since we can’t trust people to be mature and law abiding it is best to keep arms out of their hands.  At bottom, this argument tacitly accepts a society of belligerent, lumpen morons as an unalterable reality. The argument is all the more curious coming from that same political faction which in the next breath talks about cultural sensitivity, liberal education and bringing back the philosopher-peasant.

The socio-historical fact is that the Second Amendment presupposes a mature and responsible citizenry.  The Amendment serves as a barometer of social equity and health.  The kind of society America ought to be is one in which citizens can be trusted to keep and bear arms.  If that is not the case, then we are not the kind of society we ought to be.

The argument between gun control and gun rights creates an historically false dialectic which disconnects what was originally viewed as one and the same thing. Put another way, a political philosophy which espouses freedom necessarily presupposes personal self-control. Conversely, self-control presupposes the existence of things in relation to which control is exercised.

It is thus that the Second Amendment has its rude genesis in the right of freemen to participate in the defence of the realm. In medieval times, the distinction between a right and a duty did not exist in its modern anti-podal form; rather, the capacity for self-defence and for self rule were two sides of free-born status.

Upon assuming the throne (such as it was) in A.D. 872,  King Alfred the Great issued an edict that all who could afford to do so should assemble to repel the pagan Danes who had seized London.  His contemporaneous organization of towns into fyrds of a hundred families reflected a loose socio-military structure akin to the Krumper System or what might be called an army-on-call. [ FN-1 ]

A little over a century later, as the emergencies of war gave way to the routines of peace, Alfred’s system coalesced. Under the laws of Edward the Confessor (1042-1060), “the inhabitants of each Township regulated their own local police. They were bound to keep watch and ward. If any crime was committed in their district, they were to raise the hue and cry and to pursue and apprehend the offender. ...  Even the poorest or almost propertyless Churl, was personally free. He was law-worthy.  The Churl had the right of bearing arms. He was a legal witness. He had political rights with regard to the magistracies of his township, ...  both as an elector, and as himself eligible to office.”  (British Common Law,  Francis NigelLee, DCL., Part VI, Ch. 23  (1993).)

The situation remained much the same after the Norman Conquest. King Henry II’s Assize of Arms (1181) prohibited ownership of weapons by Jews and, of all others, required ownership of arms according to wealth and status, viz  “...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....”   The Assize of Arms of 1252 required all males between 15 and 60 to keep specified arms and to quell breaches of peace when summoned by nominated local constables.

Hue & Cry

There can be no question that, under these laws, the possession of arms was “regulated” and that the bearing of arms was connected to a feudal military obligation.  However, proponents of present day gun-control overwork the military connection by ignoring the political context which was one in which the individual was directly and immediately connected to exercising attributes of sovereignty: not only answering a call to arms, but policing the town, bearing witness and giving judgement.

It is a canard of 18th century liberal propagandists that the Middle Ages were an undemocratic time.  On the contrary, both in England as on the Continent, feudalism entailed a high degree of rough but real freeborn political participation by fee-holders of arms-bearing age.  To say that the “right to bear arms” was subsidiary to the existence of a “well regulated knighthood” ignores the more predicate reality that the militia in those days was “self-regulating” and that its self-regulation fit within a scheme of immediate, local self-governance.

This concept of local self-governance is at the core of the Bill of Rights which, today, is too often thought of as enshrining merely individual rights as if these existed in isolation from their social context.  A brief and summary over-view will illustrate the encompassing medieval roots of the Bill of Rights. 

A century after Edward the Confessor, the Constitutions of Clarendon  (1164) affirmed that no layman could be accused except that twelve lawful men from the neighboring ‘hundred’ were summoned, placed on Christian oath by the Sheriff, and thereupon returned a true-finding or veredictum on the matter. (Const. Art. 6.)

The procedure was amplified in Articles 17 and 39 of Magna Carta (1215) which declared that ordinary lawsuits should be tried locally and that “[n]o Freeman shall be taken or imprisoned or dispossessed or outlawed or banished or in any way destroyed; .... except by the legal judgement of his peers or by the law of the land.”

Magna Carta also provided the germ of the Fifth Amendment by specifying that “no official shall place a man on trial upon his own unsupported statement, without producing credible witnesses to the truth of it” (id., Art. 38) and that “no constable or royal official shall take corn or other movable goods from any man without immediate payment ....” (id, Art. 28).

The laws of King Canute (A.D. 995-1035) had provided that “merciful punishments shall be determined upon for the public good; and the handiwork of God and the purchase which He made at a great price, shall not be destroyed for trivial offences” (II Cnut 1-4).   Magna Carta confirmed that, “For a trivial offence, a free man shall be fined only in proportion to the degree of his offence, and for a serious offence correspondingly, but not so heavily as to deprive him of his livelihood. (Carta, Art. 20.) 

Most famously, of course, the first article of Magna Carta -- providing that “the English Church shall be free, and shall have... its liberties unimpaired” -- protected the freedom of the Church from subordination to Royal power and, through historical adaptations, became the First Amendment’s freedom of conscience and expression from government infringement.

This brief sketch illustrates that the Bill of Rights is an organic whole which incorporates a medieval political philosophy of chartered liberties for districts and so called “free cities.”

The salient character of medieval English law is that while it allowed a common law throughout the realm, it also sought to restrain royal encroachments and safeguard local control over local affairs.  Within this context the right to bear arms, the right to a local jury trial by one’s equals upon corroborated evidence were of the same weave which preserved citizen participation in his own safety and justice.

What is astonishing is the consistency with which these medieval rights were maintained as England progressed through the revolutionary upheavals giving birth to the modern era.

In 1688, King James II, as King John before him, sought to extend Royal Prerogative at the expense of individuals and the Church of England hoping, it was feared, to reimpose Catholic (and French) hegemony over Britain.  He was overthrown by an armed populace in the “Glorious Revolution” of 1688 which re-instituted England’s by then established concept of constitutional monarchy. 

In the revolution’s aftermath, Parliament enacted the 1689 Bill of Rights which became the most immediate predecessor of the American Bill of Rights. 

In pertinent parts, the 1689 Bill prohibited: “the raising or keeping a standing Army within the Kingdome in time of Peace...” (which became the Third Amendment’s prohibition against quartering of soldiers)  [2] “that  the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law” (which became the Second Amendment)  [3] “that  Jurors ought to be duely impannelled and returned...” (which became the Sixth Amendment) and [4] “that excessive Baile ought not to be required nor excessive Fines imposed nor cruell and unusuall Punishments inflicted.” (which became the Eighth). [ FN-2 ]

(The one modern addition to this medieval cluster of rights was the Fourth Amendment’s prohibition against unreasonable searches and seizures which arose from the 18th century trans-Atlantic uproar over the rummaging and seizure of the North Briton’s presses which had published nasty things about the King’s minister. (Wilkes v. Wood, (1763) 98 Eng. Rep. 489 (C.P.); Entick v. Carrington, (1765) 95 Eng. Rep. 807 (K.B.).)  [ FN-3 ]

One of the idiocies of the Received Standard Version of American Education in the 20th century is that the Constitution and Bill of Rights were, if not inventions of the quasi-divine genius of the Founding Fathers, at least products of Enlightenment liberalism. 

Another idiocy is the utterly upside down notion that the Stuarts based their rule on obscurantist medieval ideas about the Divine Right of Kings.  In fact, James II, as King John and the Tudors before him and as the Borbons, Frederick, Bonaparte, Hitler and Stalin after, were all believers in the modern concept of the centralized, unaccountable, supreme state.  The idea was not so much l’etat c’est Moi as it was l’Etat c’est tout.

The English legal historian, Theodore Plucknett, put it this way:

    “Out of all the confusion and disaster of the middle ages, there arose a uniform cry for law, which should be divine in its origin, supreme in its authority, rendering justly to every man his due. ... When we come to Machiavelli we reach the spirit of the Renaissance... A double standard between public and private morality introduces a sort of polytheism utterly repugnant to medieval thought.  The issue of this conflict is perhaps still uncertain, but medieval thought is today fighting hard for the cause of law against the amoral, irresponsible State.  It was the medievalists in England ... who ended Stuart statecraft, and the Constitution of the United States was written by men who had Magna Carta and Coke before their eyes. Could anything be more medieval than the idea of due process or the insertion into an instrument of government of a contract clause?"  (Concise History of the Common Law (1928) Cambridge. Univ. Press.)

Could anything be more medieval than the idea of jury trial and nullification?

From the perspective of French or Continental liberalism, such medievalisms are an absurdity.  In their view all rights derive from the Social Contract and it is an oxymoron for the State to guarantee rights against itself. This was precisely Hamilton’s argument as to why there was no need for a Bill of Rights to be appended to the Constitution. (Fed. Pap. # )  The State being established to promulgate the General Welfare what could be more absurd than allowing ad hoc groups of citizens to hobble and oppose its operations?

But Madison was English, and when the American Colonists sought their independence from royal authority they did so “as Englishmen” in the same tradition and manner as the Barons at Runneymede. And it is certain that when the barons forced King John to sign Magna Carta, they were not leaning on their quills.

The right to bear arms against the state was at the core of the Supreme’s Court decision in District of Columbia v. Heller (2008) 554 U.S. 570.  In his majority opinion, Justice Scalia emphasized the Second Amendment’s role in providing a safeguard against tyranny. He noted that,

    “Under the auspices of the 1671 Game Act, for example, the Catholic Charles II had ordered general disarmaments of regions home to his Protestant enemies [at p. 593] ... and  of course, what the Stuarts had tried to do to their political enemies, George III had tried to do to the colonists. In the tumultuous decades of the 1760's and 1770's, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. [at p. 598].”

Charles II and James II were the legitimate sovereign authority and as such had every prerogative to punish or execute those who violated duly promulgated laws. But what of the situation when the lawful authority is itself subverting constitutional underpinnings?  To appeal to “the law” in its official manifestation would be to spit in the wind.  As in 1215, so in  1688 and so too in 1776, the right to bear arms was the right to resist, to compel, to overthrow.  No one thought otherwise.

While bearing arms against the Crown might be the most primary and the ultimate act of popular nullification, it is not the only one provided for by the Constitution. The Second Amendment is properly viewed in conjunction with the Sixth Amendments’s guarantee of a jury trial.

The State has always eyed the popular jury with suspicion. Just as the Stuarts sought to disarm Protestants, the Crown sought to bend juries to its will.  Medievalists thought otherwise. In Bushel’s Case (1670) 124 E.R. 1006, Chief Justice Vaughan forbade punishing jurors for returning verdicts the Crown disagreed with.  Once empaneled, the jury was absolute and its verdict once given was unimpeachable.  As explained by the Supreme Court,

    “[T]he very reason the Framers put a jury-trial guarantee in the Constitution is that they were unwilling to trust government to mark out the role of the jury. ...¶¶... Our Constitution and the common-law traditions it entrenches, however, do not admit the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury.  (Blakely v Washington (2003) 542 US 296, 308, 313, [Maj. Opn., Steven, J.].)

    “[Justice Bryer] sketches an admirably fair and efficient scheme of criminal justice designed for a society that is prepared to leave criminal justice to the State. (Judges, it is sometimes necessary to remind ourselves, are part of the State — and an increasingly bureaucratic part of it, at that.) The founders of the American Republic were not prepared to leave it to the State, which is why the jury-trial guarantee was one of the least controversial provisions of the Bill of Rights. It has never been efficient; but it has always been free.”  (Apprendi v New Jersey (2000) 430 U.S. 466, 498  [Conc. Opn., Scalia, J.].)

Thus, whereas the Second Amendment reserves the right of physical resistance, the Sixth preserves the right of political impedance.  Neither contemplates purely individual obstruction; both enable the raw sentiment of the community to make itself felt.

As the power of the centralized State grew, the politically negative role of the two rights came to be emphasized.  However, that was never their only function.  Tracing roots back to the days of Edward the Confessor, it can be seen that raising the hue and cry, bearing witness and giving judgements marked out an ambit of positive, daily participation in local civic life.

While this ambit may have shrunk as England became more industrialized and urban, by an accident of history, it found new life in the United States where a sparse population living in isolated settlements hearkened back to medieval demographic conditions.

American Jury Trial (1849)

It was not until the 20th century, when the United States itself became urbanized, that direct citizen responsibility and control over his immediate civic circumstances slowly gave way to management by professionals and supervision by a standing police.  Unfortunately, the Supreme Court has not been zealous in protecting the right to be safe from police.

The English and Colonial opposition to standing armies was not based solely on the policies they enforced as much as on what they intrinsically represented.  Any standing force by its very nature introduces a principle of alienation into society, because any line, whether red, green, grey or blue, of necessity creates two sides.

In the inevitable conflict between authority and autonomy, the English answer was predictable.  William Pitt, on the occasion of a debate in Parliament on the searches incident to the enforcement of an tax on cider, eloquently expressed the principle:

   

    “The poorest man may in his cottage bid defiance to all the forces of the Crown.  It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the King of England cannot enter -- all his force dares not cross the threshold of the ruined tenement!”  (Miller v. United States (1958) 357 U.S. 301, 307 [maj. opn., Brennan, J.].)

   
Of course, Pitt did not mean that the King’s Men could not enter at all, but rather than they could do so only upon warrant, after knock and notice and in a reasonable and restricted manner.

In the first half of the 20th century, a growing recognition by the Supreme Court of the importance of the Fourth Amendment led it to review and restrict the license with which police were allowed to act.  Critical to the restrictions was the judicial rule that refused to give any legal effect to illegally seized evidence.

Unfortunately, one of the more inane and destructive idiocies ever uttered by a judge was the quip by “liberal” Justice Cardozo that the exclusionary rule meant the “criminal is to go free because the constable blundered.”  Waving the banner of innocent blundering, an organized cry against “shackling” the police and against “criminal” rights, was used by the police, ardent prosecutors, pandering politicians and supine judges to turn the Fourth Amendment into a meaningless piety riddled with exceptions.

    “The Court's rhetoric cannot disguise the fact that when it not only tolerates but also provides an affirmative incentive for warrantless and plainly unreasonable and unnecessary intrusions ....”  (Segura v United States (1984) 468 U.S. 796, 840  [Diss. Stevens, J.].)

Taking their cue, trial court judges routinely play deaf dumb and stupid to police excuses and evasions on the  stand.  The police themselves jokingly refer to their bearing witness as “testilying.”  Such habits, now entrenched after 50 years of habituated indifference, have created a culture of impunity among the police. 

This culture of impunity is built upon a subtle but fundamental alienation of police from society which is reflected in their self-differentiation from so-called “civilians” and in their opposition to “civilian review boards.”  In legal fact, police are themselves civilians but the accepted nomenclature has allowed them to become viewed as and to act as a de facto para-military force which, being free from “civilian” oversight, is an actual army of occupation.  

To say that the Founding Fathers would be scandalized is an understatement.

In the Common Law tradition of which it forms a part, the Bill of Rights is not merely a catalogue of enumerated me rights but rather a reservation of us-rights in a presumed social context. It marks out an ambit of reserved activity and self-governance not as mere options but as commitments.

When the Bill of Rights is understood as an organic whole it can be seen how far we have fallen from the social and political reality it presupposes.  In lieu of direct and personal involvement in his immediate economic and social affairs, the average American is alienated from both his labor and his franchise.

The result confirms the grimmest prophecies of both Durkheim and Marx. The vast majority of Americans do not work for themselves but for hire; they are not directly involved in the management, cultivation and protection of their own communities but hire out civic services;  they do not create their own culture but passively accept the entertainments and recreations provided to them by purveyors of inanity and junk. The picture of Americans in their Third Century is one of slothful political obesity.

Police violence, drug violence, domestic violence, and deranged violence are equally symptoms of the underlying economic and political anomie which afflicts American society.  To call for gun control without addressing the toxicity of police culture, to call for police control without addressing the toxicity of ghetto culture to call for control in lieu of civic participation only serves to perpetuate the underlying alienation.

Alas, the wasteland of American society is so de-educated, fragmented, degraded and impoverished that it falls into the category of a Quixotic fantasy to call for the restoration of civic chivalry.

Nevertheless, there’s always hope and prayer. As with physical fitness, people gain in responsibility the more they are given responsibility. Out of the chaos and disaster of American urban life there should arise a unanimous cry for a re-communalizing of the metropolis in such ways that citizens directly and actively participate as a matter of duty and right in the policing of their communities. 

Civic participation does not require a degree. It is based on animated involvement guided by common sense. Those of us who have worked with (or on) juries are left with an abiding wonderment at how well the system works even when we disagree with the result and even when the result is the occasional outrage. Communities have experimented  with “youth juries” for juvenile offenders with promising initial results.  Jury trials should be encouraged rather than discouraged and jury service should be compensated according to financial need on a progressive scale so that a broad spectrum of citizens can look forward to serving.

Similarly, mandatory firearm education should be part of  secondary education so that all youths are taught how to use weapons with an abiding respect for their lethal consequences.  Both youths and adults should work with a smaller core of professional police in patrolling neighborhoods and in supervising and setting standards for their patrolling. 

It follows, almost without saying, that a broad spectrum of national services should be established.  But these services need not be drawn on lines requiring two or three year full time commitments. They should be administered locally and can be calibrated to dovetail with a variety of individual circumstances at different stages in life. 

Until the global capitalist economy collapses, it is not possible to return to the days of truly local agrarian economies.  But as Herbert Croley, the founder of the American Progressive movement, understood, even in an industrial and national context it is possible and desirable to stimulate civic and economic participation “from below.”

Until the Bill of Rights is taken as a charter for political participation, the country will continue to be victimized by its own failings.

© 2012 2A Zone

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