New Second Amendment Lawsuit

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA Don Hamrick, pro se ) 18 U.S.C. § 1964(c) RICO Treble Damages 5860 Wilburn Road ) 42 U.S.C. § 1983; § 1985; § 1986; § 1988 Wilburn, AR 72179 ) 42 U.S.C. § 1402(a)(1) PLAINTIFF ) SEAMEN’S SUIT, 28 U.S.C. § 1916 AS PRIVATE ATTORNEY GENERAL ) FOR MY OWN RIGHTS AND FOR THE RIGHTS v. ) OF THIRD PARTIES (JUS TERTII DOCTRINE) United States, et al ) CIVIL ACTION NO. _______________________ DEFENDANTS ) JURY TRIAL DEMANDED RICO Act Damages Sought: $ 14.4 million (2002) Plus Damages for Denial of 1st & 7th Amdt Rights

“res integra jus naturale et justita ferenda”

“A case of first impression on the law of nature and justice as it ought to be.”

This Case is Not to be Assiged to Judges Huvelle, Walton, Leon, or Collyer for Judicial Bias

COMPLAINT

For the Full Scope of Second Amendment Rights and the Human Right to “Openly” Keep and Bear Arms in Intrastate, Interstate and Maritime Travel (The Flip Side to Heller) (1). HUMAN RIGHTS COMPLAINT UNDER THE TREATY CLAUSE; (2). CIVIL COMPLAINT UNDER THE CIVIL RICO ACT AND THE FTCA; (3). PETITION FOR WRIT OF MANDAMUS; (4). PETITION FOR WRIT OF PROHIBITION; (5). PETITION FOR DECLARATORY JUDGMENT; AND FOR INJUNCTIVE RELIEF (1). Invoking My Private Right of Action under the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN to Enforce My Human Right and My Seventh Amendment Right to a Civil Jury Trial after Six Years of Fraudulent and Unconstitutional Summary Judgments on Motion to Dismiss Denying My Seventh Amendment Right to a Civil Jury Trial; (2). Invoking My Right as a Victim of the United States Government’s Abuse of Power to Act as a Private Attorney General under the Civil RICO Act as a Civil Remedy for Obstructions of Justice, Judicial Extortion Under Color of Law, Judicial Extortion Under Color of Official Right (Racketeering), Fraud and False Statements in Six Years of Fraudulent and Unconstitutional Summary Judgments, and for Racketeering an Unlawful and an Unconstitutional Protection Scheme Over the Second Amendment; (3) For Damages from Defamation, Retaliation, and Harassment for Exercising My Constitutional Rights and My Human Rights in the Interest of Freedom and Justice.

“If liberty is worth keeping and free representative government worth saving, we must stand for all American fundamentals -- not some, but all. All are woven into the great fabric of our national well-being. We cannot hold fast to some only, and abandon others that, for the moment, we find inconvenient. If one American fundamental is prostrated, others in the end will surely fall. The success or failure of the American theory of society and government, depends upon our fidelity to every one of those interdependent parts of that immortal charter of orderly freedom, the Constitution of the United States.” Albert J. Beveridge The Assault Upon American Fundamentals 45 REPORTS OF AMERICAN BAR ASSOCIATION, 188, 216 (1920).

“My litigious history these past six years prove, by judicial fiat, that I have no enforceable statutory, constitutional, or human rights under the law as a seaman being a Ward of the Admiralty or even as a private citizen of the United States acting in the capacity of a private attorney general or as a human rights defender. Being stripped of enforceable rights I am relegated to the status of a non-citizen subject or slave held to involuntary servitude, the consequences of denied justice for constitutional wrongs committed by the United States not only in violation of the Bill of Rights, the Thirteenth and Fourteenth Amendments but also in violation of the International Bill of Human Rights and other human rights treaties. Push further my rights in the name of justice and freedom I risk arrest and prosecution under federal charges by the United States.” Don Hamrick, the Unrepresented Civil Plaintiff.

THE TABLE OF CONTENTS TABLE OF CONTENTS PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS, RULE 201(D), FED.R.EV. .....................1 A. Summary Judgment Dismissal is Barred Due Plaintiff’s Human Rights Complaint against the United States alleging Judicial Bias and Loss of Integrity in the Federal Judicial System under the Canons of Ethics ..........................................................................................................................1 B. Summary Judgment Dismissal is Barred due to Two Open Invitations from the U.S. Supreme Court for Second Amendment cases and One Open Invitation for a Right to Travel Case. My Case Presents a Right to Travel with Second Amendment rights. .......................................................6 (1). First Invitation by SCOTUS: Second Amendment (1997).......................................... 6 (2). Second Invitation by SCOTUS: Right to Travel (1999) ............................................. 6 (3). Third Invitation by SCOTUS: Second Amendment (2008) (Again!) ........................ 10 C. Summary Judgment is Unconstitutional and a Fraud. Summary Judgment under Bell Atlantic Corp. v. Twombly is a stealthy encroachment upon the Seventh Amendment right to a Civil Jury Trial. ...............................................................................................................................................10 D. WWII and the Fighting Merchant Marine....................................................................................18 E. WWII MEMOS: U.S. Merchant Marine Are Members of the Armed Forces ................................19 F. The Federal Courts have become the Judicial Praetorian Guard protecting the United States from its own People in the war over the Bill of Rights......................................................................19 G. Justice Harlan’s Dissent on Arbitrary Exercise of Government Power and Oppression in Downes v. Bidwell, 182 U.S. 244 at 376-382 (1901).........................................................................20 H. Dismantling of Private Attorney General Endangers Civil Rights ................................................22 I. Anarchy and Treason in the Federal Courts: Are Political Ideologies the New Rule of Law Now?...............................................................................................................................................24 (1) Summary Judgment is Unconstitutional: The Judge and Jury are Now One in the Same!............................................................................................................................ 24 (2) Is the Eleventh Amendment Unconstitutional? ......................................................... 25 (3) Will the Lower Federal Courts Rebel Against Heller? .............................................. 25 J. The Federal Courts and the U.S. Department of Justice have Obstructed Justice by Unconstitutionally Denying my Seventh Amendment Right to a Civil Jury Trial..............................25 (1). Case Law ................................................................................................................ 27 (2). Kendall W. Hannon, Note, MUCH ADO ABOUT TWOMBLY? A STUDY OF THE IMPACT OF BELL ATLANTIC CORP. V. TWOMBLY on 12(b)(6) Motions, 83 Notre Dame L. Rev. (forthcoming April 2008) .................................................................................. 28 (3). Charles B. Campbell, A “Plausible” Showing After Bell Atlantic Corp. v. Twombly ....................................................................................................................... 28 (4). Barry G. Sher, Kevin C. Logue and Asa R. Danes BELL ATLANTIC CORP. V. TWOMBLY: THE SUPREME COURT TIGHTENS PLEADING STANDARDS FOR ANTITRUST CONSPIRACY AND BEYOND; StayCurrent: A Client Alert from Paul Hastings, May 2007, Paul, Hastings, Janofsky & Walker LLP, 875 15th Street, N.W., Washington, DC 20005, (18 Offices Worldwide) ............................................................................... 35 TABLE OF CONTENTS

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THE TABLE OF CONTENTS K. Judicial Bias and Hostility in the Lower Federal Courts toward Second Amendment Cases is Common Knowledge....................................................................................................................... 39 (1). Glenn H. Reynolds, Brannon P. Denning, HELLER’S FUTURE IN THE LOWER COURTS, 102 Northwestern Law Review Colloquy 406 (2008): ......................................39 (2). Glenn H. Reynolds, Brannon P. Denning, HELLER’S FUTURE IN THE LOWER COURTS, 102 Northwestern Law Review Colloquy 406 (2008) SECTION II. THE LOWER COURTS AND THE HELLER DECISION: ....................................................40 (3). Glenn H. Reynolds & Brannon P. Denning, HELLER’S FUTURE IN THE LOWER COURTS, 102 Nw. U. L. Rev. Colloquy 406 (July 2008) CONCLUSION:..........................44 L. Rule 9(d) Pleading Official Document: Heller............................................................................ 44 M. The Unrepresented Civil Plaintiff, being a Seaman, is a Ward of the Admiralty and Not an Attorney is Acting in the Capacity of a Private Attorney General under the Civil RICO Act and in the Capacity of a Human Rights Defender in Accordance with the U.N. DECLARATION ON HUMAN RIGHTS DEFENDERS (see Exhibit 12) Invoking the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN through the Treaty Clause and through 28 U.S.C. § 1334 FEDERAL QUESTIONS. ..................................................................................................................................... 44 N. Fed.R.Ev. Rule 406 Habit/Routine Practice of Treason Against the Constitution: We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 04-1211 (August 31, 2005) Has Lead the U.S. Department of State to commit Treason By Giving Away 8 Islands of Alaska to Russia Without the Advice or Consent of the U.S. Senate, the Governor of Alaska, the people of Alaska, or event the people of the United States.................... 45 (1). Citing State Department Watch: Voice for the American Public’s Interest:...............45 (2). The diplomatic message traffic of January 21, 1977 .................................................47 (3). The diplomatic message traffic of January 25, 1977 .................................................49 (4). The diplomatic message traffic of February 24, 1977 ...............................................51 PART 2. THE PRELIMINARIES........................................................................................................................ 53 A. Statutory Waiver of Sovereign Immunity .................................................................................... 53 (1). 46 CFR § 1.01–30 Judicial review. ..........................................................................53 (2). 46 CFR § 1.03–15 General.......................................................................................53 B. Seaman’s Suit Under 28 U.S.C. § 1916....................................................................................... 53 C. Seamen are Wards of the Admiralty............................................................................................ 53 D. Estoppel and Seamen’s Rights .................................................................................................... 55 (1). Huseman v. Icicle Seafoods, Inc., et al, In Rem, ; Ninth Circuit No. 04-35655 (December 27, 2006)......................................................................................................56 (2). Luttrell v. United States, et al., Ninth Circuit. 644 F.2d 1274 (Dec. 4, 1980).............58 E. Resurrecting Neglected Federal Laws For Second Amendment Purposes..................................... 59 (1). 10 U.S.C. § 311. Militia: composition and classes ....................................................59 (2). 10 U.S.C. § 312. Militia duty: exemptions................................................................59 (3). 10 U.S.C. § 332. Use of militia and armed forces to enforce Federal authority..........59 TABLE OF CONTENTS

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THE TABLE OF CONTENTS (4). 10 U.S.C. § 333. Interference with State and Federal law......................................... 59 (5). 10 U.S.C. § 334. Proclamation to disperse ............................................................... 59 (6). 10 U.S.C. § 351. Arming of American Vessels: During war or threat to national security.......................................................................................................................... 59 (7). 10 U.S.C. § 7851. Composition of the Naval Militia ................................................ 59 (8). 10 U.S.C. § 7854. Availability of material for Naval Militia .................................... 59 (9). 16 U.S.C. § 412. National Military Parks; Camps for military instruction; regulations for militia .................................................................................................... 59 (10). 18 USC § 245(b)(1)(B). Federally Protect Activities............................................. 59 (11). 23 U.S.C. § 401. Highway Safety: Authority of the Secretary ............................... 59 (12). 23 U.S.C. § 402. Highway Safety: Highway Safety Programs ............................... 59 (13). 23 U.S.C. § 407. Highway Safety: Innovative Project Grants ................................ 59 (14). 32 U.S.C. § 109. National Guard; Maintenance of other troops ............................. 59 (15). 33 U.S.C. § 383. Resistance of Pirates by Merchant Vessels ................................. 59 (16). 42 USC § 2000a. Prohibition Against Discrimination or Segregation in Places of Public accommodation................................................................................................... 59 (17). 42 USC § 2000a-1. Prohibition Against Discrimination or Segregation Required by any Law, Statute, Ordinance, Regulation, Rule or Order of a State or State Agency... 59 (18). 42 USC § 2000a-2. Prohibition Against Deprivation of, Interference With, and Punishment for Exercising Rights and Privileges Secured by Section 2000a or 2000a-1 of this title ..................................................................................................................... 59 (19). 42 USC § 2000a-5. Civil actions by the Attorney General..................................... 59 (20). 42 USC § 2000bb. Congressional Findings and Declaration of Purposes............... 59 (21). 42 USC § 2000bb-1. Free Exercise of Religion Protected ..................................... 59 F. Basis for Jurisdiction ...................................................................................................................60 (1). Under 28 U.S.C. § 1331, Federal Questions............................................................. 60 (2). Under 42 U.S.C. § 1985 Conspiracy to Interfere With Civil Rights.......................... 60 (3). Under 42 U.S.C. § 1985 Conspiracy to Interfere With Civil Rights.......................... 60 (4). Under 42 U.S.C. § 1981 Equal Rights Under the Law.............................................. 60 (5). Under 42 U.S.C § 1982. Property Rights of Citizens................................................ 60 (6). Under 42 U.S.C. § 1983 Civil Action for Deprivation of Rights............................... 60 (7). Under 42 U.S.C. § 2000h–2. Intervention by Attorney General; Denial of Equal Protection on Account of . . . National Origin ............................................................... 61 (8). Under 42 U.S.C. § 1986. Action for Neglect to Prevent ........................................... 61 (9). Under 18 U.S.C. § 1988. Proceedings in Vindication of Civil Rights ....................... 61 (10). Under 28 U.S.C. § 1343(a), Civil Rights and Elective Franchises........................... 61

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THE TABLE OF CONTENTS (11). Under 18 U.S.C. § 1964 Civil Remedies [for Racketeering] ...................................62 G. Exceptions to Jurisdiction ........................................................................................................... 62 H. Venue – United States as Defendant ........................................................................................... 63 I. Representations to the Court......................................................................................................... 63 J. Standing to Sue as a Private Right of Action under the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN through the Treaty Clause and 28 U.S.C. § 1331 Federal Questions ..... 64 K. Standing to Sue for Cause and Not for the Status of the Plaintiff for Violations of My Own Civil Rights, Constitutional Rights, and Human Rights.................................................................... 64 (1). 16 CORPUS JURUS SECUNDUM § 111 Requirement of Standing: ...............................65 (2). 16 CORPUS JURUS SECUNDUM § 113 Facial and As-Applied Challenges ..................66 (3). The Constitution of the United States of America: Analysis and Interpretation of Cases Decided by the Supreme Court of the United States to June 28, 2002....................67 (4). Standing to Sue: U.S. ATTORNEY’S MANUAL, Title 4: Civil Resource Manual § 35:....70 L. Standing to Sue for the Civil Rights, Constitutional Rights, and Human Rights of Third Parties (i.e., the Unorganized Militia, 10 U.S.C. § 311(b)(2)), under the Jus Tertii Doctrine............. 71 (1). 16 CORPUS JURUS SECUNDUM § 116 Exceptions to Prohibition of Assertion of Rights of Third Parties ...................................................................................................71 (2) The Third Circuit & Just Tertii (for the Rights of Third Parties) ................................72 (3). General Principles of Third Party (Jus Tertii) Standing in Amato v. Wilentz 952 F.2d 742; 1991 U.S. App. LEXIS 30138 (1991), ............................................................74 (4) Third Party (Jus Tertii) Standing as Applied to the Plaintiff’s Case ...........................76 M. Standing to Sue as a Private Attorney General under the Civil RICO Act ................................... 78 (1). Citing from David F. Herr, ANNOTATED MANUAL FOR COMPLEX LITIGATION, (Thomson West, 2006 ed., Chapter 35 Civil Rico, pp. 792-793, footnotes generally omitted) .........................................................................................................................78 (2). Citing Paul A. Batista, CIVIL RICO PRACTICE MANUAL, 2nd Ed. 2006 Cumulative Supplement (Wolters Kluwer Law & Busines,) ..............................................................78 § 6.29 Agencies of the United States as RICO Defendants.........................................78 § 6.30 ─ Individual Federal Officials as RICO Defendants ........................................78

N. Pre-Enforcement Standing to Sue ............................................................................................... 79 (1). Email from U.S. Marshals Service as Threatening Arrest over Citizen’s Arrest Warrant is Obstruction of Justice....................................................................................79 O. Stigmatic Harm and Standing ..................................................................................................... 83 (1). Stigmatizing Trait....................................................................................................83 (2). Denial of Equal Treatment .......................................................................................83 (3). The Experience of the Stigmatized...........................................................................84 (4). Questions of Causation and Redressability ...............................................................85

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THE TABLE OF CONTENTS PART 3. PURPOSE OF THIS CASE ....................................................................................................................87 Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1 A. John S. Baker, Jr., REVISITING THE EXPLOSIVE GROWTH OF FEDERAL CRIMES, The Heritage Foundation Legal Memorandum, No. 26, June 16, 2008...................................................................88 B. The Over-Criminalization of Social and Economic Conduct ........................................................95 C. The Consequences of Judicial Inaction ........................................................................................97 D. Recognizing the Need for Change ...............................................................................................98 E. Treason by the Federal Courts over the Full Scope of the Second Amendment ..........................100 (1). (August 13, 2008) United States v. Hollis Wayne Fincher, 8th Circuit, No. 072514 and No. 07-2888 ................................................................................................. 103 (2). (June 26, 2008) District of Columbia v. Heller, U.S. Supreme Court, No. 07-290 at 52-53 and 54-56; 128 S.Ct. 2783; 554 U.S.478 F. 3d 370, affirmed. ......................... 103 (3). (August 24, 2004) The Conclusion in the U.S. Department of Justice Memorandum Opinion for the Attorney General [John Aschroft] WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHTS. ................................................ 105 (4). (December 5, 2002) Silveira, et al. v. Lockyer, 9th Cir. No. 01-15098.................... 105 (5). (Revised October 18, 2001) United States v. Emerson, 5th Cir,, No. 99-10331 (October 16, 2001) ...................................................................................................... 106 F. Eighth Circuit’s Faulty Logic on Machinegun Prohibition in United States v. Hollis Wayne Fincher, No. 07-2514 and No. 07-2888 (August 13, 2008) .............................................................106 (1). Jacob Sullum, WHY NO RIGHT TO MACHINE GUNS? ReasonOnline, June 26, 2008 . 108 G. Open Carry Handgun in Intrastate, Interstate, and Maritime Travel is the Constitutional Norm Even Though it May Not Be the Social Norm or the Legal Norm Today ........................................109 (1). Nunn v. State, 1 Ga. (1 Kel.) 243 at 251 (1846) (cited, in part, by Heller): ............. 109 (2). State v. Chandler, 5 La. Ann. 489, at 489-490; 52 Am. Dec. 599 (1850) (citied, in part, by Heller at 40).................................................................................................... 110 (3). Andrews v. State, 50 Tenn. (3 Heisk.) 165, 8 Am. Rep. 8 (1871) (citied, in part, by Heller at 57) ................................................................................................................ 110 (4). State v. Reid, 1 Ala. 612 at 616, 35 Am. Dec. 44 (1840) (citied, in part, by Heller at 57)........................................................................................................................... 111 H. What is the Role of the Unorganized Militia, 10 U.S.C. § 311(b)(2) in Federalism and Homeland Security?.......................................................................................................................111 I. General Synopsis of this Case.....................................................................................................123 J. To Sue For My Own Rights and Pursuit of Justice......................................................................127 (1). To Determine Constitutionality of Summary Judgment Dismissals of My Previous Cases over the Second Amendment ............................................................................. 127 (2). To Compel Intervention by the Attorney General (42 U.S.C. § 2000h–2)............... 128

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THE TABLE OF CONTENTS (3). To determine whether I have a civil Gideon right to court appointed qualified attorney under the American Bar Association’s Task Force on Access to Civil Justice’s recommendation. ...........................................................................................128 (4). To determine if Mandamus Relief was wrongfully Denied .....................................128 (5). To enforce my Seventh Amendment rights under the Common Law by treaty under the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN. ......................128 (6). To enforce a proper and uncorrupted judicial review of the FINAL AGENCY ACTION of the U.S. Coast Guard. ..............................................................................................128 (7). To determine whether provisions for private rights of action should be mandatory for all statutory rights under federal laws......................................................................129 (8). To determine whether allegations of obstruction of justice against the U.S. Marshals Service are valid............................................................................................129 (9). To apply the Federal Tort Claims Act for violations of the Seamen’s Suit Law (28 U.S.C. § 1916). ............................................................................................................129 (10). To determine if six years of unconstitutional summary judgments on motion to dismiss meets the requisite conditions for mandamus relief. .........................................129 (11). To determine whether the Assistant U.S. Attorney Dennis Barghaan of the U.S. Attorney’s Office in Alexandria committed obstructions of justice. ..............................129 (12). To determine whether the scandal over the politically motivated firing of eight U.S. Attorneys during the 2006 presidential election effected obstructions of justice for my civil action at the U.S. District Court for the Eastern District of Arkansas, Little Rock. ...........................................................................................................................130 (13). To determine whether the U.S. District Court in Little Rock, Arkansas committed obstructions of justice. ................................................................................130 (14). To determine whether I have any enforceable statutory, constitutional, or human rights at all in the Courts of the United States. ..............................................................130 K. To Sue For the Rights of Third Parties (Jus Tertii Doctrine) ...................................................... 130 (1). The law-abiding American people at large as a whole set of People as a Third Party. ...........................................................................................................................130 (2). The Unorganized Militia, 10 U.S.C. § 311(b)(2), as a subset of the American people at large as a Third Party. ...................................................................................130 (3). American Merchant Seamen as a subset of the American people at large as a Third Party. ...........................................................................................................................131 (4). American Truck Drivers as a subset of the American people at large as a Third Party. ...........................................................................................................................131 L. To Sue in the Interest of the Second Amendment ...................................................................... 131 (1). To present a Second Amendment Case by Invitation of U.S. Supreme Court..........131 (2). To determine whether unconstitutional conditions exist over the Second Amendment. ................................................................................................................131

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THE TABLE OF CONTENTS (3). To Compel Negotiated Rulemaking with the U.S. Coast Guard, the BATFE and the MARITIME ADVISORY COMMITTEE FOR OCCUPATIONAL SAFETY AND HEALTH (MACOSH) of the U.S. Department of Labor as Special Procedures Under Rule 16(C)(9) Federal Rules Of Civil Procedure, 33 C.F.R. § 1.05-60, 5 U.S.C. § 560570a, and 5 U.S.C. Appendix - FEDERAL ADVISORY COMMITTEE ACT............................ 131 (4). To resurrect open carry in intrastate, interstate, and maritime travel. ...................... 131 M. To Sue for Equal Justice Under the Law ...................................................................................132 (1). To Achieve Justice for Obstructions of Justice by the Hostile Federal Courts......... 132 (2). To Challenge the Constitutionality of Rule 5.1(a)(1)(A) of the Federal Rules of Civil Procedure............................................................................................................ 133 (3) To challenge the constitutionality of the Eleventh Amendment. .............................. 133 (4). To determine whether a U.S. seaman has a private right of action against the United Nations PROGRAMME OF ACTION TO PREVENT, COMBAT AND ERADICATE THE ILLICIT TRADE IN SMALL ARMS AND LIGHT WEAPONS IN ALL ITS ASPECTS (UN Document A/CONF.192/15)......................................................................................................... 135 (5). To determine whether Pacer Online Docket Fees are part of the Seamen’s Suit Law............................................................................................................................. 135 N. To Sue for Seamen’s Rights Under the Law ..............................................................................135 O. Arbitrary Exercise of Government Power ..................................................................................140 (1). To Incorporate the Second Amendment through the Fourteenth Amendment. ........ 140 (2). To determine whether the U.S. Department of Justice and the FBI have a duty to investigate allegations of extortion and corruption against federal judges and their court clerks.................................................................................................................. 140 (3). To determine the role of the Citizen’s Arrest Warrant in the Checks and Balance System of the Constitution of the United States............................................................ 141 (4). To Determine what role the U.S. Merchant Marine has in homeland security when the U.S. Department of Homeland Security has superintendence of the Merchant. ....... 141 (5). To determine whether the federal courts are waging a judicial war against the Constitution of the United States.................................................................................. 141 PART 4. IN DEFENSE OF PRO SE CIVIL LITIGATION ....................................................................................143 Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1 A. The Congress Has Killed the Private Bill (First Amendment Right to Petition) ..........................144 B. 2008 UPDATE: Neither the House nor the Senate have passed any Private Bills from January 3 to June 30, 2008..........................................................................................................................145 C. The Plaintiff has the Right to Challenge the Constitutionality of a Statute (Case Law) ...............148 (1). Change of Conditions............................................................................................ 148 (2). Change of Circumstances ...................................................................................... 149 (3). Compelling Constitutional Reasons ....................................................................... 149 C. Right to Petition ........................................................................................................................149 TABLE OF CONTENTS

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THE TABLE OF CONTENTS D. Kathleen M. Sullivan’s, Unconstitutional Conditions, 10 Harv.L.Rev. 1413 (May 1989)........... 150 PART 5. FEDERAL QUESTIONS PRESENTED (28 U.S.C. § 1331)................................................................... 153 Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1 A. Human Rights Law................................................................................................................... 154 B. Constitutional Law (The Checks and Balance System) .............................................................. 155 C. Corruption and Obstructions of Justice (18 U.S.C. § 1505)........................................................ 158 D. Application of the RICO Act Against the U.S. Government ...................................................... 160 E. Maritime Law ........................................................................................................................... 160 PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS .............................................................................. 163 Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1 A. Plaintiff has a Private Right of Action under the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN through the Treaty Clause of the U.S. Constitution ............................................... 164 (1). The Preamble to the American Declaration on the Rights and Duties of Man .........164 (2) The Invoked Articles of the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN in support of my demand for my Seventh Amendment right to a civil jury trial in defense of my own injuried rights.............................................................................164 (3) The Invoked Articles of the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN in support of my demand for my Seventh Amendment right to a civil jury trial in defense of the rights of third parties..........................................................................166 B. Plaintiff has a Private Right of Action under Article XVIII (Right to a Fair Trial), and Article XXIV (Right of Petition) (among others) of the American Declaration of the Rights and Duties of Man, 1948 through the Treaty Clause of the U.S. Constitution has already been taken by the Plaintiff with his Human Rights Complaint against the United States now Pending at the InterAmerican Commission on Human Rights (Petition No. 1142-06) ................................................... 170 C. PLAINTIFF’S NOTE: David B. Kopel, Paul Gallant & Joanne D. Eisen, The Human Right of Self-Defense, 22 BYU Journal of Public Law 43-178 (Fall 2007) (136 pages) is incorporated into this Part 6 as part of my claims in this complaint.................................................................... 171 D. The Conclusion in David B. Kopel, Paul Gallant & Joanne D. Eisen, The Human Right of Self-Defense 22 BYU Journal of Pulbic Law 33 (Fall 2007)........................................................... 171 E. With the Heller Opinion, the Second Amendment’s Individual Right to Keep and Bear Arms Became a Fundamental Change of Circumstances for the Emergence of a New Peremptory Norm of General International Law (jus cogens) Achieving Human Rights Status as Obligatio Erga Omnes upon the Member States of the United Nations .......................................................... 172 F. Natural Rights are Human Rights .............................................................................................. 173 G. Heller Impacts Maritime and International Human Rights Treaties............................................ 175 (1). Articles 39-51 of the United Nations Charter..........................................................175 (2). Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948 ........................................................................................................178 (3). United Nations’ Declaration On Human Rights Defenders .....................................178

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THE TABLE OF CONTENTS (4). The Inter-American Convention Against Corruption.............................................. 178 (5). United Nations Convention Against Corruption..................................................... 179 (6). International Covenant On Civil And Political Rights............................................ 179 (7). United Nations’ Universal Declaration on Human Rights ...................................... 179 (8). American Declaration of the Rights and Duties of Man ......................................... 180 H. Citing from David Sloss, When Do Treaties Create Individually Enforceable Rights?................180 I. United Nations at War Against the Second Amendment..............................................................183 J. The Human Rights Case of Jessica Gonzales: You Have No Individual Right to Police Protection ......................................................................................................................................184 K. The Human Rights Record of the United States 2002-2007 .......................................................185 L. Other Constitutions: Human Rights are Created by God. Not by Government. ...........................186 M. Other Constitutions: Personal Self-Defense ..............................................................................187 N. Other Constitutions: Self-Defense Against Tyranny...................................................................189 O. Other Constitutions: Right and Duty of Citizens to Resist or Revolt Against Domestic or Foreign Tyranny ............................................................................................................................190 P. Other Constitutions: Security against home invasion ..................................................................192 PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS ..............................................................201 Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1 A. The Right to Openly Keep and Bear Arms (Open Carry) in Intrastate, Interstate, and Maritime Travel is the Constitutional Norm ...................................................................................202 B. Open Carry in Intrastate, Interstate, and Maritime Travel is a Near-Absolute Human Right Notwithstanding Prohibited Person Status under 18 U.S.C. § 922 et seq.........................................202 C. Judge Ellen Segal Huvelle Wrongfully Denied Mandamus Relief ..............................................203 (1). Mandamus: Reserved for Extraordinary Situations: ............................................... 204 (2). First Condition for Mandamus Relief: The plaintiff has a clear right to relief ......... 204 (3). Second Condition for Mandamus Relief: The defendant has a clear duty to act ...... 204 (4). Third Condition for Mandamus Relief: There is no other adequate remedy available to the plaintiff. .............................................................................................. 204 (5). This Court has the duty to affirm Mandamus Relief............................................... 204 D. There Are No Federal Laws or Regulations on the Second Amendment Rights of U.S. Seamen to Possess or Carry a Handgun, Whether Concealed Carry or Open Carry, Between the Jurisdictions of Domestic Law and Maritime Law..........................................................................206 (1). “National Open Carry Handgun” is an Inherent Human Right of Self-Defense....... 206 E. The U.S. Department of Homeland Security Has General Superintendence Over the U.S. Merchant Marine and Merchant Personnel But Ignores the Role of Seamen’s Second Amendment Rights in Homeland Security......................................................................................206

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THE TABLE OF CONTENTS (1). That small arms training falls under the GENERAL REQUIREMENTS AND CLASSIFICATIONS FOR ABLE SEAMEN, 46 U.S.C. § 7306(a)(3): .......................................207 (2). That 33 C.F.R. § 104.220 COMPANY OR VESSEL PERSONNEL WITH SECURITY DUTIES requires the following: .................................................................................................207 (3). That the International Maritime Organization’s Maritime Safety Committee policy on, Piracy and Armed Robbery Against Ships: Guidance to Shipowners and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed Robbery Against Ships, MSC/Circ.623/Rev.3, dated May 29, 2002, paragraphs 45 and 46 states:.........................................................................................208 F. Case Law on Vested Rights (Sorted by Year) ............................................................................ 210 (1) Calder v. Bull, 3 Dall 386 (1796)............................................................................210 (2). Marbury v. Madison 5 U.S. 137, 163 (1803) .........................................................210 (3). Cockrum v. State, 24 Texas 394 (1859)..................................................................210 (4). Wilson v. State, 33 Arkansas, 557, at 560 (1878) (striking a ban on open carry).....211 (5). Union Pacific Railway Company v. Botsford, 141 U.S. 250, at 251 (1891).............211 (6). Yick Wo v. Hopkins, 118 U.S. 356, at 369 (1886) ...................................................211 (7) Coppage v. Kansas, 236 U.S. 1 (1915) [Unconsitutional Conditions] ......................211 (8). Olmstead v. United States 277 U.S. 438, 485 (1928) ..............................................214 (9). Murdock v. Pennsylvania 319 US 105 (1942) ........................................................214 (10). West Virginia State Board of Education v. Barnette 319 U.S. 624, 638-639 (1943) ..........................................................................................................................214 (11). American Communications Association, C.I.O., et al v. Douds, Regional Director of the National Labor Relations Board, 339 U.S. 382, 442-443 (1950)............215 (12). Lucas v. Colorado General Assembly 377 U.S. 713, 736-737 (1964)...................215 (13). Jordan v. Gardner 986 F.2d 1521 (9th Cir. 1993) ................................................215 (14). People v. Banks 6 Cal.4th 926, 949 (1993)..........................................................215 G. Case Law on the Private Right of Action (Sorted by Year)........................................................ 215 (1). United States v. Lee, 106 U.S. 196, at 220 (1882)...................................................215 (2). Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370 (7th Cir. 1985).........215 (3). Robert A. Buell, v. Betty Mitchell, Warden, No. 99-4271, 6th Cir., 274 F.3d at 373 (December 4, 2001) .....................................................................................................216 (4). Robert A. Buell, v. Betty Mitchell, Warden, No. 99-4271, 6th Cir., 274 F.3d at 373 (December 4, 2001) .....................................................................................................217 (5). Robert A. Buell, v. Betty Mitchell, Warden, No. 99-4271, 6th Cir. (December 4, 2001) ...........................................................................................................................217 (6). Diana Renkel v. United States 6th Circuit, No. 05-3420; 456 F.3d 640 (6th Cir. 2006) ...........................................................................................................................218 H. Case Law on Constitutional Rights (Sorted by Year)................................................................. 219 TABLE OF CONTENTS

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THE TABLE OF CONTENTS (1). United States v. Lee, 106 U.S. 196, at 220 (1882) .................................................. 219 (2). Juliard v. Greeman, 110 U.S. 421 (1884) .............................................................. 219 (3). Kentucky Railroad Tax Cases, 115 U.S. 321, 337 (1885) ....................................... 219 (4). Boyd v. United States, 116 U.S. 616 at 635 (1885)................................................. 219 (5). Logan v. United States 144 US 263 (1892) ............................................................ 219 (6). Duncan v. Missouri, 152 U.S. 377, 382 (1894) ...................................................... 220 (7). Mountain Timber Co. v. Washington, 243 US 219 (1917) ..................................... 220 (8). Miller v. United States 230 F 486 at 489 (1913)..................................................... 220 (9). Davis v. Wechler, 263 U.S. 22, 24 (1923).............................................................. 220 (10). Olmstad v. United States, 277 U.S. 438 (1928) .................................................... 220 (11). Lawrence v. State Tax Commission, 286 US 276, at 282 (1932)........................... 220 (12). Perry v. United States, 294 U.S. 330, 358 (1935)................................................ 220 (13). Smith v. Allwright, 321 U.S. 649 at 664 (1944).................................................... 220 (14). Kent v. Dulles, 357 U.S. 116, 125 (1958)............................................................. 220 (15). Walter Process Equipment v. Food Machinery, 382 U.S. 172 (1965) ................... 221 (16). Simmons v. United States, 390 U.S. 377 (1968) ................................................... 221 (17). Chandler v. Judicial Council, 398 U.S. 74, at 140 (1970) .................................... 221 (18). Chandler v. Judicial Council, 398 U.S. 74, at 140 (1970) .................................... 221 (19). Sherar v. Cullen, 481 F. 2d 946 (1973)................................................................ 221 (20). Goss v. Lopez, 419 US 565 (1975)....................................................................... 221 (21). United States v. Chadwick, 433 U.S. 1, at 16 (1976) ............................................ 221 (22). Owen v. City of Independence 445 U.S. 622, 657 1980)....................................... 221 (23). Forrester v. White, 484 U.S. 219, at 227-229 (1988)............................................ 221 (24). Mireles v. Waco, 502 U.S. 9, at 11-12 (1991) ...................................................... 222 (25). Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993) ................................... 223 PART 8. PLAINTIFF’S RELIGIOUS RIGHTS DECLARATIONS .........................................................................225 Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1 A. God, Guns, & Freedom .............................................................................................................226 B. What Rights Do We Have?........................................................................................................226 (1). Natural Rights (Black’s Law Dictionary)............................................................... 226 (2). Civil Rights (Civil Liberties) (Black’s Law Dictionary)......................................... 226 (3). Religious Freedom (Black’s Law Dictionary) ...................................................... 226 C. Second Amendment As A Religious Right Explained ................................................................226 (1). Inherent Rights Defined ........................................................................................ 226 TABLE OF CONTENTS

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THE TABLE OF CONTENTS (2). Inalienable Rights Defined.....................................................................................226 (3). Inherent human right includes creeds .....................................................................226 (4). Creed Defined as Confession or Articles of Faith, i.e. The Bible ............................227 D. The Unrecognized And Denied Religious Connection To The Second Amendment................... 227 (1). The Sword and The Bible as Articles of Faith, A System of Religious Belief .........228 (2). Selected Bible Verses Application to Plaintiff’s Case.............................................230 (a). Warnings of Government Genocide -- 2nd Kings 19:32-34 ............................... 230 (b). Corruption -- Ecclesiastes 3:16-17 .................................................................... 230 (c). Corruption/Bribery -- Isaiah 1:23-26................................................................. 230 (d). The Corrupted Receives Justice – Job 20:24-25 ................................................ 230 (e). Defending Against Government Abuses -- Jeremiah 5:20-31............................. 230 (f). Malicious Prosecution -- Psalms 59:1-5............................................................. 230 (g). Illegal Use of Weapons -- Numbers 35:18......................................................... 231 (h). Militias -- Ecclesiastes 4:12-13......................................................................... 231 (i). Defending the Church with Weapons -- 2 Chronicles 23:10 ............................... 231 (j). Weapons in the Workplace -- Nehemiah 4:17 .................................................... 231 (k). Lawlessness Without The Sword -- Deuteronomy 32:25. .................................. 231 (l). Weapons Making & Defense Against Persecution - Isaiah 54:16-17................... 231 (m). The Slaughter Weapon - (Sword v. Full-Auto Firearms) -- Ezekiel 9:1-2.......... 231 (n). Facing Your Enemy -- Deuteronomy 20:1......................................................... 231 (o). War -- Exodus 15:3 .......................................................................................... 231 (p). The Lord as a Warrior -- Joshua 5:13................................................................ 231 (q). Standing Watch -- Zechariah 9:8....................................................................... 232

(3). The Story of David and Goliath: Keeping Firearms Out of the Hands of Children (Teens) Defies Religious Teachings of the Bible ..........................................................232 (a). Weapons Training For Children - 1 Samuel 17:39-40........................................ 232 (b). The Hypocrites – Isaiah 32:14-15, 18................................................................ 233

(4). The Takings Clause of the Fifth Amendment includes Non-Physical Takings.........233 PART 9. PLAINTIFF’S MARITIME DECLARATIONS ...................................................................................... 235 Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1 A. Heller impacts the Vienna Convention on the Law of Treaties 1969 and the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986................................................................................................... 236 B. Heller impacts the American Declaration of the Rights and Duties of Man ................................ 236 C. Second Amendment Rights of U.S. Seamen to “Open Carry Handgun” in Intrastate, Interstate, and Maritime Travel under the First, Fourth, Fifth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments................................................................................................................ 236 TABLE OF CONTENTS

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THE TABLE OF CONTENTS D. Second Amendment Rights of Seamen under 33 U.S.C. § 383 Resistance of Pirates by Merchant Vessels (Suppression of Piracy)......................................................................................236 (1). 33 USC § 383. Resistance of pirates by merchant vessels (Suppression of Piracy) . 237 PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT ..............239 Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1 A. Heller and Incorporation of the Second Amendment .................................................................240 B. Human rights interpretation of Michael Anthony Lawrence, Second Amendment Incorporation through the Fourteenth Amendment Privileges and Immunities and Due Proceess Clauses, Missouri Law Review, Vol. 72, No. 1 (Winter 2007)........................................................242 (1). Excerpts From Heller with the Phrase “Natural Rights”......................................... 242 (2). Excerpts with Phrases the Include the Word “Human”........................................... 244 (3). “Oath” for federal judges, pages 42-44 (in last footnote)........................................ 248 C. The Stare Decisis Doctrine in Planned Parenthood v. Casey 505 U.S. 833 at 854-855 (Part III. A.) (1992); 120 L. Ed.2d. 674, 700 (1992). ....................................................................................250 PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT .........................................253 Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1 A. Law Review Articles for 2008...................................................................................................254 B. Law Review Articles from 2007 ................................................................................................254 C. Professor Suja Thomas discusses the Seventh Amendment Right to a Jury Trial at the University of Cincinnati College of Law (November 8, 2007) ........................................................254 D. New York Times Sidebar: Cases Keep Flowing In, But The Jury Pool Is Idle (April 30, 2007) ..256 E. Dissenting Opinions Exposing Too Many Summary Judgments .................................................259 (1). Melvin v. Cal-Freshener Corp., 8th Circuit, No. 06-1279 (2006) ............................ 259 (2). Adickes v. S.H. Kress & Co., 398 U.S. 144, 176 (1970) ......................................... 259 (3). Montana v. Hall, 481 U.S. 400, 406-410 (1987) .................................................... 259 PART 12. CHALLENGING THE FINAL AGENCY ACTION OF THE U.S. COAST GUARD ..................................263 Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1 A. Capt. J. P. Brusseau Violated his Oath of Office when he ascribed a Personal Ideology against the Second Amendment as a Basis for the Denial Letter, April 19, 2002.............................264 PART 13. CHALLENGING THE FEDERAL COURT RULING ............................................................................265 Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1 A. Hamrick v. President George W. Bush, U.S. District Court for DC, No. 02-1435 (2002)............266 B. Did Judge Ellen Segal Huvelle commit a fraud or make false statements (18 U.S.C. § 1001) in her Memorandum and Order? ........................................................................................................269 (1). Excerpts from the U.S. Attorney’s Manual, Title 9: Criminal Resource Manual. .... 269 PART 14. CHALLENGING SELECTED FEDERAL LAWS .................................................................................271

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THE TABLE OF CONTENTS Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1 A. Interstate Transportation of Firearms 18 U.S.C. § 926A. ........................................................... 272 B. Registration of Certain Organizations 18 U.S.C. § 2386. ........................................................... 272 C. The Merchant Marine Act of 1936 ............................................................................................ 272 (1). 46 U.S.C. Appendix § 1101. Fostering Development and Maintenance of Merchant Marine..........................................................................................................272 D. Maritime Problems; Cooperation With Others; Cargo Carriage; Recommendations 46 U.S.C Appendix § 1122........................................................................................................................... 272 E. Maritime Education and Training under the Merchant Marine Act of 1936................................ 273 (1). 46 U.S.C. Appendix § 1295. Congressional Declaration Of Policy ........................273 F. Secretary of Transportation May Provide Additional Training on Maritime Subjects 46 U.S.C. Appendix § 1295d. ........................................................................................................................ 273 G. Powers and Duties of Secretary of Transportation 46 U.S.C. Appendix § 1295g........................ 273 H. U.S. Coast Guard Merchant Mariner’s Document Pilot Program Public Law No. 108-293. Section 611 ................................................................................................................................... 274 I. Seafarers International Union’s Small Arms Range and Courses Approved by Military Sealift Command ..................................................................................................................................... 274 J. Brief Legislative History of Civil Defense (50 U.S.C. § 2251 et. seq.)........................................ 275 K. 10 U.S.C. § 311. Militia: Composition and Classes ................................................................... 276 PART 15. CHALLENGING SELECTED FEDERAL REGULATIONS ................................................................... 279 Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1 A. 46 CFR §12.05-3(a)(4) General Requirements (for Able Seamen)............................................. 280 B. 46 CFR §12.05-3(b)(4) General Requirements (for Able Seamen)............................................. 280 C. 27 C.F.R. § 478.38 Transportation of Firearms.......................................................................... 282 D. 33 CFR § 104.220 Company or Vessel Personnel with Security Duties ..................................... 283 E. 33 CFR § 104.230 Drill and exercise requirements .................................................................... 283 PART 16. CHALLENGING SELECTED STATE LAWS...................................................................................... 285 Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1 A. Federal Preemption of State Laws............................................................................................. 286 B. The List of Named State Laws: ................................................................................................. 288 C. Online Research Sites for Open & Concealed Carry.................................................................. 289 PART 17. CHALLENGING SELECTED MARITIME CONVENTIONS AND TREATIES ........................................ 297 Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1 A. PIRACY AND ARMED ROBBERY AGAINST SHIPS: Guidance to Shipowners and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed

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THE TABLE OF CONTENTS Robbery Against Ships (International Maritime Organization’s Maritime Safety Committee (MSC) Circular 623 Rev. No. 3, dated May 29, 2002)....................................................................298 B. Maritime Labour Convention, 2006 ..........................................................................................298 C. International Maritime Organization (IMO) Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988...........................................................................299 D. Chapter XI-2 - Special Measures to Enhance Maritime Security of The International Convention for Safety of Life at Sea (1974 as amended) (SOLAS)..................................................300 E. International Ship and Port Facility Security Code (ISPS Code) .................................................301 F. Chapter II: Master-Deck Department of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978........................................................302 PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES .................305 Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1 A. The RICO Act Includes the United States Government..............................................................306 B. The Civil RICO Act Includes the United Nations.......................................................................308 (1). Michael Goldsmith and Vicki Rinne, CIVIL RICO, FOREIGN DEFENDANTS, AND “ET”, 73 Minn. L. Rev. 1023, (April, 1989) ................................................................ 308 C. The United Nations, the United States and the States are Racketeering Enterprises Over the Second Amendment.......................................................................................................................311 (1). Definition of Enterprise under the RICO Act. ........................................................ 311 (2). Types of Enterprises. ............................................................................................ 311 D. The Private Attorney General and the Human Rights Defender..................................................315 E. Disarming the Private Attorney General.....................................................................................317 PART 19 THE CLAIMS ..................................................................................................................................323 Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1 A. The U.S. Coast Guard Final Agency Action Denial was Wrongfully Based Upon a Personal Ideology in Violation of the Oath of Office ....................................................................................324 B. Teetering on Judicial Tyranny and Despotism............................................................................329 C. Most Federal Judges are Mad Hatters on the Wrong Side of the Looking Glass .........................330 D. Judge Edith Jones of the Fifth Circuit, “The American legal system has been corrupted almost beyond recognition.”......................................................................................................................332 (1) Three Contemporary Threats to the Rule of Law .................................................... 332 (2) No ‘Great Awakening’ In Law School Classrooms ................................................. 333 (3) Judge Edith Jones declares that the Rule of Law has religious origins. .................... 334 E. Extortion Under Color of Official Right - Hobbs Act: Title 9 U.S. Attorneys’ Manual: Criminal Resource Manual § 2404 .................................................................................................334

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THE TABLE OF CONTENTS F. Evidence of Habit/Routine Practice (Rule 406, Fed.R.Ev.) Leads to Presumptions in General in This Civil Action of Corruption, Racketeering, and Judicial Treason Against the Constitution (Rule 301, Fed.R.Ev.).................................................................................................................... 337 G. Evidence of U.S. Supreme Court Bias Against Second Amendment Cases and Against Pro Se Plaintiffs with a Second Amendment Case..................................................................................... 338 H. Calendar Committee and Judge Reggie B. Walton of the U.S. District Court for DC Violated Court Order of Judge Richard W. Roberts. .................................................................................... 344 CLAIM No. (1): Human Rights Violations .................................................................................... 346 CLAIM No. (2): Retaliation by the The U.S. Coast Guard ............................................................. 348 CLAIM No. (3): Judicial Treason Against the Constitution & Bill of Rights .................................. 348 CLAIM No. (4): Obstructions of Justice ........................................................................................ 349 CLAIM No. (5): My Human Right to a Civil Jury Trial Violated ................................................... 354 CLAIM No. (6): U.S. Marshals Service Committed Obstructions of Justice and Conspiracies to Obstruct Justice............................................................................................................................. 356 CLAIM No. (7): Don Hamrick has a Right to a Private Bill Remedy Citing as Precedence Wilke v. Robbins, 551 U.S. ____; 433 F. 3d 755; 1127 S.Ct. 2588 (June 25, 2007). ................................. 359 CLAIM No. (8) Civil RICO Act Treble Damages in the amount of $14 Million ............................. 360 CLAIM No. (9) $1 Million in Compensatory Damages.................................................................. 361 PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) .............................................................. 363 Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1 A. RICO charges: U.S. Attorney’s Manual, Title 4 Civil Resource Manual § 109 .......................... 368 B. RICO-related Charges: U.S. Attorney’s Manual, Title 9 Criminal Resource Manual § 110 ........ 370 C. Extortion: Hobbs Act – Generally: U.S. Attorney’s Manual, Title 9 Criminal Resource Manual § 2402 .............................................................................................................................. 370 D. Extortion By Force or Fear – U.S. Attorney’s Manual, Title 9 Criminal Resource Manual § 2403.............................................................................................................................................. 371 (1). Did the defendant induce or attempt to induce the victim to give up property or property rights?............................................................................................................371 (2). Did the defendant use or attempt to use the victim’s reasonable fear of physical injury or economic harm in order to induce the victim’s consent to give up property?...371 (3). Did the defendant’s conduct actually or potentially obstruct, delay, or affect interstate or foreign commerce in any (realistic) way or degree?...................................372 (4). Was the defendant’s actual or threatened use of force, violence or fear wrongful? ..372 E. Extortion Under Color of Official Right - Hobbs Act USAM 9 Criminal.R.M. § 2404............... 374 F. The RICO Claims...................................................................................................................... 378 (1). Robbins v. Wilkie, et al, 10th Circuit, No. 01-8037, (August 21, 2002):..................378 G. Obstructions of Justice (18 U.S.C. § 1505)................................................................................ 379

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THE TABLE OF CONTENTS (1) Fraud and False States by the federal bench and bar under 18 U.S.C. § 1001. ......... 379 H. Corruption in the U.S. Department of Justice.............................................................................380 (1). Justice Department Witheld Evidence from the Court............................................ 380 (2). Federal and State Gun Control Laws Violate the Thirteenth and Fourteenth Amendments ............................................................................................................... 382 (a). “Actual Freedom” in Abraham Lincoln’s Emancipation Proclamation: ..............382 (b) “Actual Freedom” Defined in Dred Scott v. Sanford, 60 US (19 How.) 393, 417 (1857) ..............................................................................................................382

I. Exemptions to Foreign Sovereign Immunities Act of 1976 Apply to my Case Against the United Nations...............................................................................................................................383 J. Dennis Barghaan, Assistant U.S. Attorney from Alexandria, Virginia, acting as Special Attorney for the U.S. Department of Justice, and persons or persons unknown in the U.S. Department of Justice criminally withheld evidence (Memorandum Opinion for the Attorney General, Whether the Second Amendment Secures an Individual Right, dated August 24, 2004) vital to my Second Amendment case at the U.S. District Court for DC, Case No. 03-2160 .............384 PART 21. PETITION FOR WRIT OF MANDAMUS (MY DEMANDS FOR JUSTICE) ...........................................386 Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1 A. Writ of Mandamus for Negotiated Rulemaking with the U.S. Coast Guard, the BATFE and the Maritime Advisory Committee for Occupational Safety and Health (MACOSH) of the U.S. Department of Labor as Special Procedures Under Rule 16(C)(9) Federal Rules Of Civil Procedure, 33 C.F.R. § 1.05-60, 5 U.S.C. § 561-570a, and 5 U.S.C. Appendix - Federal Advisory Committee Act.................................................................................................................387 B. Writ of Mandamus for Negotiated Rulemaking with the U.S. Coast Guard in Cooperation with other Agencies, States, Territories, and Political Subdivisions in Accordance with 14 U.S.C. § 141. .................................................................................................................................388 C. Writ of Mandamus for Negotiated Rulemaking with the International Maritime Organization through the U.S. State Department in accordance with 14 U.S.C. § 142..........................................392 PART 22. PETITION FOR WRIT OF PROHIBITION .........................................................................................396 Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1 A. Writ of Prohibition to Prohibit My Arrest by the U.S. Marshals Service or any other federal or district law enforcement agency for Exercising My Right to Make Citizen’s Arrests of Federal Judges and court clerks for felony EXTORTION UNDER COLOR OF LAW 18 U.S.C. § 872, and felony racketeering EXTORTION UNDER COLOR OF OFFICIAL RIGHT 18 U.S.C. § 1951(a) and § 1951(b)(2) of their respective court’s filing fees in violation of the Seamen’s Suit Law 28 U.S.C. § 1916 in accordance with D.C. Code § 23-582(b)(2) and § 23-582(c)............................................397 B. Petition for Writ of Prohibition in Defence of Citizen’s Arrest Warrant of Federal Judges and Court Clerks for Felony Extortion..................................................................................................397 PART 23. PETITION FOR DECLARATORY JUDGMENT ..................................................................................398 Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1 PART 24. PETITION FOR INJUNCTIVE RELIEF..............................................................................................400

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THE TABLE OF CONTENTS Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1 PART 25. DAMAGES ..................................................................................................................................... 402 Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1 (1) RICO Act Damages for Wrongful Detention by the U.S. Coast Guard...................................... 403 (2) RICO Act Damages for Obstructions of Justice by the U.S. Department of Justice ................... 405 (3) RICO Act Damages for Obstructions of Justice by the U.S. Marshals Service .......................... 405 (4) RICO Act Damages for the Denial of my Seventh Amendment right to a Civil Jury Trial by the Federal Judiciary ..................................................................................................................... 405 EXHIBIT 1. STATE DEPARTMENT GIVES AWAY 8 ISLANDS OF ALASKA TO RUSSIA ...................................... 406 EXHIBIT 2. NO RIGHT TO POLICE PROTECTION DOCTRINE .......................................................................... 408 EXHIBIT 3. HELLER’S FUTURE IN THE LOWER COURTS ................................................................................ 412 EXHIBIT 4. THE LAW OF CITIZEN’S ARREST 65 COLUMBIA L.REV. 502 (MARCH 1965)............................... 419 EXHIBIT 5. DAVE KOPEL: U.N. TO WORLD: YOU HAVE NO HUMAN RIGHT TO SELF-DEFENSE ................... 421 EXHIBIT 6. THE RIGHT OF A LITIGANT TO PROCEED PRO SE: AMICUS CURIAE BRIEF IN ANDREW PICKHOLTZ V. RAINBOW TECHNOLOGIES, INC.AND SOFTWARE SECURITY, INC............................................. 425 EXHIBIT 7. COMMENTS ON THE NINTH CIRCUIT PRO SE TASK FORCE REPORT ............................................. 430 EXHIBIT 8. DAVE B. KOPEL, MEDELLIN AND THE SECOND AMENDMENT .................................................... 438 EXHIBIT 9. FEDERAL JUDICIAL ACCOUNTABILITY & INTEGRITY LEGISLATION (J.A.I.L.) ............................ 441 EXHIBIT 10. U.S. DEPARTMENT OF STATE - INTERNATIONAL LEGAL AUTHORITIES .................................... 445 EXHIBIT 11. REPORT OF THE U.N. SECRETARY-GENERAL ON HUMAN RIGHTS DEFEENDERS ....................... 446 EXHIBIT 12. U.N. DECLARATION ON HUMAN RIGHTS DEFENDERS .............................................................. 451 EXHIBIT 13. CASTLE ROCK, CO. VS JESSICA GONZALES 545 U.S. 748 (2005) (NO INDIVIDUAL RIGHT TO POLICE PROTECTION KILLED 3 LITTLE GIRLS) ......................................................................................... 457 EXHIBIT 14. HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES ..................................... 459 EXHIBIT 15. JAMES S. GIFFORD, JUS COGENS AND FOURTEENTH AMENDMENT PRIVILEGES OR IMMUNITIES: A FRAMEWORK OF SUBSTANTIVE, FUNDAMENTAL HUMAN RIGHTS IN A CONSTITUTIONAL SAFE-HARBOR, 16 ARIZ. J. INT’L & COMP. LAW 484 (SPRING 1999) ............................................................ 472 EXHIBIT 16. UNITED STATES V. HOLLIS WAYNE FINCHER, 8TH CIRCUIT ...................................................... 518 EXHIBIT 17. HELLER’S FUTURE IN THE LOWER COURTS ............................................................................. 526 EXHIBIT 18. JOHN ROSS, PROHIBITION’S UGLY LEGACY BY JOHN ROSS, UNINTENDED CONSEQUENCES ..... 534 EXHIBIT 19. DAVID B. KOPEL, THE NATURAL RIGHT OF SELF-DEFENSE: HELLER’S LESSON FOR THE WORLD, 58 SYRACUSE LAW REVIE __ (2008) ............................................................................................... 544 EXHIBIT 20. NICK BRADLEY, NATIONAL SECURITY, SWISS STYLE.............................................................. 560 EXHIBIT 21. JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION ............................ 564

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

Part 1. Mandatory Judicial Notice of Adjudicative Facts, Rule 201(d), Fed.R.Ev. A. Summary Judgment Dismissal is Barred Due Plaintiff’s Human Rights Complaint against the United States alleging Judicial Bias and Loss of Integrity in the Federal Judicial System under the Canons of Ethics

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

1

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

Don Hamrick

FRIDAY, JULY 4TH, 2008

5860 Wilburn Road, Wilburn, Arkansas 72179, Email: [email protected]

U.S. Supreme Court Ruling on the Second Amendment as Being an Individual Right has Become “jus cogens” For A New Peremptory Norm of General International Law “Petition No. 1142-06” Paolo G. Carozza Inter-American Commission on Human Rights 1889 F Street, N.W. Washington, D.C., 20006 Dear Mr. Carozza,

PLAINTIFF’S NOTE: The date of this letter is the “4th of July.” It is Independence Day! It is the day I mailed this letter to the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS because the Federal Courts are acting like the Judicial Praetorian Guard for the U.S. Government against its own People.

Please let the attached U.S. Supreme Court’s District of Columbia, et al v. Heller opinion be entered into the record as evidence vindicating my human rights complaint against the United States in Petition No. 1142-06. The Heller opinion also affects Jessica Gonzales (now Lenahan) human rights complaint against the United States, Petition No. 1490-05. Citing the VIENNA CONVENTION ON THE LAW OF TREATIES 1969 and the VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS 1986 it is my claim that the U.S. Supreme Court’s Heller opinion on the Second Amendment includes and protects the right of armed self-defense as part of the “right to life” provision in international human rights treaties and presents a “fundamental change of circumstances (Article 62 of both Vienna Conventions) for the “emergence of a new peremptory norm of general international law (“jus cogens”), (Article 64 of both Vienna Conventions) for the “right to life” provisions in international human rights treaties through the treaty clause in Article II, Section 2 of the CONSTITUTION OF THE UNITED STATES. The Heller opinion also impacts the AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN under Articles I, II, IV, V, VI, VII, VIII, IX, gun culture under Articles XIII, XV, XVII, XVIII, XXI, XXII, XXIII, XXIV, XXV, XXVI, and duties to society under Article XXIX to which the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS and the INTER-AMERICAN COURT ON HUMAN RIGHTS have jurisdiction. The Heller opinion has two quotable points: Page 9: “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.” [Footnote 7: . . . J. Ayliffe, A NEW PANDECT OF ROMAN CIVIL LAW 195 (1734) (“Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance”); . . .]1

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Emphasis is mine.

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS Page 46: “As the Constitution of the United States, and the constitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great difference of opinion on the question.” 2 J. Kent, Commentaries on American Law *340, n. 2 (O. Holmes ed., 12th ed. 1873).2 In the Page 9 quotation I construe the term “everyone else” to include merchant seamen in interstate and maritime travel as supported by the terms “Navigation” and “Traveling” in Scalia’s Footnote 7. Scalia’s Page 46 quotation implies that “open carry in interstate and maritime travel” is an “absolute or near-absolute right” not subject to any regulation at all. This inference needs clarification by judicial challenge. The federal statute, 18 U.S.C. § 926A - INTERSTATE TRANSPORTATION OF FIREARMS, (nearly identical in effect to the strickened DC gun control law), is now ready for such a judicial challenge. IMPACTED INTERNATIONAL TREATIES: ● PIRACY AND ARMED ROBBERY AGAINST SHIPS: GUIDANCE TO SHIPOWNERS AND SHIP OPERATORS, SHIPMASTERS AND CREWS ON PREVENTING AND SUPPRESSING ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS (International Maritime Organization’s Maritime Safety Committee (MSC) Circular 623 Rev. No. 3, dated May 29, 2002) Firearms ¶45. The carrying and use of firearms for personal protection or protection of a ship is strongly discouraged. ¶46. Carriage of arms on board ship may encourage attackers to carry firearms thereby escalating an already dangerous situation, and any firearms on board may themselves become an attractive target for an attacker. The use of firearms requires special training and aptitudes and the risk of accidents with firearms carried on board ship is great. In some jurisdictions, killing a national may have unforeseen consequences even for a person who believes he has acted in self defence. ● CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, Dec. 9, 1948 ● MARITIME LABOUR CONVENTION

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2

Emphasis mine.

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS THE INTERNATIONAL BILL OF HUMAN RIGHTS: ● UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948 ● INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1966 ● INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966 ● OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS ● SECOND OPTIONAL PROTOCOL TO THE INTERNATIONAL AIMING AT THE ABOLITION OF THE DEATH PENALTY

COVENANT ON CIVIL AND POLITICAL RIGHTS,

SELECTED INTERNATIONAL HUMAN RIGHTS INSTRUMENTS ● INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, 21 Dec 1965 ● INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 16 Dec 1966 ● OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 16 Dec 1966 ● SECOND OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON AIMING AT THE ABOLITION OF THE DEATH PENALTY, 15 Dec 1989

CIVIL AND POLITICAL RIGHTS,

● INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, 16 Dec 1966 ● CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, 18 Dec 1979 ● OPTIONAL PROTOCOL TO THE CONVENTION ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN, 10 Dec 1999 THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS ● THE AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN ● THE AMERICAN CONVENTION ON HUMAN RIGHTS ● ADDITIONAL PROTOCOL TO THE AMERICAN CONVENTION ON HUMAN RIGHTS IN THE AREA OF ECONOMIC, SOCIAL AND CULTURAL RIGHTS (Protocol of San Salvador) Respectfully submitted,

Don Hamrick

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The international reputation of the U.S. District Court for the District of Columbia is now on the line in how it now treats my case. Dismissing my case by Summary Judgment on Motion to Dismiss will be viewed with “strict scrutiny” under my Seventh Amendment right to a civil jury trial by the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS and under the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN OF 1948. This Court would do well to Order the U.S. Attorney to forget about filing their Motion to Dismiss and proceed directly to the Discovery Phase because 6 years of Motions to Dismiss is a criminal offense in itself.

The statistics of seventeen cases by an unrepresented civil plaintiff pushing the Second Amendment getting dismissed with and without prejudice ought to be, in and of itself, criminal evidence of judicial bias sufficient to sustain my Mandatory Judicial Notice dismissal of my case barred based on the hostile and despicable treatment my cases have received by the federal courts. The reputation of the federal courts are noted in law review articles presented in this case! “It is the manner of enforcement which gives section 1983 (title 42 of the U.S. Code - Federal statutes) its unique importance, for enforcement is placed in the hands of the people. Each citizen acts as a private attorney general who takes on the mantel of the sovereign guarding for all of us the individual liberties enunciated in the Constitution. Section 1983 represents a balancing feature in our governmental structure whereby individual

Thus, it is of special import that suits brought under this statute be resolved by a determination of truth rather than by a determination that the truth shall remain hidden.” Frankenhauser v. Rizzo 59 F.R.D. 339, 343

citizens are encouraged to police those who are charged with policing us all.

(1973)

CAVEAT: The Bolded fonts represent my intellectual anger, NOT my emotional anger, at how the federal courts have “enslaved” me these past 6 years (Thirteenth Amendment implications) researching the law, perpetually reading law review articles for new legal strategy only to be continually smacked down as

“Where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, notice and an opportunity to be heard are essential.” Wisconsin v. Constantineau, 400 U.S. 433, 437 (January 19, 1971).

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B. Summary Judgment Dismissal is Barred due to Two Open Invitations from the U.S. Supreme Court for Second Amendment cases and One Open Invitation for a Right to Travel Case. My Case Presents a Right to Travel with Second Amendment rights. (1). First Invitation by SCOTUS: Second Amendment (1997) The first subject matter jurisdiction invitation extended by the U.S. Supreme Court on the Second Amendment was Justice Thomas’ concurring opinion in Printz v. United States 521 U.S. 898 (1997): “. . . If, however, the Second Amendment is read to confer a personal right to “keep and bear arms,” a colorable argument exists that the Federal Government’s regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that Amendment’s protections. As the parties did not raise this argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.” 3 J. Story, Commentaries § 1890, p. 746 (1833).

(2). Second Invitation by SCOTUS: Right to Travel (1999) The second subject matter jurisdiction invitation extended by the U.S. Supreme Court on the right to travel as part of the privileges and immunities clause of the Fourteenth Amendment was again from Justice Thomas, but this time in his dissent in Saenz v. Roe 526 US 489 (1999). In Saenz, California, which has the sixth highest welfare benefit levels in the country, sought to amend its Aid to Families with Dependent Children (AFDC) program in 1992 by limiting new residents, for the first year they live in the State, to the benefits they would have received in the State of their prior residence. Cal. Welf. & Inst. Code Ann. §11450.03. The U.S. Supreme Court held: 1. Section 11450.03 violates Section 1 of the Fourteenth Amendment. Pp. 8-17. (a) In assessing laws denying welfare benefits to newly arrived residents, this Court held in Shapiro that a State cannot enact durational residency requirements in order to inhibit the migration of needy persons into the State, and that a classification that has the effect of imposing a penalty on the right to travel violates the Equal Protection Clause absent a compelling governmental interest. Pp. 8-10. (b) The right to travel embraces three different components: the right to enter and leave another State; the right to be treated as a welcome visitor while temporarily present in another State; and, for those travelers who elect to become permanent residents, the right to be treated like other citizens of that State. Pp. 10-12. (c) The right of newly arrived citizens to the same privileges and immunities enjoyed by other citizens of their new State--the third aspect of the right to travel--is at issue here. That right is protected by the new arrival’s status as both a state citizen and a United States citizen, and it is plainly identified in the Fourteenth Amendment’s Privileges or Immunities Clause, see SlaughterHouse Cases, 16 Wall. 36, 80. That newly arrived citizens have both state and federal capacities adds special force to their claim that they have the same rights as others who share their citizenship. Pp. 12-14. (d) Since the right to travel embraces a citizen’s right to be treated equally in her new State of residence, a discriminatory classification is itself a penalty. California’s classifications are defined entirely by the period of residency and the location of the disfavored class members’ prior residences. Within the category of new residents, those who lived in another country or in a State that had higher benefits than California are treated like lifetime residents; and within the broad subcategory of new arrivals who are treated less favorably, there are 45 smaller classes PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS whose benefit levels are determined by the law of their former States. California’s legitimate interest in saving money does not justify this discriminatory scheme. The Fourteenth Amendment’s Citizenship Clause expressly equates citizenship with residence, Zobel, 457 U. S., at 69 , and does not tolerate a hierarchy of subclasses of similarly situated citizens based on the location of their prior residences. Pp. 14-17. 2. PRWORA’s approval of durational residency requirements does not resuscitate §11450.03. This Court has consistently held that Congress may not authorize the States to violate the Fourteenth Amendment. Moreover, the protection afforded to a citizen by that Amendment’s Citizenship Clause limits the powers of the National Government as well as the States. Congress’ Article I powers to legislate are limited not only by the scope of the Framers’ affirmative delegation, but also by the principle that the powers may not be exercised in a way that violates other specific provisions of the Constitution. See Williams v. Rhodes, 393 U. S. 23, 29 . Pp. 1721. Chief Justice Rehnquist , with whom Justice Thomas joins, dissenting. The Court today breathes new life into the previously dormant Privileges or Immunities Clause of the Fourteenth Amendment--a Clause relied upon by this Court in only one other decision, Colgate v. Harvey , 296 U. S. 404 (1935), overruled five years later by Madden v. Kentucky , 309 U. S. 83 (1940). It uses this Clause to strike down what I believe is a reasonable measure falling under the head of a “good-faith residency requirement.” Because I do not think any provision of the Constitution--and surely not a provision relied upon for only the second time since its enactment 130 years ago--requires this result, I dissent. I Much of the Court’s opinion is unremarkable and sound. The right to travel clearly embraces the right to go from one place to another, and prohibits States from impeding the free interstate passage of citizens. The state law in Edwards v. California , 314 U. S. 160 (1941), which prohibited the transport of any indigent person into California, was a classic barrier to travel or migration and the Court rightly struck it down. Indeed, for most of this country’s history, what the Court today calls the first “component” of the right to travel , ante, at 10, was the entirety of this right. As Chief Justice Taney stated in his dissent in the Passenger Cases , 7 How. 283 (1849): “We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States. And a tax imposed by a State for entering its territories or harbours is inconsistent with the rights which belong to the citizens of other States as members of the Union, and with the objects which that Union was intended to attain. Such a power in the States could produce nothing but discord and mutual irritation, and they very clearly do not possess it.” Id., at 492. See also Crandall v. Nevada , 6 Wall. 35, 44 (1868); Williams v. Fears , 179 U. S. 270, 274 (1900); Memorial Hospital v. Maricopa County , 415 U. S. 250, 280-283 (1974) ( Rehnquist, J., dissenting) (collecting and discussing cases). The Court wisely holds that because Cal. Welf. & Inst. Code Ann. §11450.03 (West Supp. 1999) imposes no obstacle to respondents’ entry into California, the statute does not infringe upon the right to travel. See ante , at 10. Thus, the traditional conception of the right to travel is simply not an issue in this case. I also have no difficulty with aligning the right to travel with the protections afforded by the Privileges and Immunities Clause of Article IV, §2, to nonresidents who enter other States “intending to return home at the end of [their] journey.” See ante , at 11. Nonresident visitors of other States should not be subject to discrimination solely because they live out of State. See Paul v. Virginia , 8 Wall. 168 (1869); Hicklin v. Orbeck , 437 U. S. 518 (1978). Like the traditional PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS right-to-travel guarantees discussed above, however, this Clause has no application here, because respondents expressed a desire to stay in California and become citizens of that State. Respondents therefore plainly fall outside the protections of Article IV, §2. Finally, I agree with the proposition that a “citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bon ; fide residence therein, with the same rights as other citizens of that State.” Slaughter-House Cases , 16 Wall. 36, 80 (1873). But I cannot see how the right to become a citizen of another State is a necessary “component” of the right to travel, or why the Court tries to marry these separate and distinct rights. A person is no longer “traveling” in any sense of the word when he finishes his journey to a State which he plans to make his home. Indeed, under the Court’s logic, the protections of the Privileges or Immunities Clause recognized in this case come into play only when an individual stops traveling with the intent to remain and become a citizen of a new State. The right to travel and the right to become a citizen are distinct, their relationship is not reciprocal, and one is not a “component” of the other. Indeed, the same dicta from the Slaughter-House Cases quoted by the Court actually treats the right to become a citizen and the right to travel as separate and distinct rights under the Privileges or Immunities Clause of the Fourteenth Amendment. See id., at 79-80.3 At most, restrictions on an individual’s right to become a citizen indirectly affect his calculus in deciding whether to exercise his right to travel in the first place, but such an attenuated and uncertain relationship is no ground for folding one right into the other. No doubt the Court has, in the past 30 years, essentially conflated the right to travel with the right to equal state citizenship in striking down durational residence requirements similar to the one challenged here. See, e.g. , Shapiro v. Thompson , 394 U. S. 618 (1969) (striking down 1year residence before receiving any welfare benefit); Dunn v. Blumstein , 405 U. S. 330 (1972) (striking down 1-year residence before receiving the right to vote in state elections); Maricopa County , 415 U. S., at 280 -283 (striking down 1-year county residence before receiving entitlement to nonemergency hospitalization or emergency care). These cases marked a sharp departure from the Court’s prior right-to-travel cases because in none of them was travel itself prohibited. See id., at 254-255 (“Whatever its ultimate scope . . . the right to travel was involved in only a limited sense in Shapiro “); Shapiro, supra, at 671-672 (Harlan, J., dissenting).

3

The Court’s decision in the Slaughter-House Cases only confirms my view that state infringement on the right to travel is limited to the kind of barrier established in Edwards v. California, 314 U. S. 160 (1941), and its discussion is worth quoting in full: “But lest it should be said that no such privileges and immunities are to be found if those we have been considering are excluded, we venture to suggest some which own their existence to the Federal government, its National character, its Constitution, or its laws. “One of these is well described in the case of Crandall v. Nevada [, 6 Wall. 35 (1868)]. It is said to be the right of the citizen of this great country, protected by implied guarantees of its Constitution, `to come to the seat of government to assert any claim he may have upon that government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign commerce are conducted, to the subtreasuries, land offices, and courts of justice in the several States.’ And quoting from the language of Chief Justice Taney in another case, it is said `that for all the great purposes for which the Federal government was established, we are one people, with one common country, we are all citizens of the United States;’ and it is, as such citizens, that their rights are supported in this court in Crandall v. Nevada.” 16 Wall., at 79 (footnote omitted).

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS Instead, the Court in these cases held that restricting the provision of welfare benefits, votes, or certain medical benefits to new citizens for a limited time impermissibly “penalized” them under the Equal Protection Clause of the Fourteenth Amendment for having exercised their right to travel. See Maricopa County, supra , at 257. The Court thus settled for deciding what restrictions amounted to “deprivations of very important benefits and rights” that operated to indirectly “penalize” the right to travel. See Attorney General of N. Y. v. Soto-Lopez , 476 U. S. 898, 907 (1986) (plurality opinion). In other cases, the Court recognized that laws dividing new and old residents had little to do with the right to travel and merely triggered an inquiry into whether the resulting classification rationally furthered a legitimate government purpose. See Zobel v. Williams , 457 U. S. 55, 60 , n. 6 (1982); Hooper v. Bernalillo County Assessor, 472 U. S. 612, 618 (1985).4 While Zobel and Hooper reached the wrong result in my view, they at least put the Court on the proper track in identifying exactly what interests it was protecting; namely, the right of individuals not to be subject to unjustifiable classifications as opposed to infringements on the right to travel. The Court today tries to clear much of the underbrush created by these prior right-to-travel cases, abandoning its effort to define what residence requirements deprive individuals of “important rights and benefits” or “penalize” the right to travel. See ante , at 14-15. Under its new analytical framework, a State, outside certain ill-defined circumstances, cannot classify its citizens by the length of their residence in the State without offending the Privileges or Immunities Clause of the Fourteenth Amendment. The Court thus departs from Shapiro and its progeny, and, while paying lipservice to the right to travel, the Court does little to explain how the right to travel is involved at all. Instead, as the Court’s analysis clearly demonstrates, see ante , at 15-17, this case is only about respondents’ right to immediately enjoy all the privileges of being a California citizen in relation to that State’s ability to test the good-faith assertion of this right. The Court has thus come full circle by effectively disavowing the analysis of Shapiro , segregating the right to travel and the rights secured by Article IV from the right to become a citizen under the Privileges or Immunities Clause, and then testing the residence requirement here against this latter right. For all its misplaced efforts to fold the right to become a citizen into the right to travel, the Court has essentially returned to its original understanding of the right to travel.” --Justice Thomas, with whom the Chief Justice [Rhenquist] joins, dissenting. “As The Chief Justice points out, ante at 1, it comes as quite a surprise that the majority relies on the Privileges or Immunities Clause at all in this case. That is because, as I have explained supra , at 1-2, The Slaughter-House Cases sapped the Clause of any meaning. Although the majority appears to breathe new life into the Clause today, it fails to address its historical underpinnings or its place in our constitutional jurisprudence. Because I believe that the demise of the Privileges or Immunities Clause has contributed in no small part to the current disarray of our Fourteenth Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case. Before invoking the Clause, however, we should endeavor to understand what the framers of the Fourteenth Amendment thought that it meant. We should also consider whether the Clause should displace, rather than augment, portions of our equal protection and substantive due process jurisprudence. The majority’s failure to consider these important questions raises the specter that the Privileges or Immunities Clause will become yet another convenient tool for inventing new

4

As Chief Justice Burger aptly stated in Zobel: “In reality, right to travel analysis refers to little more than a particular application of equal protection analysis. Right to travel cases have examined, in equal protection terms, state distinctions between newcomers and longer term residents.” 457 U. S., at 60 , n. 6.

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS rights, limited solely by the “predilections of those who happen at the time to be Members of this Court.” Moore v. East Cleveland, 431 U. S. 494, 502 (1977).”

(3). Third Invitation by SCOTUS: Second Amendment (2008) (Again!) Justice Scalia’s opinion in District of Columbia v. Heller, No. 07-290, 554 US ____ (June 26, 2008) held that “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Justice Scalia answered the first invitation by Justice Thomas with yet another subject matter jurisdiction invitation: “JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear arms in doubt, and for not providing extensive historical justification for those regulations of the right that we describe as permissible. See post, at 42–43. But since this case represents this Court’s first in-depth examination of the Second Amend-ment, one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. And there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.” This alone insures that I get a civil jury trial.

C. Summary Judgment is Unconstitutional and a Fraud. Summary Judgment under Bell Atlantic Corp. v. Twombly5 is a stealthy encroachment upon the Seventh Amendment right to a Civil Jury Trial. “It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis. We have no doubt that the legislative body is actuated by the same motives; but the vast accumulation of public business brought before it sometimes prevents it, on a first presentation, from noticing objections which become developed by time and the practical application of the objectionable law.” Boyd v. United States, 116 U.S. 616 at 635 (1886)

5

U.S. Supreme Court, No. 05-1126 (May 21, 2007), 425 F. 3d 99

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS Pleading Rule 9(b) Special Matters of Fraud, Mistake and Conditions of Mind, FEDERAL RULES OF CIVIL PROCEDURE:

AGAINST SUMMARY JUDGMENT John Bronsteen Assistant Professor, Loyola University Chicago School of Law. 75 George Washington Law Review 522 (April 2007) Introduction For centuries, the paradigm for resolving a legal dispute was a trial.6 But about twenty-five years ago, legal scholarship began to take note of a shift away from that paradigm.7 Empirical studies demonstrated that most cases were resolved by settlement rather than trial, and although this trend was lamented by a few (including most famously Owen Fiss in his article Against Settlement),8 it was supported by two emerging pillars of the legal academy. One was the field of law and economics, which welcomed settlement as a cheap and efficient alternative to adjudication.9 The other was the field of alternative dispute resolution, which grouped settlement with mediation and arbitration as less adversarial means of working through disagreements.10 Settlement was a boon to both litigants and the court system because it avoided the costs of trial. With broad approval from judges, parties, and academics, settlement was the new paradigm as the twentieth century ended. But settlement and trial are not the only ways to resolve a legal dispute, and a third option has recently become so prominent as to mirror the focus attracted by settlement in the early 1980s.11 This new option is pretrial adjudication, typically in the form of summary judgment. When one party sues another, the defendant refuses to settle and instead litigates—but with the hope of never seeing a jury. After each side shows the other all of its relevant documents, propounds interrogatories to the opposing party, and makes available its witnesses for questioning via depositions, the parties ask the court to grant judgment in their favor on the ground “that there is

6

See, e.g., Stephan Landsman, THE CIVIL JURY TRIAL IN AMERICA, 62 Law & Contemp. Probs. 285, 285 (1999) (“Americans have relied on juries of ordinary citizens to resolve their civil disputes since the beginning of the colonial period.”). 7

E.g., Carrie Menkel-Meadow, FOR AND AGAINST SETTLEMENT: USES AND ABUSES OF THE MANDATORY SETTLEMENT CONFERENCE, 33 UCLA L. Rev. 485, 502 (1985) (“Over 90% of all cases (both civil and criminal) are currently settled and taken out of the system and, thus, are unavailable for common law rule making.”); Judith Resnik, MANAGERIAL JUDGES, 96 HARV. L. REV. 374, 404 (1982). 8

Owen Fiss, Comment, AGAINST SETTLEMENT, 93 Yale L.J. 1073 (1984).

9

E.g., George Loewenstein et al., SELF-SERVING ASSESSMENTS OF FAIRNESS AND PRETRIAL BARGAINING, 22 J. LEGAL STUD. 135, 135 (1993) (“Litigation is a negative-sum proposition for the litigants—the longer the process continues, the lower their aggregate wealth.”). 10

See, e.g., Carrie Menkel-Meadow, FOR AND AGAINST SETTLEMENT: USES AND ABUSES OF THE MANDATORY SETTLEMENT CONFERENCE, 33 UCLA L. Rev. at 504 (1985) (“Settlement can be particularized to the needs of the parties, it can avoid win/lose, binary results, provide richer remedies than the commodification or monetarization of all claims, and achieve legitimacy through consent.”). 11

See Stephen B. Burbank, VANISHING TRIALS AND SUMMARY JUDGMENT BETHLEHEM OR GOMORRAH?, 1 J. Empirical Legal Stud. 591, 600 (2004).

IN

FEDERAL CIVIL CASES: DRIFTING TOWARD

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”12 Judges now grant these motions so often13 that summary judgment stands alongside trial and settlement as a pillar of our system. 14 A defendant1510 can use this mechanism to rid itself of litigation without either risking trial or paying a settlement, and the refusal to settle might discourage future lawsuits. Because summary judgment avoids the time and expense of trial, it also appeals to commentators who prize efficiency.16 It is thus a staple of how today’s U.S. civil justice system conducts business, and most view this state of affairs as a welcome development.17 Amid this movement toward an increasingly central role for summary judgment, there have been a few cautionary voices. When the Supreme Court started us down this road twenty years ago by

12

FED. R. CIV. P. 56(c). Although a party may move for summary judgment from the beginning of a suit, Fed. R. Civ. P. 56(a)–(b), the rule gives judges discretion to continue a motion until further discovery has taken place, Fed. R. Civ. P. 56(f). 13

See Stephen B. Burbank, VANISHING TRIALS AND SUMMARY JUDGMENT IN FEDERAL CIVIL CASES: DRIFTING TOWARD BETHLEHEM OR GOMORRAH?, 1 J. Empirical Legal Stud. at 592 (2004) (“[T]he rate of case termination by summary judgment in federal civil cases nationwide increased substantially in the period between 1960 and 2000 . . . .”). 14

See Gillian K. Hadfield, WHERE HAVE ALL THE TRIALS GONE? SETTLEMENTS, NONTRIAL ADJUDICATIONS, AND STATISTICAL ARTIFACTS IN THE CHANGING DISPOSITION OF FEDERAL CIVIL CASES, 1 J. Empirical Legal Stud. 705, 705 (2004) (using electronic docketing data to reach the “surprising conclusions that a smaller percentage of cases were disposed of through settlement in 2000 than was the case in 1970, [and] that vanishing trials have been replaced not by settlements but by nontrial adjudication”). 15

Although summary judgment can be granted in favor of either a plaintiff or a defendant, it is granted far more often in favor of the defendant. Stephen B. Burbank, VANISHING TRIALS AND SUMMARY JUDGMENT IN FEDERAL CIVIL CASES: DRIFTING TOWARD BETHLEHEM OR GOMORRAH?, 1 J. Empirical Legal Stud. at 616 (2004) (“In [fiscal year] 2000, judges in the Eastern District [of Pennsylvania] granted 293 motions for summary judgment (87 for plaintiffs and 206 for defendants) . . . .”); D. Theodore Rave, Note, QUESTIONING THE EFFICIENCY OF SUMMARY JUDGMENT, 81 N.Y.U. L. Rev. 875, 900 n.142 (2006). Because the Administrative Office of the U.S. Courts does not keep statistics on summary judgment, Rave, supra, at 900, statistics must be calculated based on individual studies, e.g., Stephen B. Burbank, VANISHING TRIALS AND SUMMARY JUDGMENT IN FEDERAL CIVIL CASES: DRIFTING TOWARD BETHLEHEM OR GOMORRAH?, 1 J. Empirical Legal Stud. at 616-18 (2004) (collecting data from the Eastern District of Pennsylvania), or audits of sampled electronic docket information, e.g., Gillian K. Hadfield, WHERE HAVE ALL THE TRIALS GONE? SETTLEMENTS, NONTRIAL ADJUDICATIONS, AND STATISTICAL ARTIFACTS IN THE CHANGING DISPOSITION OF FEDERAL CIVIL CASES, 1 J. Empirical Legal Stud. at 712-23 (2004) (auditing electronic data for input error and compiling “corrected” data). 16

Edward J. Brunet et al., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE 1 (2d ed. 2000) (“Rule 56 performs a ‘workhorse’ task in the federal procedural system and occupies center stage in attaining the central goal of conserving the expenditure of judicial resources.”). 17

See E.g., BRUNET ET AL., supra note 11, at 327 (“Summary judgment should be seen as a potential expense-saving device to avoid an unnecessary trial.”); Randy J. Kozel & David Rosenberg, Solving the Nuisance-Value Settlement Problem: Mandatory Summary Judgment, 90 VA. L. REV. 1849, 1853 (2004) (“[M]andating summary judgment as a condition precedent to entering into an enforceable settlement agreement eliminates the potential payoff from nuisance-value strategies, removing any incentive to employ them.”); Georgene M. Vairo, Through the Prism: Summary Judgment After the Trilogy (2003), in CIVIL PRACTICE AND LITIGATION TECHNIQUES IN FEDERAL AND STATE COURTS, at 1543, 1564 (ALI-ABA, Coursebook, 2006) (“Justice Rehnquist’s opinion [in Celotex] is a veritable ode to the superiority of summary judgment as a means of fairly, efficiently and economically disposing of claims.”); see also Martin H. Redish, Summary Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57 STAN. L. REV. 1329, 1335 (2005) (“Because the very purpose of summary judgment is to avoid unnecessary trials, one need not be a trained logician to conclude that an increase in the availability of summary judgment will naturally have a corresponding negative impact on the number of trials.”).

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS making it easier for judges to grant summary judgment,18 some scholars wondered whether the intended improvements in efficiency would materialize19 or whether the right to a jury trial was being unduly restricted.20 And recently, a few scholars have begun to voice concerns that the summary judgment revolution might have gone too far.21 But these detractors have been all but drowned out in a sea of support for the new regime of dispute resolution, and even the detractors object merely to how often summary judgment is used, rather than to the fact that it is used at

18

See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). This “trilogy” drastically reduced barriers for granting summary judgment motions. Before the trilogy, the judicial attitude toward summary judgment was perhaps best summed up by an Alabama courthouse sign that read “No Spittin,’ No Cussin’ and No Summary Judgment.” Susan T. Wall, “NO SPITTIN,’ NO CUSSIN’ AND NO SUMMARY JUDGMENT”: RETHINKING MOTION PRACTICE, S.C. Law., June 1997, at 29, 29. 19

Samuel Issacharoff & George Loewenstein, SECOND THOUGHTS ABOUT SUMMARY JUDGMENT, 100 YALE L.J. 73, 100 (1990) (“[C]hanges that facilitate judicial disposition of cases but impede settlement may fail to relieve, if not exacerbate, court congestion.”); see also Arthur R. Miller, THE PRETRIAL RUSH TO JUDGMENT: ARE THE “LITIGATION EXPLOSION,” “LIABILITY CRISES,” AND EFFICIENCY CLICH´ES ERODING OUR DAY IN COURT AND JURY TRIAL COMMITMENTS ?, 78 N.Y.U. L. Rev. 982, 1047 (2003) (“[C]ritics have questioned whether the [trilogy] decisions really will produce gains in efficiency, pointing out that summary judgment motions take time to prepare, support, and decide (realities that are likely to have been increased by the motion’s post-1986 vitality), often slow a case’s forward progress, and typically save time only when granted.” (citation omitted)). 20

E.g., Jack H. Friedenthal, CASES ON SUMMARY JUDGMENT: HAS THERE BEEN A MATERIAL CHANGE IN STANDARDS?, 63 Notre Dame L. Rev. 770, 775 (1988) (“[W]hen the moving party would have the burden of persuasion at trial, the courts have . . . strained to permit the granting of the motion by interpreting the amendment not to include a strict submission of matters of credibility to the jury, a questionable determination.”); see also Paul W. Mollica, FEDERAL SUMMARY JUDGMENT AT HIGH TIDE, 84 Marq. L. Rev. 141, 141–42 (2000) (“[T]he increase in summary dispositions of civil cases stirs fear that, in the haste to resolve weak cases, courts risk overriding the constitutional imperatives of due process and the right to a civil jury trial under the Fifth and Seventh Amendments.”). 21

E.g., Arthur R. Miller, THE PRETRIAL RUSH TO JUDGMENT: ARE THE “LITIGATION EXPLOSION,” “LIABILITY CRISES,” AND EFFICIENCY CLICH´ES ERODING OUR DAY IN COURT AND JURY TRIAL COMMITMENTS?, 78 N.Y.U. L. Rev. 982, at 1047 (2003); Patricia M. Wald, SUMMARY JUDGMENT AT SIXTY, 76 Tex. L. Rev. 1897, 1941 (1998) (“Its flame lit by Matsushita, Anderson, and Celotex in 1986, and fueled by the overloaded dockets of the last two decades, summary judgment has spread swiftly through the underbrush of undesirable cases, taking down some healthy trees as it goes.”); Rebecca Silver, Note, STANDARD OF REVIEW IN FOIA APPEALS AND THE MISUSE OF SUMMARY JUDGMENT, 73 U. Chi. L. Rev. 731, 751– 52 (2006) (lamenting that summary judgment has become the status quo for Freedom of Information Act decisions, even when genuine issues of material fact exist); Milton I. Shadur, AN OLD JUDGE’S THOUGHTS, CBA REC., January 2004, at 27, 27 (“From my perspective that trend has gone much too far, to the benefit of no one involved in the justice system . . . .”).

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS all.22 Indeed, the idea of questioning the legitimacy of summary judgment altogether is widely regarded as “a legal lunacy.”23 Against this backdrop, it makes sense that a forthcoming article titled “Why Summary Judgment Is Unconstitutional”24 has received such intense interest and provoked such profound surprise. 25 This article by Suja Thomas contends that summary judgment violates the Seventh Amendment to the U.S. Constitution, which guarantees the right to a jury trial in civil cases. The argument is straightforward: when we allow a judge to keep a plaintiff’s lawsuit away from a jury on the ground that no “reasonable jury could find for”26 the plaintiff, we have violated the constitutional decree that “[i]n suits at common law, . . . the right of trial by jury shall be preserved.”27 Thomas notes that the Supreme Court has always interpreted the Seventh Amendment to mean that the jury trial right must never be limited further than it was at common law in 1791 (otherwise it would not be fully “preserved”), and she explains that neither summary judgment nor its equivalent existed at common law. 28 Thomas’s paper deserves the attention it has received, and its arguments are convincing with respect to history and textual interpretation. I doubt that anyone will mount a successful rebuttal to those points. Nonetheless, I doubt even more strongly that Thomas’s historical and interpretive arguments alone will persuade courts to abolish summary judgment. As the last half century of legal scholarship has demonstrated, courts temper their adherence to doctrine with a healthy dose of concern for the practical implications of their decisions. Because summary judgment is such an integral part of the everyday workings of the U.S. civil justice system, and because everyone 22

E.g., Edward J. Brunet et al., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE at 327 (2d ed. 2000) (“Summary judgment should be seen as a potential expense-saving device to avoid an unnecessary trial.”); Randy J. Kozel & David Rosenberg, SOLVING THE NUISANCE-VALUE SETTLEMENT PROBLEM: MANDATORY SUMMARY JUDGMENT, 90 VA. L. REV. 1849, 1853 (2004) (“[M]andating summary judgment as a condition precedent to entering into an enforceable settlement agreement eliminates the potential payoff from nuisance-value strategies, removing any incentive to employ them.”); Georgene M. Vairo, THROUGH THE PRISM: SUMMARY JUDGMENT AFTER THE TRILOGY (2003), in CIVIL PRACTICE AND LITIGATION TECHNIQUES IN FEDERAL AND STATE COURTS, at 1543, 1564 (ALI-ABA, Coursebook, 2006) (“Justice Rehnquist’s opinion [in Celotex] is a veritable ode to the superiority of summary judgment as a means of fairly, efficiently and economically disposing of claims.”); see also Martin H. Redish, SUMMARY JUDGMENT AND THE VANISHING TRIAL: IMPLICATIONS OF THE LITIGATION MATRIX, 57 STAN. L. REV. 1329, 1335 (2005) (“Because the very purpose of summary judgment is to avoid unnecessary trials, one need not be a trained logician to conclude that an increase in the availability of summary judgment will naturally have a corresponding negative impact on the number of trials.”). 23

W. Mollica, FEDERAL SUMMARY JUDGMENT AT HIGH TIDE, 84 Marq. L. Rev. at 205 (2000).

24

Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 VA. L. REV. 139 (2007).

25

The article has attracted, as of this writing, 5149 abstract views and 1019 downloads on the Social Science Research Network. See Social Science Research Network, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=886363 (last visited Mar. 23, 2007). It was also featured on two leading Weblogs. Legal Theory Blog http://lsolum.typepad.com/legaltheory/2006/02/suja_on_the_con.html (Feb. 22, 2006, 18:33 CST); How Appealing, http://howappealing.law.com/022206.html#011509 (Feb. 22, 2006, 21:50 EST). 26

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Edward J. Brunet et al., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE at 267 (2d ed. 2000). This is the standard set out by the Supreme Court for whether summary judgment should be granted, and it governs current practice. 27

U.S. CONST. amend. VII.

28

See Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 148-58 (2007) (outlining the procedural mechanisms available at common law and concluding that summary judgment does not resemble those procedures).

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS assumes that the system would be crushed under the weight of innumerable trials if summary judgment disappeared, courts will turn a blind eye to the interpretive problems raised by Thomas and by the litigants who will cite her work. 29 I view this near-certain outcome as unfortunate—not because I believe that courts should ignore practical considerations, but rather because I think their assumptions about such considerations are inaccurate in this context. Specifically, I think that the civil justice system would actually enjoy a net benefit from abolishing summary judgment, in terms of both efficiency30 and fairness.3126 To put it another way, it would behoove us to abolish summary judgment even if we were not constitutionally obligated to do so. My hope is that the twin problems of its unconstitutionality and its concrete harm might together be enough to persuade courts (or amenders of the Federal Rules of Civil Procedure) to move away from this practice rather than embrace it. We would be better off if we returned to the old paradigms of settlement and trial than if we maintained our current reliance on pretrial adjudication as the new dominant mode of resolving disputes. ... III. A Brief Sketch of the Constitutional Issue It is unnecessary for this Article to restate the constitutional case against summary judgment laid out so well in Suja Thomas’s forthcoming article. 32 On the other hand, an article titled “Against Summary Judgment” would do its readers a disservice if it failed to provide even a cursory explanation of the point that summary judgment is unconstitutional. The Seventh Amendment to the U.S. Constitution states that “[i]n suits at common law, . . . the right of trial by jury shall be preserved.”33 The reference to “common law” and the word “preserved” have prompted the Supreme Court consistently to interpret the Amendment to mean that litigants today must be accorded no less restrictive access to a jury trial than were litigants in 1791 when the Amendment was ratified.34 There was no such thing as summary judgment in 1791,35 so on its face the practice stands on infirm constitutional footing. It could, however, be permissible if any procedures that did exist in 1791 created a limitation on the right to jury trial equivalent to that which summary judgment creates in our current system.36 As Thomas explains, there were five relevant procedures in 1791 that limited the right to jury trial.37 Summary judgment is constitutional if and only if it equates to any of these procedures. The five procedures were: 29

To her credit, Thomas anticipates this point and addresses it in a couple of paragraphs near the end of her paper. See See Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 177-79 (2007). 30

Infra Part I.C.

31

Infra Part II.A.

32

Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. 139 (2007).

33

U.S. CONST. amend. VII.

34

Edward J. Brunet et al., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE at 14-15 (2d ed. 2000); Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 146-47 (2007). 35

Edward J. Brunet et al., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE at 14-15 (2d ed. 2000).

36

See id.

37

Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 148 (2007).

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS (1) demurrer to the pleadings, (2) demurrer to the evidence, (3) special case, (4) compulsory nonsuit, and (5) new trial.38 The first three procedures shared a crucial similarity: in each, the judge made no assessment of the facts of the case whatsoever. The demurrer to the pleadings was a sort of precursor to the modern motion for judgment on the pleadings (i.e., the motion to dismiss under Rule 12(b)(6)). 39 One party admitted all facts alleged by the other and requested judgment in its favor. The judge would then issue a conclusive judgment one way or the other. Unlike a modern 12(b)(6) motion, in which the case proceeds if the motion is denied, a demurrer to the pleadings would end the case in favor of whichever litigant received the ruling it sought. A defendant who made such a motion would lose her right to advance her case because she would have admitted everything alleged. 40 Thus, this procedure at most limited the right to jury trial as much as does a 12(b)(6) motion—far less than a summary judgment motion, which allows the judge to keep the plain tiff from a jury on the ground that the plaintiff’s evidence would be insufficient to convince a reasonable jury. Unlike the demurrer to the pleadings, the demurrer to the evidence might look to some like a variation on our current practice of summary judgment. But there are determinative differences. After all the evidence was presented at trial, one side could admit that all of the other side’s evidence was true and ask the judge to decide the case either way by applying the law to those admitted facts.41 Like the demurrer to the pleadings, this procedure was rare because it carried a huge risk (one that today’s summary judgment lacks): if the judge disagreed with your claim to win as a matter of law, then you would lose the case outright. Another difference from summary judgment was that the procedure took place during the jury trial rather than before. But by far the most important difference was that the judge was not asked to (indeed, was required not to) weigh each side’s evidence and decide whether any reasonable jury could rule for one of the parties. Instead, to pursue a demurrer to the evidence, one side had to admit everything alleged by the other side. This resembles far more closely the standard applied to a modern 12(b)(6) motion than to a motion for summary judgment. The third common-law procedure, the special case, also involved a judicial determination of the law when the facts were in no dispute. If the parties established the facts by agreement or by a jury verdict, then they could ask the court to decide the case by a pure application of the law to those facts.42 This differs from summary judgment for the same reasons that the demurrer to the evidence does: the judge makes no factual assessment, and whichever party loses at this stage automatically loses the case.

38

Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 148-58 (2007).

39

Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 149 (2007) (“Under demurrer to the pleadings, the court considered only the facts alleged by the opposing party.”). 40

Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 149 (2007).

41

Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 150-51 (2007).

42

Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 156-57 (2007).

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS The fourth common-law procedure, the compulsory nonsuit, comes closer to summary judgment but still falls short. In the compulsory nonsuit, the judge could overrule a jury verdict if there was no evidence to support it.43 This procedure is far more like the modern judgment notwithstanding the verdict than it is like summary judgment, because it occurred after the trial rather than before. But it lacked even the teeth of its modern analogue because it was limited to cases where no evidence was offered to support a necessary claim: “Whether there be any evidence, is a question for the Judge. Whether [there be] sufficient evidence, is for the jury.”44 That leaves only the fifth common-law procedure, the new trial. This is the only procedure that could plausibly be said to restrict the right to jury trial as much as does summary judgment. Only via this procedure could a litigant in 1791 receive a meaningful ruling from a judge based on the sufficiency, rather than the mere existence, of the other side’s evidence. After the trial and jury verdict, the judge could rule in effect that no reasonable jury could have reached this conclusion, and accordingly he would order a new jury trial.45 Of course, the standard of review is the only similarity between this procedure and summary judgment. The timing is different—post-trial rather than pretrial—which arguably suggests that the old procedure infringes the right to jury trial less severely. Far more important, though, is the difference in remedy. Summary judgment causes a litigant to lose her case without ever seeing a jury, whereas the new trial procedure of the common law merely required the litigant to retry her case in front of another jury. Regardless whether this retrying procedure was wasteful or otherwise bad policy, one cannot reasonably contend that such a remedy impinged the right to jury trial as much as does the remedy in summary judgment. In 1791, a plaintiff who suffered an adverse ruling from the new trial procedure would receive two jury trials, whereas today a plaintiff who suffers an adverse ruling at summary judgment does not even receive one. Thus, none of the procedural mechanisms available in 1791 restricted the right to jury trial to the extent that it is restricted today by summary judgment. None allowed the judge to evaluate the conflicting evidence offered by both sides and issue a judgment resolving the case on the basis of his evaluation. Summary judgment gives the judge this power, and it is therefore used frequently to keep cases away from juries. Because we currently employ a procedure that deprives plaintiffs of jury trials in cases in which they would have had such trials in 1791, we are violating the constitutional edict that “[i]n suits at common law, . . . the right of trial by jury shall be preserved.”46 Conclusion Summary judgment might be a wonderful procedure were it not inefficient, unfair, and unconstitutional. It is inefficient because it gives a defendant the incentive to impose the costly and time-consuming burden of discovery and motions practice upon the plaintiff, the court, and itself, rather than to settle early and avoid those costs. It is unfair because it requires a judge to decide the case in a context in which ruling for the defendant speeds along the judge’s docket, whereas ruling for the plaintiff potentially invites a trial that would backlog the docket and bring both criticism and an increased workload upon the judge. Summary judgment thus creates a systemic bias against one of the two categories of litigants (plaintiffs), arguably the most

43

Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 155 (2007).

44

Co. of Carpenters v. Hayward, (1780) 99 Eng. Rep. 241, 242 (K.B.) (emphasis added).

45

Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 157-58 (2007).

46

U.S. CONST. amend. VII.

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS egregious problem that can plague a civil justice system.47 Finally, summary judgment is unconstitutional because it fails to “preserve[ ]” the “right of trial by jury” in civil cases as mandated by the Seventh Amendment. When the Amendment was ratified, no procedure existed that imposed the limits on the right to a jury trial that are now imposed by summary judgment. Powerful interests are aligned in favor of summary judgment. Large corporations, the typical defendants in important civil litigation, benefit from the procedure and would no doubt exert inexorable political pressure to retain it.48 Judges too might support it, though only because they would overlook the fact that without summary judgment, most cases they now adjudicate would settle early rather than go to trial. Perhaps these interests cannot be overcome. But if that is the case, then we should at least acknowledge that summary judgment owes its continued existence primarily to our system’s capitulation to those who undeservedly benefit from it. In a better world, it would not exist.

D. WWII and the Fighting Merchant Marine Admiral Albert J. Herberger, USN (Ret), answering questions about the Merchant Marine of WWII state: 49 During WWII, when were guns and gunners first put on U.S. ships?” “In the Pacific, long before war was declared, some enterprising ship crews built plywood “guns,” hoping their profile would fool the enemy ships. On November 17, 1941 Congress approved arming of merchant ships and set up the Naval Armed Guard. It took many months for guns and crews to get aboard thousands of ships. Many of the initial guns were of World War I vintage. Mariners in the Merchant Marine were trained at U.S. Maritime Service Training Stations, they received on-the-job training while under attack. Mariners assisted the Naval Armed Guard in passing ammunition, catching cannon hot shells after firing wearing large asbestos gloves, and many were assigned anti-aircraft gun stations.” Did the Merchant Marine receive military training and acquire a military capability? “Yes, in early 1940 the Coast Guard began training the Merchant Marine personnel in gunnery and, in addition, the Merchant Marine Academy required extensive military training of their cadets to qualify for graduation. By November 1941 (in an act of Congress) our Government began to arm Merchant Ships and in December of that year, Navy armed guards were assigned to many vessels.”

47

Cf. Daniel W. Shuman & Jean A. Hamilton, JURY SERVICE—IT MAY CHANGE YOUR MIND: PERCEPTIONS OF FAIRNESS OF JURORS AND NONJURORS, 46 SMU L. Rev. 449, 450 (1992) (“Perceptions about the fairness of the judicial system are important because they reflect belief about its legitimacy.”). 48

See Gerald Burk, CORPORATE POWER AND ITS DISCONTENTS, 53 Buff. L. Rev. 1419, 1419 (2006) (“Perhaps most devastating for the rule of law is that artificial persons have learned to reshape legal doctrine to their advantage by litigating rules, rather than discrete rights. In a word, corporate persons have become hegemonic. They shape the rules of the game, professional norms, and legal outcomes.”). 49

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E. WWII MEMOS: U.S. Merchant Marine Are Members of the Armed Forces President Franklin Delano Roosevelt,50 Commander-in-Chief of the Armed Forces, stated in correspondence between Admiral Emory S. Land, Chairman of the Maritime Commission and Head of the War Shipping Administration, and Robert P. Patterson, Acting Secretary of War, that the U.S. Merchant Marine was an Armed Force. When Robert P. Patterson, Patterson, Acting Secretary of War, asked in the March 4, 1943 Memo, “Is it your desire that, for the purpose of awarding decorations, the War Department consider officers and members of the crews of ships of the Merchant Marine as members of the armed forces?” the President answered, “Yes.”

F. The Federal Courts have become the Judicial Praetorian Guard protecting the United States from its own People in the war over the Bill of Rights. By the Fourteenth Amendment, the powers of states in dealing with crime within their borders are not limited, except that no state can deprive particular persons or classes of persons of equal and impartial justice under the law, that law in its regular course of administration through courts of justice is due process, and when secured by the law of the state, the constitutional requirement is satisfied, and that due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice. Leeper v. Texas, 139 U.S. 462, 463 (1891), 11 Sup. Ct. Rep. 577. The following cases were dismissed by arbitrary exercise of government (judicial bias by interjected a political ideology as a replacement for the Rule of Law and equal justice under the law) power under the unconstitutional summary judgment in violation of the Seventh Amendment right to a civil jury trial under the common law: U.S. District Court/DC, No. 02-1434 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 02-1435 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 03-2160 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 04-0422 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 04-2040 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 05-1993 (OBEYED 28 U.S.C. § 1916) ! DC Circuit, No. 02-5334 (VIOLATED 28 U.S.C. § 1916) ! DC Circuit, No. 04-5316 (VIOLATED 28 U.S.C. § 1916) ! DC Circuit, No. 05-5414 (VIOLATED 28 U.S.C. § 1916) ! DC Circuit, No. 05-5429 (VIOLATED 28 U.S.C. § 1916) ! 8th CIRCUIT, CASE NO. 07-2400 (VIOLATED 28 U.S.C. § 1916W) ! U.S. District Court/Little Rock, No. 06-0044. (VIOLATED 28 U.S.C. § 1916) ! U.S. Supreme Court, Nos. 03-145 (VIOLATED 28 U.S.C. § 1916) ! U.S. Supreme Court, Nos. 04-1150 (VIOLATED 28 U.S.C. § 1916) ! U.S. Supreme Court, Nos. 04M56 (VIOLATED 28 U.S.C. § 1916)

50

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G. Justice Harlan’s Dissent on Arbitrary Exercise of Government Power and Oppression in Downes v. Bidwell, 182 U.S. 244 at 376-382 (1901) Mr. Justice Harlan, dissenting: In Martin v. Hunter, 1 Wheat. 304, 324, 326, 331, 4 L. ed. 97, 102, 104, this court speaking by Mr. Justice Story, said that ‘the Constitution of the United States was ordained and established, not by the states in their sovereign capacities but emphatically, as the preamble of the Constitution declares, by ‘the People of the United States.” In McCulloch v. Maryland, 4 Wheat. 316, 403-406, 4 L. ed. 579, 600, 601, Chief Justice Marshall, speaking for this court, said: ‘The government proceeds directly from the people; is ‘ordained and established’ in the name of the people; and is declared to be ordained ‘in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.’ The assent of the states, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. The Constitution, when thus adopted, was of complete obligation, and bound the state sovereignties. . . . The government of the union, then (whatever may be the influence of this fact on the case) is emphatically and truly a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them and for their benefit. This government is acknowledged by all to be one of enumerated powers. . . . It is the government of all; its powers are delegated by all; it represents all, and acts for all.’ Although the states are constituent parts of the United States, the government rests upon the authority of the people of the United States, and not on that of the states. Chief Justice Marshall, delivering the unanimous judgment of this court in Cohen v. Virginia, 6 Wheat. 264, 413, 5 L. ed. 257, 293, said: ‘That the United States form, for many and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. . . . In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests . . . is the government of the Union. It is their government, and in that character they have no other. America has chosen to be, in many respects and to many purposes, a nation; and for all these purposes her government is complete; to all these objects it is competent. The people have declared that in the exercise of all powers given for those objects it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory.’ In reference to the doctrine that the Constitution was established by and for the states as distinct political organizations, Mr. Webster said: ‘The Constitution itself in its very front refutes that. It declares that it is ordained and established by [182 U.S. 244, 378] the People of the United States. So far from saying that it is established by the governments of the several states, it does not even say that it is established by the people of the several states. But it pronounces that it was established by the people of the United States in the aggregate. Doubtless, the people of the several states, taken collectively, constitute the people of the United States. But it is in this their collective capacity, it is as all the people of the United States, that they established the Constitution.’ In view of the adjudications of this court I cannot assent to the proposition, whether it be announced in express words or by implication, that the national government is a government of or by the states in union, and that the prohibitions and limitations of the Constitution are addressed only to the states. That is but another form of saying that, like the government created by the Articles of Confederation, the present government is a mere league of states, held together by PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS compact between themselves; whereas, as this court has often declared, it is a government created by the People of the United States, with enumerated powers, and supreme over states and individuals with respect to certain objects, throughout the entire territory over which its jurisdiction extends. If the national government is in any sense a compact, it is a compact between the People of the United States among themselves as constituting in the aggregate the political community by whom the national government was established. The Constitution speaks, not simply to the states in their organized capacities, but to all peoples, whether of states or territories, who are subject to the authority of the United States. Martin v. Hunter, 1 Wheat. 327, 4 L. ed. 103. ... Although from the foundation of the government this court has held steadily to the view that the government of the United States was one of enumerated powers, and that no one of its branches, nor all of its branches combined, could constitutionally exercise powers not granted, or which were not necessarily implied from those expressly granted (Martin v. Hunter, 1 Wheat. 326, 331, 4 L. ed. 102, 104) . . . This nation is under the control of a written constitution, the supreme law of the land and the only source of the powers which our government, or any branch or officer of it, may exert at any time or at any place. . . .To say otherwise is to concede that Congress may, by action taken outside of the Constitution, engraft upon our republican institutions a colonial system such as exists under monarchical governments. Surely such a result was never contemplated by the fathers of the Constitution. If that instrument had contained a word suggesting the possibility of a result of that character it would never have been adopted by the people of the United States. . .. The idea prevails with some-indeed, it found expression in agruments at the bar-that we have in this country substantially or practically two national governments; one to be maintained under the Constitution, with all its restrictions; the other to be maintained by Congress outside and independently of that instrument, by exercising such powers as other nations of the earth are accustomed to exercise. It is one thing to give such a latitudinarian construction to the Constitution as will bring the exercise of power by Congress, upon a particular occasion or upon a particular subject, within its provisions. It is quite a different thing to say that Congress may, if it so elects, proceed outside of the Constitution. The glory of our American system [182 U.S. 244, 381] of government is that it was created by a written constitution which protects the people against the exercise of arbitrary, unlimited power, and the limits of which instrument may not be passed by the government it created, or by any branch of it, or even by the people who ordained it, except by amendment or change of its provisions. ‘To what purpose,’ Chief Justice Marshall said in Marbury v. Madison, 1 Cranch, 137, 176, 2 L. ed. 60, 73, ‘are powers limited, and to what purpose is that limitation committed to writting, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.’ The wise men who framed the Constitution, and the patriotic people who adopted it, were unwilling to depend for their safety upon what, in the opinion referred to, is described as ‘certain principles of natural justice inherent in Anglo-Saxon character, which need no expression in constitutions or statutes to give them effect or to secure dependencies against legislation manifestly hostile to their real interests.’ They proceeded upon the theory-the wisdom of which experience has vindicated- that the only safe guaranty against governmental oppression was to withhold or restrict the power to oppress. They well remembered that Anglo- Saxons across the ocean had attempted, in defiance of law and justice, to trample upon the rights of Anglo-Saxons on this continent, and had sought, by military force, to establish a government that could at will

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS destroy the privileges that inhere in liberty. They believed that the establishment here of a government that could administer public affairs according to its will, unrestrained by any fundamental law and without regard to the inherent rights of freemen, would be ruinous to the liberties of the people by exposing them to the oppressions of arbitrary power. Hence, the Constitution enumerates the powers which Congress and the other departments may exercise,leaving unimpaired, to the states or the People, the powers not delegated to the national government nor prohibited to the states. That instrument so expressly declares in [182 U.S. 244, 382] the 10th Article of Amendment. It will be an evil day for American liberty if the theory of a government outside of the supreme law of the land finds lodgment in our constitutional jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution.

H. Dismantling of Private Attorney General Endangers Civil Rights By M. Wood Virginia School of Law51 580 Massie Road Charlottesville, Virginia 22903-1738 November 22, 2002 See Pamela S. Karlan, DISARMING THE PRIVATE ATTORNEY GENERAL, Illinois Law Review, Vol. 2003, No.1, 183-210 (2003).52 A series of decisions by the Rehnquist Court undermining the private attorney general action poses a danger to civil rights protections by weakening enforcement for existing federal regulations, visiting law professor Pamela Karlan said at a National Lawyers Guild-sponsored event Nov. 19. Although the Court maintains in its decisions that states still have to follow federal laws such as those barring employment discrimination, they have undercut citizen’s right to sue when laws are broken, casting out remedies the political branches have tried to provide to citizens, she said.

not seeking damages but are acting much as a normal attorney general would by vindicating important Congressional policies. Most civil rights statutes rely heavily on the private attorney general, a term coined in 1943 by Judge Jerome Frank, who was referring to litigation by private plaintiffs “to prevent [a government] official from acting in violation of his statutory powers.” Karlan said the Court verified the importance of the private attorney general in Newman v. Piggie Park Enterprises, one of the earliest cases based on the Civil Rights Act of 1964. Piggie Park recognized the “piggybacking” function of the Act, Karlan said: Congress harnessed private plaintiffs to help obtain equal treatment for the general public.

Karlan said the Supreme Court’s decisions have weakened the public’s ability to enforce civil rights laws.

Traditionally the Court might “retrench” on civil rights protections by more narrowly defining the protection, a decision Congress can react to and override. “When the Court makes it clear they’re retrenching, the political process responds to that,” Karlan said. Today, Karlan alleged, the Court’s actions are more “insidious.”

“That makes the Court the most dangerous branch of government rather than the least,” Karlan said. A centerpiece of the Second Reconstruction, private attorneys general are private plaintiffs who are 51

http://www.law.virginia.edu/html/news/2002_fall/karlan.htm

52

http://home.law.uiuc.edu/lrev/publications/2000s/2003/2003_1/Karlan.pdf

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS “They’ve gotten rid of the primary mechanism for enforcement,” Karlan said, allowing potential wrongdoers to take advantage of the lack of legal reprisals for their actions.

right of action to enforce disparate impact discrimination under Title VI of the 1964 Civil Rights Act, which prohibits discrimination by federally funded entities. In the case, Sandoval’s attorneys argued that requiring the state’s driver license exam to be administered in English only discriminated against him.

Congress isn’t responding to the Court’s decisions partly because legislators don’t understand the consequences of the rulings, and due to its more conservative bent in recent years. The Court’s moves are so subtle, Karlan said, they haven’t created enough pressure on the public to vote in politicians who care about civil rights.

Karlan said the Court interpreted the 1964 statute as if it were written in 2001. “It’s about the current Supreme Court’s vision about how much regulation there should be against states,” she said. She said an earlier Court recognized Congress’s intent to allow private actions as another way to enforce regulations, but the current Court has not genuinely considered Congressional intent in legislation like the 1964 Civil Rights Act.

Karlan said people used to think the 14th Amendment, which says states cannot abridge citizen’s rights, trumped the 11th Amendment, the “sovereign state immunity” amendment, which limits citizens from bringing suits against states in federal courts. Now, Karlan said, the branch that used to see the 14th Amendment as a limitation on the 11th has reversed course: now the 11th is a constraint on the 14th.

In Circuit City v. Adams, Adams had signed an agreement on his Circuit City application that he would settle labor disputes through arbitration, a clause many companies now require employees to consent to. He later claimed he was discriminated against because of his sexual orientation and said he had the right to file a lawsuit. The Court determined that Adams was not a worker engaged in foreign or interstate commerce within the meaning of the FAA— only “transportation workers” were exempt from compulsory arbitration, despite the fact that Congress writes laws assuming a very broad definition of interstate and foreign commerce.

“I call this the Eleventeenth Amendment,” she said. Karlan highlighted several cases that have abridged citizens’ rights under the “Eleventeenth Amendment.” Patricia Garrett was a nurse at the University of Alabama Medical Center who got cancer and asked the state to accommodate her chemotherapy schedule. A week after returning to work, Garrett was demoted, although she said she could perform her duties. In Board of Trustees v. Garrett, the Court ruled that the state had to comply with ADA laws, but also said Garrett herself had no right to sue the state, thus undercutting any enforcement of the laws, Karlan said.

Because the Equal Employment Opportunity Commission (EEOC) only files a few hundred cases each year, the ability to enforce employment laws is limited by court decisions forcing private plaintiffs to arbitrate, she said.

Concerning the Court’s rollback of the 14th Amendment, Karlan said the Court “hasn’t done it in a way that is obvious to people [like Garrett] until they try to being their own lawsuit.”

Karlan said alternate dispute resolutions lack binding agreements, set no precedents, and generally favor defendants because they work frequently with the same arbiters, who need strong customer relationships to survive. Arbitration often involves paying up front, there is no way of getting appointed counsel, and plaintiffs may be liable for other attorney’s fees, all of which keeps some plaintiffs from pursuing cases.

Karlan said the Court’s Garrett decision implied that cases are only important if the government’s attorneys prosecute the case. This violates the idea behind the private attorney general, she added, and in the end results in a decrease in the total amount of enforcement of congressional regulations.

The mediation movement “decreases substantially the enforcement of employment laws,” Karlan said.

In Alexander v. Sandoval, decided in 2001 in another 5-4 decision, the Court took away the private

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS “There’s never any law created, so every plaintiff has to start from square one.”

in stores to keep children from seeing them, and the Court struck down the state law, seemingly stripping state sovereignty as well.

In Circuit City and other employment discrimination cases, “you’re essentially defending to argue the law should be applied that’s already there.”

By weakening enforcement of federal laws, states and other federally funded bodies have little reason to follow federal guidelines, Karlan said. That, combined with the Court’s chipping away of other civil rights, has already left its mark on the legal scene, Karlan said. She noted that the LAPD manual now encourages police interrogators not to worry about the Miranda warnings because an illegally obtained confession can still be used in other ways. The Court has ruled that if the defendant testifies in a case where an illegally obtained confession was suppressed, the prosecutors can introduce the confession in the cross examination.

In 2001 the Court also eliminated attorney’s fees from cases that fall under the “catalyst theory” category—cases that prompt a defendant to change their ways voluntarily— in Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources. Although Chief Justice Rehnquist downplayed the impact of the decision, Karlan argued that such cases are the most important, and eliminating attorney’s fees reduces the impetus for such suits being filed.

She said now some civil rights groups fight to keep cases away from the Supreme Court to avoid bad decisions. Civil rights groups do want the Michigan affirmative action case to be heard, however, because they foresee more conservative appointees in the future and their chances of eking out at least a partial victory are probably better now.

“They’ve taken away the ability to get damages in a large number of cases,” she said. The decision itself shows the Court “has an incredibly negative vision of civil rights plaintiffs generally.” In the decision Justice Scalia called attorney fees “an extraordinary boon,” and failed to recognize it as a mechanism of the law, she said. The decision seems to classify plaintiffs as “vaguely quasi-criminals.”

Karlan said state courts are often more progressive than federal courts today, unlike when she attended law school, and many state constitutions offer more rights than the federal Constitution, such as a right to an education. Some state courts are filling in laws to counteract Supreme Court decisions like that of Circuit City, which was originally tried in California. California law now declares some contracts unconscionable and enacted a statute to create a private right of action. But state-level reforms can’t undercut all the Court’s rulings, she warned.

Karlan said the Court’s enforcement of its own views is uneven, revealing that “federalism is a means and not a goal for the current Supreme Court.” She argued that the Court doesn’t really want to devolve the country back to federalism, but justices use federalism when it’s advantageous to do so. She cited Bush v. Gore’s overruling of the Florida State Supreme Court as a prime example. In another case, a state had a regulation on the books that required cigarettes to be placed at a level of four feet or higher

I. Anarchy and Treason in the Federal Courts: Are Political Ideologies the New Rule of Law Now? (1) Summary Judgment is Unconstitutional: The Judge and Jury are Now One in the Same! Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. 139 (2007). Suja A. Thomas, WHY SUMMARY JUDGMENT IS STILL UNCONSTITUTIONAL, A REPLY TO PROFESSORS BRUNET AND NELSON, IOWA LAW REVIEW, Vol. 93, No. 5, 2008

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS Suja A. Thomas, THE UNCONSTITUTIONALITY OF SUMMARY JUDGMENT: A STATUS REPORT, 93 Iowa Law Review __ (forthcoming 2008) Iowa Law Review Symposium on Procedural Justice Kendall W. Hannon, NOTE, MUCH ADO ABOUT T WOMBLY? A STUDY OF THE IMPACT OF BELL ATLANTIC CORP. V. TWOMBLY ON 12(B)(6) MOTIONS, 83 Notre Dame L. Rev. (forthcoming April 2008). Charles B. Campbell, A “PLAUSIBLE” SHOWING AFTER BELL ATLANTIC CORP. V. TWOMBLY, Nevada Law Journal, Vol. 9, 2008 (forthcoming)

(2) Is the Eleventh Amendment Unconstitutional? Pamela S. Karlan, THE IRONY OF IMMUNITY: THE ELEVENTH AMENDMENT, Irreparable Injury, And Section 1983, 53 Stanford Law Review 1311-1330 (May 2002). Randy E. Barnett, THE PEOPLE OR THE STATE?: CHISHOLM V. GEORGIA AND POPULAR SOVEREIGNTY, 93 Virginia Law Review 1729 (2007) Caitlin E. Borgmann, LEGISLATIVE ARROGANCE AND CONSTITUTIONAL ACCOUNTABILITY, 79 Southern California Law Review 753 (2006)

(3) Will the Lower Federal Courts Rebel Against Heller? Mark Tushnet, TWO ESSAYS ON DISTRICT OF COLUMBIA V. HELLER: (1) Heller and the New Originalism; and (2) Heller and the Perils of Compromise http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1189494 Glenn H. Reynolds & Brannon P. Denning, HELLER’S FUTURE IN THE LOWER COURTS, 102 Nw. U. L. Rev. Colloquy 406 (July 2008). http://www.law.northwestern.edu/lawreview/colloquy/2008/23/LRColl2008n23Reynolds&Denning.pdf

J. The Federal Courts and the U.S. Department of Justice have Obstructed Justice by Unconstitutionally Denying my Seventh Amendment Right to a Civil Jury Trial. The federal courts’ open display of bias and hostility to my Second Amendment cases from 2002 to 2008 stand in violation of the Canons and the Good Behaviour Clause of Section 1, Article III of the Constitution of the United States. An honest criminal investigation for corruption and obstructions of justice would certainly be sending some federal judges to prison for supplanting their political ideologies for the Rule of Law denying my right to equal justice under the law. Dismissal by Summary Judgment on Motion to Dimiss in this civil action in due regard to the U.S. Supreme Court inviting a Second Amendment case from the American people in Heller to expound on the many applications of the right to keep and bear arms under Rule 301 Presumptions in General (Federal Rules of Evidence). Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia exhibited extreme judicial bias, if not bigotry, to the rights of a seaman, a ward of the Admiralty, in her Order dated June 3, 2008 dismissing my previous case (No. 07-1616), even though the dismissal was without [legal] prejudice. I claim the dismissal is motivated by an anti-Second Amendment political ideology.

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS Like the plaintiff in Prunte, Mr. Hamrick as “failed to argue that he employed a reasonable amount of diligence, and it seems clear that he did not.”[FN1] . . . Moreover, “the Court does not believe that [P]laintiff’s pro se status should excuse his lack of diligence, as [P]laintiff is an experienced federal court litigator.” . . . Pl.’s Resp. at 3 (enumerating seventeen other cases initiated by Mr. Hamrick in various federal courts). [FN1] Mr Hamrick’s late request for service by the USMS does not constitute “good cause.” See Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987) (noting that even plaintiffs proceeding in forma pauperis “may not remain silent and do nothing to effectuate service.”). Moreover, because Mr. Hamrick has not been authorized to proceed in forma pauperis, but claims he is not able to financially afford service, service by the USMS in this case would not be appropriate. See Holmes v. United States, No. 06-796, 2008 U.S. Dist. LEXIS 1638, at *6 (W.D. Okla. Jan. 8, 2008) (“Plaintiff is not proceeding in forma pauperis, and accordingly, he must be prepared to proffer payment to the Marshals Service for its attempts at serving [defendant].”). The bolded & underscored passages of Judge Collyer’s Order above are evidence of judicial bias against a seaman exercising his statutory right of fee exemption under the Seaman’s Suit Law, 18 U.S.C. § 1916. Apparently, the Court Clerk failed to notify the judge that on the day I submitted my lawsuit I included a handwritten request that the Court make a copy for the defendant United States and have the U.S. Marshals Service deliver that complaint with the summons in accordance with Rule 4(c)(3). Rule 4(c)(3) states that service: “By a Marshal or Someone Specially Appointed. At the plaintiff’s request, the court may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.” Restated for my situation: At the plaintiff’s request, the court must so order if the plaintiff is authorized to proceed as a seaman under 28 U.S.C. § 1916.” Note with particularity Judge Collyer’s remark, that the [P]laintiff is an experienced federal court litigator, enumerating seventeen other cases initiated by Mr. Hamrick in various federal courts.” What Judge Collyer failed or refused to point out is that all of those seventeen cases were dismissed, some with prejudice, some without prejudice, on Motion to Dismiss converting to unconstitutional Summary Judgment dismissals. Now what the Hell(!) happened with the idea that “Pro se pleadings are to be considered without regard to technicality; pro se litigants pleadings are not to be held to the same high standards of perfection as lawyers.” Picking v. Pennsylvania R. Co., 151 Fed. 2nd 240; Pucket v. Cox 456 2nd 233. If I was truly an experienced federal court litigator I would have beaten the Motion to Dismiss, and I would have had my civil jury trial. No matter how many law review articles I read for new legal strategy every federal judge I have encounted have used inapplicable boilerplate case law and any excuse under the sun to

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS dismiss my cases. History predicates that the federal courts will treat Heller just as they treated Lopez. The federal courts have made a mockery of justice for the unrepresented civil plaintiff.

(1). Case Law

“When we conclude that the integrity of the judicial process has been harmed, however, and the fraud rises to the level of unconscionable plan or scheme which is designed to improperly influence the court in its decisions, we not only can act, we should.” Toscano v. Cir, 441 F.2d 930, 933 (9th Cir. 1971)

“That which keeps one party away from court by conduct preventing a real trial on the issues is extrinsic fraud and forms a sufficient basis for equitable relief from judgment.” Libro v. Walls, 103 Nev 540, 543, 746 P.2d 632, 634 (1987). Because summary judgments are unconstitutional as found by Professor Suja A. Thomas,53 in WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL54 and reaffirmed in WHY SUMMARY JUDGMENT IS STILL UNCONSTITUTIONAL: A REPLY TO PROFESSORS BRUNET AND NELSON,55 my seventeen cases were unconstitutionally dismissed. And because they were unconstitutionally dismissed their summary judgment dismissals in their aggregate effect violated not only my Seventh Amendment right to a civil jury trial but my human right to a civil jury trial under international human rights treaties. By this evidence the judges issuing summary judgment dismissals with and without prejudice under the Conley standard have operated outside the U.S. Constitution and the Bill of Rights and therefore have operated outside their jurisdiction. When judges operate without jurisdiction they do not have absolute immunity from liability for their unconstitutional actions. Now we have the U.S. Supreme Court killing off Conley to relax the pleading standard so the federal courts can consider the plausibility of not only the plaintiff’s claims but also of the defenses of the defendant making it much easier for the federal courts to dismiss cases. This new plausible standard exacerbates the injuries to the Seventh Amendment right to a common law civil jury trial. Under these conditions the doctrine of res judicata does not apply, especially when I add knew claims that have occurred after my earlier cases. “Res Judicata does not apply if new conduct caused a new injury after the first action.” (See Yosemite Community College Dist., 785 F.2d 781).

In Twombly, the Court distinguished Swierkiewicz by stating that “we do not require heightened fact pleading of specifics, but only enough facts to state a claim for relief that is plausible on its face.

53

http://www.law.uiuc.edu/faculty/directory/SujaThomas

54

Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. 139 (2007).

55

Available Online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1117636

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS The Bell Atlantic v. Twombly standard for pleading under Rule 8(a)(2) of the Federal Rules of Civil Procedure prejudicially disfavors the unrepresented civil plaintiff, i.e., Me! Citing Weisman v. National Association of Securities Dealers, Inc., et al. 11th Circuit, No. 04-13575 (September 18, 2007): “[T]he Supreme Court recently abrogated its oft-quoted observation that ‘a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ Bell Atlantic Corp. v. Twombly, 550 U.S. __, __, 127 S. Ct. 1955, 1968 (May 21, 2007) (quoting Conley v. Gibson, 350 U.S. 41, 45-46, 78 S. Ct. 99, 102 (1957))”

(2). Kendall W. Hannon, Note, MUCH ADO ABOUT TWOMBLY? A STUDY OF THE IMPACT OF BELL ATLANTIC CORP. V. TWOMBLY on 12(b)(6) Motions, 83 Notre Dame L. Rev. (forthcoming April 2008)56 In a more immediate sense, the results of this study demonstrate that there is reason to be wary of the Twombly decision right now. Congress since the Civil War has not only articulated broad swaths of civil rights that are protected from intrusion, it has also sought, through instrumentalities like 42 U.S.C. § 1988, to

Without access to courts, these broad civil protections are not worth the paper they are printed on. If the lower courts are, as this study suggests, applying the Twombly language in such a way as to impose a higher burden on civil rights plaintiffs, the practical effect of this reality is to close the courts to a large number of plaintiffs. Ultimately, therefore, this study suggests that this procedural, linguistic alteration is having the same effect, though comparatively under the radar, as a legislative rolling back of civil rights. encourage the enforcement of these rights.

(3). Charles B. Campbell, A “Plausible” Showing After Bell Atlantic Corp. v. Twombly 57 The United States Supreme Court’s decision in Bell Atlantic Corp. v. Twombly58 is creating quite a stir. Suddenly gone is the famous loosey-goosey rule of Conley v. Gibson “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”59 Now a complaint must provide “enough facts to state a claim to relief that is plausible on its face.”60 Only decided last May, Bell Atlantic has been cited in over 3,700 cases.61

56

Available Online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1091246

57

Available Online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1121964

58

127 S. Ct. 1955 (2007).

59

355 U.S. 41, 45–46 (1957), abrogated by Bell Atl. Corp., 127 S. Ct. at 1968–69.

60

127 S. Ct. at 1974.

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS Already being described as a landmark decision,62 Bell Atlantic nonetheless has lawyers and judges scratching their heads over the precise pleading standard to apply in its wake. As the Second Circuit (mildly) put it, “Considerable uncertainty concerning the standard for assessing the adequacy of pleadings has recently been created by the Supreme Court’s decision in Bell

Just what is a plausible “showing that the pleader is entitled to relief” under Rule 8(a)(2)?

Atlantic Corp. v. Twombly.63

I believe an answer lies in the 26-year-old decision of the Former Fifth Circuit in In re Plywood Antitrust Litigation.64 Plywood Antitrust requires, at a minimum, that “a complaint . . . contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.”65 Already used in more than half the circuits,66 this

61

Search of Westlaw’s Keycite service conducted February 25, 2008. This figure includes citations in both opinions for the court and in separate opinions by individual judges. For an empirical analysis of district court cases citing Bell Atlantic in the context of Fed. R. Civ. P. 12(b)(6) motions to dismiss, see Kendall W. Hannon, Note, Much Ado About Twombly? A Study of the Impact of Bell Atlantic Corp. v. Twombly on 12(b)(6) Motions, 83 Notre Dame L. Rev. (forthcoming April 2008). 62

Janet L. McDavid & Eric Stock, BELL ATLANTIC V. TWOMBLY, NAT’L L.J., July 30, 2007, at 12; see also John Sarratt, MR. MICAWBER’S BAD DAY: IS NOTICE PLEADING DEAD?, N.C. Lawyers Weekly, July 2, 2007; Michael C. Dorf, THE SUPREME COURT WREAKS HAVOC IN THE LOWER FEDERAL COURTS—AGAIN, Findlaw’s Writ, Aug. 13, 2007, http://writ.news.findlaw.com/dorf/20070813.html; see also Andrée Sophia Blumstein, A HIGHER STANDARD: ‘TWOMBLY’ REQUIRES MORE FOR NOTICE PLEADING, Tenn. B.J., Aug. 2007, at 12 (“Of all the cases decided this term by the United States Supreme Court, Bell Atlantic Corp. v. Twombly may be the case of the most practical, everyday significance.”) (endnote omitted). 63

Iqbal v. Hasty, 490 F.3d 143, 155 (2d Cir. 2007); see also Allan Ides, BELL ATLANTIC AND THE PRINCIPLE OF SUBSTANTIVE SUFFICIENCY UNDER FEDERAL RULE OF CIVIL PROCEDURE 8(A)(2): TOWARD A STRUCTURED A PPROACH TO FEDERAL PLEADING PRACTICE, 243 F.R.D. 604, 604–05 & nn. 3 & 4 (2007) (noting confusion); Scott Dodson, PLEADING STANDARDS AFTER BELL ATLANTIC V. TWOMBLY, 93 Va. L. Rev. in Brief 121, 126 (2007), http://www.virginialawreview.org/inbrief/2007/07/09/dodson.pdf; Thomas P. Brown & Christine C. Wilson, BELL ATLANTIC CORP. V. TWOMBLY: A TECTONIC SHIFT IN PLEADING STANDARDS (OR JUST A TREMOR)?, Wash. Legal Found. Legal Backgrounder (Aug. 24, 2007), http://www.wlf.org/upload/08-24-07wilson.pdf; A. Benjamin Spencer, PLAUSIBILITY PLEADING, 49 B.C. L. REV. (forthcoming 2008). As the Reporter to the Advisory Committee on Civil Rules put it, “One phrase or another [in Bell Atlantic] can be made to point in almost any direction.” Edward H. Cooper, Memorandum, NOTICE PLEADING: THE AGENDA AFTER TWOMBLY 3 in AGENDA MATERIALS 268, 270, Advisory Committee on Civil Rules Meeting, Washington, D.C., November 8–9, 2007, http://www.uscourts.gov/rules/Agenda%20Books/CV2007-11.pdf. 64

655 F.2d 627, 641 (5th Cir. Unit A Sept. 1981), cert. dismissed sub. nom Weyerhaeuser Co. v. Lyman Lamb Co., 462 U.S. 1125 (1983). 65

Id. at 641.

66

See infra notes 202–207 and accompanying text.

The text: The Plywood Antitrust/Car Carriers standard has been used not only in the Fifth and Seventh Circuits, but in the First,202 Sixth,203 Eleventh,204 and District of Columbia205 Circuits as well. After Bell Atlantic, the Third206 and Eighth207 Circuits have used the standard, too, albeit in unpublished decisions. The footnotes: 202. Fitzgerald v. Codex Corp., 882 F.2d 586, 589 (1st Cir. 1989).

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS standard paraphrases advice found in the venerable WRIGHT & MILLER for nearly 40 years.67 Properly applied, this “all . . . material elements” standard satisfies Bell Atlantic’s “plausibility” requirement in all respects. The Plywood Antitrust pleading standard works well after Bell Atlantic, first, because the Supreme Court referred to the standard, albeit parenthetically, with approval in Bell Atlantic.68 Second, it does much to harmonize the Federal Rules’ goal of dispensing with pleading technicalities while still requiring enough general factual information about a pleader’s claim to make the notice in “notice pleading” meaningful. Finally, and perhaps most importantly, it gives lawyers, litigants, and courts a standard they can actually use when drafting, or assessing the sufficiency of, pleadings.

203. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (quoting Car Carriers and citing Plywood Antitrust). The Sixth Circuit has begun citing Bell Atlantic for its use of the Car Carriers standard. League of United Latin Am. Citizens (LULAC) v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007). 204. Roe v. Aware Woman Ctr. For Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001) (quoting Plywood Antitrust). In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions handed down by the Former Fifth Circuit before the close of business on September 30, 1981. Id. at 1209–10. Thus, Plywood Antitrust is binding precedent in the Eleventh Circuit. 205. Dist. of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1081 n.14 (D.C. Cir. 1984). 206. See Montville Township v. Woodmont Builders, LLC, 244 F. App’x 514, 517 (3d Cir. 2007); Haspel v. State Farm Mut. Auto. Ins. Co., 241 F. App’x 837, 839 (3d Cir. 2007). 207. See Abdullah v. Minnesota, No. 06-4142, 2008 WL 283693, at *1 (8th Cir. Feb. 4, 2008). 67

See infra notes 182–184 and accompanying text.

The text: The precise formulation of the Rule 8 standard utilized in Car Carriers originated in the Former Fifth Circuit’s 1981 decision in In re Plywood Antitrust Litigation.182 There the Fifth Circuit observed: Despite the liberality of modern rules of pleading, a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. . . . “[I]f a pleader cannot allege definitely and in good faith the existence of an essential element of his claim, it is difficult to see why this basic deficiency should not be exposed at the point of minimum expenditure of time and money by the parties and the court.”183 On the former point, the Fifth Circuit cited a district court decision, which in turn quoted a similar statement in the first edition of WRIGHT & MILLER;184 The footnotes: 182. 655 F.2d 627. 183. Id. at 641 (citations omitted) (quoting Daves, 114 F. Supp. at 645). 184. Id. (citing City of Gainsville v. Florida Power & Light Co., 488 F. Supp. 1258, 1263 (S.D. Fla. 1980), in turn quoting 5 WRIGHT & MILLER, supra note 173, § 1216, at 121–23). 68

See 127 S. Ct. at 1969 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984), in turn quoting Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 654 (7th Cir. 1984), in turn quoting Plywood Antitrust, 655 F. 2d at 641.).

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS ... III. The Road Now Taken?69 By sweeping away Conley’s “no set of facts” standard, Bell Atlantic opens the way for the more moderate interpretation of Rule 8(a)(2) suggested by Professors Wright, Miller, Moore, and Hazard and utilized in cases such as Daves. The road not taken in Conley may be the road now taken a half century later. Moreover, Bell Atlantic itself suggests how the new standard can be formulated for future cases. Professor Hazard’s suggestion that Rule 8(a)(2), properly interpreted, requires a factual “narrative in ordinary language . . . setting forth all elements of a claim under applicable substantive law” 70 is similar to the Car Carriers requirement—quoted in Bell Atlantic—of “direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.”71 It also echoes Judge Clark’s formulation of a moderate form of notice pleading for code jurisdictions.72 The precise formulation of the Rule 8 standard utilized in Car Carriers originated in the Former Fifth Circuit’s 1981 decision in In re Plywood Antitrust Litigation.73 There the Fifth Circuit observed: Despite the liberality of modern rules of pleading, a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. . . . “[I]f a pleader cannot allege definitely and in good faith the existence of an essential element of his claim, it is difficult to see why this basic deficiency should not be exposed at the point of minimum expenditure of time and money by the parties and the court.”74 On the former point, the Fifth Circuit cited a district court decision, which in turn quoted a similar statement in the first edition of WRIGHT & MILLER;75 thus, the Plywood Antitrust formulation is really just a paraphrase of WRIGHT & MILLER. On the latter point, the Fifth Circuit was 69

NOTE ON COINCIDENTAL USE OF “The Road Now Taken.” See Randy E. Barnett, THE PEOPLE OR THE STATE?: CHISHOLM V. GEORGIA AND POPULAR SOVEREIGNTY, 93 Virginia L. Rev. 1729 at 1737 (2007) (Another reason for teaching Chisholm is that it represents the “road not taken” with respect to constitutional amendments.) My emphasis on the “road not taken” applies to “what if” Chisholm v. Georgia was the correct interpretation of the U.S. Constitution that a State could be sued by citizen’s of another State and the Second Amendment was incorporated through the Fourteenth Amendment to apply to the States. The Second Amendment right to open carry in intrastate, interstate, and maritime travel would probably be preserved even today! The “road not taken” indeed! 70

Geoffrey C. Hazard, Jr., From Whom No Secrets Are Hid, 76 TEX. L. REV. at 1685 (1998). I omit Professor Hazard’s use of the adjective “detailed” in reference to the factual narrative because it could be understood to suggest a greater level of detail than the Car Carriers line of cases requires.

71

Car Carriers, 745 F.2d at 1106 (quoting Sutliff, 727 F.2d at 654, in turn quoting Plywood Antitrust, 655 F.2d at 641).

72

See Charles E. Clark, Handbook on the Law of Code Pleading § 38, at 240 (2d ed. 1947).

73

655 F.2d 627.

74

Id. at 641 (citations omitted) (quoting Daves, 114 F. Supp. at 645).

75

Id. (citing City of Gainsville v. Florida Power & Light Co., 488 F. Supp. 1258, 1263 (S.D. Fla. 1980), in turn quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 121–23 (1969)

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS quoting Daves v. Hawaiian Dredging Co.,18576 the case quoted at length in the same section of WRIGHT & MILLER; the same excerpt, along with a citation to Daves, also appears in Bell Atlantic.77 These authorities suggest an appropriate interpretation of the Rule 8(a)(2) pleading standard after Bell Atlantic: factual allegations in plain language touching (either directly or by inference) all material elements necessary to recover under substantive law—but freed from the technicalities of common law and code pleading. One of the benefits of the Plywood Antitrust/Car Carriers formulation of the standard is that it directs attention to “allegations” on “the material elements necessary to sustain recovery” without reference to either the “facts” or the “cause of action” that so plagued code pleading. A major reason for rejecting the Ninth Circuit’s plea to add code pleading language to Rule 8(a)(2) was the fear that such language would revive battles over what constituted “facts” and the proper definition of a “cause of action.”78 By avoiding the language of the codes, the Plywood Antitrust/Car Carriers formulation encourages courts to focus on the Rules’ textual standard of “entitle[ment] to relief,” as measured by the elements necessary to recover, without returning to the technicalities of code pleading. Moreover, measuring “entitle[ment] to relief” by “the material elements necessary to sustain recovery” finds support in the history of Rule 8. In upholding a government antitrust complaint in United States v. Employing Plasterers Association,79 the Supreme Court noted that, “where a bona fide complaint is filed that charges every element necessary to recover, summary dismissal of a civil case for failure to set out evidential facts can seldom be justified.”80 Judge Clark later quoted this language from Employing Plasterers in his paper Special Pleading in the “Big Case”?81

76

114 F. Supp. at 645. Although the Former Fifth Circuit attributed its quotation from Daves to the late Chief Justice Burger, the excerpt is from the district court’s opinion. Id. The district court’s opinion does not indicate that it is quoting (or paraphrasing) the defendants’ argument; there is no citation of any kind for this statement. See id. A review of the Daves case file shows that the defendants argued at some length that the plaintiffs had not satisfied Rule 8, but their argument contains no statements from which the excerpt appears to have been taken. See Mem. Supp. Defs.’ Mot. to Dismiss or for Summ. J., supra note 172, at 16–19. 77

Bell Atl., 127 S. Ct. at 1966 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 233–34 (3d ed. 2004), in turn quoting Daves, 114 F. Supp. at 645). 78

See Advisory Comm. on Rules for Civ. Proc., Report of Proposed Amendments to the Rules of Civil Procedure for the United States District Courts at 19 (1955), http://www.uscourts.gov/rules/Reports/CV10-1955.pdf [hereinafter “1955 REPORT”]. The entire 1955 Report is reprinted in 12A Charles Alan Wright et al., Federal Practice and Procedure App. F (3d ed. 2007). The 1955 Report’s proposed note to Rule 8 is reprinted in 2 James Wm. Moore et al., Moore’s Federal Practice § 8App.01[3] (3d ed. 1997). 79

347 U.S. 186 (1954).

80

Id. at 189 (emphasis added).

81

21 F.R.D. at 49.

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS The Supreme Court’s decision in Swierkiewicz v. Sorema S.A. does not reject, as some have suggested,82 requiring a complaint to allege the elements of a claim under substantive law. Swierkiewicz rejected using an evidentiary standard as a pleading standard; it did not reject measuring the sufficiency of a complaint by whether it alleged all of the elements necessary to recover.83 For example, one of the plaintiff’s claims in Swierkiewicz was a Title VII claim for nationalorigin discrimination. 84 There are two elements of a statutory claim for national-origin discrimination: (1) an adverse employment action (e.g., firing, demoting, refusing to hire); and (2) the plaintiff’s national origin was a “motivating factor” in the employer’s decision. 85 Swierkiewicz had plainly alleged both of those elements in his complaint. 86 The Second Circuit’s “heightened pleading” standard required more than the two statutory elements of national-origin discrimination, however. It required allegations of all four elements of a McDonnell Douglas87 prima facie case: “(1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of

82

See 2 James Wm. Moore et al., Moore’s Federal Practice § 8.04[1a] (3d ed. 2007) (“The Supreme Court . . . has rejected the idea that courts should measure a pleading’s adequacy by the elements of a claim.”). The third edition of MOORE’S FEDERAL PRACTICE was published in 1997, after Professor Moore’s death in 1994.

83

See John P. Lenich, Notice Pleading Comes to Nebraska: Part I – Pleading Claims for Relief, Neb. Lawyer, Sept. 2002, at 7 n.12 (“The authors [of Moore’s Federal Practice] are wrong.”).

84

Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 provides: It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin . . . .

42 U.S.C. § 2000e–2(a)(1) (2000). 85

See id. Model jury instructions confirm this: To prove his [her] claim, plaintiff must prove by a preponderance of the evidence: First, that defendant [e.g., failed to hire, promote, or demoted] the plaintiff, and Second, that plaintiff’s [e.g., race, gender, religion] was a motivating factor in defendant’s decision.

5 Leonard B. Sand et al, Modern Federal Jury Instructions ¶ 88.03[1], Instruction 88-42, at 88-133 (2007). 86

Among other things, Swierkiewicz alleged: 20. Mr. Chavel demoted Mr. Swierkiewicz on account of his national origin (Hungarian) and his age (he was 49 at the time). .... 37. Plaintiff’s age and national origin were motivating factors in SOREMA’s decision to terminate his employment.

Am. Compl. ¶¶ 20, 37, reprinted in Jt. App. at 25a, 27a, Swierkiewicz, 534 U.S. 506 (No. 00-1853), 2001 WL 34093952. 87

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS discrimination.”88 The Supreme Court rejected making McDonnell Douglas’s “evidentiary standard” into a “pleading requirement.”89 In particular, the Court observed that it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case. For instance, if a plaintiff is able to produce direct evidence of discrimination, he may prevail without proving all the elements of a prima facie case. . . . It . . . seems incongruous to require a plaintiff, in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove to succeed on the merits if direct evidence of discrimination is discovered.90 What the Court rejected in Swierkiewicz was requiring a complaint to allege all the elements of the McDonnell Douglas evidentiary standard. The Court did not reject requiring a plaintiff to allege all the elements of a statutory claim. Swierkiewicz does not suggest that the plaintiff’s complaint would have been sufficient if it had failed to allege an adverse employment action or plaintiff’s national origin as a motivating factor for that action (the required statutory elements). Thus, Swierkiewicz does not reject requiring a complaint to allege all the elements of a claim under substantive law. In fact, Bell Atlantic itself is an exercise in measuring “entitle[ment] to relief” by “the material elements necessary to sustain recovery.” The first element of an offense under section 1 of the Sherman Act is “that the defendants entered into an agreement or conspiracy.”91 The Court held in Bell Atlantic that plaintiffs had failed to allege sufficient facts to suggest that such an agreement or conspiracy was “plausible.” Accordingly, the plaintiffs had failed to establish that they were “entitled to relief” under Rule 8(a)(2) because they failed to allege sufficiently one of “the material elements necessary to sustain recovery” under section 1 of the Sherman Act. The Plywood Antitrust/Car Carriers interpretation of Rule 8(a)(2) remains a break from the technical horrors that often accompanied code pleading, and continues to permit the Rule to be construed liberally to avoid dismissals for “foot faults” in pleading. True, it represents a somewhat higher standard than the literal terms of Conley’s “no set of facts” language permitted. As Professor Hazard’s article suggests, however, this interpretation is “quite possible” again now that Rule 8 is no longer “turned . . . on its head” by Conley v. Gibson. ... Conclusion In the wake of Bell Atlantic, some have expressed the “hope[] that trial judges, long overworked but fearful of reversal by the circuit court, will now be unshackled, free to dismiss the large number of meritless cases that clog dockets and cost defendants untold losses in time and money.”92241 Bell Atlantic does suggest a greater willingness to dismiss cases at the pleading stage—especially the “big cases” where “big” lawyers have plenty of time and talent to lay out

88

534 U.S. at 510.

89

534 U.S. at 510–11.

90

Id. at 511.

91

See 4 Leonard B. Sand et al, Modern Federal Jury Instructions ¶ 79.04[1], Instruction 79-41, at 79-82, ¶ 79.05[1], Instruction 79-46, at 79-98. 92

William F. Patry, Patry on Copyright § 19:2 (2007)

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS their case adequately. If the Plywood Antitrust/Car Carriers formulation of the Rule 8(a)(2) pleading standard prevails, however, district courts will not be “unshackled,” but will instead be more closely focused on the text of Rule 8(a)(2), particularly the requirement of showing “entitle[ment] to relief,” instead of Conley v. Gibson’s now abrogated “hyperbole.”

(4). Barry G. Sher, Kevin C. Logue and Asa R. Danes BELL ATLANTIC CORP. V. TWOMBLY: THE SUPREME COURT TIGHTENS PLEADING STANDARDS FOR ANTITRUST CONSPIRACY AND BEYOND; StayCurrent: A Client Alert from Paul Hastings, May 2007, Paul, Hastings, Janofsky & Walker LLP, 875 15th Street, N.W., Washington, DC 20005, (18 Offices Worldwide) INTRODUCTION On May 21, 2007, the United States Supreme Court issued an important decision pertaining to the pleading standards in an antitrust action under Section 1 of the Sherman Act, 15 U.S.C. § 1. In Bell Atlantic Corp. v. Twombly, No. 05-1126, the Supreme Court reversed the judgment of the Court of Appeals for the Second Circuit, 425 F.3d 99 (2d Cir. 2005), and held in a 7-2 decision that to satisfy the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, and survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted in a § 1 case, an allegation of parallel conduct and a bare assertion of an agreement will not suffice. 93 The Court required “plausible grounds to infer an agreement” in violation of Section 1, [15 U.S.C. § 1] and determined that stating such “plausible grounds”94 requires “enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.” The decision is likely to have an impact well beyond the antitrust context.95 The Court took head on what has for decades been the primary formulation of the pleading standard on a motion to dismiss in federal and many state courts. That formulation – as every defense lawyer has seen quoted in innumerable oppositions filed by plaintiffs – is that a complaint should not be dismissed for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957).96 The Supreme Court in Twombly stated that this language has been “questioned, criticized, and explained away long enough,” and that it “is best forgotten as an incomplete, negative gloss on an accepted pleading standard.” Referring to the Dickens character, the Court expressed concern that any other approach allows plaintiffs to pursue cases based on nothing more than “Mr. Micawber’s optimism.” The Court was concerned that parties are subjected to costly discovery, which plaintiffs use both as a lever to increase the settlement value of cases and to seek support for claims even where one has not been pleaded. Twombly should become a significant tool for defendants in combating such tactics. Section 1 of the Sherman Act prohibits contracts, combinations or conspiracies in restraint of trade or commerce. Because unilateral action cannot violate § 1, a hotly contested issue in § 1

93

Plaintiff Don Hamrick’s emphasis.

94

Plaintiff Don Hamrick’s emphasis.

95

Plaintiff Don Hamrick’s emphasis.

96

Plaintiff Don Hamrick’s emphasis

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS claims is whether the challenged conduct resulted from concerted action – an agreement or conspiracy. If direct evidence of a conspiracy – such as a recorded conversation in the proverbial smoke-filled room – is not available, plaintiffs are required to plead facts from which a conspiracy properly can be inferred. One way that plaintiffs have attempted in the past to plead concerted action without direct evidence is by alleging parallel conduct, where competitors in an industry have acted in the same or similar fashion. The problem with that approach is that parallel business conduct, where one or more companies adopt the practices of their competitors, does not, standing alone, violate the antitrust laws. Lower courts, such as the district court in Twombly, have therefore held that dismissal is appropriate when a plaintiff fails to plead so-called “plus factors”97 – facts tending to exclude the possibility that the conduct was the result of lawful activities – when a § 1 claim is based on parallel conduct. In Twombly, however, the Second Circuit held that pleading plus factors is not required under the circumstances of the case. The proper pleading standard in antitrust actions has taken on critical importance in recent years, as the cost and burden of discovery in such cases can be enormous and can cause significant disruption to the ongoing operations of a business or an industry. Without fully developed factual allegations, this burden may be imposed on defendants who are swept into litigation alleging a widespread – even industry-wide – conspiracy without facts which, if true, would show each defendant’s alleged role in the conspiracy and provide notice of the charges that must be defended. BACKGROUND The Twombly case arose in the context of the TELECOMMUNICATIONS ACT OF 1996, which was intended to promote competition in local telephone service markets. The TELECOMMUNICATIONS ACT required INCUMBENT LOCAL EXCHANGE CARRIERS (ILECs) to open local telephone and Internet service, which had been previously provided by government-sanctioned regional monopolies, to competition from COMPETITIVE LOCAL EXCHANGE CARRIERS (CLECs). ILECs, in exchange, were allowed to compete for long-distance service and local telephone service customers in territories traditionally serviced by other ILECs. Plaintiffs, representatives of a putative class of subscribers of local telephone or high-speed Internet service, alleged that the ILECs violated § 1 by conspiring to thwart efforts of CLECs to enter their respective local telephone markets and by agreeing not to compete with other ILECs to provide local telephone service in each other’s territories. Plaintiffs alleged no facts showing that defendants reached any agreement, but instead alleged parallel conduct by the ILECs. Specifically, plaintiffs relied primarily on allegations that ILECs were not attempting to expand into each other’s markets, even though the areas they serviced often were not contiguous and were in some instances entirely surrounded by their competitors’ territories. While this conduct could be entirely consistent with unilateral behavior, plaintiffs alleged that defendants’ decisions not to move into adjacent local phone service markets constituted anomalous parallel conduct that would be unlikely in the absence of a conspiracy not to compete, and that the conspiracy was motivated by each ILEC’s desire to maintain a monopoly in its territory. Plaintiffs also pointed to 97

Scott Dodson, PLEADING STANDARDS AFTER BELL ATLANTIC CORP. V. TWOMBLY, 93 Virginia Law Review in Brief 121-128, 124 (July 9, 2007) uses the term “notice-plus.” Posting of Scott Dodson to Civil Procedure Prof Blog, http://lawprofessors.typepad.com/civpro/2007/05/prof_scott_dods.html (May 21, 2007). Also available Online at: http://www.virginialawreview.org/inbrief/2007/07/09/dodson.pdf

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS a statement made by the CEO of one of the ILECs that competing in the territory of another ILEC “might be a good way to turn a quick dollar but that doesn’t make it right.” THE DISTRICT COURT DECISION The district court dismissed the complaint, concluding that pleading parallel conduct, without pleading plus factors, is insufficient for purposes of Rule 12(b)(6). The district court noted that parallel conduct is often legitimate and therefore does not violate the antitrust laws. The court also recognized that, under existing precedent, to defeat summary judgment a plaintiff would be required to demonstrate that the parallel conduct resulted from an agreement, and that a plaintiff can satisfy that standard by establishing at least one plus factor tending to exclude independent self-interest as an explanation for defendants’ parallel behavior. The court reasoned that because parallel conduct alone does not violate § 1, plus factors must be pleaded in order to state a substantive element of the claim upon which relief could be granted. Further, the court reasoned that pleading plus factors is necessary to give defendants notice of plaintiffs’ theory of the conspiracy and enable defendants to defend the claim. The court concluded that plaintiffs failed to state a viable § 1 claim because all businesses are expected, acting on their own, to resist rivals’ efforts to take their customers, and there is nothing suspicious about a company’s decision not to enter a new line of business. The court held that no conspiracy could be inferred from that conduct, and that plaintiffs failed to allege any other facts to support an inference of conspiracy. THE SECOND CIRCUIT DECISION The Second Circuit vacated the judgment of the district court, concluding that the district court applied the wrong pleading standard when it required the plaintiffs to plead plus factors and concluded that the plaintiffs’ allegations were sufficient to give the defendants fair notice of the claim and its grounds. The circuit court stated that antitrust claims are not subject to the heightened pleading requirements of Rule 9(b), and that Rule 8 requires only that the complaint contain “a short and plain statement” of the claim showing that the pleader is entitled to relief to provide defendants with fair notice of the basis for the complaint and enable them to answer and prepare for trial. Although the Second Circuit acknowledged that parallel conduct could just as easily be legitimate unilateral business conduct, it nevertheless held that the inquiry regarding plus factors is limited to the summary judgment stage because plus factors are evidence of conspiracy, and evidence need not be pleaded under Rule 8. The circuit court held that, at the pleading stage, the factual predicate pleaded for a § 1 claim need only include conspiracy among the realm of “plausible possibilities,” and that pleading facts that indicate parallel conduct can state a plausible conspiracy. The Second Circuit concluded that dismissal under Rule 12(b)(6) required a court to find that there is no set of facts that would permit a plaintiff to demonstrate that the particular parallel conduct asserted was the product of collusion rather than coincidence. THE SUPREME COURT DECISION In reversing the Second Circuit, the Supreme Court began its analysis by acknowledging that a showing of parallel business behavior is admissible circumstantial evidence from which an agreement may be inferred. However, it reiterated that such parallel conduct alone is insufficient to establish an agreement or itself constitute a Sherman Act offense, concluding

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS that it is consistent with conspiracy but just as much in line with rational and competitive business strategy unilaterally prompted by common perceptions of the market. The Court acknowledged that, under Rule 8, a complaint does not need detailed factual allegations, but concluded that a plaintiff’s obligation to provide the “grounds” of his or her “entitle[ment] to relief” requires factual allegations that must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true. In the antitrust context, the Court noted that a parallel conduct allegation gets a § 1 complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility. “Hence, when allegations of parallel conduct are set out in order to make a § 1 claim, they must be placed in a context that raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent action. The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) . . . .” This “plausibility requirement” serves the practical purpose of preventing a plaintiff with a largely groundless claim from using costly discovery to increase the settlement value of the case. The Court specifically addressed the expense of discovery in antitrust actions, noting that the potential expense was obvious in the Twombly case where the plaintiffs represented a putative class of at least 90 percent of subscribers of local telephone or high-speed Internet service against the largest telecommunications companies in the country for unspecified instances of antitrust violations that occurred over a seven-year period. The Court was not persuaded by the argument that judicial supervision could limit abuse of the discovery process. The Court agreed with the district court that plaintiffs’ claim of conspiracy in Twombly was based on parallel conduct, and not an independent allegation of an agreement among ILECs. The Court also agreed that nothing in the complaint suggests that the ILECs’ resistance to CLECs was anything more than “the natural, unilateral reaction of each ILEC intent on keeping its regional dominance.” Also, the Court ruled that the ILECs’ reluctance to enter each other’s markets was not suggestive of conspiracy because there was an alternative explanation, specifically that the ILECs would concentrate on the market segment that they formerly dominated as monopolies, expecting their competitors to do the same thing. The Court in Twombly was not persuaded by plaintiffs’ argument that its decision would be contrary to Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), which held that a “complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” In Swierkiewicz, the Supreme Court reversed on the grounds that the circuit court had impermissibly applied what amounted to a heightened pleading standard by requiring that the plaintiff allege “specific facts” beyond those necessary to state his claim and the grounds showing entitlement to relief. In Twombly, the Court distinguished Swierkiewicz by stating that “we do not require heightened fact pleading of specifics, but only enough facts to state a claim for relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.” The Twombly decision criticized the Second Circuit’s reliance on a frequently quoted passage set forth in the seminal case of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which states that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS him to relief.” The Court concluded that the Second Circuit may have read this passage in isolation in formulating its understanding of the proper pleading standard for a § 1 claim. As Justice Stevens, who was joined in part by Justice Ginsburg, pointed out in dissent, the Conley passage has been relied on for 50 years by federal courts and has served as the model for the law in many states. The Court, however, rejected an interpretation of Conley’s “no set of facts” language that would permit a complaint to survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery. The Court listed criticisms of the “no set of facts” language as a literal pleading standard, and characterized the passage as an “incomplete, negative gloss” of an accepted standard: “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.” The Court stated that the Conley “no set of facts” language “has earned its retirement.” IMPACT OF THE DECISION By requiring that an antitrust conspiracy complaint must allege facts sufficient to provide “plausible grounds to infer an agreement,” as opposed to mere parallel competitor or industry action, the Twombly decision may provide companies swept up in widespread antitrust litigation with a strong basis for seeking dismissal of conclusory pleadings. In addition, because there is no statutory stay of discovery in antitrust litigation while a motion to dismiss is being considered, this decision may provide grounds for more courts to stay discovery pending a decision on a motion to dismiss, so that the burden and substantial expense of antitrust discovery may be avoided, or at least postponed, until it is determined that a complaint is viable. Moreover, because the Supreme Court “retired” the longstanding Conley “no set of facts” standard used by federal courts and many state courts in assessing motions to dismiss generally, the Twombly decision may give rise to closer scrutiny of complaints and support efforts to stay or avoid costly discovery in a variety of cases outside of the antitrust context. Now a complaint must provide “enough facts to state a claim to relief that is plausible on its face.”98

K. Judicial Bias and Hostility in the Lower Federal Courts toward Second Amendment Cases is Common Knowledge (1). Glenn H. Reynolds, Brannon P. Denning, HELLER’S FUTURE IN THE LOWER COURTS, 102 Northwestern Law Review Colloquy 406 (2008):99 The Supreme Court has released its long-awaited opinion in District of Columbia v. Heller,100 and the buzz has been considerable. Though much has been made of the majority’s historic ruling and of the narrowness of that majority, many commentators have missed an important point. What Heller is most notable for is its complete and unanimous rejection of the “collective rights” interpretation that for nearly seventy years held sway with pundits, academics, and—most significantly—lower courts.

98

127 S. Ct. at 1974.

99

http://www.law.northwestern.edu/lawreview/colloquy/2008/23/LRColl2008n23Reynolds&Denning.pdf

100

No. 07-290, slip op. (U.S. June 26, 2008) (link).

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS The repudiation of this extensive body of case law101 suggests that the real test of Heller will occur once the lower courts, traditionally hostile to an individual rights interpretation of the Second Amendment, face the in-evitable follow-up cases challenging other restrictive gun laws. Experience with other seemingly groundbreaking Supreme Court decisions in recent years, such as United States v. Lopez, suggests that lower-court foot-dragging may limit Heller’s reach, though this time around there will likely be considerably more scrutiny and more vigorous litigation efforts. If the lower courts present a challenge to the implementation of Heller, they also provide litigants with an opportunity. Given the fact that the Heller majority declined to give a detailed accounting of the proper standard of review to be used in subsequent Second Amendment cases, litigants have a rare opportunity to write on a tabula much more rasa than is ordinarily the case in constitutional litigation, making use of recent scholarship on the crafting of constitutional decision rules that implement constitutional provisions.

(2). Glenn H. Reynolds, Brannon P. Denning, HELLER’S FUTURE IN THE LOWER COURTS, 102 Northwestern Law Review Colloquy 406 (2008) SECTION II. THE LOWER COURTS AND THE HELLER DECISION: It is impossible to review the Second Amendment jurisprudence from the federal courts of appeals (excepting only Parker v. District of Columbia,102 the lower-court version of Heller, and United States v. Emerson) without noting two things: a significant hostility toward individual rights arguments, and a surprisingly deep investment in their own case law, despite its rather tenuous anchor in the Supreme Court’s decisions. This raises the question: what will they do when presented with gun-rights cases postHeller? There is some reason to expect that the answer will be “not much.” The last constitutional revolution led by the Supreme Court—via its Lopez and Morrison103 decisions limiting Congressional power—essentially petered out in the face of lower-court resistance. 104 In light of Gonzales v. Raich,105 which upheld the application of federal drug control laws to local, noncommercial, medical marijuana, lower court reluctance to read Lopez and Morrison looked prescient. Will that happen again with the Second Amendment?

101

See Brannon P. Denning, CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES v. MILLER AND THE SECOND AMENDMENT, 26 Cumb. L. Rev. 961 (1996) (criticizing the case law citing United States v. Miller as authority for rejecting an individual rights interpretation). 102

478 F.3d 370, 395 (D.C. Cir. 2007) (concluding ―that the Second Amendment protects an indi-vidual right to keep and bear arms ), aff’d sub nom. District of Columbia v. Heller, No. 07-290 (June 29, 2008). 103

United States v. Morrison, 529 U.S. 598 (2000) (invalidating the civil-suit provision of the Violence Against Women Act as beyond Congress’s commerce power) 104

See Glenn H. Reynolds & Brannon P. Denning, LOWER COURT READINGS OF LOPEZ, OR WHAT IF THE SUPREME COURT HELD A CONSTITUTIONAL REVOLUTION AND NOBODY CAME? 2000 Wis. L. Rev. 369 (2000) [he-reinafter Reynolds & Denning, Constitutional Revolution]; Brannon P. Denning & Glenn H. Reynolds, RULINGS AND RESISTANCE: THE NEW COMMERCE CLAUSE JURISPRUDENCE ENCOUNTERS THE LOWER COURTS, 55 ARK. L. REV. 1253 (2003) [hereinafter Denning & Reynolds, Rulings and Resistance] (discussing lower court cases following Morrison). 105

545 U.S. 1 (2005) (upholding application of the Controlled Substances Act to noncommercial marijuana grown and possessed for local, medicinal use under state law)

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS In Lopez, the Supreme Court struck down the Gun Free School Zones Act as being in excess of Congress’s enumerated power to regulate commerce among the several states. In the years following Lopez, hundreds of cases flooded the lower courts, most brought by defendants convicted of violating various federal criminal statutes, claiming that those laws also exceeded Congress’s commerce power.106 In the five years after Lopez, however, only one law—the civil suit provision eventually invalidated in Morrison—was struck down by a federal appellate court.107 Even after Morrison, when the Court not only reaffirmed Lopez but seemed to add, “and we mean it,” courts were still reluctant to rigorously analyze federal statutes using the LopezMorrison framework. Though before Raich signaled a retreat, lower courts were beginning to uphold as-applied challenges to particular federal statutes.108 Will Heller suffer Lopez’s fate, serving more as casebook fodder than as actual authority? On the surface, there are some analogies between the Commerce Clause and the Second Amendment that suggest that, like Lopez, Heller itself may end up as so much sound and fury, signifying nothing—or at least nothing much. First, there are the institutional prejudices of the courts of appeals, favoring the status quo and possessing a desk-clearing mentality. Like the bureaucrats they increasingly resemble, the members of the appellate judiciary do not like to rock the boat. In addition, the courts of appeals have a history of more-or-less open hostility to claims of a private right to arms. The vast majority of cases to date suggest that, to the extent they can, they will try to rule against such a right. Second, as was true following Lopez, there are few federal firearms laws that are vulnerable under Heller. Indeed, Justice Scalia’s opinion took some pains to make clear what the Court was not calling into question: [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.109 Indeed the very enumeration of “presumptively lawful regulatory measures” seemed calculated to reduce expectations among, for example, felons convicted of possessing firearms in violation of federal law that Heller represented a “Get Out of Jail Free” card. Third, the Heller majority’s refusal to be pinned down on a specific standard of review might also leave an opening for lower courts to confine Heller to its facts.110 20 For example, a court might read Heller as standing for the proposition that anything less than an absolute ban could pass 106

Several of these challenges are discussed in Glenn H. Reynolds & Brannon P. Denning, LOWER COURT READINGS OF LOPEZ, OR WHAT IF THE SUPREME COURT HELD A CONSTITUTIONAL REVOLUTION AND NOBODY CAME? 2000 Wis. L. Rev. 369 (2000). 107

Brzonkala v. Va. Polytechnic Inst. and State Univ., 169 F.3d 820 (4th Cir. 1999) (en banc), aff’d sub. nom. United States v. Morrison, 529 U.S. 598 (2000). 108

Brannon P. Denning & Glenn H. Reynolds, RULINGS AND RESISTANCE: THE NEW COMMERCE CLAUSE JURISPRUDENCE ENCOUNTERS THE LOWER COURTS, 55 ARK. L. REV. 1253 (2003) (describing these as-applied challenges). 109

District of Columbia v. Heller, No. 07-290, slip op. at 54–55 (U.S. June 26, 2008). A foot-note added, for good measure, that the Court’s list of “these presumptively lawful regulatory measures . . . does not purport to be exhaustive.” Id. at 55 n.26. 110

See id. at 63 (“[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field . . . .”).

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS muster. Even if a reviewing court adopts the kind of intermediate standard of review urged by the Solicitor General,111 it might simply apply the standard in a way that defers to governmental judgments about the necessity of regulation. A more explicit articulation of the standard to be employed could have discouraged lower court evasion of Heller, or at least made such evasion somewhat easier to detect, if the Court was inclined to monitor lower courts for compliance, something that it did not do following Lopez.112 Fourth, because the majority preemptively (perhaps ―peremptorily is a better word) signaled its view that a number of federal gun control laws would not be called into question by Heller,113 the most promising targets—local gun bans similar to the District’s and restrictive state gun laws—lie beyond the immediate scope of Heller because the Second Amendment remains outside those provisions of the Bill of Rights that have been incorporated through the Fourteenth Amendment and applied to states.114 Thus, the true test of Heller’s reach will turn on whether the Court will be willing to entertain one of the proliferating number of cases challenging these laws.115 If the Court does not, then, like Lopez, Heller may end up having all the robustness of a “but see” cite.116 On the other hand, there are several important differences that ought not be overlooked between the situation following Lopez and that likely to follow Heller. Perhaps most important is the fact that there was virtually no coordinated follow-up litigation to Lopez on the part of the public interest bar. Most of the litigation was opportunistic: Lopez was cited in just about every appeal on behalf of those convicted of federal criminal offenses, who, as a group, rarely present the most sympathetic face. By contrast, several lawsuits were filed challenging gun control laws in other communities within hours of the Heller opinion’s publication.117 Given the stakes, interest groups challenging local laws have greater incentive than individual criminal defense attorneys to ensure that only the best cases with the cleanest facts are brought.

111

Brief of the United States as Amicus Curiae, District of Columbia v. Heller, No. 07-290, at 8–9 (2008) (recommending remand for analysis using intermediate scrutiny as the standard of review), available at http://www.scotusblog.com/wp/wpcontent/uploads/2008/01/us-heller-brief-1-11-08.pdf 112

Whatever one thinks of the substance of his test or how well that test implements the right guar-anteed by the Second Amendment, Justice Breyer at least described in some detail the approach he would take. See Heller, No. 07-290, slip op. at 8–12 (Breyer, J., dissenting) (describing the ―interest-balancing approach he would employ in Second Amendment cases). 113

District of Columbia v. Heller, No. 07-290, slip op. at 54–55 (U.S. June 26, 2008)

114

United States v. Cruikshank, 92 U.S. 542 (1875) (refusing to apply the First and Second Amendments to the states). For Heller’s discussion of Cruikshank and its continued significance in light of the Court’s incorporation of most provisions of the Bill of Rights to the states, see Heller, No. 07-290, slip op. at 47–49 & nn.22–23. 115

The majority did drop a pointed note that the case first declining to apply the Second Amendment to the states “also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.” Id. at 48 n.23. 116

Cf. John Copeland Nagle, THE COMMERCE CLAUSE MEETS THE DELHI SANDS FLOWER-LOVING FLY, 97 MICH. L. REV. 174, 176 (1998) (“Whether Lopez marks a dramatic shift in Commerce Clause jurispru-dence or is instead destined to be a ‘but see’ citation remains to be seen.”).

117

See, e.g., Maura Dolan, The 2nd Amendment: Reaction to the Court Ruling, L.A. TIMES, June 27, 2008, at A19, available at http://www.latimes.com/news/nationworld/nation/la-na-legal27-2008jun27,0,3173451.story

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS Moreover, there was relatively little public interest in Lopez or the Commerce Clause. The Second Amendment, on the other hand, is among the most significant provisions of the Bill of Rights from the standpoint of public engagement.118 The public interest groups sponsoring follow-up litigation will have every incentive to publicize lower court attempts to evade or blunt the effect of Heller and can try to choose cert-worthy cases from among those to be litigated. Given popular interest, the media and elected officials will have an incentive to monitor lower court implementation of Heller. It is also possible that the lower courts’ hostility to an individual right to arms was largely a product of the zeitgeist of an earlier era, carried forward as much by habit and stare decisis as by any institutional interest. With the individual right theory of the Second Amendment now not only endorsed by the Supreme Court, but also, thanks to extensive scholarship, academically respectable (and, of course, popular with a very large majority of citizens) it may be that today’s federal judiciary will be less hostile to the right than past courts. A related point is that lower court judges may perceive the stakes differently in Heller than they did in Lopez. Following Lopez to its logical conclusions suggested rethinking the foundations of the modern New Deal state, if not mandating the unwinding of that state. At the very least, it presented an opportunity for hundreds of criminal defendants to escape the consequences of their convictions. Neither was an appealing option for even the most ardent advocate for limiting federal power, so judges strenuously resisted following Lopez wherever it might lead—especially if it meant revisiting the constitutional legitimacy of statutes like the 1964 Civil Rights Act. By contrast, even reading Heller for all that it is worth, it is clear that significant regulations of private firearms ownership—including various licensing regimes—are not necessarily presumptively unconstitutional. Finally, despite the unanimity of the Court in its conclusion that the Second Amendment protected some individual right, the alternative limiting implementations of that right were expressed as dissents, as opposed to partial concurrences. 119 29 Thus, there are not any narrow concurring opinions whose authors essentially control the outcome of future cases; the alternative approaches of the dissenters are, well, dissents. Imagine a situation, though, in which Justice Breyer’s “interest-balancing” approach was a concurring opinion; lower courts seeking to limit Heller might choose Justice Breyer’s standard of review in the absence of anything definite in the majority opinion.120 In Lopez, for example, though the Court listed a number of factors bearing on whether a given local activity “substantially affected” interstate commerce or not, the Court did not make clear whether all factors had to be satisfied, or just some, or whether some factors were indispensible to a find ing that regulated activity had a substantial effect on interstate commerce. In response, 118

See Jeffrey M. Jones, Public Believes Americans Have Right to Own Guns, GALLUP, Mar. 27, 2008, http://www.gallup.com/poll/105721/Public-Believes-Americans-Right-Own-Guns.aspx (“A solid majority of the U.S. public, 73%, believes the Second Amendment to the Constitution guarantees the rights of Americans to own guns.”)

119

See, e.g., Heller, No. 07-290, slip op. at 1 (Stevens, J., dissenting); id., slip op. at 1 (Breyer, J., dissenting). Justice Breyer seems to be feeling his way toward some sort of “undue burden” standard, though it is more of an “undue-burden-lite” standard, as it is difficult to imagine him upholding a ban on abortion in the District of Columbia on the basis that one could reach a friendlier jurisdiction for the price of a subway ticket. See id. at 30 (Breyer, J., dissenting) (“The adjacent states do permit the use of handguns for target practice, and those States are only a brief subway ride away.”). 120

Likewise, Justice Stevens’s primary dissent is, if anything, less clear than Justice Scalia’s majori-ty opinion on the appropriate standard of review. By contrast, Justice Breyer’s dissent is quite detailed.

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS many lower court judges interpreted the opinion narrowly. The presence of any factor distinguishing the statute under review from the Gun Free School Zones Act was deemed sufficient to turn back the constitutional challenge.31 Which set of forces will prevail? It’s impossible to say for certain, so we’ll equivocate and say, “it depends.” Bureaucrats tend to take the path of least resistance, and least controversy. Though some foot-dragging is likely, it’s equally likely that the kind of resistance demonstrated in response to Lopez won’t manifest itself in response to Heller, as such resistance would likely produce far more controversy.

(3). Glenn H. Reynolds & Brannon P. Denning, HELLER’S FUTURE IN THE LOWER COURTS, 102 Nw. U. L. Rev. Colloquy 406 (July 2008) CONCLUSION: Though the civics-book formulation provides that the Supreme Court establishes clear principles which lower courts should conscientiously apply, reality is considerably more complex and frequently less satisfying. Unfortunately, as many lawyers can attest, the Supreme Court often formulates principles that are not clear, and sometimes it fails to establish principles at all. Lower courts, meanwhile, are not always conscientious in following the Supreme Court’s lead, whether for reasons of bureaucratic rigidity or because they have their own agendas. Given the Supreme Court’s light caseload, and the enormous number of cases in the lower courts, the path taken by the federal judiciary can diverge considerably from that established by the Supreme Court.121 Will Heller be such a case? As we have noted before, this depends—upon the behavior of litigants, upon the predilections of lower court judges, and upon the degree and nature of scrutiny that the process receives. For us, at least, it offers an opportunity to continue our study of how Supreme Court precedent influences lower courts in an entirely new context, for which we are properly grateful.

L. Rule 9(d) Pleading Official Document: Heller Rule 9(d) Pleading Official Document or Act, Federal Rules of Civil Procedure: District of Columbia v. Heller, U.S. Supreme Court, No. 07-290 (July 26, 2008) (The Second Amendment Protects An Individual Right To Possess A Firearm Unconnected With Service In A Militia, And To Use That Arm For Traditionally Lawful Purposes, Such As Self-Defense Within The Home.) Plaintiff’s case pleads the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense outside the home in intrastate, interstate, and maritime travel.

M. The Unrepresented Civil Plaintiff, being a Seaman, is a Ward of the Admiralty and Not an Attorney is Acting in the Capacity of a Private Attorney General under the Civil RICO Act and in the Capacity of a Human Rights Defender in Accordance with the U.N. DECLARATION ON HUMAN RIGHTS DEFENDERS (see Exhibit 12) Invoking 121

See Glenn Harlan Reynolds, Looking Ahead: October Term 2007, 2007 CATO SUP. CT. REV. 335, 350–52 (describing the Supreme Court’s reduced influence on federal courts of appeals).

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the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN through the Treaty Clause and through 28 U.S.C. § 1334 FEDERAL QUESTIONS. I have a human rights complaint against the United States pending at the Inter-American Commission on Human Rights, Petition No. 1142-06. “Pleadings in this case are being filed by Plaintiff In Propria Persona, wherein pleadings are to be considered without regard to technicalities. Propria, pleadings are not to be held to the same high standards of perfection as practicing lawyers.” See Haines v. Kerner 92 Sct 594, also See Power 914 F2d 1459 (11th Cir1990), also See Hulsey v. Ownes 63 F3d 354 (5th Cir 1995). also See In Re: HALL v. Bellmon 935 F.2d 1106 (10th Cir. 1991).” Pro Se pleadings are to be considered without technicality; pro se litigants pleadings are not to be held to the same high standards of perfection as lawyers. Picking v. Penna. Rwy. Co. 151 F.2d 240, (C.A.3, 1945); Jenkins v. McKeithen, 395 US 411, 421 (1969); Haines v. Kerner, 404 U.S. 519 (1972) 92 S.Ct. 594; Puckett v. Cox, 456 F.2d 233, (6th Cir. 1972).

N. Fed.R.Ev. Rule 406 Habit/Routine Practice of Treason Against the Constitution: We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 04-1211 (August 31, 2005) Has Lead the U.S. Department of State to commit Treason By Giving Away 8 Islands of Alaska to Russia Without the Advice or Consent of the U.S. Senate, the Governor of Alaska, the people of Alaska, or event the people of the United States. (1). Citing State Department Watch: Voice for the American Public’s Interest:122

122

●

Billions of barrels of oil and gas potential are in the hundreds of thousands of square miles of American seabeds that the U.S. State Department is giving to the Russians.

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President Bush has declared all offshore areas open for oil and gas exploration.

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The State Department has given itself a special exception for the Russians over U.S. seabeds in Arctic Ocean and Bering Sea.

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This State Department favor to the Russians is in the form of a secretlynegotiated maritime boundary agreement. The public, State of Alaska, and Congress were kept in the dark.

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The maritime boundary agreement puts eight American Alaskan islands and their vast 200-mile seabeds on the Russian side.

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This is a special type of State Department foreign aid to authoritarian regimes. Instead of cash, the State Department is giving away land and massive seabeds.

www.statedepartmentwatch.org

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The State Department giveaway policy started with Secretary of State Henry Kissinger in 1977 under his “détente” campaign. All Secretaries of State since him have kept the policy.123

Henry Kissinger, as Secretary of State for President Gerald Ford, ordered the de facto giveaway of sovereignty over 8 American Alaskan islands to the Soviet Union, along with the 200-mile fishery conservation zones around them. He made the order secretly upon his own declaration in January 1977 without consultation with Congress, the State of Alaska, or the American public in general. He ordered that a maritime boundary for the fishery conservation zones (later to be applied to exclusive economic zones) between Alaska and Siberia would follow a line in the Bering Sea and Arctic Ocean which was described in the treaty by which the United States obtained part of modern-day Alaska from Russia in 1867. Kissinger’s line ignored vast developments and additions to Alaska after 1867, including the American discovery and/or inclusion in the United States of Wrangell, Herald, Bennett, Henrietta, and Jeannette Islands in the Arctic Ocean in 1881. It placed these islands, plus Copper Island, Sea Lion Rock and Sea Otter Rock in the Bering Sea (which were ceded to the United States in the 1867 treaty), on the Soviet/Russian side of the maritime boundary. Thus effective sovereignty over them plus the tens of thousands of square miles of fishery/exclusive economic zones were surrendered. Kissinger asked for nothing in return for the United States. The diplomatic message traffic is presented below. January 21, 1977: Kissinger instructed his Undersecretary of State for Political Affairs Philip C. Habib to wire to the U. S. Embassy in Moscow the declaration that the United States, for maritime boundary purposes, would “respect the line set forth in the convention [treaty] signed at Washington March 30, 1867. The Government of the United States of course anticipates that the Government of the Union of Soviet Socialist Republics will follow a similar practice....” January 25, 1977: The U. S. Embassy reported back that “...Khabarov [of the Soviet Treaty and Legal Division] went over the note carefully and looked up Soviet text of the 1867 convention on [sic] maritime boundaries between Alaska and Siberia. But he did not offer substantive comment. He did ask, as a personal aside, whether it was not customary to negotiate or at least discuss such matters before giving notice about enforcement provisions. He added that he was not aware that the question had been discussed in connection with the bilateral fishing agreement signed in November.” February 24, 1977: The U. S. Embassy reported the position of the Soviet Government: “The Government of the USSR has taken into account the intention of the US side, in setting forth its fisheries jurisdiction, to respect the line established by the convention signed April [sic] 18(30), 1867 in Washington, D.C. The Government of the USSR in carrying out its measures ensuing from the decree of the presidium of the Supreme Soviet of December 10, 1976, Temporary Measures for the Protection of Living Resources and Regulation of Fisheries in Areas Adjacent to the USSR Coast, intends to adhere to the same line of the Convention of April 18, 1867, in the Arctic Ocean, Chukchi, and the Bering Seas.” This policy has continued without any change under Presidents Jimmy Carter, Ronald Reagan, 123

www.statedepartmentwatch.org/KissingerGiveaway.htm

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS George H. W. Bush, William Clinton, and George W. Bush. All negotiations have been conducted in strict secrecy without the knowledge and/or participation of Congress, the State of Alaska, and the American public. No known quid pro quo for the United States has been identified.

(2). The diplomatic message traffic of January 21, 1977

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(3). The diplomatic message traffic of January 25, 1977

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(4). The diplomatic message traffic of February 24, 1977

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See also http://www.statedepartmentwatch.org/AlaskaGovSenAG.htm http://www.statedepartmentwatch.org/AlaskaAGConfirm.htm http://www.alamo-girl.com/0302.htm http://www.statedepartmentwatch.org/HidingFromCongress.htm http://www.statedepartmentwatch.org/AlaskaGiveaway.htm See generally as relevant evidence http://www.statedepartmentwatch.org

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PART 2. THE PRELIMINARIES

Part 2. The Preliminaries A. Statutory Waiver of Sovereign Immunity (1). 46 CFR § 1.01–30 Judicial review. (a) Nothing in this chapter shall be construed to prohibit any party from seeking judicial review of any Commandant’s decision or action taken pursuant to the regulations in this part or part 5 of this chapter with respect to suspension and revocation proceedings arising under 46 U.S.C. chapter 77.

(2). 46 CFR § 1.03–15 General. (a) Any person directly affected by a decision or action taken under this chapter or under chapter III of this title, by or on behalf of the Coast Guard, except for matters covered by subpart J of part 5 of this chapter dealing with suspension-and-revocation hearings, shall follow the procedures contained in this section when requesting that the decision or action be reviewed, set aside, or revised.

B. Seaman’s Suit Under 28 U.S.C. § 1916 “In all courts of the United States, seamen may institute and prosecute suits and appeals in their own names and for their own benefit for wages or salvage or the enforcement of laws enacted for their health or safety without prepaying fees or costs or furnishing security therefor.” Plaintiff’s case is undeniably about safety for the U.S. Merchant Seaman in the maritime environment and in open society. The legislative history of the Seamen’s Suit Law does not subject the fee exemption to conditions of indigency or the filing of in forma pauperis. To imposes such conditions is an unconstitutional act of prior restraint of a statutory right. I cannot be sustained that Congress giveth a statutory right and the Courts taketh it away by fudicial fiat. That fiat invokes the Doctrine of Unconstitutional Conditions. Notes on the Seaman Suit Law June 12, 1917, ch. 27, Sec. 1, 40 Stat. 157 (H.R. 11; Pub.L.No. 21: An Act Making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirtieth, nineteen hundred and eighteen, and for other purposes.) — Provided further, That courts of the United States shall be open to seamen, without furnishing bonds or prepayment of or making deposits to secure fees or costs, for the purpose of entering and prosecuting suit or suits in their own name and for the own benefit for wages or salvage and to enforce laws made for their health and safety. July 1, 1918, ch. 113, Sec. 1, 40 Stat. 683 (H.R. 12441; Pub.L.No. 181: An Act Making appropriations for sundry civil expenses of the Government for the fiscal year ending June thirteenth, nineteen hundred and nineteen, and for other purposes.) — Provided, That courts of the United States, including appellate courts, hereafter shall be open to seamen, without furnishing bonds or prepayment of or making deposit to secure fees or costs, for the purpose of entering and prosecuting suit or suits in their own name and for their own benefit for wages or salvage and to enforce laws made for their health and safety. June 25, 1948, ch. 646, 62 Stat. 955 (H.R. 3214; Pub.L.No. 773: An Act: To revise, codify, and enact into law title 28 of the United States Code entitled “Judicial Code and Judiciary”) — 28 U.S. 1916: In all courts of the United Stats, seamen may institute and prosecute suits and appeals in their own names and for their own benefit for wages or salvage or the enforcement of laws enacted for their health or safety without prepaying fees or costs or furnishing security therefor.

C. Seamen are Wards of the Admiralty The federal courts and the Bush Administration by all appearances are abandoning the Common Defence obligation of the U.S. Constitution as well as abandoning the duty to protect seamen against wrongful acts of shipping companies, seafaring unions, and even against wrongful acts of the U.S. Government.

53 PRELIMINARIES PART 2. THE

PART 2. THE PRELIMINARIES Boyd v. United States, 116 U.S. 616, 635 (1886): “It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon. Their motto should be obsta principiis.” 124 Chandris, Inc. v. Latsis, No. 94-325, ___ U.S. ___ (1995): In Warner v. Goltra, 293 U.S. 155 (1934), we stated that “a seaman is a mariner of any degree, one who lives his life upon the sea.” Id., at 157. Similarly, in Norton v. Warner Co., 321 U.S. 565, 572 (1944), we suggested that “ ‘every one is entitled to the privilege of a seaman who, like seamen, at all times contributes to the labors about the operation and welfare of the ship when she is upon a voyage’ “ (quoting The Buena Ventura, 243 F. 797, 799 (SDNY 1916)). Isbrandtsen Co. v. Johnson, 343 U.S. 779, 782-784 (1952): Whenever congressional legislation in aid of seamen has been considered here since 1872, this Court has emphasized that such legislation is largely remedial and calls for liberal interpretation in favor of the seamen. The history and scope of the legislation is reviewed in Aguilar v. Standard Oil Co., 318 U.S. 724, 727 -735 (1943), and notes. “Our historic national policy, both legislative and judicial, points the other way [from burdening seamen]. Congress has generally sought to safeguard seamen’s rights.” Garrett v. Moore-McCormack Co., 317 U.S. 239, 246 (1942). “[T]he maritime law by inveterate tradition has made the ordinary seaman a member of a favored class. He is a ‘ward of the admiralty,’ often ignorant and helpless, and so in need of protection against himself as well as others. . . . Discrimination may thus be rational in respect of remedies for wages.” Warner v. Goltra, 293 U.S. 155, 162 (1934); Cortes v. Baltimore Insular Line, 287 U.S. 367, 375, 377 (1932); Wilder v. Inter-Island Navigation Co., 211 U.S. 239, 246-248 (1908); Patterson v. Bark Eudora, 190 U.S. 169 (1903); Brady v. Daly, 175 U.S. 148, 155-157 (1899). “The ancient characterization of seamen as `wards of admiralty’ is even more accurate now than it was formerly.” Robertson v. Baldwin, 165 U.S. 275, 287 (1897); 5 Harden v. Gordon, 11 Fed. Cas. No. 6,047, 2 Mason (Cir. Ct. Rep.) 541, 556. Statutes which invade the common law or the general maritime law are to be read with a presumption favoring the retention of longestablished and familiar principles, except when a statutory purpose to the contrary is evident. No rule of construction precludes giving a natural meaning to legislation like this that obviously is of a remedial, beneficial and amendatory character. It should be interpreted so as to effect its purpose. Marine legislation, at least since the Shipping Commissioners Act of June 7, 1872, 17 Stat. 262, should be construed to make effective its design to change the general maritime law so as to improve the lot of seamen. “The rule that statutes in derogation of the common law are to be strictly construed does not require such an adherence to the letter as would defeat an obvious legislative purpose or lessen the scope plainly intended to be given to the measure.” Jamison v. Encarnacion, 281 U.S. 635, 640 (1900); Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437 (1907), 440. The direction of the current of maritime legislation long has been evident on its face. “In this country these notions were reflected early, and have since been expanded, in legislation designed to secure the comfort and health of seamen aboard ship, hospitalization at home and care abroad. . . . The legislation . . . gives no ground for making inferences adverse to the seaman or restrictive of his rights. . . . Rather it furnishes the strongest basis for regarding them broadly, when an issue concerning their scope arises, and particularly when it relates to the general character of relief the legislation was intended to secure.” Aguilar v. Standard Oil Co., 318 U.S. 724, 728-729 (1943).

124

The Latin phrase, obsta principiis, translates to “oppose beginnings” or “oppose first attempts”.

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PART 2. THE PRELIMINARIES Nicholas Schreiber v. K-Sea Transportation Corp. New York, Supreme Court, Appellate Division, April 25, 2006; 5410N Index 104992/04 107571/04: Petitioner, as a ward of the admiralty, is entitled to heightened protection from the courts. There is a long-standing policy to safeguard the rights of seamen, whose contracts are traditionally viewed with solicitude: They are emphatically the wards of the admiralty; and though not technically incapable of entering into a valid contract, they are treated in the same manner, as courts of equity are accustomed to treat young heirs, dealing with their expectancies, wards with their guardians, and cestuis que trust with their trustees. . . . If there is any undue inequality in the terms, any disproportion in the bargain, any sacrifice of rights on one side, which are not compensated by extraordinary benefits on the other, the judicial interpretation of the transaction, is that the bargain is unjust and unreasonable, that advantage has been taken of the situation of the weaker party, and that pro tanto the bargain ought to be set aside as inequitable. (Garrett v. Moore-McCormack Co., 317 U.S. at 246, 1942 AMC at 1650, quoting Harden v. Gordon, 2000 AMC 893, 902, 11 Fed Cas 480, 485 [1823])

D. Estoppel and Seamen’s Rights Estoppel is a legal principle that prevents a person from asserting or denying something in court that contradicts what has already been established as the truth. Collateral Estoppel is a legal doctrine that prevents the relitigation of facts or issues that were previously resolved in court. Equitable Estoppel (or, estoppel in pais) is a type of estoppel that bars a person from adopting a position in court that contradicts his or her past statements or actions when that contradictory stance would be unfair to another person who relied on the original position. Estoppel by Silence is a type of estoppel that prevents a person from asserting something when she had both the duty and the opportunity to speak up earlier, and her silence put another person at a disadvantage. Estoppel that arises when a party is under a duty to speak but fails to do so. — also termed estoppel by standing by; estoppel by inaction. Promissory Estoppel is a legal doctrine used in American law as well as other legal systems, although other legal systems may call it by a different name. Promissory estoppel allows a party to recover on a promise even though that promise was made without consideration. Essentially it prevents, or estops, a person from arguing that his or her promise should not be upheld. It also requires that reliance on the promise was reasonable, and that the person trying to enforce the promise actually relied on the promise to his or her detriment. The precise legal requirements for promissory estoppel may vary between jurisdictions. Black’sLaw Dictionary defines promissory estoppel as: “The principle that a promise made without consideration may nonetheless be enforced to prevent injustice if the promisor should have reasnably expected the promissee to rely on the promise and if the promisee did actually rely on the promise to his or her detriment.” “The doctrine of promissory estoppel is equitable in origin and nature and arose to provide a remedy through the enforcement of a gratuitous promise. Promissory is distinct from equitable estoppel in that the representation at issue is promissory rather than a representation of fact. ‘Promissory estoppel and estoppel by conduct are two entirely distinct theories. The latter does not require a promise.’” Ann Taylor Schwing, CALIFORNIA AFFIRMATIVE DEFENSE § 34:16, at 35 (2d ed. 1996)(quoting Division of Labor Law Enforcement v. Transpacific Transp. Co., 88 Cal.App. 3d 823, 829 (Cal.Ct.App. 1979))

55 PRELIMINARIES PART 2. THE

PART 2. THE PRELIMINARIES The United States Constitution is a promissory estoppel barring the States and the Federal Government from exceeding the limits contractually imposed on the States and the Federal Government so as not to infringe upon the freedoms, rights, and duties of the People. “Making constitutional rights inalienable because citizens may undervalue the worth of those rights to themselves would be classic paternalism overruling individuals’ choices for their own good. Individuals’ choices may diverge from their “best” interests for many reasons: for example, because they under-assess risk or under-value their long-term interests. Choices to waive constitutional rights are no exceptions; invalidating such choices, even if perfectly voluntary, compels citizens to hang onto their rights for their own good.” Kathleen M. Sullivan’s, Unconstitutional Conditions, 10 Harv.L.Rev. 1413 at 1480 (May 1989). Black’s Law Dictionary defines EQUITABLE ESTOPPEL: 1. A defensive doctrine preventing one party [United States] from taking unfair advantage of another [Pro Se Plaintiff] when, through false language or conduct, the person to be estopped [Counsel for Defense & the United States] has induced another person [District Court judge & the U.S. Congress] to act in a certain way, with the result that the other person [Pro Se Plaintiff & the American People] has been injured in some way [Case dismissed with prejudice & the American People left defenseless against the common criminal and now clandestine terrorists operating in the United States through gun control laws]. ! This doctrine is founded on principles of fraud. The five essential elements for this type of estoppel are: (1) that there was a false representation or concealment of material facts, (2) that the representation must have been known to be false by the party making it, or the party must have been negligent in not knowing its falsity, (3) that it was believed to be true by the person to whom it was made, (4) that the party making the representation must have intended that it be acted on, or the person acting on it must have been justified in assuming this intent, and, (5) that the party asserting estoppel acted on the representation in a way that will result in substantial prejudice unless the claim of estoppel succeeds. — Also termed estoppel by conduct; estoppel in pais.

(1). Huseman v. Icicle Seafoods, Inc., et al, In Rem, ; Ninth Circuit No. 0435655 (December 27, 2006) p. 19912-19913: Circuit Judge McKeown: II. EQUITABLE ESTOPPEL [4] Equitable estoppel, sometimes called fraudulent concealment, “focuses primarily on the actions taken by the defendant in preventing a plaintiff from filing suit. . . . [including] the plaintiff’s actual and reasonable reliance on the defendant’s conduct or representations.” Santa Maria, 202 F.3d at 1176. For example, “conduct or representations by the defendant-employer which tend to lull the plaintiff into a false sense of security, can estop the defendant from raising the statute of limitations, on the general equitable principle that no man may take advantage of his own wrong.” Atkins v. Union Pac. R.R., 685 F.2d 1146, 1149 (9th Cir. 1982) (internal quotation marks and alterations omitted).

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PART 2. THE PRELIMINARIES p. 19918-19919: III. WARDS OF THE COURT DOCTRINE ... [9] The “wards of the court” doctrine was created to account for the “special circumstances attending [the seaman’s] calling,” because the “seaman, while on his vessel, is subject to the rigorous discipline of the sea and has little opportunity to appeal to the protection from abuse of power which the law makes readily available to the landsman.” Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 430-31 (1939). “The physical conditions under which the seaman labors are extremely hazardous.” Cal. Home Brands, Inc. v. Ferreira, 871 F.2d 830, 837 (9th Cir. 1989). [10] Invocation of the “wards of the court” doctrine is to be linked to the specific policy reasons for its creation. For example, in Socony, the Court declined to apply the common law rule of assumption of risk, and instead used the rule of comparative negligence, because it recognized that seamen are often in the unusual position of having to make quick decisions under hazardous circumstances using whatever equipment they are given. See 305 U.S. at 431-32. ----------------------p. 19926 Circuit Judge Reinhardt, dissenting: I. SPECIAL PROTECTIONS DUE TO SEAMEN Equitable Estoppel in General The Supreme Court has declared that courts should “avoid, within reasonable limits, the application of rules of the common law which would affect [seamen] harshly because of the special circumstances surrounding their calling.” Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 431 (1939). Any “ambiguities or doubts are resolved in favor of the seaman.”125 Vaughan v. Atkinson, 369 U.S. 527, 532 (1962). In no area do seamen get more protection than in the context of recovery for injuries. Thorman, 421 F.3d at 1097. p. 19930 The ward of the court doctrine exists, in part, because seamen are too “poor, friendless, and improvident” to assert their rights. Vaughan, 369 U.S. at 531. It also exists “because they are by the peculiarity of their lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labor.” Chandris v. Latsis, 515 U.S. 347, 354-55 (1995). p. 19931 Perhaps the majority’s inexplicable hostility to the legal protections due injured seamen derives in part from a mistaken belief that seamen are no longer the “ignorant and helpless” men of old. Johnson v. Offshore Tankers Svc. Inc., 789 F.2d 1417, 1419 (9th Cir. 1986). However, the Supreme Court reaffirmed the ward of the court doctrine only a decade ago and the Ninth Circuit did so even more recently. Chandris v. Latsis, 515 U.S. 347, 354 (1995); Orsini, 247 F.3d at 959.

125

Plaintiff Hamrick’s emphasis.

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PART 2. THE PRELIMINARIES

(2). Luttrell v. United States, et al., Ninth Circuit. 644 F.2d 1274 (Dec. 4, 1980) Seamen as wards of admiralty are wards of the court, not the Executive Branch of the government. Furthermore, any such relationship that might be claimed to exist with the executive would be extinguished once the seamen brought suit against the United States. (See, Norris, THE LAW OF SEAMEN. Volume I, Chapter 24, page 593 et seq., Sections 501, 503, and 512). (b) 28 U.S.C. §§ 2201 and 2202 create additional remedies in the form of declaratory judgment relief for federal litigants, but do not in and of themselves confer subject-matter jurisdiction on the courts. Wells v. United States, 280 F.2d 275 (9th Cir. 1960). (c) 42 U.S.C. §§ 1983 and 1985 when coupled with 28 U.S.C. § 1343, confer jurisdiction for actions claiming the deprivation of civil rights under the color of state law or by conspiracy. (d) 18 U.S.C. §§ 201, 202, 205, 208, 1001 and 1008 define crimes under federal law and do not confer civil subject-matter jurisdiction. Perhaps, under Rule 60(b) of the Federal Rules of Civil Procedure, the district court might have obtained jurisdiction over appellant’s claim for relief because of newly discovered evidence or the claim (if the complaint can be so read) that the prior judgment was obtained through extrinsic or intrinsic fraud. Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, . . .” United States v. Throckmorton, 98 U.S. 61, 65-66, 25 L.Ed. 93 (1878). The concern of the court in Throckmorton and its progeny was that because of this type of fraud, the injured party is prevented from fairly presenting his claim or defenses or from introducing relevant or material evidence. Id, at 66; see also 7 MOORE’S FEDERAL PRACTICE, Second Edition, § 60.37 (1979).

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PART 2. THE PRELIMINARIES

E. Resurrecting Neglected Federal Laws For Second Amendment Purposes (1). 10 U.S.C. § 311. Militia: composition and classes (2). 10 U.S.C. § 312. Militia duty: exemptions (3). 10 U.S.C. § 332. Use of militia and armed forces to enforce Federal authority (4). 10 U.S.C. § 333. Interference with State and Federal law (5). 10 U.S.C. § 334. Proclamation to disperse (6). 10 U.S.C. § 351. Arming of American Vessels: During war or threat to national security (7). 10 U.S.C. § 7851. Composition of the Naval Militia (8). 10 U.S.C. § 7854. Availability of material for Naval Militia (9). 16 U.S.C. § 412. National Military Parks; Camps for military instruction; regulations for militia (10). 18 USC § 245(b)(1)(B). Federally Protect Activities (11). 23 U.S.C. § 401. Highway Safety: Authority of the Secretary (12). 23 U.S.C. § 402. Highway Safety: Highway Safety Programs (13). 23 U.S.C. § 407. Highway Safety: Innovative Project Grants (14). 32 U.S.C. § 109. National Guard; Maintenance of other troops (15). 33 U.S.C. § 383. Resistance of Pirates by Merchant Vessels (16). 42 USC § 2000a. Prohibition Against Discrimination or Segregation in Places of Public accommodation (17). 42 USC § 2000a-1. Prohibition Against Discrimination or Segregation Required by any Law, Statute, Ordinance, Regulation, Rule or Order of a State or State Agency (18). 42 USC § 2000a-2. Prohibition Against Deprivation of, Interference With, and Punishment for Exercising Rights and Privileges Secured by Section 2000a or 2000a-1 of this title (19). 42 USC § 2000a-5. Civil actions by the Attorney General (20). 42 USC § 2000bb. Congressional Findings and Declaration of Purposes (21). 42 USC § 2000bb-1. Free Exercise of Religion Protected

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PART 2. THE PRELIMINARIES

F. Basis for Jurisdiction (1). Under 28 U.S.C. § 1331, Federal Questions The U.S. District Court for the District of Columbia has original jurisdiction in this civil action arising under the United States Constitution, laws, or treaties of the United States.

(2). Under 42 U.S.C. § 1985 Conspiracy to Interfere With Civil Rights (2) Obstructing Justice. “If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully; . . . or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, . . . for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws.”

(3). Under 42 U.S.C. § 1985 Conspiracy to Interfere With Civil Rights (3) Depriving Persons of Rights or Privileges. If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

(4). Under 42 U.S.C. § 1981 Equal Rights Under the Law (a). Statement of Equal Rights. All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(5). Under 42 U.S.C § 1982. Property Rights of Citizens All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.

(6). Under 42 U.S.C. § 1983 Civil Action for Deprivation of Rights Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity,126 injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.

126

Judges are not immune from liability for administrative actions that violate federal law. The collection of filing fees falls under the administrative capacity, not the judicial capacity of the judicial officer (i.e., judges and court clerks). Therefore injunctive relief is warranted in the Plaintiff’s case herein.

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PART 2. THE PRELIMINARIES

(7). Under 42 U.S.C. § 2000h–2. Intervention by Attorney General; Denial of Equal Protection on Account of . . . National Origin Whenever an action has been commenced in any court of the United States seeking relief from the denial of equal protection of the laws under the fourteenth amendment to the Constitution on account of race, color, religion, sex or national origin, the Attorney General for or in the name of the United States may intervene in such action upon timely application if the Attorney General certifies that the case is of general public importance. In such action the United States shall be entitled to the same relief as if it had instituted the action.

(8). Under 42 U.S.C. § 1986. Action for Neglect to Prevent Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985 of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence could have prevented; and such damages may be recovered in an action on the case; and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued.

(9). Under 18 U.S.C. § 1988. Proceedings in Vindication of Civil Rights (a) Applicability of Statutory and Common Law. The jurisdiction in civil and criminal matters conferred on the district courts by the provisions of titles 13, [The Judiciary, today’s Title 28 of the U.S. Code], 127 24, [Civil Rights, today’s Title 42, Chapter 21 of the U.S. Code],128 and 70 [Crimes, today’s Title 18 of the U.S. Code] 129 of the Revised Statutes for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a criminal nature, in the infliction of punishment on the party found guilty.

(10). Under 28 U.S.C. § 1343(a), Civil Rights and Elective Franchises The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person: (1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of Title 42;

127

REVISED STATUTES OF THE UNITED STATES 1873-1874, 2nd Edition, First Session of the 43rd Congress. U.S. Government Printing Office, Washington, DC.

128

Id.

129

Id.

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PART 2. THE PRELIMINARIES (2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in section 1985 of Title 42 which he had knowledge were about to occur and power to prevent; (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote.

(11). Under 18 U.S.C. § 1964 Civil Remedies [for Racketeering] (a) The district courts of the United States shall have jurisdiction to prevent and restrain violations of 18 U.S.C. § 1962 by issuing appropriate orders, including, but not limited to: 1. ordering any person to divest himself of any interest, direct or indirect, in any enterprise; 2. imposing reasonable restrictions on the future activities or investments of any person, including, but not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise engaged in, the activities of which affect interstate or foreign commerce; or ordering dissolution or reorganization of any enterprise, making due provision for the rights of innocent persons under 18 U.S.C. § 1964(a).

G. Exceptions to Jurisdiction (1). As to 28 U.S.C. § 2680(a) it is my claim that the U.S. Coast Guard did not exercise due care in the execution of the Final Agency Action denying my application for Second Amendment rights as a seaman requesting the National Open Carry Handgun endorsement on the Merchant Mariner’s Document in due regard to mandatory small arms training in accordance with OPNAVINST 3591.1C: SMALL ARMS TRAINING AND QUALIFICATION, dated May 13, 2002; ENCLOSURE (3) QUALIFICATION CRITERIA FOR SECURITY PERSONNEL (AFLOAT) dated May 13, 1992,130 because the Coast Guard has a ministerial duty to process, review, and approve and not a discretionary duty to deny my application for the Second Amendment application for the endorsement to the Merchant Mariner’s Document as mandated by the Coast Guard’s Oath of Office to support and defende the Constitution of the United States. The Bill of Rights which includes the Second Amendment in included in the “support and defend the Constitution” clause by inference under constitutional law. 28 U.S.C. § 2680 The provisions of Title 28, Part VI, Chapter 171 – Tort Claims Procedure and section 1346 (b) of Title 28 shall not apply to— (a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

130

Current edition is OPNAVINST 3591.1E: SMALL ARMS TRAINING AND QUALIFICATION, dated February 20, 2007; ENCLOSURE (1) RANGE REGULATIONS; ENCLOSURE (2) SMALL ARMS DRY FIRE TRAINING PROCEDURE AND GUIDELINES; ENCLOSURE (3) QUALIFICATIONS FOR PISTOLS – M9 Beretta Pistol and the M11 9mm Compact Pistol (Selection for U.S. civilian Able Seamen are limited to the M9 9mm Beretta Pistol; ENCLOSURE (4) QUALIFICATIONS FOR RIFLE - M14, M16 (series) rifles, M4A1, M727, and Mk-18 Carbines, Rifle selection for U.S. civilian Able Seamen limited to the M14.; ENCLOSURE (5) QUALIFICATION CRITERIA FOR SHOTGUNS - 12-gauge 00 buckshot and slugs; ENCLOSURE (6) QUALIFICATION CRITERIA FOR LIGHT, MEDIUM AND HEAVY MACHINE GUN PERFORMANCE E VALUATION - M60 and MK43 (variants) 7.62MM medium machine guns, M240 (variants) 7.62MM medium machine guns, and MK46 Mod 0 (M249 Squad Automatic Weapon (SAW)) 5.56MM light machine guns (not available to civilian Able Seamen).

62 PART 2. THE PRELIMINARIES

PART 2. THE PRELIMINARIES (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346 (b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, “investigative or law enforcement officer” means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law. (k) Any claim arising in a foreign country. It is my claim that the U.S. Coast Guard DID NOT exercise due care in regard to 28 U.S.C. § 2680(a) because the Coast Guard DID NOT have discretion, in other words, the Coast Guard did not have the discretionary duty to deny my Second Amendment application for the National Open Carry Handgun endorsement on the Merchant Mariner’s Document. That duty was ministerial based upon their Oath of Office to support and defence the Constitution of the United States and that includes the Second Amendment as part of the Constitution through the Bill of Rights. In like manner to the fruit of the poison tree under the Fourth Amendment it is also my claim that since the U.S. Coast Guard cannot seek safe harbor under 28 U.S.C. § 2680(a) neither can they present a defense under 28 U.S.C. § 2680(h) and (k) Exception because their investigation of me through the NCIS, pulling me off a U.S. Government vessel of the Preposition Fleet anchored off the coast of Lithuania (the seizure), and placing me in the Hotel Klaipėda for 12 days (false imprisonment) because the U.S. Coast Guard misinterpreted a

publishable article on the Second Amendment (abuse of process and malicious prosecution) because the offending incidents was initiated by the U.S. Coast Guard in Washington, DC and the violation of the “Fifth Amendment” taking and Fourth Amendment “seizure” occurred aboard a U.S. Government vessel, sovereign territory of the United States under maritime law. Judge Ellen Segal Huvelle of the U.S. District Court for DC ignored these facts in my first two companion cases, Nos. 02-1434 and 021435 fraudulently and criminally misconstruing the facts has occurring in a foreign country as an excuse to dismiss my cases. This dismissal with prejudice is prima facie evidence of criminal misconduct on the part of Judge Huvelle. The federal courts open hostility to unrepresented civil plaintiffs and to Second Amendment cases advocating individual rights are well documented in academic law review articles. Violating 28 U.S.C. § 2680(a) negates all other Exceptions!

H. Venue – United States as Defendant Because the United States is the Defendant in this Tort Claims Case the U.S. District Courts in Batesville, Arkansas (via Little Rock, Arkansas) and the District of Columbia both have original jurisdiction under 28 U.S.C. § 1402(b) and 28 U.S.C § 1346(b)(1). Both District Courts have proven themselves to be prejudiced and hostile to my Seventh Amendment right to a civil jury trial. However, to set a stronger precedence I select the U.S. District Court for the District of Columbia for Venue.

I. Representations to the Court In accordance with Rule 11(b) Plaintiff hereby certifies that by presenting to the U.S. District Court for the District of Columbia this civil action that it is Plaintiff’s affirmation it is the best of his knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

63 PRELIMINARIES PART 2. THE

PART 2. THE PRELIMINARIES (1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; (2) the claims, defenses, and other legal contentions herein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law; (3) the allegations and other factual contentions have evidentiary support (i.e., the related case as noted above) or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

J. Standing to Sue as a Private Right of Action under the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN through the Treaty Clause and 28 U.S.C. § 1331 Federal Questions See also Paul B. Stephan, PRIVATE REMEDIES FOR TREATY VIOLATIONS AFTER SANCHEZ-LLAMAS 11 Lewis & Clark L. Rev. 65 (2007). I have standing to sue the United States as a Private Right of Action under the Treaty Clause because (1) the U.S. Coast Guard, the Federal Agencies of the Executive Branch and the Legislative Branch from 2002 to the present have unconstitutionally denied my First Amendment right to petition the government for redress of grievances, and (2) the Federal Courts have unconstitutionally denied my Seventh Amendment right to a civil jury trial through the unconstitutional use of Summary Judgments on Motions to Dismiss even though I am: (a). a victim of human rights abuses by the U.S. Government in a human rights complaint now pending at the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, Petition No. 1142-06. Because I am defending my “human rights” I have become a HUMAN RIGHTS DEFENDER by United Nations standards (DECLARATION ON THE RIGHT AND RESPONSIBILITY OF INDIVIDUALS, GROUPS AND ORGANS OF SOCIETY TO PROMOTE AND PROTECT UNIVERSALLY RECOGNIZED HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, United Nations General Assembly Resolution A/RES/53/144 dated March 8, 1999), by enforcing the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN. (b). an unrepresented civil plaintiff with a civil RICO Act case against the U.S. Government acting in the capacity of a PRIVATE ATTORNEY GENERAL prosecuting extortion under color of official right, 18 U.S.C. § 1951(a) and (b)(2), (Hobbs Act); (c). a victim of obstruction of justice by the federal courts and federal law enforcement agencies. (d). a victim of extortion under color of law, 18 U.S.C. § 872; (e). a victim of constitutional rights violations by the U.S. Government.

K. Standing to Sue for Cause and Not for the Status of the Plaintiff for Violations of My Own Civil Rights, Constitutional Rights, and Human Rights But see Chisholm v. Georgia, 2 U.S. 419 at 466 (1793) (Justice Wilson) (Causes, and not parties to causes, are weighed by justice, in her equal scales: On the former solely, her attention is fixed: To the latter, she is, as she is painted, blind.)

64 PART 2. THE PRELIMINARIES

PART 2. THE PRELIMINARIES In rebuttal to the U.S. Attorney’s Manual, Title 4: Civil Resource Manual § 35 Standing to Sue under the “case or controversy” clause of Article III of the Constitution there is enough “plausible” evidence to prove that I have suffered a distinct and palpable injury as a result of the putatively illegal conduct of the officers of the U.S. Coast Guard; of judges and court clerks in the administrative functions where they do not have immunites of any kind from suit; of officials and agents of the U.S. Department of Transportation, the U.S. Department of Justice, the U.S. Marshals Service, and the FBI, to name a few as defendants under the name of the United States. The injuries to my reputation, to my constitutional rights, to my statutory rights, and to my human rights are “easily” traceable to the challenged conduct. The injuries are extremely likely to be redressed if the requested relief is granted. In addition to the constitutional requirements of Article III, courts have developed a set of prudential considerations to limit standing in federal court to prevent a plaintiff “from adjudicating “abstract questions of wide public significance’ which amount to ‘generalized grievances’ pervasively shared and most appropriately addressed in the representative branches.” Speculative claims that a proposed governmental action may result in injury to a plaintiff are insufficient to confer standing. The required injury must be both real and immediate, not conjectural or hypothetical. The injuries to my good name and reputation first by the U.S. Coast Guart, then in a conspiracy between the U.S. Coast Guard and the U.S. Department of Transportation, and subsequently whether in a conspiracy, or independently by the other named departments of the United States above are not speculative, conjectural, or hypothetical claims but real and immediate claims. However, once Standing to Sue under any authorized catagories has been established I do have the right under the Standing to Sue for the rights of third parties of the jus tertii doctrine to raise such speculative, conjectural, or hypothetical claims as viable means to present prima facie challenges, “as applied” challenges, and facial challenges to the constitutionality of selected federal laws and regulations. The federal courts have a duty under Article III and under the checks and balance system of the Constitution to adjudicate speculative, conjectural, and hypothetical claims after real and immediate claims have been established as a proper standing to sue in order to prevent the Legislative and Executive Branch from taking the American People down a slippery slope of despotic totalitarianism form of government in opposition to our Guaranteed Republican form of Government unless the federal Judicial Branch is in collusion with such treachery.

(1). 16 CORPUS JURUS SECUNDUM § 111 Requirement of Standing: Article III of the United States constitution gives federal courts jurisdiction only over cases and controversies, and the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial process.131 Thus, a person must have standing to be able to assert a challenge to the constitutionality of a statute or government action. 132 The standing inquiry is especially rigorous when reaching the merits of the dispute would force the court to decide whether an action taken by one of the other two branches of the federal government was unconstitutional. 133 Although the standing inquiry often turns on the nature and source of the claim asserted, it in now way depends on the merits of the plaintiff’s contention that particular conduct is illegal. 134 The question of standing generally focuses on the party seeking a forum, rather than on the issues to be adjudicated.135 The essence of the

131

Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.E.2d 135 (1990).

132

Hines v. Elkhart General Hospital, 465 F.Supp. 421 (N.D. Ind. 1979) , judgment aff’d, 603 F.2d 646 (7th Cir. 1979).

133

Burt v. Rumsfeld, 322 F.Supp.2d 189, 189 Ed. Law Rep. 666 (D. Conn. 2004).

134

Burt v. Rumsfeld, 322 F.Supp.2d 189, 189 Ed. Law Rep. 666 (D. Conn. 2004).

135

Kaneohe Bay Cruises, Inc. v. Hirata, 75 Hawaii 250, 861 P.2d 1 (1993).

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PART 2. THE PRELIMINARIES constitutional standing question is whether the plaintiff has a personal stake in the issue presented. 136 A party has standing to challenge a statute’s constitutionality if the party has a sufficient interest in the outcome of a justiciable controversy to obtain judicial resolution of that controversy.137 A challenger must have some right specifically affected, 138 and the interest that he or she seeks to protect must be within the zone of interests to be protected by the statute or constitutional guaranty in question.139 While one need have only a slight interest to sustain standing where issues of great public interest are presented,140 a showing only of such interest in the subject of the suit as the public generally has is usually not sufficicient to warrant the exercise of judicial power.141

(2). 16 CORPUS JURUS SECUNDUM § 113 Facial and As-Applied Challenges A party may generally challenge the constitutionality of a statute only as applied to that party,142 and such a challenge is referred to as an “as applied challenge.143 A facial challenge to the constitutional validity of a statute considers only the text of the measure itself, and not its application to the particular circumstances of an individual.144 A party asserting a facial challenge to a statute seeks to vindicate not only his or her own rights, but also those of others who may also be adversely impacted by the statute in question.145 In order to challenge successfully the facial validity of a statute or a rule of practice when no fundamental constitutional right is implicated, a party is required to demonstrate as a threshold matter that the statute may not be applied constitutionally to the facts of his or her case.146 A person may bring a facial challenge to a statute if the unconstitutional feature is so pervasive as to render the entire statute invalid,147 and if the statute reaches a substantial amount of protected conduct.148

136

H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed. 2d 388 (1981); Oregon Advocacy Center v. Mink, 322 F.3d 1101 (9th Cir. 2003); Public Citinzen, Inc. v. Bomer, 274 F.3d 212 (5th Cir. 2001). [Nexus requirement: Whether or not personal stake in outcome is sufficient to confer standing depends on whether there is a logical nexus between status asserted and claim sought to be adjudicated.]

137

State v. City of Oak Creek, 2000 Wisconsin 9, 232 Wis. 2d 612, 605 N.W.2d 526 (2000).

138

McCord v. Stephens, 295 Ala. 162, 325 So. 2d 155 (1975); Morris v. Fleming, 128 Ariz. 271 271, 625 P.2d 334 (Ct. App. Div. 1 1980). [Adverse parties: Adverseness of parties, which is necessary for standing, does not exist when party attacking statute does not stand to gain if attack is sustained.] People v. Capitol News, Inc., 137 Ill. 2d 162, 148 Ill. Dec. 1, 560 N.E.2d 303, 13 A.L.R.5th 1029 (1990). 139

Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Dismas Charities, Inc. v. U.S. Department of Justice, 401 F.3d 666, 2005 Fed. App. 0128P (6th Cir. 2005). 140

Right to Relief: Burt v. Rumsfeld, 322 F.Supp.2d 189, 189 Ed. Law Rep. 666 (D. Conn. 2004).

141

Plumas County Bd. Of Sup’rs v. Califano, 594 F.2d 756 (9th Cir. 1979).

142

Ghegan & Ghegan, Inc. v. Weiss, 338 Ark. 9, 991 S.W.2d 536 (1999).

143

Tobe v. City of Santa Ana, 9 Cal. 4th 1069, 40 Cal. Rptr.2d 402, 892 P.2d 1145 (1995).

144

Tobe v. City of Santa Ana, 9 Cal. 4th 1069, 40 Cal. Rptr.2d 402, 892 P.2d 1145 (1995).

145

City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67, 72 A.L.R.5th 665 (1999).

146

Thalheim v. Town of Greenwich, 256 Conn. 628, 775 A.2d 947 (2001) [Vagueness: To be vague in all of its applications, and thus unconstitutionally vague on its face under due process clause, a statute must necessarilky be vague as to the litigant; hence, if the statute is not vague as to the litigant, a due process challenge must necessarily fail, as a person who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.] 147

People v. Morgan, 203 Ill.2d 470, 272 Ill. Dec. 160, 786 N.E.2d 994 (2003).

148

State v. Dalton, 674 N.W.2d. 111 (Iowa 2004).

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PART 2. THE PRELIMINARIES

(3). The Constitution of the United States of America: Analysis and Interpretation of Cases Decided by the Supreme Court of the United States to June 28, 2002 Article III Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies (pp. 690-691) Constitutional Standards: Injury in Fact, Causation, and Redressability.— While the Court has been inconsistent, it has now settled upon the rule that, “at an irreducible minimum,” the constitutional requisites under Article III for the existence of standing are that the plaintiff must personally have suffered some actual or threatened injury that can fairly be traced to the challenged action of the defendant, and that the injury is likely to be redressed by a favorable decision. 149 For some time, injury alone was not sufficient; rather, the injury had to be “a wrong which directly results in the violation of a legal right,”150 that is, “one of property, one arising out of contract, one protected against tortious invasion, or one founded in a statute which confers a privilege.”151 The problem was that the “legal right” language was “demonstrably circular: if the plaintiff is given standing to assert his claims, his interest is legally protected; if he is denied standing, his interest is not legally protected.”152 The observable tendency of the Court, however, was to find standing frequently in cases distinctly not grounded in property rights.153 In any event, the “legal rights” language has now been dispensed with. Rejection occurred in two administrative law cases in which the Court announced that parties had standing when they suffered “injury in fact” to some interest, “economic or otherwise,” that is arguably within the zone of interest to be protected or regulated by the statute or constitutional provision in

149

Valley Forge Christian College v. Americans United, 454 U.S. 464, 472 (1982); Allen v. Wright, 468 U.S. 737, 751 (1984); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). See, however, United States Parole Comm’n v. Geraghty, 445 U.S. 388 (1980), a class action case, in which the majority opinion appears to reduce the significance of the personal stake requirement. Id. at 404 n.11, reserving full consideration of the dissent’s argument at 401 n.1, 420-21. 150

Alabama Power Co. v. Ickes, 302 U.S. 464, 479 (1938). Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 151-152 (1951) (Justice Frankfurter concurring). But see Frost v. Corporation Comm’n, 278 U.S. 515 (1929); City of Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958). 151

Tennessee Power Co. v. TVA, 306 U.S. 118, 137-138 (1939).

152

C. Wright, HANDBOOK OF THE LAW OF FEDERAL COURTS at 65-66 (4th ed. 1983).

153

E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) (indirect injury to organization and members by governmental maintenance of list of subversive organizations); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (same); Abington School Dist. v. Schempp, 374 U.S. 203, 224 n. 9 (1963) (parents and school children challenging school prayers); McGowan v. Maryland, 366 U.S. 420, 430-431 (1961) (merchants challenging Sunday closing laws); Baker v. Carr, 369 U.S. 186, 204-208 (1962) (voting rights).

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PART 2. THE PRELIMINARIES question. 154 Now political, 155 environmental, aesthetic, and social interests, when impaired, afford a basis for making constitutional attacks upon governmental action.156 ... pp.693 Of increasing importance are the second and third elements of standing, causation and redressability, recently developed and held to be of constitutional requisite. There must be a causal connection between the injury and the conduct complained of; that is, the Court insists that the plaintiff show that “but for” the action, she would not have been injured. And the Court has insisted that there must be a “substantial likelihood” that the relief sought from the court if granted would remedy the harm. 157 371 pp. 703-705 Standing to Challenge Lawfulness of Governmental Action.— Standing to sue on statutory or other non-constitutional grounds has a constitutional content to the degree that Article III requires a “case” or “controversy,” necessitating a litigant who has sustained or will sustain an injury so that he will be moved to present the issue “in an adversary context and in a form historically viewed as capable of judicial resolution.”158 Liberalization of the law of standing in this field has been notable. The “old law” required that in order to sue to contest the lawfulness of agency administrative action, one must have suffered a “legal wrong,” that is, “the right invaded must be a legal right,”159 requiring some resolution of the merits preliminarily. An injury-in-fact was insufficient. 154

Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). The “zone of interest” test is a prudential rather than constitutional standard. The Court sometimes uses language characteristic of the language. Thus, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), the Court refers to injury in fact as “an invasion of a legally-protected interest,” but in context, here and in the cases cited, it is clear the reference is to any interest that the Court finds protectable under the Constitution, statutes, or regulations. 155

Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999).

156

E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871, 885 (1991); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72-74 (1978); Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 261-263 (1977); Singleton v. Wulff, 428 U.S. 106, 112-113 (1976); Warth v. Seldin, 422 U.S. 490, 498-499 (1975); O’Shea v. Littleton, 414 U.S. 488, 493-494 (1974); Linda R.S. v. Richard D., 410 U.S. 614, 617-618 (1973). 157

Lujan v. Defenders of Wildlife, 504 U.S. 555, 595 (1992); Allen v. Wright, 468 U.S. 737, 751 (1984). See also ASARCO Inc. v. Kadish, 490 U.S. 605, 612-617 (1989) (plurality opinion). Although the two tests were initially articulated as two facets of a single requirement, the Court now insists they are separate inquiries. Id. at 753 n. 19. To the extent there is a difference, it is that the former examines a causal connection between the assertedly unlawful conduct and the alleged injury, whereas the latter examines the causal connection between the alleged injury and the judicial relief requested. Id. In Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998), the Court denied standing because of the absence of redressability. An environmental group sued the company for failing to file timely reports required by statute; by the time the complaint was filed, the company was in full compliance. Acknowledging that the entity had suffered injury in fact, the Court found that no judicial action would afford it a remedy. 158

Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 151-152 (1970), citing Flast v. Cohen, 392 U.S. 83, 101 (1968). “But where a dispute is otherwise justiciable, the question whether the litigant is a ‘proper party to request an adjudication of a particular issue,’ [quoting Flast, supra, 100], is one within the power of Congress to determine.” Sierra Club v. Morton, 405 U.S. 727, 732 n.3 (1972). 159

Tennessee Power Co. v. TVA, 306 U.S. 118, 137-138 (1939). See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938); Perkins v. Lukens Steel Co., 310 U.S. 113 (1940).

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PART 2. THE PRELIMINARIES A “legal right” could be established in one of two ways. It could be a common-law right, such that if the injury were administered by a private party, one could sue on it;160 or it could be a right created by the Constitution or a statute.161 The statutory right most relied on was the judicial review section of the Administrative Procedure Act, which provided that “[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.”162 Early decisions under this statute interpreted the language as adopting the “legal interest” and “legal wrong” standard then prevailing as constitutional requirements of standing, which generally had the effect of limiting the type of injury cognizable in federal court to economic ones.163 In 1970, however, the Court promulgated a two-pronged standing test: if the litigant (1) has suffered injury-in-fact and if he (2) shows that the interest he seeks to protect is arguably within the zone of interests to be protected or regulated by the statutory guarantee in question, he has standing. 164 Of even greater importance was the expansion of the nature of the cognizable injury beyond economic injury, to encompass “aesthetic, conservational, and recreational” interests as well.165 “Aesthetic and environmental wellbeing, like economic well-being, are important 160

Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). This was apparently the point of the definition of “legal right” as “one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.” Tennessee Power Co. v. TVA, 306 U.S. 118, 137138 (1939). 161

Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). The Court approached this concept in two interrelated ways. (1) It might be that a plaintiff had an interest that it was one of the purposes of the statute in question to protect in some degree. Chicago Junction Case, 264 U.S. 258 (1924); Alexander Sprunt & Son v. United States, 281 U.S. 249 (1930); Alton R.R. v. United States, 315 U.S. 15 (1942). Thus, in Hardin v. Kentucky Utilities Co., 390 U.S. 1 (1968), a private utility was held to have standing to contest allegedly illegal competition by TVA on the ground that the statute was meant to give private utilities some protection from certain forms of TVA competition. (2) It might be that a plaintiff was a “person aggrieved” within the terms of a judicial review section of an administrative or regulatory statute. Injury to an economic interest was sufficient to “aggrieve” a litigant. FCC v. Sanders Brothers Radio Station, 309 U.S. 470 (1940); Associated Industries v. Ickes, 134 F.2d 694 (2d Cir.), cert. dismd. as moot, 320 U.S. 707 (1943). 162

5 U.S.C. § 702. See also 47 U.S.C. § 202(b)(6) (FCC); 15 U.S.C. § 77i(a) (SEC); 16 U.S.C. § 825a(b) (FPC).

163

FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 477 (1940); City of Chicago v. Atchison, T. & S.F. Ry. Co., 357 U.S. 77, 83 (1958); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 7 (1968). 164

Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). Justices Brennan and White argued that only injuryin- fact should be requisite for standing. Id. at 167. In Clarke v. Securities Industry Ass’n, 479 U.S. 388 (1987), the Court applied a liberalized zone-of-interest test. But see Lujan v. National Wildlife Federation, 497 U.S. 871, 885-889 (1990); Air Courier Conf. v. American Postal Workers Union, 498 U.S. 517 (1991). In applying these standards, the Court, once it determined that the litigant’s interests were “arguably protected” by the statute in question, proceeded to the merits without thereafter pausing to inquire whether in fact the interests asserted were among those protected. Arnold Tours v. Camp, 400 U.S. 45 (1970); Investment Company Institute v. Camp, 401 U.S. 617 (1971); Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 320 n. 3 (1977). Almost contemporaneously, the Court also liberalized the ripeness requirement in review of administrative actions. Gardner v. Toilet Goods Ass’n, 387 U.S. 167 (1967); Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). See also National Credit Union Administration v. First National Bank & Trust Co., 522 U.S. 479 (1998), in which the Court found that a bank had standing to challenge an agency ruling expanding the role of employer credit unions to include multi-employer credit unions, despite a statutory limit that any such union could be of groups having a common bond of occupation or association. The Court held that a plaintiff did not have to show it was the congressional purpose to protect its interests. It is sufficient if the interest asserted is “arguably within the zone of interests to be protected . . . by the statute.” Id. at 492 (internal quotation marks and citation omitted). But the Court divided 5-to-4 in applying the test. And see Bennett v. Spear, 520 U.S. 154 (1997).

165

Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 154 (1970).

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PART 2. THE PRELIMINARIES ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.”166 pp. 706 The Requirement of a Real Interest Almost inseparable from the requirements of adverse parties and substantial enough interests to confer standing is the requirement that a real issue be presented, as contrasted with speculative, abstract, hypothetical, or moot issues. It has long been the Court’s “considered practice not to decide abstract, hypothetical or contingent questions.”167

(4). Standing to Sue: U.S. ATTORNEY’S MANUAL, Title 4: Civil Resource Manual § 35: The “case or controversy” clause of Article III of the Constitution imposes a minimal constitutional standing requirement on all litigants attempting to bring suit in federal court. In order to invoke the court’s jurisdiction, the plaintiff must demonstrate, at an “irreducible minimum,” that: (1) he/she has suffered a distinct and palpable injury as a result of the putatively illegal conduct of the defendant; (2) the injury is fairly traceable to the challenged conduct; and (3) it is likely to be redressed if the requested relief is granted. See Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472 (1982); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99 (1979); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37 (1976). “In order to have standing to sue under RICO civil liability provisions, plaintiff must show a violation of RICO, injury to business or property, and causation of the injury by the violation.” Heckt v. Commerce Clearing House, Inc., C.A.2(N.Y.) 1990, 897 F.2D 21, 100A.L.R. Fed. 655. “The strongest evidence that the Takings Clause [of the Fifth Amendment] originally was intended to cover regulatory takings are the Framers’ strong leanings in favor of protection for property rights, James Madison’s post-ratification statements, and the just compensation philosophy contained in the writings of Blackstone, Locke, and Grotius. Although Madison’s statements do not carry the same weight as pre-ratification commentary, they should carry some weight because of Madison’s role in drafting the Takings Clause and the fact that he published the Property essay so shortly after ratification. Madison’s view supports the jurisprudential position taken by Grotius and Blackstone and clearly extends the Takings Clause to non-physical takings.” Andrew S. Gold, Regulatory Takings and Original Intent: the Direct, Physical Takings Thesis “Goes Too Far,” 49 Am. U.l. Rev. 181, 241 (1999). 166

Sierra Club v. Morton, 405 U.S. 727, 734 (1972), Moreover, said the Court, once a person establishes that he has standing to seek judicial review of an action because of particularized injury to him, he may argue the public interest as a “representative of the public interest,” as a “private attorney general,” so that he may contest not only the action which injures him but the entire complex of actions of which his injury-inducing action is a part. Id. at 737-738, noting ScrippsHoward Radio v. FCC, 316 U.S. 4 (1942); FCC v. Sanders Brothers Radio Station, 309 U.S. (1940). See also Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. (1979); Havens Realty Corp. v. Coleman, 455 U.S. 363, 376 n.16 (1982) (noting ability of such party to represent interests of third parties). 167

Alabama State Fed’n of Labor v. McAdory, 325 U.S. 450, 461 (1945).

70 PART 2. THE PRELIMINARIES

PART 2. THE PRELIMINARIES Plaintiff, Don Hamrick, is a United States citizen and a U.S. Merchant Seaman, (a.k.a. Able Seaman for purposes of the U.S. Code). Plaintiff Don Hamrick reported aboard a U.S. government vessel as a new crew member. He was required to attend a small arms recertification course as a job-related requirement for the position of Able Seaman aboard that ship. Upon successful completion of that small arms training Plaintiff Don Hamrick applied to the U.S. Coast Guard to have that extra training recognized by the Coast Guard in the form of an endorsement on his Merchant Mariner’s Document to read “National Open Carry Handgun” in accordance with 46 U.S.C. § 7306(a)(3), General Requirements and Classifications for Able Seamen Is Qualified Professionally as Demonstrated by an Applicable Examination or Educational Requirements. The Coast Guard denied that application with their final agency action denial under 46 C.F.R. § 1.03-15(j). Plaintiff initiated of federal civil rights case on Second Amendment grounds at the U.S. District Court for DC.

L. Standing to Sue for the Civil Rights, Constitutional Rights, and Human Rights of Third Parties (i.e., the Unorganized Militia, 10 U.S.C. § 311(b)(2)), under the Jus Tertii Doctrine (1). 16 CORPUS JURUS SECUNDUM § 116 Exceptions to Prohibition of Assertion of Rights of Third Parties Under certain conditions, the rights of third parties may be asserted by one who challenges the constitutionality of legislation or other governmental action. Application of the constitutional standing requirement is not a mechanical exercise.168 The rule that a person may not question the constitutionality of a statute or governmental action as it applies to others is subject to exceptions,169 and the court may allow representation of the rights of others where there is a need to protect their rights,170 or where the cases presents issues of great public importance.171 Concern that rights are most effectively asserted by those owning them is sufficiently eased to allow surrogate standing where there are circumstantial assurances of a litigant’s effective advocacy of third-party rights.172 Such assaurances are provided where the relationship between a state-enforced measure, injury to the litigant, and purpose or effect of the measure challenged naturally compel the litigant to fully and aggressively assert third persons’ constitutional claims. 173 The “jus tertii” doctrine174 provides standing to a litigant who argues that a single application of a statute injures him or her and impinges on the constitutional rights of a third person. 175 The application of the doctrine generally 168

Pennell v. City of San Jose, 485 U.S. 1, 108 s.Ct. 849, 99 L.Ed.2d 1 (1988).

169

Tobacco Road v. City of Novi, 490 F.Supp. 537 (E.D. Mich.) 1979).

170

Bell & Howell Co. N.L.R.B., 598 F.2d 136 (D.C. Cir. 1979).

171

Baca v. New Mexico Dept. of Public Safety, 2002-NMSC-017, 132 N.M. 282, 47 P.3d 441 (2002).

172

Nicholson v. Board of Educ. Torrance Unified School Dist., 682 F.2d 858, 5 Ed. Law Rep. 733 (9th Cir. 1982).

173

Deerfield Medical Center v. City of Deerfield Breach, 661 F.2d 328 (5th Cir. 1981); Lepelletier v. F.D.IC., 164 f.3D 37 (D.C. Cir. 1999). 174

The doctrine of jus tertii states that “a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties,” but that litigants may bring actions on behalf of third parties if the litigant has suffered an injury in fact, bears a close relation to the third parties, and the third parties are somehow hindered in their ability to protect their own interests.” Tesmer v. Granholm, 114 F.Supp.2d 603 at 608 (citing Powers v. Ohio, 499 U.S. 400, 410-411 (1991)).

71 PRELIMINARIES PART 2. THE

PART 2. THE PRELIMINARIES depends on the presence of some substantial relationship between the claimant and the third party,176 the third party’s inability otherwise to assert or effectively preserve his or her rights,177 and the need to avoid dilution of those rights that would otherwise result.178 The claimant must demonstrate that he or she has suffered a concrete, redessable injury,179 and that he or she is very nearly as effective a proponent of the right as the third person would be. 180 The doctrine also applies where the rights of the third party would be diluted and adversely affected if the constitutional challenge brought by a litigant on his or her behalf should fail and the statute remain in force. 181

(2) The Third Circuit & Just Tertii (for the Rights of Third Parties) Citing from Michael A. Frattone, THIRD CIRCUIT SETS FORTH BALANCING TEST FOR EVALUATING JUS TERTII STANDING IN F IRST AMENDMENT CONTEXT [OF] AMATO V. WILENTZ (1991), 38 Villanova Law Review 1117 (1993) The series of modern cases specifically establishing jus tertii standing as a distinct legal principle began with Barrows v. Jackson in 1953.182 In Barrows, the Court permitted a white vendor to assert the rights of a black vendee as a defense in a suit charging the vendor with breach of a [1122] racially restrictive covenant.183 Barrows was the first case in which the Supreme Court expressly recognized a litigant’s standing to assert the constitutional rights of third parties.184 The Barrows court stated that “under the peculiar circumstances ... the reasons which underlie the rule denying standing to raise another’s rights ... are outweighed by the need to protect the fundamental rights which would be denied.”185 Since the Barrows decision, the Supreme Court has consistently recognized jus tertii standing to be appropriate when the policies underlying the restrictions on such standing are not furthered.186 175

People v. Rocha, 110 Mich. App. 1, 312 N.W.2d. 657 (1981).

176

Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 s.Ct. 2077, 114 L.Ed.2d 660 (1991); Connection Distributing Co. v. Reno, 154 F.3d 281, 1998 Fed. App. 0249P (6th Cir. 1998). [Inextricably bound up: General rule that person may not assert constitutional rights of others does not apply where relationship between litigant and third person is such that enjoyment of third person’s rights is inextricably bound up with activity litigant wishes to address.] 177

Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 s.Ct. 2077, 114 L.Ed.2d 660 (1991); Connection Distributing Co. v. Reno, 154 F.3d 281, 1998 Fed. App. 0249P (6th Cir. 1998).

178

Id.

179

Id.

180

Callahan v. Woods, 658 F.2d 679 (9th Cir. 1981).

181

Carey v. Population Services, Intern., 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977).

182

346 U.S. 249 (1953).

183

Id. at 257 (stating that “the reasons which underlie our rule denying standing to raise another’s rights ... are outweighed by the need to protect the fundamental rights which would be denied”). 184

Id. at 255-59.

185

Id. at 257.

186

See, e.g., Secretary of State of Maryland v. Munson, 467 U.S. 947, 956 (1984). The Munson Court recognized that in “situations where competing considerations outweigh any prudential rationale against third-party standing ... the Supreme Court has relaxed the prudential-standing limitation.” Id. Specifically, the Court noted that “where practical obstacles prevent a party from asserting rights on behalf of itself, for example, the Court has recognized the doctrine of jus tertii standing.” Id.; see United States Dept. Labor v. Triplett, 494 U.S. 715, 721 (1990) (holding attorney had jus tertii standing to bring action based on client who was deprived of legal representation, due to obstacles preventing client from asserting his own rights); Singleton v. Wulff, 428 U.S. 106, 114-15 (1976) (holding physicians had third party standing to raise claims of patients who

72 PART 2. THE PRELIMINARIES

PART 2. THE PRELIMINARIES Supreme Court decisions addressing the appropriateness of jus tertii standing have provided federal courts with guidance in determining the relevant factors for evaluating jus tertii standing. 187 First, the litigant must have suffered a concrete, redressable injury in fact.188 Second, the court must consider whether prudential considerations should prevent the plaintiff from advancing the claim. 189 In assessing prudential considerations, the court must examine the following three factors: (1) the relationship between the litigant and the third party; (2) the ability of the third party to advance his own interests; and (3) the impact of potential litigation by the third party.190 The Supreme Court has, however, left undecided the issue of the exact role these three factors play in evaluating jus tertii standing. 191 In some cases, the Court appears to take the position that none of the factors are actual prerequisites to standing, and that these factors must instead be balanced.192 In other decisions, however, the Court appears to require that third party claimants were denied medical funding for abortions based on obstacles precluding patients from asserting own rights, while recognizing that the rule against third party standing “should not be applied where its underlying justifications are absent”); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958) (holding that nexus of association was sufficient to give NAACP jus tertii standing to assert constitutional rights of its members). There are also numerous examples where jus tertii standing is permitted in order to avoid chilling expression in the First Amendment contexts. See, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 756 (1976) (holding that prudential rationale against third party standing was outweighed by society’s interest in protecting free speech and expression). 187

See Robert Allen Sedler, STANDING TO ASSERT CONSTITUTIONAL JUS TERTII IN THE SUPREME COURT, 71 Yale L.J. 599, 600 at 626-28 (1962). This commentator notes that federal courts most often assess: 1) the interest of the third party asserting jus tertii standing; 2) the nature of the right asserted; 3) the relationship between the party asserting standing and the rightholders; and 4) the feasibility of the rightholders asserting their own rights in an independent action. Id.; see Note, STANDING TO ASSERT CONSTITUTIONAL JUS TERTII, 88 Harv. L. Rev. 423, at 425 (1974).

188

See Caplin & Drysdale v. United States, 491 U.S. 617, 623 n.3 (1989). If the plaintiff can allege sufficient concrete injury, the Article III case-and-controversy requirement is satisfied. Id.

189

Id.

190

Id. at 623-24 n.3.

191

See Eisenstadt v. Baird, 405 U.S. 438, 443-46 (1972) (balancing variety of factors but failing to indicate their relative weight); Griswold v. Connecticut, 381 U.S. 479, 481 (1965)(same). 192

See, e.g., Caplin & Drysdale, 491 U.S. at 623 n.3. The Caplin Court held that a lawyer had third party standing to raise the Sixth Amendment rights of his client when challenging a statute that might have inhibited the client from paying his attorney’s fees. Id. at 623 n.3, 624. The Court adopted a balancing approach and concluded that even though a criminal defendant suffers no serious obstacles to advancing his or her own claim, the other two factors weighed strongly enough to impart standing to the attorney. Id. at 624. The Court has similarly held that the obstacle requirement is not necessary in First Amendment overbreadth cases. See Secretary of State of Maryland v. Munson, 467 U.S. 947, 957 (1984) (“Although failure to show an obstacle might defeat a party’s standing outside the First Amendment context, this Court has not found the argument dispositive in determining whether standing exists to challenge a statute that allegedly chills free speech.”); see also Virginia v. American Booksellers

73 PRELIMINARIES PART 2. THE

PART 2. THE PRELIMINARIES meet each of the three factors before it will allow jus tertii standing.193 Against the background of this equivocal Supreme Court precedent, the Third Circuit arranged the prudential limitation factors into a cohesive framework for evaluating jus tertii standing questions in Amato v. Wilentz.194

(3). General Principles of Third Party (Jus Tertii) Standing in Amato v. Wilentz 952 F.2d 742; 1991 U.S. App. LEXIS 30138 (1991), B. General Principles of Third Party Standing The longstanding basic rule of third party standing is that “in the ordinary course, a litigant must assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights or interests of third parties.” Powers v Ohio, 113 L. Ed. 2d 411, 111 S Ct 1364, 1370 (1991). The rule serves at least two judicial purposes. First, the rule fosters judicial restraint: courts faced with unsettled questions avoid pronouncements that are perhaps unnecessary and undesirable because the rightholders do not wish to assert their rights. See Secretary of State of Maryland v Munson, 467 U.S. 947, 955, 104 S Ct 2839, 81 L. Ed. 2d 786 (1984); Singleton v Wulff, 428 U.S. 106, 11314, 96 S Ct 2868, 49 L. Ed. 2d 826 (1976) (plurality opinion). Second, the rule assures concrete, sharp presentation of the issues and enables courts to avoid ruling on abstract grievances. Generally, the third party will be the best advocate of its own position, and the plaintiff may place a slightly different, self-interested “spin” on its presentation. See Munson, 467 U.S. at 955; Singleton, 428 U.S. at 114. The general rule against third party standing is not ironclad, however. The rule does not reflect an Article III “Case or Controversy” requirement, but stems from prudential concerns. See, for example, Caplin & Drysdale, Chartered v United States, 491 U.S. 617, 623 n. 3, 109 S Ct 2646, 105 L. Ed. 2d 528 (1989); Hodel v Irving, 481 U.S. 704, 711; 107 S. Ct. 2076 , 95 L. Ed. 2d 668 (1987); Craig v Boren, 429 U.S. 190, 193, 97 S Ct 451, 50 L. Ed. 2d 397 (1976). Accordingly, in limited circumstances where the policies supporting the general rule are not served, the Supreme Court has approved third party standing. See Singleton, 428 U.S. at 114-15. Where rightholders are unable to raise their own rights and their relationship with the plaintiff suggests an identity of interests, courts can be more certain that the litigation is necessary and that the issues will be framed clearly and effectively. See id at 114-16. Moreover, other policy considerations, notably the fear of chilling expression in First Amendment cases, may at times outweigh the policies behind the general rule against third party standing. See, for example, Munson, 467 U.S. at 956-60. The Supreme Court has thus recognized the dangers inherent in third party standing, yet has also recognized that third party standing may at times be appropriate. While the Justices have frequently disagreed on the proper outcomes in third party standing cases, the Court’s opinions do give federal courts rather clear guidance on what factors are relevant in determining whether to make an exception to the general rule. Where a plaintiff asserting third party standing has suffered concrete, redressable injury (that is, the plaintiff has Article III standing), federal courts are to examine at least three additional factual elements before allowing the suit to proceed.

Ass’n, 484 U.S. 383, 392-93 (1988) (holding that no inquiry into potential obstacles to suit needed in granting standing to booksellers to raise purchasers’ First Amendment rights). 193

See Powers v. Ohio, 111 S. Ct. 1364, 1370-71 (1991) (stating that “we have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied” in upholding standing of litigant to raise Equal Protection claims of jurors preemptorily challenged on racial grounds).

194

952 F.2d 742 (3d Cir. 1991).

74 PART 2. THE PRELIMINARIES

PART 2. THE PRELIMINARIES Caplin & Drysdale, 491 U.S. at 623 n. 3. First, the court must examine the relationship between the plaintiff and the third party whose rights are asserted; second, the court must consider the ability of the third party to advance its own rights -- whether some obstacle impedes the rightholder’s own suit; and third, the court must inquire into the impact on third party interests -whether the plaintiff and the third party have consistent interests. Id. The Supreme Court has been less clear, however, about what to do with these factors. Its jurisprudence contains seemingly inconsistent strains about whether the factors, especially the “obstacle” factor, are in fact prerequisites to third party standing, or whether courts are instead to balance them. In some cases, the Court has explicitly or implicitly held that an obstacle to the rightholder’s suit is not an absolute requirement for third party standing. In Caplin & Drysdale, for example, the Court held that a lawyer had third party standing to raise the Sixth Amendment rights of a client when challenging a statute that might have inhibited the client from paying his attorneys’ fees. The Court concluded that even though a criminal defendant suffers no serious obstacles to advancing his or her own claim, the other two factors weighed strongly enough that the lawyer had standing. Id. Similarly, the Court has held that in First Amendment overbreadth challenges, the danger of chilling expression is so important that the showing of an obstacle is not required. Munson, 467 U.S. at 957 (“Although [failure to show an obstacle] might defeat a party’s standing outside the First Amendment context, this Court has not found the argument dispositive in determining whether standing exists to challenge a statute that allegedly chills free speech.”). See also Virginia v American Booksellers Ass’n, 484 U.S. 383, 392-93, 108 S Ct 636, 98 L. Ed. 2d 782 (1988) (no inquiry into obstacle in summarily upholding booksellers’ standing to raise bookbuyers’ First Amendment rights in facial challenge to statute). On the other hand, in Powers v Ohio, which upheld the standing of a litigant to raise the Equal Protection claims of jurors peremptorily challenged due to their race, the Court’s language seemed to require certain showings from would-be third party claimants: We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: the litigant must have suffered an “injury in fact,” thus giving him or her a “sufficiently concrete interest” in the outcome of the issue in dispute . . .; the litigant must have a close relation to the third party . . .; and there must exist some hindrance to the third party’s ability to protect his or her own interests. . . . 111 S Ct at 1370-71 (citations omitted).195 Despite this language, however, we very much doubt that the Court in Powers intended silently to overrule its standing holdings in cases such as Caplin & Drysdale, Munson, and American Booksellers, especially in a case where it in fact allowed third party standing. Rather, the discussion in Powers may merely reflect that where, as in Powers, all three conditions exist, the Court will recognize third party standing. Furthermore, the Caplin & Drysdale balancing approach has the virtue of incorporating the strength of the showings on each factor. For example, obstacles to suit do not come in one size. Even if an obstacle to the third party’s suit exists, surely the severity of the hindrance is relevant. Similarly, the extent of potential conflicts of interests between the plaintiff and the third party whose rights are asserted matters a good deal. While it may be that standing need not be denied because of a slight, essentially theoretical conflict of interest, we have held that genuine conflicts strongly counsel against third party standing. See Polaroid Corp. v Disney, 862 F2d 987, 1000 (3d Cir 1988).

195

In this section of Powers, the Court did not specifically mention the third Caplin & Drysdale prong (effect on third parties’ interests), but the opinion’s later discussion of the relationship prong incorporated it. Below we will follow the same approach of combining these closely linked factors.

75 PRELIMINARIES PART 2. THE

PART 2. THE PRELIMINARIES In short, we read the body of Supreme Court precedent as (1) identifying factors that are relevant to determining third party standing and (2) rendering an overall balance of factors dispositive.196 8 Moreover, we do not read the list of factors in Powers and Caplin & Drysdale as exhaustive; in some cases, other factors may also be relevant to the ultimate prudential decision. For example, the Supreme Court has considered First Amendment cases different (or at least courts must balance differently) because of the overarching fear of chilling expression. We too will consider the potential chilling in this case, even though Essex County’s claim is not a conventional one of statutory overbreadth. Another factor we believe that the Court would deem relevant is whether hearing a suit between state governmental units may conflict with federal courts’ traditional federalism concerns about interfering with essentially state matters. We will therefore address that consideration also. All the while we will bear in mind that third party standing is exceptional: the burden is on the County to establish that it has third party standing, not on the defendant to rebut a presumption of third party standing.

(4) Third Party (Jus Tertii) Standing as Applied to the Plaintiff’s Case (a). First, the litigant must have suffered a concrete, redressable injury in fact. My claims and the exhibits provide enough information to sustain concrete, redressable injuries in fact. (b). Second, the court must consider whether prudential considerations should prevent the plaintiff from advancing the claim. Biased and prejudicial prudential considerations has already cost the me six years of federal litigation from advancing my claims. (i). In assessing prudential considerations, the court must examine the following three factors: (A). The relationship between the litigant and the third party; The third party is the law-abiding American people whether or not they are the unorganized militia under 10 U.S.C. § 311(b)(2). The unorganized militia under 10 U.S.C. § 311(b)(2) is also a third party as a subset of the American people. (B). The ability of the third party to advance his own interests;197 There is a substantial number of the American people who are not aware of their full rights under the 196

Our decision to apply the more flexible balancing approach may conflict with the apparent requirement of a showing of an obstacle in Frissell v Rizzo, 597 F2d 840, 848 (3d Cir 1979). Even in Frissell, however, we acknowledged exceptions to that rule. We noted (and distinguished) cases such as Craig v Boren, where vendors of 3.2% beer were held to have standing to assert the equal protection rights of 18-to-21-year-old men not allowed to purchase that beer -- despite no substantial obstacle to the men’s own suit. See 597 F2d at 848 n.7. The County claims that as a would-be licensor asserting its licensee’s rights, it escapes the general dictate in Frissell. At all events, we agree with the County that subsequent Supreme Court cases such as Munson, Caplin & Drysdale, and Powers, have superseded Frissell’s analysis on this point. For the same reason, we are not bound by the statement in Bowman v Wilson, 672 F2d 1145, 1152-53 (3d Cir 1982), that showings of an obstacle and of a close relationship are requirements for third party standing. 197

Citing Kowalski v. Tesmer 543 U.S. 125 (2004), 333 F.3d 683:

In Caplin & Drysdale, the Court even permitted jus tertii standing where not all of the factors were met (“The second of these three factors counsels against review here . . . We think the first and third factors, however, clearly weigh in petitioner’s favor. . . . Petitioner therefore satisfies our requirements for jus tertii standing.” 491 US at 624, n 3.).

76 PART 2. THE PRELIMINARIES

PART 2. THE PRELIMINARIES Constitution of the United States and who cannot afford the time or the expense to pursue or preserve their rights in the federal courts. (C). The impact of potential litigation by the third party. If the American people of all 50 States were fully knowledgeable of their Second Amendment rights under the law of class actions it would create an impact upon the courts far greater than the Microsoft antitrust case.198 Allowing my case to proceed in vindication of my own injuried rights and those injuried rights of third parties (i.e., the American people at large in all 50 States) the impact upon of potential litigation will be lessened. Citing Craig v. Boren, 429 U.S. 190 at 193-194 (1976): “[O]ur decisions have settled that limitations on a litigant’s assertion of jus tertii are not constitutionally mandated, but rather stem from a salutary “rule of self-restraint” designed to minimize unwarranted intervention into controversies where the applicable constitutional questions are ill-defined199 and speculative. See, e.g., Barrows v. Jackson, 346 U. S. 249, 346 U. S. 255, 257 (1953); see also Singleton v. Wulff, 428 U. S. 106, 428 U. S. 123-124 (1976) (POWELL, J., dissenting). These prudential objectives, thought to be enhanced by restrictions on third-party standing, cannot be furthered here, where the lower court already has entertained the relevant constitutional challenge and the parties have sought -- or at least have never resisted -- an authoritative constitutional determination.200 In such circumstances, a decision by us to forgo consideration of the constitutional merits in order to await the initiation of a new challenge to the statute by injured third parties would be impermissibly to foster repetitive and timeconsuming litigation under the guise of caution and prudence. 201 Moreover, insofar as the applicable constitutional questions have been and continue to be presented vigorously and “cogently,” Holden v. Hardy, 169 U. S. 366, 169 U. S. 397 (1898), the denial of jus tertii standing in deference to a direct class suit can serve no functional purpose. 202 Our Brother BLACKMUN’s comment is pertinent: “[I]t may be that a class could be assembled, whose fluid membership always included some [males] with live claims. But if the assertion of the right is to be ‘representative’ to such an extent anyway, there seems little loss in terms of effective advocacy from allowing its assertion by” the present jus tertii champion. 203 Singleton v. Wulff, supra at 428 U. S. 117118.”

198

http://www.usdoj.gov/atr/cases/ms_index.htm

199

Plaintiff’s emphasis. In the present case the constitutional question on the Second Amendment has been sharply and clearly defined to be an individual right regardless of the militia. 200

The lower federal courts are documented to have resisted an authoritative constitutional determination with various degress of bias and hostility. 201

Plaintiff’s emphasis.

202

Plaintiff’s emphasis.

203

Plaintiff’s emphasis. So, what not my case?

77 PRELIMINARIES PART 2. THE

PART 2. THE PRELIMINARIES

M. Standing to Sue as a Private Attorney General under the Civil RICO Act (1). Citing from David F. Herr, ANNOTATED MANUAL FOR COMPLEX LITIGATION, (Thomson West, 2006 ed., Chapter 35 Civil Rico, pp. 792-793, footnotes generally omitted) Congress enacted the 1920 Racketeer Influenced and Corrupt Organizations Act (RICO) to respond to the “infiltration of organized crime and racketeering into legitimate organizations operating in interstate commerce.” Congress targeted organized crime through a broad statutory scheme that included severe criminal penalties, fines, imprisonment, asset forfeiture, and civil remedies in an effort to undermine the economic power of racketeering organizations. The statute further enabled private individuals to act, in effect, as private attorneys general204 to sue for injury to their businesses or property caused by a RICO violation. Civil RICO claims have alleged wrongs actionable under state and common law; as well as other federal statutes. Although the statute was targeted at organized crime, courts have broadly construed RICO’s provisions, and its scope has extended well beyond its original aim. Early efforts by lower courts to restrict claims that appeared to exceed RICO’s original goals were overruled by Supreme Court decisions that broadened the statute’s reach. RICO claims can now be found in a variety of contexts, including insurance and business disputes, antiabortion and other protests, consumer financial services litigation family law, and whistle-blower actions. Although the nontraditional uses of RICO have continued to expand despite significant criticisms by commentators and the courts, Congress has shown little inclination to narrow the statute’s focus or reach.

(2). Citing Paul A. Batista, CIVIL RICO PRACTICE MANUAL, 2nd Ed. 2006 Cumulative Supplement (Wolters Kluwer Law & Busines,) § 6.29 Agencies of the United States as RICO Defendants In Berger v. Pierce, 933 F.2d 393 (6th Circuit, 1991) ─ which, like the Tenth, has been highly conservative in its treatment of civil racketeering issues ─ held that a federal agency is not subject to any civil RICO liability: Section 1962 states a requirement of “racketeering activity” as a predicate for a civil RICO action. Section 1961(1), in turn, defines “racketeering activity,” which requires that the defendant be, variously, “chargeable,” “indictable,” or “punishable” for violations of specific state and federal criminal provisions. The assertion that the [federal agency] was engaged in RICO conspiracy under section 1926(d) was patently defective as a matter of law, since it is selfevidence that a federal agency is not subject to state or [federal] criminal prosecution. Berger 933 F.2d at 397. § 6.30 ─ Individual Federal Officials as RICO Defendants The automatic immunity accorded to federal agencies from RICO liability does not extend automatically to individual federal officials. While federal officials may qualify for the absolute or limited immunity available to them in all types of federal civil litigation, they do not receive the same underlying protection that federal agencies receive in the RICO context. This distinction was made clear in Mceily v. United States, 6 F.3d 343, 350 (5th Circuit, 1993) in which the Fifth Circuit held that the Federal Deposit Insurance Corporation (FDIC), “as a federal agency, is not chargeable, indictable or punishable for violations of state and federal criminal 204

18 U.S.C. § 1964(c) (West 2003). See Rotella v. Wood, 528 U.S. 549, 557 (2000) (“The object of civil RICO is thus not merely to compensate victims but to turn them into prosecutors, ‘private attorneys general,’ dedicated to eliminating racketeering activity.”).

78 PART 2. THE PRELIMINARIES

PART 2. THE PRELIMINARIES provisions.” Id. In contrast, as McNeily stressed, individual FDIC officials could face RICO liability, since individual federal officials can violate RICO’s predicate acts. Id. See also Brown v. Nationsbank Corp., 188 F.3d 579, 587 (5th Circuit, 1999) (“McNeily does not support the grant of immunity to FBI agents”).

N. Pre-Enforcement Standing to Sue (1). Email from U.S. Marshals Service as Threatening Arrest over Citizen’s Arrest Warrant is Obstruction of Justice Delivered-To: [email protected] Received: by 10.151.41.18 with SMTP id t18cs109050ybj; Tue, 13 May 2008 09:49:29 -0700 (PDT) Received: by 10.150.50.3 with SMTP id x3mr21391ybx.28.1210697368652; Tue, 13 May 2008 09:49:28 -0700 (PDT) Return-Path: <[email protected]> Received: from mailsc28.usdoj.gov (mailsc28.usdoj.gov [149.101.1.170]) by mx.google.com with ESMTP id 74si138308wra.26.2008.05.13.09.49.28; Tue, 13 May 2008 09:49:28 -0700 (PDT) Received-SPF: pass (google.com: best guess record for domain of [email protected] designates 149.101.1.170 as permitted sender) client-ip=149.101.1.170; Authentication-Results: mx.google.com; spf=pass (google.com: best guess record for domain of [email protected] designates 149.101.1.170 as permitted sender) [email protected] Received: from emsagent4.doj.gov ([10.222.4.48]) by mailsc28.usdoj.gov (8.14.1/8.14.1) with ESMTP id m4DGnRR8018390; Tue, 13 May 2008 12:49:27 -0400 Received: from usms-nj-hq1.usms.doj.gov ([156.9.235.54]) by emsagent4.doj.gov (8.13.8/8.13.8) with ESMTP id m4DGnRM1018452; Tue, 13 May 2008 12:49:27 -0400 Received: from usms-ex-hq3.usms.doj.gov ([156.9.235.48]) by usms-nj-hq1.usms.doj.gov with Microsoft SMTPSVC(5.0.2195.6713); Tue, 13 May 2008 12:49:27 -0400 Received: from usms-ex-dcd1.usms.doj.gov ([156.9.16.26]) by usms-ex-hq3.usms.doj.gov with Microsoft SMTPSVC(5.0.2195.6713); Tue, 13 May 2008 12:49:27 -0400 content-class: urn:content-classes:message MIME-Version: 1.0 Content-Type: multipart/alternative; boundary=“----_=_NextPart_001_01C8B519.4D7C1E20” X-MimeOLE: Produced By Microsoft Exchange V6.0.6619.12 Subject: RE: IMMINENT WARNING & NOTICE OF INTENT TO MAKE CITIZEN’S ARRESTS Date: Tue, 13 May 2008 12:49:25 -0400 Message-ID: <[email protected]> X-MS-Has-Attach: X-MS-TNEF-Correlator: Thread-Topic: IMMINENT WARNING & NOTICE OF INTENT TO MAKE CITIZEN’S ARRESTS Thread-Index: Aci1E3xpgHuLA+DTNiHzNi6NvLb3QAA+uQQ From: “Jessup, William \(USMS\)” <[email protected]> To: “Don Hamrick” <[email protected]>

79 PRELIMINARIES PART 2. THE

PART 2. THE PRELIMINARIES X-OriginalArrivalTime: 13 May 2008 16:49:27.0180 (UTC) FILETIME=[4E41BCC0:01C8B519] X-Proofpoint-Virus-Version: vendor=fsecure engine=1.12.7160:2.4.4,1.2.40,4.0.166 definitions=2008-05-13_06:2008-05-13,2008-05-13,2008-05-13 signatures=0 X-Proofpoint-Virus-Version: vendor=fsecure engine=4.65.7161:2.4.4,1.2.40,4.0.164 definitions=2008-05-13_06:2008-05-13,2008-05-13,2008-05-13 signatures=0 This is a multi-part message in MIME format. ------_=_NextPart_001_01C8B519.4D7C1E20 Content-Type: text/plain; charset=“us-ascii” Content-Transfer-Encoding: quoted-printable DATE: Tuesday, May 13, 2008 at 12:49 PM FROM: William Jessup, (USMS) <[email protected]> TO: Don Hamrick <[email protected]> SUBJ: RE: IMMINENT WARNING & NOTICE OF INTENT TO MAKE CITIZEN’S ARRESTS Don, greetings. I hope all is well with you. Couple things. First, the offer is always open if you want to talk – I’m buying lunch or coffee or whatever. Just let me know. I can come to you if you’re not in town but fairly close to DC. Second, as has been stated before, any attempt by you to effectuate a “citizen’s arrest” on any Federal Judicial Officer will result in your arrest and prosecution for crimes under Title 18 of the United States Code, including but not limited to 18 USC § 111.1 Again, I’m available to discuss this with you any time. Feel free to give me a call if and when you’re in the DC area. Kindest regards, -Bill William Jessup Senior Inspector U.S. Marshals Service U.S. Courthouse 333 Constitution Ave, NW Washington, DC 20001 202-353-0663 (desk) 202-631-2904 (cell) Note that William Jessup added 18 U.S.C. § 111, ASSAULTING, RESISTING, OR IMPEDING CERTAIN OFFICERS OR EMPLOYEES to the previous list of threats of arrest for 18 U.S.C. § 1201 KIDNAPPING, and 18 U.S.C. § 1203 HOSTAGE TAKING because I intend to exercise a common law right of citizen’s arrest for felony EXTORTION UNDER COLOR OF LAW, 18 U.S.C. § 872 and EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering), 18 U.S.C. § 1951(a) and § 1951(b)(2) in relation to the SEAMEN’S SUIT law, 28 U.S.C. § 1916. Also note that I directed my letter to officials at the U.S. Department of Justice, superiors to William Jessup. Note that William Jessup, a subordinate to the Justice Department, took it upon himself to answer my email in 42 minutes, instead of waiting for the officials at the Justice Department to answer. The Justice Department might have seen things my way and might have offered up an alternative remedy, i.e., a full refund of the disputed extortion of filing fees, $1,465 plus interest, which would be entirely satisfactory. The Justice Department still has the opportunity, in spite of William Jessup usurping the authority of the Justice Department, to respond to my letter. Again, the caveat, if the Justice Department fail or refuse to answer my email and mailed letter the burden of remedy will be placed back on my shoulders.

80 PART 2. THE PRELIMINARIES

PART 2. THE PRELIMINARIES In one of my series of brief emailed rebuttals to William Jessup I provided a series of questions and answers for him to expand on: QUESTION:

Do federal judges have immunity for administrative acts that break federal law?

ANSWER:

No. Judges who break the law in their administrative duties can be arrested and prosecuted.

QUESTION:

Do my cases qualify for the filing fee exemption under the Seamen’s Suit law?

ANSWER:

Yes. The U.S. District Court for DC and Charlotte, NC accepted my cases without the filing fees. The DC Circuit, 8th Circuit, the US District Courts for DC and Little Rock and the US Supreme Court did not. They broke the law.

QUESTION:

Did federal law enforcement take my complaint, investigate, and prosecute?

ANSWER:

No. The burden of remedy falls back on my shoulders with citizen’s arrest.

QUESTION:

Do you accept the above as the basis in fact and law for citizen’s arrest?

ANSWER:

________ ? Provide the basis in law why you answer yes or no.

I did not get a reply from William Jessup answering the above questions. William Jessup has predictably provided me “Pre-Enforcement Standing to Sue” under Parker v. District of Columbia, DC Circuit, No. 04-7041, (March 9, 2007), pp. 6-9. One of the FEDERAL QUESTIONS, 28 U.S.C. § 1331, will be whether or not I have a right to make citizen’s arrest of federal judges for felony EXTORTION UNDER COLOR OF LAW, 18 U.S.C. § 872 and EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering), 18 U.S.C. § 1951(a) and § 1951(b)(2) in relation to the SEAMEN’S SUIT law, 28 U.S.C. § 1916, and whether the burden of remedy under the Sixth, Seventh, Ninth, and Tenth Amendments, is placed back on the citizen complainant, i.e., the right to make citizen’s arrest of federal judges as a remedy of last resort, when “the First Amendment does not impose any affirmative obligation on the government to listen, to respond,” in light of We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 04-1211 (August 31, 2005): The Supreme Court, however, has held that “the First Amendment does not impose any affirmative obligation on the government to listen, to respond . . .” See Smith v. Ark. State Highway Employees, Local 1315, 441 U.S. 463, 465 (1979). Id. We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 04-1211 (August 31, 2005). Affirmed, DC Circuit, No. 05-5359 (May 8, 2007):

81 PRELIMINARIES PART 2. THE

PART 2. THE PRELIMINARIES We need not resolve this debate, however, because we must follow the binding Supreme Court precedent. See Tenet v. Doe, 544 U.S. 1, 10-11 (2005). And under that precedent, Executive and Legislative responses to and consideration of petitions are entrusted to the discretion of those Branches. Certiorari, denied, January 7, 2008; Petition for Rehearing denied, February 25, 2008.

Parker v. District of Columbia OPINION, DC Circuit, No. 04-7041, (March 9, 2007), pp. 6-9. We recognized in Seegars that our analysis in Navegar was in tension with the Supreme Court’s treatment of a preenforcement challenge to a criminal statute that allegedly threatened constitutional rights. See id. (citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979)). In United Farm Workers, the Supreme Court addressed the subject of preenforcement challenges in general terms: When the plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he “should not be required to await and undergo a criminal prosecution as the sole means of seeking relief.” 442 U.S. at 298 (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)). The unqualified language of United Farm Workers would seem to encompass the claims raised by the Seegars plaintiffs, as well as the appellants here. Appellants’ assertions of Article III standing also find support in the Supreme Court’s decision in Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988), which allowed a pre-enforcement challenge to a Virginia statute criminalizing the display of certain types of sexually explicit material for commercial purposes. In that case, the Court held it sufficient for plaintiffs to allege “an actual and well-founded fear that the law will be enforced against them,” id. at 393, without any additional requirement that the challenged statute single out particular plaintiffs by name.205 In both United Farm Workers and American Booksellers, the Supreme Court took a far more relaxed stance on preenforcement challenges than Navegar and Seegars permit. Nevertheless, unless and until this court en banc overrules these recent precedents, we must be faithful to Seegars just as the majority in Seegars was faithful to Navegar. Applying Navegar-Seegars to the standing question in this case, we are obliged to look for an allegation that appellants here have been singled out or uniquely targeted by the D.C. government for prosecution. No such allegation has been made; with one exception, appellants stand in a position almost identical to the Seegars plaintiffs. Appellants attempt to distinguish their situation from that of the Seegars plaintiffs by pointing to “actual” and “specific” threats, Appellants’ Br. at 21, lodged against appellants by D.C. during the course of the district court litigation. But this is insufficient. None of the statements cited by appellants expresses a “special priority” for

205

Of course, American Booksellers can be distinguished from Navegar, Seegars, and the present case, on the ground that the constitutional challenge at issue there implicated the First (as opposed to the Second) Amendment. The American Booksellers Court was concerned that Virginia’s statute might chill speech without any prosecution ever taking place, 484 U.S. at 393, thereby creating a wrong without remedy if pre-enforcement standing were denied. But in deciding whether to privilege one amendment to the U.S. Constitution over another in assessing injury-in-fact, we note the statement of our dissenting colleague in Seegars: “I know of no hierarchy of Bill of Rights protections that dictates different standing analysis.” 396 F.3d at 1257 (Sentelle, J., dissenting). The Seegars majority, although it felt constrained by Navegar to reach a different result, tacitly agreed with Judge Sentelle’s assessment that the injury-in-fact requirement should be applied uniformly over the First and Second Amendments (and presumably all other constitutionally protected rights). Id. at 1254.

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PART 2. THE PRELIMINARIES preventing these appellants from violating the gun laws, or a particular interest in punishing them for having done so. Rather, the District appears to be expressing a sentiment ubiquitous among stable governments the world over, to wit, scofflaws will be punished. The noteworthy distinction in this case—a distinction mentioned in appellants’ complaint and pressed by them on appeal—is that appellant Heller has applied for and been denied a registration certificate to own a handgun, a fact not present in Seegars. The denial of the gun license is significant; it constitutes an injury independent of the District’s prospective enforcement of its gun laws, and an injury to which the stringent requirements for pre-enforcement standing under Navegar and Seegars would not apply. Since D.C. Code § 22-4504 (prohibition against carrying a pistol without a license) and D.C. Code § 7-2507.02 (disassembly/trigger lock requirement) would amount to further conditions on the certificate Heller desires, Heller’s standing to pursue the license denial would subsume these other claims too. This is not a new proposition. We have consistently treated a license or permit denial pursuant to a state or federal administrative scheme as an Article III injury. See, e.g., Cassell v. F.C.C., 154 F.3d 478 (D.C. Cir. 1998) (reviewing denial of license application to operate private land mobile radio service); Wilkett v. I.C.C., 710 F.2d 861 (D.C. Cir. 1983) (reviewing denial of application for expanded trucking license); see also City of Bedford v. F.E.R.C., 718 F.2d 1164, 1168 (D.C. Cir. 1983) (describing wrongful denial of a preliminary hydroelectric permit as an injury warranting review). The interests injured by an adverse licensing determination may be interests protected at common law, or they may be created by statute. And of course, a licensing decision can also trench upon constitutionally protected interests, see, e.g., Dist. Intown Props. Ltd. P’ship v. District of Columbia, 198 F.3d 874 (D.C. Cir. 1999) (reviewing District of Columbia’s denial of a building permit under the Takings Clause); Berger v. Bd. of Psychologist Exam’rs, 521 F.2d 1056 (D.C. Cir. 1975) (reviewing District of Columbia’s denial of a license to practice psychology under the Due Process Clause), which will also give rise to Article III injury.

O. Stigmatic Harm and Standing Citing and adapting Thomas Healy, STIGMATIC HARM AND STANDING, 92 Iowa Law Review 417 (2007) to my case herein. Despite Allen v. Wright 468 U.S. 737 (1984) the Court has never completely ruled out stigmatic harm as a basis for standing. Citing the Conclusion:

(1). Stigmatizing Trait A U.S Seaman as an Unrepresented Civil Plaintiff with a civil RICO Act case where the Pro Se Civil Plaintiff has the authority to act as a Private Attorney General applying the civil RICO Act against the Unied States Government and against the United Nations in defense of the Second Amendment as a constitutional right and as an international human right.

(2). Denial of Equal Treatment Read together, [Allen v. Wright, 468 U.S. 737 (1984) and Heckler v. Mathews, 465 U.S. 728 (1984)] suggest a fairly straightforward rule: a plaintiff who alleges that he was denied equal treatment can claim standing on the basis of stigmatic harm, while a plaintiff who alleges that governmental action stigmatizes a group of which he is a member lacks standing unless he personally was denied equal treatment. [Healy, 432] [Stigmatic Harm] would give access to the federal courts to plaintiffs who have been denied access in the past. It also would allow some claims to be heard in federal court that currently cannot be heard there. . . . when the government does stigmatize a group, members of that group should have standing to argue that the government’s action is unlawful. If they do not have a meritorious claim, their cases will be dismissed. But they should not be turned away on the supposition that their injury is abstract. As I have tried to show, this is not true. Those who are

83 PRELIMINARIES PART 2. THE

PART 2. THE PRELIMINARIES stigmatized by government action are not simply concerned bystanders seeking to vindicate value interests. They suffer serious and concrete injuries and should therefore have the same standing in federal court as other plaintiffs alleging concrete harms. [Healy, 488]. Perpetual dismissals of my cases for the last 6 years combined with federal law enforcement agencies harassing me and my family just because I am exercising my First Amendment right to petition the Government for redress of grievance and my Seventh Amendment right to a civil jury trial constitutes a denial of equal treatment under the Rule of Law qualifies my case for standing on the basis of stigmatic harm.

(3). The Experience of the Stigmatized First, because the stigmatized are marked as less than fully human, they face the “ever-present possibility” that they will be the targets of prejudice and discrimination. . . . This threat of discrimination is harmful in itself, producing anxiety and a feeling that one must “be constantly on guard.” But even more harmful is the actual discrimination experienced by the stigmatized. Research shows that “members of stigmatized groups are more likely to experience derision, exclusion, discrimination, and violence than are those who are not stigmatized.” This discrimination makes it harder for the stigmatized to obtain employment, housing, education, and to develop lasting relationships with others. In the words of Goffman, “we exercise varieties of discrimination [against the stigmatized], through which we effectively, if often unthinkingly, reduce his life chances.” [Healy, 453-454] The highlight text above directly applies to me as evidenced by my previous lawsuit, Hamrick v. Hoffman, Crowley, and Seafarers International Union, U.S. District Court for DC, No. 07-1726, dismissed without prejudiced, but ORDERED to file an Amended Complaint because Judge Rosemary M. Collyer apparently did not like my own authored political poems I included in the Complaint criticizing the corrupt federal judiciary and the U.S. Government. The lawsuit resulted from a breach of contract by the shipping company (Crowley). Crowley waived the pre-employment physical to get be aboard a container ship. But because I had been at the union clinic just long enough to be my high blood pressure taken and discovered before the preemployment physical was canceled the clinic notified the shipping company one hour after the ship left for Europe with me on the ship. Crowley revoked the waiver and imposed blood pressure checks. I refused the blood pressure checks and light-duty status on the basis of breach of contract. The Master eventually threatened me with a logging which would involve the U.S. Coast Guard (The Coast Guard as named defendants already has Department of Transportation Bar Notices from 2004 and 2006 prohibiting me from visiting DOT, FAA, and USCG buildings in Washington, DC because of my litigious activities over my Second Amendment cases, another example of stigmatic harm). My employment was terminated on not fit for duty status and I was flown back to the United States from Europe. Stigmatization also threatens one’s self-esteem. Research has shown that most stigmatized individuals are aware that society views them as devalued and tainted. And social scientists have long maintained that people construct their self-identities, at least in part, on the basis of how others react to them. Thus, the knowledge that others view them as less than fully human can undermine the self-esteem of the stigmatized. They may even come to conclude that society is right—that they are in fact “less worthwhile, deserving, or valuable” than others. As the social psychologist Gordon Allport once asked rhetorically, “[W]hat would happen to your own personality if you heard it said over and over again that you were lazy . . . and had inferior blood”? . . . . [Healy, 454]. Implied in the above section stereotyping others as a class of people of lower standing stems from ignorance various degrees of sociopathic behavior patterns. I did not pick a litigious fight with the U.S. Government. In the early 1990s I initiated a course of self-education on the U.S. Constitution, the Bill of Rights and the Second Amendment because I was indeed ignorant on constitutional subject matters. In 2002 when I was extremely educated in constitutional law for a layman an opportunity presented itself to me by shear chance to attend a small arms class as a

84 PART 2. THE PRELIMINARIES

PART 2. THE PRELIMINARIES new Able Seaman aboard a U.S. Government ammunition ship coming out of the shipyard in Newport News, Virginia. I pass that small arms course. Finding 46 U.S.C. § 7306(a)(3) as the basis to submit my application to the U.S. Coast Guard for an endorsement on my Merchant Mariner’s Document for “National Open Carry Handgun.” The Coast Guard denied my application on the basis that in provided no benefit to marine safety or security and that there were no federal laws or regulations government my requested endorsement. Rather than rely on the U.S. Constitution and the Second Amendment as a basis of lawful authority the Coast Guard officer relied on his own prejudiced judgment thereby providing me with the legal cause of action for judicial review of a final agency action. From 2002 to the present day my cases have been treated with such disdain that I grew to feel as though I was nothing more than an annoying fly buzzing around the courts only to get shooed away with dismissals and most were with prejudice! So, I believe the federal courts view unrepresented civil plaintiffs as ignorant litigants. Finally, the stigmatized are usually the targets of negative stereotypes, which can lead to selffulfilling prophecies. One example is what social scientists have labeled “stereotype threat.” In lay terms, stereotype threat exists when the fear of conforming to stereotype creates self-doubt that interferes with one’s performance. . . . [Healy, 456] Stereotype threat involves the internalization of negative stereotypes by the stigmatized. Selffulfilling prophecies also occur when a negative stereotype influences the way we treat a person and the person reacts to this treatment with behavior that confirms the stereotype.318 . . . [Healy, 457] I began this litigious journey in 2002 with an awareness of a corrupt judicial system but naively believed that I had an iron-clad, open and shut case for Second Amendment rights from a merchant seaman’s point of view. I had to navigate a sharp learning curve in the Federal Rules of Civil Procedure and Appellate Procedure and the Rules of the U.S. Supreme Court. The education was thrilling but the obstructions of justice by the federal bench and bar proved most frustrating. I felt like a typical outcast shunned by social cliques if the federal courts can be compared to high schools. I took a gamble on my future that I could make a difference for American seamen as a class of people. So far all I have achieved is what appears to be a coincidental change in the Supreme Court’s Rule 40.2. Stigmatic harms are not insurmountable. Many stigmatized individuals develop ways of coping with their situations. As noted above, they may attribute negative outcomes to the prejudice of others rather than allow those outcomes to affect their self-esteem. They may also try to compensate for, or even eliminate, their stigmatizing traits by changing their behaviors or working harder. . . . But although these strategies can lessen the harms associated with stigma, they also carry costs. Reflexively blaming negative outcomes on prejudice can prevent one from understanding other reasons behind those outcomes. Attempting to change behavior can backfire if those efforts fail, causing one to feel even worse than before. And avoiding situations that might expose one to ridicule or prejudice limits one’s access to important resources and “severely circumscribes one’s freedoms.” [Healy 457-458] In short, stigmatization is a serious injury with harmful consequences. Not all stigmatized people experience these harms in the same way, and many individuals are able to overcome these harms and lead happy, fulfilling lives. But for the most part, “[p]eople who are stigmatized tend to experience more negative outcomes in their work lives and in their personal lives than do the nonstigmatized.” [Healy, 458]

(4). Questions of Causation and Redressability It is true that much of the harm experienced by the stigmatized likely would exist even in the absence of government action. It is also true that we cannot measure precisely the extent to which government action in a given case contributes to stigmatic harm. But it seems clear that when

85 PRELIMINARIES PART 2. THE

PART 2. THE PRELIMINARIES the government stigmatizes members of a particular group, it exacerbates the harm they experience. By reinforcing the social belief that those with a particular trait are discredited, the government adds to the prejudice and discrimination against them, creates additional threats to their self-esteem, and reaffirms the stereotypes that lead to selffulfilling prophecies. The government’s role also likely increases the intensity of these harms, particularly the threat to self-esteem. [Healy, 464].

86 PART 2. THE PRELIMINARIES

PART 3. THE PURPOSE OF THIS CASE

Part 3. Purpose of this Case Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

PART 3. THE P87 URPOSE OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE

A. John S. Baker, Jr., REVISITING THE EXPLOSIVE GROWTH OF FEDERAL CRIMES, The Heritage Foundation Legal Memorandum, No. 26, June 16, 2008

REVISITING THE EXPLOSIVE GROWTH OF FEDERAL CRIMES John S. Baker, Jr.,

The Heritage Foundation Legal Memorandum, No. 26, June 16, 2008 John S. Baker is Dale E. Bennett Professor of Law at the Louisiana State University Law Center. The author thanks his research assistant, Ms. Beverly Froese, who reviewed the federal statutes and organized the data under his direction. Measuring the growth in the number of activities considered federal crimes is challenging. Ideally, one compares counts of federal crimes taken at different times and employing consistent criteria to determine what constitutes a federal crime. Obtaining comparable data, however, is almost impossible. Nonetheless, a careful survey of laws enacted by Congress does permit reasonable estimation of the number of federal criminal offenses. This report follows from other attempts to count the number of federal criminal offenses or to measure their growth. The most complete count of federal crimes, done by the U.S. Department of Justice (DOJ) in the early 1980s, put the number at 3,000. A 1998 report by a task force of the American Bar Association relied on the DOJ figure and other data to measure the growth of 206 In a 2004 federal criminal law but did not itself actually provide a count of federal crimes. Federalist Society monograph building on the DOJ and ABA reports, I counted new federal crimes enacted following the point at which the ABA report finished its data collection at the close of 1996. That report estimates that there were 4,000 federal crimes at the start of 2000.207 This report updates that total through 2007, finding 452 additional crimes created since 2007, for a total of at least 4,450 federal crimes.208 The growth of federal crimes continues unabated. The increase of 452 over the eight-year period between 2000 and 2007 averages 56.5 crimes per year—roughly the same rate at which Congress created new crimes in the 1980s and 1990s. So for the past twenty-five years, a period over which the growth of the federal criminal law has come under increasing scrutiny, Congress has been creating over 500 new crimes per decade. That pace is not steady from year to year, however; the data indicate that Congress creates more criminal offenses in election years.

206

Task Force on Federalization of Criminal Law, American Bar Association, THE FEDERALIZATION OF CRIMINAL LAW (1998) [hereinafter ABA Report].

207

John Baker, Federalist Society for Law and Public Policy, MEASURING LEGISLATION (2004) [hereinafter Federalist Society Report]. 208

THE

See app.

PART 3. THE PURPOSE88 OF THIS CASE

EXPLOSIVE GROWTH

OF

FEDERAL CRIME

PART 3. THE PURPOSE OF THIS CASE This study reviews the crimes newly enacted by Congress in order to: (1) update the number of federal crimes; (2) measure whether Congress continues to pass federal criminal laws at the same pace found by the ABA report; and (3) determine whether the new crimes contain a mens rea requirement, a key protection of the common law that protects those who did not intend to commit wrongful acts from unwarranted prosecution and conviction. Previous Studies Counting the number of federal crimes might seem to be a rather straightforward matter: Simply count all the statutes that Congress has designated as crimes. After all, unlike state law, federal law has never had a common law of crimes. Locating purely common-law crimes requires consulting judicial opinions, and even then, determining what is and is not a common-law crime 209 Given that federal courts lack common-law jurisdiction over crimes, all federal is problematic. 210 So it would seem that counting statutes should be an easy task. crimes must be statutory. Making an accurate count is not as simple as counting the number of criminal statutes, however. As the American Bar Association’s Task Force on the Federalization of Crime stated, “So large is the present body of federal criminal law that there is no conveniently accessible, complete list of federal crimes.”211 Not only is the number of statutes large, but the statutes are scattered and 212 The situation presents a two-fold challenge: complex. (1) determining what statutes count as crimes and (2) determining whether, as to the different provisions within a section or subsection, there is more than a single crime, and if so, how many. The first difficulty is that federal law contains no general definition of the term “crime.” Title 18 of the U.S. Code is designated “Crimes and Criminal Procedure,” but it is not a comprehensive criminal code. Title 18 is simply a collection of statutes. It does not provide a definition of crime. Until repealed in 1984, however, Section 1 of Title 18 began by classifying offenses into felonies and misdemeanors, with a sub-class of misdemeanors denominated “petty offenses.” Later amendments re-introduced classifications elsewhere in Title 18.213 The repeal and later amendments, however, were tied to the creation of the United States Sentencing Commission, and this new focus on sentencing has done nothing to solve—and probably has exacerbated—the problem of determining just what should be counted as “crimes.” That issue is particularly pertinent for offenses not listed in Title 18. Title 18 does contain many, but not all, of the federal crimes. Other offenses carrying criminal penalties are distributed throughout the other 49 titles of the U.S. Code. 214 These scattered criminal provisions are usually regulatory or tort-like, sometimes making them difficult to identify. 209

See Wayne R. LaFave, 1 SUBSTANTIVE CRIMINAL LAW § 2.1(e) (2003).

210

United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812).

211

ABA Report, supra note 1, at 9.

212

The ABA report explained:

213

See 18 U.S.C. § 3581 (classification of felonies, misdemeanor and infraction in terms of sentencing); 18 U.S.C. § 3156(3) (definition of “felony” for purposes of release and detention). 214

There are 50 titles, but Title 34 currently contains no un-repealed statutes.

PART 3. THE P89 URPOSE OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE The second problem is that, whether it is codified in Title 18 or some other title, one statute does not necessarily equal one crime. Often, a single statute contains several crimes. Determining the number of crimes contained within a single statute is a matter of judgment. Different people may make different judgments about the number of crimes contained in each statute, depending on the criteria they employ. In the absence of a definition of crime, it is incumbent upon the compiler to explain the criteria employed in making the count. Not intending to re-invent the criteria, I have looked to previous attempts to count the number of federal crimes. The most comprehensive effort to count the number of federal crimes was undertaken by the Office of Legal Policy (OLP) of the U.S. Department of Justice in early 1983 in connection with efforts to pass a comprehensive federal criminal code. Ronald Gainer, who oversaw the study, later published an article entitled “Report to the Attorney General on Federal Criminal Code 215 The DOJ’s count involved a review by hand of every page of the U.S. Code, and it Reform.” put the number at “approximately 3,000 federal crimes,” a figure which has been much cited 216 That number includes all federal offenses in the U.S. Code carrying a criminal penalty since. enacted through early 1983. In a 1998 article, “Federal Criminal Code Reform: Past and Future,” Gainer cited the figure of “approximately 3,300 separate provisions that carry criminal sanctions for their violation.”217 This number was based on a count done by the Buffalo Criminal Law Center “employing somewhat different measures” than the DOJ survey.218 This survey apparently considered only “separate provisions” as constituting crimes, while the methodology used in the DOJ count often found more than one crime in a single provision. In 1998, the American Bar Association’s Task Force on the Federalization of Criminal Law, chaired by former Attorney General Edwin Meese and containing this author as a member, issued a report entitled “The Federalization of Criminal Law.” This report was concerned with the growth in federal criminal law and thus faced the problem of identifying the number of federal crimes enacted over periods of time. The Task Force decided, however, not to “undertake a section by section review of every printed federal statutory section,” which would have been too “massive” an undertaking for the Task Force’s “limited purpose.”219 The ABA report did conclude that the 3,000 number was “surely outdated by the large number of new federal crimes enacted in the 16 or so years since its estimation.”220 The ABA report did not attempt a comprehensive count like DOJ, but it did provide a good measure of the growth of federal criminal law, which demonstrated that the number of federal crimes as of the end of 1996 greatly exceeded 3,000. Although the ABA Report did not actually count the number of crimes, it drew the following dramatic conclusion from the available data:

215

Ronald Gainer, REPORT TO THE ATTORNEY GENERAL ON FEDERAL CRIMINAL CODE REFORM, 1 Crim. L.F. 99 (1989).

216

Id. at 110.

217

Ronald Gainer, FEDERAL CRIMINAL CODE REFORM: PAST AND FUTURE, 2 Buff. Crim. L. Rev. 46, 55 n.8 (1998) (emphasis added).

218

Id.

219

ABA Report, supra note 1, at 92.

220

Id.at 94.

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PART 3. THE PURPOSE OF THIS CASE The Task Force’s research reveals a startling fact about the explosive growth of federal criminal law: More than 40% of the federal provisions enacted since the Civil War have been enacted since 1970.221 But the ABA report’s approach actually underestimates the increase in the number of federal crimes. According to Gainer, the DOJ effort to count crimes discovered that any attempt to count using computer searches would consistently undercount crimes. This is why the DOJ did a complete hand count of federal crimes, which meant reading through the many thousands of pages of the U.S. Code. The ABA report, for its purposes, instead conducted a Westlaw search of the statutes “us[ing] the key words ‘fine’ and ‘imprison’ (including any variations of those words such as ‘imprisonment’).”222 As explained below, this strategy likely missed many crimes. Methodology This current report and the accompanying count were developed against the background of the DOJ and the ABA Task Force reports. Like the ABA Task Force, my researchers and I could not review thousands of pages of statutes in order to complete a count as comprehensive as the DOJ’s, nor even review all the new crimes enacted since the DOJ completed its count in 1983. The ABA report did not actually include a count, and even the comprehensive count by the DOJ report gave the number in terms of an estimate. In part, that was due to the fact that the DOJ count employed debatable criteria about how many crimes are contained in a particular statute. Nevertheless, our count adhered to the criteria used in the DOJ count. For the current count, we reviewed legislation from the beginning of 2000 through the end of 2007. Building on the data in the 1998 ABA report, which run through 1996, my previous report for the Federalist Society estimated that the U.S. Code contained 4,000 crimes as of the beginning of 223 For the present report, we conducted a comprehensive search of statutory provisions 2000. enacted from the beginning of 2000 through 2007. Like the DOJ and ABA reports, this and my previous report consider only statutes, not regulations. As the ABA report notes, if regulations were included, that would have added, as of the end of 1996, an additional 10,000 or so crimes.224 Another report from the early 1990s, however, estimated that “there are over 300,000 federal regulations that may be enforced criminally.”225 For purposes of continuity, this report, like my previous one, relied on Westlaw searches using the same terms as the ABA report. For this report, however, we went beyond the terms used by the ABA report and found more crimes in amendments to existing laws that did not contain those search terms. Just searching the database of statutes passed each year using the terms “fine!” and “imprison!”—the ABA Report approach—does not yield a comprehensive list of crimes because it does not capture statutory amendments that do not contain either of those terms. For example, an amendment to an existing law might revise the statute by adding an additional subsection. This subsection, due to its placement in the existing statute, might create a new crime, although it does 221

Id. at 7 (emphasis in the original); see also id. at n.9 (“[M]ore than a quarter of the federal criminal provisions enacted since the Civil War have been enacted within the sixteen year period since 1980”). 222

ABA Report, supra note 1, at app. C, 91, n.1.

223

The Federalist Society Report looked at crimes enacted through 2003, but only drew conclusions about the number of crimes as of the beginning of 2000. See FEDERALIST SOCIETY REPORT, supra note 2, at 8. 224

See ABA Report, supra note 1, at 10.

225

John C. Coffee, Jr., DOES “UNLAWFUL” MEAN “CRIMINAL”?: REFLECTIONS ON THE DISAPPEARING TORT/CRIME DISTINCTION 71 B.U. L. Rev. 193, 216 (1991).

IN AMERICAN LAW,

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PART 3. THE PURPOSE OF THIS CASE not include either “fine!” or “imprison!.” Therefore, after using the search terms “fine!” and “imprison!,” the search proceeded to the “Historical Notes” field for each of the years from 2000 through 2007. This produced several hundred hits for each year (the highest being about 690 in a single year), which yielded a number of crimes which were not captured just using the ABA search terms. In this report, we employed the DOJ report’s methodology for counting the number of new crimes contained within a single statute. Under the DOJ approach, statutes containing more than one act corresponding to a common-law crime were determined to have as many crimes as there were common-law crimes in the statute.226 On the other hand, the DOJ counted a statute as containing only one crime, even though it contained multiple acts, if those acts did not constitute common-law crimes. Specifically, the criteria employed in this report to distinguish whether the new statutory language did or did not create a new crime are as follows: • Each act stated in terms corresponding to the act element of a traditional or

common-law crime (e.g., theft, burglary, fraud) is counted separately as one crime. Thus, multiple crimes may be listed in a single section or subsection. • Multiple acts unrelated to traditional crimes, when stated in the same section or

subsection, are treated as different ways of committing one crime. Also, elaborations on traditional crimes (e.g., theft by fraud, misrepresentation, forgery) are counted as one crime only if listed together in one section or subsection.

• If the same or similar non-traditional crimes are listed in separate sections or

sub-sections, each section or subsection is counted as a separate crime. Attempts and conspiracies to commit a crime were counted as distinct crimes. • The number of crimes listed for each section or subsection indicates only the

number of crimes added that year by a statute or amendment, which does not necessarily equal the total number of crimes in those sections or subsections originally enacted in an earlier year.

The Number of Federal Crimes My 2004 report stated that “Conservatively speaking, the U.S. Code contains at least 3,500 offenses which carry criminal penalties. More realistically, the number exceeds 4,000.” The estimate of over 4,000, as of the beginning of 2000, rested on an evaluation of the information already covered by the counts conducted by DOJ and the ABA and new data for the years 1997 through 1999. Since the start of 2000, Congress has created at least 452 new crimes. So the total number of federal crimes as of the end of 2007 exceeds 4,450. Ninety-one of the 452 were contained in new laws that created 279 new crimes, and the remaining were contained in amendments to existing 227 The total of 452 new crimes breaks down by year as follows: 65 for 2000; 28 for 2001; laws. 82 for 2002; 51 for 2003; 48 for 2004; 13 for 2005; 145 for 2006; 20 for 2007. The Appendix to this report lists all the federal statutes containing new crimes. The data suggest a potential electoral motivation behind the growth of the federal criminal law. Except for in 2003, the number of new crimes enacted in election years significantly surpass 226

Telephone interview with Ronald Gainer (Dec. 29, 2003).

227

The ABA report does not include a review of amendments. See ABA Report, supra note 1, at 8 n.10.

PART 3. THE PURPOSE92 OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE those in non-election years. While this may be due to the two-year cycle in Congress and the time it takes to pass a bill, work done on legislation in a previous Congress need not be completely duplicated. Bills are, for example, frequently re-introduced at the commencement of the a new Congress. This study did not perform a statistical analysis of the number of crimes created in various discrete areas of substantive law. My 2004 report, however, concluded that a large percentage of the new crimes came in the environmental area. For the years 2000 through 2007, many of the new crimes were in the following areas: • National security, i.e., aircraft security, protection of nuclear and other facilities,

counterfeit/forged insignia and documents;

• Terrorism and support for terrorists; • Protection of federal law enforcement; • Protection of members of the armed forces; • Protection of children from sexual exploitation; and • Controls on the Internet.

Not surprisingly, many of the new crimes were enacted in response to the events of 9/11. Interpretation: A Troubling Trend As practitioners in the field know well, the number of criminal statutes does not tell the whole story. Measuring the rate of growth certainly confirms that Congress continues to enact criminal statutes at a brisk pace. But no matter how many crimes Congress enacts, it remains for federal prosecutors to decide which statutes to invoke when seeking an indictment. 228

which they Federal prosecutors have certain favorites, notably mail and wire fraud statutes, use even when other statutes might be more applicable. That, of course, does not mean that the addition of little-used crimes is unimportant. The federal government is supposedly a government of limited powers and, therefore, limited jurisdiction. Each new crime expands the jurisdiction of federal law enforcement and federal courts. Regardless of whether a statute is used to indict, it is available to establish the legal basis upon which to show probable cause that a crime has been committed and, therefore, to authorize a search and seizure. The availability of more crimes also affords the prosecutor more discretion and thereby greater leverage against defendants. Increasing the number and variety of charges tends to dissuade defendants from fighting the charges, because they usually can be “clipped” for something. Moreover, the expansion of federal criminal law continues to occur even without new legislation. Federal prosecutors regularly stretch their theories of existing statutes. For example, federal courts often cooperate with prosecutors by making new laws apply retroactively. What Judge John Noonan wrote in 1984 about bribery and public corruption continues to be generally true, namely that federal prosecutors and federal judges have been effectively creating a common law 229 of crimes through expansive interpretations. Ultimately, the reason the ABA report and this report track the increase of federal crimes is to provide some measure of the extent to which federal criminal law and its enforcement are overreaching constitutional limits. The Supreme Court has admonished Congress twice within recent 228

18 U.S.C. §§ 1341, 1343 (mail fraud and wire fraud, respectively).

229

See John Noonan, BRIBES (1984) at 585–86, 620.

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PART 3. THE PURPOSE OF THIS CASE years, when it declared federal statutes unconstitutional, that it lacks a “plenary police power.”230 The statistical measures in this and the ABA report indicate that those cases have not dissuaded Congress from continuing to pass criminal laws at the same pace. Judicial Interpretation of Mens Rea A mens rea requirement has long served an important role in protecting those who did not intend to commit wrongful acts from unwarranted prosecution and conviction. Mens rea elements, such as specific intent, willful intent, and the knowledge of specific facts constituting the offense, are a part of nearly all common-law crimes. These protections were generally codified into statutes, as state legislatures adopted criminal codes, and the practice was continued in the creation of statutes defining new crimes in addition to those recognized historically by the common law. If anything, mens rea requirements are more important today than in the past. Historically, nearly all crimes concerned acts that were malum in se, or wrong in themselves, such as murder, battery, and theft. Today, however, new crimes and petty offenses created by statute almost always concern acts that are malum prohibitum, or wrong only because it is prohibited. This category includes petty offenses and crimes like marketing medicines not approved by the FDA and shipping flammable materials without a sticker on the box. For malum prohibitum crimes and petty offenses, mens rea requirements can serve to protect individuals who have accidentally or unknowingly violated the law or, in some cases, were unaware that a law covered their particular conduct. For the period 2000 through 2007, the great majority of sections or subsections appeared to have a mens rea requirement, often employing the term “knowingly” or “willfully.” Nevertheless, 55 statutory provisions (some of which contain more than one crime) contained no reference to a mens rea requirement. Of these 55, 17 are new and 38 amend existing statutes. That means that 17 out of the total of 91 new criminal statutes did not specify a mental element. The Appendix of this report identifies the mens rea element or the lack thereof for each of the 237 statutory provisions containing new crimes passed by Congress. This count concerning mens rea is somewhat tentative, for several reasons. For example, whether an offense has a mens rea requirement may depend on a judgment about the number of crimes contained in a particular section or subsection. Consider, for example, 18 U.S.C. § 1960, which prohibits “unlicensed money transmitting businesses” and was amended in the wake of 9/11. The statute contains several subsections. The 2001 amendments added a new subsection expanding the definition of “unlicensed money transmitting business.” The added section contains a knowledge requirement. In our count, the amendment does not count as adding a crime. While the amendment adds a mens rea, it also drops a mens rea requirement from an existing provision. 231 If 18 U.S.C. § 1960 is counted as just one crime or if only the newly added subsection is considered, then the crime carries a mens rea. That means, however, that the elimination of the one mens rea requirement may escape notice. Once again, what counts as a crime dictates conclusions about what Congress has done in passing a statute—that is, whether it has or has not eliminated a mens rea requirement. The linkage between the mens rea issue and meaning of “crime” goes to the heart of the moral foundation of criminal law, as Professor John Coffee has explained:

230

United States v. Lopez, 514 U.S. 549, 566 (1995); United States v. Morrison, 529 U.S. 598, 618 (2000).

231

Previously, the relevant portion of the provision (18 U.S.C. § 1960(b)(1)(A)) read “is intentionally operated”; it now reads “is operated.”

PART 3. THE PURPOSE94 OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE [T]o define the proper sphere of the criminal law, one must explain how its purposes and methods differ from those of tort law. Although it is easy to identify distinguishing characteristics of the criminal law—e.g., the greater role of intent in the criminal law, the relative unimportance of actual harm to the victim, the special character of incarceration as a sanction, and the criminal law’s greater reliance on public enforcement—none of these is ultimately decisive. Rather the factor that most distinguishes the criminal law is its operation as a system of moral education and socialization. The criminal law is obeyed not simply because there is a legal threat underlying it, but because the public perceives its norms to be legitimate and deserving of compliance. Far more than tort law, the criminal law is a system for public communication of values. 232 When the traditional requirement of mens rea is weakened, then, the unique features of the criminal law are undermined, to the great detriment of society. It is troubling that, in a significant proportion of new criminal statutes enacted in recent years, Congress has neglected this crucial component that cuts to the heart of what it means to be “guilty” of a crime. Conclusion As is repeated throughout this report, one’s opinion about what counts as a federal crime drives the count of federal crimes. Simply focusing on the penalty may not be sufficient because one penalty often applies to several acts. While federal law classifies crimes by penalties, federal law does not provide a clear definition of crime that would allow distinctions among separate criminal acts. That makes any count subject to argument. At the very least, however, this report can conclude the following: Based on the growth of federal crime legislation since the count in the early 1980s by the Office of Legal Policy in the Department of Justice, the United States Code today includes at least 4,450 offenses which carry a criminal penalty, and the rate at which Congress passes new crimes has not waned since at least the 1980s. Appendix The Appendix to this report, which lists and describes the criminal statutory provisions enacted from 2000 through 2007, is available at

http://www.heritage.org/Research/LegalIssues/upload/2008_Baker_appendix.pdf.

B. The Over-Criminalization of Social and Economic Conduct Source: www.OverCriminalization.com (A product of The Heritage Foundation.)233 The origin of modern criminal law can be traced to early feudal times. From its inception, the criminal law expressed both a moral and a practical judgment about the societal consequences of certain activity: to be a crime, the law required that an individual must both cause (or attempt to cause) a wrongful injury and do so with some form of malicious intent. Classically, lawyers capture this insight in two principles: in order to be a crime there must be both an actus reus (a bad act) and a culpable mens rea (a guilty mind). At its roots, the criminal law did not punish merely bad thoughts (intentions to act without any evil deed) or acts that achieved unwittingly wrongful ends but without the intent to do so. The former were for resolution by ecclesiastical 232

Coffee, supra note 20, at 193–194 (emphasis added) (citation omitted).

233

For more information see Paul Rozenberg, THE OVER-CRIMINALIZATION OF SOCIAL AND ECONOMIC CONDUCT, The Heritage Foundation Legal Memorandum: Executive Summary. No. 7. April 17, 2003, at: http://www.overcriminalized.com/pdfs/lm_07.pdf. Paul Rosenzweig is Senior Legal Research Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation and Adjunct Professor of Law at George Mason University.

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PART 3. THE PURPOSE OF THIS CASE authorities and the latter were for amelioration in the tort system. In America today, this classical understanding of criminal law no longer holds. The requirement of an actual act of some form is fundamental. As an initial premise, AngloAmerican criminal law does not punish thought. For a crime to have been committed there must, typically, be some act done in furtherance of the criminal purpose. The law has now gone far from that model of liability for an act and, in effect, begun to impose criminal liability for the acts of another based upon failures of supervision that are far different from the common law’s historical understanding. Similarly, the law historically has required that before an individual is deemed a criminal he must have acted with an intent to do wrong. Accidents and mistakes are not considered crimes. Yet contemporary criminal law punishes acts of negligence and even acts which are accidental. In the regulatory context, as Justice Potter Stewart has noted, there is, in effect, a standard of nearabsolute liability.

Expanded Reach of Criminal Law. To these fundamental changes in the nature of criminal liability one must also add significant changes in the subject matter of criminal law. At its inception, criminal law was directed at conduct that society recognized as inherently wrongful and, in some sense, immoral. These acts were wrongs in and of themselves (malum in se), such as murder, rape, and robbery. In recent times the reach of the criminal law has been expanded so that it now addresses conduct that is wrongful not because of its intrinsic nature but because it is a prohibited wrong (malum prohibitum)--that is, a wrong created by a legislative body to serve some perceived public good. These essentially regulatory crimes have come to be known as “public welfare” offenses. Thus, today the criminal law has strayed far from its historical roots. Many statutes punish those whose acts are wrongful only by virtue of legislative determination. The distortion of the classical criminal law has arisen for a variety of reasons (some of which may have been accompanied by benign motives). For example, the Enron scandal and similar acts of intentional corporate fraud have led to overly broad reform proposals that may trap honest but unsophisticated corporate managers. But whatever the cause, the distortion is not without its consequences. The landscape of criminal law today is vastly different from what it was 100 years ago--so much so as to be almost unrecognizable.

Lack of Judicial Constraint. Because the courts have deliberately chosen a limited, almost self-abnegating role in constraining the use of criminal sanctions, no effective judicial constraint currently limits the extent to which individual conduct that bears no direct causal relationship to a societal harm may be criminalized. Nor is there a limit on the extent to which, in the social and economic context, the legislatures may dispense with the traditional conceptions of mens rea. The consequences of this are two-fold: a pathological legislative approach to criminal law and an excess of prosecutorial discretion. The legislative impetus is clear--there is a “market” of public approval for more criminal laws and no effective consideration of countervailing costs to society. And in the absence of any judicial check on this legislative trend, the result is a wholesale transfer of power from elected legislative officials to prosecutors who, in many instances, are unelected and not responsible to the public. Where once the law had strict limits on the capacity of the government to criminalize conduct, those limits have now evaporated. Society has come, instead to rely on the conscience and circumspection in prosecuting officers. Or, as the Supreme Court said in United States v. Dotterweich, Americans are obliged to rely only on “the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries” to determine criminal conduct. In effect, the legislative branch has transferred a substantial fraction of its authority to regulate PART 3. THE PURPOSE96 OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE American social and economic conduct to those who have no expertise in the matter: prosecutors, trial judges, and jurors who make decisions on criminalizing conduct without any ability to consider the broader societal impacts of their decisions. Where once, to be a criminal, an individual had to do an act (or attempt to do an act) with willful intent to violate the law or with knowledge of the wrongful nature of his conduct, today it is possible to be found criminally liable and imprisoned for a substantial term of years for the failure to do an act required by law, without any actual knowledge of the law’s obligations and with no wrongful intent whatsoever. These developments are advanced in the name of the “public welfare”--an express invocation of broader social needs at the expense of individual liberty and responsibility. It is, ultimately, the triumph of a Benthamite utilitarian conception of the criminal law over the morally grounded understanding of criminal law advanced by William Blackstone. One may, and indeed one should, doubt the wisdom of such a course. Given how the criminal law has developed, a free people are constrained to ask the question: Are broader social needs well served when individual liberty and responsibility suffer?

C. The Consequences of Judicial Inaction234 In effect, then, the courts have deliberately chosen a limited, almost self-abnegating role in constraining the use of criminal sanctions. As it stands today, no effective judicial constraint currently limits the extent to which individual conduct that bears no causal relationship to a societal harm may be criminalized. Nor is there a limit on the extent to which, in the social and economic context, the legislatures may dispense with the traditional conceptions of mens rea. The consequences of this are two-fold: a pathological legislative approach to criminal law and an excess of prosecutorial discretion. As Professor William Stuntz has noted, American criminal law “covers far more conduct than any jurisdiction could possibly punish.”235 This wide span of American law is the product of institutional pressures that draw legislators to laws with broader liability rules and harsher sentences.236 The reason is the dynamic of legislative consideration: When a legislator is faced with a choice on how to draw a new criminal statute (either narrowly and potentially underinclusive or broadly and potentially overinclusive), the politics of the situation naturally cause the legislator to be overinclusive. Few, if any, groups regularly lobby legislators regarding criminal law and those that do more commonly seek harsher penalties and more criminal laws, rather than less. The political dynamic is exacerbated by the consideration (usually implicitly) of the costs associated with the criminal justice system. Broad and overlapping statutes with minimum obstacles to criminalization and harsh penalties are easier to administer and reduce the costs of the legal system. They induce guilty pleas and produce high conviction rates, minimizing the costs of the cumbersome jury system and producing outcomes popular with the public.23790 The final piece of the equation is legislative reliance on the existence of prosecutorial discretion. Broader and harsher statutes may produce bad outcomes that the public dislikes, but blame for those outcomes will lie with prosecutors who exercise their discretion poorly, not the legislators who passed the underlying statute. As a consequence, every incentive exists for criminal legislation to be as expansive as possible. 234

Paul Rozenberg, THE OVER-CRIMINALIZATION OF SOCIAL AND ECONOMIC CONDUCT, The Heritage Foundation Legal Memorandum: Executive Summary. No. 7. April 17, 2003, at: http://www.overcriminalized.com/pdfs/lm_07.pdf. 235

William J. Stuntz, THE PATHOLOGICAL POLITICS OF CRIMINAL LAW, 100 Mich. L. Rev. 505, 507 (2001).

236

Id. at 510.

237

Id. at 600.

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PART 3. THE PURPOSE OF THIS CASE And in the absence of any judicial check on this legislative trend, the result is a wholesale transfer of power from elected legislative officials to prosecutors who, in many instances, are unelected and not responsible to the public. Where once the law had strict limits on the capacity of the government to criminalize conduct, those limits have now evaporated. Society has come, instead to rely on the “conscience and circumspection in prosecuting officers.”238 Or, as the Supreme Court said in Dotterweich, Americans are obliged to rely only on “the good sense of prosecutors, the wise guidance of trial judges, and the ultimate judgment of juries” to determine criminal conduct. 23992 In effect, the legislative branch has transferred a substantial fraction of its authority to regulate American social and economic conduct to those who have no expertise in the matter: prosecutors, trial judges, and jurors who make decisions on criminalizing conduct without any ability to consider the broader societal impacts of their decisions.

Conclusion And so, the criminal law has come to this odd and unusual point in its development. Where once, to be a criminal, an individual had to do an act (or attempt to do an act) with willful intent to violate the law or with knowledge of the wrongful nature of his conduct, today it is possible to be found criminally liable and imprisoned for a substantial term of years for the failure to do an act required by law, without any actual knowledge of the law’s obligations and with no wrongful intent whatsoever. These developments are advanced in the name of the “public welfare”—an express invocation of broader social needs at the expense of individual liberty and responsibility. It is, ultimately, the triumph of a Benthamite utilitarian conception of the criminal law over the morally grounded understanding of criminal law advanced by Blackstone. One may, and indeed one should, doubt the wisdom of such a course. Given how the criminal law has developed, a free people are constrained to ask the question: Are broader social needs well served when individual liberty and responsibility suffer?

D. Recognizing the Need for Change240 Excerpt from

A MODEL FOR LEADING CHANGE: MAKING ACQUISITION REFORM WORK Report of the Military Research Fellows Lieutenant Colonel Charles L. Beck, Jr., US Air Force Lieutenant Colonel Nina Lynn Brokaw, US Army, Commander Brian A. Kelmar, US Navy DSMC 1996-1997 Defense Systems Management College, December 1997 One of the most important roles of the leadership is recognizing the need for change. This sounds obvious, since change could not be implemented unless you recognize the need for it, but many 238

Nash v. United States, 229 U.S. 373, 378 (1913).

239

Dotterweich, 320 U.S. at 285.

240

Pp. 3-5 to 3-6. Footnotes omitted. Published by the Defense Systems Management College Press, Fort Belvoir, Virginia 22060_5565. (Disclaimer: This book was produced in the Department of Defense (DoD) school environment in the interest of academic freedom and the advancement of national defense_related concepts. The views expressed in this book are those of the authors and do not reflect the official position or policy of the DoD or those of the United States Government). www.dau.mil/pubs/mfrpts/pdf/res97.pdf

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PART 3. THE PURPOSE OF THIS CASE researchers point out that this recognition can be one of the hardest aspects of change. The “Boiling Frog” experiment has been used to illustrate the difficulty of recognizing the need for change: “The label comes from a classic physiological response experiment involving two live frogs, a pan filled with water, and a bunsen burner. The first frog is placed in a pan of cold water. The pan is then placed on a bunsen burner and the heat is turned up very gradually. If the change in temperature is gradual enough, the frog will sit in the pan until it boils to death. The creature could have jumped out of the pan at any time, but the change in its environment happened so gradually that no response was triggered in the frog and death ensued If we take the remaining frog and place it in a pan of water that is already boiling, it will not sit there but will promptly jump out and survive. We can clearly continue to refine this experiment so that we can discover how great the change has to be in a given time period in order to get the frog to respond, but the analogy is clear.” [Tichy and Devanna, Transformational Leader,241 44.] Organizations become boiled frogs because they do not recognize the changes in their environment in time to react. There are numerous examples of companies that have not recognized the need for change. The business news regularly carries stories of large corporations losing market share and profits, while companies in the same line of business are making record profits. The companies that are doing poorly may have failed to recognize the need for change. As illustrated by the boiling frog phenomenon, these organizations are slow to realize that a change is needed. The leaders of the organization must recognize and believe in the need for change before it is too late. The senior leadership may not be the first to recognize the need for change, but they must be sold on it and make a commitment to its support. Mr. William J. Trahant of Coopers and Lybrand expresses the need for a clear reason for change: “No organization changes, absent a business imperative for the change. Without this business imperative, the organization can implement a lot of organizational good ideas, but these become training exercise, without resulting in measurable change. This training is good, but will not result in change.”

Levels of Urgency for Change Recognition of the need for change is tied in to the level of urgency for change. The less urgent and obvious the need for change, the harder it is to see that change is needed, as was illustrated by the boiling frog analogy. Organizational change theorists are in general agreement that there must be a justifiable reason for change, and that the reason must be communicated to and believed by the workforce. However, there is disagreement as to the level of urgency that must be conveyed. Some researchers feel that successful organizational change can only occur if there is a strong sense of urgency. Others lean more toward a “business imperative” to generate change. Regardless of the level of urgency they advocate, almost all researchers agree that the less urgent the need, the harder it will be to recognize and convince others of the need for change. Using Lewin’s model, the less urgent the need, the harder it will be to create the dissatisfaction with the status quo that will unfreeze the organization.

241

http://www.wiley.com/cda/product/0,,0471623342%7Cdesc,00.html. “How to transform an organization, based on fascinating, inside stories of major industrial companies and service companies (including Fortune 500 companies), aggressive smaller firms, and European companies. Provides insights into the styles and philosophies of leaders and executives who have transformed their companies, whether big or small, and offers practical advice on middle management’s role in transforming large organizations.”

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E. Treason by the Federal Courts over the Full Scope of the Second Amendment THE SIGNIFICANCE OF EMANCIPATION IN THE WEST INDIES Frederick Douglass. [1857] (1985). Speech, Canandaigua, New York, August 3, 1857242 “Let me give you a word of the philosophy of reform. The whole history of the progress of human liberty shows that all concessions yet made to her august claims, have been born of earnest struggle. The conflict has been exciting, agitating, all-absorbing, and for the time being, putting all other tumults to silence. It must do this or it does nothing. If there is no struggle there is no progress. Those who profess to favor freedom and yet depreciate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightening. They want the ocean without the awful roar of its many waters.” “This struggle may be a moral one, or it may be a physical one, and it may be both moral and physical, but it must be a struggle. Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress. In the light of these ideas, Negroes will be hunted at the North, and held and flogged at the South so long as they submit to those devilish outrages, and make no resistance, either moral or physical. Men may not get all they pay for in this world; but they must certainly pay for all they get. If we ever get free from the oppressions and wrongs heaped upon us, we must pay for their removal. We must do this by labor, by suffering, by sacrifice, and if needs be, by our lives and the lives of others.” Frederick Douglass, 1857

WHY WE FIGHT: THEORIES OF HUMAN AGGRESSION AND CONFLICT, David Churchman, University Press of America, Lanham, Maryland (2005), ISBN 0-7618-3306-4 (paperback), The Conclusion to “Chapter 3: The Nature of Man” The question of whether man is aggressive or peaceful by nature or by nurture has long been disputed, is not yet resolved, and may never be. The best evidence suggests that neither position is correct –that the question is a false dichotomy and the two interact to produce the incredible individual and cultural variety seen across human history. Our ancestors provide controversial evidence as to our evolution from aggressive hunters, peaceful gegetarians, or opportunistic scavengers. Our biology, particularly our hormones and differences between the sexes, provide insights. Fundamental drives, to pass on our genes, to defend territory, to achieve status, and to establish an individual identity, have explanatory power. Furthermore, like other species, we resolve or manage many of our disputes by methods other than fighting, most often vebally. Conflict is common but it is worth remembering that people are more often altruistic and cooperative than warlike and murderous in their relations with one another.

242

In THE FREDERICK DOUGLASS PAPERS. SERIES ONE: SPEECHES, DEBATES, AND INTERVIEWS. Volume 3: 1855-63. Edited by John W. Blassingame. New Haven: Yale University Press, p. 204.

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PART 3. THE PURPOSE OF THIS CASE The Conclusion to “Chapter 4: Aggression and the Mind” Anger might stimulate an impetuous courage, but of all degrees of courage, that is the least effective. By outrage, I mean taking moral offense at something. . . . Outrage, which our sense of duty summons us to redress, on the other hand, can find expression in a wider range of behavior. We can use expressions that anger uses, or we can purposefully go about redressing the offense in quiet, civil, ways, our comportment no different from what it is in other endeavors. . . . Anger and the courage it can spark are depleted rather quickly. We blow up, speak our piece, swing our fist until retribution is accomplished, and then we move on. . . . Outrage, if we have a sense of duty, endures until the wrong is righted, as can the courage needed to accomplish the task. Note that the Frederick Douglass in 1857 (pre-Civil War era) and David Churchman 148 years later in 2005 discuss generaly the same subject matter: human reactions to arbitrary aggressive behavior under various names, i.e., bullying, verbal abuse, harassment, tyranny, fascism, judicial tyrants and despots. “Outrage, if we have a sense of duty, endures until the wrong is righted, as can the courage needed to accomplish the task” best describes my six years of litigation in the federal courts facing hostile judges with political ideologies against the Second Amendment and/or against unrepresented civil plaintiffs or both. And here I am again standing up to those same hostile judges telling them to kiss my ass in regard to their war against the Second Amendment. Now I may be a cynic about the U.S. Supreme Court’s opinion in the Heller case that the Second Amendment is an individual right regardless of the militia but they way I see it the U.S. Supreme Court Court realized that they we slicing off too many rights from the Bill of Rights too frequently to get away with nullifying the individual right of the Second Amendment. So, the U.S. Supreme Court threw a bone to the American People in the sytle of Marie-Antoinette’s “Let them eat cake” with their Second Amendment proclamation to distract the People from the dismal condition of their Bill of Rights. But how long with this facade stand? My cynicism is confirmed by two law review articles:

HELLER’S FUTURE IN THE LOWER COURTS, Glenn H. Reynolds & Brannon P. Denning, 102 Nw. U. L. Rev. Colloquy 406 (July 2008).243

TWO ESSAYS ON DISTRICT OF COLUMBIA V. HELLER Mark Tushnet, Harvard Public Law Working Paper No. 08-17, (“HELLER AND THE NEW ORIGINALISM,” forthcoming in the Ohio State Law Journal. And “HELLER AND THE PERILS OF COMPROMISE,” forthcoming in the Lewis & Clark Law Review).244 The federal courts have aggressively refused to exercise subject mater jurisdiction over the full scope of the Second Amendment. And as their aggression to divert the redress of grievances on the full scope of Second Amendment rights is judicial treason against the Constitution of the United States under Cohen v. Com. Wealth of Virginia 19 U.S. 264 (Wheat) (1821): It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it 243

http://www.law.northwestern.edu/lawreview/colloquy/2008/23/LRColl2008n23Reynolds&Denning.pdf

244

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1189494

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PART 3. THE PURPOSE OF THIS CASE be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.) Substituting a political ideology for the Rule of Law to deny triable cases that approach the limits of constitutional rights and freedoms is not what would be considered the best judgments of federal judges. In the landmark case Chisholm v. Georgia, 2 U.S. 419 (Dall.) (1793) the rightfully interpreted Article III, Section 2 of the Constitution of the United States that a State can be sued by a citizen of another State address the matter of treason against the Constitution in subtle terminology: Let a State be considered as subordinate to the People: But let every thing else be subordinate to the State. The latter part of this position is equally necessary with the former. For in the practice, and even at length, in the science of politics there has very frequently been a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means. As the State has claimed precedence of the people; so, in the same inverted course of things, the Government has often claimed precedence of the State; and to this perversion in the second degree, many of the volumes of confusion concerning sovereignty owe their existence. The ministers, dignified very properly by the appellation of the magistrates, have wished, and have succeeded in their wish, to be considered as the sovereigns of the State. This second degree of perversion is confined to the old world, and begins to diminish, even there: but the first degree is still too prevalent, even in the several States, of which our union is composed. By a State I mean, a complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. Chisholm v. Georgia, 2 U.S. at 455 (Dall.) (1793) I have already remarked, that in the practice, and even in the science of politics, there has been frequently a strong current against the natural order of things; and an inconsiderate or an interested disposition to sacrifice the end to the means. This remark deserves a more particular illustration. Even in almost every nation, which has been denominated free, the state has assumed a supercilious preeminence above the people, who have formed it: Hence the haughty notions of state independence, state sovereignty and state supremacy. In despotic Governments, the Government has usurped, in a similar manner, both upon the state and the people: Hence all arbitrary doctrines and pretensions concerning the Supreme, absolute, and incontrolable, power of Government. In each, man is degraded from the prime rank, which he ought to hold in human affairs: In the latter, the state as well as the man is degraded. Id. at 461. The U.S. Supreme Court did not hear a Second Amendment case since United States v. Miller 307 U. S. 174, 179 (1939). It was sixty-eight (68) years between Miller and Heller. It is ludicrous to believe that the People did not have enough interest to file Second Amendment cases, let alone appeal them to the Supreme Court of the United States. The set of cicrumstances implies a hostile federal judicial system dismissing cases at the District Courts and the Appeals Courts affirming the dismissals and the U.S. Supreme Court denying petitions for writ of certiorari during those 68 years. Isn’t that treason against the Constitution under Cohens? Of more recent years the federal courts and the U.S. Department of Justice perfidiously avoided addressing the full scope of the Second Amendment. Addressing the full scope of Second Amendment rights would compel the federal courts and the U.S. Department of Justice to concede that the full scope, i.e, the Holy Grail, of the Second Amendment embodies the right to openly keep and bear arms in intrastate, interstate, and maritime travel. They would also have to establish that the unorganized militia under 10 U.S.C. § 311(b)(1) has power reserved to the People under the Tenth Amendment and unenumerated rights under the Ninth Amendment to self-organize and self-regulate and operate autonomously as part of the vital checks and balance PART 3. THE PURPOSE102 OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE system of the Constitution of the United States without permission or authority from the State or from the United States. Note how meticulously the federal courts and the U.S. Department of Justice avoid addressing the scope of the Second Amendment in the following landmark cases:

(1). (August 13, 2008) United States v. Hollis Wayne Fincher, 8th Circuit, No. 07-2514 and No. 07-2888 In discussing the limitations the government can place on an individual’s right to possess firearms, the Court noted that Miller does not protect “weapons not typically possessed by lawabiding citizens for lawful purposes, such as short-barreled shotguns.” Heller, 128 S. Ct. at 2815-16. The Court also articulated a nonexclusive list of what it viewed to be acceptable government regulation of firearms: [T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” Id. at 2816-17 (internal citations and footnote omitted).

(2). (June 26, 2008) District of Columbia v. Heller, U.S. Supreme Court, No. 07290 at 52-53 and 54-56; 128 S.Ct. 2783; 554 U.S.478 F. 3d 370, affirmed. We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns. That accords with the historical understanding

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PART 3. THE PURPOSE OF THIS CASE of the scope of the right, see Part III, infra.245 III Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.246 We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, WORKS OF THE HONOURABLE JAMES WILSON 79 (1804); J. Dunlap, THE NEW-YORK JUSTICE 8 (1815); C. Humphreys, A COMPENDIUM OF THE COMMON LAW IN FORCE IN KENTUCKY 482 (1822); 1 W. RUSSELL, A TREATISE ON CRIMES AND INDICTABLE MISDEMEANORS 271–272 (1831); H. Stephen, SUMMARY OF THE CRIMINAL LAW 48 (1840); E. Lewis, AN ABRIDGMENT OF THE CRIMINAL LAW OF THE UNITED STATES 64 (1847); F. Wharton, A TREATISE ON THE CRIMINAL LAW OF THE UNITED STATES 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874). It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms ould be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right 245

Miller was briefly mentioned in our decision in Lewis v. United States, 445 U. S. 55 (1980), an appeal from a conviction for being a felon in possession of a firearm. The challenge was based on the contention that the prior feloy conviction had been unconstitutional. No Second Amendment claim was raised or briefed by any party. In the course of rejecting the asserted challenge, the Court commented gratuitously, in a footnote, that “[t]hese legislative restrictions on the use of firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected liberties. See United States v. Miller . . . (the Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id., at 65–66, n. 8. The footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at issue and was not argued.

246

We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

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PART 3. THE PURPOSE OF THIS CASE cannot change our interpretation of the right.

(3). (August 24, 2004) The Conclusion in the U.S. Department of Justice Memorandum Opinion for the Attorney General [John Aschroft] WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHTS.247 [W]e conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views. The text of the Amendment’s operative clause, setting out a “right of the people to keep and bear Arms,” is clear and is reinforced by the Constitution’s structure. The Amendment’s prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England’s Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion. Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment’s ratification, confirm what the text and history of the Second Amendment require.

(4). (December 5, 2002) Silveira, et al. v. Lockyer, 9th Cir. No. 01-15098. Despite the increased attention by commentators and political interest groups to the question of what exactly the Second Amendment protects, with the sole exception of the Fifth Circuit’s Emerson decision there exists no thorough judicial examination of the amendment’s meaning. The Supreme Court’s most extensive treatment of the amendment is a somewhat cryptic discussion in United States v. Miller, 307 U.S. 174 (1939). In that case, a criminal defendant brought a Second Amendment challenge to a federal gun control law that prohibited the transport of sawed-off shotguns in interstate commerce. The Court rejected the challenge to the statute. In the only and oft-quoted passage in the United States Reports to consider, albeit somewhat indirectly, whether the Second Amendment establishes an individual right to arms, the Miller Court concluded: In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Miller, 307 U.S. at 178. The Miller Court also observed more generally that “[w]ith the obvious purpose to assure the continuation and render possible the effectiveness of [state militias] the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.” Id. Thus, in Miller the Supreme Court decided that because a weapon was not suitable for use in the militia, its possession was not protected by the Second Amendment. As a result of its phrasing of its holding in the negative, however, the Miller Court’s opinion stands only for the proposition that the possession of certain weapons is not protected, and offers little guidance as to what rights the Second Amendment does protect. Accordingly, it has been noted, with good reason, that “[t]he Supreme Court’s jurisprudence on the scope 247

http://www.usdoj.gov/olc/secondamendment2.pdf

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PART 3. THE PURPOSE OF THIS CASE of [the Second] [A]mendment is quite limited, and not entirely illuminating.” Gillespie v. City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999). What Miller does strongly imply, however, is that the Supreme Court rejects the traditional individual rights view. The only post-Miller reference by the Supreme Court to the scope of the amendment occurred in Lewis v. United States, 445 U.S. 55, 65 n. 8 (1980), in which the Court noted, in a footnote dismissing a Second Amendment challenge to a felon-in-possession conviction, that the federal gun control laws at issue did not “trench upon any constitutionally protected liberties,” citing Miller in support of this observation. In that footnote, Lewis characterized the Miller holding as follows: “[T]he Second Amendment guarantees no right to keep and bear a firearm that does not have ‘some reasonable relationship to the preservation or efficiency of a wellregulated militia.’ “ Id. (quoting Miller, 307 U.S. at 178). The Lewis Court, like the Miller Court, phrased its statements in terms of what is not protected. Lewis does, however, reinforce the strong implication in Miller that the Court rejects the traditional individual rights model.

(5). (Revised October 18, 2001) United States v. Emerson, 5th Cir,, No. 9910331 (October 16, 2001) “We reject the collective rights and sophisticated collective rights models for interpreting the Second Amendment. We hold, consistent with Miller, that it protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here, that are suitable as personal, individual weapons and are not of the general kind or type excluded by Miller. However, because of our holding that section 922(g)(8), as applied to Emerson, does not infringe his individual rights under the Second Amendment we will not now further elaborate as to the exact scope of all Second Amendment rights.”

F. Eighth Circuit’s Faulty Logic on Machinegun Prohibition in United States v. Hollis Wayne Fincher, No. 07-2514 and No. 07-2888 (August 13, 2008) “Accordingly, under Heller, Fincher’s possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. Furthermore, Fincher has not directly attacked the federal registration requirements on firearms, and we doubt that any such attack would succeed in light of Heller. Accordingly, because [-8-] Fincher’s possession of guns is not protected by the Second Amendment, the district court did not abuse its discretion in preventing him from arguing otherwise to the jury.” United States v. Hollis Wayne Fincher, 8th Cir., No. 072514 and No. 07-2888 (Aug. 31. 2008), p. 7-8.

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PART 3. THE PURPOSE OF THIS CASE “There’s a mighty big difference between good, sound reasons and reasons that sound good.” Burton Hillis, cited in Laurence J. Peter, PETER’S QUOTATIONS: IDEAS FOR OUR TIME (1977), p. 425. Let’s begin the “Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use” line of logical reasoning with United States v. Miller, 307 U. S. 174 at 179 (1939):

THE POST HOC FALLACY OF LOGIC OVER MACHINEGUNS False Cause: This fallacy establishes a cause/effect relationship that does not exist. There are various Latin names for various analyses of the fallacy.

Event B.

Event C.

THE FALSE ARGUMENT: Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that . . .

. . . the government can prohibit for individual use.

THE INVERSE ARGUMENT: If machine guns were in common use by law-abiding citizens for lawful purposes (the Swiss model) they would not fall within the category of dangerous and unusual weapons and . . .

. . . the government could not prohibit machineguns for individual use.

Event A.

The U.S. Government created the condition that machinguns are not in common use by law-abiding citizens for lawful purposes by regulating and outlawing machineguns beginning with the National Firearms Act of 1934. The Federal Courts ignore Event A in order to maintain the Post Hoc fallacy of logic (the false cause) between Events B and C to defend the U.S. Government’s actions prohibiting possession and ownership of machineguns. The two most common include these types of logical false causes: (1) Non Causa Pro Causa (Literally, “Not the cause for a cause”): A general, catch-all category for mistaking a false cause of an event for the real cause. (2) Post Hoc, Ergo Propter Hoc (Literally: “After this, therefore because of this”): This type of false cause occurs when the writer mistakenly assumes that, because the first event preceded the second event, it must mean the first event caused the later one. Sometimes it does, but sometimes it doesn’t. It is the honest writer’s job to establish clearly that connection rather than merely assert it exists. Example: “A black cat crossed my path at noon. An hour later, my mother had a heartattack. Because the first event occurred earlier, it must have caused the bad luck later.” This is how superstitions begin.

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(1). Jacob Sullum, WHY NO RIGHT June 26, 2008

TO

MACHINE GUNS? ReasonOnline,

WHY NO RIGHT TO MACHINE GUNS? Jacob Sullum http://www.reason.com/blog/printer/127226.html June 26, 2008 Justice Antonin Scalia, writing for the majority in D.C. v. Heller, distinguishes between “unusual and dangerous weapons,” which can be banned without violating the Second Amendment, and weapons “in common use...for lawful purposes,” which can’t. The distinction is necessary partly to shore up his argument that “nothing in our precedents forecloses our adoption of the original understanding of the Second Amendment”—i.e., that it protects an individual right to arms. In particular, Scalia argues that the 1939 decision U.S. v. Miller, which gun control supporters (including the Heller dissenters) portray as endorsing the militia-only, collectiveright view of the Second Amendment, in fact “stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.” The law at issue in Miller was a federal ban on sawed-off shotguns, and the Court said “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” It therefore concluded that short-barreled shotguns are not covered by the Second Amendment, which applies only to the sort of weapons that citizens would bring with them for militia duty. Scalia is right that Justice John Paul Stevens’ reading of Miller—that the Second Amendment applies only to possession of guns while serving in the organized militia—is implausible. “Had the Court believed that the Second Amendment protects only those serving in the militia,” Scalia writes, “it would have been odd to examine the character of the weapon rather than simply note that the two crooks were not militiamen.” Nevertheless, for someone determined (as Scalia apparently is) to maintain existing federal gun laws, there are a couple of problems with accepting the Miller Court’s view of which weapons are covered by the Second Amendment. First, the Court’s assumption that short-barreled shotguns are not appropriate for military use was incorrect. Second, this test would mean that the Second Amendment covers machine guns, which also are banned by federal law.248 Scalia acknowledges this difficulty: Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.

248

As a commenter noted, private citizens can legally possess machine guns manufactured before 1986 if they successfully complete an onerous and expensive licensing process. The sale of new machine guns to civilians is prohibited.

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To avoid this uncomfortable result, Scalia latches onto another phrase in Miller: We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” Machine guns obviously were not “in common use” at the time the Second Amendment was adopted. But that’s not enough to avoid overturning the ban on automatic weapons, since, as Scalia himself emphasizes, constitutional rights do not apply only to colonial-era technology: Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, and the Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. Scalia needs to make this point because otherwise today’s pistols and revolvers, quite different from the firearms available in the 18th century, would not be covered by the Second Amendment. But why stop there? Why isn’t an M-16, eminently suitable for military use but also the sort of weapon militia members could keep in their homes and bring with them when their services were necessary (as Swiss and Israeli citizen-soldiers do),249 included as well? Apparently because machine guns are not “in common use...for lawful purposes” in the United States today. But maybe they would be if they were legal. This seems like circular reasoning to me. 250

G. Open Carry Handgun in Intrastate, Interstate, and Maritime Travel is the Constitutional Norm Even Though it May Not Be the Social Norm or the Legal Norm Today (1). Nunn v. State, 1 Ga. (1 Kel.) 243 at 251 (1846) (cited, in part, by Heller): “The right of the people to bear arms shall not be infringed.” The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurelcrowned field of New Orleans, plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right. We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of

249

Plaintiff’s emphasis.

250

Plaintiff’s emphasis.

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PART 3. THE PURPOSE OF THIS CASE carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void; and that, as the defendant has been indicted and convicted for carrying a pistol, without charging that it was done in a concealed manner, under that portion of the statute which entirely forbids its use, the judgment of the court below must be reversed, and the proceeding quashed.

(2). State v. Chandler, 5 La. Ann. 489, at 489-490; 52 Am. Dec. 599 (1850) (citied, in part, by Heller at 40) The counsel of the accused requested the court to charge the jury, “that to carry weapons, either concealed or openly, is not a crime in the State of Louisiana; that the Constitution which guarantees to the citizen the right to bear arms cannot be restricted by the action of the Legislature.” The act of the 25th of March, 1813, makes it a misdemeanor to be “found with a concealed weapon, such as a dirk, dagger, knife, pistol, or any other deadly weapon concealed in his bosom, coat, or any other place about him, that does not appear in full view.” This law became absolutely necessary to (p.490)counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons. It interfered with no man’s right to carry arms (to use its words) “in full open view,” which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if neccessary, and of their country, without any tendency to secret advantages and unmanly assassinations.

(3). Andrews v. State, 50 Tenn. (3 Heisk.) 165, 8 Am. Rep. 8 (1871) (citied, in part, by Heller at 57) We hold, then, that the Act of the Legislature in question, so far as it prohibits the citizen “either publicly or privately to carry a dirk, sword cane, Spanish stiletto, belt or pocket pistol,” is constitutional. As to the pistol designated as a revolver, we hold this may or may not be such a weapon as is adapted to the usual equipment of the soldier, or the use of which may render him more efficient as such, and therefore hold this to be a matter to be settled by evidence as to what character of weapon (p.187)is included in the designation “revolver.” We know there is a pistol of that name which is not adapted to the equipment of the soldier, yet we also know that the pistol known as the repeater is a soldier’s weapon--skill in the use of which will add to the efficiency of the soldier. If such is the character of the weapon here designated, then the prohibition of the statute is too broad to be allowed to stand, consistently with the views herein expressed. It will be seen the statute forbids by its terms, the carrying of the weapon publicly or privately, without regard to time or place, or circumstances, and in effect is an absolute prohibition against keeping such a weapon, and not a regulation of the use of it. Under this statute, if a man should carry such a weapon about his own home, or on his own premises, or should take it from his home to a gunsmith to be repaired, or return with it, should take it from his room into the street to shoot a rabid dog that threatened his child, he would be subjected to the severe penalties of fine and imprisonment prescribed in the statute. [187.1] See Page v. State. Post 198, in note. Page v. State, 50 Tenn. (3 Heisk.) 198 (1871). This opinion appears as a note in the last four pages of Andrews. It has been separated to this file.

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(4). State v. Reid, 1 Ala. 612 at 616, 35 Am. Dec. 44 (1840) (citied, in part, by Heller at 57) (Held: The act of the 1st of February, 1839, “To suppress the evil practice of carrying weapons secretly,” does not either directly, or indirectly tend to divest the citizen of the “right to bear arms in defence of himself and the State;” and is, therefore consistent with the 23d section of the 1 Art. of the constitution [of Alabama].) A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly (p.617)unconstitutional. But a law which is intended merely to promote personal security, and to put down lawless aggression and violence, and to that end inhibits the wearing of certain weapons, in such a manner as is calculated to exert an unhappy influence upon the moral feelings of the wearer, by making him less regardful of the personal security of others, does not come in collision with the constitution.

H. What is the Role of the Unorganized Militia, 10 U.S.C. § 311(b)(2) in Federalism and Homeland Security? Federalism and the separation of powers under the Tenth Amendment must include the unorganized militia with their Second Amendment rights specifically and their Bill of Rights generally as a stop-gap measure in the event of another total break down of law and order traditionally provided by the local, state and federal governments as evidenced by the disastrous response to Hurricane Katrina in New Orleans in 2005 where police officers themselves were looting stores with other looters all around them251 and the distrust and disbelieve of the Katrina victims of abuse of power and authority and constitutional and human rights violations committed by local, state, and federal governmental and law enforcement authorities by testifying before Congress of their experiences during and after the destruction of Hurricane Katrina. HOMELAND SECURITY AND THE LOST PROTECTION CLAUSE Jason Mazzone Assistant Professor of Law, Brooklyn Law School Pages 93 and 96. (November 12, 2004) In 1916, Congress passed the National Defense Act.252 The Act federalized the National Guard, imposing greater federal control and providing increased funding. The Act made the Guard part of the Army.253 The Act stated that the Militia consists of all able-bodied men between the ages

251

http://thatvideosite.com/video/614 -and- http://www.youtube.com/watch?v=X7Kc1sBntXI

But see official versions: http://www.gpoaccess.gov/serialset/creports/katrinasupp.html http://www.gpoaccess.gov/Katrinareport/mainreport.pdf. See also, Donald C. Menzel, The Katrina Aftermath: A Failure of Federalism or Leadership?, Public Administration Review: The Response to Hurricane Katrina (November | December 2006) Donald C. Menzel is the Director of the Institute for Public Policy & Leadership at the University of South Florida SarasotaManatee. Available online at: http://www3.interscience.wiley.com/cgi-bin/fulltext/118561452/PDFSTART. 252

253

NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 Stat. 166. Id. pmbl:

That the Army of the United States shall consist of the Regular Army, the Volunteer Army, the Officers’ Reserve Corps, the Enlisted Reserve Corps, the National Guard while in the service of the United States, and such other land forces as are now or may hereafter be authorized by law.

PART 3. THE P111 URPOSE OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE of 18-45.254 The Militia was divided into three classes: the National Guard, the Naval Militia, and the Unorganized Militia.255 No program was put in place under the Act for the Unorganized Militia. 256 ... In addition to the historical development of the National Guard as a separate institution from the old militia, rather than its heir, several functional distinctions weigh against equating guardsmen with the old militiamen. The cornerstone of the Constitution’s militia was universal service (by adult white men), whereas the National Guard is an entirely voluntary corps. The militia originated as a local institution under the authority of the states. In sharp contrast, the National Guard is, by law, part of the national military, run by, paid for, and mobilized by the national government.257 Indeed, “[t]he militia . . . was designed and supported as an alternative to the professional standing army of the central government. The modern National Guard, then, is not just different from the militia referred to in the Constitution, it is in many ways, its antithesis.” 258 The militia was not only separate from the national army, it was meant to outnumber and overpower it. (Recall Madison’s claim about what a half million militiamen could do to a couple of thousand regulars.)259 By contrast, today more than 1.4 million troops belong to the regular

254

Id. § 57.

255

Id. [Plaintiff’s Emphasis on “Unorganized Militia”]

256

Plaintiff’s emphasis.

257

On modern funding of the old Militia, See H. Richard Uviller & William G. Merkel, THE MILITIA AND THE RIGHT

TO ARMS, OR,

HOW THE SECOND AMENDMENT FELL SILENT, at 142-43 (Durham: Duke University Press, 2002):

With the help of lobbying by the NGA, Congress has judged and continued to judge the National Guard necessary to the nation’s security and funds it handsomely in every federal budget. . . . The states, too, fund their Guards . . . albeit very much less generously than the federal government. . . . In contrast to the National Guard, the unorganized militia—the shadow of the common militia so extolled by the framers of the Second Amendment—has not been funded by Congress since at least 1903. It is unclear that any state appropriated any of the funds Congress set aside for the common militia after Reconstruction, or that any state provided funds for the unorganized militia after 1877, or even after 1850. 258

259

Id. at 153. These authors conclude that there is today no functionally equivalent entity of the old militia. Id. at 154. See supra text accompanying note 174 (Included herein, footnotes omitted):

Federalists also emphasized the important role the militia would perform under the Constitution to prevent abuses by a standing national army. Some delegates to Philadelphia specifically sought to add to the Constitution a statement that the militia was a guard “against the danger of standing armies in time of peace.” Hamilton in Federalist 29 argues that federal control over the militia would in fact protect liberties: the militia was “the only substitute that can be devised for a standing army; and the best possible defense against it, if it should exist.” Madison calculated that given the option of employing the militia, the federal government would not need a very large army at all: it would never comprise more than 25,000 or 30,000 men. An army of that size prevented little risk to liberties because it would be “opposed [by] a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence.” In any showdown, the militia would never “be conquered by such a proportion of regular troops.” Preventing abuses by a national army therefore required giving the national government power to employ the militia for security purposes so it would not be tempted to deploy federal troops instead.176 (Madison also thought the political safeguards of federalism would keep in check national military power.) As for the militia, it would never turn against the people even when under federal command because “the existence of subordinate governments to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition.” Finally, federalists emphasized that because the militia comprised ordinary citizens, giving the national government power to march militia units into other states would not render them an instrument of oppression.

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PART 3. THE PURPOSE OF THIS CASE United States military establishment; the Army National Guard has about 360,000 members.260 The distinction between the old militia as an alternative to a standing army and the National Guard as the army itself is symbolized by a further difference: who takes care of the weapons. Militiamen kept their guns at home because they might need them at any moment to rise up in arms against oppression. Weapons for use by National Guardsmen are kept under lock and key in federal armories: the only armed fighting Guardsmen do is at the direction of the government itself.261

THE MINUTEMEN, THE NATIONAL GUARD AND THE PRIVATE MILITIA MOVEMENT: WILL THE REAL MILITIA PLEASE STAND UP? Chuck Dougherty 28 John Marshall Law Review 959, 962-970 (Summer 1995) Though the division of the militia into organized and unorganized branches still exists today, Congress has not explicitly defined the role of the unorganized militia.262 Nevertheless, federal statutes do provide for civilian firearms training as part of the Civilian Marksmanship Program. 263 Although legislators have attacked the program as being outdated, 264 it has survived 260

H. Richard Uviller & William G. Merkel, THE MILITIA AND THE RIGHT TO ARMS, OR, HOW THE SECOND AMENDMENT FELL SILENT, at 143 (Durham: Duke University Press, 2002). 261

Id. at 143-44.

262

See Keith A. Ehrman & Dennis A. Henigan, THE SECOND AMENDMENT IN THE TWENTIETH CENTURY: HAVE YOU SEEN YOUR MILITIA LATELY?, 15 U. Dayton L. Rev. 5, at 37 n.242 (1989). See supra note 15 [in original] for federal and state provisions calling for the existence of an unorganized militia [included herein for convenience]: For the federal unorganized militia statute, see 10 U.S.C. S 311 (1993). The statute provides that “The militia of the United States consists of all able-bodied males at least 17 years of age and . . . under 45 years of age . . . and of female citizens of the United States who are members of the National Guard.” S 311(a). The statute then defines the unorganized militia as “members of the militia who are not members of the National Guard or the Naval Militia.” S 311(b)(2). Similar constitutional provisions or statutes exist in most states. See, e.g., Ariz. Const. art. 16, S 1; Ark. Const. art. 11, S 1; Colo. Const. art. 17, S 1; Ind. Const. art. 12, S 1; Iowa Const. art. 6, S 1; Kan. Const. art. 8, S 1; Ky. Const. S 219; Me. Const. art. 7, S 5; Miss. Const. art. 9, S 214; Mont. Const. art. VI, S 13, cl. 2; N.M. Const. art. 18, S 1; S.D. Const. art. 15, S 1; Wyo. Const. art. 17, S 1; Ala. Code S 31-2-2 (1975); Alaska Stat. S 26-05-010 (1962); Cal. Mil. & Vet. Code S 121 (West 1982); Conn. Gen. Stat. S 27-1 (1958); Del. Code Ann. tit. 20, S 121 (1974); Fla. Stat. ch. 250.02(1) (1941); Ga. Code Ann. S 38-23(d) (1981); Haw. Rev. Stat. S 121-1(4) (1976); Idaho Code S 46-102 (1932); Ill. Comp. Stat. Ann. 1805/1 S 1 (Smith-Hurd 1993); La. Rev. Stat. Ann. S 29:3 (West 1950); Md. Ann. Code art. 65, S 1 (1973); Mass. Gen. L. ch. 33, S 2 (1932); Mich. Comp. Laws S 32.509 (1992); Minn. Stat. S 190.06 (1946); Mo. Rev. Stat. S 41.050 (1985); Neb. Rev. Stat. S 55-106 (1943); Nev. Rev. Stat. S 412.026 (1991); N.H. Rev. Stat. Ann. S 110- B:1(IV) (1983); N.J. Rev. Stat. S 38A:1-2 (1987); N.Y. Mil. Law S 2(2) (McKinney 1988); N.C. Gen. Stat. S 127A-1 (1986); N.D. Cent. Code S 37-02-01 (1943); Ohio Rev. Code Ann. S 5923.01 (1953); Okla. Stat. tit. 44, S 41 (1987); Or. Rev. Stat. S 396.105(3) (1983); 51 Pa. Stat. Ann. S 301(a)(1) (1984); R.I. Gen. Laws S 30-1-2 (1989); S.C. Code Ann. S 25-1- 60 (Law. Co-op. 1976); Tenn. Code Ann. S 58-1-104(d) (1956); Utah Code Ann. S 39-1-1(1) (1953); Vt. Stat. Ann. tit. 20, S 1151 (1987); Va. Code Ann. S 44-1 (Michie 1950); Wash. Rev. Code S 38.04.030 (1961); Wis. Stat. S 15-5-19 (1986). A Texas statute provides for a Texas State Guard which, unlike the unorganized militias in most states, consists entirely of volunteers. Tex. Gov’t Code Ann. S 431.052 (West 1989). The Wisconsin Constitution mentions an unorganized militia, but leaves its membership undefined. Wis. Const. art. IV, S 29. 263

10 U.S.C. S 4311 (1993). The statute provides that “(t)he Secretary of the Army may provide for the issue of a reasonable number of standard military rifles, and the sale of such quantities of ammunition as are available, for use in conducting rifle practice.” Id. In addition, this program provides for the operation of rifle ranges, employment of instructors, and competitions for certain youth groups, as well as adults who are members of a gun club affiliated with the program. 10 U.S.C. S 4308 (1993). The youth groups include the Boy Scouts of America, 4-H Clubs and Future Farmers of America. Id. 264

139 Cong. Rec. S14122-01, S14132 (daily ed. Oct. 21, 1993) (statements of Sen. Domenici). Congress enacted the program following the Spanish-American War to heighten preparedness for combat among potential army inductees. Id.

PART 3. THE P113 URPOSE OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE Congressional [p.970] debates as recently as June 1994.265 At least one senator has argued that the program continues to add to the nation’s defense capability. 266 Additionally, a United States Army study found that individuals who received training in the program were significantly more effective in combat than those without such training.267 However, although Congress explicitly created a dual- militia system, the unorganized militias of the various states have remained largely dormant.268 ... 3. The Unorganized Militia The federal government has afforded the unorganized militia no protection from federal firearms regulations. 269 Since the unorganized militia’s membership comprises much of the general citizenry, Congress has indirectly applied all federal firearms regulations to this group.270 While the unorganized militia may be entitled to some Second Amendment protection, the small role that states have given their unorganized militias limits the extent of this right. The unorganized militia is wholly incapable of protecting the United States from foreign aggression, and thus cannot receive Second Amendment protection for this militia purpose. The unorganized militia has been called upon to fill this role in the past: governors have deployed

265

139 Cong. Rec. H5435-36 (daily ed. June 29, 1994) (statement of Rep. Mahoney). Congress authorized $2.5 million to be used in fiscal year 1994 for the Civilian Marksmanship Program. 139 Cong. Rec. S14122-01, S14132 (daily ed. Oct. 21, 1993) (statement of Rep. Schatz). 266

139 Cong. Rec. S14122-01, S14133 (daily ed. Oct. 21, 1993) (statements of Sen. Craig). “(T)he talent of well-trained men and women for purposes of marksmanship as it relates to the defense of this country really has not changed and it will not change, only ebb and flow with our times and with our history.” Id. 267

See James B. Whisker, The Citizen-Soldier Under Federal and State Law, 94 W. Va. L. Rev. 947, at 969-70 (1992) (summarizing the Arthur D. Little Report to the U.S. Army, 1966). Individuals engaged in combat who had previous firearms training suffered fewer casualties, maintained their weapons better, and fired more often and with greater accuracy than those without such prior training. Id. 268

See infra notes 185, 188 and accompanying text for a discussion of the few times that a state has called its unorganized militia into service. 269

See generally Ehrman & Henigan, supra note 25 (noting that federal statutes are consistent with modern Federal Courts of Appeals decisions finding that the National Guard is the only militia protected from federal firearms regulation). 270

Congress has not treated all persons equally with respect to firearms regulations. In particular, federal statutes entirely exclude members of several groups from ownership of firearms. See 18 U.S.C. S 922(g) (1993) (prohibiting felons, fugitives from justice, drug addicts, aliens, those dishonorably discharged from the armed services, or those who have renounced their United States citizenship from possessing firearms). The federal courts have consistently upheld the constitutionality of such restrictions. See, e.g., Lewis v. United States, 445 U.S. 55, 65-66 (1980) (finding that the exclusion of felons from the right to possess firearms was consistent with Fifth Amendment Due Process). Commentators have noted that the “people” Madison referred to in the Second Amendment are only those entitled to the full benefits of society. See Don B. Kates, Jr., HANDGUN PROHIBITION AND THE ORIGINAL MEANING OF THE SECOND AMENDMENT, 82 Mich. L. Rev. 204, at 266 (1983) (noting the attitude of the Constitution’s drafters against granting rights to convicted felons). Delegates at the state ratification conventions made comments that directly support the view that the Second Amendment right excludes felons. Id. at 222. The Pennsylvania right to arms proposal read, in pertinent part, “(N)o law shall be passed for disarming the people or any of them unless for crimes committed, or real danger of public injury from individuals. . . .” Id. (quoting 2 B. Schwartz, THE BILL OF RIGHTS: A DOCUMENTARY HISTORY 665 (1971)). Samuel Adams proposed that the Second Amendment right be limited to peaceable citizens. Id. at 224.

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PART 3. THE PURPOSE OF THIS CASE their unorganized militias as recently as World War II to repel foreign invasion.271 However, the rapid advance of weapons technology since that time has left untrained, lightly-armed individuals unable to resist any significant foreign threat.272 Modern police forces have generally replaced the eighteenth- century militia in the role of law enforcement.273 However, governors [p.984] have occasionally called out their state’s unorganized militia to quell civil unrest. 274 Sheriff’s Departments across the country still use the common law posse comitatus concept to augment their law enforcement capabilities. 275 Additionally, individuals still use personally-owned firearms to prevent criminal activity or detain criminals until the arrival of police.276 Thus, the Second Amendment may extend some protection to the unorganized militia in the role of law enforcement. However, the extent to which professional police provide for law enforcement today severely limits the unorganized militia’s role. 4. Private “Citizen” Militias Members of private militia organizations gain no Second Amendment rights by virtue of such membership. The debates surrounding the ratification of the Constitution make clear that the drafters’ definition of “militia” did not include private armies.277 The Federalists and AntiFederalists disagreed over how militia control would be divided between the federal and state governments, but no one argued that the militia should be independent of all governmental control.278 The concerns of the Anti-Federalists pertaining to the militia all involved retaining control over the militia for the state governments.279 Thus, the inclusion of the Second Amendment in the Bill of Rights rose out of concerns over federalism, not the protection of

271

Don B. Kates, Jr., HANDGUN PROHIBITION AND THE ORIGINAL MEANING OF THE SECOND AMENDMENT, 82 Mich. L. Rev. 204, at 271-72 (1983) Following the Japanese attack of Pearl Harbor, the Governor of Hawaii called upon armed citizens to augment the islands’ sparse defenses in repelling the anticipated Japanese invasion. Id. at 272 n.284. 272

But cf., id. at 271 (arguing that Congress, by failing to repeal the militia statute creating the unorganized militia, has implicitly found the unorganized militia necessary in the case of “dire military emergency.”). 273

See, e.g., Sanford Levinson, THE EMBARRASSING SECOND AMENDMENT, 99 Yale L. J. 637, at 656 (1989) (acknowledging the argument that professional police forces have made armed citizens irrelevant to effective law enforcement). 274

See, e.g., James B. Whisker, The Citizen-Soldier Under Federal and State Law, 94 W. Va. L. Rev. 947, at 973 (1992) (describing Virginia Governor William Mumford Tuck’s use of the unorganized militia to prevent a utility worker strike). 275

See, e.g., Street Smart, L.A. Times, Aug. 8, 1994, at B1 (describing police use of the posse comitatus power to commandeer vehicles and solicit assistance in pursuing criminals). 276

Every month, the National Rifle Association publishes examples of individuals countering criminal activity with firearms. See, e.g., The Armed Citizen, Am. Rifleman, Sept. 1994, at 8. But See LaFawn Oliver, Protect Your Home Against Burglary, Lewiston Morning Trib., July 19, 1992, at D2 (noting the danger of a criminal disarming a homeowner and using the homeowner’s gun against him or her). 277

See supra notes 36-74 [in orginal] for a discussion of these debates. Senator Joseph Biden finds the use of the term “well regulated” to be dispositive in determining that private organizations cannot claim Second Amendment protection. Meet the Press (NBC Television broadcast, Apr. 30, 1995) (“(The private militias) are not constitutionally mandated. . . . (The Second Amendment) says .well regulated’ militia, meaning a government . . . controls that militia; if they (are not government controlled), they are not a militia.”). See supra notes 157-62 and accompanying text for a discussion of the phrase “well regulated.” 278

Keith A. Ehrman & Dennis A. Henigan, THE SECOND AMENDMENT MILITIA LATELY?, 15 U. Dayton L. Rev. 5, at 20 (1989). 279

IN THE

TWENTIETH CENTURY: HAVE YOU SEEN YOUR

See supra notes 43-46 [in orginal] for a discussion of the three principal Anti-Federalist concerns that relate to the militia.

PART 3. THE P115 URPOSE OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE individual [p.985] rights.280 [194] The Second Amendment should protect the individual state militiaman in the performance of his duties; however, that protection is ancillary to the protection afforded to the state militias. Thus, once a militia member steps outside of his role as a state actor, his Second Amendment protection ceases to exist. The private “citizen” militias, which generally have no state affiliation, 281 can therefore receive no special Second Amendment protection.

FEDERALISM AND THE TUG OF WAR WITHIN: SEEKING CHECKS AND BALANCE IN THE INTERJURISDICTIONAL GRAY AREA Erin Ryan 66 Maryland Law Review 503 (2007) Abstract:

FEDERALISM AND THE TUG OF WAR WITHIN explores tensions that arise among the underlying values of federalism when state or federal actors regulate within the ‘‘interjurisdictional gray area’’ that implicates both local and national concerns. Drawing examples from the failed response to Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article demonstrates how the trajectory set by the New Federalism’s ‘‘strict-separationist’’ model of dual sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, proaccountability, and localism-protective values of federalism, the Article identifies a problemsolving value inherent in the capacity requirement of American federalism’s subsidiarity principle (that regulatory decisionmaking should take place at the most local level possible). The progression of federalism models informing Supreme Court interpretation over the 20th century reflects a pendulumlike attempt to reach the proper balance between these competing values. Although the Court’s federalism jurisprudence during the New Deal era prioritized the problem-solving value over the ‘‘check-and-balance’’ anti-tyranny value, the New Federalism decisions exalt the check-and-balance value at the expense of the problem-solving (and all other) values, protecting the bright line posited between mutually exclusive spheres of state and federal regulatory authority. Interjurisdictional problems uncomfortably blur that boundary, pitting problem-solving and checksand-balances against one another by demanding both local and national regulatory attention. But it is arguably the tension between these values that has made our system of government so robust-----enabling it to adjust for changing demographics, technologies, and expectations without losing its essential character. The New Federalism’s focus on checks and balances above all else compromises its ability to effectively mediate this critical competition, sacrificing other federalism values and obstructing even desirable regulatory activity in the interjurisdictional gray area (such as federal initiative that might have been taken in the wake of Katrina). The comparatively pragmatic cooperative federalism model affords some balance, but is critiqued by New Federalism proponents as providing insufficient checks. To remedy the theoretical problems left unresolved by cooperative federalism and the pragmatic ones caused by New Federalism, this Article argues that the Court should adopt a model of Balanced Federalism that better mediates between competing federalism values and provides greater guidance for 280

See Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW 299 n.6 (2d ed. 1988) (finding that the sole concern of the second amendment’s framers was to prevent federal interferences with the state militia). Professor Tribe concludes that the Second Amendment is “merely ancillary to other constitutional guarantees of state sovereignty.” Id.

281

A few such organizations, including the private militias in the Florida panhandle, do claim some marginal state affiliation. See, e.g., Santa Rosa County, Florida, Resolution No. 94-09 (Apr. 14, 1994) (establishing the Santa Rosa County Militia by nonbinding resolution).

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PART 3. THE PURPOSE OF THIS CASE regulatory decisionmaking in the interjurisdictional gray area. Where the New Federalism asks the Tenth Amendment to police a stylized boundary between state and federal authority from crossover by either side, Balanced Federalism asks the Tenth Amendment to patrol regulatory activity within the gray area for impermissible compromises of fundamental federalism values. The Article concludes by introducing the outlines of a jurisprudential standard for interpreting Tenth Amendment claims within a model of Balanced Federalism dual sovereignty that affords both checks and balance. Such a framework would foster a healthier dialectic between the various federalism values that, though in tension with one another, have made our system of government so effective and enduring. C ONCLUSION: SEEKING CHECKS AND B ALANCE IN FEDERALISM The accelerating interdependence of modernity has revived the great dilemma of constitutional federalism------ that is, how to define the boundaries of state and federal jurisdiction so as to preserve checks and balances without eviscerating effective regulatory responses to interjurisdictional problems. The Tenth Amendment, representing the most direct (if nondirective) constitutional statement about the balance of local and national power, has become a site of heated political contest between those who respectively favor stronger and weaker boundaries between local and national reach. According to the former, the interlinking cooperative federalism model that drives many of our most ambitious regulatory endeavors impermissibly threatens the constitutionally intended balance;282 to the latter, the strictseparationist New Federalism approach impossibly threatens meaningful resolution of our most pressing societal problems.283 Still, the intractability of interjurisdictional regulatory problems like Katrina, national security maintenance, air and water pollution, and others all highlight the need to develop a model of Balanced Federalism that can more meaningfully contend with the interjurisdictional gray area. The Court’s New Federalism jurisprudence points us toward a strict-separationist model of federal-state relations that assumes a clear line between areas of properly national and inviolate local concern, policed by the Tenth Amendment. A host of controversial preemption cases, doctrinally silent on federalism but for their vociferous dissents, acts in 282

See, e.g., Jonathan H. Adler, JUDICIAL FEDERALISM AND THE FUTURE OF FEDERAL ENVIRONMENTAL REGULATION, 90 Iowa L. Rev. 377, 399 (2005) (stating that the administration of federal programs through the states obscures federal regulatory responsibility); Michael S. Greve, Against Cooperative Federalism, 70 MISS. L.J. 557, at 576 (2000) (arguing that a system of cooperative federalism threatens central constitutional values); Roderick M. Hills, Jr., The Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and ‘‘Dual Sovereignty’’ Doesn’t, 96 MICH. L. REV. 813, at 891-908 (1998) (decrying commandeering as inefficient, unjust in cost distribution, and violative of the First Amendment as forced speech).

283

See, e.g., Daniel C. Esty, REVITALIZING ENVIRONMENTAL FEDERALISM, 95 Mich. L. Rev. 570, at 623-24 (1996) (finding that environmental programs are best enforced with both state and federal cooperation); Robert A. Schapiro, TOWARD A THEORY OF INTERACTIVE FEDERALISM, 91 Iowa L. Rev. 243, at 258 (2005) (finding that the dualist federalist approach advanced by the Supreme Court may limit Congress’s ability to deal with various national problems, such as environmental protection); Philip J. Weiser, FEDERAL COMMON LAW, COOPERATIVE FEDERALISM, AND THE ENFORCEMENT OF THE TELECOM ACT, 76 N.Y.U. L. Rev. 1692 at 1733-34 (2001) (noting that the dual federalism approach has not worked in the telecommunications context and in fact, ‘‘defied reality’’); Phillip J. Weiser, TOWARDS A CONSTITUTIONAL ARCHITECTURE FOR COOPERATIVE FEDERALISM, 79 N.C. L. Rev. 663, at 665-66 (2001) (observing that the New Federalism rhetoric does not account for the prac- tical need for federalstate regulatory sharing); John D. Tortorella, Note, REINING IN THE TENTH AMENDMENT: FINDING A PRINCIPLED LIMIT TO THE NON-COMMANDEERING DOCTRINE OF UNITED STATES V. PRINTZ, 28 Seton Hall L. Rev. 1365, 1381 (1998) (stating that Printz’s non-commandeering rule will impede Congress’s ability to implement important policy objectives).

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PART 3. THE PURPOSE OF THIS CASE tacit support of the project. Yet this idealistic bright line between mutually exclusive spheres of authority is illusory. At the margins, a gray area exists in which regulatory problems implicate matters of both national and local obligation. Decisionmaking that imposes the bright-line rule in the interjurisdictional gray area is doomed to arbitrariness, unable to navigate the tension there arising between the competing federalism values of checks and balances, accountability, localism, and problem-solving. The latter value is especially weakened in the strict-separationist approach, promoting inefficient regulatory response in the gray area. Yet even if legitimate constitutional interpretation does not require the bright-line rule approach, neither does it warrant a wholesale abandonment of the check-and-balance value that the New Federalism privileges. The fact that federalism constraints enjoy no natural constituency suggests that judicially enforceable constraints may be necessary if we value federalism’s underlying principles,284 as this piece argues we should. A powerful case can be made for the importance of the under-appreciated problem-solving value, but each of the others continue to exert considerable normative force.285 Federalism itself remains content-neutral, designed to realize a set of competing good government values that are suspended in a permanent tug of war. What is needed, simply, is balance. The embrace of a Balanced Federalism model of dual sovereignty that anticipates interjurisdictional problems would facilitate interpretation of the Tenth Amendment so that it can police the real boundary at issue: that between legitimate and unjustifiable regulation within the interjurisdictional gray area. It would facilitate interpretation of the other controversial federalism inquiries that hinge on our conception of dual sovereignty, such as the scope of the commerce power and the relationship between federal authority under Section Five of the Fourteenth Amendment and state sovereign immunity under the Eleventh Amendment. In Balanced Federalism, the Tenth Amendment functions not as the blunt bright-line rule into which it has been caricatured by the New Federalism, but instead as the guardian of dual sovereignty by the careful application of a jurisprudential standard made sensitive to the clash of federalism values in the gray area. Dual sovereignty under Balanced Federalism may be less attractively simple than New Federalism’s strict-separationist ideal, but it would be more honest, more grounded in reality, and ultimately more useful. A judicial balancing test such as that proposed in Part VI would assist application of Balanced Federalism Tenth Amendment constraints to the variety of challenges that arise in the gray area, providing guidance for courts and policymakers nationwide. Much work is needed to bring this proposal to maturity. Still, moving toward a more Balanced Federalism would progress the discourse at a critical time for both federalism and regulatory law. At stake is the ability of state and federal government to take on confounding interjurisdictional problems without compromising the important federalism values associated with structural checks and balances, all while continuing to promote accountability and localized diversity and innovation. Moving from the brightline approach to the jurisprudential standard would maintain a healthy balance between 284

See Neal Devins, THE JUDICIAL SAFEGUARDS OF FEDERALISM, 99 NW. U. L. REV. 131, at 133 (2004) (discussing voter disregard for federalism issues), and accompanying text. 285

Indeed, those so satisfied with the New Deal expansion of federal legislative jurisdiction that anti-tyranny constraints now seem quaint might reflect on whether the expansion of federal executive authority in the post-9/11 era alters this complacency.

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PART 3. THE PURPOSE OF THIS CASE local and national power without catapulting any one federalism value over all competing considerations. And it would help make the difference between a faltering, ponderous response to interjurisdictional crises like Katrina and the more confident, smoothly coordinated regulatory response of which we should be capable.

ALL THE WAY DOWN THE SLIPPERY SLOPE: GUN PROHIBITION IN ENGLAND AND SOME LESSONS FOR CIVIL LIBERTIES IN AMERICA Joseph E. Olson and David B. Kopel 22 Hamline L. Rev. 399 at 414 (1999) “As a result of alcohol prohibition, the United States in the 1920s and early 1930s did have a problem with criminal abuse of machine guns, a fad among the organized crime gangsters who earned lucrative incomes supplying bootleg alcohol, although most such firearms were owned by peaceable citizens. The repeal of Prohibition in 1933 had sent the American murder rate into a nosedive, but in 1934 Congress went ahead and enacted the National Firearms Act anyway.”286 XI. Conclusion: Towards Closer Analysis of Slippery Slopes While slippery slopes are frequently invoked in political and legal debate, little attention has been paid to factors that contribute to the real, as opposed to the merely theoretical, danger that a first step down a slippery slope may lead to severe damage or even elimination of a civil liberty. This Essay has identified the following factors that helped lead to the destruction of the right to arms in Great Britain:

286

•

media sensationalism about abuses of the right and media hostility toward the exercise of the right;

•

technological changes that introduce new and socially controversial (p.463)ways of exercising the right;

•

the hesitation of extending civil liberties principles developed under old technologies to new technologies;

•

the creation of government jurisdiction, in the form of a licensing system, that created a platform for administrative constriction of the right;

•

political leaders gaining political benefits (such as diverting the public from the death penalty, or demonstrating the leader’s compassion) from attacks on the right;

•

restrictions aimed at teenagers, which over the long term reduced the number of adults interested in the exercising of the right, and, consequently reduced the number of adults interested in defending the right politically;

•

shifting the burden of proof away from the government, which no longer had to prove the need for new restrictions or for the denial of a permit to exercise the right, and placing the burden on the individual, who had to prove his or her need to own a particular item;

•

restrictions created by administrative fiat that further reduced adult entry into or continuance in the activity, thus driving the exercise of the right to levels so low that rights advocates

Plaintiff’s emphasis. http://www.guncite.com/journals/okslip.html

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PART 3. THE PURPOSE OF THIS CASE became an insignificant political group; •

the production of deliberately misleading data by the government in support of restrictive legislation;

•

registration of the property of persons who exercised the right, which was later used to facilitate confiscation of property;

•

the government’s loss of trust in ordinary citizens.

In addition, we identified one other potential factor that might encourage movement down a slippery slope, that being the prominent success of an earlier step down the slope; this factor did not appear to be present in England. None of the British gun controls resulted in any statistically noticeable reduction in crime in the years after their enactment. These factors are not the only factors that could make a slippery slope situation dangerous; but when slippery slope arguments are raised, the presence (or absence) of these factors may indicate how real the slippery slope danger is. The more factors that are present, the greater the potential slippery slope risk. This Essay has also identified several structural elements in the British system of government that contributed to the gradual elimination of the right to arms in Great Britain: •

rights are subject to balancing against perceived government or social needs;

•

the government is not constrained by internal checks and balances;

•

there is a consensus that Parliament, which is, in practice, a few leaders of the majority party, rather than the people or the law, is sovereign;

•

there is no written constitution;(p.464)

•

the absence of a right in a written constitution impedes the growth of rights consciousness among the people.

Regarding most of these elements, the United States is radically different from Great Britain. Consequently, civil liberties of all types are stronger in the United States than in Great Britain. However, the erosion of federalism and of the separation of powers over the last half century in the United States should caution Americans against complacency regarding the security of their constitutional structure. We also identified several factors about the political defense of gun rights in Great Britain that made the arms right vulnerable to the slippery slope. Most of these factors have parallels regarding the defense of other civil liberties in Britain: •

the right was defended only on sporting grounds, and not on the basis that it protects people from dangerous criminals or from dangerously criminal governments;

•

the right’s defenders accepted and even applauded a great deal of regulation of the right;

•

the right’s defenders accepted the principle that the right could be further regulated whenever the government saw a need, rather than only when there was a genuine necessity for more regulation;

•

the right’s defenders usually appeased the government, rather than resisting unjustifiable government demands for more controls;

•

people who exercised the right in one way were often unwilling to defend people who exercised the right in a different way.

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PART 3. THE PURPOSE OF THIS CASE As with constitutional structure, the American system is considerably more sound than the British one. Civil liberties organizations such as the National Rifle Association and the American Civil Liberties Union are bolder than their British counterparts, and better able to articulate strong theories of right that can withstand heavy political assault and pressure to balance the right against other interests. In the United States’ political and legal debate, arguments for or against slippery slopes have heretofore often been made in a simplistic manner, with little more than assertions that slippery slope dangers do or do not exist. We hope that this Essay can provide a step toward a more complex analysis of slippery slopes by highlighting some of the elements that can increase or decrease slippery slope risks. Slippery slopes are not inevitable, but neither are they imaginary. The British experience demonstrates that many civil liberties, including the right to arms, really can slowly slide all the way to the bottom of the slippery slope. While we have not aimed to convince readers to value any particular civil liberty, such as arms, speech, or protection from warrantless searches, we have attempted to show that it is reasonable for groups that do honor such rights, like the NRA, ACLU, or NACDL, to refuse to acquiesce in “reasonable” infringements of those rights. Even though, as John Maynard (p.465)Keynes observed, we are all dead in the long run, persons who cherish a particular civil liberty want that liberty to endure not just in their own lifetimes, but in the lives of subsequent generations. In the long run, the best way to protect a given civil liberty from destruction may be to resist even the smallest infringements in short run.

EXPOSING THE SECOND AMENDMENT: FEDERAL PREEMPTION OF STATE MILITIA LEGISLATION J. Norman Heath 79 U. Det. Mercy L. Rev.39 (2001). http://www.guncite.com/journals/heath.html II. Militia Preemption and the Marshall Court: State Militia Law Held Invalid Professor Laurence H. Tribe identifies in Supreme Court jurisprudence three modes of federal preemption exercisable by Congress against the states: (1) “express preemption,” where Congress has in so many words declared its intention to preclude state legislation of a described sort in a given area; (2) “implied preemption,” where Congress, through the structure or objectives of its enactments has by implication precluded a certain kind of state regulation in an area; and (3) “conflict preemption,” where Congress did not necessarily focus on preemption of state regulation at all, but where the particular state law conflicts directly with federal law, or otherwise (p.44) stands as an obstacle to the accomplishment of federal statutory objectives. In addition, Professor Tribe recognizes: Because congressional purposes can be either substantive or jurisdictional, a state action may be struck down as an invalid interference with the federal design either because it is in substantive conflict with the operation of a federal regulation or program or because, whatever its substantive impact, it intrudes jurisdictionally upon a field that Congress has validly reserved for exclusively federal regulation. It is this latter phenomenon that some describe as field (or

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PART 3. THE PURPOSE OF THIS CASE “occupying the field”) preemption - which, it is worth stressing, may fall into any of the three categories set forth above. 287 IX. Conclusion The federal court gun-possession case pronouncements bearing on the militia and federalism are irreconcilable with the actual constitutional status of state militia regulation as expounded by the U.S. Supreme Court. Intentionally or otherwise, jurists have deluded themselves and the legal community into accepting the convoluted proposition that plenary power to organize and arm the militia was both delegated to Congress (through the Militia Clauses) and(p.72) reserved to the states (under the Second Amendment). 288 If such a phenomenon exists in the U.S. Constitution it is remarkable that the Supreme Court has never cited the Second Amendment as an example of “dual sovereignty,” “dual federalism,” or “new federalism” in the course of its endless labors to define the boundaries of state and federal power. In actual Supreme Court jurisprudence, there is no constitutional provision other than Article I, Section 8, Clause 16 which limits Congressional interference with the “state” militia. The Court’s repeated citations to the preemption of state militia law when adjudicating state-federal conflicts in other areas of regulation greatly reinforce the conclusion that state militia powers are ordinary in their susceptibility to federal preemption. Because the Second Amendment is not a prophylactic benefiting state legislative or executive powers, it must represent either a nonsensical protection of federal militia powers from federal interference,289 or it represents some type of right held directly by the people. Any benefit to the state governments from the Second Amendment must be incidental to a citizen-held right binding on the federal government. The dwindling proponents of the “states’ right” interpretation of the amendment cannot point to a single instance of a militia-related(p.73) federal law being invalidated on Second Amendment grounds, despite the Supreme Court having had multiple opportunities spread over two centuries to invoke the amendment for that purpose.

287

Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW § 6-28, at 1176-77 (3d ed.2000).

288

A statement found on the American Bar Association’s website reads, “The United States Supreme Court and lower federal courts have consistently interpreted this Amendment only as a prohibition against Federal interference with State militia and not as a guarantee of an individual’s right to keep or carry firearms.” at http://www.abanet.org/gunviol/secondamend.html. The basis for the A.B.A.’s claim that the U.S. Supreme Court endorses the “states’ right” interpretation of the amendment is almost certainly to be found in a disputed reading of U.S. v. Miller, see supra text accompanying note 10. 289

According to former Solicitor General Seth Waxman, this problematic interpretation might even be the preferred one. In a letter he wrote to a member of the National Rifle Association, dated 22 August 2000, later posted on the NRA’s website, Waxman first identified the “right” as federal: “the ‘obvious purpose’ of the Second Amendment was to effectuate Congress’s power to ‘call forth the Militia to execute the Laws of the Union . . . .” (emphasis added). He then went on to offer an ambiguous explanation that contradicted the previous one: “[the] courts have uniformly held that it [the Second Amendment] precludes only federal attempts to disarm, abolish, or disable the ability to call up the organized state militia.” Finally, the Solicitor General alluded to, “the right of the states to maintain a militia that was being preserved...” (emphasis added), at http://www.nraila.org/research/20000901-AntiGunGroups-OOl.shtml [GunCite note: Waxman’s letter is no longer at the aforementioned URL, but it can be viewed here - http://www.rkba.org/federal/doj/waxman-emerson.html] . Thus, in three short paragraphs, the Department of Justice endorsed three contradictory interpretations of the amendment, none of which recognized a “right of the people” of any description. The Second Amendment debate is characterized by a puzzling tendency to question the validity of the “individual right” reading while failing to examine at all the validity of the “states’ right” interpretation. Solicitor General Waxman’s letter seems to have capitalized on this pattern by relying on the neglect of the reader to critically examine the positive, rather than negative, assertions being made.

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PART 3. THE PURPOSE OF THIS CASE The suspicious obstinance of the lower federal courts in clinging to the “states’ right” interpretation presents a serious obstruction to the proper adjudication of the nature and scope of the Second Amendment right, and thus serves only to exacerbate and prolong the current publicpolicy impasse regarding gun ownership. The American public deserves a more considered, consistent, and constitutional approach to the delineation of the Second Amendment right. The decisions of the lower federal courts in Second Amendment cases cannot ultimately withstand high court scrutiny; a consistent body of Supreme Court jurisprudence spanning 180 years places federal preemption of state militia powers among the most well-settled propositions in American constitutional law.

I. General Synopsis of this Case There is a longstanding right to intrastate, interstate, and maritime travel. But the dispute over the right to travel while in lawful possession of a privately owned firearm (i.e., a handgun) under the Second Amendment right to “openly” keep and bear arms under the Fourth, Fifth, Ninth, and Tenth Amendments is pivotal to all other rights that my case brings to this Court. My case presents the traveling Second Amendment as the flip-side to District of Colubmia v. Heller, No. 07-290; 554 U.S. ____ (2008), firearms in the home. My case targets the unconstitutional actions of the U.S. Coast Guard violating my First Amendment and Second Amendment rights and my right to due process as a seaman and as a citizen of the United States in terms of tort claims for damages in the amount of $4.8 million and the obstructions of justice, harassment, and malicious threats of arrest and denials of rights by the U.S. Coast Guard and the U.S. Marshals Service and other obstructions of justice and denials of rights by the U.S. Department of Justice the federal judges exhibit bias in their unconstitutional Summary Judgment dismissals of my cases for the last 6 years as tort claims for damages in the equal amount of $4.8 million and civil RICO Act claims for triple damages for each amount in the amount of $14.4 million combined to equal $28.8 million. This case invokes the Jus Tertii Doctrine to sue for the rights of third parties and Article XVIII (Right to a Fair Trial) of the human rights treaty, AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN 1948 to sue for my own human rights and for the human rights of third parties (i.e. the unorganized militia under 10 U.S.C. § 311(b)(2), truck drivers, and American merchant seamen, to target the unconstituational fraud of the individual States and the United States in their conspiratorial collusion and unilateral attacks on the checks and balance system of the U.S. Constitution as expressed in not only the aggregate effect of State and Federal gun control laws but also the unconstitutional Eleventh Amendment and other case law and legislative and executive attacks on the privileges and immunities, rights, powers, duties, and responsibilities of citizens of the individual States and as citizens of the United States under the Bill of Rights, Thirteenth and Fourteenth Amendments.

STATE PAROCHIALISM, THE RIGHT TO TRAVEL, AND THE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV Bryan H. Wildenthal 41 Stanford Law Review 1557 at 1557-1558 (July 1989): State discrimination against out-of-staters falls into two conceptually distinct categories. On the one hand, a state might treat its own residents more favorably than residents of other states who are temporarily within the state’s jurisdiction, whether as travelers, day-commuters, or those just wandering through who may lack residence in any particular state. The Court has generally viewed this kind of resident/ nonresident discrimination as subject to the strictures of the privileges and immunities clause of article IV.290 The commerce clause291 has also been invoked 290

“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. CONST. art. IV, § 2, cl. 1.

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PART 3. THE PURPOSE OF THIS CASE against resident/nonresident discrimination, in the context of commercial discrimination against nonresident buyers or sellers. On the other hand, a state might discriminate among those currently claiming residence in the state, on the basis of how recently they moved into the state or on their motives for moving into the state. This type of policy divides residents into two classes: those accepted as bona fide, established residents, and those disfavored as latecomers with inadequate ties or attachment to the state, suspect motives for immigrating, or perhaps both. Because the latecomers have, by definition, recently exercised the right to travel into the state discriminating against them, the Court has tended to view such discrimination as impinging on that right, thereby triggering strict scrutiny under the equal protection clause of the fourteenth amendment. This has been the basis for the Court’s development of the so-called “right to travel” strand of equal protection analysis.292 Id. at 1592 (July 1989): Framing a strict scrutiny test under the privileges and immunities clause requires a reexamination of the test traditionally employed under the clause’s jurisprudence. This has frequently been phrased as the “peculiar evil” test, an odd, recurrent formulation which apparently originated in Toomer v. Witsell,293 and which is merely a somewhat confusing and darkly mysterious way of stating a classic kind of close-fit, means-ends analysis-the kind utterly familiar in equal protection jurisprudence. That is, where some important state interest exists (an “evil” that must be ameliorated), a classification scheme aimed at certain persons (the allegedly “peculiar” source of the “evil”) will be up- held as advancing the interest if the fit between means and ends is sufficiently close-if the objects of the classification truly are the “peculiar” source of the “evil.” Toomer also offered a more straightforwardly-phrased means-ends test,294 which has increasingly supplanted the “pe- culiar evil” language in modern Court decisions.295207 By the time of the Piper case, a ready-made formulation existed for our present purposes: The Clause does not preclude discrimination against nonresidents where (i) there is a substantial reason for the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a substantial relationship to the State’s objective. In deciding whether the discrimination bears a

291

U.S. CONST. art. I, § 8, cl. 3.

292

See U.S. CONST. amend. XIV, § 1; notes 115-202 [in original] and accompanying text [pp. 1575-1591].

293

[Footnote 205 in original] 334 U.S. 385, 396-98 (1948); see also, e.g., United Bldg. & Constr. Trades Council v. Camden, 465 U.S. 208, 222 (1984); Zobel v. Williams, 457 U.S. 55, 76 (1982) (O’Connor,J., concurring in the judgment); Hicklin v. Orbeck, 437 U.S. 518, 525-26 (1978) (each reciting “peculiar evil” test). See also the discussion of the peculiar evil test at text accompanying [Footnote 22 in original: Text at 1561 in original: (The traditional test the Court has used to analyze resident/nonresident distinctions under the clause is somewhat oddly phrased. It asks whether the nonresidents disadvantaged by the state law in question “ ‘constitute a peculiar source of the evil at which the [discriminatory] statute is aimed.’ “) [Footnote 22 in original]: Hicklin v. Orbeck, 437 U.S. 518, 525-26 (1978) (quoting Toomer v. Witsell, 334 U.S. 385, 398 (1948)) (brackets added by Hicklin Court). But see text accompanying notes 205-208 [in original; but consolidated in the first half of this footnote herein.] (noting recent emergence of the “substantial relationship” test). 294

“[The clause] does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it. Thus the inquiry in each case must be concerned with whether such reasons do exist and whether the degree of discrimination bears a close relation to them.” Toomer, 334 U.S. at 396. Substitute “compelling state interest” for “reason” and you have, of course, a classic statement of the strict scrutiny test. 295

See, e.g., Supreme Court of N.H. v. Piper, 470 U.S. 274, 284 (1985) (eschewing “peculiar evil” language in favor of “substantial relationship” test); Camden, 465 U.S. at 222 (reciting “substantial relationship” and “peculiar evil” tests side by side). It was never exactly clear how stringent the old peculiar evil test was. After all, how peculiar is “peculiar”?

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PART 3. THE PURPOSE OF THIS CASE close or substantial relationship to the State’s objective, the Court has considered the availability of less restrictive means.296

296

Piper, 470 U.S. at 284 (citations omitted).

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PART 3. THE PURPOSE OF THIS CASE

Compare Chisholm v. Georgia, 2 U.S. 419 at 455 (1793) (Justice Wilson): “Let a State be considered as subordinate to the People: But let every thing else be subordinate to the State. The latter part of this position is equally necessary with the former. For in the practice, and even at length, in the science of politics there has very frequently been a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means.”297 Again, Chisholm v. Georgia, 2 U.S. 419 at 461-462 (1793) (Justice Wilson). I have already remarked, that in the practice, and even in the science of politics, there has been frequently a strong current against the natural order of things; and an inconsiderate or an interested disposition to sacrifice the end to the means. This remark deserves a more particular illustration. Even in almost every nation, which has been denominated free, the state has assumed a supercilious preeminence above the people, who have formed it: Hence the haughty notions of state independence, state sovereignty and state supremacy. In despotic Governments, the Government has usurped, in a similar manner, both upon the state and the people: Hence all arbitrary doctrines and pretensions concerning the Supreme, absolute, and incontrolable, power of Government.298 In each, man is degraded from the prime rank, which he ought to hold in human affairs: In the latter, the state as well as the man is degraded. Of both degradations, striking instances occur in history, in politics, and in common life. One of them is drawn from an anecdote, which is recorded concerning Louis XIV. who has been stiled the grand Monarch of France. This Prince, who dissused around him so much dazzling splendour, and so little vivifying heat, was vitiated by that inverted manner of teaching and of thinking, which forms Kings to be tyrants, without knowing or even suspecting that they are so. The oppression, under which he held his subjects during the whole course of his long reign, proceeded chiefly from the principles and habits of his erroneous education. By these, he had been accustomed to consider his Kingdom as his patrimony, and his power over his subjects as his rightful and undelegated inheritance. These sentiments were so deeply and strongly imprinted on his mind, that when one of his Ministers represented to him the miserable condition, to which those subjects were reduced, and, in the course of his representation, frequently used the word L’Etat, the state, the King, though he felt the truth and approved the substance of all that was said, yet was shocked at the frequent repetition of the expression L’Etat; and complained of it is as an indecency offered to his person and character. And, indeed, that Kings should imagine themselves the final causes, for which men were made, and societies were formed, and Governments were instituted, will cease to be a matter of wonder or surpise, when we find that lawyers, and statesmen, and philosophers, have taught or favoured principles, which necessarily lead to the same conclusion. Another instance, equally strong, but still more astonishing, is drawn from the British Government, as described by Sir William Blackstone and his followers. As described by him and them, the British is a despotic Government. It is a Government without a people. In that Government, as so described, the sovereignty is possessed by the Parliament: In the Parliament, therefore, the supreme and absolute authority is vested: In the Parliament resides that incontrolable and despotic power, which, in all Governments, must reside somewhere. The constituent parts of the Parliament are the King’s majesty, the Lord’s Spiritual, the Lord’s Temporal, and the Commons. The King and these three Estates together form the great corporation or body politic of the Kingdom. All these sentiments are found; the last expressions

297

Plaintiff’s emphasis.

298

Plaintiff’s emphasis.

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PART 3. THE PURPOSE OF THIS CASE are found verbatim in the commentaries upon the laws of England. The Parliament form the great body politic of England! What, then, or where, are the People? Nothing ! No where! They are not so much as even the ‘baseless fabric of a vision!’ From legal contemplation they totally disappear! Am I not warranted in saying, that, if this is a just description; a Government, so and justly so described, is a despotic Government?

J. To Sue For My Own Rights and Pursuit of Justice (1). To Determine Constitutionality of Summary Judgment Dismissals of My Previous Cases over the Second Amendment CASE NO. 1:

Hamrick v. Adm. Thomas H. Collins, et al, U.S. District Court for DC, No. 02-1434 filed July 18, 2002, COMPLAINT FOR DEFAMATION & DAMAGES, LIBEL AS A MATTER OF PRIVATE CONCERN, INJURY TO REPUTATION, UNLAWFUL INTERFERENCE WITH THE LAWFUL OPERATION OF A U.S. MERCHANT VESSEL, UNLAWFUL INTERFERENCE WITH A SEAMAN’S EMMPLOYMENT ABOARD A U.S. MERCHANT VESSEL, WRONGFUL DETENTION / FALSE IMPRISONMENT OF A U.S. MERCHANT SEAMAN IN A FOREIGN COUNTRY, HARASSMENT, EMOTIONAL DISTRESS, AND SUBJECTION TO A MALICIOUS CRIMINAL INVESTIGATION EXTENDING FROM PETITIONER’S EXERCISE OF F IRST AMENDMENT RIGHTS TO FREE SPEECH AND TO PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES PURSUING SECOND AMENDMENT RIGHTS; Dismised with Prejudice.

CASE NO. 2:

Hamrick v. President Bush, et al, U.S. District Court for DC, No. 02-1435 filed July 18, 2002, PETITION FOR WRIT OF MANDAMUS, A WRIT OF PROHIBITION, DECLARATORY JUDGEMENT AND INJUNCTIVE RELIEF; Dismised with Prejudice; Affirmed District Court’s Dismissal with Prejudice on October 10, 2002. Appeal filed with DC Circuit, October 28, 2002. DC Circuit affirmed Dismissal with Prejudice. Appealed to U.S. Supreme Court. Petition for Writ of Certiorari, No. 03-145, Denied.

CASE NO. 3:

Hamrick v. President Bush, et al, U.S. District Court for DC, No. 03-2160, October 21, 2003, AMENDED COMPLAINT – CRIMINAL & CIVIL RIGHTS COMPLAINT OF RACKETEERING AND FRAUD UNDER THE RICO ACT FOR AN UNCONSTITUTIONAL PROTECTION SCHEME UNDER COLOR OF LAW OVER THE SECOND AMENDMENT VIOLATING PLAINTIFF’S RIGHT TO PETITION AND R IGHT TO DUE PROCESS AND FOR WRIT OF MANDAMUS, WRIT OF PROHIBITION, DECLARATORY AND INJUNCTIVE RELIEF & FOR DAMAGES; Dismissed with Prejudice. Appealed to DC Circuit, Case No. 04-5316. Appealed to U.S. Supreme Court on Rule 11 (Before Judgment of the DC Circuit); Petition for Writ of Certiorari, No. 04-1150, Denied.

CASE NO. 4:

Hamrick, pro se v. United States, U.S. District Court for DC, No. 1:04MS00422, filed September 1, 2004; MOTION FOR THE COURT TO SUMMON A SPECIAL GRAND JURY, IN RE: HAMRICK (PRO SE) V. PRESIDENT GEORGE W. BUSH, ET AL: A SECOND AMENDMENT CASE; TO INVESTIGATE ALLEGATIONS OF CORRUPTION AND RACKETEERING IN THE FEDERAL JUDICIARY AND IN THE U.S. DEPARTMENT OF JUSTICE. This case sought a criminal review of Cases 1 through 3 above. Case was dismissed because the judge sat on it doing nothing.

Because the federal courts have systematically and repetitively dismissed my Second Amendment case because my cases advocate the Second Amendment and Ninth Amendment right to “openly” keep and bear arms in intrastate, interstate, and maritime travel the federal courts have committed treason against the Constitution of the United States. Collection of filing fees is not a judicial function of federal judges or their court clerks it is an administrative function. Therefore federal judges are accountable for their acts of felony extortion under color of PART 3. THE P127 URPOSE OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE law (18 U.S.C. § 8972) and felony extortion under color of official right (racketeering) (18 U.S.C. § 1951(b)(2), even though they may issue court orders compelling payment with the subject matter of the case qualifies for the Seamen’s Suit Law (28 U.S.C. § 1916), the orders are still unlawfull. The evidence of bad faith behavior under Article III is clear and unmistakeable. See Mireles v. Waco 502 U.S. 9 (1991) (Judicial immunity is an immunity from suit, not just from ultimate assessment of damages, and it can be overcome only if a judge’s actions are nonjudicial or were taken in the complete absence of all jurisdiction.).

(2). To Compel Intervention by the Attorney General (42 U.S.C. § 2000h–2) To compel intervention by the Attorney General by Writ of Mandamus or by other court order to certify this case as one of general public importance in accordance with 42 U.S.C. § 2000h–2 for relief from the denial of equal protection of the laws under the Fourteenth Amendment to the Constitution on account national origin.

(3). To determine whether I have a civil Gideon right to court appointed qualified attorney under the American Bar Association’s Task Force on Access to Civil Justice’s recommendation. To determine whether I have a civil Gideon right to court appointed qualified legal representation under the American Bar Association’s Recommendation Adopted by the House of Delegates, August 7-8, 2006 (That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody as determined by each jurisdiction.).299

(4). To determine if Mandamus Relief was wrongfully Denied To determine whether the creation of the U.S. Department of Homeland Security on March 1, 2003 and the transfer of the U.S. Coast Guard from the U.S. Department of Transportation to the U.S. Department of Homeland Security provided the requisite “extraordinary situation” for mandamus relief from the U.S. Coast Guard’s Final Agency Action denying my Second Amendment right to have the “National Open Carry Handgun” endorsement on the Merchant Mariner’s Document and whether I have a clear right to relief and whether the United States has a clear duty to act and whether I exhausted all other available remedies. (See See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988); Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002); see also In re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000) (mandamus issued “only for the most transparent violations of a clear duty to act”). And to determine whether my original Petition for Writ of Mandamus (U.S. District Court for DC, No. 02-1435) and for damages (No. 02-1434) were wrongfully dismissed.

(5). To enforce my Seventh Amendment rights under the Common Law by treaty under the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN. To enforce my Seventh Amendment right to a civil jury trial under the common law after six years of unconstitutional summary judgments for dismissals on Motions to Dismiss by invoking my rights under the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN through the Treaty Clause as a private right of action in the U.S. District Court for the District of Columbia.

(6). To enforce a proper and uncorrupted judicial review of the FINAL AGENCY ACTION of the U.S. Coast Guard. To enforce my right to a proper and uncorrupted judicial review of the Final Agency Action of the U.S. Coast Guard for fraudulently denying my Second Amendment application for “National Open Carry Handgun”

299

http://www.abanet.org/legalservices/sclaid/downloads/06A112A.pdf

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PART 3. THE PURPOSE OF THIS CASE endorsement on the Merchant Mariner’s Document on the basis that the requested endorsement would not be in the best interest of marine safety or security.

(7). To determine whether provisions for private rights of action should be mandatory for all statutory rights under federal laws. To determine whether the Seamen’s Suit law, 28 U.S.C. § 1916, has an implied private right of action to effect citizen’s arrests by way of Citizen’s Arrest Warrants for federal judges and court clerks for 18 U.S.C. § 872 EXTORTION UNDER COLOR OF LAW and 18 U.S.C. § 1651(b)(c) EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering) and whether all statutory rights under federal laws should have provisions for private rights of action against federal employers for violating those statutory rights as part of the checks and balance system under the unenumerated rights of the Ninth Amendment and powers reserved to the People under the Tenth Amendment.

(8). To determine whether allegations of obstruction of justice against the U.S. Marshals Service are valid. To determine whether allegations of obstruction of justice against the U.S. Marshals Service are valid in refusing to accept, to act on, or to assist with my Citizen’s Arrest Warrant which included probable cause evidence of extortion under color of law and under color of official right in the form of copies of Court Orders unlawfully ordering me to pay the filing fees of the U.S. Court of Appeals for the DC Circuit as a seaman under the Seamen’s Suit Law Law (28 U.S.C. § 1916).

(9). To apply the Federal Tort Claims Act for violations of the Seamen’s Suit Law (28 U.S.C. § 1916). To hold certain federal judges and their court clerks liable under the Federal Tort Claims Act for administrative violations of the federal laws noted in Line Item H. above in light of the fact that immunity does not extend to administrative functions of judges and court employees. See Mireles v. Waco 502 U.S. 9 (1991) (Judicial immunity is an immunity from suit, not just from ultimate assessment of damages, and it can be overcome only if a judge’s actions are nonjudicial or were taken in the complete absence of all jurisdiction.). Collection of exempted filing fees is not a judicial function.

(10). To determine if six years of unconstitutional summary judgments on motion to dismiss meets the requisite conditions for mandamus relief. To determine whether the federal courts created an “extraordinary situation” for mandamus relief with 6years of dismissals through unconstutional summary judges on motions to dismiss with and without prejudice. (See We the People Foundation, et al v. United States, et al, U.S. District Court for DC, No. 04-1211 (August 31, 2005) (“The First Amendment does not impose any affirmative obligation on the government to listen, to respond.” affirmed by the DC Circuit, and certiorari denied by the U.S. Supreme Court); Bell Atlantic Corp. v. Twombly, 550 U.S. __, __, 127 S. Ct. 1955 (May 21, 2007) (ratcheting up the standard of pleading to give way to even more dismissals of civil causes under the new Plausible Standard of stating a claim to relief that a complaint must now provide “enough facts to state a claim to relief that is plausible on its face”).

(11). To determine whether the Assistant U.S. Attorney Dennis Barghaan of the U.S. Attorney’s Office in Alexandria committed obstructions of justice. To determine whether the Assistant U.S. Attorney Dennis Barghaan of the U.S. Attorney’s Office in Alexandria was brought into my case as the Special Attorney for the U.S. Department of Justice specifically to deny my Seventh Amendment right to a civil jury trial by expediting my case to dismiss with prejudice on August 16, 2004 (see Hamrick v. President George W. Bush, et al, U.S. District Court for DC, 03-2160) in order to deny me my right to use the U.S. Department of Justice’s Memorandum Opinion for the Attorney General, WHETHER PART 3. THE P129 URPOSE OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT,

300

that was released internally on August 24, 2004, just

eight days after the prejudiced dismissal of my case.

(12). To determine whether the scandal over the politically motivated firing of eight U.S. Attorneys during the 2006 presidential election effected obstructions of justice for my civil action at the U.S. District Court for the Eastern District of Arkansas, Little Rock. To determine whether politics during the presidential election of 2006 and political ideologies of judges of the U.S. District Court for the Eastern District of Arkansas, Little Rock played a role in the dismissal of my civil case against the United States and the United Nations (expending $1,000. to produce the 4-volume complaint with evidence, each volume being 1-inch thick with enough copies for all parties). (see Hamrick v. United Nations, United States, U.S. District Court, Little Rock, No. 06-0044).

(13). To determine whether the U.S. District Court in Little Rock, Arkansas committed obstructions of justice. To determine whether the U.S. District Court in Little Rock violated the Seamen’s Suit Law (28 U.S.C. § 1916) and Rule 4(c)(3) of the FEDERAL RULES OF CIVIL PROCEDURE by compelling payment of their filing fee. And because I did pay their filing fee under condition of coercion whether that District Court violated Rule 4(c)(3) to have the U.S. Marshals Service serve the Summons and Complaint upon the Defendants under on the claim by the Court Clerk that their was no storage space available to keep the 8 copies of the complaint (4 volumes x 8 copies = 32 books filling the capacity of 4 boxes) claiming that I did not have the right of service by U.S. Marshals Service under Rule 4(c)(3) because I paid the filing fee.

(14). To determine whether I have any enforceable statutory, constitutional, or human rights at all in the Courts of the United States. To determine whether I have any enforceable statutory, constitutional, or human rights after six years of unconstitutional summary judgments.

K. To Sue For the Rights of Third Parties (Jus Tertii Doctrine) (1). The law-abiding American people at large as a whole set of People as a Third Party. The Second Amendment rights to open carry in intrastate, interstate, and maritime travel and not my exclusive rights but rights belonging to the law-abiding American people at large as a whole set of people as a third party under the Bill of Rights and under the Thirteenth and Fourteenth Amendments as not only as citizens of the individual States but also as citizens of the United States.

(2). The Unorganized Militia, 10 U.S.C. § 311(b)(2), as a subset of the American people at large as a Third Party. Often ignored by State legislatures and the U.S. Congress their neglect necessitates the need for jus tertii litigation on their behalf.

300

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(3). American Merchant Seamen as a subset of the American people at large as a Third Party. Also ignored by State legislastures and the U.S. Congress is the role of U.S. merchant seamen in homeland security when the U.S. Department of Homeland Security has superintendence over the U.S. Merchant Marine through the U.S. Coast Guard.

(4). American Truck Drivers as a subset of the American people at large as a Third Party. The American truck drivers represent another subset of the American people who are discriminated against by State and Federal gun control laws and present another viable choice for a Third Party whose rights require defending under the jus tertii doctrine.

L. To Sue in the Interest of the Second Amendment (1). To present a Second Amendment Case by Invitation of U.S. Supreme Court To present a Second Amendment case to the U.S. Supreme Court to expound on the “many applications of the right to keep and bear arms” by request of Justice Scalia in District of Columbia v. Heller, U.S. Supreme Court, No. 07-290, at 63 (July 26, 2008).

(2). To determine whether unconstitutional conditions exist over the Second Amendment. To determine whether there exists a state of unconstitutional conditions in the United States over our Bill of Rights and the Thirteenth and Fourteenth Amendments, and our human right to life under international human rights treaties and whether and how, as an alleged free people, can we enforce those rights.

(3). To Compel Negotiated Rulemaking with the U.S. Coast Guard, the BATFE and the MARITIME ADVISORY COMMITTEE FOR OCCUPATIONAL SAFETY AND HEALTH (MACOSH) of the U.S. Department of Labor as Special Procedures Under Rule 16(C)(9) Federal Rules Of Civil Procedure, 33 C.F.R. § 1.05-60, 5 U.S.C. § 560-570a, and 5 U.S.C. Appendix - FEDERAL ADVISORY COMMITTEE ACT. (4). To resurrect open carry in intrastate, interstate, and maritime travel. To resurrect the lost Second Amendment and Ninth Amendment right to “openly” keep and bear arms in intrastate, interstate, and maritime travel as a badge of actual freedom. See Abraham Lincoln’s EMANCIPATION PROCLAMATION; and Dred Scott v. Sandford, 60 U.S. (19 How.) 416-417 (1857) (. . . , and to keep and carry arms wherever they went. . .) which gave birth to the Thirteenth and Fourteenth Amendments.

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M. To Sue for Equal Justice Under the Law (1). To Achieve Justice for Obstructions of Justice by the Hostile Federal Courts HELLER AND THE PERILS OF COMPROMISE Mark Tushnet (forthcoming in the Lewis & Clark Law Review) in TWO ESSAYS ON DISTRICT OF COLUMBIA V. HELLER Harvard Public Law Working Paper No. 08-17 (2008). Describing some regulations of gun ownership and use as presumptively constitutional seems to have been a necessary compromise, from Justice Scalia’s point of view. But compromises are risky because they provide the opportunity for later decisionmakers to move in either direction – toward invalidating even some of the presumptively constitutional regulations or, importantly, toward upholding everything but the regulation struck down in Heller – while maintaining that they are acting within the doctrine set out in Heller. As I have discussed in more detail elsewhere, gun policy is one of the locations were Americans conduct our culture wars. Heller’s meaning will be determined by – and in – future battles in those wars. I for one would not be amazed to discover that the gun-rights revolution turning out much like the federalism and takings revolutions, and for the same reason: Culture wars produce repeated battles in the courts and symbolic victories and defeats there, but permanent victory comes from developments elsewhere, which then yield real rather than symbolic decisions by the courts. Note the last sentence in Mark Tushnet’s, Heller and the Perils of Compromise: “Culture wars produce repeated battles in the courts and symbolic victories and defeats there, but permanent victory comes from developments elsewhere, which then yield real rather than symbolic decisions by the courts.” Elsewhere? Mark Tushnet may very well be hinting at a “Regulatory War.” As a U.S. Merchant Seaman my case presents on example of a Regulatory War. With this case I am applying the Second Amendment to federal laws and regulations from a merchant seaman’s point of view. In effect I am waging a “Regulatory War” against the U.S. Government hell-bent on denying my rights. Citing Caitlin E. Borgmann, LEGISLATIVE ARROGANCE AND CONSTITUTIONAL ACCOUNTABILITY, 79 Southern California Law Review 753 (2006) Our Constitution promises that the government may not infringe the constitutional rights of its citizens. For that promise to have any meaning, the government must be held accountable for such infringements. Under our constitutional system, the judiciary exists as a check to ensure that accountability. And yet, through artfully crafted legislation, state legislatures currently are infringing constitutional rights with impunity, shirking their constitutional responsibility by manipulating well-established principles designed to ensure that the government is held to account when it harms citizens through unconstitutional actions. Federal courts should stop this trend. Regardless of how sympathetic an underlying state goal may be, or how frustrated a state may be by the Supreme Court’s decisions, it is far worse to permit state legislative arrogance to go unchecked. The core constitutional principles of federal supremacy and the balancing of power among the branches of government are threatened by these actions, which invite an anarchy in which individual rights are constantly subject to shifting majorities. To take constitutional responsibility is to share constitutional authority the PART 3. THE PURPOSE132 OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE way our system of government intends, not to arrogate power because of disagreements with how other branches have exercised theirs. The federal courts should ensure that states who engage in legislative arrogance are held accountable by hearing pre-enforcement challenges to these acts. The legitimacy of such challenges is supported by a straightforward application of Article III case or controversy principles and the Ex parte Young doctrine, as well as by basic constitutional norms.

(2). To Challenge the Constitutionality of Rule 5.1(a)(1)(A) of the Federal Rules of Civil Procedure. Rule 5.1(a)(1)(A) on its face appears to unconstitutional prohibit a civil plaintiff from challenging the constitutionality of federal statutes when the United States or one of its agencies or one of its officers or employees in their official capacity are defendants.

(3) To challenge the constitutionality of the Eleventh Amendment. To determine whether the Eleventh Amendment unconstitutionally discriminates against out-of-state citizen’s in violation of the Fourteenth Amendment; whether the Eleventh Amendment was wrongly enacted; whether the Eleventh Amendment violates the pre-existing privileges and immunities clause of Article IV, Section 2; and whether the Eleventh Amendment unconstitutionally dismantles a vital mechanism in checks and balance system of the Constitution of the United States and cascadingly threatens the guarantee of a Republican form of Government; whether the Fourteenth Amendment nullified the Eleventh Amendment.

Chisholm v. Georgia 2 U.S. 419 at 466-468 (1793) (Justice Cushing) (pre-Eleventh Amendment) It is declared that ‘the Judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the United States, or treaties made or which shall be made under their authority; to all cases affecting ambassadors or other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies, to which the United States shall be a party; to controversies between two or more States and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State and citizens thereof and foreign States, citizens or subjects.’301 The judicial power, then, is expressly extended to ‘controversies between a State and citizens of another State.’302 When a citizen makes a demand against a State, of which he is not a citizen, it is as really a controversy between a State and a citizen of another State, as if such State made a demand against such citizen. The case, then, seems clearly to fall within the letter of the Constitution. It may be suggested that it could not be intended to subject a State to be a Defendant, because it would effect the sovereignty of States. If that be the case, what shall we do with the immediate preceding clause; ‘controversies between two or more States,’ where a State must of necessity be Defendant’ If it was not the intent, in the very next clause also, that a State might be made Defendant, why was it so expressed as naturally to lead to and comprehend that idea? Why was not an exception made if one was intended?303 Again what are we to do with the last clause of the section of judicial powers, viz. ‘Controversies between a state, or the citizens thereof, and foreign states or citizens?’ Here again, States must be 301

Plaintiff’s emphasis.

302

Plaintiff’s emphasis.

303

Plaintiff’s emphasis.

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PART 3. THE PURPOSE OF THIS CASE suable or liable to be made Defendants by this clause, which has a similar mode of language with the two other clauses I have remarked upon. For if the judicial power extends to a controversy between one of the United States and a foreign State, as the clause expresses, one of them must be Defendant. And then, what becomes of the sovereignty of States as far as suing affects it? But although the words appear reciprocally to affect the State here and a foreign State, and put them on the same footing as far as may be, yet ingenuity may say, that the State here may sue, but cannot be sued; but that the foreign State may be sued but cannot sue. We may touch foreign sovereignties but not our own.304 But I conceive the reason of the thing, as well as the words of the Constitution, tend to show that the Federal Judicial power extends to a suit brought by a foreign State against any one of the United States. One design of the general Government was for managing the great affairs of peace and war and the general defence; which were impossible to be conducted, with safety, by the States separately. 305 Incident to these powers, and for preventing controversies between foreign powers or citizens from rising to extremeties and to an appeal to the sword,306 a national tribunal was necessary, amicably to decide them, and thus ward off such fatal, public calamity. Thus, States at home and their citizens, and foreign States and their citizens, are put together without distinction upon the same footing, as far as may be, as-to controversies between them. So also, with respect to controversies between a State and citizens of another State (at home) comparing all the clauses together, the remedy is reciprocal; the claim to justice equal. As controversies between State and State, and between a State and citizens of another State, might tend gradually to involve States in war and bloodshed, a disinterested civil tribunal was intended to be instituted to decide such controversies, and preserve peace and friendship. Further; if a State is entitled to Justice in the Federal Court, against a citizen of another State, why not such citizen against the State, when the same language equally comprehends both? The rights of individuals and the justice due to them, are as dear and precious as those of States. Indeed the latter are founded upon the former; and the great end and object of them must be to secure and support the rights of individuals, or else vain is Government.307

304

Plaintiff’s emphasis to compare with the Eleventh Amendment.

305

Plaintiff’s emphasis to compare the term “general defence” with the “common defence” clause of the Preamble to the Constitution of the United States and the “great affairs of peace and war” with the “domestic Tranquility” clause of the same Preamble to imply that the aggregate effect of gun control laws of the 50 states endangers both the common defence and domestic Tranquility. The Eleventh Amendment endangers both. 306

Plaintiff’s emphasis. But for the want of an educated public and for the legitimate recognition of the unorganized militia the People of the Tenth Amendment would have already resorted to “the sword” on many occasions, prime example being the States’ and the United States failure to control the border with Mexico refusing to acknowledge that certain acts by the Mexican drug cartel with evidence of Mexican military participation in criminal activity well inside the United States are acts of war. See Michael Webster, Mexican Drug Cartels Out of Control in the U.S. and Mexico, American Chronicle, August 3, 2008 available online at http://www.americanchronicle.com/articles/70429. 307

Plaintiff’s emphasis. Hence the gun control laws of every State in their aggregate effect is a war against the citizens of the United States their right to travel with their Second Amendment right to “openly” keep and bear arms because the U.S. Supreme Court refuses to apply the Second Amendment to the States through the Fourteenth Amendment. The Eleventh Amendment exacerbates that war against the rights of out-of-state citizens.

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(4). To determine whether a U.S. seaman has a private right of action against the United Nations PROGRAMME OF ACTION TO PREVENT, COMBAT AND ERADICATE THE ILLICIT TRADE IN SMALL ARMS AND LIGHT WEAPONS IN ALL ITS ASPECTS (UN Document A/CONF.192/15). To determine whether a U.S. seaman has a private right of action under the RICO Act and under human rights treaties to sue the United Nations in the U.S. District Court for the District of Columbia for violating the United Nations Charter, Article 2, Clause 7 for their Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects (UN Document A/CONF.192/15)

(5). To determine whether Pacer Online Docket Fees are part of the Seamen’s Suit Law. To determine whether Pacer Online Docket Fees are automatically included in the Seamen’s Suit Law as exempted fees for American seamen.

N. To Sue for Seamen’s Rights Under the Law (1) No Explicit Private Right of Action Stated in the Seamen’s Suit Law, 28 U.S.C. § 1916 Congress did not explicitly express a private right of action in the Seamen’s Suit Law, 28 U.S.C. § 1916 for a Seventh Amendment right to a civil jury trial as a remedy o prevent the federal judges and court clerks from compelling payment of filing fees from seamen with cases qualifying under the Seamen’s Suit Law which would and does criminally violate the Seamen’s Suit Law and 18 U.S.C. § 872 EXTORTION UNDER COLOR OF LAW and 18 U.S.C. § 1651(b)(c) EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering). (2) There is an Implied Private Right of Action in the Seamen’s Suit Law, 28 U.S.C. § 1916 Citing from Paul B. Stephan in Section III Private Enforcement of Federal Statutes: An Evolving Jurisprudence, in PRIVATE REMEDIES FOR TREATY VIOLATIONS AFTER SANCHEZ-LLAMAS, 11 Lewis & Clark L. Rev. 65 at 71 (2007),308 and stylizing the text for display here: “. . . Justice Brennan, writing for the Court [in Cort v. Ash 422 U.S. 66 (1975)], offered a four-point test for determining whether courts could infer a power of private enforcement from a statute that did not expressly address the issue.” “In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant.” [TEST (1).]

[Is] the plaintiff “one of the class for whose especial benefit the statute was enacted,” Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39 (1916) (emphasis supplied) – that is, does the statute create a federal right in favor of the plaintiff?

ANSWER: Yes. I am a merchant seaman. The Seamen’s Suit Law, 28 U.S.C. § 1916 is specificly directed to merchant seamen. [TEST (2).]

[Is] there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e. g., National Railroad Passenger Corp. v. National Assn. of Railroad Passengers, 414 U.S. 453, 458 , 460 (1974) (Amtrak).”

ANSWER: Citing from Citing Isbrandtsen Co. v. Johnson, 343 U.S. 779, 782-784 (1952):

308

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PART 3. THE PURPOSE OF THIS CASE Whenever congressional legislation in aid of seamen has been considered here since 1872, this Court has emphasized that such legislation is largely remedial and calls for liberal interpretation in favor of the seamen. The history and scope of the legislation is reviewed in Aguilar v. Standard Oil Co., 318 U.S. 724, 727 -735 (1943), and notes. “Our historic national policy, both legislative and judicial, points the other way [from burdening seamen]. Congress has generally sought to safeguard seamen’s rights.” Garrett v. Moore-McCormack Co., 317 U.S. 239, 246 (1942). “[T]he maritime law by inveterate tradition has made the ordinary seaman a member of a favored class. He is a ‘ward of the admiralty,’ often ignorant and helpless, and so in need of protection against himself as well as others. . . . Discrimination may thus be rational in respect of remedies for wages.” Warner v. Goltra, 293 U.S. 155, 162 (1934); Cortes v. Baltimore Insular Line, 287 U.S. 367, 375, 377 (1932); Wilder v. Inter-Island Navigation Co., 211 U.S. 239, 246-248 (1908); Patterson v. Bark Eudora, 190 U.S. 169 (1903); Brady v. Daly, 175 U.S. 148, 155-157 (1899). “The ancient characterization of seamen as `wards of admiralty’ is even more accurate now than it was formerly.” Robertson v. Baldwin, 165 U.S. 275, 287 (1897); 5 Harden v. Gordon, 11 Fed. Cas. No. 6,047, 2 Mason (Cir. Ct. Rep.) 541, 556. Statutes which invade the common law or the general maritime law are to be read with a presumption favoring the retention of longestablished and familiar principles, except when a statutory purpose to the contrary is evident. No rule of construction precludes giving a natural meaning to legislation like this that obviously is of a remedial, beneficial and amendatory character. It should be interpreted so as to effect its purpose. Marine legislation, at least since the Shipping Commissioners Act of June 7, 1872, 17 Stat. 262, should be construed to make effective its design to change the general maritime law so as to improve the lot of seamen. “The rule that statutes in derogation of the common law are to be strictly construed does not require such an adherence to the letter as would defeat an obvious legislative purpose or lessen the scope plainly intended to be given to the measure.” Jamison v. Encarnacion, 281 U.S. 635, 640 (1900); Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437 (1907), 440. The direction of the current of maritime legislation long has been evident on its face. “In this country these notions were reflected early, and have since been expanded, in legislation designed to secure the comfort and health of seamen aboard ship, hospitalization at home and care abroad. . . . The legislation . . . gives no ground for making inferences adverse to the seaman or restrictive of his rights. . . . Rather it furnishes the strongest basis for regarding them broadly, when an issue concerning their scope arises, and particularly when it relates to the general character of relief the legislation was intended to secure.” Aguilar v. Standard Oil Co., 318 U.S. 724, 728-729 (1943). Citing Nicholas Schreiber v. K-Sea Transportation Corp. New York, Supreme Court, Appellate Division, April 25, 2006; 5410N Index 104992/04 107571/04: Petitioner, as a ward of the admiralty, is entitled to heightened protection from the courts. There is a long-standing policy to safeguard the rights of seamen, whose contracts are traditionally viewed with solicitude: They are emphatically the wards of the admiralty; and though not technically incapable of entering into a valid contract, they are treated in the same manner, as courts of equity are accustomed to treat young heirs, dealing with their expectancies, wards with their guardians, and cestuis quetrust with their trustees. . . . If there is any undue inequality in the terms, any disproportion in the bargain, any sacrifice of rights on one side, which are not compensated by extraordinary benefits on the other, the judicial interpretation of the transaction, is that the bargain is unjust and unreasonable, that advantage has been taken of the situation of the weaker party, and that pro tanto the bargain ought to be set aside as inequitable. (Garrett v. Moore-McCormack Co., PART 3. THE PURPOSE136 OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE 317 U.S. at 246, 1942 AMC at 1650, quoting Harden v. Gordon, 2000 AMC 893, 902, 11 Fed Cas 480, 485 [1823]) TEST (3).

[Is] it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? See, e. g., Amtrak, supra; Securities Investor Protection Corp. v. Barbour, 421 U.S. 412, 423 (1975); Calhoon v. Harvey, 379 U.S. 134 (1964).”

ANSWER: Yes, by the fact that seamen arewards of the Admiralty. TEST (4).

[Is] the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? See Wheeldin v. Wheeler, 373 U.S. 647, 652 (1963); cf. J. I. Case Co. v. Borak, 377 U.S. 426, 434 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 394 -395 (1971); id., at 400 (Harlan, J., concurring in judgment).”

ANSWER: The cause of action is strictly for the federal courts. But when the judicial, the executive, and the legislative branch denies all available remedies under the First Amendment right to petitition the government for redress of grievances and the Seventh Amendment right to a civil jury trial under the aggregate effect of appearing to be generalized corruption and obstructions of justice then the only remedy left is the Ninth Amendment right and the Tenth Amendment power reserved to the People to make citizen’s arrests with the Citizen’s Arrest Warrant with accompanying evidence of felony violations of federal law, as in my case, the Seamen’s Suit Law, 28 U.S.C. § 1916. But because the Seamen’s Suit Law does not explicitly provide for such a private right of action such as the Citizen’s Arrest remedy as a remedy of last resort or even the traditional Seventh Amendment right to a civil jury trial the victim must present a civil case against the United States for a civil jury trial for a judicial determination on the implied private right of action in the Seamen’s Suit Law. See also, We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 04-1211 (August 31, 2005): The Supreme Court, however, has held that “the First Amendment does not impose any affirmative obligation on the government to listen, to respond . . .” See Smith v. Ark. State Highway Employees, Local 1315, 441 U.S. 463, 465 (1979). Id. Affirmed, DC Circuit, No. 05-5359 (May 8, 2007) (Certiorari denied, January 7, 2008; Petition for Rehearing denied, February 25, 2008): We need not resolve this debate, however, because we must follow the binding Supreme Court precedent. See Tenet v. Doe, 544 U.S. 1, 10-11 (2005). And under that precedent, Executive and Legislative responses to and consideration of petitions are entrusted to the discretion of those Branches. See also, Justice Harlan’s Dissent in Downes v. Bidwell, 182 U.S. 244 at 376-382 (1901) Mr. Justice Harlan, dissenting: In Martin v. Hunter, 1 Wheat. 304, 324, 326, 331, 4 L. ed. 97, 102, 104, this court speaking by Mr. Justice Story, said that ‘the Constitution of the United States was ordained and established, not by the states in their sovereign capacities but emphatically, as the preamble of the Constitution declares, by ‘the People of the United States.” In McCulloch v. Maryland, 4 Wheat. 316, 403-406, 4 L. ed. 579, 600, 601, Chief Justice Marshall, speaking for this court, said: ‘The government proceeds directly from the people; is ‘ordained and established’ in the name of the people; and is declared to be ordained ‘in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings PART 3. THE P137 URPOSE OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE of liberty to themselves and to their posterity.’ The assent of the states, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. The Constitution, when thus adopted, was of complete obligation, and bound the state sovereignties. . . . The government of the union, then (whatever may be the influence of this fact on the case) is emphatically and truly a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them and for their benefit. This government is acknowledged by all to be one of enumerated powers. . . . It is the government of all; its powers are delegated by all; it represents all, and acts for all.’ Although the states are constituent parts of the United States, the government rests upon the authority of the people of the United States, and not on that of the states. Chief Justice Marshall, delivering the unanimous judgment of this court in Cohen v. Virginia, 6 Wheat. 264, 413, 5 L. ed. 257, 293, said: ‘That the United States form, for many and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. . . . In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests . . . is the government of the Union. It is their government, and in that character they have no other. America has chosen to be, in many respects and to many purposes, a nation; and for all these purposes her government is complete; to all these objects it is competent. The people have declared that in the exercise of all powers given for those objects it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory.’ In reference to the doctrine that the Constitution was established by and for the states as distinct political organizations, Mr. Webster said: ‘The Constitution itself in its very front refutes that. It declares that it is ordained and established by [182 U.S. 244, 378] the People of the United States. So far from saying that it is established by the governments of the several states, it does not even say that it is established by the people of the several states. But it pronounces that it was established by the people of the United States in the aggregate. Doubtless, the people of the several states, taken collectively, constitute the people of the United States. But it is in this their collective capacity, it is as all the people of the United States, that they established the Constitution.’ In view of the adjudications of this court I cannot assent to the proposition, whether it be announced in express words or by implication, that the national government is a government of or by the states in union, and that the prohibitions and limitations of the Constitution are addressed only to the states. That is but another form of saying that, like the government created by the Articles of Confederation, the present government is a mere league of states, held together by compact between themselves; whereas, as this court has often declared, it is a government created by the People of the United States, with enumerated powers, and supreme over states and individuals with respect to certain objects, throughout the entire territory over which its jurisdiction extends. If the national government is in any sense a compact, it is a compact between the People of the United States among themselves as constituting in the aggregate the political community by whom the national government was established. The Constitution speaks, not simply to the states in their organized capacities, but to all peoples, whether of states or territories, who are subject to the authority of the United States. Martin v. Hunter, 1 Wheat. 327, 4 L. ed. 103. ... Although from the foundation of the government this court has held steadily to the view that the government of the United States was one of enumerated powers, and that no one of its branches,

PART 3. THE PURPOSE138 OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE nor all of its branches combined, could constitutionally exercise powers not granted, or which were not necessarily implied from those expressly granted (Martin v. Hunter, 1 Wheat. 326, 331, 4 L. ed. 102, 104) . . . This nation is under the control of a written constitution, the supreme law of the land and the only source of the powers which our government, or any branch or officer of it, may exert at any time or at any place. . . .To say otherwise is to concede that Congress may, by action taken outside of the Constitution, engraft upon our republican institutions a colonial system such as exists under monarchical governments. Surely such a result was never contemplated by the fathers of the Constitution. If that instrument had contained a word suggesting the possibility of a result of that character it would never have been adopted by the people of the United States. . .. The idea prevails with some-indeed, it found expression in agruments at the bar-that we have in this country substantially or practically two national governments; one to be maintained under the Constitution, with all its restrictions; the other to be maintained by Congress outside and independently of that instrument, by exercising such powers as other nations of the earth are accustomed to exercise. It is one thing to give such a latitudinarian construction to the Constitution as will bring the exercise of power by Congress, upon a particular occasion or upon a particular subject, within its provisions. It is quite a different thing to say that Congress may, if it so elects, proceed outside of the Constitution. The glory of our American system [182 U.S. 244, 381] of government is that it was created by a written constitution which protects the people against the exercise of arbitrary, unlimited power, and the limits of which instrument may not be passed by the government it created, or by any branch of it, or even by the people who ordained it, except by amendment or change of its provisions. ‘To what purpose,’ Chief Justice Marshall said in Marbury v. Madison, 1 Cranch, 137, 176, 2 L. ed. 60, 73, ‘are powers limited, and to what purpose is that limitation committed to writting, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.’ The wise men who framed the Constitution, and the patriotic people who adopted it, were unwilling to depend for their safety upon what, in the opinion referred to, is described as ‘certain principles of natural justice inherent in Anglo-Saxon character, which need no expression in constitutions or statutes to give them effect or to secure dependencies against legislation manifestly hostile to their real interests.’ They proceeded upon the theory-the wisdom of which experience has vindicated- that the only safe guaranty against governmental oppression was to withhold or restrict the power to oppress. They well remembered that Anglo- Saxons across the ocean had attempted, in defiance of law and justice, to trample upon the rights of Anglo-Saxons on this continent, and had sought, by military force, to establish a government that could at will destroy the privileges that inhere in liberty. They believed that the establishment here of a government that could administer public affairs according to its will, unrestrained by any fundamental law and without regard to the inherent rights of freemen, would be ruinous to the liberties of the people by exposing them to the oppressions of arbitrary power. Hence, the Constitution enumerates the powers which Congress and the other departments may exercise,leaving unimpaired, to the states or the People, the powers not delegated to the national government nor prohibited to the states. That instrument so expressly declares in [182 U.S. 244, 382] the 10th Article of Amendment. It will be an evil day for American liberty if the theory of a government outside of the supreme law of the land finds lodgment in our constitutional jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution.

PART 3. THE P139 URPOSE OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE

O. Arbitrary Exercise of Government Power Citing Leeper v. Texas, 139 U.S. 462, 463 (1891), 11 Sup. Ct. Rep. 577. “By the Fourteenth Amendment, the powers of states in dealing with crime within their borders are not limited, except that no state can deprive particular persons or classes of persons of equal and impartial justice under the law, that law in its regular course of administration through courts of justice is due process, and when secured by the law of the state, the constitutional requirement is satisfied, and that due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice.”) The following cases were dismissed by arbitrary exercise of government (judicial bias by interjected a political ideology as a replacement for the Rule of Law and equal justice under the law) power under the unconstitutional summary judgment in violation of the Seventh Amendment right to a civil jury trial under the common law: U.S. District Court/DC, No. 02-1434 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 02-1435 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 03-2160 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 04-0422 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 04-2040 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 05-1993 (OBEYED 28 U.S.C. § 1916) DC Circuit, No. 02-5334 (VIOLATED 28 U.S.C. § 1916) DC Circuit, No. 04-5316 (VIOLATED 28 U.S.C. § 1916) DC Circuit, No. 05-5414 (VIOLATED 28 U.S.C. § 1916) DC Circuit, No. 05-5429 (VIOLATED 28 U.S.C. § 1916) 8th CIRCUIT, CASE NO. 07-2400 (VIOLATED 28 U.S.C. § 1916W) U.S. District Court/Little Rock, No. 06-0044. (VIOLATED 28 U.S.C. § 1916) U.S. Supreme Court, Nos. 03-145 (VIOLATED 28 U.S.C. § 1916) U.S. Supreme Court, Nos. 04-1150 (VIOLATED 28 U.S.C. § 1916) U.S. Supreme Court, Nos. 04M56 (VIOLATED 28 U.S.C. § 1916)

(1). To Incorporate the Second Amendment through the Fourteenth Amendment. To determine whether the Second Amendment is incorporated with the Bill of Rights through the Fourteenth Amendment to apply to the States as well as to the United States thus enabling the Second Amendment right to “openly” keep and bear arms in intrastate, interstate, and maritime travel as an unenumerated right of the Ninth Amendment and whether the combination of the Second and Ninth Amendment conditions the right to “openly” keep and bear arms in intrastate, interstate, and maritime travel as a near absolute right as a presumption of liberty rather that as a privilege of the States’ police power in terms of regulating, restricting, or prohibiting that right.

(2). To determine whether the U.S. Department of Justice and the FBI have a duty to investigate allegations of extortion and corruption against federal judges and their court clerks. To determine Whether the U.S. Department of Justice and the FBI have a Duty to Investigate and Prosecute Allegations Against Federal Judges and Their Court Clerks of EXTORTION UNDER COLOR OF LAW (18 U.S.C. § 872) and EXTORTION UNDER COLOR OF OFFICIEAL RIGHT (Racketeering under 18 U.S.C. § 1951(b)(2)) PART 3. THE PURPOSE140 OF THIS CASE

PART 3. THE PURPOSE OF THIS CASE as applied to the Seamen’s Suit Law (28 U.S.C. § 1916) in accordance with the U.S Attorney’s Manual, Title 9, § 131.020 INVESTIGATIVE AND SUPERVISORY JURISDICTION.

(3). To determine the role of the Citizen’s Arrest Warrant in the Checks and Balance System of the Constitution of the United States. To determine whether the Citizen’s Arrest Warrant as a remedy of last resort can be applied against federal judges and their court clerks for EXTORTION UNDER COLOR OF LAW (18 U.S.C. § 872) and EXTORTION UNDER COLOR OF OFFICIEAL RIGHT (Racketeering under 18 U.S.C. § 1951(b)(2)) for violation of the Seamen’s Suit Law (28 U.S.C. § 1916) has a role in the Checks and Balance System of the U.S. Constitution. And to determine whether a CITIZEN’S ARREST WARRANT under the Law of Citizen’s Arrest as implied by DC Code, § 23.582(b)(1)(A) ARRESTS WITHOUT WARRANT BY OTHER PERSONS with probable cause evidence of extortion as noted in Line Item H. above places a burden of compliance upon the U.S. Marshals Service under 28 U.S.C. § 566(c) POWERS AND DUTIES to assistance with the execution of the Citizen’s Arrest Warrant without threats of arrest and prosecution for 18 U.S.C. § 111 ASSAULTING, RESISTING, OR IMPEDING CERTAIN OFFICERS OR EMPLOYEES; 18 U.S.C. § 1201 KIDNAPPING; and 18 U.S.C. § 1203 HOSTAGE TAKING as alleged by agents of the U.S. Marshals Service.

(4). To Determine what role the U.S. Merchant Marine has in homeland security when the U.S. Department of Homeland Security has superintendence of the Merchant. To determine whether the U.S. Merchant Marine and American seafarers have a role in homeland security under the Second Amendment as an individual right. (see definition of Secretary under Title 46 Shipping of the U.S. Code: 46 U.S.C. § 2101(34) (“Secretary”, except in part H [Identification of Vessels], means the head of the department in which the Coast Guard is operating [which is the U.S. Department of Homeland Security]) (see also the definition of Secretary under Title 14 U.S. Coast Guard of the U.S. Code: 14 U.S.C. § 5. “Secretary” is defined as the Secretary of the respective department in which the Coast Guard is operating [again the U.S. Department of Homeland Security]. (see also 14 U.S.C. § 1 U.S. Coast Guard Operating under the U.S. Department of Homeland Security). (see also 46 U.S.C. § 2103 SUPERINTENDENCE OF THE MERCHANT MARINE (The Secretary [of the U.S. Department of Homeland Security] has general superintendence over the merchant marine of the United States and of merchant marine personnel insofar as the enforcement of this subtitle is concerned and insofar as those vessels and personnel are not subject, under other law, to the supervision of another official of the United States Government. In the interests of marine safety and seamen’s welfare, the Secretary shall enforce this subtitle and shall carry out correctly and uniformly administer this subtitle. The Secretary may prescribe regulations to carry out the provisions of this subtitle.

(5). To determine whether the federal courts are waging a judicial war against the Constitution of the United States To determine whether the federal courts are waging a judicial war against the Constitution of the United States and against the American People’s right to a civil jury trial under the Seventh Amendment. (See We the People Foundation, et al v. United States, et al, U.S. District Court for DC, No. 04-1211 (August 31, 2005) (“The First Amendment does not impose any affirmative obligation on the government to listen, to respond.” affirmed by the DC Circuit, and certiorari denied by the U.S. Supreme Court); Bell Atlantic Corp. v. Twombly, 550 U.S. __, __, 127 S. Ct. 1955 (May 21, 2007) (ratcheting up the standard of pleading to give way to even more dismissals of civil causes under the new Plausible Standard of stating a claim to relief that a complaint must now provide “enough facts to state a claim to relief that is plausible on its face”).

PART 3. THE P141 URPOSE OF THIS CASE

PART 4. IN DEFENSE OF PRO SE CIVIL LITIGATION

PART 4. IN DEFENSE OF PRO SE CIVIL LITIGATION Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

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PART 4. IN DEFENSE OF PRO SE CIVIL LITIGATION

A. The Congress Has Killed the Private Bill (First Amendment Right to Petition) “While the absolute number of private bills submitted by individual members of Congress has remained relatively steady, the number that have become private laws has shown a precipitous decline.” (Citing Matthew Mantel, PRIVATE BILLS AND PRIVATE LAWS, 99 Law Library Journal 87, 90 (May 2007)). Footnote 24 in Mantel’s article only listed data from 96th Congress (1979) to the 108th Congress (2003). Don Hamrick found the data to create a more expanded chart from the 80th Congress (1947) to the present day 110th Congress (December 12, 2007).

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PART 4. IN DEFENSE OF PRO SE CIVIL LITIGATION

B. 2008 UPDATE: Neither the House nor the Senate have passed any Private Bills from January 3 to June 30, 2008 http://www.senate.gov/reference/resources/pdf/110_2.pdf (1) “Private Legislation”

A HISTORY OF THE COMMITTEE ON THE JUDICIARY 1813–2006 Section II–Jurisdictions History of the Judiciary Committee “PRIVATE LEGISLATION,” House Document No. 109-153, pp. 143-148 http://www.gpoaccess.gov/serialset/cdocuments/hd109-153/browse.html Nearly half of all the laws enacted by Congress have been private laws. 309 Unlike public law, which applies to public matters and deals with individuals only by classes, the provisions of private law apply to “one or several specified persons, corporations, [or] institutions.”310 Private legislation has its foundation in the right to “petition the government for a redress of grievances”311 guaranteed to all citizens by the First Amendment to the U.S. Constitution. Congress sometimes chooses to enact private law to grant relief in situations where no other legal remedies are available. Private legislation is premised on the idea that public law cannot cover all situations equitably, and sometimes Congress must address special circumstances with specially targeted legislation. In this sense, private law has been called “an anomaly,”312 since it is intended to address specific problems that public law either created or overlooked. The 1st Congress enacted 10 private laws. The 59th Congress–the historic high water mark of private legislation–enacted 6,249. Reporters observing the 59th Congress (1905–1906) noted that, on one occasion, 320 private pension bills passed the House in an hour and a half, “an average of three each minute.” One reporter characterized the Chairman of the Committee of the Whole as presiding with “auctioneer-like qualities” as these private pension measures were raised and rapidly adopted in turn.313 Today Congress enacts very little private legislation. In the last 10 Congresses combined it has enacted just 159 private measures, a mere two percent of the amount passed in the 1905–1906 sessions alone. In the 108th Congress, just one percent of the laws enacted by Congress were private – the lowest percentage of private legislation enacted at any time in the nation’s history. The first private law enacted by Congress in 1789 awarded a year-and-a-half’s pay at the rank of Captain to a foreign citizen serving in the U.S. military.314 Since that time, Congress has enacted 309

According to data obtained from CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, v.7, §1028, the CALENDAR OF THE UNITED S TATES HOUSE OF REPRESENTATIVES AND HISTORY OF LEGISLATION FROM THE 74 TH THROUGH 79TH CONGRESSES, and the CONGRESSIONAL RECORD’S RESUME OF CONGRESSIONAL ACTIVITY FROM THE 80TH THROUGH 109TH CONGRESSES, BETWEEN 1789 AND 2006, Congress enacted a total of 94,120 laws. Of these, 45,937 — 49 percent — have been private laws. 310

HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, v.4, §3285.

311

U.S. CONGRESS, CONSTITUTION, JEFFERSON’S MANUAL, AND RULES OF THE HOUSE OF REPRESENTATIVES, H.Doc. 108–241, 108th Cong., 2nd sess. (Washington: GPO, 2005), §208, p. 90. (Hereafter referred to as “HOUSE MANUAL”).

312

“PRIVATE BILLS IN CONGRESS,” Harvard Law Review, vol. 79, June 1966, p. 1684.

313

“Three Pensions a Minute,” New York Times, May 12, 1906, p. 9.

314

CONGRESSIONAL QUARTERLY’S GUIDE TO CONGRESS, 5th ed., vol. I (Washington: Congressional Quarterly, Inc., 2000), p. 526.

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PART 4. IN DEFENSE OF PRO SE CIVIL LITIGATION over 45,000 private laws dealing with issues both commonplace and extraordinary: providing pensions or lump sum payments to soldiers and widows, satisfying sundry monetary claims against the government, correcting military records, eliminating the “political disabilities” of Civil War rebels, fixing immigration problems, extending patents, providing vessel documentation, refunding tariffs or overpayments, expediting the naturalization process for a potential Olympian, authorizing the Speaker of the House to wear a foreign military decoration, and permitting the family of an immigrant murdered in a post 9/11 hate crime to remain in the United States. Historically, most private legislation introduced in the House of Representatives was considered by various private claims Committees in the House315 or by the Committee on Immigration and Naturalization. 316 THE 1946 LEGISLATIVE REORGANIZATION ACT,317 however, transferred jurisdiction over both immigration and claims to the House Committee on the Judiciary, along with jurisdiction over patents. Thus, since 1947, only a fraction of private measures dealing with sundry matters such as public lands, vessel documentation, military awards, veterans’ benefits and legislation relating to tax and tariffs introduced in the House have been referred to Committees other than the House Committee on the Judiciary. While the overall volume of private law has not been large in recent years, the internal workload of the Judiciary Committee and of its Members and professional staff, in dealing with private legislation has remained significant. Over the last 27 years, the House Judiciary Committee has processed 91 percent of all private laws enacted. In addition, the importance of the task of reviewing such legislation is as high as ever. In its truest sense, each private measure referred to the House Judiciary Committee represents a plea for relief from a petitioner who, in theory, has no other recourse. The problems involved may touch on some of the most important and emotionally-charged subjects imaginable: a mother’s plea to bring an adopted child into the United States, the death of a soldier’s toddler due to government negligence, payments justly owed to a small business but tied up in bureaucratic red tape. Since 1947, private immigration and claims bills have been handled in the House by subcommittees of the full Judiciary Committee, initially known as Subcommittee No. 1 (dealing with immigration and nationality) and Subcommittee No. 2 (dealing with claims against the government.)318 Currently, such measures are referred to one Judiciary subcommittee, the Subcommittee on Immigration, Border Security, and Claims, for review. Individual private cases are examined by the Subcommittee to determine if they meet the criteria for private relief and are in keeping with precedents and with Congress’s overarching goal of making equitable law. The decline in the introduction of private legislation in recent decades stems primarily from incremental reforms made by Congress to delegate the authority to address most private grievances administratively or through the courts. Examples of this progression include the creation of the United States Court of Claims in 1855, the enactment of the Federal Tort Claims 315

These include the House Committees on Claims; Pensions and Revolutionary Claims; Private Land Claims; Revolutionary Claims; Military Pensions; Invalid Pensions; Revolutionary Pensions; War Claims; and Pensions. David T. Canon, Garrison Nelson, Charles Stewart III, Committees in the U.S. Congress, 1789–1946, vol. 1, (Washington: CQ Press, 2002), pp. VIXXXV. 316

U.S. Congress, House Committee on the Judiciary, HISTORY OF THE COMMITTEE ON THE JUDICIARY REPRESENTATIVES, Committee Print, 92nd Cong. 2nd sess., (Washington: GPO, 1972), p. 5.

OF THE

317

P.L. 79–601, 60 Stat. 812.

318

CRS Typed Report, (TRENDS IN ACTIVITY ON PRIVATE LEGISLATION IN CONGRESS), by Richard S. Beth, p. 8.

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HOUSE

OF

PART 4. IN DEFENSE OF PRO SE CIVIL LITIGATION Act, and the passage of similar statutes permitting administrative settlement of most military claims.319 Likewise, changes in immigration law have, at times, led to reductions in the introduction of private legislation in Congress.320 Congress has also made numerous internal reforms that have had the effect of reducing the amount of private legislation introduced. For example, section 131 of the 1946 Legislative Reorganization Act barred the introduction of private bills addressing grievances that might be resolved by the Tort Claims Procedure of Title 28, bills to grant a pension, to construct a bridge over a navigable stream, or to correct a military or naval record. These provisions were made part of the standing rules of the House in 1953, and are currently codified in Rule XIII, clause 4.321 As former House Judiciary Committee Chairman Emanuel Celler noted, these changes initially did “effect some change in the private bill workload,” reducing the percentage of private measures enacted from 55 percent immediately before the reforms, to 34 percent after their adoption. 322 Additional reforms undertaken by the House Judiciary Committee in 1947 barred stays of deportation simply because of the introduction of a private bill for “stowaways, deserting seamen, and border jumpers.” The Committee realized that a large fraction of private immigration bills were being introduced by Members, not with the hope of them becoming law, but simply to stay deportation proceedings. The simple introduction of a relief bill meant that the alien would not be deported while the measure was pending, whether or not the measure was ever acted upon. The volume of private legislation introduced, and as a result, the workload of the House Judiciary Committee, however, remained unmanageably large despite these reforms. In the 90th Congress (1967–1968), for example, House Judiciary Subcommittee No. 2 was referred 779 private claims bills and oversaw the enactment of 116 of them into law. Subcommittee No. 1 was referred over 6,000 private immigration bills.323 According to former Rep. William Cahill, this represented “the largest number [of private immigration bills] ever introduced” up to that time.324 While the Judiciary panel worked hard to meet its responsibilities – its immigration subcommittee held 37 meetings and oversaw the enactment of 216 private laws – the strain from such legislative volume meant that it was simply, “unable to remain current.”325 In response to this challenge, the restrictions on stays of deportation for certain petitioners were further broadened. According to Rep. Cahill, in 1967, the Committee rule “was broadened to include those who entered the United States as transients en route to third countries and [who] illegally remain[ed] in this country.”326 New Judiciary Committee rules adopted in 1969, and 319

CRS Typed Report, (TRENDS IN ACTIVITY ON PRIVATE LEGISLATION IN CONGRESS), by Richard S. Beth.

320

Other changes in immigration law have arguably led to increases in the introduction of private bills at certain points in congressional history. For more information on immigration policy and its effect on private legislation, see TRENDS IN ACTIVITY ON PRIVATE LEGISLATION IN CONGRESS, by Richard S. Beth, and CRS Report RL33024, PRIVATE IMMIGRATION LEGISLATION, by Margaret Mikyung Lee. 321

HOUSE MANUAL, §822, p. 601.

322

Rep. Emanuel Celler, remarks in the House, CONGRESSIONAL RECORD, daily edition, vol. 95, pt. 15, May 12, 1949, p. A2901. 323

U.S. Congress, House Committee on the Judiciary, SUMMARY (Washington: GPO, 1968), p. 9.

OF

ACTIVITIES, Committee Print, 90th Cong., 2nd sess.,

324

Rep. William T. Cahill, remarks in the House, CONGRESSIONAL RECORD, vol. 115, pt. 20, Mar. 12, 1969,

325

Ibid., p. H1630.

326

Rep. William T. Cahill, remarks in the House, CONGRESSIONAL RECORD, vol. 115, pt. 20, Mar. 12, 1969, p. H1629.

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p. H1629.

PART 4. IN DEFENSE OF PRO SE CIVIL LITIGATION amended in 1971, further tightened procedures for the consideration of private immigration measures and contributed signifi cantly to an overall decline in their introduction. Specifi cally, the rules altered Committee policy by eliminating the stay of deportation of various additional petitioners that used to be automatic upon the introduction of a private immigration bill. These Judiciary Committee rules changes led the introduction of private immigration bills to “drop sharply.”327 The marked reduction in private laws enacted in recent decades stem largely from these reforms, but doubtless also stems in part from periodic accusations of impropriety or the appearance of impropriety in the introduction of private measures. In 1969 and 1976, Members and staff in both chambers were accused of soliciting and accepting bribes in exchange for the introduction of private immigration measures.328 In addition, the widely publicized 1980 FBI Abscam bribery sting operation revolved, in part, around requests for the introduction of private bills in exchange for money. 329 Today, in considering private immigration bills, the Judiciary Committee generally reviews only those cases that are of such an extraordinary nature that an exception to the law is needed and acts favorably on only those private bills that meet certain well-defined precedents. The Subcommittee has published detailed rules of procedure for the consideration of private immigration and claims bills, and works regularly with Members and staff to guide them in the framing and drafting of private legislation on behalf of their constituents.330

C. The Plaintiff has the Right to Challenge the Constitutionality of a Statute (Case Law) “A statute valid when enacted may become invalid by change in the conditions to which it is applied.” Nashville, C. & St. L. R. Co. v. Walters, 294 US 405, 55 S Ct 486, (1935). “Longevity does not ensure that a statute is constitutional.” [Per Marshall, J., as Circuit Justice.] Brennan v. U.S. Postal Service, 439 US 1345, 98 S Ct 22 (1978). “The principle that a statute, valid, when enacted may cease to have validity, owing to a change of circumstances, is applicable to Acts of Congress.” Hamilton v. Kentucky Distilleries & Warehouse Co. 251 US 146 (1919), 40 S Ct 106, 64 L Ed 194. “When the United States Supreme Court is asked to invalidate a statutory provision that has been approved by both houses of Congress and signed by the President, it should do so only for the most compelling constitutional reasons.” Mistretta v. United States, 488 US 361, 109 S Ct 647, 102 L Ed 2d 714 (1989).

(1). Change of Conditions “A statute valid when enacted may become invalid by change in the conditions to which it is applied.” Nashville, C. & St. L. R. Co. v. Walters, 294 US 405, 55 S Ct 486, (1935). “Longevity does not ensure that a statute is constitutional.” [Per Marshall, J., as Circuit Justice.] Brennan v. U.S. Postal Service, 439 US 1345, 98 S Ct 22 (1978).

327

Richard L. Madden, “Private Immigration Bills Found to Drop Sharply,” New York Times, Oct. 25, 1972, p. 14.

328

“Rep. Helstoski Denies He Got Payoffs,” New York Times, June 26, 1976, p. A5.

329

Charles R. Babcock, “FBI ‘Sting’ Ensnares Several In Congress,” The Washington Post, Feb. 3, 1980, p. A1.

330

SUBCOMMITTEE RULES OF PROCEDURE are available on the House Committee on the Judiciary’s website: http://judiciary.house.gov/Printshop.aspx.

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(2). Change of Circumstances “The principle that a statute, valid, when enacted may cease to have validity, owing to a change of circumstances, is applicable to Acts of Congress.” Hamilton v. Kentucky Distilleries & Warehouse Co. 251 US 146 (1919), 40 S Ct 106, 64 L Ed 194.

(3). Compelling Constitutional Reasons “When the United States Supreme Court is asked to invalidate a statutory provision that has been approved by both houses of Congress and signed by the President, it should do so only for the most compelling constitutional reasons.” Mistretta v. United States, 488 US 361, 109 S Ct 647, 102 L Ed 2d 714 (1989). The Change of Circumstances as the basis for a constitutional challenge to state and federal laws are also available uberrimae fidei 331 as a human rights challenge to the United Nations global gun control agenda spearheaded by the PROGRAMME OF ACTION TO PREVENT, COMBAT AND ERADICATE THE ILLICIT TRADE IN SMALL ARMS AND LIGHT WEAPONS IN ALL ITS ASPECTS on the basis that it is being used to attack our Second Amendment constitutional rights and the international human right to own and possess firearms for the safety, security, and defense of the international human right to life. The basis in international law for my allegations is found in the United Nations INTERNATIONAL BILL OF HUMAN RIGHTS, the CONVENTION AGAINST CORRUPTION and the GENEVA CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, just to name a few. The Changes of Circumstances for a constitutional challenge of state and federal laws (i.e. the new Rule 5.1 of the Federal Rules of Civil Procedure) corresponds with Articles 60, 61, 62, 64 of the VIENNA CONVENTION ON THE LAW OF TREATIES OF 1969 and the VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS OF 1986. The United States can use these authorities to (1) force the United Nations to cease and desist, to abandon their global gun control agenda; (2) to withdraw from the United Nations; or (3) to even cause the disbanding of the United Nations for breach of the United Nations Charter under Article 2, clause 7 of the U.N. Charter. Because the United States has not acted intra vires332 in a timely manner to the [Special Rapporteur’s report, “PREVENTION OF HUMAN RIGHTS VIOLATIONS COMMITTED WITH SMALL ARMS AND LIGHT WEAPONS,”]333 and because of the federal courts corruptive actions blocking my case from proceeding to a civil jury trial I filed my human rights complaint against the United States with the Inter-American Commission on Human Rights on the hope I will find a fair and unbiased international tribunal, lest the entire world is going to Hell in a handbasket.

C. Right to Petition Citing 3 CONSTITUTION OF THE UNITED STATES OF AMERICA, ANALYSIS AND INTERPRETATION 1188 (1992) It is no longer confined to demands for “a redress of grievances,” in any accurate meaning of these words, but comprehends demands for an exercise by the Government of its powers in furtherance of the interest and prosperity of the petitioners and of their views on politically contentious matters. See Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961). The right extends to the “approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the

331

Latin. “of the utmost good faith”

332

Latin: “within the powers of,” “of or referring to an action taken within the scope of authority.”

333

www.iansa.org/un/documents/salw_hr_report_2006.pdf.

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PART 4. IN DEFENSE OF PRO SE CIVIL LITIGATION Government. The right of access to the courts is indeed but one aspect of the right of petition.” California Motor Transport Co. v . Trucking Unlimited, 404 U.S. 508, 510 (1972). See also NAACP v. Claiborne Hardware Co., 458 U .S. 886, 913–15 (1982); Missouri v. NOW, 620 F.2d 1301 (8th Cir.), cert. denied , 449 U .S. 842 (1980) (boycott of States not ratifying ERA may not be subjected to antitrust suits for economic losses because of its political nature). The actions of the Judicial Branch of the federal government in Plaintiff’s six year litigious saga are held as evidence of judicial bias and politicized judicial activism against Plaintiff’s case for Second Amendment rights under Rule 406, Habit, Routine Practice of the Federal Rules of Evidence as violating Article III, Sections 1 and 2 of the Constitution: Section. 1. . . . The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, . . . . Section. 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; . . . — to Controversies to which the United States shall be a Party; — to Controversies between two or more States; — between a State and Citizens of another State [Modified by Amendment XI]; . . . . And the same against Plaintiff’s right to due process of the Fourteenth Amendment as well as violating Plaintiff’s First Amendment right to petition the government for substantial redress of grievances. The across the board shut-out of Plaintiff’s case is tantamount to only granting Plaintiff his First Amendment right to petition the government for procedural redress of grievances as if to deceive Plaintiff in just going through the motions of justice as if justice was actually rendered. This violates Plaintiff’s right to due process and Plaintiff construes and alleges this judicial belligerence against Second Amendment cases falls under the RICO Act in an illegal protection scheme where the federal government unconstitutionally forces Plaintiff to rely on the government for personal security.

D. Kathleen M. Sullivan’s, Unconstitutional Conditions, 10 Harv.L.Rev. 1413 (May 1989) Basic constitutional jurisprudence dictates that courts subject most government benefit decisions to minimal scrutiny, but scrutinize government actions that directly burden preferred liberties more closely. Unconstitutional conditions problems arise at the boundary between these two directives: when government conditions a benefit on the recipient’s waiver of a preferred liberty, should courts review the conditioned benefit deferentially, as a benefit, or strictly, as a burden on a preferred liberty? . . . Professor Sullivan criticizes traditional analyses of unconstitutional conditions for focusing wrongly on whether conditions coerce individuals, distort legislative process, or permit alienation of constitutional rights. She articulates an alternative defense of close scrutiny, arguing that rightspressuring conditions on government benefits skew distribution of power between government and rightholders, as well as among rightholders themselves. Professor Sullivan then develops this systemic approach, detailing both the circumstances in which courts should apply close scrutiny, and those in which government justifications may be strong enough to survive such scrutiny.334 The doctrine of unconstitutional conditions holds that government may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may 334

Kathleen M. Sullivan, “Unconstitutional Conditions,” 102 Harv.158 L.Rev. 1413 (May 1989), introduction. Italics in original.

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PART 4. IN DEFENSE OF PRO SE CIVIL LITIGATION withhold that benefit altogether. It reflects the triumph of the view that government may not do indirectly what it may not do directly over the view that the greater power to deny a benefit includes the lesser power to impose a condition on its receipt. (Id. at 1415) [A]ssuming that some set of constitutionally preferred liberties has been agreed upon, and that burdens on those liberties require especially strong justification, unconstitutional conditions doctrine performs an important function. It identifies a characteristic technique by which government appears not to, but in fact does burden those liberties, triggering a demand for especially strong justification by the state. Part I of this Article defines the basic elements of the technique. (Id. at 1419) The central challenge for a theory of unconstitutional conditions is to explain why conditions on government benefits that “indirectly” pressure preferred liberties should be as suspect as “direct” burdens on those same rights, such as the threat of criminal punishment. (Id. at 1419) IV. Unconstitutional Conditions as Commodification Unconstitutional conditions doctrine has a third possible theoretical explanation: that some constitutional rights are inalienable, and therefore may not be surrendered even through voluntary exchange. This approach identifies the harm in unconstitutional conditions as the commodification of rights the treatment of rights as transferable objects. (Id. at 1477) 1. Paternalism. Making constitutional rights inalienable because citizens may undervalue the worth of those rights to themselves would be classic paternalism overruling individuals’ choices for their own good. Individuals’ choices may diverge from their “best” interests for many reasons: for example, because they underassess risk or under-value their long-term interests. Choices to waive constitutional rights are no exceptions; invalidating such choices, even if perfectly voluntary, compels citizens to hang onto their rights for their own good. (Id. at 1480) . . . The very existence of constitutional rights, however, unlike consumer tastes or preferences, results from the prior “paternalistic” act of enacting a Constitution. The framers’ decision to place constitutional rights beyond majority decisionmaking reflects the prediction that citizens will undervalue those rights in the ordinary course of politics. Constitutional rights thus represent commitments by a constitutional majority to override the acts of future political majorities’ political version of Ulysses and the Sirens. If the Constitution overrides the legislative choices of improvident future political majorities, why not the trading choices of improvident future individual rightholders? This approach would conceive unconstitutional conditions doctrine as a mere backstop to constitutionalism itself, which among other things, places rights beyond the reach of politics because citizens, if left to their own devices, will squander them. (Id. at 1480-81) 4. Personhood. Another sort of argument defends inalienability not because it promotes efficiency or equality, but because some things ought not to be traded on markets at all. Such wholesale anticommodification arguments rest on various theories. Some, for example, view market boundaries as essential to a distinction between the sacred and the profane. On such a view, reverence, mystery, and awe for something depend on its freedom from the pollution of trade. A second variant argues that noncommodificiation can help preserve social norms of altruism or donation. (Id. at 1484) Such a “personhood” approach would hold that the opportunity to exchange rights for benefits wrongly commodifies rights. . . . Inalienability here would follow from the view that constitutional rights, like body parts and love, but unlike clothes or mass-market consumer goods, are essential attributes of personal identity. The metaphor of constitutionally protected liberties as PART 4. IN DEFENSE151 OF PRO SE CIVIL LITIGATION

PART 4. IN DEFENSE OF PRO SE CIVIL LITIGATION a “birthright” captures this view. Free transfer of such rights is a form of dismemberment. If citizens could purchase and sell constitutional rights, they would have a different and inferior conception both of those constitutional rights and of themselves. (Id. at 1485) V. A Systemic Account of Unconstitutional Conditions Neither coercion, corruption, nor commodification theories satisfactorily explain why conditions on benefits that pressure preferred liberties should receive the same strict scrutiny as “direct” constraints. . . . None of these three approaches suffices: coercion theory focuses too narrowly on the individual beneficiary, germaneness theory focuses wrongly on [the corruption of the] legislative process, and inalienability theory focuses too generally on problems with exchange. (Id. at 1489-90) This Part argues for an alternative approach grounded in the systemic effects that conditions on benefits have on the exercise of constitutional rights. Such an approach starts from the proposition that the preferred constitutional liberties at stake in unconstitutional conditions cases do not simply protect individual rightholders piecemeal. Instead, they also help determine the overall distribution of power between government and rightholders generally, and among classes of rightholders. (Id. at 1490) Unconstitutional conditions, no less than “direct” infringements, can skew this distribution in three ways. First they can alter the constitutional liberties generally declare desirable some realm of autonomy that should remain free from government encroachment. Government freedom to redistribute power over presumptively autonomous decisions from the citizenry to itself through the leverage of permissible spending or regulation would jeopardize that realm. Second, an unconstitutional condition can skew the distribution of constitutional rights among rightholders because it necessarily discriminates facially between those who do and those who do not comply with the condition. If government has an obligation of evenhandedness or neutrality with regard to a right, this sort of redistribution is inappropriate. Third, to the extent that a condition discriminates de facto between those who do and do not depend on a government benefit, it can create an undesirable caste hierarchy in the enjoyment of constitutional rights. (Id. at 1490) A. Constitutional Liberty as Distribution A systemic approach to unconstitutional conditions problems recognizes that constitutional liberties regulate three relationships: the relationship between government and rightholders, horizontal relationships among classes of right holders, and vertical relationships among rightholders. . . . rights-pressuring conditions on government benefits potentially skew all three. (Id. at 1491) Such an approach has important advantages over coercion, germaneness, and inalienability theories in illuminating unconstitutional conditions problems. Unlike coercion and unalienability theories, a systemic approach emphasizes the distinctive role of government: citizens’ transactions with government require different analysis than interpersonal transactions, an analysis that focuses not on individuals but on the balance of power and freedom in the polity as a whole. (Id. at 1491)

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PART 5. FEDERAL QUESTIONS PRESENTED

Part 5. Federal Questions Presented (28 U.S.C. § 1331) Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

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A. Human Rights Law (1) Has State and Federal gun control laws in their aggregate effect risen to levels that violate the Second Amendment and international human rights treaties? (2). Does the Heller opinion declaring “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia” create a “fundamental change of circumstances” for the “emergence of a new peremptory norm of general international law (“jus cognens”) for the “right to life” provision of human rights treaties? (3). Does the Heller opinion opinion declaring “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia” create an “obligation erga omnes” requirement on the United States under human rights treaties to incorporate the Second Amendment through the Privileges and Immunities Clause of the Fourteenth Amendment thereby 7applying the Second Amendment to the States and thusly resurrecting the Second Amendment and Ninth Amendment right to “openly” keep and bear arms in intrastate, interstate, and maritime travel? (4). Does the Supremacy Clause make human rights treaties mirroring our own Bill of Rights directly enforceable as a private right of action for citizens of the United States in federal courts? (5). Does the Supremacy Clause prohibit implementing legislation by Congress for human rights treaties mirroring our own Bill of Rights? (6). Does the Supremacy Clause prohibit the President and the Senate from inserting “Reservations, Understandings, and Declarations” (RUDs) into human rights treaties mirroring our own Bill of Rights? (7). Do “Reservations, Understandings, and Declarations” (RUDs) prohibiting a private right of action in international human rights treaties for United States citizens violate the judicial Power clause of Article III, Clause 2 of the Constitution of the United States which states, in part, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; — to all Cases of admiralty and maritime Jurisdiction; — to Controversies to which the United States shall be a Party; . . . and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”? (8). Is Summary Judgment unconstitutional? (9). Are Conley v. Gibson, 355 U.S. 41 at 45-46, 48 (1957) that “The assertion of federal rights, when plainly and reasonably made, are not to be defeated under the name of local practice,” and “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief “ abrogated by the new “Plausible Standard”in Bell Atlantic Corp. v. Twombly, 550 U.S. __, __, 127 S. Ct. 1955 (May 21, 2007) of stating a claim to relief that a complaint must now provide “enough facts to state a claim to relief that is plausible on its face” representative of a judicial war on the American People’s right to a civil jury trial? (10). Do I have a right to make citizen’s arrest of federal judges and their court clerks for felony EXTORTION UNDER COLOR OF LAW, 18 U.S.C. § 872 and EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering), 18 U.S.C. § 1951(a) and § 1951(b)(2) in relation to extorted payments of filing fees as a seaman under the SEAMEN’S SUIT law, 28 U.S.C. § 1916? (11). Does the Seamen’ Suit law, 28 U.S.C. § 1916 directly apply to docket access fees of the PACER Service Inc., the internet access provider to federal court dockets? (12). Does the right to make a citizen’s arrest as a remedy of last resort extend to federal judges and their court clerks for violations of federal laws in light of the U.S. District Court for the District of Columbia’s opinion in We the People Foundation, et al v. United States, et al, No. 04-1211 (August 31, 2005), (affirmed by the DC Circuit, and certiorari denied by the U.S. Supreme Court) that “the First Amendment does not impose any affirmative obligation on the government to listen, to respond,” to complaints filed with federal agencies?

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PART 5. FEDERAL QUESTIONS PRESENTED (13). Is the right to make a citizen’s arrest of employees of the United States government a part of the checks and balance system of the United States Constitution (i.e., under the Sixth, Seventh, Ninth and Tenth Amendments)? (14) Has State and Federal gun control laws in their aggregate effect risen to levels that violate international human rights treaties?

B. Constitutional Law (The Checks and Balance System) (1). Was Chisholm v. Georgia, 2 U.S. 419 at 466 (1793) a correct interpretation of Section 2, Article III, of the Constitution of the United States in that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; . . . to Controversies . . . “between a State and Citizens of another State” that a State can by sued by a citizen of another State? (2). Was the right of a citizen of one State to sue another State under Section 2, Article III of the Constitution of the United States a functional part of the Checks and Balance system of the guarantee of a Republican form of Government under Section 4, Article IV of the Constitution of the United States? (3). Does the Eleventh Amendment unconstitutionally construe to deny or disparage the Ninth Amendment unenumerated right of a citizen of one State to sue another State? (4). Was the Eleventh Amendment an unconstitutional taking under the Fifth Amendment of power reserved to the People under the Tenth Amendment and an unconstitutional taking of unenumerated rights under the Ninth Amendment? (5). Does treason in Article III, Section 3, Clause 1 apply to federal judges levying War against the Constitution of the United States as stated in Cohen v. Com. Wealth of Virginia 19 U.S. 264 (Wheat) (1821) (It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.)? (6). Does the Ninth and Tenth Amendments require Congress to include provisions on private rights of action in federal laws and regulations affecting the rights, freedoms, duties, and responsibilities of U.S. citizens? (7). Does the “No Individual Right to Police Protection Doctrine” invoke the Second Amendment right to keep and bear arms as an absolute right of personal safety and security for immediate armed self-defense under the Law of Nature and especially under the Law of Human Nature? (8). Did creation of the U.S. Department of Homeland Security in response to the terrorist attacks in 2001 establish extraordinary circumstances for the plaintiff’s Petition for Writ of Mandamus (U.S. District Court for DC, No. 02-1435)? (9). Does Heller (2008) create extraordinary circumstances for mandamus relief for the Plaintiff’s Petition for Writ of Mandamus? (10). Does Summary Judgment violate the common law right to a civil jury trial under the Seventh Amendment? (11). Citing Justice Breyer’s four-point test four determining whether courts could infer private enforcement from a statute that did not expressly provide for private enforcement in Cort v. Ash, 422 U.S. 66, at 78 (1975) is a private remedy implicit in the Seamen’s Suit Law 28 U.S.C. § 1916 even though it does not expressly provide a private remedy?

155 PART 5. FEDERAL QUESTIONS PRESENTED

PART 5. FEDERAL QUESTIONS PRESENTED (12). Are Pacer Internet Docket Fees automatically included under the Seamen’s Suit Law (28 U.S.C. § 1916) of exempted fees or must a United States seaman file a separate motion for the exemption to apply to the Pacer Internet Docket Fees? (13). When a civil case before a Court of the United States with subject matter jurisdiction concerning the safety of seamen at sea and ashore in the United States is there a Tenth Amendment power of citizen’s arrest and a Seventh Amendment private right of action under the Law of Citizen’s Arrest for a United States seaman/plaintiff to enforce the Seamen’s Suit Law (28 U.S.C. § 1916) against federal judges and court clerks who unlawfully Order and compel the seaman/plaintiff to pay the court’s filing fee (18 U.S.C. § 872 Extortion Under Color of Law and 18 U.S.C. § 1651(b)(2) Extortion Under Color of Official Right (RICO Act)) when all normative remedies are exhausted? (14). Is their an implied Private Right of Action under the SEAMEN’S SUIT LAW (28 U.S.C. § 1916) to make citizen’s arrest of federal judges and their court clerks for felony EXTORTION UNDER COLOR OF LAW (18 U.S.C. § 872) and felony EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering), (18 U.S.C. § 1951(a)) and § 1951(b)(2) in relation to extorted payments of filing fees as a seaman under the SEAMEN’S SUIT LAW (28 U.S.C. § 1916)? (15). Does the SEAMEN’S SUIT LAW (28 U.S.C. § 1916) apply directly to Pacer Online Docket access fees? (16). Does the right to make a citizen’s arrest under the Law of Citizen’s Arrest as a remedy of last resort extend to federal judges and their court clerks for violations of EXTORTION UNDER COLOR OF LAW (18 U.S.C. § 872) and felony EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering), (18 U.S.C. § 1951(a)) and § 1951(b)(2) in light of the U.S. District Court for the District of Columbia’s opinion in We the People Foundation, et al v. United States, et al, No. 04-1211 (August 31, 2005), (affirmed by the DC Circuit, and certiorari denied by the U.S. Supreme Court) that “the First Amendment does not impose any affirmative obligation on the government to listen, to respond,” to complaints filed with federal agencies? (17). Is the LAW OF CITIZEN’S ARREST part of the checks and balance system of the United States Constitution (i.e., under the Sixth, Seventh, Ninth and Tenth Amendments)? The Supreme Court, however, has held that “the First Amendment does not impose any affirmative obligation on the government to listen, to respond . . .” See Smith v. Ark. State Highway Employees, Local 1315, 441 U.S. 463, 465 (1979). We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 041211 (August 31, 2005). Affirmed, DC Circuit, No. 05-5359 (May 8, 2007): We need not resolve this debate, however, because we must follow the binding Supreme Court precedent. See Tenet v. Doe, 544 U.S. 1, 10-11 (2005). And under that precedent, Executive and Legislative responses to and consideration of petitions are entrusted to the discretion of those Branches. Certiorari, denied, January 7, 2008; Petition for Rehearing denied, February 25, 2008. (18). Are the FEDERAL BUREAU OF INVESTIGATION and the PUBLIC INTEGRITY SECTION, Criminal Division of the U.S. Department of Justice required to accept, investigate, and prosecute federal judges and their court clerks for EXTORTION UNDER COLOR OF OFFICIEAL RIGHT (18 U.S.C. § 1951(b)(2)) in accordance with the U.S Attorney’s Manual, Title 9, § 131.020 INVESTIGATIVE AND SUPERVISORY JURISDICTION. (19). Does the Preamble to the Constitution, the legislative Preamble to the Bill of Rights, the Bill of Rights themselves, and the Thirteenth and Fourteenth Amendments serve as a barrier to restrictive and prohibitive regulation of firearms through the Commerce Clause of Article 1, Section 8 in the Constitution of the United States?

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PART 5. FEDERAL QUESTIONS PRESENTED (20). Does the Second Amendment, Fifth Amendment, Ninth Amendment, and the “privileges and immunities” clause of the Fourteenth Amendment extend to the right to “openly” keep and bear arms in intrastate, interstate, and maritime travel? (21). As a person not prohibited to own and possess a firearm under 18 U.S.C. § 922, et seq. do I have the right to own and possess firearms in intrastate and interstate travel? (22). Is the Second Amendment a vital component of the Common Defence clause, the General Welfare clause, and the Domestic Tranquility clause of the Preamble to the U.S. Constitution and of the Tenth Amendment under the Bill of Rights? (23). Is the U.S. Coast Guard required, as a non-discretionary duty under the Oath of Office to support and defend the Constitution, to include a Second Amendment indicator, (i.e. an endorsement for National Open Carry Handgun) on the MERCHANT MARINER’S DOCUMENT for mandatory occupational training under OPNAV Instruction 3591.1C (May 13, 1992) SMALL ARMS TRAINING AND QUALIFICATION,335 and 46 U.S.C. § 7306(a)(3) GENERAL REQUIREMENTS AND CLASSIFICATIONS FOR ABLE SEAMEN, in the 9mm Baretta, 12-ga shotgun, and the M14 rifle when there are no federal laws or regulations for or against the requested endorsement? (24). Does 18 U.S.C. § 926A. INTERSTATE TRANSPORTATION OF FIREARMS and the aggregate effect of gun control laws of the 48 contiguous State violate the right to travel simultaneously with the right to “openly”keep and bear arms under the Second, Fifth, Fourth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments and does the aggregate effect of State and Federal gun control laws impose conditions and badges of slavery as defined by Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 416-417 (1856)? (25). Does the Heller opinion declaring the “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia” create a constitutional obligation to incorporate the Second Amendment through the Privileges and Immunities Clause of the Fourteenth Amendment to appy to the States thus resurrecting the Second Amendment and Ninth Amendment right to “openly” keep and bear arms in intrastate, interstate, and maritime travel? (26). Is the Second Amendment right to keep and bear arms “openly” in intrastate, interstate, and maritime travel an unenumerated near-absolute right of the Ninth Amendment? (27). Is there a Seventh Amendment right of private enforcement of federal statutes for U.S. Citizen’s acting in the capacities of a victim, a private attorney general as implied by the guarantee of a Republican Form of Government and as implied by the Checks and Balance System of the Constitution of the United States, and as implied by the Tenth Amendment powers reserved to the People, and as a human rights defender under the United Nations’ DECLARATION ON THE RIGHT AND RESPONSIBILITY OF INDIVIDUALS, GROUPS AND ORGANS OF SOCIETY TO PROMOTE AND PROTECT UNIVERSALLY RECOGNIZED HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, United Nations General Assembly Resolution A/RES/53/144 dated March 8, 1999, as implied by the Treaty Clause? (28). Is it the duty of a U.S. Marshal or a Deputy U.S. Marshal, under 28 U.S.C. § 566(d) Powers and Duties (Each United States marshal, deputy marshal, and any other official of the Service as may be designated by the Director may carry firearms and make arrests . . . for any felony cognizable under the laws of the United States if he or she has reasonable grounds to believe that the person to be arrested has committed or is committing such felony) to accept a Citizen’s Arrest Warrant for named federal judges and court clerks when there is attached to the Citizen’s Arrest Warrant undeniable evidence in the form of Memorandums and Orders of Courts of the United States, that on their face orders the seaman/plaintiff to unlawfully pay filing fees of the courts in clear violation of the Seamen’s Suit Law (28 U.S.C. § 1916)? (29). In light of Heller does 18 U.S.C. § 926(A) Interstate Transporation of Firearms violate the Second Amendment?

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PART 5. FEDERAL QUESTIONS PRESENTED (30). In light of Heller does 50 U.S.C. § 2386 interpreted to require the registration of the “unorganized militia” under 10 U.S.C. § 311(b)(2) present a conflict of laws under the Doctrine of Unconstitutional Conditions?

C. Corruption and Obstructions of Justice (18 U.S.C. § 1505) (1). Did the U.S. Government act as a racketeering enterprise specifically against my cases during the past 6-year litigious pursuit for Second Amendment rights and/or generally against the Second Amendment in an unlawful and an unconstitutional protection scheme in violation of the RICO Act? (2). Did the U.S. Coast Guard unlawfully retaliate on 2004 and 2006 with Bar Notices because I named the U.S. Coast Guard as a Defendant in my lawsuit in defense of my Second Amendment right and/or for published criticisms critical of the U.S. Coast Guard on the Internet? (3). Did the federal courts corruptively and unconstitutionally dismiss my cases from 2002 to 2008 and thereby not only violate my Seventh Amendment right to a civil jury trial under the Constitution of the United States but also my human rights to a civil jury trial under ARTICLE II. Denial of Equal Justice Under the Law; ARTICLE XVIII Denial of a Fair Civil Trial (Seventh Amendment); ARTICLE XXIV Denial of Right to Petition for Redress (First Amendment); ARTICLE XXVI Denial of Due Process Rights (Fifth & Fourteenth Amendments) of the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN ? (4). Is the federal judiciary waging a War against the People’s civil and constitutional rights? (See Kelo v. New London 545 U.S. 469 (2005) (erosion of the Fifth Amendment takings clause in this eminent domain case); We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 041211 (August 31, 2005); affirmed DC Circuit, No. 05-5359 (May 8, 2007); certiorari denied January 7, 2008; Petition for Rehearing denied February 25, 2008 (the First Amendment does not impose any affirmative obligation on the government to listen, to respond); Bell Atlantic Corp. v. Twombly, 550 U.S. __, __, 127 S. Ct. 1955 (May 21, 2007) (crippling the Seventh Amendment right to a civil jury trial by relaxing the standards on Motion to Dismiss and Summary Judgment with the new Plausible Standard). (5). Were the judicial opinions in my Second Amendment cases from 2002 to 2008 fraudulent and unconstitutional (i.e., 18 U.S.C. § 1001 FRAUD AND FALSE STATEMENTS)? Hamrick v. President George W. Bush, et al, U.S. District Court for the District of Columbia, No. 02-1435, Judge Ellen Segal Huvelle, October 9, 2002, denying with prejudice my PETITION FOR WRIT OF MANDAMUS, WRIT OF PROHIBITION, DECLARATORY JUDGMENT, AND INJUNCTIVE RELIEF Hamrick v. Admiral Thomas H. Collins, USCG, et al, U.S. District Court for the District of Columbia, No. 021434, Judge Ellen Segal Huvelle, December 26, 2002, denying with prejudice my COMPLAINT FOR DEFAMATION AND DAMAGES, LIBEL AS A MATTER OF PRIVATE CONCERN, INJURY TO REPUTATION, UNLAWFUL INTERFERENCE WITH THE LAWFUL OPERATION OF A MERCHANT VESSEL, UNLAWFUL INTERFERENCE WITH A SEAMAN’S EMPLOYMENT ABOARD A MERCHANT VESSEL, WRONGFUL DETENTION/FALSE IMPRISONMENT OF A U.S. MERCHANT SEAMAN IN A FOREIGN COUNTRY, HARASSMENT, EMOTIONAL DISTRESS, AND SUBJECTION TO A MALICIOUS CRIMINAL INVESTIGATION EXTENDING FROM PETITIONER’S EXERCISE OF FIRST AMENDMENT RIGHTS TO FREE SPEECH AND TO PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES PURSUING SECOND AMENDMENT RIGHTS Hamrick v. President George W. Bush, et al, U.S. District Court for the District of Columbia, No. 03-2160, Judge Reggie B. Walton, August 16, 2004, denied with prejudice my CIVIL RIGHTS COMPLAINT OF RACKETEERING AND FRAUD UNDER THE RICO ACT FOR AN UNCONSTITUTIONAL PROTECTION SCHEME UNDER COLOR OF LAW OVER THE SECOND AMENDMENT VIOLATING THE PLAINTIFF’S RIGHT TO PETITION AND RIGHT TO DUE PROCESS AND FOR WRIT OF MANDAMUS, WRIT OF PROHIBITION, DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF & FOR DAMAGES.

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PART 5. FEDERAL QUESTIONS PRESENTED (6). Did Dennis Barghaan, Assistant U.S. Attorney from Alexandria, Virginia, acting as Special Attorney for the U.S. Department of Justice, and persons or persons unknown in the U.S. Department of Justice criminally withhold evidence (Memorandum Opinion for the Attorney General, WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT, dated August 24, 2004)336 vital to my Second Amendment case at the U.S. District Court for DC, Case No. 03-2160? (7) Did Judge Reggie B. Walton abuse the Federal Rules of Civil Procedure and criminally obstruct justice when he issued his Scheduling Order (No. 03-2160)? (8) Does the Preamble to the Constitution, the legislative Preamble to the Bill of Rights, the Bill of Rights themselves, the Thirteenth and Fourteenth Amendments serve as a barrier to restrictive and prohibitive regulation of firearms through the Commerce Clause of Article 1, Section 8? (9) Does the Second Amendment extend to the right to keep and bear arms in intrastate and interstate travel? (10) Does the Plaintiff, as a U.S. citizen, have the right to own and possess firearms in intrastate and interstate travel? (11) Is the Second Amendment a vital component of the Common Defence clause, the General Welfare clause, and the Domestic Tranquility clause of the Preamble to the U.S. Constitution and of the Tenth Amendment under the Bill of Rights? (1) Do I, as a U.S. Citizen and as a U.S. Merchant Seaman, have any specifically enforceable rights under the petition clause of the First Amendment or under the Bill of Rights in general without the threat of arrest and prosecution to pursue Second Amendment rights and to pursue justice for obstruction of justice thereof? (12) Is the U.S. Coast Guard required, as a non-discretionary duty, to include a Second Amendment indicator, (i.e. an endorsement for National Open Carry Handgun) on the MERCHANT MARINER’S DOCUMENT for mandatory occupational training under OPNAV Instruction 3591.1C (May 13, 1992) SMALL ARMS TRAINING AND QUALIFICATION,337 and 46 U.S.C. § 7306(a)(3) GENERAL REQUIREMENTS AND CLASSIFICATIONS FOR ABLE SEAMEN, in the 9mm Baretta, 12-ga shotgun, and the M-14 rifle when there are no federal laws or regulations for or against the requested endorsement? (13) Does the 18 U.S.C. § 926A. INTERSTATE TRANSPORTATION OF FIREARMS and the aggregate effect of gun control laws of the 48 contiguous State violate the right to travel simultaneous with the right to keep and bear arms under the Second, Fifth, Fourth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments and does the aggregate effect of State and Federal gun control laws imposing conditions and badges of slavery as defined by Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 416-417 (1856): “It would give to persons of the Negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State.”

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PART 5. FEDERAL QUESTIONS PRESENTED The Supreme Court, however, has held that “the First Amendment does not impose any affirmative obligation on the government to listen, to respond . . .” See Smith v. Ark. State Highway Employees, Local 1315, 441 U.S. 463, 465 (1979). We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 041211 (August 31, 2005). Affirmed, DC Circuit, No. 05-5359 (May 8, 2007): We need not resolve this debate, however, because we must follow the binding Supreme Court precedent. See Tenet v. Doe, 544 U.S. 1, 10-11 (2005). And under that precedent, Executive and Legislative responses to and consideration of petitions are entrusted to the discretion of those Branches. Certiorari, denied, January 7, 2008; Petition for Rehearing denied, February 25, 2008.

D. Application of the RICO Act Against the U.S. Government (1). Did the U.S. Government act as a racketeering enterprise against the Plaintiff over his First Amendment right to petition the government for redress of grievances in his 6-year litigious pursuit for Second Amendment rights in violation of the RICO Act to sustain the allegation that the United States government conducted racketeering activities in an unlawful and an unconstitutional protection scheme over the Second Amendment (2). Did the U.S. Coast Guard unlawfully retaliate against the Plaintiff for exercising First Amendment rights in his pursuit for Second Amendment rights in publishing criticism specifically of the U.S. Coast Guard or criticisms generally of the U.S. Government?

E. Maritime Law (1). Do the Firearms provisions in ¶44 and ¶45 of the PIRACY AND ARMED ROBBERY AGAINST SHIPS: GUIDANCE TO SHIPOWNERS AND SHIP OPERATORS, SHIPMASTERS AND CREWS ON PREVENTING AND SUPPRESSING ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS,338 International Maritime Commission, Maritime Safety Commission’s Circular 623/Rev.2, dated June 20, 2001 (currently Rev.3, dated May 29, 2002), negate, nullify, or void the Second Amendment? (2). Did Capt. J. P. Brusseau, USCG, Coast Guard act with “deliberate indifference” to Plaintiff’s Second, Ninth, Thirteenth and Fourteenth Amendment rights and Tenth Amendment powers by denying Plaintiff’s application for the National Open Carry Handgun endorsement on his Merchant Mariner’s Document for U.S. Government required small arms training as a pre-requisite for employment aboard a U.S. Government ammunition ship, and subsequently initiated a criminal investigation through the European division of the Naval Criminal Investigative Service (NCIS) in retaliation for a publishable “Op-Ed” article emailed to Capt. Brusseau. (3). Does the Firearms provisions in Paragraphs 44 and 45 of the International Maritime Commission, Maritime Safety Commission’s Circular 623/Rev.2, dated June 20, 2001 (currently Rev.3, dated May 29, 2002), titled, PIRACY AND ARMED ROBBERY AGAINST SHIPS: GUIDANCE TO SHIPOWNERS AND SHIP OPERATORS, SHIPMASTERS AND CREWS ON PREVENTING AND SUPPRESSING ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS,339 stand superior in law to the U.S. Constitution’s Second Amendment’s right to keep and bear arms? (4). Did Capt. J. P. Brusseau, USCG, Coast Guard act with “deliberate indifference” to Plaintiff’s Second, Ninth, Thirteenth and Fourteenth Amendment rights and Tenth Amendment powers by denying Plaintiff’s application for the National Open Carry Handgun endorsement on his Merchant Mariner’s Document for U.S. Government required small arms training as a pre-requisite for employment aboard a U.S. Government 338

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PART 5. FEDERAL QUESTIONS PRESENTED ammunition ship, and subsequently initiated a criminal investigation through the European division of the Naval Criminal Investigative Service (NCIS) in retaliation for a publishable “Op-Ed” article emailed to Capt. Brusseau.

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PART 5. FEDERAL QUESTIONS PRESENTED

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS

Part 6. Plaintiff’s Human Rights Declarations Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS

A. Plaintiff has a Private Right of Action under the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN through the Treaty Clause of the U.S. Constitution (1). The Preamble to the American Declaration on the Rights and Duties of Man All men are born free and equal, in dignity and in rights, and, being endowed by nature with reason and conscience, they should conduct themselves as brothers one to another. The fulfillment of duty by each individual is a prerequisite to the rights of all. Rights and duties are interrelated in every social and political activity of man. While rights exalt individual liberty, duties express the dignity of that liberty. Duties of a juridical nature presuppose others of a moral nature which support them in principle and constitute their basis. Inasmuch as spiritual development is the supreme end of human existence and the highest expression thereof, it is the duty of man to serve that end with all his strength and resources. Since culture is the highest social and historical expression of that spiritual development, it is the duty of man to preserve, practice and foster culture by every means within his power. And, since moral conduct constitutes the noblest flowering of culture, it is the duty of every man always to hold it in high respect.

(2) The Invoked Articles of the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN in support of my demand for my Seventh Amendment right to a civil jury trial in defense of my own injuried rights. Article I. Right to life, liberty and personal security. Every human being has the right to life, liberty and the security of his person. Article II. Right to equality before law. All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor. Article IV. Right to freedom of investigation, opinion, expression and dissemination. Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever. Article V. Right to protection of honor, personal reputation, and private and family life. Every person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life. Article XIII. Right to the benefits of culture. Every person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, especially scientific discoveries.

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author. Article XVII. Right to recognition of juridical personality and civil rights. Every person has the right to be recognized everywhere as a person having rights and obligations, and to enjoy the basic civil rights.

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS Article XVIII. Right to a fair trial. Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights. Article XXI. Right of assembly. Every person has the right to assemble peaceably with others in a formal public meeting or an informal gathering, in connection with matters of common interest of any nature. Article XXII. Right of association. Every person has the right to associate with others to promote, exercise and protect his legitimate interests of a political, economic, religious, social, cultural, professional, labor union or other nature. Article XXIV. Right of petition. Every person has the right to submit respectful petitions to any competent authority, for reasons of either general or private interest, and the right to obtain a prompt decision thereon. Article XXV. Right of protection from arbitrary arrest. No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law. No person may be deprived of liberty for nonfulfillment of obligations of a purely civil character. Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody. Article XXVI. Right to due process of law. Every accused person is presumed to be innocent until proved guilty. Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment.

(3) The Invoked Articles of the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN in support of my demand for my Seventh Amendment right to a civil jury trial in defense of the rights of third parties. Article I. Right to life, liberty and personal security. Every human being has the right to life, liberty and the security of his person. Article II. Right to equality before law. All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor. Article III. Right to religious freedom and worship.

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS Every person has the right freely to profess a religious faith, and to manifest and practice it both in public and in private. Article IV. Right to freedom of investigation, opinion, expression and dissemination. Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever. Article V. Right to protection of honor, personal reputation, and private and family life. Every person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life. Article VI. Right to a family and to protection thereof. Every person has the right to establish a family, the basic element of society, and to receive protection therefore. Article VII. Right to protection for mothers and children. All women, during pregnancy and the nursing period, and all children have the right to special protection, care and aid. Article VIII. Right to residence and movement. Every person has the right to fix his residence within the territory of the state of which he is a national, to move about freely within such territory, and not to leave it except by his own will. Article IX. Right to inviolability of the home. Every person has the right to the inviolability of his home. Article X. Right to the inviolability and transmission of correspondence. Every person has the right to the inviolability and transmission of his correspondence. Article XI. Right to the preservation of health and to well-being. Every person has the right to the preservation of his health through sanitary and social measures relating to food, clothing, housing and medical care, to the extent permitted by public and community resources. Article XII. Right to education. Every person has the right to an education, which should be based on the principles of liberty, morality and human solidarity. Likewise every person has the right to an education that will prepare him to attain a decent life, to raise his standard of living, and to be a useful member of society. The right to an education includes the right to equality of opportunity in every case, in accordance with natural talents, merit and the desire to utilize the resources that the state or the community is in a position to provide. Every person has the right to receive, free, at least a primary education. Article XIII. Right to the benefits of culture. Every person has the right to take part in the cultural life of the community, to enjoy the arts, and to participate in the benefits that result from intellectual progress, especially scientific discoveries.

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS He likewise has the right to the protection of his moral and material interests as regards his inventions or any literary, scientific or artistic works of which he is the author. Article XIV. Right to work and to fair remuneration. Every person has the right to work, under proper conditions, and to follow his vocation freely, insofar as existing conditions of employment permit. Every person who works has the right to receive such remuneration as will, in proportion to his capacity and skill, assure him a standard of living suitable for himself and for his family. Article XV. Right to leisure time and to the use thereof. Every person has the right to leisure time, to wholesome recreation, and to the opportunity for advantageous use of his free time to his spiritual, cultural and physical benefit. Article XVI. Right to social security. Every person has the right to social security which will protect him from the consequences of unemployment, old age, and any disabilities arising from causes beyond his control that make it physically or mentally impossible for him to earn a living. Article XVII. Right to recognition of juridical personality and civil rights. Every person has the right to be recognized everywhere as a person having rights and obligations, and to enjoy the basic civil rights. Article XVIII. Right to a fair trial. Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights. Article XIX. Right to nationality. Every person has the right to the nationality to which he is entitled by law and to change it, if he so wishes, for the nationality of any other country that is willing to grant it to him. Article XX. Right to vote and to participate in government. Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free. Article XXI. Right of assembly. Every person has the right to assemble peaceably with others in a formal public meeting or an informal gathering, in connection with matters of common interest of any nature. Article XXII. Right of association. Every person has the right to associate with others to promote, exercise and protect his legitimate interests of a political, economic, religious, social, cultural, professional, labor union or other nature. Article XXIII. Right to property. Every person has a right to own such private property as meets the essential needs of decent living and helps to maintain the dignity of the individual and of the home.

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS Article XXIV. Right of petition. Every person has the right to submit respectful petitions to any competent authority, for reasons of either general or private interest, and the right to obtain a prompt decision thereon. Article XXV. Right of protection from arbitrary arrest. No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law. No person may be deprived of liberty for nonfulfillment of obligations of a purely civil character. Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody. Article XXVI. Right to due process of law. Every accused person is presumed to be innocent until proved guilty. Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with pre-existing laws, and not to receive cruel, infamous or unusual punishment. Article XXVII. Right of asylum. Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek and receive asylum in foreign territory, in accordance with the laws of each country and with international agreements. Article XXVIII. Scope of the rights of man. The rights of man are limited by the rights of others, by the security of all, and by the just demands of the general welfare and the advancement of democracy.

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B. Plaintiff has a Private Right of Action under Article XVIII (Right to a Fair Trial), and Article XXIV (Right of Petition) (among others) of the American Declaration of the Rights and Duties of Man, 1948 through the Treaty Clause of the U.S. Constitution has already been taken by the Plaintiff with his Human Rights Complaint against the United States now Pending at the Inter-American Commission on Human Rights (Petition No. 1142-06) In 2006, after four years of unconstitutional summary judgments340 on Motions to Dismiss in violation of my Seventh Amendment right to a civil jury trial under the common law I exercised my Private Right of Action in accordance with the AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN under Articles I (Right to life), II (Right to equality before law), IV (Right to freedom of investigation, opinion, expression and dissemination), V (Right to protection of honor, personal reputation, and private and family life), VI (Right to a family and to protection thereof), VII (Right to protection for mothers and children), VIII (Right to residence and movement), IX (Right to inviolability of the home), the right to be a part of the gun culture under Articles XIII (Right to the benefits of culture), XV (Right to leisure time and to the use thereof ), XVII (Right to recognition of juridical personality and civil rights), XVIII (Right to a fair trial), XXI (Right of assembly), XXII (Right of association), XXIII (Right to property, i.e. the right to own and possess firearms notwithstanding violations/convictions under the law), XXIV (Right of petition, i.e. We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 04-1211 (August 31, 2005), (affirmed by the DC Circuit, and certiorari denied by the U.S. Supreme Court) that “the First Amendment does not impose any affirmative obligation on the government to listen, to respond”) , XXV (Right of protection from arbitrary arrest), XXVI (Right to due process of law), and Article XXIX (Duties to society) to which the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS and the INTER-AMERICAN COURT ON HUMAN RIGHTS have jurisdiction and filed my human rights complaint against the United States (Petition No. 1142-06). At contest here is the U.S. Supreme Court’s doctrine that “the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.” See Smith v. Ark. State Highway Employees, Local 1315, 441 U.S. 463, 465 (1979). We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 041211 (August 31, 2005) The Supreme Court, however, has held that “the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it.” See Smith v. Ark. State Highway Employees, Local 1315, 441 U.S. 463, 465 (1979). Plaintiffs’ claims that the defendants are obligated to “properly” respond to plaintiffs’ petitions shall thus be dismissed for failure to state a claim upon which relief may be granted. We the People Foundation, et al v. United States, et al, THE APPEAL: DC Circuit, No. 05-5359 (May 8, 2007)

340

Suja A. Thomas, THE UNCONSTITUTIONALITY OF SUMMARY JUDGMENT: A STATUS REPORT, 93 Iowa Law Review __ (forthcoming 2008) Iowa Law Review Symposium on Procedural Justice; Suja A. Thomas, WHY SUMMARY JUDGMENT IS STILL UNCONSTITUTIONAL: A REPLY TO PROFESSORS BRUNET AND NELSON, 93 Iowa Law Review, __ (forthcoming 2008); Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. 139 (2007).

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C. PLAINTIFF’S NOTE: David B. Kopel, Paul Gallant & Joanne D. Eisen, The Human Right of Self-Defense, 22 BYU Journal of Public Law 43-178 (Fall 2007) (136 pages) is incorporated into this Part 6 as part of my claims in this complaint. The law review article is available online at: http://www.law2.byu.edu/jpl/Vol22.1/Kopel.pdf. The above law review article is included in this complaint in its entirety by reference to the URL above.

D. The Conclusion in David B. Kopel, Paul Gallant & Joanne D. Eisen, The Human Right of Self-Defense 22 BYU Journal of Pulbic Law 33 (Fall 2007) Conclusion341 As Grotius wrote in his introduction: I have used in proof of this law, the testimony of philosophers, historians, poets, and lastly even of orators. Not that they are indiscriminately to be relied on as impartial authority, since they often bend to the prejudices of their sect, the nature of their argument, or the interest of their cause, but where many minds of different ages and countries concur in affirming the same general sentiment, this general concurrence must be referred to some general cause; which in the questions we have undertaken to examine, can be no other than a right induction from the principles of natural justice, or some common consent. The former indicates the law of nature, the latter the law of nations… So wrote Grotius in his introduction.342 The human right of self-defense is affirmed by the concurrence of many minds of different ages—Grotius knew this, and as this Article has elaborated, the concurrence has continued in the nearly four centuries since Grotius. We have cited fewer orators and poets than did Grotius, and we have enjoyed the benefit of many sources which did not exist at the time of Grotius, including the written constitutions all over the world, the Universal Declaration of Human Rights, and the vast structure of international law that was built on the foundation of Grotius. We have only rarely touched on the many heated arguments between the great scholars, or the tremendous differences in practices between leading systems of law, or how the modern world’s constitutions and treaties are based on strikingly diverse views of civilization and justice. We have not addressed all the differences among our many sources because, regarding self-defense, “many minds of different ages and countries concur in affirming the same general sentiment.” To examine the evidence is to discover what the Special Rapporteur so artfully concealed: the overwhelming consensus among the sources of international law, from ancient times to the present, among diverse legal systems, religions, and nations: self-defense is a fundamental human right. In this Article, we do not claim that the evidence produced thus far proves the existence of a universal international human right to possess and carry firearms in all circumstances. We do suggest that the evidence of an international human right to self-defense is clear. The existence of a right of personal defense undoubtedly must imply some right to defensive training, and to the 341

http://www.davekopel.org/2A/LawRev/The-Human-Right-of-Self-Defense.pdf

342

1 GROTIUS, Prolog. § 41, quoted in HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW: WITH A SKETCH OF THE HISTORY OF THE SCIENCE 29 n. 13 (2002)(1836). While this Article has usually quoted from the 2005 edition of Grotius, we chose to use the alternative translation quoted in Wheaton because its English flows more naturally than does the 2005 text’s version of the same quote.

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS possession of some type of defensive arms. However, we have only attempted to suggest some possible lines of exploration for subsequent scholarly analysis of the derivative rights to defensive arms and defensive training. It does seem apparent that it would be a violation of human rights law for a government to forbid self-defense, to forbid defensive training, or to forbid the possession of reasonably necessary defensive arms. No government has the legitimate authority to forbid a person from exercising her human right to defend herself against a violent attack, or to forbid her from taking the steps and acquiring the tools necessary to exercise that right.

E. With the Heller Opinion, the Second Amendment’s Individual Right to Keep and Bear Arms Became a Fundamental Change of Circumstances for the Emergence of a New Peremptory Norm of General International Law (jus cogens) Achieving Human Rights Status as Obligatio Erga Omnes upon the Member States of the United Nations Citing the VIENNA CONVENTION ON THE LAW OF TREATIES 1969 343 and the VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS 1986 it is my claim that the U.S. Supreme Court’s Heller opinion on the Second Amendment as being an individual right presents a “fundamental change of circumstances” (Article 62 of both Vienna Conventions) for the “emergence of a new peremptory norm of general international law” (“jus cogens”), (Article 64 of both Vienna Conventions) for the “right to life” provision in international human rights treaties through the treaty clause in Article II, Section 2 of the CONSTITUTION OF THE UNITED STATES. I now present this argument to the Federal Court under the Treaty Clause as a FEDERAL QUESTION under 28 U.S.C. § 1331.344 The Heller opinion also impacts the “right to life provisions in Article 4 of THE AMERICAN CONVENTION 345 in Article 3 of the United Nations UNIVERSAL DECLARATION ON HUMAN RIGHTS; in Article 6, Clause 1 of the United Nations COVENANT ON CIVIL AND POLITICAL RIGHTS.346

ON HUMAN RIGHTS;

The Heller opinion has two quotable points: Page 9: “Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone else.” [Footnote 7: . . . J. Ayliffe, A NEW PANDECT OF ROMAN CIVIL LAW 195 (1734) 343

The Vienna Convention on the Law of Treaties, done at Vienna May 23, 1969 and signed by the United States on April 24, 1970 (Treaty Doc.: Ex. L, 92nd Cong., 1st Sess.); submitted to Senate November 22, 1971. U.S. Department of State: TREATIES PENDING IN THE SENATE (Updated as of July 7, 2008). Not yet ratified. See http://www.state.gov/s/l/treaty/pending/ 344

Cohens v. Virginia, 19 U.S. 264, at 404 (6 Wheaton 264) (1821) (It is most true that this Court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment and conscientiously to perform our duty. In doing this on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the Constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.). [Emphasis is mine.] 345

THE AMERICAN CONVENTION ON HUMAN RIGHTS, done at San Jose November 22, 1969 and signed by the United States on June 1, 1977 (Treaty Doc.: Ex. F, 95th Cong., 2nd Sess.); submitted to Senate February 23, 1978. Not yet ratified. U.S. Department of State: TREATIES PENDING IN THE SENATE (Updated as of July 7, 2008). See http://www.state.gov/s/l/treaty/pending/ 346

THE COVENANT ON CIVIL AND POLITICAL RIGHTS was ratified by the United States in 1992.

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS (“Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance”); . . .]347 Page 46: “As the Constitution of the United States, and the constitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great difference of opinion on the question.” 2 J. Kent, Commentaries on American Law *340, n. 2 (O. Holmes ed., 12th ed. 1873).348 In the Page 9 quotation I construe the term “everyone else” to include merchant seamen in interstate and maritime travel as supported by the terms “Navigation” and “Traveling” in Scalia’s Footnote 7. Scalia’s Page 46 quotation implies that “open carry in interstate and maritime travel” is an “absolute or near-absolute right” not subject to any regulation at all. This inference needs clarification by judicial challenge.

F. Natural Rights are Human Rights Black’s Law Dictionary defines natural right as “[a] right that is conceived as part of natural law and that is therefore thought to exist independently of rights created by government or society, such as the right to life, liberty, and property.” See Natural Law. Black’s Law Dictionary defines human rights as [t]he freedoms, immunities, and benefits that, according to modern values (esp. at an international level), all human beings should be able to claim as a matter of right in the society to which they live. See Universal Declaration of Human Rights. Black’s Law Dictionary defines “right to travel” as [a] person’s constitutional right – guaranteed by the Privileges and Immunities Clause – to travel freely between states. My approach to the Second Amendment, (the flip-side to Heller), applies to the right to “openly” keep and bear arms in interstate and maritime travel for personal safety and security and in defense of self and others and for property as not only a constitutional right but also as a human right under the “right to life” provision of human rights treaties. My approach is proper because Scalia’s opinion uses the term “natural right” to descibe the Second Amendment on the following pages in Justice Scalia’s Heller opinion: Page 6 in Footnote 6: “. . . See Heyman, Natural Rights and the Second Amendment, in THE SECOND AMENDMENT IN LAW AND HISTORY 179, 193–195 (C. Bogus ed. 2000). . .”); on page 10 in Footnote 7 (“. . . W. Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833) (with reference to colonists’ English rights: “The right of every individual to keep arms for his defence, suitable to his condition and degree; which was the public allowance, under due restrictions of the natural right of resistance and self-preservation; . . .”) Page 12: “Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for example, as a recognition of the natural right of defense “of one’s person or house”—what he called the law of “self preservation.” 2 Collected Works of James Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing Pa. Const., Art. IX, §21 (1790));” 347

Emphasis is mine.

348

Emphasis is mine.

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS Page 20: By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, “the natural right of resistance and self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; Page 21, “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. A New York article of April 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936);” Page 39. “In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly.” I construe the term “natural right” to be the same by definition as the term “human right.” This equivalent usage is proper and acceptable. The Heller opinion therefore becomes a “fundamental change of circumstances” introducing the “emergence of a new peremptory norm of general international law (“jus cogens”) (See Articles 62 and 64 of the VIENNA CONVENTION ON THE LAW OF TREATIES 1969 and the VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS, 1986)

G. U.S. Department of State, Bureau of International Information Programs on Access to the Courts and Equal Justice for All Citing Robert J. Grey, Jr., ACCESS TO THE COURTS: EQUAL JUSTICE FOR ALL,349 in Issues of Democracy: Access to the Courts - Equal Justice for All, U.S. Department of State, Bureau of International Information Programs, August 2004, 6-11: A fundamental value in the American system of justice is that the stability of our society depends upon the ability of the people to readily obtain access to the courts, because the court system is the mechanism recognized and accepted by all to peacefully resolve disputes. Denying access to the courts forces dispute resolution into other arenas and results in vigilantism and violence. EQUAL JUSTICE IN PRACTICE When discussing the idea of access to the courts, mere access in the theoretical or legal sense is not enough; rather, it is the results that flow from the decisions made by the courts that give it meaning. For example, the value of “access” is evident when the courts decide that no one, 349

Available Online at http://usinfo.state.gov/journals/itdhr/0804/ijde/ijde0804.pdf

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS especially those in positions of power, is above the law, or when access requires the right to counsel in cases where one’s liberty is in jeopardy.

G. Heller Impacts Maritime and International Human Rights Treaties (1). Articles 39-51 of the United Nations Charter United Nations Charter Article 2, Clause 7: Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII – ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION. Chapter VII ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION Article 39 The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security. Article 40 In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures. Article 41 The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations. Article 42 Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations. Article 43 All Members of the United Nations, in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, assistance, and facilities, including rights of passage, necessary for the purpose of maintaining international peace and security.

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS Such agreement or agreements shall govern the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Security Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accordance with their respective constitutional processes. Article 44 When the Security Council has decided to use force it shall, before calling upon a Member not represented on it to provide armed forces in fulfilment of the obligations assumed under Article 43, invite that Member, if the Member so desires, to participate in the decisions of the Security Council concerning the employment of contingents of that Member’s armed forces. Article 45 In order to enable the United Nations to take urgent military measures, Members shall hold immediately available national air-force contingents for combined international enforcement action. The strength and degree of readiness of these contingents and plans for their combined action shall be determined within the limits laid down in the special agreement or agreements referred to in Article 43, by the Security Council with the assistance of the Military Staff Committee. Article 46 Plans for the application of armed force shall be made by the Security Council with the assistance of the Military Staff Committee. Article 47 There shall be established a Military Staff Committee to advise and assist the Security Council on all questions relating to the Security Council’s military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulation of armaments, and possible disarmament. The Military Staff Committee shall consist of the Chiefs of Staff of the permanent members of the Security Council or their representatives. Any Member of the United Nations not permanently represented on the Committee shall be invited by the Committee to be associated with it when the efficient discharge of the Committee’s responsibilities requires the participation of that Member in its work. The Military Staff Committee shall be responsible under the Security Council for the strategic direction of any armed forces placed at the disposal of the Security Council. Questions relating to the command of such forces shall be worked out subsequently. The Military Staff Committee, with the authorization of the Security Council and after consultation with appropriate regional agencies, may establish regional sub-committees. Article 48 The action required to carry out the decisions of the Security Council for the maintenance of international peace and security shall be taken by all the Members of the United Nations or by some of them, as the Security Council may determine. Such decisions shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members. Article 49

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS The Members of the United Nations shall join in affording mutual assistance in carrying out the measures decided upon by the Security Council. Article 50 If preventive or enforcement measures against any state are taken by the Security Council, any other state, whether a Member of the United Nations or not, which finds itself confronted with special economic problems arising from the carrying out of those measures shall have the right to consult the Security Council with regard to a solution of those problems. Article 51 Nothing in the present Charter shall impair the inherent right of individual or collective selfdefence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. Article 51 of United Nations Charter (citing again from THE HUMAN RIGHT OF SELF-DEFENSE) affirms “the inherent right” of self-defense.350 Frey accurately states that Article 51 is directly concerned with the defense of states, and not of individuals. 351 We agree. But what Frey elides is that the right of national self-defense is the child of the right of personal self-defense—as we detailed supra.352 Notably, the U.N. Charter does not purport to grant states a right of self-defense. The charter simply recognizes an “inherent” right. In the French text of the U.N. charter, it is a “droit naturel” (natural right or natural law). As Yoram Dinstein observes, “The choice of words has overtones of jus naturale, which appears to be the fount of the right to self-defense.”353 (“Jus naturale” is Latin for “natural law”; as discussed above, jus naturale included a strong right of personal defense. 354) Given the U.N. Charter’s choice of language which explicitly invoked natural right, it was not surprising that the International Court of Justice wrote: “The Court therefore finds that Article 51 of the Charter is only meaningful on the basis that there is a ‘natural’ or ‘inherent’ right of selfdefense….”355 Elucidating Article 51, Dinstein writes: “The legal notion of self-defence has its roots in interpersonal relations, and is sanctified in domestic legal systems since time immemorial. From the

350

See also General Treaty for the Renunciation of War (“Kellogg-Briand Pact”) 94 L.N.R.S. 57 (1928); 22 AM. J. INT’L L. 109-13 (formal notes exchanged between the signatories, reserving the right to selfdefense). 351

Frey Report at 13, para. 39 (“ Article 51 was not intended to apply to situations of self-defence for individual persons.”)

352

See David B. Kopel, Paul Gallant, and Joanne D. Eisen, titled, THE HUMAN RIGHT OF SELF-DEFENSE.

353

DINSTEIN, at 179. Dinstein goes on to reject the overtone, because he rejects the whole concept of natural law, for reasons detailed supra at text accompanying notes . 354

See supra text accompanying notes – (natural law and the classical founding scholars of international law), and – (Roman law jus naturale). 355

Military and Paramilitary Activities (Nicaragua v. United States), 1986 I.C.J. Rep. 14, 94, para. 176.

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS dawn of inter-State relations, writers sought to apply this concept to inter-State relations, particularly in connection with the just war doctrine.”356 If one explicitly recognizes the existence of the child, then one can scarcely deny the implication that a parent exists. “I admit that there was a person named Martin Luther King, Jr., but I deny the existence of Martin Luther King, Sr.” The previous sentence is illogical—and so is Frey’s claim that the explicit recognition of the natural, inherent right of national self-defense in Article 51 can be reconciled with the denial of the natural, inherent right of personal self-defense.

(2). Convention on the Prevention and Punishment of the Crime of Genocide, December 9, 1948 Article 2. In the present Convention,357 genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. Article 3. The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.

(3). United Nations’ Declaration On Human Rights Defenders Article 6. Obstruction of Justice. Article 9. The Right to Effective Remedy of Human Rights Violations. Article 13. Obstruction of Justice.

(4). The Inter-American Convention Against Corruption

356

DINSTEIN, at 176; see also M. A Weightman, Self-Defense in International Law , 37 VIR. L. R EV. 1095, 1099-1102 (1951). 357

CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, December 9, 1948, ratified by the United States on November 25, 1988.

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS Article III.1. Article III.1 Article IV.

Abuse of Authority, (Equivalent to 18 U.S.C. § 4. Misprision of Felony). 1. Obstruction of Justice. Acts of Corruption (18 U.S.C. § 872 Extortion Under Color of Law).

(5). United Nations Convention Against Corruption Article 11. Measures Relating to the Judiciary and Prosecution Services. Article 19. Abuse of Functions. Article 24. Concealment. Article 25. Obstruction of Justice. Article 27. Participation and Attempt. Article 28. Knowledge, Intent and Purpose as Elements of an Offence. Article 30. Prosecution, Adjudication and Sanctions. Article 32. Protection of . . . Victims. Article 33. Protection of Reporting Persons. Article 34. Consequences of Acts of Corruption [“Citizen’s Arrest Warrant”]. Article 39. Cooperation Between National Authorities and the Private Sector.

(6). International Covenant On Civil And Political Rights Article 14.1. Denial of Equal Justice Under the Law, Article 15.1. Threatened False Arrest (As applied against U.S. Marshals Service). Article 16. Denial of Equal Justice Under the Law.

(7). United Nations’ Universal Declaration on Human Rights Article 6. Everyone has the right to recognition everywhere as a person before the law. Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. Article 9. No one shall be subjected to arbitrary arrest, detention or exile. Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS Article 13. (1) Everyone has the right to freedom of movement and residence within the borders of each state. Article 29. (1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.

(8). American Declaration of the Rights and Duties of Man Article II. Article XVIII. Article XXIV. Article XXVI.

Denial of Equal Justice Under the Law. Denial of a Fair Civil Trial (Seventh Amendment). Denial of Right to Petition for Redress (First Amndment). 358 Denial of Due Process Rights (Fifth & Fourteenth Amendments).

H. Citing from David Sloss, When Do Treaties Create Individually Enforceable Rights? WHEN DO TREATIES CREATE INDIVIDUALLY ENFORCEABLE RIGHTS? The Supreme Court Ducks the Issue in Hamdan and Sanchez-Llamas David Sloss 45 Columbia Journal of Transnational Law 20 (2006)359

ABSTRACT In both Hamdan v. Rumsfeld and Sanchez-Llamas v. Oregon, government briefs asserted that there is a “long-established presumption” that treaties do not create judicially-enforceable individual rights. In his dissent in Sanchez-Llamas, Justice Breyer challenged this claim. The debate about whether the Supreme Court should adopt such a presumption is part of a broader conflict between the “nationalist” and “transnationalist” models of treaty enforcement. The transnationalist model applies a presumption in favor of domestic judicial remedies for violations of treaty-based individual rights. In contrast, the nationalist model applies a presumption against individual remedies for treaty violations. This article analyzes the historical foundations of both models. It demonstrates that doctrines involving the domestic judicial enforcement of treaties have changed dramatically in the past thirty years. Between 1789 and 1975, there was not a single judicial decision endorsing the nationalist presumption against private enforcement of treaty rights. In contrast, there were dozens of Supreme Court decisions that applied the transnationalist pre sumption in favor of domestic judicial remedies. Although the nationalist presumption against individual enforcement of treaties has gained widespread accep-tance in the 358 359

See pages 13-18 of this Warning & Notice of Intent. Available Online at http://law.slu.edu/sloss/Publications/Sloss%20Columbia%20Article.pdf

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS lower courts in the past thirty years, the Supreme Court has never endorsed that presumption. The Court’s decisions in Hamdan and Sanchez-Llamas declined to endorse either the nationalist or transnationalist presumption, but the Court’s ultimate resolution of the conflict between the nationalist and transnationalist models will have significant implications for U.S. foreign relations, separation of powers, and the rule of law.

VI. CONCLUSION We can learn much about the legal thought of past generations by focusing on what the courts did not say. The propositions that did not need to be stated because courts took them for granted may be as revealing as what the courts did say. During the first fifty years of U.S. constitutional history, the Supreme Court consistently decided treaty cases in accordance with the transnationalist model: they assumed that treaties have the status of law in our domestic constitutional system, that some treaty provisions create primary rights for individuals, and that individuals whose treaty rights are violated are entitled to remedies in domestic courts. The Court occasionally stated these assumptions explicitly. However, the best evidence that the Justices shared these assumptions is the Court’s consistent record of awarding remedies to individuals whose treaty rights were violated, even in cases where the political branches had not authorized the courts to provide remedies for treaty violations. Thus, the nationalist claim that there is a long-standing presumption that treaties do not create individually enforceable rights is utterly false. The truth is that the transnationalist model explains the actual record of Supreme Court decisions in treaty cases for most of U.S. history. This does not mean that the nationalist presumption against private enforcement of treaties is indefensible. Rather, it means that the nationalists cannot win the debate by citing precedents that do not actually support their position. The strongest defense of the nationalist model is an argument that relies on changed circumstances. The world is a very different place today than it was in 1789, or 1839, or even 1939. The United States is a superpower; we confront enemies who have demonstrated their willingness to use unconventional means to attack us. There is a considerable risk that some of those enemies may acquire weapons of mass destruction. In these circum-stances, the President arguably needs a greater degree of flexibility in framing and implementing national security policy than he did 100 or 200 years ago. During the twentieth century, the Court adopted several doctrinal innovations that supported the increasing concentration of foreign affairs power in the executive branch.360 Nationalists may contend that adoption of the nationalist presumption against private enforcement of treaties would be a sensible next step in the evolution of foreign affairs doctrine. If the Court takes this step, though, it should acknowledge honestly that it is embracing a novel doctrinal innovation. Moreover, before the Court endorses this doctrinal innovation, it should consider the potential negative consequences. Adoption of the nationalist presumption against private enforcement of treaties would yield three different types of harmful consequences. These relate to federal supremacy, separation of powers, and U.S. foreign relations. Under the Articles of Confederation, the federal government was powerless to halt treaty violations by state government officers.361 The Framers solved this problem by including treaties in the text of the Supremacy Clause: they gave treaties the status of supreme federal law and

360

See G. Edward White, THE TRANSFORMATION OF THE CONSTITUTIONAL REGIME OF FOREIGN RELATIONS, 85 VA. L. REV. 1 (1999).

361

See Carlos Manuel Vazquez, Treaty-Based Rights and Remedies of Individuals, 92 COLUM. L. REV. 1082, at 1101–04. (1992)

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS made treaties directly binding on state courts.362 In recent years, state and local governments have routinely violated U.S. obligations under Article 36 of the VCCR,363 just as state governments violated U.S. treaty obligations before adoption of the Constitution. The treaty violations persist because state courts and lower federal courts have invoked the nationalist presumption against private enforcement as a justification for their refusal to en-force the treaty.364 In Sanchez-Llamas v. Oregon,365 the Supreme Court had an opportunity to halt the ongoing treaty violations, but it failed to deliver. The Court in Sanchez-Llamas did not endorse the nationalist presumption against private enforcement of treaties.366 However, the Court applied a nationalist approach to treaty interpretation,367 adopting a restrictive view of the scope of legal protection accorded to foreign nationals under the treaty. By restricting the range of judicial remedies available to individual victims of Article 36 violations, the Court effectively signaled to state and local officers that they can continue to violate the treaty without fearing judicial sanctions.368 Thus, application of the nationalist model perpetuates the very problem of treaty violations by state officers that the Fram-ers thought they solved by including treaties in the text of the Supremacy Clause. The second harmful consequence associated with the nationalist model relates to separation of powers. In Hamdan v. Rumsfeld, the Supreme Court ruled that Common Article 3 of the Geneva Conventions is a part of U.S. federal law, that Common Article 3 grants rights to individual Guantanamo detainees, and that it would violate the rights of those detainees to subject them to 362

See U.S. CONST. art. VI, cl. 2 (stipulating that treaties are “the supreme Law of the Land” and that “Judges in every State shall be bound thereby”). See also Carlos Manuel Vazquez, TREATY-BASED RIGHTS AND REMEDIES OF INDIVIDUALS , 92 COLUM. L. REV. 1082, at 1104–10; Martin S. Flaherty, HISTORY RIGHT?: HISTORICAL SCHOLARSHIP, ORIGINAL UNDERSTANDING, AND TREATIES AS “SUPREME LAW OF THE LAND,” 99 Colum. L. Rev. 2095, at 2120–26 (1999). 363

See David Sloss, WHEN DO TREATIES CREATE INDIVIDUALLY ENFORCEABLE RIGHTS? 45 Columbia Journal of Transnational Law 20 (2006), notes 65–69 and accompanying text. 364

See, e.g., State v. Sanchez-Llamas, 108 P.3d 573 (Or. 2005). See also David Sloss, WHEN DO TREATIES CREATE INDIVIDUALLY ENFORCEABLE RIGHTS? 45 Columbia Journal of Transnational Law 20 (2006), notes 69, 70, 74–77 and accompanying text. 365

126 S. Ct. 2669 (2006).

366

See David Sloss, WHEN DO TREATIES CREATE INDIVIDUALLY ENFORCEABLE RIGHTS? 45 Columbia Journal of Transnational Law 20 (2006), notes 75–77 and accompanying text. 367

Recall that the transnationalist model applies the twin canons of good faith and liberal interpretation, whereas the nationalist model applies the canon of deference to the executive branch. See supra notes 32–38 and accompanying text. The Court in Sanchez-Llamas explicitly invoked the nationalist canon of deference to the executive branch in support of its decision. See Sanchez-Llamas, 126 S. Ct. at 2685. In contrast, the Court’s opinion makes no reference to the canons of good faith and liberal interpretation. Moreover, the Court’s decision is contrary to both those canons. The canon of good faith counsels courts to interpret a treaty in accordance with the agreed international understanding of its terms, but the SanchezLlamas majority explicitly rejected the agreed international understanding of Article 36 of the VCCR, as reflected in decisions by the International Court of Justice. See id. at 2683–86. The canon of liberal interpretation counsels courts to interpret a treaty to provide the broadest possible protection for the rights of foreign nationals, but the Court interpreted Article 36 in a manner that left both petitioners, and countless other foreign nationals, without any meaningful remedy for the acknowledged violation of their treaty-based individual rights. 368

The Court specifically rejected two proposed remedies for Article 36 violations: application of the exclusionary rule and preemption of state procedural default rules to enable individuals to raise Article 36 claims in post-conviction proceedings in state court. See Sanchez-Llamas, 126 S. Ct. at 2678–87. The Court’s opinion leaves open the possibility that individuals can obtain judicial remedies for Article 36 violations by raising ineffective-assistance-of-counsel claims. See supra notes 126–28 and accompanying text. However, since this remedial mechanism does not affect the state officers who violated the treaty in the first place, it provides no incentive for them to comply with the treaty.

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS trial by military com-mission.369 If the Court had endorsed the nationalist presumption against private enforcement of treaties, it might well have ruled that the Geneva Conventions are not judicially enforceable. 370 In that case, the Court would presumably have denied relief to Hamdan on the grounds that individual claimants cannot enforce the Geneva Conventions in U.S. courts. Thus, even though the Supreme Court held that the proposed military commission proceedings violate federal law, and that they violate Hamdan’s federal rights, a court apply-ing the nationalist presumption would disclaim the power to halt those ongoing violations. That type of rationale is squarely at odds with core rule-of-law principles. When federal courts turn a blind eye to executive action that violates federal law, they distort the constitutional balance of power by ceding too much power to the President and diminishing the relative powers of the legislative and judicial branches.371 Thus, courts that apply the nationalist model abdicate their constitutional responsibility to restrain illegal executive action, thereby distorting the balance of power among the branches. Finally, judicial application of the nationalist model harms the United States’ international reputation. U.S. violations of the VCCR and the Geneva Conventions contribute to a growing perception that the United States is hostile to international law. More specifically, other countries accuse the United States of trying to develop an inter-national system in which other states are constrained by international law, but the United States is free to pursue its national interests, unfettered by the requirements of international law. Proponents of the nationalist model may object that it is inappropriate for courts to concern themselves with international perceptions of U.S. behavior. That objection, though, merely serves to highlight the intellectual gulf between the Marshall Court and modern nationalists. According to a leading historical account, the Marshall Court’s decisions manifested “deep concern that the United States be known for its adherence to international law and its respect for treaty obligations. . . . In construing treaties of the Untied States, the Court exercised great liberality in broadening the rights of the signatory powers and those claiming under them.”372 Modern courts would do well to follow Chief Justice Marshall’s transnationalist approach.

I. United Nations at War Against the Second Amendment United Nations’ War of Aggression Against the Individual’s Human Right of Self-Defense is a Breach of Treaty (The U.N. Charter, Article 2, Clause 7) Under the VIENNA CONVENTION ON THE LAW OF TREATIES OF 1969 and the VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS OF 1986.

369

See 126 S. Ct. 2749, 2793–97 (2006).

370

Even if the Court adopted the nationalist presumption against private enforcement, it could reasonably have held that the federal habeas statute grants individuals a private right of action that empowers them to enforce the Geneva Conventions by filing a habeas corpus petition. However, courts that have endorsed the nationalist presumption have generally held that the Geneva Conventions are not judicially enforceable in a habeas corpus action. See, e.g., Hamdan v. Rumsfeld, 415 F.3d 33, 38–40 (D.C. Cir. 2005). 371

In the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, Congress has authorized the President to utilize military commissions similar to the ones that the President initially tried to establish without congressional authorization. The fact of congressional authorization clearly mitigates concerns about unchecked executive power in this context. Nevertheless, the nationalist model is problematic because it encourages judges to turn a blind eye to unlawful executive action. 372

George Lee Haskins & Herbert A. Johnson, FOUNDATIONS OF POWER: JOHN MARSHALL, 1801–15, at 557 (1981) (History of the Supreme Court of the United States Vol. 2).

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS The human right of armed self defense is not explicitly covered in either of the Vienna Conventions above, hereinafter referred to as Vienna ‘69 and Vienna ‘86. Both Vienna Conventions affirm that the rules of customary international law will continue to govern questions not regulated by the provisions of the those two Vienna Conventions, The United Nations’ PROGRAMME OF ACTION TO PREVENT, COMBAT AND ERADICATE THE ILLICIT TRADE IN SMALL ARMS AND LIGHT WEAPONS has the potential to become a customary international norm that may very will forcibly obligate the United States into repealing the Second Amendment.

J. The Human Rights Case of Jessica Gonzales: You Have No Individual Right to Police Protection What better example to expose a federal judicial system at war with the United States Constitution, the Bill of Rights, and against the with the people themselves than the tragic and horrifying case of Jessica Gonzales (now Lenahan).

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K. The Human Rights Record of the United States 2002-2007 Because the United States fails to include itself in its annual COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES, China issues their own annual HUMAN RIGHTS RECORD OF THE UNITED STATES. The Chinese reports from 2002 to 2007 focus on six basic categories of human rights violations by the United States:

CATEGORIES

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2007 2006 2005 2004 2003 2002

THE HUMAN RIGHTS RECORD OF THE UNITED STATES (2002-2007) Information Office of the State Council of China HUMAN RIGHTS I. Ineffective Protection of Life and Security of Person (2002) I. On Life, Freedom and Personal Safety (2003) I. On Life, Liberty and Security of Person (2004) I. On Life and Security of Person (2005) I. On Life, Property and Security of Person (2006) I. On Life, Property and Personal Security (2007) II. Serious Human Rights Violation by Law Enforcement Officials (2002) II. On Political Rights and Freedom (2003, 2004, 2005) II. On Infringements upon Human Rights by Law Enforcement and Judicial Organs (2005) II. On Human Rights Violations by Law Enforcement and Judicial Departments (2006, 2007) III. On Civil and Political Rights (2006, 2007) III. Money-driven Democracy (2002) IV. Poverty, Hunger and Homelessness (2002) III. On Living Conditions of US Laborers (2003) III. On Economic, Social and Cultural Rights (2004) IV. On Economic, Social and Cultural Rights (2005, 2006, 2007) VI. Deep-rooted Racial Discrimination (2002) IV. On Racial Discrimination (2003, 2004) V. On Racial Discrimination (2005, 2006, 2007) V. Women and Children Are in Worrisome Situation (2002) V. On Conditions of Women, Children and Elderly People (2003) V. On The Rights of Women and Children (2004, 2005, 2007) VI. On the Rights of Women, Children, the Elderly and the Disabled (2006) VII. Blunt Violations of Human Rights in Other Countries (2002) VIII. Double Standards in International Field of Human Rights (2002) VI. On Infringement upon Human Rights of Other Nations (2003) VI. On the Infringement of Human Rights of Foreign Nationals (2004) VII. On the United States’ Violation of Human Rights in Other Countries (2005, 2006) VII. On the Violation of Human Rights in Other Countries (2007)

http://mwcnews.net/index.php?option=com_content&task=view&id=21087 http://news.xinhuanet.com/english/2007-03/08/content_5817027.htm http://english.people.com.cn/200603/09/eng20060309_249259.html http://english.peopledaily.com.cn/200503/03/eng20050303_175406.html http://english.people.com.cn/200403/01/eng20040301_136190.shtml Part 1: http://www.china-embassy.org/eng/zt/zfbps/t36550.htm Part 2: http://www.china-embassy.org/eng/zt/zfbps/t36549.htm Part 3: http://www.china-embassy.org/eng/zt/zfbps/t36548.htm

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L. Other Constitutions: Human Rights are Created by God. Not by Government. " Footnote 263 in David B. Kopel, Paul Gallant, and Joanne D. Eisen, titled, THE HUMAN RIGHT OF SELFDEFENSE notes that human rights are included in the constitutions of 16 nations: The constitutions of at least sixteen nations explicitly affirm that human rights are inherent (or “natural” or created by God); they affirm human rights are recognized by governments, but not created by governments.373

373

Afghanistan Const., art. 23,

“Life is a gift of God and a natural right of human beings.”

Andorra Const., art. 4

“The Constitution recognizes the intangibility of the human dignity and guarantees the person’s inviolable and imprescriptible rights….”

Azerbaijan Const., art. 24

“Everyone…possess inviolable and inalienable rights and liberties.”

Belive Const., pmbl.

“inalienable rights with which all members of the human family are endowed by their Creator….”

Egypt Const., art. 41

“Individual freedom is a natural right not subject to violation….”

Ethiopia Const., art. 10

“Human rights and freedoms, emanating from the nature of mankind, are inviolable and inalienable.”

Liberia Const., art. 11,

“All persons…have certain natural, inherent and inalienable rights….”

Lithuania Const., art. 18

“The rights and freedoms of individuals shall be inborn.”

Luxembourg Const., art. 11

“The State guarantees the natural rights of the individual….”

Paraguay Const., art. 4

“The right to the life is inherent to the human person.”

Saint Lucia Const., Part II, sched. III, b

“ all persons have been endowed equally by God with inalienable rights….”

Saudi Arabia Const., art. 26

“The state protects human rights in accordance with the Islamic Shari’ah.”

Spain Const., art. 10

“inviolable rights which are inherent….”

Syria const., art. 25

“Freedom is a sacred right.”

Trinidad & Tobago Const., pmbl.

“the equal and inalienable rights with which all members of the human family are endowed by their Creator….”

Turkey Const., art. 12

“Everyone possesses inherent fundamental rights….”

SELF-DEFENSE. The following list is from footnote 263 of SELF-DEFENSE.

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M. Other Constitutions: Personal Self-Defense The International Court of Justice is instructed to use as a source of law “the general principles” from the laws of “civilized nations.”374 Without arguing about what nations currently count as “uncivilized”, we note that personal self-defense is part of the law of every legal system in the world today.375 In addition, many nations have constitutionalized self-defense, in a variety of forms. Before surveying the constitutions, we must acknowledge that around the world, many constitutional rights are honored only in the breach. For example, the constitution of Zimbabwe guarantees the right of free assembly376 but all forms of dissent are ruthlessly suppressed. Recently, opposition leader Morgan Tsvangirai was badly beaten by the government.377 In Kenya, the constitution is clear: “No person shall be deprived of his life save in execution of the sentence of a court….”378 However, shoot-to-kill orders were recently issued to police who executed the orders with a series of extrajudicial killings. 379 Even so, the expression of a standard in a national constitution is a signal of the importance of that standard in the national and international community, such that even governments which do not obey the standard feel compelled to assert that they do.380 From Antigua to Nigeria to Zimbabwe, there are thirteen nations which use nearly-identical language to constitutionalize self-defense: # Antigua & Barbuda, CONST, art. 4: 1. No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a crime of treason or murder of which he has been convicted. 2. A person shall not be regarded as having been deprived of his life in contravention of this section if he dies as the result of the use, to such extent and such circumstances as are permitted by law, of such force as is reasonably justifiable a. for the defence of any person from violence or for the defence of property; b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; c. for the purpose of suppressing a riot, insurrection or mutiny; or

374

Supra.

375

See Schlomit Wallerstein, Justifying the Right to Self-Defense: A Theory of Forced Consequences , 91 VA. L. REV. 999, 999 (2005) (“the right to self-defense is recognized in all jurisdictions”).

376

ZIMBABWE const. Ch. III, art. 21 (1) (“no person shall be hindered in his freedom of assembly and association… and in particular to form or belong to political parties…”). 377

See Tsvangirai Held in Intensive Care , BBC News, Mar. 14, 2007. Concerning breach of Zimbabwe’s guarantees (“Zimbabwean opposition leader Morgan Tsvangirai is being treated in an intensive care unit as doctors examine wounds he received in police custody…. He and dozens of other activists were arrested at a rally on Sunday.”)

378

KENYA CONST., ch. 5, art. 71(1).

379

See Cyrus Ombati, Govt Burns 8,000 Guns As Minister Orders Police to Kill Thugs , THE EAST AFRICAN STANDARD (Nairobi), Mar. 16, 2007. (Internal Security minister John Michuki stated: “An illegal weapon in the hands of a criminal has no other purpose except to kill an innocent person. It is, therefore, justifiable for the law enforcers to take equal measure against such a person.”).

380

“Hypocrisy is the tribute that vice pays to virtue.” François, Duke of La Rochefoucauld. “If a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than weaken the rule.” Nicaragua v. United States, at 98.

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS d. in order lawfully to prevent the commission by that person of a criminal offence, or if he dies as the result of a lawful act of war. # the Bahamas, CONST., art. 16. # Barbados, CONST., art. 12. # Belize, CONST., art. 4. # Grenada, CONST., art 2. # Guyana, CONST., art. 138. # Jamaica, CONST., art. 14. # Malta, CONST., § 33. # Nigeria, CONST., art. 33. # St. Kitts & Nevis, CONST., art. 4. # Saint Lucia, CONST., art. 2. # Saint Vincent and the Grenadines, CONST., art. 2. # Zimbabwe. CONST., art. 12: (1) No person shall be deprived of his life intentionally save in execution of the sentence of a court in respect of a criminal offence of which he has been convicted. (2) A person shall not be regarded as having been deprived of his life in contravention of subsection (1) if he dies as the result of the use, to such extent and in such circumstances as are permitted by law, of such force as is reasonably justifiable in the circumstances of the case (a) for the defence of any person from violence or for the defence of property; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) for the purpose of suppressing a riot, insurrection or mutiny or of dispersing an unlawful gathering; or (d) in order to prevent the commission by that person of a criminal offence; or if he dies as the result of a lawful act of war. (3) It shall be sufficient justification for the purposes of subsection (2) in any case to which that subsection applies if it is shown that the force used did not exceed that which might lawfully have been used in the circumstances of that case under the law in force immediately before the appointed day. # Slovakia uses a variation of the formula, CONST., art. 15: (1) Everyone has the right to life. Human life is worthy of protection even prior to birth. (2) No one must be deprived of life. (3) Capital punishment is not permitted. (4) If someone was deprived of life as a result of an action that does not represent a criminal act, this does not constitute a violation of rights according to this Article.

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N. Other Constitutions: Self-Defense Against Tyranny As Grotius, Pufendorf, and many other legal and moral philosophers have elaborated, selfdefense against tyranny is just a larger application of self-defense against a lone criminal. Many nations have constitutionalized the right of self-defense against tyrants. In five countries, the constitutionalization is framed as a constitutional intention to assist the liberation of other nations from tyranny: Algeria Const., art. 27:

“Algeria associates itself with all the peoples fighting for their political and economic liberation, for the right of self determination and against any racial discrimination.” Art: 33: “Individual or associative defense of the fundamental human rights and individual and collective liberties is guaranteed.”

Angola Const., art. 16:

“The Republic of Angola shall support and be in solidarity with the struggles of peoples for national liberation and shall establish relations of friendship and cooperation with all democratic forces in the world.”

Cuba Const., art. 12 :

The Republic of Cuba espouses the principles of anti-imperialism and internationalism, and (h) considers wars of aggression and of conquest international crimes; recognizes the legitimacy of the struggle for national liberation, as well as of armed resistance to aggression; and considers that its solidarity with those under attack and with the peoples that struggle for their liberation and self-determination constitutes its internationalist duty;

Portugal Const., art. 7(3): “Portugal recognizes the right of peoples to revolt against all forms of oppression, in particular colonialism and imperialism.” Suriname Const., art 7. 1. The Republic of Suriname recognizes and respects the right of nations to self determination and national independence on the basis of equality, sovereignty and mutual benefit…. 4. The Republic of Suriname promotes the solidarity and collaboration with other peoples in the combat against colonialism, neo-colonialism, racism, genocide and in the combat for national liberation, peace and social progress.

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O. Other Constitutions: Right and Duty of Citizens to Resist or Revolt Against Domestic or Foreign Tyranny In thirteen nations, the constitution affirms a right and duty of citizens to resist or revolt against domestic or foreign tyranny: Andorra Const., article 5: “The Universal Declaration of Human Rights is binding in Andorra.”381 Argentina Const. 382, § 36: (1) This Constitution shall rule even when its observance is interrupted by acts of force against the institutional order and the democratic system. These acts shall be irreparably null. (2) Their authors shall be punished with the penalty foreseen in Section 29, disqualified in perpetuity from holding public offices and excluded from the benefits of pardon and commutation of sentences. (3) Those who, as a consequence of these acts, were to assume the powers foreseen for the authorities of this Constitution or for those of the provinces, shall be punished with the same penalties and shall be civil and criminally liable for their acts. The respective actions shall not be subject to prescription. (4) All citizens shall have the right to oppose resistance to those committing the acts of force stated in this section. (5) He who, procuring personal enrichment, incurs in serious fraudulent offense against the Nation shall also attempt against the democratic system, and shall be disqualified to hold public office for the term specified by law. (6) Congress shall enact a law on public ethics which shall rule the exercise of public office. Congo Const., article 17:

“Any citizen may oppose the execution of an order received when it touches the rights and liberties contained in the present Constitution.”

Greece Const., art. 120(4) “Observance of the Constitution shall be committed to the patriotism of the Greeks who shall have the right and the obligation to resist by any means anybody who tries to subvert it violently.” Guatemala Const., art. 45: Action against violators and legitimacy of resistance. The action to judge the violators of the human rights is public and can be exerted by means of simple denunciation, without caution nor some formality. The resistance of the town for the protection and defense of the rights and guarantees briefed in the Constitution is legitimate. 383 381

Original in Spanish. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr

The Universal Declaration affirms the right of violent resistance to tyranny, so the incorporation of the Universal Declaration into a national constitution thereby incorporates the rightfulness of resisting tyranny. (Kopel, et al) 382

Section (2), (5), and (6) omitted in Kopel, et al, THE HUMAN RIGHT OF SELF DEFENSE. Section (2), (5), and (6), in their operation is the parallel function of the “Common Defence” clause in the Preamble to the United States Constitution and the Powers reserved to the People in the Tenth Amendment of the Bill of Rights to the United States Constitution. 383

Original in Spanish. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr

190 PART 6. PLAINTIFF’S HUMAN RIGHTS D ECLARATIONS

PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS Honduras Const., art. 3:

Nobody must be obedient to an usurping government nor to those who assume functions or uses public by the force of the average arms or using procedures that break or do not know what this Constitution and the laws establish. The acts verified by such authorities are null. the town must right to resort to the insurrection in defense of the constitutional order.384

Hungary Const., art. 2(3): “No activity of any person may be directed at the forcible acquisition or exercise of public power, nor at the exclusive possession of such power. Everyone has the right and obligation to resist such activities in such ways as permitted by law.” Lithuana Const. art. 3:

“(1) No one may limit or restrict the sovereignty of the People or make claims to the sovereign powers of the People. (2) The People and each citizen shall have the right to oppose anyone who encroaches on the independence, territorial integrity, or constitutional order of the State of Lithuania by force.”

Mauritania Const., pmbl.: Trusting in the omnipotence of Allah, the Mauritanian people proclaims its will to guarantee the integrity of its territory, its independence, and its national unity and to take upon itself its free political economic and social development. Believing strongly in its spiritual values and in the spreading of its civilization “it also solemnly proclaims its attachment to Islam and to the principles of democracy as they have been defined by the Universal Declaration of Human Rights of 10 Dec 1948 and by the African Charter of Human and Peoples Rights of 28 June 1981 as well as in the other international conventions which Mauritania has signed.” Judging that liberty, equality, and the dignity of Man may be assured only in a society which establishes the primacy of law, taking care to create the durable conditions for a harmonious social development respectful of the precepts of Islam, the sole source of law, but responsive as well to the exigencies of the modern world, the Mauritanian people proclaims in particular the inalienable guarantee of the following rights and principles: - the right to equality; - the fundamental freedoms and rights of human beings; - the right of property; - political freedom and freedom of labor unions; - economic and social rights; and - the rights attached to the family, the basic unit of Islamic society. Conscious of the necessity of strengthening its ties with brother peoples, the Mauritanian people, a Muslim, African, and Arab people, proclaims that it will work for the achievement of the unity of the Greater Maghreb of the Arab Nation and of Africa and for the consolidation of peace in the world. (incorporating right of resistance 384

Id.

191 PART 6. PLAINTIFF’S HUMAN R IGHTS DECLARATIONS

PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS articulated in the Universal Declaration and the African Charter. See supra text accompanying notes - , - .).385 Peru Const. art. 46:

“Nobody have to be obedient to an usurping government, nor to those who they assume public functions in violation of the Constitution and the laws. The civil populace has the right of insurgency in defense of the constitutional order. The acts are null of those who usurp public functions.”386

Portugal Const., art. 21:

“Everyone has the right to resist any order that infringes his rights, freedoms, or safeguards and to repel by force any form of aggression when recourse to public authority is impossible…” See also id., at __ (Portuguese constitution shall be construed “in accordance with the Universal Declaration of human rights.”; as discussed at note __, supra, the Universal Declaration recognizes the right of violent selfdefense against tyranny.)

Romania const., art 20

(1) Constitutional provisions concerning the citizens’ rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, with the covenants and other treaties Romania is a party to. (2) Where inconsistencies exist between the covenants and treaties on fundamental human rights Romania is a party to and internal laws, the international regulations shall take precedence. (incorporating right of resistance articulated in the Universal Declaration of Human Rights.

Slovakia Const., art. 32:

“Citizens have the right to put up resistance to anyone who would eliminate the democratic order of human rights and basic liberties listed in this Constitution, if the activity of constitutional bodies and the effective use of legal means are rendered impossible.”

P. Other Constitutions: Security against home invasion Finally, a very common item in constitutions which include a Bill of Rights is the right to security against home invasion. Sometimes—as in the United States’ Fourth Amendment [U.S. CONST., amend. 4.]—the right is stated in terms that apply only to home invasions by the government. Very frequently, however, the right is stated in terms which are not limited to government actors. Afghanistan Const., art. 38.1-2:

“Other than the situations and methods indicated in the law, no one, including the state, is allowed to enter or inspect a private residence without prior permission of the resident or holding a court order.”

Andorra Const., art. 14:

“Inviolability of the dwelling shall be guaranteed. No one shall enter a dwelling or any other premises against the will of the owner or without a warrant, except in case of flagrant delicto.”

Angola Const., art. 44:

“The State shall guarantee the inviolability of the home and the secrecy of correspondence, with limitations especially provided for by law.”

385

Italics parts omitted in original. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr

386

Spanish in original. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr

192 PART 6. PLAINTIFF’S HUMAN RIGHTS D ECLARATIONS

PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS Antigua & Barbuda., ch. 2(3)(c):

“protection for his family life, his personal privacy, the privacy of his home and other property and from deprivation of property without fair compensation,…”

Armenia Const., art. 21:

“Everyone is entitled to privacy in his or her own dwelling. It is prohibited to enter a person’s dwelling against his or her own will except under cases prescribed by law.”

Azerbaijan Const., art. 33.1-2:

“Everyone has the right for sanctity of his/her home. Except cases specified by law or decision of law court nobody has the right to enter private home against the will of its inhabitants.”

Bahamas Const., ch. 3.15(c):

“protection for the privacy of his home and other property and from deprivation of property without compensation…”

Belarus Const., art. 29:

“The right of the people to be secure in their houses and other legitimate effects shall be guaranteed. No person shall have the right, save in due course of law to enter the premises or other legal property of a citizen against one’s will.”

Belgium Const., art. 15

“The domicile is inviolable; no visit to the individual’s residence can take place except in the cases provided for by law and in the form prescribed by law.”

Belize Const., art. II.9.1

“Except with his own consent, a person shall not be subjected to the search of his person or his property or the entry by others on his premises.”

Benin Const., art. 20:

“The domicile shall be inviolable. House visits or searches may be carried out only according to the forms and conditions provided by law.”387

Bolivia Const., art. 21:

“All house is an asylum inviolable; at night it will not be possible to be entered her without consent of which it inhabits it and by day only the entrance to requisition written and motivated of competent authority will be crossed, except for the case of crime ‘in fragantí.’ “388

Brazil Const., art. 5:

XI - the home is the inviolable refuge of the individual, and no one may enter therein without the consent of the dweller, except in the events of flagrante delicto 389 or

387

Original in Spanish. English version found online at: http://www.chr.up.ac.za/hr_docs/constitutions/docs/BeninC(englishsummary)(rev).doc 388

Original in Spanish. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr Translation of “in fragantí” not readily available. 389

“being caught in the act” Latin.

193 PART 6. PLAINTIFF’S HUMAN R IGHTS DECLARATIONS

PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS disaster, or to give help, or, during the day, by court order;390

390

Bulgaria Const., art. 33.1-2

“The home is inviolable. No one shall enter or stay inside a home without its occupant’s consent, except in the cases expressly stipulated by law. Entering a home or staying inside without the consent of its occupant or without the judicial authorities’ permission shall be allowed only for the purposes of preventing an immediately impending crime or a crime in progress, for the capture of a criminal, or in extreme necessity.”

Burkina Faso Const., art. 6:

“The residence, the domicile, private and family life, secrecy of correspondence of every person are inviolable. It can only be affected according to the forms and in the cases specified by the law.”391

Burundi Const., art. [43]:392

“No one cannot be the subject of interference arbitrary in its private life, its family, her residence or its correspondence, nor of attacks to its honor and its reputation. It can be ordered searchings or house searches only under the forms and the conditions envisaged by the law.”393

Cambodia Const., art. 40:

“The right to privacy of residence and to the secrecy of correspondence by mail, telegram, fax, telex and telephone shall be guaranteed.”

China Const., art 39.

“The home of citizens of the People’s Republic of China is inviolable. Unlawful search of, or intrusion into, a citizen’s home is prohibited.”

Cuba Const., art. 56:

“The home is inviolable. Nobody can enter the home of another against his will, except in those cases foreseen by law.”

Domican Republic Const.:

art. 8.3 “The inviolability of the home. No home visit can be verified but in the cases anticipated by the law and with the formalities that it prescribes.”394

Egypt Const., art. 44

“Homes shall have their sanctity and they may not be entered or inspected except by a causal judicial warrant as prescribed by the law.”

El Salavador Const., art. 20:

“The home is inviolable and it will only be able to be entered by consent of the person who inhabits it, by

Original in Spanish. English version found online at http://www.v-brazil.com/government/laws/titleII.html

391

Original in Spanish. English version found http://www.chr.up.ac.za/hr_docs/constitutions/docs/Burkina%20FasoC%20(englishsummary)(rev).doc

online

392

Art. 23 in original. There correct article number corresponding to the text indicates “article 43” not “23.”

393

Original in French. English version online at http://www.idlo.int/texts/leg5567.pdf

394

Original in Spanish. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr

194 PART 6. PLAINTIFF’S HUMAN RIGHTS D ECLARATIONS

at

PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS judicial mandate, flagrant crime or imminent danger of its perpetration, or by serious risk of the people.”395 Eritrea Const., art. 18(2):

“No person shall be subjected to unlawful search, including his home or other property; there shall be no unlawful entry of his premises and no unlawful seizure of his personal possessions; nor shall the privacy of his correspondence, communication or other property be violated.

Estonia Const., art. 33:

“The home is inviolable. No one may forcibly enter or search anyone’s dwelling, property or place of work, except in such cases and in accordance with procedures determined by law for the protection of public order or health, or the rights and liberties of others, or in order to prevent a criminal act, to capture a criminal offender or to establish facts in a criminal investigation.”

Ethiopia Const., art. 26.1:

“Everyone has the right to privacy. This right shall include the right not to be subjected to searches of his home, person or property, or the seizure of any property under his personal possession.”

Germany Const. (Grundgesetz), art. 13.1:

“The home is inviolable.”

Grenada Const., ch. 1.7:

“Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.”

Guatemala Const., art. 23:

“Inviolability of the house. The house is inviolable. Nobody will be able to penetrate in other people’s dwelling without permission of that inhabits it, safe by written order of competent judge in which never specifies the reason for the diligence and before the six nor after the eighteen hours, Such diligence will be always made in the presence of the interested one, or of its agent chief executive.”396

Guyana Const., art. 40.1(c):

“protection for the privacy of his home and other property and from deprivation of property without compensation.”

Honduras Const., art. 99:

“The home is inviolable. No entrance or registry will be able to be verified without consent of the person who inhabits it or resolution of competent authority. However, it can be levelled off, in case of urgency, to prevent the commission or impunity of crimes or to avoid serious damages to the person or the property.”397

Hong Kong Const., art. 29:

“The homes and other premises of Hong Kong residents shall be inviolable. Arbitrary or unlawful search of, or

395

Ib.

396

Ib.

397

Original in Spanish. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr

195 PART 6. PLAINTIFF’S HUMAN R IGHTS DECLARATIONS

PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS intrusion into, a resident’s home or other premises shall be prohibited.” Ireland Const., art. 40.5:

“The dwelling of every citizen is inviolable and shall not be forcibly entered save in accordance with law.”

Iran Const., art. 22:

“The dignity, life, property, rights, residence, and occupation of the individual are inviolate, except in cases sanctioned by law.”

Italy Const., art. 14:

“(1) Personal domicile is inviolable. (2) No one’s domicile may be inspected, searched, or seized save in cases and in the manner laid down by law conforming to the guarantee of personal liberty.”

Jamaica Const., art. 19.1:

“Except with his own consent, no person shall be subject to the search of his person or his property or the entry by others on his premises.”

Jordan Const., art. 10:

“Dwelling houses shall be inviolable and shall not be entered except in the circumstances and in the manner prescribed by law.”

Kuwait Const., art. 38:

“Places of residence shall be inviolable. They may not be entered without the permission of their occupants except in the circumstances and manner specified by law.”

Latvia Const., art. 96:

“Everyone has the right to inviolability of their private life, home and correspondence.”

Lebanon Const., art. 14:

“The citizen’s place of residence is inviolable. No one may enter it except in the circumstances and manners prescribed by law.”

Liberia Const., art. 16:

“No person shall be subjected to interference with his privacy of person, family, home or correspondence except by order of a court of competent jurisdiction.”

Libya Const., art. 12:

“The home is inviolable and shall not be entered or searched except under the circumstances and conditions defined by the law.”; art. 24.1: “A person’s dwelling place shall be inviolable.”

Luxembourg Const., art. 15:

“The home is inviolable. No domiciliary visit may be made except in cases and according to the procedure laid down by the law.”

Macedonia Const., art. 26.1:

“The inviolability of the home is guaranteed.”

Madagascar Const., art. 13.1:

“Everyone shall be assured of protection of his person, his residence, and his correspondence.”

Mongolia Const., art. 16.13:

“Privacy of citizens, their families, correspondence, and homes are protected by law.”

Nepal Const., art. 22:

“Except as provided by law, the privacy of the person, house, property, document, correspondence or information of anyone is inviolable.”

196 PART 6. PLAINTIFF’S HUMAN RIGHTS D ECLARATIONS

PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS Nicaragua Const., art. 26:398

“All persons have the right to: 1. privacy and the privacy of their family; 2. the inviolability of their home, correspondence, and communications; 3. respect for their honor and reputation. A private home may be searched only with a warrant from a competent judge or expressly authorized official to prevent a crime from being committed or to avoid damage to persons or goods, in accordance with the procedures established by law. The law shall determine the cases and the procedures for an examination of private documents, fiscal records and related documents, when such is indispensable for the investigation of matters before the Courts or for fiscal reasons. Illegally seized letters, documents and other private papers shall be null and void in legal proceedings or elsewhere.”

Nigeria Const., art. 37:

“The privacy of citizens, their homes, correspondence, telephone conversations and telegraphic communications is hereby guaranteed and protected.”

Oman Const., art. 27:

“Dwellings are inviolable and it is not permitted to enter them without the permission of the owner or legal occupant, except in the circumstances specified by the Law and in the manner stipulated therein.”

Panama Const., art. 26:

“The home or the residence is inviolable.”399

Paraguay Const., 400 art. 33 & 34:

“About the Right to Privacy (1) Personal and family privacy, as well as the respect of private life, are inviolable. Individual behavior that does not affect public order as established by law or the rights of third parties is exempted from the authority of public officials. (2) The protection of the privacy, dignity, and private image of each individual is hereby guaranteed. Article 34 About the Inviolability of Private Premises Every private premises is inviolable. Private premises can only be searched or closed by a court order in accordance with the law. By way of exception, it can be searched or closed without a court order in case of flagrante delicto401

398

English version found online at http://www.leftjustified.com/leftjust/lib/sc/ht/wtp/nicaragu.html

399

Original in Spanish. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr

400

English version found online at http://servat.unibe.ch/icl/pa00000_.html

401

“caught in the act”

197 PART 6. PLAINTIFF’S HUMAN R IGHTS DECLARATIONS

PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS or to prevent the imminent perpetration of a crime or to avoid personal harm or property damage. Peru Const., art. 2.9:402

“Every individual has the right: 9. [to] the inviolability of his home. No one may enter the home or conduct any investigation or search without authorization from the inhabitant or a court warrant except in the case of flagrante delicto 403 or very grave danger of the same. Exceptions for reasons of health or serious risk are governed by law.”

Portugal Const., art. 34:

“The individual’s home and the privacy of his correspondence and other means of private communication are inviolable.…No one may enter the home of any person at night without his consent.”

Qatar Const., art. 37:

“The sanctity of human privacy shall be inviolable, and therefore interference into privacy of a person, family affairs, home of residence, correspondence, or any other act of interference that may demean or defame a person may not be allowed save as limited by the provisions of the law stipulated therein.”

Romania Const., art. 27.1:

“The domicile and the residence are inviolable. No one may enter or remain in the domicile or residence of a person without consent.”

Russian Federation Const., art. 25:

“The home is inviolable. No one has the right to enter the home against the will of persons residing in it except in cases stipulated by the federal law or under an order of a court of law.”

Rwanda Const., art. 22:

“The private lives of individuals shall not be infringed upon in any way.…Domiciles shall be inviolable.”

Saint Kitts & Nevis Const., art. 9.1:

“Except with his own consent, a person shall not be subject to the search of his person or his property or the entry by others on his premises.”

Saint Lucia Const.: art. 7.1

(same as St. Kitts).

Saint Vincent & The Grenadines Const., art. 7.1 (same as St. Kitts). Slovakia Const., art. 21.1:

“A person’s home is inviolable. It must not be entered without the resident’s consent.”

Saudi Arabia Const., art. 37:

“The home is sacrosanct and shall not be entered without the permission of the owner or be searched except in cases specified by statutes.”

South Korea Const., art. 16:

“All citizens are free from intrusion into their place of residence.”

402

English version available online at http://www.idlo.int/texts/leg6577.pdf

403

“being caught in the act.”

198 PART 6. PLAINTIFF’S HUMAN RIGHTS D ECLARATIONS

PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS Spain Const., art. 18.2:

“The home is inviolable.”

Suriname Const., art. 17.1:

“Everyone has a right to respect of his privacy, his family life, his home and his honor and good name.”

Switzerland Const., 13.1:

“Every person has the right to respect for his or her private and family life, home, and secrecy of mail and telecommunication.”

Syria Const., art. 31:

“Homes are inviolable.”

Thailand Const., § 35

“A person is protected for his or her peaceful habitation in and for possession of his or her dwelling place. The entry into a dwelling place without consent of its possessor or the search thereof shall not be made except by virtue of the law.”

Trinidad & Tobago Const., art. 4(c):

“the right of the individual to respect for his private and family life.”

Tunisia Const., art. 9:

“The inviolability of the home and the secrecy of correspondence are guaranteed, save in exceptional cases established by the law.”

Turkey Const., art. 21.1:

“The domicile of an individual shall not be violated.”

Uruguay Const., art. 11:

“The home is an asylum inviolable. At night nobody will be able to enter him without consent of its head, and by day, only of express order of competent Judge, in writing and in the cases determined by the law.”404

Venezuela Const., art. 47:

“The domestic home and all deprived enclosure of person are inviolable.”405

Vietnam Const., art. 73.1-2

“The citizen is entitled to the inviolability of his domicile. No one is allowed to enter the domicile of another person without his consent, except in cases authorised by the law.”

Zambia Const., art. 17.1:

“Except with his own consent, no person shall be subjected to the search of his person or his property or the entry by others on his premises.”

Zimbabwe Const., art. 17.1:

“Except with his own consent or by way of parental discipline, no person shall be subjected to the search of his person or his property or the entry by others on his premises.”

404

Original in Spanish. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr

405

Id.

199 PART 6. PLAINTIFF’S HUMAN R IGHTS DECLARATIONS

PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS

200 PART 6. PLAINTIFF’S HUMAN RIGHTS D ECLARATIONS

PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS

Part 7. Plaintiff’s Constitutional Rights Declarations Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

201 PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS

PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS

A. The Right to Openly Keep and Bear Arms (Open Carry) in Intrastate, Interstate, and Maritime Travel is the Constitutional Norm Citing District of Columbia v. Heller, 554 U.S. ___ (2008) (Slip Opinion No. 07-290 at 54): “[I]n State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.” District of Columbia v. Heller, 554 U.S. ___ (2008) (Slip Opinion No. 07-290 at 40) “[T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 25.” District of Columbia v. Heller, 554 U.S. ___ (2008) (Slip Opinion No. 07-290 at 54) “Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”).” District of Columbia v. Heller, 554 U.S. ___ (2008) (Slip Opinion No. 07-290 at 57). “Facts do not cease to exist because they are ignored.” Aldous Huxley, PROPER STUDIES: A NOTE ON DOGMA, p. 205 (1917). “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of facts and evidence.” John Adams (1732-1826), U. S. President, December 1770. “There are some acts of justice which corrupt those who perform them.” Joseph Joubert (17541824), Pensees. “There is no crueler tyranny than that which is perpetrated under the shield of law and in the name of justice.” Charles-louis De Secondat, Baron De Montesquieu (1742).

B. Open Carry in Intrastate, Interstate, and Maritime Travel is a Near-Absolute Human Right Notwithstanding Prohibited Person Status under 18 U.S.C. § 922 et seq. In the Heller opinion Justice Scalia cited case law at the State level striking down severe gun control laws that approached the District of Columbia handgun ban. “Open carry” is covered in

202 RIGHTS DECLARATIONS PART 7. PLAINTIFF’S CONSTITUTIONAL

PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS 1. State v. Reid, 1 Ala. 612, 616-617, 35 Am. Dec. 44 (1840) (A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional.) 2. pages 57 (Nunn v. State, 1 Ga. 243, 250–251 (1846) (We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and void.) 3. page 40 (State v. Chandler, 5 La. Ann. 489, 489–490 (1850) (The act of the 25th of March, 1813, makes it a misdemeanor to be “found with a concealed weapon, such as a dirk, dagger, knife, pistol, or any other deadly weapon concealed in his bosom, coat, or any other place about him, that does not appear in full view.” This law became absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons. It interfered with no man’s right to carry arms (to use its words) “in full open view,” which places men upon an equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if neccessary, and of their country, without any tendency to secret advantages and unmanly assassinations.); and 4. page 57 (Andrews v. State, 50 Tenn. at 187 (1871) (It will be seen the statute forbids by its terms, the carrying of the weapon publicly or privately, without regard to time or place, or circumstances, and in effect is an absolute prohibition against keeping such a weapon, and not a regulation of the use of it. Under this statute, if a man should carry such a weapon about his own home, or on his own premises, or should take it from his home to a gunsmith to be repaired, or return with it, should take it from his room into the street to shoot a rabid dog that threatened his child, he would be subjected to the severe penalties of fine and imprisonment prescribed in the statute.).

C. Judge Ellen Segal Huvelle Wrongfully Denied Mandamus Relief In Judge Ellen Segal Huvelle’s Order dismissing my first case, No. 02-1435 she cited boilerplate case law without due regard to the merits of my case (extreme judicial prejudice to my right to due process). She stated: The remedy of mandamus is an extraordinary one, and is reserved for extraordinary situations. 406 See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). Under well-established Circuit law, mandamus relief is available only if three conditions are met:407 (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff. Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002); see also In re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000) (mandamus issued “only for the most transparent violations of a clear duty to act”).

406

Plaintiff’s emphasis.

407

Plaintiff’s emphasis.

203 PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS

PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS

(1). Mandamus: Reserved for Extraordinary Situations: The terrorist attacks of September 11, 2001 is an extraordinary situation. The creation of the U.S. Department of Homeland Security in response to the terrorist attack of September 11, 2001 is an extraordinary situation. The transfer of the U.S. Coast Guard from the U.S. Department of Transportation to the U.S. Department of Homeland Security is an extraordinary situation. The transfer of superintendence of the U.S. Merchant Marine from the U.S. Department of Transportation to the U.S. Department of Homeland Security is an extraordinary situation.

(2). First Condition for Mandamus Relief: The plaintiff has a clear right to relief In 2002 I had a clear right to Mandamus relief with the combine effect of the extraordinary situations listed at subparagraph (1) above. In 2008 I still have the same extradinary situations listed at subparagraph (1) above but the U.S. Supreme Court handed me another clear right to Mandamus relief in the form of the U.S. Supreme Court’s opinion in District of Columbia v. Heller, No. 07-290 (June 26, 2008) stating that the Second Amendment is an individual right.

(3). Second Condition for Mandamus Relief: The defendant has a clear duty to act I have clearly shown that the United States has a very poor human rights record in how it treats its how People. I have clearly shown that the United States has the highest prison population than any other nation in the world. It is a substantial and proven claim that disarming the American people through gun control laws is not the the solution to murders, violent crimes, and property crimes. Academic law review articles frequently right about the road not taken under many areas of the Constitution of the United States. This case highlights one road not taken and suggests that it is time long overdue to take that road to an armed society under the Second Amendment as the constitutional norm that it is and social norms will form in compliance with the Second Amendment. The law and social norms are interdependent. The United States Government has a clear duty to respect the Second Amendment for its intended purpose as part of the checks and balance system under the Constitution of the United States.

(4). Third Condition for Mandamus Relief: remedy available to the plaintiff.

There is no other adequate

I have exhausted all remedies available from the U.S. Coast Guard, the U.S. Congress (petition for a private bill was administratively rejected), from the Executive Branch, and even from the federal Judicial Branch (hence my human rights complaint so noted on pages 1-3 of this complaint.).

(5). This Court has the duty to affirm Mandamus Relief. Citing Cohen v. Com. Wealth of Virginia 19 U.S. 264 (Wheat) (1821): It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.)

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS (a). Capt. Fink, USCG, Commanding Officer, National Maritime Center, Arlington, Virginia issued the initial denial of Petititoner’s application for National Open Carry Handgun endorsement on his Merchant Mariner’s Document in his letter dated February 22, 2002. (b). Capt. Fink stated in the above letter: “This is in response to your application dated January 10, 2002, for an endorsement on your merchant mariner’s document that would entitle you to carry a handgun. MMDs serve the purposes of identifying the mariner and providing evidence of his or her professional qualifications. An endorsement authorizing carriage of a handgun is beyond the scope of the professional requirements for the crew on board a merchant vessel and is not authorized by regulation.” (c). Capt. Fink did not cite the regulation he referred to in his letter to Plaintiff because there is no Coast Guard regulation in existence that prohibits authorizing my endorsement for “National Open Carry Handgun” but the Second Amendment to the U.S. Constitution. (d). The intent and purpose of the Bill of Rights, the first ten amendments to the U.S. Constitution, as explained in the Preamble to the Bill of Rights, is to “prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.” (e). National Open Carry Handgun is a right of the First, Second, Ninth, Tenth, Thirteenth, and Fourteenth Amendments, inclusively. (f). The constitutional right of National Open Carry Handgun is inseparable from the constitutional right to travel the various states under the Second, Ninth, Tenth, and Thirteenth Amendments for the lawful purpose of personal security in defense of life and liberty. These rights still retain constitutional status and protections in opposition to federal, state, and local laws and ordinances. Federal, state, county, and city laws and ordinances that infringe and prohibit this right are “repugnant to the constitution” and are “null and void” in terms of their constitutionality and must be stricken. (Marbury v. Madison) (g). The Federal Government, the Coast Guard and the States all have a legal and constitutional obligation to obey an under-enforced constitutional norm, the National Open Carry Handgun right of the Second, Ninth, Tenth, Thirteenth and Fourteenth Amendments which extends beyond its interpretation by the federal judiciary to the full dimensions of the concept which the norm embodies.408 (h). The Federal Government, the Coast Guard and the States are required to fashion their own conceptions of the constitutional norm of National Open Carry Handgun and measure their conduct by reference to this concept.409 (i). The Federal Government, the Coast Guard and the States all have an obligation to use their ‘best efforts’ to avoid unconstitutional conduct.410

408

Paraphrasing. Denning, Brannon P., Gun Shy: the Second 20 Amendment as an “Underenforced Constitutional Norm, 21 Harv. J.L. & Pub. Pol’y 719, (Summer 1998) discussing Lawrence Gene Sager’s Fair Measure: The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212 (1978). 409

Id.

410

Id.

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS (j). The Coast Guard acted with “deliberate indifference” to Plaintiff’s Second, Ninth, Tenth, and Thirteenth Amendment rights by denying Plaintiff’s application, and thereby violated Plaintiff’s civil, religious, and constitutional rights. (k). The Coast Guard acted with error when initiating a criminal investigation through the U.S. Navy Criminal Investigative Service against Plaintiff for exercising First Amendment rights pursuing Second Amendment rights.

D. There Are No Federal Laws or Regulations on the Second Amendment Rights of U.S. Seamen to Possess or Carry a Handgun, Whether Concealed Carry or Open Carry, Between the Jurisdictions of Domestic Law and Maritime Law. (1). “National Open Carry Handgun” is an Inherent Human Right of SelfDefense The Second Amendment right to openly keep and bear arms for personal safety, security and self-defense against the common criminal of society and against government tyranny, whether implied or explicitly included, under the right to life provisions of international human rights treaties and especially so under the United Nations CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE. Federal and State gun control laws violate the Bill of Rights to the U.S. Constitution and the privileges and immunities of the Fifth and Fourteenth Amendments and the U.S. citizenship of the Fourteenth Amendment. The United Nations global gun control agenda violates the United Nations Charter, Article 2, Clause 7 to which United States has the international remedy under the VIENNA CONVENTION ON THE LAW OF TREATIES 1969 and VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS 1986

E. The U.S. Department of Homeland Security Has General Superintendence Over the U.S. Merchant Marine and Merchant Personnel But Ignores the Role of Seamen’s Second Amendment Rights in Homeland Security Because there are no federal laws or regulations for or against Don Hamrick’s requested endorsement for National Open Carry Handgun on the Merchant Mariners Document, Capt. Brusseau should have given full weight of the Second Amendment to Don Hamrick’s application and acted in accordance with the “Oath of Office” [CG-9556 (Rev. 8-05)] that states: “Having accepted this appointment, I, [Capt. Brusseau], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, that I will bear true faith and allegiance to the same, that I take this obligation freely, without any mental reservation or purpose of evasion, and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.” That Capt. Brusseau abandoned his duty to support and defend the constitutional rights of seamen under the Bill of Rights by ignoring Don Hamrick’s individual right under the Second Amendment as an Able Seaman in their administrative final agency action in favor of a treasonous political ideology more in line with the United Nations global gun control agenda attacking the Second Amendment. That in 2002, U.S. civilian Able Seamen taking employment aboard U.S. Government vessels of the Ready Reserve Fleet and of the Pre-Position Fleet in support of the U.S. military are required to have small arms training in accordance with OPNAVINST 3591.1C: SMALL ARMS TRAINING AND QUALIFICATION, dated May 13,

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS 2002; ENCLOSURE (3) QUALIFICATION CRITERIA FOR SECURITY PERSONNEL (AFLOAT) dated May 13, 1992,411 through the Military Sealift Command, shipping companies, and the Seafarers International Union.

(1). That small arms training falls under the GENERAL REQUIREMENTS CLASSIFICATIONS FOR ABLE SEAMEN, 46 U.S.C. § 7306(a)(3):

AND

“To qualify for an endorsement as able seaman authorized by this section, an applicant must provide satisfactory proof that the applicant is qualified professionally as demonstrated by an applicable examination or educational requirements .”

(2). That 33 C.F.R. § 104.220 COMPANY OR VESSEL PERSONNEL WITH SECURITY DUTIES requires the following: Company and vessel personnel responsible for security duties must have knowledge, through training or equivalent job experience, in the following, as appropriate: (a) Knowledge of current security threats and patterns; (b) Recognition and detection of dangerous substances and devices; (c) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security; (d) Techniques used to circumvent security measures; (e) Crowd management and control techniques; (f) Security related communications; (g) Knowledge of emergency procedures and contingency plans; (h) Operation of security equipment and systems; (i) Testing and calibration of security equipment and systems, and their maintenance while at sea; (j) Inspection, control, and monitoring techniques; (k) Relevant provisions of the Vessel Security Plan (VSP); (l) Methods of physical screening of persons, personal effects, baggage, cargo, and vessel stores; and (m) The meaning and the consequential requirements of the different Maritime Security (MARSEC) Levels. (n) Relevant aspects of the TWIC program and how to carry them out. That 33 C.F.R. § 104.220 COMPANY OR VESSEL PERSONNEL WITH SECURITY DUTIES places unarmed company and vessel personnel with security duties at grave risk of personal injury or death when security duties

411

Current edition is OPNAVINST 3591.1E: SMALL ARMS TRAINING AND QUALIFICATION, dated February 20, 2007; ENCLOSURE (1) RANGE REGULATIONS; ENCLOSURE (2) SMALL ARMS DRY FIRE TRAINING PROCEDURE AND GUIDELINES; ENCLOSURE (3) QUALIFICATIONS FOR PISTOLS – M9 Beretta Pistol and the M11 9mm Compact Pistol (Selection for U.S. civilian Able Seamen are limited to the M9 9mm Beretta Pistol; ENCLOSURE (4) QUALIFICATIONS FOR RIFLE - M14, M16 (series) rifles, M4A1, M727, and Mk-18 Carbines, Rifle selection for U.S. civilian Able Seamen limited to the M14.; ENCLOSURE (5) QUALIFICATION CRITERIA FOR SHOTGUNS - 12-gauge 00 buckshot and slugs; ENCLOSURE (6) QUALIFICATION CRITERIA FOR LIGHT, MEDIUM AND HEAVY MACHINE GUN PERFORMANCE E VALUATION - M60 and MK43 (variants) 7.62MM medium machine guns, M240 (variants) 7.62MM medium machine guns, and MK46 Mod 0 (M249 Squad Automatic Weapon (SAW)) 5.56MM light machine guns (not available to civilian Able Seamen).

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS require that they approach and confront suspicious persons. It is unrealistic and suicidal to expect company personnel to comply with 33 C.F.R. § 104.220 while unarmed.

(3). That the International Maritime Organization’s Maritime Safety Committee policy on, Piracy and Armed Robbery Against Ships: Guidance to Shipowners and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed Robbery Against Ships, MSC/Circ.623/Rev.3, dated May 29, 2002, paragraphs 45 and 46 states: Firearms 45

The carrying and use of firearms for personal protection or protection of a ship is strongly discouraged.

46

Carriage of arms on board ship may encourage attackers to carry firearms thereby escalating an already dangerous situation, and any firearms on board may themselves become an attractive target for an attacker. The use of firearms requires special training and aptitudes and the risk of accidents with firearms carried on board ship is great. In some jurisdictions, killing a national may have unforeseen consequences even for a person who believes he has acted in self defence.

Pirates/armed robbers have succeeded in entering ship 51

Early detection of potential attacks must be the first line of defence, action to prevent the attackers actually boarding the second, but there will be incidents when attackers succeed in boarding a ship. The majority of pirates and armed robbers are opportunists seeking an easy target and time may not be on their side, particularly if the crew are aware they are on board and are raising the alarm. However, the attackers may seek to compensate for the pressure of time they face by escalating their threats or the violence they employ. When attackers are on board the actions of the master and crew should be aimed at: .1 securing the greatest level of safety for those on board the ship; .2 seeking to ensure that the crew remain in control of the navigation of the ship; and .3 securing the earliest possible departure of the attackers from the ship.

52

The options available to the master and crew will depend on the extent to which the attackers have secured control of the ship, e.g. by having gained access to the bridge or engine room, or by seizing crew members who they can threaten, to force the master or crew to comply with their wishes. However, even if the crew are all safely within secure areas, the master will always have to consider the risk to the ship the attackers could cause outside those areas, e.g. by using firebombs to start fires on a tanker or chemical carrier.

53

If the master is certain that all his/her crew are within secure areas and that the attackers cannot gain access or by their actions outside the secure areas they do not place the entire ship at imminent risk, then he/she may consider undertaking evasive manoeuvres of the type referred to above to encourage the attackers to return to their craft.

54

The possibility of a sortie by a well-organized crew has, in the past, successfully persuaded attackers to leave a ship but the use of this tactic is only appropriate if it can be undertaken at no risk to the crew. For an action like this to be attempted the master must have clear knowledge of where the attackers are on the ship, that they are not carrying firearms or other potentially lethal weapons and that the number of crew involved significantly outnumbers the attackers they will face. If a sortie party can use water hoses, they stand an increased chance of success. The intention

208 RIGHTS DECLARATIONS PART 7. PLAINTIFF’S CONSTITUTIONAL

PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS should be to encourage the attackers back to their craft. Crew members should not seek to come between the attackers and their craft nor should they seek to capture attackers as to do so may increase the resistance the attackers offer which will, in turn, increase the risk faced by members of the sortie party. Once outside the secure area, the sortie party should always stay together. Pursuit of an individual attacker by a lone crew member may be attractive but if it results in the crew member being isolated and seized by the attackers, the advantage turns to the attackers. Crew members should operate together and remain in constant communication with the bridge and should be recalled if their line of withdrawal to a secure area is threatened. 55

If the crew do apprehend an attacker, he/she should be placed in secure confinement and well cared for. Arrangements should be made to transfer him/her to the custody of officers of the security forces of a coastal State at the earliest possible opportunity. Any evidence relating to this activities should also be handed over to the authorities who take him/her into custody. The pirates/armed robbers begin to gain control and take one or more of the ship’s crew into their custody

56

If the attackers have gained control of the engine room or bridge, have seized crew members or can pose an imminent threat to the safety of a ship, the master or officer in charge should remain calm and, if possible, seek to negotiate with the attackers with the intention of maintaining the crew’s control over the navigation of the ship, the safe return of any hostages they may hold and the early departure of the attackers from the ship. There will be many circumstances when compliance with the attackers’ demands will be the only safe alternative and when resistance or obstruction of any kind could be both futile and dangerous.

57

In the event of attackers gaining temporary control of the ship, crew members should, if it is safe and practicable, leave Close Circuit Television (CCTV) records running.

58

As there have been occasions when entire crews have been locked up, consideration should be given to secreting equipment within areas in which the crew could be detained to facilitate their early escape. The pirates/armed robbers have stolen property/money, etc.

59

At this stage it is essential that the pirates/armed robbers are assured that they have been given everything they demand and a strong reassurance that nothing has been secreted may persuade the pirates/armed robbers to leave. The pirates/armed robbers start to disembark from the ship

60

If the crew are in their secure positions, it would be unwise of them to leave this security until it is confirmed that the pirates/armed robbers have left the ship. The pirates/armed robbers have disembarked from the ship

61

A pre-arranged signal on the ship’s siren will alert the crew to the “all clear”.

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS

F. Case Law on Vested Rights (Sorted by Year) (1) Calder v. Bull, 3 Dall 386 (1796) A right vested in a citizen means that he has the power to do certain actions, or to possess certain things, according to the law of this land.

(2). Marbury v. Madison 5 U.S. 137, 163 (1803) “If he has a right, and that right has been violated, do the laws of his country afford him a remedy? [5 U.S. 137, 163] The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court. In the third volume of his Commentaries, page 23, Blackstone states two cases in which a remedy is afforded by mere operation of law. ‘In all other cases,’ he says, ‘it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law whenever that right is invaded.’ And afterwards, page 109 of the same volume, he says, ‘I am next to consider such injuries as are cognizable by the courts of common law. And herein I shall for the present only remark, that all possible injuries whatsoever, that did not fall within the exclusive cognizance of either the ecclesiastical, military, or maritime tribunals, are, for that very reason, within the cognizance of the common law courts of justice; for it is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.’ The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right. If this obloquy is to be cast on the jurisprudence of our country, it must arise from the peculiar character of the case.”

(3). Cockrum v. State, 24 Texas 394 (1859) “The object of the clause [Second Amendment] first cited, has reference to the perpetuation of free government, and is based on the idea, that the people cannot be effectually oppressed and enslaved, who are not first disarmed. The clause cited in our bill of rights, has the same broad object in relation to the government, and in addition thereto, secures a personal right to the citizen. The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government. It is one of the “high powers” delegated directly to the citizen, and “is excepted out of the general powers of government.” A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the law-making power.”

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS

(4). Wilson v. State, 33 Arkansas, 557, at 560 (1878) (striking a ban on open carry) “[T]o prohibit the citizen from wearing or carrying a war arm, except upon his own premises or when on a journey traveling through the country with baggage, or when acting as or in aid of an officer, is an unwarranted restriction upon his constitutional right to keep and bear arms. If cowardly and dishonorable men sometimes shoot unarmed men with army pistols or guns, the evil must be prevented by the penitentiary and gallows, and not by a general deprivation of a constitutional privilege.”)

(5). Union Pacific Railway Company v. Botsford, 141 U.S. 250, at 251 (1891) “Limiting government officials’ power to stop, search, and seize private citizens was long a guiding principle of American Jurisprudence. The Supreme Court decreed in 1891, “No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law.” 412

(6). Yick Wo v. Hopkins, 118 U.S. 356, at 369 (1886) When we consider the nature and the theory of our institution of government . . . we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power . . . . The very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems intolerable in any country where freedom prevails, as being the essence of slavery itself. 413

(7) Coppage v. Kansas, 236 U.S. 1 (1915) [Unconsitutional Conditions] “The Fourteenth Amendment recognizes “liberty” and “property” as coexistent human rights, and debars the states from any unwarranted interference with either. Since a state may not strike down the rights of liberty or property directly, it may not do so indirectly, as by declaring in effect that the public good requires the removal of those inequalities that are but the normal and inevitable result of the exercise of those rights, and then invoking the police power in order to remove the inequalities, without other object in view. The Fourteenth Amendment debars the states from striking down personal liberty or property rights or materially restricting their normal exercise excepting so far as may be incidentally necessary for the accomplishment of some other and paramount object, and one that concerns the public welfare. The mere restriction of liberty or of property rights cannot, of itself, be denominated “public welfare”

412

James Bovard, LOST RIGHTS: THE DESTRUCTION OF A MERICAN LIBERTY, Palgrace, New York, ISBN

0-312-12333-7; at 228. 413

Id. at 49.

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS and treated as a legitimate object of the police power, for such restriction is the very thing that is inhibited by the Amendment.” The liberty protected by the 14th Amendment to the Federal Constitution may not be interfered with, under the guise of protecting the public interests, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the state to effect. . . . The liberty guaranteed by the 14th Amendment to the Federal Constitution denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.185 Meyeri v. Nevada, 262 U.S. 390 (1923), 43 S.Ct. 625, 29 ALR 1446, 67 L.Ed. 1042. The due process clause forbids arbitrary deprivations of liberty; where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, 414 the minimal requirements of the clause must be satisfied. Goss v. Lopez, 419 U.S. 565 (1975), 95 S.Ct. 729, 42 L.Ed. 725. Mere public intolerance or animosity cannot constitutionally justify the deprivation of a person’s physical liberty. O’Connor v. Donaldson, 422 U.S. 563 (1975), 95 S.Ct. 2486, 45 L.Ed.2d 396. Constitutional rights may not be denied simply because of hostility to their assertion or exercise. 415 Watson v. Memphis, 373 U.S. 526 (1963), 83 S.Ct. 1314, 10 L.Ed.2d. 529, Cox v. Lousiana, 379 U.S. 536 (1965), 85 S.Ct. 453, 13 L.Ed.2d. 471. The Bill of Rights in general, and the due process clause of the Fourteenth Amendment in particular, were designed to protect fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy which may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones. Fuentes v. Shevin, 407 U.S. 67 (1972), 92 S.Ct. 1983, 32 L.Ed.2d. 556. Both the substantive and the procedural protections of the due process clause of the Federal Constitution’s Fourteenth Amendment may be triggered when the state, by the affirmative, by the affirmative acts of its agents, subjects an involuntarily confined individual to deprivations of liberty which are not among those generally authorized by his confinement. De Shaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989), 109 S.Ct. 998, 103 L.Ed. 249.

414

The U.S. Coast Guard retaliated for being named as defendants in my civil RICO Act case and conspired with the U.S. Department of Transportation, Office of Security, to issue Bar Notices in 2004 and 2006 prohibiting me from visiting any DOT, FAA, USCG headquarters buildings subject me to arrest and prosecution just because I am exercising my Right to Petition under the First Amendment for my Seventh Amendment right to a civil jury trial. This Court denied or ignored my Motion for an Injunction against the Bar Notices. The Bar Notices remain in effect even though they violate my rights to conduct discovery or pursue evidence supporting my case. The U.S. Marshals Service has threatened me with arrest if I attempt to make citizen’s arrest of federal judges or court clerks even when I have evidence of felony extortion under color of law, 18 U.S.C. § 872 in violation of 28 U.S.C. § 1916. I have an appeal to the U.S. Supreme Court from the 8th Circuit on this judicial extortion of filing fees, No. 07m24, my motion to proceed as a seaman without paying the filing fees under the new rule change to Rule 40.2. The U.S. Supreme Court forced me to pay their filing fees in Nos. 03-145 and 04-1150. My Petition for Writ of Certiorari includes my Citizen’s Arrest Warrant of Chief Justice John G. Roberts for signing off on two court orders when he was a judge at the DC Circuit. 415

That includes the public intolerance or animosity of people who want to exercise their Second Amendment right to openly keep and bear arms in intrastate and interstate travel under the Thirteenth and Fourteenth Amendments.

212 RIGHTS DECLARATIONS PART 7. PLAINTIFF’S CONSTITUTIONAL

PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS In examining procedural due process questions under the Federal Constitution’s Fourteenth Amendment, a court follows a two-step process in which the first step asks whether there exists a liberty or property interest which has been interfered with by the state, and the second step examines whether the procedures attendant upon that deprivation are constitutionally sufficient; to constitute a liberty or property interest for Fourteenth Amendment purposes, an interest must rise to more than an abstract need or desire and must be based on more than a unilateral hope; and an individual claiming a protected interest must have a legitimate claim of entitlement to it. Kentucky Dept. Of Corrections v. Thompson, 490 U.S. 454 (1989), 109 S.Ct. 1904, 104 L.Ed.2d. 506. The Constitution requires that the powers of government must be so exercised as not, in attaining a permissible end, unduly to infringe a constitutionally protected freedom. Cantwell v. Connecticut, 310 U.S. 296 (1940), 60 S.Ct. 900, 128 ALR 1352, 84 l L.Ed. 1213, Aptheker v. Secretary of State, 378 U.S. 500 (1964), 84 S.Ct. 1659, 12 L.Ed. 992. Even though a governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved; the breadth of legislative abridgment must be reviewed in the light of less drastic means for achieving the same basic purpose. Shelton v. Tucker, 364 U.S. 479 (1960), 81 S.Ct. 247, 5 L.Ed. 2d 231, Aptheker v. Secretary of State, 378 U.S. 500 (1964), 84 S.Ct. 1659, 12 L.Ed. 992. Acts in themselves legal lose that character when they became part of a unlawful scheme. 416 Steele v. Bulova Watch Co. 344 U.S. 280 (1952), 73 S.Ct. 252, 97 L.Ed. 319. Public officials may become tortfeasors by exceeding the limits of their authority. Land v. Dollar 330 U.S. 731 (1947), 67 S.Ct. 1009, 91 L.Ed. 1209. To sustain an action on the case it must be shown that the defendant has done some wrong, that is, has violated some right of the plaintiff, and that damage has resulted as a direct and proximate consequence of the commission of that wrong; a mere conspiracy or combination to do injurious acts is not sufficient.417 Adler v. Fenton, 24 How. 407., 16 L.Ed. 696. No consideration need be alleged or proved in an action on the case for misfeasance, as the gist of such an action is the misfeasance. Garlandi v. Davis. 4 How. 131, 11 L.Ed. 907. Intentionally to do that which is calculated in the ordinary course of events to damage, and which does, in fact, damage another in that other person’s property or trade, is actionable if done without just cause or excuse; the intentional infliction of such damage upon another, without justification or excuse, is

416

Denial of a motion, dismissal of a Second Amendment case in a single instance or even in a few instances may be judicially proper. But 5 years of denials of my pleadings and dismissals of my Second Amendment cases becomes an unlawful scheme. Hence my civil RIOC Act case alleging the United States and the United Nations of racketeering an unlawful and an unconstitutional protection scheme over the Second Amendment. 417

In 2002 the U.S. Coast Guard denied my application for an endorsement on my Merchant Mariner’s Document (ID Card) for “National Open Carry Handgun” in respect to completing federally required small arms training as a prerequisite for employment as an Able Seaman aboard a U.S. Government ammunition ship coming out of the shipyard in Newport News, Virginia. The Coast Guard admitted to the fact that their were (and still) no federal laws or regulations for or against a “National Open Carry Handgun.” Even though the proper course of action would be to rely on the Second Amendment in the absence of federal laws and regulations for guidance the Coast Guard officer relied on personal judgment to determine that there would not provide any benefit to marine safety or security. This occurred less than a year after the terrorist attacks on September 11, 2001.

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS malicious in law.418 Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229 (1917), 38 S.Ct. 65, 62 L.Ed. 260. The right – whether it be called liberty or property – has value, and to interfere with this right without just cause is unlawful. Dorchyi v. Kansas, 272 U.S. 306 (1926), 47 S.Ct. 86, 71 L.Ed. 248.

(8). Olmstead v. United States 277 U.S. 438, 485 (1928) Justice Brandeis, dissenting: Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means -- to declare that the Government may commit crimes in order to secure the conviction of a private criminal -- would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.

(9). Murdock v. Pennsylvania 319 US 105 (1942) “A state may not impose a charge for the enjoyment of a right granted by the federal constitution . . . A license tax applied to activities guaranteed by the First Amendment would have the same destructive effect. It is true that the First Amendment, like the commerce clause, draws no distinction between license taxes, fixed sum taxes, and other kinds of taxes. But that is no reason why we should shut our eyes to the nature of the tax and its destructive influence. The power to impose a license tax on the exercise of these freedoms is indeed as potent as the power of censorship which this Court has repeatedly struck down.” Lovell v. Griffin, 303 U.S. 444 (1938), 58 S.Ct. 666; Schneider v. State, 308 U.S. 147 (1939); Cantwell v. Connecticut, 310 U.S. 296, 306 (1940), 60 S.Ct. 900, 904, 128 A.L.R. 1352; Largent v. Texas, 318 U.S. 418 (1943), 63 S.Ct. 667, 87 L.Ed. --; Jamison v. Texas, 318 U.S. 413 (1943). It was for that reason that the dissenting opinions in Jones v. Opelika, 316 U.S. 584 (1942), stressed the nature of this type of tax. 316 U.S. at pages 607-609, 620, 623, 62 S.Ct. at pages 1243, 1244, 1250, 1251, 141 A.L.R. 514.)

(10). West Virginia State Board of Education v. Barnette 319 U.S. 624, 638639 (1943) Justice Robert H. Jackson: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to 418

The combined effect of the federal courts blocking my cases from going to trial with the U.S. Marshals Service, the U.S. Marshals Service, and the U.S. Coast Guard as principal parties to harassment and obstructions of justice were malicious acts in law, and therefore actionable. Meaning that I can proceed to trial.

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS vote; they depend on the outcome of no elections. In weighing arguments of the parties it is important to distinguish between the due process clause of the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment and those cases in which it is applied for its own sake. The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard.

(11). American Communications Association, C.I.O., et al v. Douds, Regional Director of the National Labor Relations Board, 339 U.S. 382, 442-443 (1950) Justice Robert H. Jackson, concurring and dissenting, each in part to Chief Justice Fred M. Vinson’s opinion delivered to the Court: “It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error.”

(12). Lucas v. Colorado General Assembly 377 U.S. 713, 736-737 (1964) Chief Justice Warren: A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.

(13). Jordan v. Gardner 986 F.2d 1521 (9th Cir. 1993) Official knowledge of risk of harm and failure to act to prevent the harm constitute deliberate indifference which is established by showing knowledge of risk of impending harm that is easily preventable and the failure to prevent it.

(14). People v. Banks 6 Cal.4th 926, 949 (1993) Justice Panelli, dissenting: If we abandon constitutional protections to combat every abhorrent crime which has captured the public’s attention, we will find ourselves naked and unprotected in a hurry.

G. Case Law on the Private Right of Action (Sorted by Year) (1). United States v. Lee, 106 U.S. 196, at 220 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.”

(2). Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370 (7th Cir. 1985) (Treaties made by the United States are the law of the land, U.S. Const. art. VI, but if not implemented by appropriate legislation they do not provide the basis

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS for a private lawsuit unless they are intended to be self-executing. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C.Cir.1984) (Bork, J., concurring), cert. denied, --- U.S. ----, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985); Dreyfus v. Von Finck, 534 F.2d 24, 30 (2d Cir.), cert. denied, 429 U.S. 835, 97 S.Ct. 102, 50 L.Ed.2d 101 (1976). Whether a treaty is self-executing is an issue for judicial interpretation, RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE UNITED STATES, Sec. 154(1) (1965), and courts consider several factors in discerning the intent of the parties to the agreement: (1) the language and purposes of the agreement as a whole; (2) the circumstances surrounding its execution; (3) the nature of the obligations imposed by the agreement; (4) the availability and feasibility of alternative enforcement mechanisms; (5) the implications of permitting a private right of action;419 and (6) the capability of the judiciary to resolve the dispute. Tel-Oren, 726 F.2d at 808-10 (Bork, J., concurring); United States v. Postal, 589 F.2d 862, 876-77 (5th Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 40 (1979); People of Saipan v. United States Dept. of Interior, 502 F.2d 90, 97 (9th Cir.1974), cert. denied, 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975); Sei Fujii v. State, 38 Cal.2d 718, 721-24, 242 P.2d 617, 620-22 (1952). Of course, if the parties’ intent is clear from the treaty’s language courts will not inquire into the remaining factors. See, e.g., Cardenas v. Smith, 733 F.2d 909, 918 (D.C.Cir.1984)).

(3). Robert A. Buell, v. Betty Mitchell, Warden, No. 99-4271, 6th Cir., 274 F.3d at 373 (December 4, 2001) The court’s discussion in [Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 935, 940 (D.C. Cir. 1988)] of when a rule becomes a customary and, later, peremptory norm, or jus cogens, is instructive: [C]ustomary international law is continually evolving. At a crucial stage of that process, ‘[w]ithin the relevant states, the will has to be formed that the rule will become law if the relevant number of states who share this will is reached.’ Meijers, HOW IS INTERNATIONAL LAW MADE?, 9 Netherlands Y.B. Int’l L. 3, 5 (1978). As to what constitutes the necessary number of ‘relevant states,’ the [International Court of Justice] has said that ‘State practice . . . should have been both extensive and virtually uniform in the sense of the provision invoked.’ The North Sea Continental Shelf Case (Judgment), 1969 I.C.J. 12, 43. Finally, in order for such a customary norm of international law to become a peremptory norm, there must be a further recognition by ‘the international community . . . as a whole [that this is] a norm from which no derogation is permitted.’ VIENNA CONVENTION [ON THE LAW OF TREATIES,] art. 53 (emphasis added).

419

Plaintiff’s emphasis.

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(4). Robert A. Buell, v. Betty Mitchell, Warden, No. 99-4271, 6th Cir., 274 F.3d at 373 (December 4, 2001) Courts that have determined that private rights of actions exist under customary norms of international law have done so where acts were committed on a foreign citizen or acts were committed by a foreign government or government official. See Hawkins, 33 F. Supp. 2d at 1255 (citing cases). “There is no reported case of a court in the United States recognizing a cause of action under jus cogens norms of international law for acts committed by United States government officials against a citizen of the United States.” Ibid; . . . Christenson further notes that “[w]hile some language in several decisions of courts of appeal states that U.S. courts have recognized the concept of jus cogens as part of U.S. law, not a single case has been decided on that basis alone without having been overturned.” Ibid. (citing Princz v. F.R.G., 26 F.3d 1166 (D.C. Cir. 1994) (reversing district court’s reliance on jus cogens in claim of American citizen and Holocaust survivor who sued the Federal Republic of Germany for damages based on having been a prisoner in Nazi concentration camps)). ¶ We believe that the same logic applies in this case, though Buell, a United States citizen, is not asserting a private right of action, but instead is using international law as a defense against actions taken by Ohio’s government that comply fully with the United States Constitution. He is attempting to interpose customary international law as a defense against “acts committed by . . . government officials against a citizen of the United States.” Hawkins, 33 F. Supp. 2d at 1255. If anything, the standards for implying a civil private right of action under international law should be less than those for using international law as a defense against otherwise lawful government action under the Constitution. 420).

(5). Robert A. Buell, v. Betty Mitchell, Warden, No. 99-4271, 6th Cir. (December 4, 2001) It is a long-standing principle under United States law that “[i]nternational law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction as often as questions of right depending upon it are duly presented for their determination.” The Paquete Habana, 175 U.S. 677, 700 (1900). In order to define what is a “rule of international law,” the Restatement (Third) of Foreign Relations Law instructs us: (1) A rule of international law is one that has been accepted as such by the international community of states: (a) in the form of customary law; (b) by international agreement; or (c) by derivation from general principles common to the major legal systems of the world. RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW 102(1) (1987).).

420

Plaintiff’s emphasis.

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(6). Diana Renkel v. United States 6th Circuit, No. 05-3420; 456 F.3d 640 (6th Cir. 2006) [Footnotes omitted]: Renkel squarely presents us with one issue on appeal: whether she has an actionable claim for relief under the Convention Against Torture. This is a purely legal question, which we review de novo. Singleton v. United States, 277 F.3d 864, 870 (6th Cir. 2002). Under the federal Constitution, all international treaties in which the United States enters become part of the “supreme Law of the Land.” U.S. Const. art. VI, cl. 2. “[T]reaties have the same legal effect as statutes.” United States v. Emuegbunam, 268 F.3d 377, 389 (6th Cir. 2001) (citing Whitney v. Robertson, 124 U.S. 190, 194 (1888); United States v. Page, 232 F.3d 536, 540 (6th Cir. 2000)). Yet, treaties, like some statutes, do not always directly create rights that a private citizen can enforce in court. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C. Cir. 1984) (Bork, J., concurring). As we explained in Emuegbunam, A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and honor of the governments which are parties to it. If these fail, its infraction becomes the subject of international negotiations and reclamation, so far as the injured parties choose to seek redress, which may in the end be enforced by actual war. It is obvious that with all this the judicial courts have nothing to do and can give no redress. Emuegbunam, 268 F.3d at 389 (quoting Head Money Cases, 112 U.S. 580, 598 (1884)); see also Foster v. Neilson, 27 U.S. (2 Pet.) 253, 307 (1829) (“The judiciary is not that department of the government, to which the assertion of its interests against foreign powers is confided; and its duty commonly is to decide upon individual rights, according to those principles which the political departments of the nation have established.”), overruled in part on other grounds, United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833). “In fact, courts presume that the rights created by an international treaty belong to a state and that a private individual cannot enforce them.” Emuegbunam, 268 F.3d at 389 (emphasis added, citations omitted). Some treaties may, however, directly provide for private rights of action. “Selfexecuting treaties” are those treaties which do not require domestic legislation to give them the full force of law. See TWA v. Franklin Mint Corp., 466 U.S. 243, 252 (1984); Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 968 (4th Cir. 1992). Such treaties can create private rights enforceable in court. On the other hand, “non-self-executing” treaties do require domestic legislation to have the force of law. Auguste v. Ridge, 395 F.3d 123, 133 n.7 (3d Cir. 2005). For a nonself-executing treaty, any private claim must be based on a violation of the domestic law implementing the provisions of that treaty. Raffington v. Cangemi, 399 F.3d 900, 903 (8th Cir. 2005). In other words, federal courts “are bound to give effect to international law and to international agreements, except that a ‘non-self-executing’ agreement will not be given effect as law in the absence of necessary authority.” Buell v. Mitchell, 274 F.3d 337, 372 (6th Cir. 2001) (quoting Restatement (Third) of Foreign Relations Law § 111 (1987)).

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS “Whether a treaty is self-executing is an issue for judicial interpretation . . . .” Frolova v. U.S.S.R., 761 F.2d 370, 373 (7th Cir. 1985) (citation omitted). In general, we first look to the express terms of the treaty, and then to “the treaty as a whole” to determine whether it evidences an intent to be self-executing and to create a private right of action. See Tel-Oren, 726 F.2d at 808 (Bork, J., concurring) (citation omitted).

H. Case Law on Constitutional Rights (Sorted by Year) (1). United States v. Lee, 106 U.S. 196, at 220 (1882) “No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.” “It is the only supreme power in our system of government, and every man who, by accepting office participates in its functions, is only the more strongly bound to submit to that supremacy, and toobserve the limitations which it imposes on the exercise of the authority which it gives.”

(2). Juliard v. Greeman, 110 U.S. 421 (1884) Supreme Court Justice Field, “There is no such thing as a power of inherent sovereignty in the government of the United States... In this country, sovereignty resides in the people, and Congress can exercise power which they have not, by their Constitution, entrusted to it. All else is withheld.”

(3). Kentucky Railroad Tax Cases, 115 U.S. 321, 337 (1885) “The rule of equality... requires the same means and methods to be applied impartially to all the constitutents of each class, so that the law shall operate equally and uniformly upon all persons insimilar circumstances”.

(4). Boyd v. United States, 116 U.S. 616 at 635 (1885) Justice Bradley, “It may be that it is the obnoxious thing in its mildest form; but illegitimate and unconstitutional practices get their first footing in that way; namely, by silent approaches and slight deviations from legal modes of procedure. This can only be obviated by adhering to the rule that constitutional provisions for the security of persons and property should be liberally construed. A close and literal construction deprives them of half their efficacy, and leads to gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the Courts to be watchful for the Constitutional Rights of the Citizens, and against any stealthy encroachments thereon. Their motto should be Obsta Principiis.”

(5). Logan v. United States 144 US 263 (1892) “When those fundamental rights which are recognized and declared, but not granted or created, by the Constitution, are thereby guaranteed only against violation or abridgment by the United States or by the states, and cannot

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS therefore be affirmatively enforced by Congress against unlawful acts of individuals, yet every right created by, arising under, or dependent upon, the Constitution of the United States, may be protected and enforced by Congress by such means and in such manner as it may deem best.”

(6). Duncan v. Missouri, 152 U.S. 377, 382 (1894) “[T]he privileges and immunities of citizens of the United States protected by the fourteenth amendment are privileges and immunities arising out of the nature and essential character of the federal government, and granted or secured by the constitution; and due process of law and the equal protection of the laws are secured if the laws operate on all alike, and do not subject the individual to an arbitrary exercise of the powers of government; . . .”

(7). Mountain Timber Co. v. Washington, 243 US 219 (1917) “If not warranted by any just occasion, the least imposition is oppressive.”

(8). Miller v. United States 230 F 486 at 489 (1913) “The claim and exercise of a Constitutional right shall not be converted into a crime.”

(9). Davis v. Wechler, 263 U.S. 22, 24 (1923) “. . .the assertion of federal rights, when plainly and reasonably made, are not to be defeated under the name of local practice.”

(10). Olmstad v. United States, 277 U.S. 438 (1928) “Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”

(11). Lawrence v. State Tax Commission, 286 US 276, at 282 (1932) [T]he Constitution, which guarantees rights and immunities to the citizen, likewise insures to him the privilege of having those rights and immunities judicially declared and protected when such judicial action is properly invoked.

(12). Perry v. United States, 294 U.S. 330, 358 (1935) “I do not understand the government to contend that it is any less bound by the obligation than a private individual would be...” “It is not the function of our government to keep the citizen from falling into error; it is the function of the citizen to keep the government from falling into error.”

(13). Smith v. Allwright, 321 U.S. 649 at 664 (1944) “Constitutional rights would be of little value if they could be . . . indirectly denied.”

(14). Kent v. Dulles, 357 U.S. 116, 125 (1958) “The right to travel is a part of the liberty of which the citizen cannot be deprived without due process of law under the Fifth Amendment.”

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(15). Walter Process Equipment v. Food Machinery, 382 U.S. 172 (1965) In a “motion to dismiss, the material allegations of the complaint are taken as admitted”. From this vantage point, courts are reluctant to dismiss complaints unless it appears the plaintiff canprove no set of facts in support of his claim which would entitle him to relief (see Conley v. Gibson, 355 U.S. 41 (1957)).

(16). Simmons v. United States, 390 U.S. 377 (1968) “The claim and exercise of a Constitution right cannot be converted into a crime”... “a denial of them would be a denial of due process of law”.

(17). Chandler v. Judicial Council, 398 U.S. 74, at 140 (1970) Chief Justice Berger: “If [judges] break a law, they can be prosecuted.”

(18). Chandler v. Judicial Council, 398 U.S. 74, at 140 (1970) Justice Black and Douglas in their dissenting opinion, 398 U.S. 74, at 141-142, agreed with Chief Justice Berger on the point above: “While judges, like other people, can be tried, convicted, and punished for crimes . . .”

(19). Sherar v. Cullen, 481 F. 2d 946 (1973) “There can be no sanction or penalty imposed upon one because of his exercise of constitutional rights.”

(20). Goss v. Lopez, 419 US 565 (1975) “The due process clause forbids arbitrary deprivations of liberty; where a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him, the minimal requirements of the clause must be satisfied.”

(21). United States v. Chadwick, 433 U.S. 1, at 16 (1976) “ . . . it is deeply distressing that the Department of Justice, whose mission is to protect the constitutional liberties of the people of the United States, should even appear to be seeking to subvert them by extreme and dubious legal arguments. It is gratifying that the Court today unanimously rejects the Government’s position.”

(22). Owen v. City of Independence 445 U.S. 622, 657 1980) “The innocent individual who is harmed by an abuse of governmental authority is assured that he will be compensated for his injury.”

(23). Forrester v. White, 484 U.S. 219, at 227-229 (1988) This Court has never undertaken to articulate a precise and general definition of the class of acts entitled to immunity. The decided cases, however, suggest an intelligible distinction between judicial acts and the administrative, legislative, or executive functions that judges may on occasion be assigned by law to perform. Thus, for example, the informal and ex parte nature of a proceeding has not been thought to imply that an act otherwise within a judge’s lawful jurisdiction was

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS deprived of its judicial character. See Stump v. Sparkman, 435 U.S. 349, 363 , n. 12 (1978). Similarly, acting to disbar an attorney as a sanction for contempt of court, by invoking a power “possessed by all courts which have authority to admit attorneys to practice,” does not become less judicial by virtue of an allegation of malice or corruption of motive. Bradley v. Fisher, 13 Wall., at 354. [484 U.S. 219, 228] As the Bradley Court noted: “Against the consequences of [judges’] erroneous or irregular action, from whatever motives proceeding, the law has provided for private parties numerous remedies, and to those remedies they must, in such cases, resort.” Ibid. Administrative decisions, even though they may be essential to the very functioning of the courts, have not similarly been regarded as judicial acts. In Ex parte Virginia, 100 U.S. 339 (1880), for example, this Court declined to extend immunity to a county judge who had been charged in a criminal indictment with discriminating on the basis of race in selecting trial jurors for the county’s courts. The Court reasoned: “Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent. Whether he was a county judge or not is of no importance. The duty of selecting jurors might as well have been committed to a private person as to one holding the office of a judge. . . . That the jurors are selected for a court makes no difference. So are court-criers, tipstaves, sheriffs, &c. Is their election or their appointment a judicial act?” Id., at 348. Although this case involved a criminal charge against a judge, the reach of the Court’s analysis was not in any obvious way confined by that circumstance. Likewise, judicial immunity has not been extended to judges acting to promulgate a code of conduct for attorneys. Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719 (1980). In explaining why legislative, rather than judicial, immunity furnished the appropriate standard, we said: “Although it is clear that under Virginia law the issuance of the Bar Code was a proper function of the Virginia Court, propounding the Code was not an act of adjudication but one of rulemaking.” Id., at 731. Similarly, in the same case, we held that judges acting to enforce the Bar Code would be treated like prosecutors, and thus would [484 U.S. 219, 229] be amenable to suit for injunctive and declaratory relief. Id., at 734-737. Cf. Pulliam v. Allen, 466 U.S. 522 (1984). Once again, it was the nature of the function performed, not the identity of the actor who performed it, that informed our immunity analysis.

(24). Mireles v. Waco, 502 U.S. 9, at 11-12 (1991) Like other forms of official immunity, judicial immunity is an immunity from suit, not just from ultimate assessment of damages. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985). Accordingly, judicial immunity is not overcome by allegations of bad faith or malice, the existence of which ordinarily cannot be resolved without engaging in discovery and eventual trial. Pierson v. Ray, 386 U.S., at 554 (“[I]mmunity applies even when the judge is accused of acting maliciously and corruptly”). See also Harlow v. Fitzgerald, 457 U.S. 800, 815 819 (1982) (allegations of malice are insufficient to overcome qualified immunity). Rather, our cases make clear that the immunity is overcome in only two sets of circumstances. First, a judge is not immune from liability for nonjudicial

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS actions, i.e., actions not taken in the judge’s judicial capacity. Forrester v. White, 484 U.S., at 227 -229 (1988); Stump v. Sparkman, 435 U.S. 349, at 360 (1978).

(25). Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993) “[A] complaint should not be dismissed unless `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 246 (1980) (quoting Conley v. Gibson, 355 U.S. 41, 45 -46 (1957)).

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PART 8. PLAINTIFF’S RELIGIOUS RIGHTS DECLARATIONS

PART 8. PLAINTIFF’S RELIGIOUS RIGHTS DECLARATIONS Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

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A. God, Guns, & Freedom There is a direct connection between religious freedom of the First Amendment and armed self-defense of the Second Amendment that gun control activists refuse to admit or acknowledge. The Second Amendment is a religious right! Congress is prohibited from enacting legislation by the First Amendment in that “Congress shall make no law respecting an establishment of religion”, “or, the right of the people peaceably to assemble”. Gun control laws are laws against God and Christianity and violates our religious freedom. Some say this connection is a very weak link or there is no connection to the Second Amendment at all. The history of the world is prima facie evidence that this connection is real and still applies very strongly today.

B. What Rights Do We Have? (1). Natural Rights (Black’s Law Dictionary) Those which grow out of nature of man and depend upon his personality and are distinguished from those which are created by positive laws enacted by a duly constituted government to create an orderly civilized society.

(2). Civil Rights (Civil Liberties) (Black’s Law Dictionary) Personal, natural rights guaranteed and protected by the Constitution; e.g. freedom of speech, press, freedom from discrimination, etc. Body of law dealing with natural liberties, shorn of excesses which invade equal rights of others. Constitutionally, they are restraints on government. (Black’s Law Dictionary)

(3). Religious Freedom (Black’s Law Dictionary) Within the Constitution (First Amendment) embraces not only the right to worship God according to the dictates of one’s conscience, but also the right to do, or forbear to do, any act, for conscience sake, the doing or forbearing of which is not inimical to the peace, good order, and morals of society.

C. Second Amendment As A Religious Right Explained (1). Inherent Rights Defined CORPUS JURUS SECUNDUM - Volume 14 - Civil Rights Section II: Rights Protected and Discrimination Prohibited Generally A. IN GENERAL § 12. General Considerations “Apart from Constitutional or statutory provisions, inherent rights will be upheld by the courts against any action which would result in discrimination between persons of different races, creeds, or color.” Black’s Law Dictionary defines inherent rights as “One which abides in a person and is not given from something or someone outside of itself. A right which a person has because he is a person. See inalienable rights.

(2). Inalienable Rights Defined Continuing in Black’s Law Dictionary, inalienable rights are defined as “are rights which are not capable of being surrendered or transferred without the consent of the one possessing such rights; e.g., freedom of speech or religion, duke process, and equal protection of the laws;. See Bill of Rights. The Bill of Rights, defined by Black’s Law Dictionary, are the first ten amendments to the United States Constitution providing for individual rights, freedoms, and protections.” Notice that the Second Amendment is within those first ten amendments as being an “individual right.”

(3). Inherent human right includes creeds CORPUS JURUS SECUNDUM (continued Under Library Reference section.) PART 8. PLAINTIFF’S RELIGIOUS226 RIGHTS DECLARATIONS

PART 8. PLAINTIFF’S RELIGIOUS RIGHTS DECLARATIONS It is recognized, without reference to Constitutional or statutory provisions, that an inherent human right will be upheld by the courts against action by any person or department of government that would destroy such a right or result in discrimination in the manner in which enjoyment is to be permitted as between persons of different races, creeds, or color.

(4). Creed Defined as Confession or Articles of Faith, i.e. The Bible Black’s Law Dictionary defines creed as “confession or articles of faith, formal declaration of religious belief, any formula or confession of religious faith and a system of religious belief.” The King James Bible fits this definition for creed as it was the predominant system of religious belief at the time of the debate over the United States Constitution.

D. The Unrecognized And Denied Religious Connection To The Second Amendment The Second Amendment has a religious origin, the right of self-defense with arms of equal effectiveness of the standing army’s weapons. In Biblical times they were rocks, sticks, clubs, spears, and swords. Today it encompasses full-automatic and semi-automatic weapons. Prior to prohibition of alcohol possession and use of full-automatic weapons for lawful purposes was not prohibited. It was the governments interference and intervention in morality and through the unwritten law of unintended consequences, this country has taken the slippery slope of gun control. Such a slope has had disastrous results in every country on Earth throughout recorded history, especially in this century, of which the result was genocide committed by the country’s own government. The United States is not exempt from this disastrous “cause and effect” equation. Remember Waco and Ruby Ridge for recent history. Remember the Indian wars of the early 1800s, and Kent State and the Veterans’ Bonus March on Washington DC. (See Appendix X, p. 93) The Jews for the Preservation of Firearms Ownership have published two books worth reading.421 These two books points out that the path our country is presently taking with gun control has only disaster in its future. These facts must not be ignored. In addition to these references the United States Code already has provisions to reverse the trend of gun control in place that the United States legally recognizes genocide as unlawful. Yet where it is proven that genocide cannot occur in a nation where its citizens are lawfully armed but only occurs in nations where full gun control exists, gun confiscation soon followed does genocide eventually occur. For the United States to recognize genocide as a crime against humanity and yet actively pursue the very path that leads to genocide, incrementally increasing the number of gun control laws is a schizoidism of law, A.K.A. Conflict of Law.

421

Simkin, Jay, Aaron Zelman, and Alan M. Rice, Lethal Laws: “Gun Control” is the Key to Genocide: Documentary Proof: Enforcement of “Gun Control” Laws Clears the Way for Governments to Commit Genocide and Jay Simkin & Aaron Zelman, “Gun Control” Gateway to Tyranny: The Nazi Weapons Law, 18 March 1938: Original German Text and Translation, with an Analysis that Shows U.S. “Gun Control” Laws Have Nazi Roots. Jews for the Preservations of Firearms Ownership, Inc., Milwaukee, Wisconsin.

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(1). The Sword and The Bible as Articles of Faith, A System of Religious Belief Sword Genesis 3:24 Genesis 27:40 Genesis 31:26 Genesis 34:25 Genesis 34:26 Genesis 48:22 Exodus 5:3 Exodus 5:21 Exodus 15:9 Exodus 17:13 Exodus 18:4 Exodus 22:24 Exodus 32:27 Leviticus 26:6 Leviticus 26:7 Leviticus 26:8 Leviticus 26:25 Leviticus 26:33 Leviticus 26:36 Leviticus 26:37 Numbers 14:3 Numbers 14:43 Numbers 19:16 Numbers 20:18 Numbers 21:24 Numbers 22:23 Numbers 22:29 Numbers 22:31 Numbers 31:8 Deuteronomy 13:15 +(2) Deuteronomy 20:13 Deuteronomy 28:22 Deuteronomy 32:25 Deuteronomy 32:41 Deuteronomy 32:42 Deuteronomy 32:29 Joshua 5:13 Joshua 6:21 Joshua 8:24 +(2) Joshua 10:11 Joshua 10:28 Joshua 10:30 Joshua 10:32 Joshua 10:35 Joshua 10:37 Joshua 10:39 Joshua 11:10 Joshua 11:11 Joshua 11:12 Joshua 11:14 Joshua 13:22 Joshua 19:47

Joshua 24:12 Judges 1:8 Judges 1:25 Judges 4:15 Judges 4:16 Judges 7:14 Judges 7:18 Judges 7:20 Judges 7:22 Judges 8:10 Judges 8:20 Judges 9:54 Judges 18:27 Judges 20:2 Judges 20:15 Judges 20:17 Judges 20:25 Judges 20:35 Judges 20:37 Judges 20:46 Judges 20:48 Judges 21:10 1 Samuel 13:22 1 Samuel 14:20 1 Samuel 15:8 1 Samuel 15:33 1 Samuel 17:39 1 Samuel 17:45 1 Samuel 17:47 1 Samuel 17:50 1 Samuel 17:51 1 Samuel 18:4 1 Samuel 21:8 +(2) 1 Samuel 21:9 1 Samuel 21:10 1 Samuel 21:13 1 Samuel 22:19 +(2) 1 Samuel 25:13 +(3) 1 Samuel 31:4 +(2) 1 Samuel 31:5 2 Samuel 1:12 2 Samuel 1:22 2 Samuel 2:16 2 Samuel 2:26 2 Samuel 3:29 2 Samuel 11:25 2 Samuel 12:9 +(2) 2 Samuel 12:10 2 Samuel 15:14 2 Samuel 18:8 2 Samuel 20:8 2 Samuel 20:10 2 Samuel 21:16

2 Samuel 23:10 2 Samuel 24:9 1 Kings 1:51 1 Kings 2:8 1 Kings 2:32 1 Kings 3:24 +(2) 1 Kings 19:1 1 Kings 19:10 1 Kings 19:14 1 Kings 19:17 +(2) 2 Kings 6:22 2 Kings 8:12 2 Kings 10:25 2 Kings 11:15 2 Kings 11:20 2 Kings 19:7 2 Kings 19:37 1 Chronicles 5:18 1 Chronicles 10:4 +(2) 1 Chronicles 10:5 1 Chronicles 21:5 +(2) 1 Chronicles 21:12 +(2) 1 Chronicles 21:16 1 Chronicles 21:27 1 Chronicles 21:30 2 Chronicles 20:9 2 Chronicles 21:4 2 Chronicles 23:14 2 Chronicles 23:21 2 Chronicles 29:9 2 Chronicles 32:21 2 Chronicles 36:17 2 Chronicles 36:20 Ezra 9:7 Nehemiah 4:18 Esther 9:5 Job 1:15 Job 1:17 Job 5:15 Job 5:20 Job 15:22 Job 19:29 +(2) Job 20:25 Job 27:14 Job 33:18 Job 36:12 Job 39:22 Job 40:19 Job 41:26 Psalms 7:12 Psalms 17:13 Psalms 22:20 Psalms 37:14

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Psalms 37:15 Psalms 42:10 Psalms 44:3 Psalms 44:6 Psalms 45:3 Psalms 57:4 Psalms 63:10 Psalms 64:3 Psalms 76:3 Psalms 78:62 Psalms 78:64 Psalms 89:43 Psalms 144:10 Psalms 149:6 Proverbs 5:4 Proverbs 12:18 Proverbs 25:18 Song of Solomon 3:8 Isaiah 1:20 Isaiah 2:4 Isaiah 3:25 Isaiah 13:15 Isaiah 14:19 Isaiah 21:15 Isaiah 22:2 Isaiah 27:1 Isaiah 31:8 +(3) Isaiah 34:5 Isaiah 34:6 Isaiah 37:7 Isaiah 37:38 Isaiah 41:2 Isaiah 49:2 Isaiah 51:19 Isaiah 65:12 Isaiah 66:16 Jeremiah 2:30 Jeremiah 4:10 Jeremiah 5:12 Jeremiah 5:17 Jeremiah 6:25 Jeremiah 9:16 Jeremiah 11:22 Jeremiah 12:12 Jeremiah 14:12 Jeremiah 14:13 Jeremiah 14:15 +(2) Jeremiah 14:16 Jeremiah 14:18 Jeremiah 15:2 +(2) Jeremiah 15:3 Jeremiah 15:9 Jeremiah 16:4

PART 8. PLAINTIFF’S RELIGIOUS RIGHTS DECLARATIONS Jeremiah 18:21 +(2) Jeremiah 19:7 Jeremiah 20:4 +(2) Jeremiah 21:7 +2) Jeremiah 21:9 Jeremiah 24:10 Jeremiah 25:16 Jeremiah 25:27 Jeremiah 25:29 Jeremiah 25:31 Jeremiah 26:23 Jeremiah 27:8 Jeremiah 27:13 Jeremiah 29:17 Jeremiah 29:18 Jeremiah 31:2 Jeremiah 32:24 Jeremiah 32:36 Jeremiah 33:4 Jeremiah 34:4 Jeremiah 34:17 Jeremiah 38:2 Jeremiah 39:18 Jeremiah 41:2 Jeremiah 42:16 Jeremiah 42:17 Jeremiah 42:22 Jeremiah 43:11 +(2) Jeremiah 44:12 +(2) Jeremiah 44:13 Jeremiah 44:18 Jeremiah 44:27 Jeremiah 44:28 Jeremiah 46:10 Jeremiah 46:14 Jeremiah 46:16 Jeremiah 47:6 Jeremiah 48:2 Jeremiah 48:10 Jeremiah 49:37 Jeremiah 50:16 Jeremiah 50:35 Jeremiah 50:36 +(2) Jeremiah 50:37 +(2) Jeremiah 51:50 Lamentations 1:20 Lamentations 2:21 Lamentations 4:9 Lamentations 5:9 Exekiel 5:2 Exekiel 5:12 +(2) Exekiel 5:17 Exekiel 6:3 Exekiel 6:8 Exekiel 6:11 Exekiel 6:12

Exekiel &:15 +(2) Exekiel 11:8 +(2) Exekiel 11:10 Exekiel 12:14 Exekiel 12:16 Exekiel 14:17 +(2) Exekiel 14:21 Exekiel 17:21 Exekiel 21:3 Exekiel 21:4 Exekiel 21:5 Exekiel 21:9 +(2) Exekiel 21:11 Exekiel 21:12 Exekiel 21:13 Exekiel 21:14 +(3) Exekiel 21:15 Exekiel 21:19 Exekiel 21:20 Exekiel 21:28 +(2) Exekiel 23:10 Exekiel 23:25 Exekiel 24:21 Exekiel 25:13 Exekiel 26:6 Exekiel 26:8 Exekiel 26:11 Exekiel 28:23 Exekiel 29:8 Exekiel 30:4 Exekiel 30:5 Exekiel 30:6 Exekiel 30:17 Exekiel 30:21 Exekiel 30:22 Exekiel 30:24 Exekiel 30:25 Exekiel 31:17 Exekiel 31:18 Exekiel 32:10 Exekiel 32:11 Exekiel 32:20 +(2) Exekiel 32:21 Exekiel 32:22 Exekiel 32:23 Exekiel 32:24 Exekiel 32:25 Exekiel 32:26 Exekiel 32:28 Exekiel 32:29 Exekiel 32:30 Exekiel 32:31 Exekiel 32:32 Exekiel 33:2 Exekiel 33:3 Exekiel 33:4

Exekiel 33:6 +2) Exekiel 33:26 Exekiel 33:27 Exekiel 35:5 Exekiel 35:8 Exekiel 38:8 Exekiel 38:21 +(2) Exekiel 39:23 Daniel 11:33 Hosea 1:7 Hosea 2:18 Hosea 7:16 Hosea 11:6 Hosea 13:16 Joel 2:8 Amos 1:11 Amos 4:10 Amos 7:9 Amos 7:11 Amos 7:17 Amos 9:1 Amos 9:4 Amos 9:10 Micah 4:3 Micah 5:6 Micah 6:14 Nahum 2:13 Nahum 3:3 Nahum 3:15 Zephaniah 2:12 Haggai 2:22 Zechariah 9:13 Zechariah 11:17 Zechariah 13:7 Matthew 10:34 Matthew 26:51 Matthew 26:52 +(3) Mark 14:47 Luke 2:35 Luke 21:24 Luke 22:36 Luke 22:49 John 18:10 John 18:11 Acts 12:2 Acts 16:27 Romans 8:35 Romans 13:4 Ephesians 6:17 Hebrews 4:12 Hebrews 4:12 Hebrews 11:34 Hebrews 11:37 Revelation 1:16 Revelation 2:12 Revelation 2:16

Revelation 6:4 Revelation 6:8 Revelation 13:10 +(2) Revelation 13:14 Revelation 19:15 Revelation 19:21 Defend Judges 10:1 2 Kings 19:34 2 Kings 20:6 Psalms 20:1 Psalms 59:1 Psalms 82:3 Isaiah 31:5 Isaiah 37:35 Isaiah 38:6 Zechariah 9:15 Zechariah 12:8

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PART 8. PLAINTIFF’S RELIGIOUS RIGHTS DECLARATIONS

(2). Selected Bible Verses Application to Plaintiff’s Case (a). Warnings of Government Genocide -- 2nd Kings 19:32-34 “Therefore thus saith the LORD concerning the king of Assyria, He shall not come into this city, nor shoot an arrow there, nor come before it with shield, nor cast a bank against it. By the way that he came, by the same shall he return, and shall not come into this city, saith the LORD. For I will defend this city, to save it, for mine own sake, and for my servant David’s sake.” (b). Corruption -- Ecclesiastes 3:16-17 “And moreover I saw under the sun the place of judgment, that wickedness was there; and the place of righteousness, that iniquity was there. I said in mine heart, God shall judge the righteous and the wicked: for there is a time there for every purpose and for every work.” (c). Corruption/Bribery -- Isaiah 1:23-26 “Thy princes are rebellious, and companions of thieves: every one loveth gifts, and followeth after rewards: they judge not the fatherless, neither doth the cause of the widow come unto them.” Therefore saith the LORD, the LORD of hosts, the mighty One of Israel, Ah, I will ease me of mine adversaries, and avenge me of mine enemies: And I will turn my hand upon thee, and purely purge away thy dross, and take away all thy tin: And I will restore thy judges as at the first, and thy counselors as at the beginning: afterward thou shalt be called, The city of righteousness, the faithful city.” (d). The Corrupted Receives Justice – Job 20:24-25 “He shall flee from the iron weapon, and the bow of steel shall strike him through. It is drawn, and cometh out of the body; yea, the glittering sword cometh out of his gall: terrors are upon him.” (e). Defending Against Government Abuses -- Jeremiah 5:20-31 “Declare this in the house of Jacob, and publish it in Judah, saying Hear now this, O foolish people, and without understanding; which have eyes, and see not, which have ears, and hear not: Fear ye not me? saith the LORD: will ye not tremble at my presence, which have placed the sand for the bound of the sea by a perpetual decree, that it cannot pass it: and though the waves thereof toss themselves, yet can they not prevail; though they roar, yet can they not pass over it? But this people hath a revolting and a rebellious heart; they are revolted and gone. Neither say they in their heart, Let us now fear the LORD or God, that giveth rain, both the former and the latter, in his season: he reserveth unto us appointed weeks of the harvest. Your iniquities have turned away these things, and your sins have withholden good things from you. For among my people are found wicked men: they lay wait, as he that setteth snares; they set a trap, they catch men. As a cage is full of birds, so are their houses full of deceit: therefore they are become great, and waxen rich. They are waxen fat, they shine: yea, they overpass the deeds of the wicked: they judge not the cause, the cause of the fatherless, yet they prosper; and the right of the needy do they not judge. Shall I not visit for these things? Saith the LORD: shall not my soul be avenged on such a nation as this? A wonderful and horrible thing is committed in the land; the prophets prophesy falsely, and the priests bear rule by their means; and my people love to have it so: and what will ye do in the end thereof?” (f). Malicious Prosecution -- Psalms 59:1-5 “Deliver me from mine enemies, O my God: defend me from them that rise up against me. Deliver me from the workers of iniquity, and save me from bloody men. For, lo, they lie in wait for my soul: they mighty are gathered against me; not for my transgression, nor for my sin, O LORD. They run and prepare themselves without my fault: awake to help me, and behold. Thou therefore, O LORD God of hosts, the god of Israel, awake to visit all the heathen: be not merciful to any wicked transgressors. Selah.”

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PART 8. PLAINTIFF’S RELIGIOUS RIGHTS DECLARATIONS (g). Illegal Use of Weapons -- Numbers 35:18 “Or if he smite him with an hand weapon of wood, wherewith he may die, and he die, he is a murderer: the murderer shall surely be put to death.” (h). Militias -- Ecclesiastes 4:12-13 “And if one prevail against him, two shall withstand him; and a threefold cord is not quickly broken. Better is a poor and a wise child than an old and foolish king, who will no more be admonished.” (i). Defending the Church with Weapons -- 2 Chronicles 23:10 “And he set all the people, every man having his weapon in his hand, from the right side of the temple to the left side of the temple, along by the altar and the temple, by the king round about.” (j). Weapons in the Workplace -- Nehemiah 4:17 “They which builded on the wall, and they that bare burdens, with those that laded, every one with one of his hands wrought in the work, and with the other hand held a weapon.” (k). Lawlessness Without The Sword -- Deuteronomy 32:25. “The sword without, and terror within, shall destroy both the young man and the virgin, the suckling also, with the man of grey hairs.” (l). Weapons Making & Defense Against Persecution - Isaiah 54:16-17 “Behold, I have created the smith that bloweth the coals in the fire, and that bringeth forth an instrument for his work; and I have created the waster to destroy. No weapon that is formed against thee shall prosper; and every tongue that shall rise against thee in judgment thou shalt condemn. This is the heritage of the servants of the LORD, and their righteousness is of me, saith the LORD.” (m). The Slaughter Weapon - (Sword v. Full-Auto Firearms) -- Ezekiel 9:1-2 “He cried also in mine ears with a loud voice, saying, Cause them that have charge over the city to draw near, even every man with his destroying weapon in his hand. And behold, six men came from the way of the higher gate, which lieth toward the north, and every man a slaughter weapon in his hand; and one man among them was clothed with linen, with a writer’s inkhorn by his side: and they went in, and stood beside the brasen altar.” (n). Facing Your Enemy -- Deuteronomy 20:1 When thou goest out to battle against thine enemies, and seest horses, and chariots, and a people more than thou, be not afraid of them: for the Lord thy God is with thee, which brought thee up out of the land of Egypt. (o). War -- Exodus 15:3 “The LORD is a man of war : the LORD is his name.” (p). The Lord as a Warrior -- Joshua 5:13 “And it came to pass, when Joshua was by Jericho, that he lifted up his eyes and looked, and, behold, there stood a man over against him with his sword drawn in his hand: and Joshua went unto him, and said unto him, Art thou for us, or for our adversaries? And he said, Nay; but as captain of the host of the LORD am I now come. And Joshua fell on his face to the earth, and did worship and said unto him, What saith my lord unto his servant? And the captain of the LORD’s host said unto Joshua, Loose thy shoe from off thy foot; for the place whereon thou standest is holy. And Joshua did so. “

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PART 8. PLAINTIFF’S RELIGIOUS RIGHTS DECLARATIONS (q). Standing Watch -- Zechariah 9:8 “And I will encamp about mine house because of the army, because of him that passeth by, and because of him that returneth: and no oppressor shall pass through them any more: for now have I seen with mine eyes.”

(3). The Story of David and Goliath: Keeping Firearms Out of the Hands of Children (Teens) Defies Religious Teachings of the Bible (a). Weapons Training For Children - 1 Samuel 17:39-40 “And David girded his sword upon his armour, and he assayed to go; for he had not proved it. And David said unto Saul, I cannot go with these; for I have not proved them. And David put them off him. And he took his staff in his hand, and chose him five smooth stones out of the brook, and put them in a shepherd’s bag which he had, even in a scrip; and his sling* was in his hand: and he drew near to the Philistine.”; 1 Samuel 17:49 “And David put his hand in his bag, and took thence a stone, and slang it, and smote the Philistine in his forehead, that the stone sunk into his forehead; and he fell upon his face to the earth.”** *And his sling. In Adam Clarke’s Commentary: “The sling, both among the Greeks and Hebrews, has been a powerful offensive weapon. See what has been said on Judg. XX. 16. It is composed of two strings and a leathern strap; the strap is in the middle, and is the place where the stone or bullet lies. The string on the right end of the strap is firmly fastened to the hand; that on the left is held between the thumb and middle joint of the fore finger. It is then whirled two or three times round the head; and when discharge, the finger and thumb let go their hold of the left end string. The velocity and force of the sling are in proportion to the distance of the strap, where the bullet lies, from the shoulder joint. Hence the ancient Baleares, or inhabitants of Majorca and Minorca, are said to have had three slings of different lengths, the longest they used when the enemy was at the greatest distance; the middle one, on their nearer approach; and the shortest, when they came into the ordinary fighting distance in the field. The shortest is the most certain, though not the most powerful. The Balearians are said to have had one of their slings constantly bound about the head, to have used the second as a girdle, and to have carried the third always in their hand. In the use of the sling it requires much practice to hit the mark; but when once this dexterity is acquired, the sling is nearly as fatal as the musket or bow; see on ver. 49. David was evidently an expert marksman; and his sling gave him greatly the advantage over Goliath; an advantage of which the giant does not seem to have been aware. He could hit him within any speaking distance; if he missed once, he had as many chances as he had stones; and after all, being unencumbered with armour, young, and athletic, he could have saved his life by flight. Against him the Philistine could do but little, except in close fight; it is true he appears to have had a javelin or missile spear, (see on ver. 6, ) but David took care to prevent the use of all such weapons, by giving him the first blow.” **In Adam Clarke’s Commentary, . . . “The Baleares, in time of war, sling greater stones than any other people, and with such force, that they seem as if projected from a catapult. . . . Therefore, in assaults made on fortified towns, they grievously wound the besieged; and in battle they break in pieces, the shields, helmets, and every species of armour, by which the body is defended. And they are such exact marksmen that they scarcely ever miss that at which they aim.”

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PART 8. PLAINTIFF’S RELIGIOUS RIGHTS DECLARATIONS The historian accounts for their great accuracy and power in the use of the sling, from this circumstance: . . . “They attain to this perfection by frequent exercise from their childhood; for while they are young and under their mother’s care, they are obliged to learn to sling; for they fasten bread for a mark at the top of a pole; and till the child hit the bread he must remain fasting; and when he has hit it, the mother gives it to him to eat.” “I [Adam Clarke] have given these passages at large, because they contain several curious facts, and sufficiently account for the force and accuracy with which David slung his stone at Goliath. We find also in the . . ., not miss the mark, of the historian, the true notion of . . ., to sin, which I have contended for elsewhere. He who sins, though he aims thereby at his gratification and profit, misses the mark of present and eternal felicity.” (b). The Hypocrites – Isaiah 32:14-15, 18. “The sinners in Zion are afrain; fearfulness hath surprised the hypocrites. Who among us shall dwell with the devouring fire? Who among us shall dwell with everlasting burnings? He that walketh righteously, and speaketh uprightly; he that despiseth the gain of oppressions, that shaketh his hands from holding of bribes, that stoppeth his ears from hearing of blood, and shutteth his eyes from seeing evil; . . . Thine heart shall meditate terror. Where is the scribe? Where is the receiver? Where is he that counted the towers? Adam Clarke’s Commentary: [The sinners in Zion are afraid] Zion has been generally considered as a type of the Church of God. Now all the members of God’s Church should be holy, and given to good works; sinners in Zion therefore, are portentous beings! But, alas! Where are they not? The Targum on this verse is worthy of notice: “The sinners in Zion are broken down; fear hath seized the ungodly, who are suffering for their ways. They say, Who among us shall dwell in Zion, where the splendour of the Divine Majesty is like a consuming fire? Who of us shall dwell in Jerusalem, where the ungodly are judged and delivered into hell for an eternal burning?” [Where is the scribe?] The person appointed by the king of Assyria to estimate their number and property in reference to their being heavily taxed. [Where is the receiver?] Or he who was to have collected this tribute. [Where is he that counted the towers?] That is, the commander of the enemy’s forces, who surveyed the fortifications of the city, and took an account of the height, strength, and situation of the walls and towers that he might know where to make the assault with the greatest advantage; . . . .”

(4). The Takings Clause of the Fifth Amendment includes Non-Physical Takings The strongest evidence that the Takings Clause originally was intended to cover regulatory takings are the Framers’ strong leanings in favor of protection for property rights, James Madison’s post-ratification statements, and the just compensation philosophy contained in the writings of Blackstone, Locke, and Grotius. Although Madison’s statements do not carry the same weight as preratification commentary, they should carry some weight because of Madison’s role in drafting the Takings Clause and the fact that he published the Property essay so shortly after ratification. Madison’s view supports the jurisprudential

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PART 8. PLAINTIFF’S RELIGIOUS RIGHTS DECLARATIONS position taken by Grotius and Blackstone and clearly extends the Takings Clause to non-physical takings.422

422

Gold, Andrew S., REGULATORY TAKINGS AND ORIGINAL INTENT: 49 Am. U.l. Rev. 181, 241 (1999)

THE DIRECT,

PHYSICAL TAKINGS THESIS “GOES TOO FAR,”

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PART 9. PLAINTIFF’S MARITIME DECLARATIONS

PART 9. PLAINTIFF’S MARITIME DECLARATIONS Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

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PART 9. PLAINTIFF’S MARITIME DECLARATIONS

A. Heller impacts the Vienna Convention on the Law of Treaties 1969 and the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations 1986 Citing the VIENNA CONVENTION ON THE LAW OF TREATIES 1969 and the VIENNA CONVENTION ON THE LAW TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS 1986 the U.S. Supreme Court’s Heller opinion on the Second Amendment includes and protects the right of armed self-defense as part of the “right to life” provision in international human rights treaties and presents a “fundamental change of circumstances” (Article 62 of both Vienna Conventions) for the “emergence of a new peremptory norm of general international law” (“jus cogens”), (Article 64 of both Vienna Conventions) for the “right to life” provisions in international human rights treaties through the treaty clause in Article II, Section 2 of the CONSTITUTION OF THE UNITED STATES.

OF

B. Heller impacts the American Declaration of the Rights and Duties of Man The Heller opinion also impacts the AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN under Articles I, II, IV, V, VI, VII, VIII, IX, gun culture under Articles XIII, XV, XVII, XVIII, XXI, XXII, XXIII, XXIV, XXV, XXVI, and duties to society under Article XXIX to which the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS and the INTER-AMERICAN COURT ON HUMAN RIGHTS have jurisdiction.

C. Second Amendment Rights of U.S. Seamen to “Open Carry Handgun” in Intrastate, Interstate, and Maritime Travel under the First, Fourth, Fifth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments. (1) American civilian seamen have their Second Amendment right to openly keep and bear arms in intrastate, interstate, and maritime travel supported by the First, Fourth, Fifth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments upto and including standing at the gangway of U.S. flag vessels in the United States. Second Amendment rights of United States seamen include the right of armed personal security and armed selfdefense aboard United States flag vessels under Maritime Law subject to discretion of the master, but especially so when transitting known pirate waters. (2). The Second Amendment right to “openly” keep and bear arms extends to able seamen in intrastate and interstate travel to and from U.S. flag vessels in U.S. ports is the constitutional norm under the First, Fourth, Fifth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments even though it may be long suppressed under United States law. (3). The Second Amendment right to “openly” keep and bear arms extends to able seamen aboard U.S. flag vessels transitting known pirate waters subject to Maritime Law even though it may be suppressed by the International Maritime Organization in violation of the “right to life” provisions of human rights treaties.

D. Second Amendment Rights of Seamen under 33 U.S.C. § 383 Resistance of Pirates by Merchant Vessels (Suppression of Piracy) The exercise of Second Amendment rights in intrastate, interstate, and maritime travel to and from a U.S. flagged vessel in the United States are required under 33 U.S.C. § 383. Resistance of Pirates by Merchant Vessels (Suppression of Piracy) and under the U.S. Code, Title 10–Armed Forces; Subtitle A—General Military Law; Part I—Oganization and General Military Powers; Chapter 17—Arming of American Vessels, 10 U.S. Code § 351. During War or Threat to National Security

236 DECLARATIONS PART 9. PLAINTIFF’S MARITIME

PART 9. PLAINTIFF’S MARITIME DECLARATIONS

(1). 33 USC § 383. Resistance of pirates by merchant vessels (Suppression of Piracy) The commander and crew of any merchant vessel of the United States, owned wholly, or in part, by a citizen thereof, may oppose and defend against any aggression, search, restraint, depredation, or seizure, which shall be attempted upon such vessel, or upon any other vessel so owned, by the commander or crew of any armed vessel whatsoever, not being a public armed vessel of some nation in amity with the United States, and may subdue and capture the same; and may also retake any vessel so owned which may have been captured by the commander or crew of any such armed vessel, and send the same into any port of the United States.

237 PART 9. PLAINTIFF ’S MARITIME DECLARATIONS

PART 9. PLAINTIFF’S MARITIME DECLARATIONS

(2). 10 U.S. Code § 351. During War or Threat to National Security (a) The President, through any agency of the Department of Defense designated by him, may arm, have armed, or allow to be armed, any watercraft or aircraft that is capable of being used as a means of transportation on, over, or under water, and is documented, registered, or licensed under the laws of the United States. (b) This section applies during a war and at any other time when the President determines that the security of the United States is threatened by the application, or the imminent danger of application, of physical force by any foreign government or agency against the United States, its citizens, the property of its citizens, or their commercial interests. (c) Section 16 of the Act of March 4, 1909 (22 U.S.C. 463) does not apply to vessels armed under this section.

238 DECLARATIONS PART 9. PLAINTIFF’S MARITIME

PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

239 PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

A. Heller and Incorporation of the Second Amendment On June 27, 2008 Dale Carpenter posted the following information concerning the Heller opinion’s hint of incorporating the Second Amendment through the Privileges and Immunites clause of the Fourteenth Amendment on Eugene Volokh’s blog, THE VOLOKH CONSPIRARY:423 Along with many others, I noted yesterday that the Supreme Court expressly left open the question whether the individual right to keep and bear arms in the Second Amendment should be incorporated into the Fourteenth Amendment to apply against the states. Here is the relevant passage reserving the issue: With respect to [the nineteenth-century case of U.S. v.] Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois (1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government. Op. at 48 n. 23. The footnote is a whipsaw;424 it reads like one person originally wrote the first line and, seeing it, another came along and insisted on adding the second. The first sentence suggests that just as Cruikshank was wrong (and under-theorized) on First Amendment incorporation it was also wrong (and under-theorized) on Second Amendment incorporation. But the second sentence notes two post-Cruikshank opinions confirming that the Second Amendment limits only federal power. There’s been some speculation that Justice Scalia may not have had five votes for a more unequivocal pro-incorporation statement. The generally more cautious, incrementalist, and minimalist tendencies of Chief Justice Roberts may have prevailed here, as did minimalism on other important questions the Court avoided (noted in a post yesterday by Orin425).

423

http://www.volokh.com/posts/1214582490.shtml

424

Definition of whipsaw:

[noun]: lumberman’s saw with handles at both ends; intended for use by two people. [verb] to victimize, especially in gambling or negotiations, cheat, rip off, chisel - deprive somebody of something by deceit. 425

http://volokh.com/archives/archive_2008_06_22-2008_06_28.shtml#1214512710 [Orin Kerr, June 26, 2008 post on The Volokh Conspiracy]: The Minimalist Court: The major theme of the October 2007 Term, it seems to me, is that we have a minimalist Court with no surprises. There were no major revolutions this Term. Even the big cases were narrow and interstitial. The Court mostly took baby steps. It may not seem that way this week, with big cases like Boumediene, Heller, and Kennedy v. Louisiana. But step back a bit. Even these big cases were actually really narrow. Boumediene went where the Court very strongly hinted it was going in Rasul v. Bush back in 2004: The Court’s reasoning was limited to the few hundred detainees at Guantanamo Bay, and did not order anyone’s release. Kennedy v. Louisiana filled in a detail hinted at in Coker v. Georgia. The Court’s opinion only deals with child rape capital cases, of which Kennedy’s own case was (as far as I know) the only conviction. And Heller establishes an individual right without answering the degree of scrutiny or incorporation, and while indicating that traditional gun control laws are all constitutional. This isn’t to say that there were no important cases this Term. But on a historical scale, the 2007 Term is revealing a minimalist Court: It intervenes rarely, doesn’t say much when it speaks, and leaves most battles for another day.

240 PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT Nevertheless, on re-reading the decision, I noticed a passage that seems relevant to future litigation on the incorporation question. In the middle of his review of post-Civil War enactments, Justice Scalia highlights the importance to the newly freed slaves of the right to keep and bear arms in the home. He also reviews how federal authorities took steps to prevent vengeful and racist southern legislators from infringing this right. Mike O’Shea at Concurring Opinions426 also points to this discussion as significant on the incorporation issue. It is, as he notes, exactly the kind of evidence that scholars have relied upon to support incorporation. Especially significant are these sentences from Heller discussing congressional understanding of the Civil Rights Act of 1871 and the Fourteenth Amendment: Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth Amendment. For example, Representative Butler said of the Act: “Section eight is intended to enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and bear arms,’ and provides that whoever shall take away, by force or violence, or by threats and intimidation, the arms and weapons which any person may have for his defense, shall be deemed guilty of larceny of the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7–8 (1871). With respect to the proposed Amendment, Senator Pomeroy described as one of the three “indispensable” “safeguards of liberty . . . under the Constitution” a man’s “right to bear arms for the defense of himself and family and his homestead.” Cong. Globe, 39th Cong., 1st Sess., 1182 (1866). Representative Nye thought the Fourteenth Amendment unnecessary because “[a]s citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for self-defense.” Id., at 1073 (1866). It was plainly the understanding in the post-Civil War Congress that the Second Amendment protected an individual right to use arms for self-defense. Op. at 43-44. Interestingly, the quote from Rep. Nye supports incorporation through the Citizenship Clause, rather than through due process, though Nye himself believed blacks already enjoyed the right in common with all citizens. The right to keep and bear arms for self-defense could be considered an

426

http://www.concurringopinions.com/archives/2008/06/meet_your_secon_2.html [Mike O’Shea, Concurring Opinions (blog), June 26, 2008]: 9. Hints About Incorporation: Another punt to the lower courts, though the Supreme Court included somewhat more proincorporation discussion than I expected. In its historical analysis of evidence of the public understanding of the Second Amendment, the Court discussed at length the legislative treatment of the right to arms in the aftermath of the Civil War. See Maj. Op. at 41-44 (discussing, inter alia, the history of black disarmament in the Reconstruction South, and the references to the right to arms in the Freedmen’s Bureau Act of 1866). This is precisely the sort of historical evidence relied upon by scholars and researchers who argue that the Fourteenth Amendment was intended to incorporate the right to arms against the states. The Court’s one express mention of the incorporation issue comes in an exquisitely ambiguous footnote: With respect to [the nineteenth-century case of U.S. v.] Cruikshank’s continuing validity on incorporation, a question not presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois (1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government. Id. at 48 n.23 (emphasis added) (citations omitted). So on the one hand the Court says that the Fourteenth Amendment inquiry is “required” by its later (20th century) incorporation decisions, yet it also noted that post-Cruikshank, 19th-century cases reaffirmed that the Second was not incorporated -- but those cases did not perform the “required” inquiry either! I read this as a very comprehensive punt to the lower courts; they can either take up anew the question of Second Amendment incorporation in coming cases -- “the Court instructed us that this inquiry is ‘required’!” -- or they can defer to Presser et al. and refuse to apply the “selective incorporation” framework to the Second Amendment until the Supremes officially overrule those cases -- “the Court noted that later decisions ‘reaffirmed’ Cruikshank!” A district court judge or circuit court panel could choose either path, and still plausibly claim to be following Heller.

241 PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT implicit and indispensable aspect of “citizenship” protected by the first sentence of the Amendment. Others might argue that the right is a privilege or immunity protected against state intrusion. Add to all of this the fact that the Court repeatedly compares the incorporated First Amendment to the unincorporated Second Amendment as a guarantee of important individual rights. A court that believes the Second Amendment is comparable to the hallowed First Amendment is unlikely to leave protection of the right to the mercy of legislative majorities in states and cities. Whichever specific route the lower courts now choose — the Citizenship Clause, the Privileges and Immunities Clause, the Due Process Clause — it seems the Supreme Court is providing a road map and is strongly suggesting that the ultimate destination is incorporation.

B. Human rights interpretation of Michael Anthony Lawrence, Second Amendment Incorporation through the Fourteenth Amendment Privileges and Immunities and Due Proceess Clauses, Missouri Law Review, Vol. 72, No. 1 (Winter 2007) Presuming that “natural rights,” as used in the Heller opinion by Justice Scalia and as used in Lawrence’s article above,427 can also mean “human rights” as being one in the same then it is reasonable and logical to claim that the Second Amendment is also a human right under the “right to life” provision of international human rights treaties. The following excerpts from Lawrence’s article contain the the phrase “natural rights. Exhibit the excerpts here I ask that the phrase “natural rights” be read as to mean “human rights” to better understand the connection to the “right to life” provision in international human rights treaties.

(1). Excerpts From Heller with the Phrase “Natural Rights” Page 3: The enactment and ratification of the privileges or immunities clause, together with the rest of the Fourteenth Amendment, was a monumental achievement in American history. With this radical act, We the People moved to counteract American government’s time-proven discriminatory modus operandi by strictly prohibiting any exercise of governmental power that would “abridge the privileges or immunities,” meant to be broadly read as “individual natural rights,” including the Bill of Rights and other enumerated and unenumerated rights of all American citizens.428 Page 8, Footnote 23: The landscape depicted is one of a limited government.[Footnote 23] [Footnote 23]: See, e.g., Leonard W. Levy, ORIGINS OF THE BILL OF RIGHTS 3-4 (1999) (“Over a period of a century and a half [before the founding], America became accustomed to the idea that government existed by consent of the governed, . . . that the compact reserved their natural rights, and that it constituted a fundamental law to which the government was subordinate.”). Barnett qualifies traditional social contract (i.e., “consent of the governed”) theory this way:

427

http://law.missouri.edu/lawreview/docs/72-1/Lawrence.pdf

428

The Fourteenth Amendment Framers’ desire for freedom and independence was at the core of the Constitution’s founders’ desire to abolish the culture of pervasive dependence that existed from the earliest colonial days up until the Revolution. See generally Gordon S. Wood, THE RADICALISM OF THE AMERICAN REVOLUTION (1992).

242 PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT [W]e are asked to accept the proposition that merely by virtue of living in the town in which we were born, or by failing to leave the country, we have “consented” to obey nearly any command that is enacted by the reigning legal system. And the consent of a majority is supposed to bind not only themselves, but dissenters and future generations as well. BARNETT, [RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004)], at 24. Additionally, he adds that “in the absence of actual consent [i.e., acquiescence is not enough], to be legitimate, an existing legal system must provide assurances that the laws it imposes are both necessary [to protect the rights of others] and proper [insofar as they do not violate the preexisting rights of the persons on whom they are imposed].” Id. “If a lawmaking process provides these assurances, then it is ‘legitimate’ and the commands it issues are entitled to a benefit of the doubt. They are binding in conscience unless shown to be unjust.” Id. at 45. Page 50, Footnote 213: That the reasonable regulation of natural rights is essential to their efficacious exercise and enforcement in civil society does not entail that these rights are surrendered completely to the government. . . . The [unwritten] “police power” to enforce or regulate a retained right is not the power to confiscate, prohibit, infringe, abridge its exercise. Pages 58-59: English Conceptions. The right to have arms for self-defense and selfpreservation was one of thirteen “true, ancient, and indubitable” liberties protected in the 1689 English Bill of Rights,429260 with origins extending back to Magna Carta and even earlier.430261 As William Blackstone explained in Commentaries on the Laws of England, the King’s English subjects possessed a constitutional right to bear arms, opining that the “three great and primary [constitutional] rights, of personal security, personal liberty, and private property,” 431 would be “in vain” if not for the existence of a set of “auxiliary subordinate rights” to protect them: The fifth and last auxiliary right . . . is that of having arms for their defence suitable to their condition and degree, and such as are allowed by law. . . .432 [I]t

429

Joyce Lee Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 115 (1994). See also P. Halbrook, THAT E VERY MAN BE ARMED: THE E VOLUTION OF A CONSTITUTIONAL RIGHT at 39 (1984), (citing S. Thorne et al., THE GREAT CHARTER 137-41 (1965)); David T. Hardy, ORIGINS AND DEVELOPMENT OF THE SECOND AMENDMENT 24-40 (1986) (describing the events of “The Crucial Half-Century: 1639-1689,” citing various ordinances and documents). 430

Stephen P. Halbrook, THAT E VERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT at 37-39 (1984). “The laws of the ancient English kings [such as the laws of Alfred and the Laws of Cnut] proscribed violent acts with arms . . . but recognized as rightful the mere possession and carrying of arms.” Id. at 37. Later, in the twelfth century, because “of the preference that an armed people, rather than a standing army, be entrusted with the power of defense, the keeping and bearing of arms came to be considered as not simply a right but a duty.” Id. at 38. Leonard Levy explains: In the twelfth century Henry II had obligated all freemen to possess certain arms, and in the next century Henry III required every subject aged fifteen to fifty, including landless farmers, to own a weapon other than a knife. . . . [I]n the absence of a regular army and a police force, . . . every man had to do his duty at watch and ward . . . . Every subject also had an obligation to protect the king’s peace and assist in the suppression of riots. In the event of a crime, every man had to join in the “hue and cry” – summoning aid and joining the pursuit of anyone who resisted arrest or escaped from custody. Levy, ORIGINS OF THE BILL OF RIGHTS 136 (1999). See also David T. Hardy, ORIGINS AND DEVELOPMENT OF THE SECOND AMENDMENT at 12-14 (1986); Joyce Lee Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT at x. (1994), 431

William Blackstone, 1 COMMENTARIES *141.

432

Blackstone explained,

243 PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT is indeed a public allowance under due restrictions, of the natural right of resistance and selfpreservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression. . . . [T]o vindicate these rights, . . . the subjects of England are entitled . . . to the right of having and using arms for selfpreservation and defence. 433 Page 63-64: Another article cited the English Bill of Rights, natural law, and William Blackstone as proof of the individual’s right to have firearms. “It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.”434 After the British reinforced their military presence in Boston in 1768, A Journal of the Times “urged Americans to retain their arms and reminded them that the English Bill of Rights had recognized the ‘privilege of possessing arms,’ . . . declar[ing], ‘It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.’”

(2). Excerpts with Phrases the Include the Word “Human” “human affairs” page 4: It is helpful to recall Publius’s conception of government’s subordinate role in the constitutional design, as explained in Federalist 51 in the New York Packet on February 8, 1788, urging ratification of the new Constitution: In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions. This policy of [correcting], by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim to divide and arrange the Referring to the words “suitable to their condition and such as are allowed by law,” St. George Tucker distinguished the Second Amendment of the U.S. Constitution, whereby the right of the people to keep arms exists “without any qualification as to their condition or degree, as in the case of the British government.” Stephen P. Halbrook, THAT E VERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT at 45, n.56. (1984). 433

William Blackstone, 1 COMMENTARIES at *143-44. See also Michael Dalton, THE COUNTRY JUSTICE: CONTAINING THE PRACTICE OF THE JUSTICES OF THE PEACE OUT OF THEIR SESSIONS 308, 356 (1697) (quoting virtually the same language as Blackstone). See also Joyce Lee Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT at 142 (1994) (noting that Blackstone’s impact on revolutionary-era Americans was profound); LEVY, supra note 261, at 138. Levy notes that another influential English book with Americans in 1774 was Political Disquisitions by James Burgh, who wrote most elaborately about the right to be armed. . . . focus[ing] on the history and values of an armed public in preference to a standing army. . . . “A militia-man,” he observed, “is a free citizen; a soldier, a howslave for life. . . .” [and] arms, he wrote, “are the only true badges of liberty.” Id 434

Joyce Lee Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-A MERICAN RIGHT at 145 (1994) (quoting N.Y. J. Supplement, Apr. 13, 1769, reprinted in BOSTON UNDER MILITARY RULE, 1768-69, AS REVEALED IN A JOURNAL OF THE TIMES 79 (Oliver Morton Dickerson ed., 1936)).

244 PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights.435 The damage done by the Supreme Court to this expressed ideal in two cases less than a decade after ratification of the Fourteenth Amendment —which had, after all, been designed and ratified with the purpose of restoring the primacy of “the private interest of every individual” over an outof-control (in this case, State) government — cannot be overstated. The Court effectively nullified the privileges or immunities clause in the Slaughter-House Cases,436 and in United States v. Cruikshank,437 the Court held that the Bill of Rights, including the Second Amendment right to keep and bear arms, did not apply to the States. In these two rulings, the Court betrayed the will of the people as it had been expressed and ratified in section one. Moreover, by failing to correct its mistakes thereafter, the Court betrays the will of the people still, some 130 years later. “human rights” page 28:

B.THE SUPREME COURT’S ABDICATION: THE SLAUGHTER-HOUSE CASES AND CRUIKSHANK Just four years after the Fourteenth Amendment’s ratification, the Supreme Court nullified the privileges or immunities clause, holding in the Slaughter-House Cases that the clause protects only a certain very narrow list of privileges or immunities attending to National — as opposed to State — citizenship. 438 According to the Court, any protection of the broad fundamental rights of State citizenship would be left up to the States themselves to provide.439 This interpretation of section one — almost-laughable, were it not so damaging — by effectively placing the fox in charge of the henhouse, “flew in the face of [the] legislative history. . . . [and] turned the plan for the Fourteenth Amendment on its head.”440 No matter that there was (or is) little evidence that the Republicans or Democrats in the proposing Congress or the conventions in the ratifying States had considered the distinction between State and National citizenship to be especially 435

THE FEDERALIST No. 51 (James Madison) (emphasis added)

436

83 U.S. 36, 78-79 (1872).

437

92 U.S. 542 (1875).

438

See Slaughter-House Cases, 83 U.S. (16 Wall.) 36, at 74 (1872).

439

Id. at 75.

If, then, there is a difference between the privileges and immunities belonging to a citizen of the United States as such, and those belonging to the citizen of the State as such, the latter must rest for their security and protection where they have heretofore rested; for they are not embraced by this paragraph of the amendment. Id. 440

Michael Kent Curtis, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS at 175-76 (1986). The Slaughter-House Court’s “studied distinction between the privileges deriving from state and national citizenship[] should have been seriously doubted by anyone who read the Congressional debates of the 1860s.” Eric Foner, RECONSTRUCTION at 530 (1988). The obvious inadequacy of Miller’s opinion – on virtually any reading of the Fourteenth Amendment – powerfully reminds us that interpretations offered in 1873 can be highly unreliable evidence of what was in fact agreed to in 1866-68. . . . By 1873 some of the justices were ignoring some of the core commitments of the Fourteenth Amendment, ratified only five years earlier. AMAR, supra note 35, at 213 n.*. Slaughter-House “strangl[ed] the privileges-orimmunities clause in its crib.” Id. at 213. Additionally, the Slaughter-House Cases “is probably the worst holding, in its effect on human rights, ever uttered by the Supreme Court.” Charles L. Black, Jr., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED & UNNAMED 55 (1997)

245 PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT relevant; instead, in a neat bit of textual sophistry the Court gave meaning to the distinction, 441 thereby turning “what was meant [to be] bread into a stone,”442 and causing grievous harm to Americans’ long-term prospects for freedom. 443 “human nature” page 39: [W]hy the Court has failed in the intervening 130 years to correct the mistakes it made in Slaughter-House and Cruikshank — is a real head-scratcher. In a way, the Court has “covered” itself by subsequently developing a plausible, though tortured, substantive due-process and equal protection jurisprudence, 444 which for practical purposes has provided some of the same protections as if the Fourteenth Amendment had been properly recognized from the beginning.445 Moreover, the longer a particular holding is on the books, the more firmly entrenched it becomes in the judiciary’s lexicon, and accordingly, under stare decisis, the more difficult it is to overcome. 446 Another possible explanation, more basic still and no doubt better left to the work of behavioral scientists, may be found in human nature itself. One of the first things one will notice upon observing behavior on any grade-school playground is the tendency of some children to want to make the rules and control the behavior of others. As personality traits demonstrably carry through into adulthood,447 one may surmise that these particular 441

The Court explained,

It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States, in the very sentence which precedes it. Slaughter-House Cases, 83 U.S. (16 Wall.) at 74. 442

Id. at 129 (Swayne, J., dissenting).

443

Slaughter-House did not explicitly address the particular question of incorporation of the Bill of Rights to the States through the Fourteenth Amendment, leaving resolution of that issue (ultimately decided in the negative) to United States v. Cruikshank, three years later. For a discussion involving United States v. Cruikshank see [Lawrence] notes 146-50 and accompanying text. 444

The suggestion that the proper case simply has never come before the Court is implausible; any number of cases decided on due process and equal protection grounds could easily have been decided on privileges or immunities grounds. See [Lawrence] notes 205-09. In any event, the issue of Second Amendment incorporation now presents a means for the Court to address the issue. 445

See generally AMAR, supra note 35.

446

There is always a place within the doctrine of stare decisis not to abide by earlier opinions that are themselves fundamentally flawed. See also 1 TRIBE, supra note 5, at 1320-31. For example, It would have been perfectly proper in 1953 to argue that because the Supreme Court had not recognized the right to integrated schools, such a right did not exist, at least as a legally enforceable matter [after Plessy, b]ut such an argument would hardly have stated an eternal truth about the Constitution, or even (as the following year proved) about the Supreme Court’s view of the question. Glenn Harland Reynolds, A CRITICAL GUIDE TO THE SECOND AMENDMENT, 62 Tenn. L. Rev. 461, 464 (1995) (footnotes omitted). That said, interpreting the privileges or immunities clause anew according to its originally-intended expansive terms would force a massive change to the status quo in the common law regarding the government’s role vis-à-vis the individual. See infra notes 199-202 and accompanying text. See also, e.g., William Van Alstyne, THE SECOND AMENDMENT AND THE PERSONAL RIGHT TO ARMS, 43 Duke L.J. 1236, 1254-55 (1994). 447

See, e.g., Avshalom Caspi & Brent W. Roberts, PERSONALITY DEVELOPMENT ACROSS THE LIFE COURSE: THE ARGUMENT CHANGE AND CONTINUITY, 12 Psychol. Inquiry 49 (2001) (demonstrating some continuity of personality from childhood to adulthood).

FOR

246 PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT desire-for-control characteristics may manifest themselves among politicians and jurists whose legislation and jurisprudence may seek excessively to control others’ lives.448 Unsubstantiated pop psychology aside, the views of the Supreme Court are not ultimately dispositive. 449 While the Court decides the law450 and thus exerts profound practical influence, in the larger sense the final word is found only in the Constitution.451 In this regard, Supreme Court holdings contradicting the dictates of the Constitution are, paradoxically, themselves unconstitutional. “human art and sophistry” page 63: About the same time as Charles II passed legislation to disarm Englishmen in 1671, an act which led ultimately to the Glorious Revolution of 1688 and the 1689 English Bill of Rights, Bacon’s rebellion in Virginia responded to royal governor Sir William Berkeley’s similar legislation to disarm indigenous Americans. Bacon’s rebellion prompted Berkeley’s memorable comment, “‘[h]ow miserable that man who governs a people when six parts of seaven at least are Poore Endebted Discontented and Armed.’”452 Halbrook reports, While Berkeley eventually crushed Bacon’s Rebellion, he passed only feeble legislation restricting the right to bear arms. . . . [S]o fundamental was the right to have arms that to assemble with arms in numbers of five persons or more was the only offense decreed. .... . . . [S]o fundamental were firearms to the lives and livelihoods of the individual subjects that the royal administration conceded the right of every man to possess arms as an individual.453

448

Naturally some number of grade-school playground-controllers grow into legislators, government officials, and jurists — including Supreme Court justices — who continue to scratch their control-itch by enacting laws, developing policies, and handing down decisions that direct the behavior of others. 449

Curtis comments that

unless one surrenders entirely to positivism, the Constitution is not simply what the judges say it is. The law in a particular case is what the judges say it is. The Constitution is a different matter. The document has a text, history, and tradition of its own. There is nothing anomalous about the argument that the judges were misreading it. The argument that the Supreme Court had misread and perverted the Constitution was made by leading Republicans [before the Civil War]. Probably the most notable case was Abraham Lincoln’s response to the Dred Scott decision. Lincoln thought the decision was wrong and refused to accept it as a rule of political action. “We propose,” he said, “so resisting it as to have it reversed if we can, and a new judicial rule established in its place.” Michael Kent Curtis, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS at 215 (1986). 450

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

451

Id. at 178 (“[T]he constitution is to be considered, in court, as a paramount law.”). See also [Lawrence] note 14 and accompanying text.

452

Stephen P. Halbrook, THAT E VERY MAN BE ARMED: THE E VOLUTION OF A CONSTITUTIONAL RIGHT at 55-56 (1984) (quoting H. Miller, THE CASE FOR LIBERTY 76 (1965)).

453

Id. at 57. Bissell wrote,

Private arms ownership for personal necessities was indeed an absolute right in colonial times and in the early days of the republic. . . . In that society, people hunted for food. They protected themselves from the dangers of the frontier, including Indians and wild animals. They traveled for long periods of time on lonely roads and shared accommodations with strangers in taverns and boarding houses. Of course, there was limited police presence in the dark streets of their towns and even less on the roadways.

247 PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT Nearly one hundred years later, several newspapers, responding to English charges of sedition for the colonials’ call to arms, wrote: “[f]or it is certainly beyond human art and sophistry to prove the British subjects, to whom the priviledge of possessing arms is expressly recognized by the Bill of Rights, and, who live in a province where the law requires them to be equip’d with arms, etc. are guilty of an illegal act, in calling upon one another to be provided with them, as the law directs.”454 “tyranny” (in the second footnote) page 48: It is not as if the principles underlying the framers’ intent for the privileges or immunities clause are unfamiliar to the Court. In fact it would be impossible for the Court to be so unaware, for the clause itself is nothing more than the clearest, most direct and unadorned manifestation of the very core idea that radiates from the Declaration, the Constitution, and the concept of America itself: namely, Freedom. 455 Freedom positively permeates the founding documents, and the Court could no more eliminate the idea of Freedom envisioned by the clause by closing the privileges or immunities window for 130 years than by scrapping America itself.456

(3). “Oath” for federal judges, pages 42-44 (in last footnote) 1. Justice Black’s Adamson v. California dissent 457

Justice Hugo Black fought this battle for decades on the Court. Arguing in favor of the “total incorporation” of the Bill of Rights, Justice Black said, My study of the historical events that culminated in the Fourteenth Amendment, and the expressions of those who sponsored and favored, as well as those who opposed its submission and passage, persuades me that one of the chief objects that the provisions of the Amendment’s first section, separately, and as a whole, were intended to accomplish was to make the Bill of

John Bissell, BENCH OPINION ON THE SECOND AMENDMENT, 10 Seton Hall Const. L.J. at 811 (2000). 454

Joyce Lee Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT at 144-45 (1994) (quoting BOSTON EVENING POST, Feb. 6, 1769, reprinted in BOSTON UNDER MILITARY RULE, 1768-1769, AS REVEALED IN A JOURNAL OF THE TIMES 61 (Oliver Morton Dickerson ed., 1936)). 455

See, e.g., Eric Foner, THE STORY OF AMERICAN FREEDOM at xiii (1998).

No idea is more fundamental to Americans’ sense of themselves as individuals and as a nation than freedom. . . . or “liberty,” with which it is almost always used interchangeably . . . . The Declaration of Independence lists liberty among mankind’s inalienable rights; the Constitution announces as its purpose to secure liberty’s blessings. . . . If asked to explain or justify their actions, public or private, Americans are likely to respond, “It’s a free country.” “Every man in the street, white, black, red or yellow,” wrote the educator and statesman Ralph Bunche in 1940, “knows that this is ‘the land of the free’ . . . ‘the cradle of liberty.’” Id. (fourth omission in original). 456

The very foundation of the Founders’ and Framers’ political theory was to “free the individual from the oppressive misuse of power, [and] from the tyranny of the state.” Bernard Bailyn, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION at vi (1967). 457

[Justice Black] was a textualist, and he took his text from the Constitution, particularly the Bill of Rights. He often read the provisions with a literalism that was disarming or infuriating, depending on one’s views. For Black, precedent occupied a secondary position. His approach to application of the Bill of Rights to the states is an example. The fact that case after case had rejected total application of the Bill of Rights to the states did not deter Justice Black. Michael Kent Curtis, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS at 201 (1986).

248 PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT Rights applicable to the states. With full knowledge of the import of the Barron decision, the framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the constitutional rule that case had announced. This historical purpose has never received full consideration or exposition in any opinion of this Court interpreting the Amendment.458 Justice Black points out that in construing section one on the issue of incorporation, over time the Court had unexplainedly departed from its almost uniform “salutary practice” of “plac[ing] [itself] as nearly as possible in the condition of the men who framed” the Constitution;459 and observed that none of the briefs or opinions in any of the cases, except one, used to support the Court’s refusal to apply the Bill of Rights to the States, consider at all the Fourteenth Amendment’s legislative or contemporaneous history. 460 In Maxwell v. Dow, 461 which, according to Justice Black, was the one case that did that acknowledge contemporary history,462 the Court merely “acknowledged that counsel had ‘cited from the speech of one of the Senators,’ but indicated that it was not advised what other speeches were made in the Senate or in the House.”463 Justice Black adds, [t]he Maxwell Court considered, moreover, that “[w]hat individual Senators or Representatives may have urged in debate, in regard to the meaning to be given to a proposed constitutional amendment, or bill, or resolution, does not furnish a firm ground for its proper construction, nor is it important as explanatory of the grounds upon which the members voted in adopting it.”464 Justice Black further notes “[t]he [Twining] Court admitted that its action had resulted in giving ‘much less effect to the 14th Amendment than some of the public men active in framing it’ had intended it to have,”465 in holding that the question of whether section one was intended to apply the Bill of Rights to the states was “‘no longer open’ because of previous decisions of this Court which, however, had not appraised the historical evidence on that subject.”466 Well, as Justice Black implies, the Court’s position on these points is unsupportable.467 The approach runs counter to common-sense principles of construction that, in seeking to interpret the intended scope of a writing, one should look first to the text, then to the meaning expressed and assigned to it by the person(s) who actually did the writing in order to illuminate the text. For the 458

Adamson v. California, 332 U.S. 46, 71-72 (1947) (Black, J., dissenting) (footnote omitted). Although Justice Black’s “total incorporation” approach has never been vindicated by the Court, the practical effect has been almost the same, with most (but not all – hence, this article) of the Bill of Rights applied to the states through the Court’s due process “selective” incorporation approach. 459

Id. at 72-73 (Black, J., dissenting).

460

Id. at 73.

461

176 U.S. 581 (1900).

462

Specifically, counsel for the appellant in Maxwell cited the speech by Senator Jacob Howard which “so emphatically stated the understanding of the framers of the Amendment . . . that the Bill of Rights was to be made applicable to the states by the Amendment’s first section.” Adamson, 332 U.S. at 73 (Black, J., dissenting). 463

Id.

464

Id.

465

Id. at 74 (quoting Twining v. New Jersey, 211 U.S. 78, 96 (1908)).

466

Id.(quoting Twining, 211 U.S. at 98).

467

See [Lawrence] note 66 and accompanying text.

249 PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT Court thus to ignore, in case after case, decade after decade,468 the relevant official statements of numerous members of Congress involved in drafting and passing the Fourteenth Amendment 469 is simply a failure of the Court’s institutional responsibility to interpret faithfully the Constitution. Moreover, it is a failure of the individual justices’ sworn commitment to “faithfully . . . discharge . . . duties . . . under the Constitution.”470

C. The Stare Decisis Doctrine in Planned Parenthood v. Casey 505 U.S. 833 at 854855 (Part III. A.) (1992); 120 L. Ed.2d. 674, 700 (1992). O’Connor, J., plurality joint opinion with J.J. Kennedy and Souter, speaking, in part three, for the Court: The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer limit. With Cardozo, we recognize that no judicial system could do society’s work if it eyed each issue afresh in every case that raised it. See B. Cardozo, THE NATURE OF THE JUDICIAL PROCESS 149 (1921). Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable. See Powell, Stare Decisis and Judicial Restraint, 1991 JOURNAL OF SUPREME COURT HISTORY 13, 16. At the other extreme, a different necessity would make itself felt if a prior judicial ruling should come to be seen so clearly as error that its enforcement was, for that very reason, doomed. Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually foreordained, it is common wisdom that the rule of stare decisis is not an “inexorable command,” and certainly it is not such in every constitutional case, see Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405 -411 (1932) (Brandeis, J., dissenting). See also Payne v. Tennessee, 501 U.S. 808, 842 (1991) (Souter, J., joined by Kennedy, J., concurring); Arizona v. Rumsey, 467 U.S. 203, 212 (1984). Rather, when this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability, Swift & Co. v. Wickham, 382 U.S. 111, 116 (1965); whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, e.g., 468

Curtis notes that

[b]y 1892 six people who sat as Justices on the Supreme Court had concluded that the privileges or immunities clause of the Fourteenth Amendment applied the Bill of Rights to the states: Justice Woods, before his elevation to the Court; Justices Bradley and Swayne in the Slaughter-House Cases [dissent]; and Justices Field, Brewer, and Harlan in the case of O’Neil v. Vermont. Unfortunately, they did not sit and reach their conclusions at the same time. Michael Kent Curtis, NO STATE SHALL ABRIDGE: THE FOURTEENTH A MENDMENT (footnotes omitted).

AND THE

BILL OF RIGHTS at 191 (1986)

469

These statements include those of Representative John Bingham, who, as Justice Black says, “may, without extravagance, be called the Madison of the first section of the Fourteenth Amendment.” Adamson, 332 U.S. at 74 (Black, J., dissenting). 470

The oath administered to federal judges reads,

I, ______, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as [judge/justice] under the Constitution and laws of the United States. So help me God. 28 U.S.C § 453 (2000).

250 PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT United States v. Title Ins. & Trust Co., 265 U.S. 472, 486 (1924); whether related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, see Patterson v. McLean Credit Union, 491 U.S. 164, 173-174 (1989); or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification, e.g., Burnet, supra, 285 U.S. at 412 (Brandeis, J., dissenting).

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252 PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT

Part 11. Challenging the Constitutionality of Summary Judgment Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

253 PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT

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A. Law Review Articles for 2008 (1). Suja A. Thomas, WHY SUMMARY JUDGMENT IS STILL UNCONSTITUTIONAL: A REPLY TO PROFESSORS BRUNET AND NELSON, Iowa Law Review, Vol. 93, No. 5, (2008) (University of Cincinnati College of Law) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1117636 (2). Suja A. Thomas, WHY THE MOTION TO DISMISS IS NOW UNCONSTITUTIONAL, Minnesota Law Review, Vol. 92, (2008) (University of Cincinnati College of Law: U of Cincinnati Public Law Research Paper No. 07-15) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1010062 (3). Suja A. Thomas, The UNCONSTITUTIONALITY OF SUMMARY JUDGMENT: A STATUS REPORT, Iowa Law Review, Vol. 93, No. 5, (2008) (University of Cincinnati College of Law) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1117629

B. Law Review Articles from 2007 (1). John Bronsteen, AGAINST SUMMARY JUDGMENT, 75 George Washington Law Review 522 (April 2007) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=925158 (2). Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Virginia Law Review, 139 (2007) (University of Cincinnati College of Law: University of Cincinnati Public Law Research Paper No. 06-04) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=886363 (3). Suja A. Thomas, THE CIVIL JURY: THE DISREGARDED CONSTITUTIONAL ACTOR, U of Cincinnati Public Law Research Paper No. 07-30, (November 12, 2007) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1029376 (4). Suja A. Thomas, THE SEVENTH AMENDMENT, MODERN PROCEDURE AND THE ENGLISH COMMON LAW, Washington University Law Quarterly, Vol. 82, p. 687, (2004) (University of Cincinnati College of Law) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=525442

C. Professor Suja Thomas discusses the Seventh Amendment Right to a Jury Trial at the University of Cincinnati College of Law (November 8, 2007) http://www.law.uc.edu/news/news/thomas.shtml Cincinnati, OH: University of Cincinnati College of Law Professor Suja Thomas [presented] “The Civil Jury: The Disregarded Constitutional Actor,” a discussion on the Seventh Amendment right to a jury trial and the role of the jury in relationship to other constitutional actors on Thursday, November 8, 2007 at 12:00 p.m. The lecture, [was] held in Room 114 at the law school, [] followed by a question and answer session. Application [was] made for 1 hour of CLE credit for Ohio. “The civil jury enjoys constitutional protection,” said Professor Thomas. “The constitution establishes the civil jury as a separate constitutional actor, like the judiciary, the executive, the legislature and the states under the separation of powers and federalism. The Seventh Amendment sets forth in what circumstances a right to a jury trial occurs and in what circumstances the right can be circumscribed.” She continued, “Despite this protection, through devices such as summary judgment, remittitur and arbitration enforcements, another constitutional actor, the judiciary, exercises significant unchecked power over the power of the civil jury with the result that few civil jury trials occur any longer. If we are to maintain a role for the civil jury in our constitutional structure, the

254 PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT

PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT judiciary itself should play a special role of modesty in its exercise of power over the jury which itself cannot protect its power.” Professor Thomas, Professor of Law, earned her BA in mathematics from Northwestern University and her JD from New York University School of Law. Following a federal clerkship in Chicago and practice in New York City, she began teaching law at the University of Cincinnati College of Law. She is the recipient of the Harold C. Schott Scholarship Award, which recognizes outstanding research and scholarly achievement by a member of the law school faculty, and the Jerome Goldman Prize for Teaching Excellence. Professor Thomas also received the Schott Law Review Award for her article “WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL,” published by the Virginia Law Review, 471 featured in the New York Times, and cited by Judge Jack Weinstein for the proposition that “[t]he increasing use of bench trials, Daubert hearings, summary judgments, and directed verdicts-as authorized by rules of practice and appellate courtsto limit jury fact finding and set aside verdicts poses a threat to the continued viability of the Seventh Amendment jury trial.” Her work on the civil jury is published in the Virginia Law Review, the Washington University Law Quarterly, the Colorado Law Review and the Ohio State Law Journal. Her most recent article “WHY THE MOTION TO DISMISS IS NOW UNCONSTITUTIONAL” will be published next year in the Minnesota Law Review, 472 and her further work on the Seventh Amendment will be discussed and published in a symposium by the Iowa Law Review. 473

471

93 Virginia Law Review, 139 (2007)

472

92 Minnesota Law Review, (2008)

473

Suja A. Thomas, WHY SUMMARY JUDGMENT IS STILL UNCONSTITUTIONAL: A REPLY TO PROFESSORS BRUNET AND NELSON, Iowa Law Review, Vol. 93, No. 5, (2008)

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D. New York Times Sidebar: Cases Keep Flowing In, But The Jury Pool Is Idle (April 30, 2007) Sidebar:

CASES KEEP FLOWING IN, BUT THE JURY POOL IS IDLE by Adam Liptak The New York Times April 30, 2007 Trials are on the verge of extinction. They have been replaced by settlements and plea deals, by mediations and arbitrations and by decisions from judges based only on lawyers’ written submissions. Federal courts conducted about 3,600 trials in civil cases last year, down from 5,800 in 1962. That is not an enormous drop— until you consider that the number of cases has quintupled in the meantime. In percentage terms, only 1.3 percent of federal civil cases ended in trials last year, down from 11.5 percent in 1962. The trends in criminal cases and in the state courts are broadly similar, though not always quite as striking. But it is beyond dispute that even as the number of lawyers has grown twice as fast as the population and even as the number of lawsuits has exploded, actual trials have become quite rare. Instead of hearing testimony, ruling on objections and instructing jurors on the law, judges spend most of their time supervising the exchange of information, deciding pretrial motions and dealing with settlements and plea bargains. There is, of course, nothing wrong with settlements, at least when they are the product of reasoned and sensible compromise between evenly matched adversaries. But trials are not disappearing simply because more cases are being settled. Instead, they are increasingly being replaced by summary judgments, in which judges evaluate evidence submitted to them on paper. “During the last years of the 20th century, summary judgment in the federal courts moved from a small fraction of dispositions by trial to a magnitude several times greater than the number of trials,” Marc Galanter, who teaches law at the University of Wisconsin and the London School of Economics and Political Science, wrote last year in The Journal of Dispute Resolution.

Professor Galanter elaborated in an interview. “Summary judgments are being asked for in about 17 percent of cases and granted in about 9 percent,” he said, citing recent data from the Federal Judicial Center. That is a big jump from 1960, when no more than 1.8 percent of federal civil cases ended in summary judgment, according to data from the administrative office of the federal courts analyzed in a 1961 law review article. “We’ve moved in a way to a more European way of decision-making, by looking at the court file rather than through encounters with living witnesses whose testimony is tested by cross-examination,” Professor Galanter said. In criminal cases, the vast majority of prosecutions end in plea bargains. In an article called “Vanishing Trials, Vanishing Juries, Vanishing Constitution” in the Suffolk University Law Review last year, a federal judge questioned the fairness of the choices confronting many criminal defendants. Those who have the temerity to “request the jury trial guaranteed them under the U.S. Constitution,” wrote the judge, William G. Young of the Federal District Court in Boston, face “savage sentences” that can be five times as long as those meted out to defendants who plead guilty and cooperate with the government. The movement away from jury trials is not just a societal reallocation of resources or a policy choice. Rather, as Judge Young put it, it represents a disavowal of “the most stunning and successful experiment in direct popular sovereignty in all history.” Indeed, juries were central to the framers of the Constitution, who guaranteed the right to a jury trial in criminal cases, and to the drafters of the Bill of Rights, who referred to juries in the Fifth, Sixth and Seventh Amendments. Jury trials may be expensive

256 PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT

PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT and time-consuming, but the jury, local and populist, is a counterweight to central authority and is as important an element in the constitutional balance as the two houses of Congress, the three branches of government and the federal system itself. In an article titled “WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL,” published last month in the Virginia Law Review, Suja A. Thomas, a law professor at the University of Cincinnati, makes the perfectly plausible argument474 that the procedure violates the Seventh Amendment, which reserves the job of determining the facts in civil cases to juries.

a court officer, with mixed pride and hyperbole, said his was the busiest courthouse in America. I never saw so much as the inside of a courtroom. After a couple of days of milling around in an assembly room with more than 100 other potential jurors, the State of New York thanked us for our service and sent us home.

When judges decide summary judgment motions, Professor Thomas wrote, they intrude on that job. The theory of summary judgment is that judges may rule for one side or the other only after finding that no “genuine” issues of “material” fact are in dispute. They must determine, as the Supreme Court has put it, whether “a reasonable jury could return a verdict” for the party defending against a motion for summary judgment. All of that pushes judges right up to and sometimes across the constitutional line of determining the facts for themselves. In 2004, in the process of revitalizing the role of the jury in criminal cases, Justice Antonin Scalia of the Supreme Court wrote that there were good arguments for “leaving justice entirely in the hands of professionals.” But that is not the theory of the Constitution, he continued, which enshrined “the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.” The jury trial is a distinctively American tradition in a cultural sense, too. Almost all civil jury trials in the world take place here, and 90 percent of the criminal ones. But that tradition, which Prof. Paul Butler of George Washington University calls “as fundamental a part of our culture as jazz or rock ‘n’ roll,” is dying. I was on jury duty last week, in a state criminal court in Manhattan. During the orientation on Wednesday, 474

Plainitiff’s emphasis to correspond with the new “Plausible Standard” of stating a claim in Bell Atlantic Corp. v. Twombly, 550 U.S. __, __, 127 S. Ct. 1955, at 1974 (May 21, 2007).

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E. Dissenting Opinions Exposing Too Many Summary Judgments “In a number of cases dissenting opinions have in time become the law.” Charles Evans Hughes, THE SUPREME COURT OF THE UNITED STATES, Chapter 1: The Court at Work – Organization – Methods. p. 68; A Columbia Paperback. Columbia University Press. 1966.

(1). Melvin v. Cal-Freshener Corp., 8th Circuit, No. 06-1279 (2006) Circuit Judge Lay dissenting: Too many courts in this circuit, both district and appellate, are utilizing summary judgment in cases where issues of fact remain. This is especially true in cases where witness credibility will be determinative. In these instances, a jury, not the courts, should ultimately decide whether the plaintiff has proven her case. Summary judgment should be the exception, not the rule. It is appropriate “only . . . where it is quite clear what the truth is, . . . for the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try.” Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467 (1962) (emphasis added) (citation and internal quotations omitted). It is undeniable that summary judgment is a valuable tool, the use of which allows overextended courts to remove cases that lack merit from their dockets. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). However, in accomplishing this goal, we have an obligation not to “overlook[] considerations which make . . . summary judgment an inappropriate means to that very desirable end.” Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944). As Justice Black explained, The right to confront, cross-examine and impeach adverse witnesses is one of the most fundamental rights sought to be preserved by the Seventh Amendment provision for jury trials in civil cases. The advantages of trial before a live jury with live witnesses, and all the possibilities of considering the human factors, should not be eliminated by substituting trial by affidavit and the sterile bareness of summary judgment.

(2). Adickes v. S.H. Kress & Co., 398 U.S. 144, 176 (1970) Black, J., concurring: I express no opinion as to whether Melvin would ultimately be able to convince a jury in this case. However, she and all other similarly-situated plaintiffs should be afforded the opportunity to do so.

(3). Montana v. Hall, 481 U.S. 400, 406-410 (1987) In Justice Marshall’s dissenting opinion: For years, I have been troubled by our disposition of appeals and petitions for certiorari through summary per curiam opinions, without plenary briefing on the merits of the issues decided. 475 Other Justices have registered similar objections, disputing the Court’s application of the criteria

475

See, e. g., Allen v. Hardy, 478 U.S. 255, 261 (1986) (MARSHALL, J., dissenting); Maggio v. Fulford, 462 U.S. 111, 120 (1983) (MARSHALL, J., dissenting); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 62 (1982) (MARSHALL, J., dissenting); Wyrick v. Fields, 459 U.S. 42, 50 (1982) (MARSHALL, J., dissenting); Harris v. Rivera, 454 U.S. 339, 349 (1981) (MARSHALL, J., dissenting); Schweiker v. Hansen, 450 U.S. 785, 791 (1981) (MARSHALL, J., dissenting); Harris v. Rosario, 446 U.S. 651, 652 (1980) (MARSHALL, J., dissenting); Smith v. Arkansas State Highway Employees, 441 U.S. 463, 466 (1979) (MARSHALL, J., dissenting).

259 PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT

PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT that supposedly determine when a summary disposition is clearly justified.476 Our persistent indulgence in this practice over the objections of our colleagues has tarnished what has long been considered one of this judicial institution’s greatest qualities, the fairness and integrity of its decisionmaking process. Through summary dispositions, we deprive the litigants of a fair opportunity to be heard on the merits. Our Rules tell the petitioner and respondent that we will grant review on writ of certiorari “when there are special and important reasons therefor.” 477 In listing the considerations that are important in deciding whether review should be granted, we mention such things as conflicting decisions from other courts and unsettled questions of federal law. We do not indicate that the parties should address the merits of the lower court’s decision beyond what is necessary to demonstrate whether the case is important enough to receive plenary review.478 Our 30-page limit for petitions and responses, and the command that they be “as short as possible,” 479 unmistakably indicate that these papers should not contain detailed discussions of the merits. If we find the case sufficiently important, the Rules inform the parties that the petition will be granted and “[t]he case then will stand for briefing and oral argument.”480 Yet when we issue a summary disposition we ignore these instructions and proceed to decide the case as if it has been fully briefed on the merits. In my view, simply put, this is not fair.481 Admittedly, the Rules indicate that summary dispositions on the merits are possible,482 but in light of our instructions regarding the preparation of petitions and responses this places the litigants in a difficult dilemma. If they venture beyond arguments for granting or denying certiorari, they risk violating the Rules; but if they fail to cover the merits of the lower court’s decision in full, they risk summary disposition without having been heard.483 In response to these pressures, counsel may tend to extend their arguments in petitions and responses beyond the purposes defined in the Rules. Apart from increasing the litigants’ costs, this tendency can only increase our workload, thereby giving those who favor uncounseled summary dispositions additional justification for not allowing full briefing on the merits.484 476

See, e. g., Board of Education of Rogers, Ark. v. McCluskey, 458 U.S. 966, 971 -972 (1982) (STEVENS, J., dissenting); United States v. Hollywood Motor Car Co., 458 U.S. 263, 271 (1982) (BLACKMUN, J., dissenting); Hutto v. Davis, 454 U.S. 370, 387 (1982) (BRENNAN, J., dissenting); Stone v. Graham, 449 U.S. 39, 47 (1980) (REHNQUIST, J., dissenting); Oregon State Penitentiary v. Hammer, 434 U.S. 945, 947 (1977) (STEVENS, J., dissenting); Eaton v. Tulsa, 415 U.S. 697, 707 (1974) (REHNQUIST, J., dissenting); cf. Shipley v. California, 395 U.S. 818, 821 (1969) (WHITE, J., dissenting). 477

This Court’s Rule 17.1.

478

At our direction the respondent focuses instead on “disclosing any matter or ground why the cause should not be reviewed.” Rule 22.1. 479

Rules 21.4 and 22.2. In this case, petitioner devoted 12 pages to the merits of the double jeopardy issue decided by the Court today, respondent only 7. Pet. for Cert. 10-21; Respondent’s Brief in Opposition 8-14. An amicus curiae brief submitted on behalf of 17 States devoted a total of five pages to the merits. Brief for the States and Commonwealths of Indiana et al. as Amici Curiae 2-6. 480

Rule 23.2.

481

This lack of fairness has not escaped the notice of commentators. See, e. g., E. Brown, The Supreme Court 1957 Term Forward: Process of Law, 72 Harv. L. Rev. 77, 80, 82, (1958); R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice 284-285 (6th ed. 1986). 482

Rule 23.1. This Rule was not codified until 1980. Stern, Gressman, & Shapiro, Supreme Court Practice, supra, at 277.

483

Cf. United States v. Hollywood Motor Car Co., supra, at 271 (BLACKMUN, J., dissenting).

484

See Hutto v. Davis, supra, at 387, n. 6 (BRENNAN, J., dissenting); Stern, Gressman, & Shapiro, Supreme Court Practice, supra, at 286.

260 PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT

PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT Not only do we reach these summary dispositions without the benefit of thorough briefing, but the Court often acts without obtaining the complete record of the proceedings below. Records are no longer automatically certified and delivered to us for every petition.485 In fact, we expressly discourage transmission of the record at this stage of the proceedings, 486 which again indicates that the focus of certiorari is on whether a case is important enough to warrant plenary review and not whether, after abbreviated review, we are able to conclude that the case was rightly or wrongly decided below. Of course, we may call for the record where we think a summary disposition might be proper, and our Clerk notifies the parties of this development, but we do not provide for supplemental briefing on the merits.487 All too often, as in the case decided today, the Court does not even bother to call for the record. Again, counsel face a dilemma: they may routinely request that records be transmitted, thus protecting the interests of their clients at the risk of violating the Rules, or they may fail to request transmission and risk summary disposition based on less than complete review. I cannot accept the proposition that additional briefing and review of the full record will increase the workload of this Court unbearably. Our duty to litigants today is to consider carefully every petition and response filed in this Court. But our duty extends to future litigants as well, and it is heightened when we issue written opinions. To reduce the incidence of mistakes and to avoid delivering conflicting or confusing opinions, our decisions in these cases should be made only after we have had an opportunity to consider comprehensive briefs and review the records in their entirety. We are not infallible, as is evidenced, for example, by the number of cases each Term that are dismissed after plenary briefing and oral argument as having been improvidently granted. The time and effort required to read supplemental briefs in cases for which we are considering summary dispositions would be minimal,488 and the relative gains substantial. More is at stake, however, than offsetting the litigants’ entitlement to be heard on the merits against our desires to avoid increasing the workload. Summary dispositions often do not accord proper respect for the judgments of the lower courts, particularly when these judgments are reversed. 489 The judges below have had the benefit of full briefing on the merits and review of the entire record. They must perceive - correctly - that our cavalier reversals are inherently less well informed. I believe, moreover, that summary dispositions in many instances display insufficient respect for the views of dissenting colleagues on this Court. The tendency is to forget that we are equally uninformed. What troubles a single Justice about a particular case may become, after full briefing, a decisive factor in the judgment of the Court. As it is, we forge ahead issuing per curiam opinions as if the issue were crystal clear, at times over objection from as many as four 485

See generally Stern, Gressman, & Shapiro, Supreme Court Practice, supra, at 329-333.

486

Rule 19.1.

487

A party may, at any time, file a supplemental brief not exceeding 10 pages, but these briefs can only address a “new matter” not available at the time of the party’s last filing. Rule 22.6. This Rule does not envision supplemental briefing when the Court calls for the record. See also Rule 21.3 (supplemental brief in support of petition will not be received). 488

To put matters in perspective, were we to shorten the acceptable length of petitions and responses merely by one-fifth of a single page, it would free up at least 2,000 pages worth of our reading time to consider full briefs for the relatively few summary dispositions we issue each year. That comes to 40 briefs, at 50 pages each, or 20 cases decided in which the parties and the Court would have the benefit of full briefing. This assumes that 5,000 petitions are filed each year, and that on the average litigants use the complete 30 pages allowed. The former assumption is conservative and is a matter of record; based on my personal observation the latter assumption is more than fair. 489

See, e. g., Stone v. Graham, 449 U.S., at 47 (REHNQUIST, J., dissenting); Oregon State Penitentiary v. Hammer, 434 U.S., at 947 (STEVENS, J., dissenting).

261 PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT

PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT other Justices. 490 It is not unreasonable to believe, as I do, that the integrity of a summary decision from a divided Court would benefit from additional briefing on the merits by those who have litigated the issues of the case from its inception. “Per curiam” is a Latin phrase meaning “[b]y the court,”491 which should distinguish an opinion of the whole Court from an opinion written by any one Justice. Our use of a lengthy per curiam opinion, over the dissent of those who would set the case for briefing, to resolve the merits of a case without devoting the usual time or consideration to the issues presented, is wrong. Such an opinion does not speak for the entire Court on a matter so clear that the Court can and should speak with one voice. Instead, it speaks for a majority of Justices who take it upon themselves to resolve the merits of a dispute solely on the basis of preliminary petitions and responses. I can think of no compelling reason, and to date none has been suggested, why we should nurture a practice that can only foster resentment, uncertainty, and error. Rather, I believe that when the Court contemplates a summary disposition it should, at the very least, invite the parties to file supplemental briefs on the merits, at their option. This simple accommodation to the reasonable expectations of the litigants, to the integrity of the lower courts, and to the desires of other Justices for a more studied decision would go a long way toward achieving the fairness and accuracy that the Nation rightfully expects from its Court of last resort. Until this, or some other, reasonable accommodation is implemented, I remain in dissent.

490

See, e. g., Newport v. Iacobucci, 479 U.S. 92 (1986).

491

Black’s Law Dictionary 1023 (5th ed. 1979) (emphasis added).

262 PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT

PART 13. CHALLENGING THE FEDERAL COURT RULING

Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

263 PART 13. CHALLENGING THE FEDERAL COURT RULING

PART 13. CHALLENGING THE FEDERAL COURT RULING

A. Capt. J. P. Brusseau Violated his Oath of Office when he ascribed a Personal Ideology against the Second Amendment as a Basis for the Denial Letter, April 19, 2002 That Don Hamrick’s cause of action arose in 2002 from a judicial review of the U.S. Coast Guard’s final agency action denial, (46 C.F.R. § 1.01–30),492 of his application for an endorsement on his Merchant Mariner’s Document, such endorsement to read, “National Open Carry Handgun” for which there were and still are no federal laws or regulations for or against that particular endorsement. The reason given for the denial is found in the U.S. Coast Guard’s letter dated April 19, 2002: Dated April 19, 2002 Dear Mr. Hamrick: This is to address your appeal of a decision by the Commanding Officer, Coast Guard National Maritime Center concerning your Merchant Mariner’s Document. In your letter of 19 January 2002, you applied to have your Merchant Mariner’s Document endorsed “National Open Carry Handgun.” The Commanding Officer, Coast Guard National Maritime Center replied to you in his letter of 22 February, denying your application. You appealed that decision in your letter of 16 March to Secretary of Transportation Norman Y. Mineta, and supplemented your appeal with your letter 29 March, also to Secretary Mineta. Your appeal was forwarded to me for final agency action as outlined in 46 CFR 1.03-15(j). I am impressed with your scholar ship and zeal in formulating arguments in support of your application for a “National Open Carry Handgun” endorsement on your Merchant Mariner’s Document, but I am not persuaded to agree with you. 493 As you have noted, the laws and regulations do not provide for such an endorsement nor do they prohibit it. Instead, the matter is left to my judgment.494 My decision, after considering all the material your have submitted, is that it would not be in the best interest of marine safety or security495 to initiate the endorsement you have applied for. Your appeal is therefore denied and the Commanding Officer, National Maritime Center is directed not to place any endorsements regarding firearms on any merchant mariner’s licenses or documents. This decision constitutes final agency action as cited above. Capt. J. P. Brusseau Director of Field Activities Marine Safety, Security and Environmental Protection

492

Plaintiff’s Note: 46 CFR 1.01-30(a) Judicial Review states: “Nothing in this chapter shall be construed to prohibit any party from seeking judicial review of any Commandant’s decision or action taken pursuant to the regulations in this part or part 5 of this chapter with respect to suspension and revocation proceedings arising under 46 U.S.C. chapter 77. 493

Emphasis added.

494

Emphasis added.

495

Emphasis added.

PART 13. CHALLENGING THE F264 EDERAL COURT RULING

PART 13. CHALLENGING THE FEDERAL COURT RULING

Part 13. Challenging the Federal Court Ruling Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

265 PART 13. CHALLENGING THE FEDERAL COURT RULING

PART 13. CHALLENGING THE FEDERAL COURT RULING

A. Hamrick v. President George W. Bush, U.S. District Court for DC, No. 02-1435 (2002) On June 26, 2008 Justice Scalia of the U.S. Supreme Court, in District of Columbia, et al, v. Heller, No. 07-290 held that “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” The Heller opinion overrules Judge Ellen Segal Huvelle’s Memorandum on the Second Amendment in Don Hamrick v. George W. Bush, U.S. District Court for the District of Columbia, No. 02-1435 (2002). I am here for a rematch under my Seventh Amendment right to a civil jury and under 42 U.S.C. § 1988 PROCEEDINGS IN VINDICATION OF CIVIL RIGHTS; 42 U.S.C. § 1986 ACTION FOR NEGLECT TO PREVENT CONSPIRACIES TO INTERFERE WITH CIVIL RIGHTS (42 U.S.C. § 1985); and 42 U.S.C. § 1983 CIVIL ACTION FOR DEPRIVATION OF CIVIL RIGHTS. And by such conspiracies to interfere with my civil rights, statutory rights, constitutional rights, and human rights under international human rights treaties through the treaty clause of the U.S. Constitution I seek a Civil Remedy as a PRIVATE ATTORNEY GENERAL for my claims against the United States of engaging in racketeering activity under the RICO Act in accordance with 18 U.S.C. § 1964 threefold damages that I have sustained in the original wrongful 12-day detention in Lithuania by the U.S. Coast Guard in 2002 ($14 million) plus additional damages for obstructions of justice by they U.S. Coast Guard, the U.S. Marshals Service, the FBI, the U.S. Department of Justice, and federal judges from 2002 to the present through FRAUD AND FALSE STATEMENTS under 18 U.S.C. § 1001(a)(1), (2), and (3); and the cost of the suit during the 6-year span, including a reasonable attorney’s fee (even though I never been represented by an attorney in this 6-year litigious journey for justice), which includes extortion of exempted filing fees from a seaman (18 U.S.C. § 872) in violation of the Seamen’s Suit law, 28 U.S.C. § 1916 as a predicate act of RACKETEERING ACTIVITY under 18 U.S.C. § 1961(1)(A) – EXTORTION – as well as under 18 U.S.C. § 1961(1)(B) – OBSTRUCTION OF JUSTICE – as defined under 18 U.S.C. § 1503(a). In regard to the Heller opinion that the Second Amendment is an individual right and not exclusively or collaterally a State’s right to arm a militia I cite Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) ([W]here intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority[,] ... a three-judge panel of this court and district courts should consider themselves bound by the intervening higher authority and reject the prior opinion of this court as having been effectively overruled.”)

PART 13. CHALLENGING THE F266 EDERAL COURT RULING

PART 13. CHALLENGING THE FEDERAL COURT RULING

Hamrick v. President George W. Bush U.S. District Court for the District of Columbia No. 02-1435 (2002)

[OVERRULED] MEMORANDUM On July 18, 2002, petitioner filed a pro se Petition for A Writ of Mandamus, requesting this Court, inter alia, to compel the President of the United States to protect the constitutional rights of sailors in the U.S. Merchant Marine to carry handguns while ashore in the United States, to strike various federal statutes and regulations restricting individuals’ right to transport firearms across state lines on the grounds that they violate the Second, Ninth, and Thirteenth Amendments of the U.S. Constitution, and to compel the U.S. Coast Guard to approve petitioner’s application for “National Open Carry Handgun” endorsement on his Merchant Marine document. Petitioner has not served a complaint and summons on any of the parties he has named as respondents, seeking instead to use a petition-show cause order approach for the resolution of his grievances. Regardless of whether such an approach is appropriate in light of Rule 81(b) of the Federal Rules of Civil Procedure, it is clear that petitioner cannot satisfy the stringent standards for mandamus relief and therefore that his petition must be dismissed. The remedy of mandamus is an extraordinary one, and is reserved for extraordinary situations. See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). Under well-established Circuit law, mandamus relief is available only if three conditions are met: (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff. Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002); see also In re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000) (mandamus issued “only for the most transparent violations of a clear duty to act”). The present petition falls far short of satisfying these stringent requirements. The asserted legal bases for the relief sought by petitioner are the Second, Ninth, and Thirteenth Amendments of the Constitution, which, he claims, guarantee the right to carry firearms openly and without a license in interstate and intrastate travel. Petitioner argues that the Second Amendment’s “right of the people to keep and bear arms” renders invalid any federal or state law restricting what he calls “National Open Carry Handgun” and requires the President and the Coast Guard to take the actions he has demanded. Moreover, according to petitioner, federal and state gun control laws create a form of “legislated slavery” in violation of the Thirteenth Amendment. Taking the latter claim first, no court has ever so much as suggested that the Thirteenth Amendment confers any right to bear arms, and it is entirely fanciful to suggest that its prohibition of involuntary servitude somehow unambiguously requires the overturning of a whole variety of gun control legislation. As for the Second Amendment, while it is true that the precise meaning of this provision continues to be in dispute in both judicial and academic circles, c.f. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the very existence and intensity of that controversy make mandamus relief a decidedly inappropriate vehicle for fulfilling petitioner’s demands. Mandamus is reserved for circumstances in which the claimant’s entitlement to relief and the defendant’s obligation to provide such relief are unambiguous and undebatable. The Second Amendment simply offers no such clarity.

267 PART 13. CHALLENGING THE FEDERAL COURT RULING

PART 13. CHALLENGING THE FEDERAL COURT RULING Moreover, the established law on this subject hardly supports petitioner’s cause. In United States v. Miller, 307 U.S. 174, 178 (1939), the Supreme Court found that “absent some reasonable relationship to the preservation or efficiency of a well regulated militia,” the possession of a weapon (a short-barreled shotgun) could be proscribed without running afoul of the Second Amendment. Miller remains the most authoritative modern pronouncement on the amendment’s meaning and its conclusion that the right to bear arms is limited by the needs of an organized militia has subsequently been echoed by the Supreme Court and followed in this and other circuits. See United States v. Lewis, 445 U.S. 55, 65 n.8 (1980); Fraternal Order of Police v. United States, 173 F.3d 898, 905-06 (D.C. Cir. 1999); accord United States v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001) (holding that “a federal criminal gun control law does not violate the Second Amendment unless it impairs the state’s ability to maintain a well-regulated militia”). Under this interpretation, petitioner’s claims appear largely without merit. In sum, given the breadth of petitioner’s demands and the narrowness of the constitutional provision that he relies on to justify those demands – more specifically, the lack of apparent connection between his right to keep and bear an unlicenced firearm and the needs of any organized militia – petitioner can establish neither that he has a clear right to relief nor that any of the named respondents has a clear duty to act. However the Second Amendment may ultimately come to be interpreted, the current understanding of that text certainly provides no obvious basis either for the wholesale negation of federal and state gun laws or for the open carry endorsement that petitioner seeks. Since mandamus is clearly unavailable here, the Court must dismiss the petition with prejudice. Therefore, the Court need not address petitioner’s claims for declaratory judgment or for injunctive relief. But if petitioner wishes pursue these claims, he is required to use the ordinary procedures of complaint and summons described in Rules 3 and 4 of the Federal Rules of Civil Procedure. See Flatow v. Islamic Republic of Iran, 2002 WL 31245261, at *2 (D.C. Cir. Oct. 8, 2002) (“The Federal Rules of Civil Procedure provide that there shall be one form of action to be known as ‘civil action’ and such an action shall be commenced by filing a complaint with the court, with related service, answer, and motions obligations thereafter.”) (internal quotation marks omitted). ________________________________ ELLEN SEGAL HUVELLE United States District Judge DATE: October 9, 2002

PART 13. CHALLENGING THE F268 EDERAL COURT RULING

PART 13. CHALLENGING THE FEDERAL COURT RULING

B. Did Judge Ellen Segal Huvelle commit a fraud or make false statements (18 U.S.C. § 1001) in her Memorandum and Order? (1). Excerpts from the U.S. Attorney’s Manual, Title 9: Criminal Resource Manual. Section 902: 1996 Amendments to 18 U.S.C. § 1001 Statements or Entries Generally[Chapter 47: Fraud and False Statements] Section 904 Purpose of Statute. Section 907 Statements Warranting Prosecution. Section 908 Elements of 18 U.S.C. § 1001. Section 909 False Statement. Section 910 Knowingly and Willfully. Section 911 Materiality. Section 912 Falsity. Section 914 Concealment--Failure to Disclose. Section 915 False Statements as to Future Actions. Section 919 Multiplicity, Duplicity, Single Document Policy. Section 923: 18 U.S.C. § 371 -- Conspiracy to Defraud the United States. Section 925 Obstructing or Impairing Legitimate Government Activity. Section 930 Major Fraud Against the United States.

269 PART 13. CHALLENGING THE FEDERAL COURT RULING

PART 13. CHALLENGING THE FEDERAL COURT RULING

PART 13. CHALLENGING THE F270 EDERAL COURT RULING

PART 14. CHALLENGING SELECTED FEDERAL LAWS

Part 14. Challenging Selected Federal Laws Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

271SELECTED FEDERAL LAWS PART 14. CHALLENGING

PART 14. CHALLENGING SELECTED FEDERAL LAWS

A. Interstate Transportation of Firearms 18 U.S.C. § 926A. Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.

B. Registration of Certain Organizations 18 U.S.C. § 2386. 18 U.S.C. § 2386(B)(1)The following organizations shall be required to register with the Attorney General: . . . “Every organization which engages both in civilian military activity and in political activity”

C. The Merchant Marine Act of 1936 (1). 46 U.S.C. Appendix § 1101. Fostering Development and Maintenance of Merchant Marine It is necessary for the national defense and development of its foreign and domestic commerce that the United States shall have a merchant marine (a) sufficient to carry its domestic water-borne commerce and a substantial portion of the water-borne export and import foreign commerce of the United States and to provide shipping service essential for maintaining the flow of such domestic and foreign waterborne commerce at all times, (b) capable of serving as a naval and military auxiliary in time of war or national emergency, (c) owned and operated under the United States flag by citizens of the United States, insofar as may be practicable, (d) composed of the best-equipped, safest, and most suitable types of vessels, constructed in the United States and manned with a trained and efficient citizen personnel, and (e) supplemented by efficient facilities for shipbuilding and ship repair. It is declared to be the policy of the United States to foster the development and encourage the maintenance of such a merchant marine.

D. Maritime Problems; Cooperation With Recommendations 46 U.S.C Appendix § 1122.

Others;

The Secretary of Transportation is authorized and directed -

272 FEDERAL LAWS PART 14. CHALLENGING SELECTED

Cargo

Carriage;

PART 14. CHALLENGING SELECTED FEDERAL LAWS (a) Study of maritime problems To study all maritime problems arising in the carrying out of the policy set forth in subchapter I of this chapter; (g) Recommendations for further legislation To make recommendations to Congress, from time to time, for such further legislation as he deems necessary better to effectuate the purpose and policy of this chapter.

E. Maritime Education and Training under the Merchant Marine Act of 1936 (1). 46 U.S.C. Appendix § 1295. Congressional Declaration Of Policy It is the policy of the United States that merchant marine vessels of the United States should be operated by highly trained and efficient citizens of the United States and that the United States Navy and the merchant marine of the United States should work closely together to promote the maximum integration of the total seapower forces of the United States. In furtherance of this policy (1) the Secretary of Transportation is authorized to take the steps necessary to provide for the education and training of citizens of the United States who are capable of providing for the safe and efficient operation of the merchant marine of the United States at all times and as a naval and military auxiliary in time of war or national emergency; and (2) the Secretary of Navy, in cooperation with the Maritime Administrator and the head of each State maritime academy, shall assure that the training of future merchant marine officers at the United States Merchant Marine Academy and at the State maritime academies includes programs for naval science training in the operation of merchant marine vessels as a naval and military auxiliary and that naval officer training programs for the training of future officers, insofar as possible, be maintained at designated maritime academies consistent with United States Navy standards and needs.

F. Secretary of Transportation May Provide Additional Training on Maritime Subjects 46 U.S.C. Appendix § 1295d. (a) In general The Secretary [of Transportation] may provide additional training on maritime subjects, as the Secretary deems necessary, to supplement other training opportunities and may make any such training available to the personnel of the merchant marine of the United States and to individuals preparing for a career in the merchant marine of the United States.

G. Powers and Duties of Secretary of Transportation 46 U.S.C. Appendix § 1295g. 46 U.S.C. Appendix § 1295g (a) Rules and regulations The Secretary [of Transportation] shall establish such rules and regulations as may be necessary to carry out this subchapter. (b) Excess vessels and equipment

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PART 14. CHALLENGING SELECTED FEDERAL LAWS The Secretary [of Transportation] may cooperate with and assist the Academy, any State maritime academy, and any nonprofit training institution which has been jointly approved by the Secretary and the Secretary of the department in which the United States Coast Guard is operating as offering training courses which meet Federal regulations for maritime training, by making vessels, shipboard equipment, and other marine equipment, owned by the United States which have been determined to be excess or surplus, available by gift, loan, sale, lease, or charter to such institution for instructional purposes on such terms as the Secretary deems appropriate. (c) Securing of information, facilities, or equipment; detailing of personnel (1) The Secretary [of Transportation] may secure directly from any department or agency of the United States any information, facilities, or equipment, on a reimbursable basis, necessary to carry out this subchapter. (2) Upon the request of the Secretary [of Transportation], the head of any department or agency of the United States (including any military department of the United States) may detail, on a reimbursable basis, any of the personnel of such department or agency to the Secretary to assist in carrying out this subchapter. (d) Employment of personnel To carry out this subchapter, the Secretary may employ at the Academy any individual as a professor, lecturer, or instructor, without regard to the provisions of title 5 (governing appointments in the competitive service), and may pay such individual without regard to the provisions of chapter 51 and subchapter III of chapter 53 of such title (relating to classification and General Schedule pay rates).

H. U.S. Coast Guard Merchant Mariner’s Document Pilot Program Public Law No. 108-293. Section 611 On August 9, 2004 THE COAST GUARD AND MARITIME TRANSPORTATION ACT OF 2004 (hr 2443) became Public Law No. 108-293. Section 611 of that law authorizes and establishes the MERCHANT MARINERS DOCUMENTS PILOT PROGRAM. That section states: “The Secretary of [Homeland Security] may conduct a pilot program to demonstrate methods to improve processes and procedures for issuing merchant mariners’ documents.” Section 217 of that law adds new Subsection (y) to 14 U.S.C. § 93 for “GENERAL POWERS OF THE COMMANDANT” which states: “after informing the Secretary, make such recommendations to the Congress relating to the Coast Guard as the Commandant considers appropriate.”

I. Seafarers International Union’s Small Arms Range and Courses Approved by Military Sealift Command February 2003 http://www.seafarers.org/log/2003/022003/smallarms.xml The Paul Hall Center for Maritime Training and Education has added two new courses and opened a new facility next to its fire fighting and safety school in Piney Point, Md.

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PART 14. CHALLENGING SELECTED FEDERAL LAWS Last month, the U.S. Military Sealift Command (MSC) approved the Paul Hall Center’s small arms range along with two new curriculums. The first course, MSC Initial Small Arms Instruction and Qualification, lasts 21 hours. The second, MSC Annual Small Arms Instruction and Re-Qualification, is a seven-hour class. Each combines classroom instruction with hands-on training, and each has a 16-student limit. The range itself has different shooting stations beginning as close as three yards to the targets and extending to a top distance of 80 yards. It is bordered on three sides by 15-foot berms. The computer-operated target system is state-of-the-art. (It also may be operated manually.) Opposite the target area is a 30-by-70-foot building which includes a classroom, an office and an adjacent, outdoor area for cleaning the training weapons. The classroom also includes gun-cleaning stations. A built-in vault-safe combination with steel-reinforced concrete and motion detectors will be used to store the arms. The classes involve the following weapons: 9MM pistol, 12-gauge shotgun, and M-14 rifle. Topics in the 21-hour course include rules of conduct and safety; the Lautenberg Amendment to the Brady Gun Control Act of 1996; personal protective equipment; use of force and deadly force; and fundamentals of marksmanship, among other subjects. The class ends with a lengthy practical evaluation. The seven-hour course— designed for students whose certificate of qualification or re-qualification is not more than two years old—includes many of the same topics found in the lengthier one. Both classes are intended to help students meet U.S. Navy standards for mariners who are directly involved in shipboard security. In order to enroll in the 21-hour class, a student must be at least 18 years old; possess a valid merchant mariner’s document (MMD, also called a z-card); be capable of speaking and understanding verbal orders in English in accordance with 46 CFR 12.05-3; provide documented proof of fulfilling the physical examination requirements in accordance with 46 CFR 12.05-7; and meet the requirements of the “Qualification to Possess Firearms or Ammunition” form that is required for contracted mariners. For the re-qualification course, the only additional requirement is that the student must hold a current certificate of qualification not more than two years old for the pistol, rifle and shotgun. Paul Hall Center Vice President Don Nolan and Safety Director Jim Hanson visited several approved sites along the East Coast when planning for the new range. “Our site was built completely in-house, and obviously we followed not only the proper building guidelines but also all the Navy and MSC guidelines for the range,” noted Nolan. “It’s another step forward for the school in terms of offering virtually every type of training that may be required for U.S. mariners. “Given the war against terrorism,” he added, “it certainly seems possible that some of the current small arms security requirements may expand.”

J. Brief Legislative History of Civil Defense (50 U.S.C. § 2251 et. seq.) On January 12, 1951:

H.R. 9798, The Federal Civil Defense Act of 1950, became Pub.L. 920 (64 Stat. 1228). It authorized a Federal civil defense program.

On August 8, 1958:

H.R. 7576 became Pub.L. 85-606 (72 Stat. 532). It amended the Federal Civil Defense Act of 1950 adding the thermonuclear provisions.

On October 5, 1994:

Pub.L. 103-337 (108 Stat. 3101) repealed the Federal Civil Defense Act of 1950.

In 5 U.S. Code Cong. And Adm. News 2182-2183 (1994) TITLE XXXIV CIVIL DEFENSE: Civil defense programs were originally designed to protect “life and property in the United States from attack.” In 1981, the law was amended to permit states to

275SELECTED FEDERAL LAWS PART 14. CHALLENGING

PART 14. CHALLENGING SELECTED FEDERAL LAWS use civil defense funds to prepare for natural disasters “in a manner that . . . . does not detract from attack-related civil defense preparedness.” Section 3402 of the National Defense Authorization Act for Fiscal Year 1994 (Pub.L. 103-160) eliminated this restriction. The Civil Defense Act now reflects the “all-hazard” approach to emergency management, i.e., states are permitted to use the funds for all kinds of emergencies and disasters. The committee believes that it should get out of the civil defense business for two reasons. First, the program has lost its defense emphasis. The threat of attack is no longer the driving force behind the program. Rather, the chief threats today come from tornadoes, earthquakes, floods, chemical spills, and the like. Civil Defense gave way to FEMA. And we all know how well FEMA performs their duties. Hurricane Katrina is a testament for the restoration of the decentralized Civil Defense Seven years later on September 11, 2001 the United States was attacked by terrorists. President Clinton dropped the guard abolishing Civil Defense. Instead of resurrecting Civil Defense President Bush created the U.S. Department of Homeland Security to which precipitated relentless thefts of constitutional rights, powers, and duties of citizenship as evidence in this Private Bill. The U.S. Department of Homeland Security is the exact centralization of the federal government that was feared at the Constitutional Convention and in The Federalist Papers. Further evidence of a grave need for the restoration of Second Amendment rights to its full constitutional limits, i.e., National Open Carry Handgun, is found in the growing epidemic of single-shooter suicidal mass murders in Gun-Free Terrorist Zones in schools, malls, and now churches.

K. 10 U.S.C. § 311. Militia: Composition and Classes (a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32 [age limitations on appointments and enlistments to the National Guard], under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard. (b) The classes of the militia are— (1) the organized militia, which consists of the National Guard and the Naval Militia; and (2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia. The “Unorganized Militia” under 10 U.S.C. § 311(b)(2) is criminalized by 18 U.S.C. § 2386(B)(1) which requires registration of every organization which engages both in civilian military activity and political activity criminalizes the Unorganized Militia of 18 U.S.C. § 311. Justice Joseph Story said “[t]he militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers.”496 This fact was cited by Justice Scalia in the Heller Opinion, pages 25-26:

496

Justice Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, § 1890, vol. 3 at pp. 746-747 (1833).

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PART 14. CHALLENGING SELECTED FEDERAL LAWS “Security of a Free State.” The phrase “security of a free state” meant “security of a free polity,” not security of each of the several States as the dissent below argued, see 478 F. 3d, at 405, and n. 10. Joseph Story wrote in his treatise on the Constitution that “the word ‘state’ is used in various senses [and in] its most enlarged sense, it means the people composing a particular nation or community.” 1 Story §208; see also 3 id., §1890 (in reference to the Second Amendment’s prefatory clause: “The militia is the natural defence of a free country”). It is true that the term “State” elsewhere in the Constitution refers to individual States, but the phrase “security of a free state” and close variations seem to have been terms of art in 18thcentury political discourse, meaning a “ ‘free country’ “ or free polity. See Volokh, “Necessary to the Security of a Free State,” 83 Notre Dame L. Rev. 1, 5 (2007); see, e.g., 4 Blackstone 151 (1769); Brutus Essay III (Nov. 15, 1787), in The Essential Antifederalist 251, 253 (W. Allen & G. Lloyd eds., 2d ed. 2002). Moreover, the other instances of “state” in the Constitution are typically accompanied by modifiers making clear that the reference is to the several States—”each state,” “several states,” “any state,” “that state,” “particular states,” “one state,” “no state.” And the presence of the term “foreign state” in Article I and Article III shows that the word “state” did not have a single meaning in the Constitution. There are many reasons why the militia was thought to be “necessary to the security of a free state.” See 3 Story §1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal control over the militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961) (A. Hamilton). Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny. Citing Justice Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, § 1890, vol. 3 at pp. 746-747 (1833). The importance of this article will scarcely be doubted by any persons, who have duly reflected upon the subject. The militia is the natural defence of a free country against sudden foreign invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against sound policy for a free people to keep up large military establishments and standing armies in time ofanding armies in time of peace, both from the enormous expenses, with which they are attended, and the facilee means, which they afford to ambitious and unprincipled rulers, to subvert the government, or trample upon the rights of the people. The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. 497 And yet, thought this truth would seem so clear, and the importance of a well regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burthens, to be rid of all regulations. How is it practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our national bill of rights. 498 It is the establishment of unconstitutional conditions that the conflict of federal laws between 10 U.S.C. § 311. MILITIA: COMPOSITION AND CLASSES and 18 U.S.C. § 2386. REGISTRATION OF CERTAIN ORGANIZATIONS that 497

1 Tucker’s Black. Comm. App.300; Rawle on Const. ch.10, p.125; 2 Lloyd’s Debates, 219,220.

498

It would be well for Americans to reflect upon the passage in Tacitus, (Hist.IV ch.74): “Nam neque quies sine armis, neque arma sine stipendis, neque stipendia tributis, haberi queunt.” Is there any escape from a large standing army, but in a well disciplined militia? There is much wholesome instruction on this subject in 1. Black.Comm. ch.13, p.408 to 417.

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PART 14. CHALLENGING SELECTED FEDERAL LAWS citizens between the ages of 17 and 45 must surrender there First Amendment right of association as the unorganized militia and to participate in unorganized militia (civilian military) activity in order to exercise their rights to political activity. This particular unconstitutional conditions situation is the classic Catch 22 – damned if you do and damned if you don’t situation for every American between the ages of 17 and 45. See Homes Insurance Company v. Morse, 20 Wall. 445-451, 22 Lawyers ed. 365-368 (1874) (Every citizen is entitled to resort to all the courts of the country, and to invoke the protection which all the laws or all those courts may afford him. A man may not barter away his life or his freedom, or his substantial rights.); The U.S. Supreme Court used the term “unconstitutional conditions” for the first time in Doyle v. Continental Insurance Company, 94 U.S. 535 (1876) (Justice Bradley, with whom concurred Justice Swayne and Justice Miller, dissenting. “I feel obliged to dissent from the judgment of the Court in this case. The following is a brief statement of the reasons for my opinion: Though a state may have the power, if it sees fit to subject its citizens to the inconvenience, of prohibiting all foreign corporations from transacting business within its jurisdiction, it has no power to impose unconstitutional conditions upon their doing so. Total prohibition may produce suffering and may manifest a spirit of unfriendliness towards sister states, but prohibition, except upon conditions derogatory to the jurisdiction and sovereignty of the United States, is mischievous and productive of hostility and disloyalty to the general government. If a state is unwise enough to legislate the one, it has no constitutional power to legislate the other. The citizens of the United States, whether as individuals or associations, corporate or incorporate, have a constitutional right in proper cases to resort to the courts of the United States. . . .”). Cited by Frost v. Railroad Commission of State of California, 271 U.S. 583, 594, 46 S.Ct. 605, 70 L. Ed. 1101, 47 A.L.R. 457 (1926);

278 FEDERAL LAWS PART 14. CHALLENGING SELECTED

PART 15. CHALLENGING SELECTED FEDERAL REGULATIONS

Part 15. Challenging Selected Federal Regulations Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

279FEDERAL REGULATIONS PART 15. CHALLENGING SELECTED

PART 15. CHALLENGING SELECTED FEDERAL REGULATIONS

A. 46 CFR §12.05-3(a)(4) General Requirements (for Able Seamen) (a) To qualify for certification as able seaman an applicant must: (1) Be at least 18 years of age; (2) Pass the prescribed physical examination; (3) Meet the sea service or training requirements set forth in this part; (4) Pass an examination demonstrating ability as an able seaman and lifeboatman; and, (5) Speak and understand the English language as would be required in performing the general duties of able seaman and during an emergency aboard ship.

B. 46 CFR §12.05-3(b)(4) General Requirements (for Able Seamen) (b) An STCW endorsement valid for any period on or after February 1, 2002, will be issued or renewed only when the candidate for certification as an able seaman also produces satisfactory evidence, on the basis of assessment of a practical demonstration of skills and abilities, of having achieved or maintained within the previous 5 years the minimum standards of competence for the following 4 areas of basic safety: (1) Personal survival techniques as set out in table A-VI/1-1 of the STCW Code (incorporated by reference in Sec. 12.01-3). (2) Fire prevention and fire-fighting as set out in table A-VI/1-2 of the STCW Code. (3) Elementary first aid as set out in table A-VI/1-3 of the STCW Code. (4) Personal safety and social responsibilities as set out in Table A-VI/1-4 of the STCW Code. (c) An STCW endorsement valid for any period on or after February 1, 2002, will be issued or renewed only when the candidate for certification as able seamen meets the requirements of STCW Regulation II/4 and of Section A-II/4 of the STCW Code, if the candidate will be serving as a rating forming part of the navigational watch on a seagoing ship of 500 GT or more.

280 REGULATIONS PART 15. CHALLENGING SELECTED FEDERAL

PART 15. CHALLENGING SELECTED FEDERAL REGULATIONS http://www.uscg.mil/nmc/stcw_code_atoc.asp TABLE A-VI/1-4 http://www.uscg.mil/nmc/stcw_code_ach6.asp#1 Specification of minimum standard of competence in personal safety and social responsibilities COMPETENCE Comply with emergency procedures

KNOWLEDGE, UNDERSTANDING AND PROFICIENCY

METHODS FOR DEMONSTRATING COMPETENCE

CRITERIA FOR EVALUATING COMPETENCE

Types of emergency which may occur, such as collision, fire, foundering Knowledge of shipboard contingency plans for response to emergencies

Assessment of evidence obtained from approved instruction or during attendance at an approved course

Initial action on becoming aware of an emergency conforms to established emergency response procedures Information given on raising alarm is prompt, accurate, complete and clear

Assessment of evidence obtained from approved instruction or during attendance at an approved course

Safe working practices are observed and appropriate safety and protective equipment is correctly used at all times

Emergency signals and specific duties allocated to crew members in the muster list; muster stations; correct use of personal safety equipment Action to take on discovering potential emergency, including fire, collision, foundering and ingress of water into the ship Action to take on hearing emergency alarm signals Value of training and drills Knowledge of escape routes and internal communication and alarm systems Take precautions to prevent pollution of the marine environment

Importance of adhering to safe working practices at all times Safety and protective devices available to protect against potential hazards aboard ship Precautions to be taken prior to entering enclosed spaces Familiarization with international measures concerning accident prevention and occupational health*

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PART 15. CHALLENGING SELECTED FEDERAL REGULATIONS

METHODS FOR DEMONSTRATING COMPETENCE

CRITERIA FOR EVALUATING COMPETENCE

Assessment of evidence obtained from approved instruction or during attendance at an approved course

Safe working practices are observed and appropriate safety and protective equipment is correctly used at all times

Understand orders and Ability to understand orders be understood in and to communicate with relation to shipboard others in relation to shipboard duties duties

Assessment of evidence obtained from approved instruction or during attendance at an approved course

Communications are clear and effective at all times

Contribute to effective human relationships on board ship

Assessment of evidence obtained from approved instruction or during attendance at an approved course

Expected standards of work and behavior are observed at all times

COMPETENCE

KNOWLEDGE, UNDERSTANDING AND PROFICIENCY

Observe safe working Importance of adhering to safe practices working practices at all times Safety and protective devices available to protect against potential hazards aboard ship Precautions to be taken prior to entering enclosed spaces Familiarization with international measures concerning accident prevention and occupational health*

Importance of maintaining good human and working relationships aboard ship Social responsibilities; employment conditions; individual rights and obligations; dangers of drug and alcohol abuse

C. 27 C.F.R. § 478.38 Transportation of Firearms Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful purpose from any place where such person may lawfully possess and carry such firearm to any other place where such person may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s compartment the firearm or ammunition shall be contained in a locked container other than the glove compartment or console.

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PART 15. CHALLENGING SELECTED FEDERAL REGULATIONS

D. 33 CFR § 104.220 Company or Vessel Personnel with Security Duties Company and vessel personnel re-sponsible for security duties must maintain a TWIC, and must have knowledge, through training or equivalent job experience, in the following, as appropriate: (a) Knowledge of current security threats and patterns; (b) Recognition and detection of dan-gerous substances and devices; (c) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security; (d) Techniques used to circumvent security measures; (e) Crowd management and control techniques; (f) Security related communications; (g) Knowledge of emergency procedures and contingency plans; (h) Operation of security equipment and systems; (i) Testing and calibration of security equipment and systems, and their maintenance while at sea; (j) Inspection, control, and moni-toring techniques; (k) Relevant provisions of the Vessel Security Plan (VSP); (l) Methods of physical screening of persons, personal effects, baggage, cargo, and vessel stores; and (m) The meaning and the consequen-tial requirements of the different Maritime Security (MARSEC) Levels. (n) Relevant aspects of the TWIC program and how to carry them out. [USCG–2003–14749, 68 FR 39302, July 1, 2003, as amended by USCG–2006–24196, 72 FR 3580, Jan. 25, 2007]

E. 33 CFR § 104.230 Drill and exercise requirements (a) General. (1) Drills and exercises must test the proficiency of vessel personnel in assigned security duties at all Maritime Security (MARSEC) Levels and the effective implementation of the Vessel Security Plan (VSP). They must enable the Vessel Security Officer (VSO) to identify any related security deficiencies that need to be addressed. (2) A drill or exercise required by this section may be satisfied with the im-plementation of security measures re-quired by the Vessel Security Plan as the result of an increase in the MARSEC Level, provided the vessel reports attainment to the cognizant COTP (Captain of the Port). (b) Drills. (1) The VSO must ensure that at least one security drill is con-ducted at least every 3 months, except when a vessel is out of service due to repairs or seasonal suspension of operation provided that in such cases a drill must be conducted within one week of the vessel’s reactivation. Security drills may be held in conjunction with non-security drills where appropriate. (2) Drills must test individual elements of the VSP, including response to security threats and incidents. Drills should take into account the types of operations of the vessel, vessel personnel changes, and other relevant circumstances. Examples of drills include unauthorized entry to a restricted area, response to alarms, and notification of law enforcement authorities.

283FEDERAL REGULATIONS PART 15. CHALLENGING SELECTED

PART 15. CHALLENGING SELECTED FEDERAL REGULATIONS (3) If the vessel is moored at a facility on the date the facility has planned to conduct any drills, the vessel may, but is not required to, participate in the facility’s scheduled drill. (4) Drills must be conducted within one week from whenever the percentage of vessel personnel with no prior participation in a vessel security drill on that vessel exceeds 25 percent. (5) Not withstanding paragraph (b)(4) of this section, vessels not subject to SOLAS [Safety of Life at Sea] may conduct drills within 1 week from whenever the percentage of vessel personnel with no prior participation in a vessel security drill on a vessel of similar design and owned or operated by the same company exceeds 25 percent. (c) Exercises. (1) Exercises must be conducted at least once each calendar year, with no more than 18 months between exercises. (2) Exercises may be: (i) Full scale or live; (ii) Tabletop simulation or seminar; (iii) Combined with other appropriate exercises; or (iv) A combination of the elements in paragraphs (c)(2)(i) through (iii) of this section. (3) Exercises may be vessel-specific or part of a cooperative exercise program to exercise applicable facility and vessel security plans or comprehensive port exercises. (4) Each exercise must test communication and notification procedures, and elements of coordination, resource availability, and response. (5) Exercises are a full test of the security program and must include the substantial and active participation of relevant company and vessel security personnel, and may include facility security personnel and government au-thorities depending on the scope and the nature of the exercises. [USCG–2003–14749, 68 FR 39302, July 1, 2003, as amended at 68 FR 60513, Oct. 22, 2003]

284 REGULATIONS PART 15. CHALLENGING SELECTED FEDERAL

PART 16. CHALLENGING SELECTED STATE CODES, STATUTES AND MUNICIPAL CODES

Part 16. Challenging Selected State Laws Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

285 CODES, STATUTES AND MUNICIPAL CODES PART 16. CHALLENGING SELECTED STATE

PART 16. CHALLENGING SELECTED STATE CODES, STATUTES AND MUNICIPAL CODES

A. Federal Preemption of State Laws Robert Marchant, UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 8 AND 10; ARTICLE 6; AND THE 10TH AMENDMENT: FEDERAL PREEMPTION OF STATE LAW, Legislative Attorney for the Wisconsin Legislative Reference Bureau, Constitutional Highlights, May 2003, Vol. III, No. 1172.499

United States Constitution Article I, Sections 8 and 10; Article 6; and the 10th Amendment

FEDERAL PREEMPTION OF STATE LAW Wisconsin Legislative Reference Bureau May 2003, Vol. III, No. 1

History and purposes of these sections A primary concern of the framers in drafting the U.S. Constitution was to balance power between the states and the federal government. One method of striking this balance was to give the states a measure of control over the selection of federal officers and, as a result, the operation of the federal government. Thus, article I, section 2 gives the states an active role in determining electoral qualifications for purposes of electing members of the U.S. House of Representatives; article I, section 3, as originally ratified, gave each state equal representation in the U.S. Senate and required each senator to be selected by the state legislature; and article II, section 1 gives the states an active role in selecting presidential electors. Another method of striking the balance between state and federal power was to provide certain powers to the federal government, specifically divest states of certain powers, and reserve certain powers to the states. Thus, article I, section 8 lays out the specific powers, called the “enumerated powers,” of the U.S. Congress. Article 6, called the “Supremacy Clause,” provides that the U.S. Constitution, the laws of the United States, and all treaties made under the authority of the United States, are “the supreme law of the land.” In addition, article I, section 10 prohibits the states from engaging in numerous activities, including coining money, passing ex post facto laws or laws impairing the obligation of contracts, and, with certain exceptions, engaging in war. Finally, the 10th Amendment further provides that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” These provisions establish the boundaries of federal preemption of state laws. Under the Supremacy Clause, if a state law is preempted by the U.S. Constitution or a federal law or treaty, the state law cannot be enforced.

How the courts interpret these sections The courts have recognized three types of preemption: conflict preemption, express preemption, and implied preemption. In determining whether any of these types of preemption exist, the courts are guided by a presumption against preemption if the federal law in question regulates an area traditionally regulated by the states. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 716 (1985). Conflict Preemption Under the Supremacy Clause, any state law that conflicts with a federal law is preempted.Gibbons v. Ogden, 22 U.S. 1 (1824).A conflict exists if a party cannot comply with

499

http://www.legis.state.wi.us/lrb/pubs/consthi/03consthiIII051.htm

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PART 16. CHALLENGING SELECTED STATE CODES, STATUTES AND MUNICIPAL CODES both state law and federal law (for example, if state law forbids something that federal law requires). Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963).In addition, even in the absence of a direct conflict between state and federal law, a conflict exists if the state law is an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372-73 (2000). In determining whether a state law is a sufficient obstacle, the courts examine the federal statute as a whole and identify its purpose and intended effects and then determine the impact of the challenged law on congressional intent.An interesting conflict preemption case from Wisconsin illustrates this analysis. In Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (1991), Mortier challenged an ordinance of the town of Casey (described by the U.S. Supreme Court as “a small rural community located in Washburn County, Wisconsin, several miles northwest of Spooner, on the road to Superior”) after the town denied him a permit to spray pesticides on his lands.Among other things, Mortier asserted that the ordinance was an obstacle to full implementation of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which was ostensibly enacted to promote pesticide regulation that is coordinated solely at the federal and state levels. Mortier presented legislative history stating that FIFRA established a coordinated federal-state administrative system and, as described by the court, “raising the specter of gypsy moth hordes safely navigating through thousands of contradictory and ineffective municipal regulations.” But the court was more interested in the language of FIFRA itself.In upholding the town’s ordinance, the court found that FIFRA itself implied a regulatory partnership among federal, state, and local authorities. Express Preemption Express preemption exists if a federal statute explicitly states that it preempts state law (and if Congress, in passing the statute, was exercising authority granted to it under the U.S. Constitution).Although express preemption can be unambiguous, often federal statutes expressing an intent to preempt are quite complicated and difficult to apply. In addition, like any statute, a federal statute expressing an intent to preempt is subject to interpretation by administrative agencies and the courts.For example: The federal Employee Retirement Income Security Act of 1974 (ERISA) preempts all state laws “insofar as they may now or hereafter relate to any employee benefit plan,” except that state “laws . . . which regulate insurance, banking, or securities” are saved from preemption.29 U.S.C. 1144 (a) and (b) (2) (A).These statutes have spawned numerous ERISA preemption cases under which the courts determined which state laws “relate to” an employee benefit plan, which state laws “regulate” insurance, banking, or securities, and what activities qualify as insurance, banking, or securities. The Interstate Commerce Commission Termination Act preempts state laws concerning price, routes, or services of motor carriers, except that “the safety regulatory authority of a state” with respect to motor vehicles is saved from preemption. A case originating in Columbus, Wisconsin, is among the cases interpreting this provision.In City of Columbus v. Ours Garage and Wrecker Service, Inc., 536 U.S. 424 (2002), the U.S. Supreme Court held that “safety regulatory authority of a state” includes the regulatory authority of municipalities, so that municipalities are allowed to regulate tow truck safety. Implied Preemption Even without a conflict between federal and state law or an express provision for preemption, the courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive as to “occupy the field” in that area of the law. For example, the courts have held that the National Labor Relations Act (NLRA) preempts state laws directed at conduct actually or

287 CODES, STATUTES AND MUNICIPAL CODES PART 16. CHALLENGING SELECTED STATE

PART 16. CHALLENGING SELECTED STATE CODES, STATUTES AND MUNICIPAL CODES arguably prohibited or protected by the NLRA or conduct Congress intended to leave unregulated.San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 (1959); Machinists v. Wisconsin Emp. Rel. Commission, 427 U.S. 132, 140-48 (1976). Strategies for reconciling legislation with these sections Be Consistent with Federal Law A state law has a greater chance of avoiding a claim of conflict preemption if the state law complements the federal law. A legislative attorney should understand how federal law operates in the area a bill proposes to regulate. The requester may want to consider structuring the bill in a way that avoids frustrating the intended purpose of the federal law. If the legislature obviously is unaware of or disregards federal law, a court, in turn, may more easily disregard the actions of the legislature. Tailor the State Law to Avoid Express Preemption Avoid express preemption by taking advantage of exceptions provided in the federal statute. If the federal statute reserves certain subjects for state regulation, draft the bill to fit within those subjects. Also, even if the federal statutes do not specifically reserve subjects for state regulation, attempt to draft the bill so that it falls outside of the category of state laws that are expressly preempted. If the bill deals with an area of traditional state authority, the courts may be less inclined to find preemption. Use a Statement of Legislative Purpose If a federal statute expressly preempts state laws that are enacted for a specific purpose, include a statement of legislative purpose in a bill to demonstrate that the bill is enacted for a different purpose.Of course, the stated purpose must be rational, given the proposed legal effect of the bill.

B. The List of Named State Laws: A separate inspection of individual state laws will be necessary to determine their individual and collective impact upon the right to travel intrastate and interstate while lawfully armed with a handgun for the lawful purpose of personal safety and security under the protection of the Second Amendment. The inspection should not be limited to just the Titles listed below: Alabama Code Alaska Statutes Arizona Revised Statutes Arkansas Code Annotated California Penal Code Colorado Revised Statutes Connecticut General Statutes Delaware Code Annotated District of Columbia Code Florida Statutes Annotated Georgia Code Hawaii Revised Statutes Idaho Statutes Illinois Compiled Statutes Indiana Code Iowa Code Kansas Statutes Annotated

Kentucky Revised Statutes Louisiana Revised Statutes Annotated Maine Revised Statutes Maryland Code Annotated Massachusetts General Laws Michigan Compiled Laws Annotated Minnesota Statutes Annotated Mississippi Code Missouri Revised Statutes Montana Code Annotated Nebraska Revised Statutes Nevada Revised Statutes New Hampshire Rev. Statutes Annotated New Jersey Statutes Annotated New Mexico Statutes Annotated New York Consolidated Laws North Carolina General Statutes

288, STATUTES AND MUNICIPAL CODES PART 16. CHALLENGING SELECTED STATE CODES

PART 16. CHALLENGING SELECTED STATE CODES, STATUTES AND MUNICIPAL CODES North Dakota Century Code Ohio Revised Code Annotated Oklahoma Statutes Oregon Revised Statutes Pennsylvania Consolidated Statutes Rhode Island General Laws South Carolina Code Annotated South Dakota Codified Laws Tennessee Code

Texas Penal Code Utah Code Vermont Statutes Annotated Virginia Code Washington Revised Code West Virginia Code Wisconsin Statutes Wyoming Statutes

C. Online Research Sites for Open & Concealed Carry Opencarry.org “A Right Unexercised is a Right Lost” http://opencarry.org/maps.html Handgunlaw.us (Concealed Carry) http://www.handgunlaw.us/state-link.htm NRA Compendium of State Firearms Laws 2008 http://www.nraila.org/GunLaws/Federal/Read.aspx?id=74 http://www.nraila.org/media/PDFs/Compendium.pdf TSA Regulations: Traveling with Special Items: Firearms & Ammunition http://www.tsa.gov/travelers/airtravel/assistant/editorial_1666.shtm Airline Transportation of Firearms500 Travelers should be aware that New Jersey, New York and Massachusetts do not follow the regulations established for interstate transport.501 To answer questions new airline security procedures have raised for NRA members transporting firearms in their checked baggage, NRA-ILA staff contacted the Office of Security Regulation and Policy at the Transportation Security Administration (TSA). You can transport a firearm in your checked baggage subject to state and local restrictions, but you should first check with your airline or travel agent to see if firearms are permitted in checked baggage on the airline you are flying. Ask about limitations or fees that may apply at this time. NRA-ILA is working toward achieving uniformity and fairness in the rules and regulations that law-abiding gun owners face in their travels. While surely few NRA members could forget this, the Transportation Security Administration (TSA) wants to remind all travelers that attempting to bring firearms onto a plane in carry-on luggage is a serious federal violation. This is a “strict liability” offense, and TSA says violators can be, and have been, convicted regardless of criminal intent, or even if they simply forgot they possessed a firearm. TSA is obliged to enforce all the existing laws within its jurisdiction and will do so vigorously. Firearms carried as checked baggage must be unloaded, packed in a locked hard-sided container and declared to the airline at check-in. Only the passenger may have the key or combination.

500

http://www.nraila.org/GunLaws/Federal/Read.aspx?id=70

501

http://www.nraila.org/GunLaws/Federal/Read.aspx?id=73

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PART 16. CHALLENGING SELECTED STATE CODES, STATUTES AND MUNICIPAL CODES Small arms ammunition must be placed in an appropriate container: “securely packed in fiber, wood, or metal boxes, or other packaging specifically designed to carry small amounts of ammunition. “ Under TSA regulations, ammunition may be packed in the same locked container as the unloaded firearm, but airline rules may differ. Some airlines, as private businesses, have imposed additional restrictions or requirements, such as limiting the number of guns that can be transported in a single case, or providing different standards under which gun cases may or may not be exempt from excess baggage limitations. Especially for international flights, many airlines follow industry guidelines that limit ammunition to 11 lbs. per passenger. Again, NRA-ILA is working to secure fair and uniform rules. Following Congress’s mandate that all checked baggage must be screened for explosives, many travelers have become concerned by announcements that passengers should leave bags unlocked to allow hand inspection. This suggestion, the TSA made clear, does not apply to baggage containing firearms. All gun containers must still be locked after they are declared at the ticket counter. Checked bags—including those containing firearms—will then be screened for explosives by various means. Depending on the airport, methods may include high-tech “sniffers” that analyze chemical vapors, X-ray machines, trained bomb detection dogs or a combination of these systems. Not all of these methods can differentiate explosives from the gunpowder residues on a fired gun or in loaded ammunition. If the screening detects explosive materials other than those associated with ammunition, or if screeners can’t determine the exact nature of the alarm, and if all means available (such as Xrays) cannot rule out the possible presence of explosives, TSA screeners, working with airline representatives, will make every effort to contact the passenger so that the passenger can supply the key or combination to open the case, eliminating the need to break locks. Cases will not be labeled as containing firearms. That practice was outlawed almost 10 years ago. Federal law now states: “No common or contract carrier shall require or cause any label, tag, or other written notice to be placed on the outside of any package, luggage, or other container that such package, luggage, or other container contains a firearm.” [18 USC Sec. 922(e)] TSA will warn any airline that is marking cases that it is in violation of the law. As always, since some airline counter clerks may have little training or experience in these procedures, gun owners should contact the airline in advance, obtain a written copy of the airline policy from a reservation clerk or the airline’s website, and bring it to the airport in order to answer any questions that arise at check-in. For further information, see: www.tsa.gov. NRA Compendium of State Firearms Laws 2008 Compiled by NRA Institute for Legislative Action 11250 Waples Mill Road Fairfax, Virginia 22030 -------------------------------------------------------------------------------Since state laws are subject to frequent change, this chart is not to be considered legal advice or a restatement of the law. -------------------------------------------------------------------------------With over 20,000 “gun control” laws on the books in America, there are two challenges facing every gun owner. First, you owe it to yourself to become familiar with the federal laws on gun ownership. Only by knowing the laws can you avoid innocently breaking one.

290, STATUTES AND MUNICIPAL CODES PART 16. CHALLENGING SELECTED STATE CODES

PART 16. CHALLENGING SELECTED STATE CODES, STATUTES AND MUNICIPAL CODES Second, while federal legislation receives much more media attention, state legislatures and city councils make many more decisions regarding your right to own and carry firearms. NRA members and all gun owners must take extra care to be aware of anti-gun laws and ordinances at the state and local levels. The following chart lists the main provisions of state firearms laws as of the date of publication. In addition to the state provisions, the purchase, sale, and, in certain circumstances, the possession and interstate transportation of firearms are regulated by the Federal Gun Control Act of 1968 as amended by the Firearms Owners` Protection Act of 1986. Also, cities and localities may have their own gun ordinances in addition to federal and state restrictions. Details may be obtained by contacting local law enforcement authorities or by consulting your state`s firearms law digest compiled by the NRA Institute for Legislative Action. -------------------------------------------------------------------------------All fifty states have passed sportsmen`s protection laws to halt harrassment.

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PART 16. CHALLENGING SELECTED STATE CODES, STATUTES AND MUNICIPAL CODES

State Waiting Period-Number of Days Handguns Longguns

License or Permit to Purchase or Other Prerequisite Handguns Longguns

Gun Ban

Exemptions to NICS2

Alabama

--

--

--

--

--

--

--

--

Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming DC

---X1 -X1 ---X1 --

RTC RTC RTC3 -----RTC L, RTC RTC --L, RTC ------L -RTC3 -RTC L RTC ---L, RTC L, RTC RTC -----RTC --RTC RTC -----RTC L

---105 -145,6 -36 ---3 ------75 --79 -----

---105,6 -145,6 -----2 ------74,5 --X9 ---------------75 -------------

----

---------X9 -X9 -------X9 -X9 ------X9 --

---X -----X12 -X 14 --------X ------

---X 13 -X 13 ---X12 -X 14 ----------------X 13 -X 15 ------------------X

State

1,7

------X1 X1 --------X1 -X1 --7

----------X1 ----X1

7

------7

---75 -26 -----58 -2 ---

10, 11

-X9, 11 ---X9, 11 -X9 -X9 ----X 10, 11 X9 X9, 11 X9 -X9 -X --X9 -X9, 11 X9 -7

---X 11 ------X10 ----X9

9

------------------X9

Registration Handguns Longguns

7

---X --7

---------------X9

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PART 16. CHALLENGING SELECTED STATE CODES, STATUTES AND MUNICIPAL CODES

State Alabama Alaska Arizona Arkansas California Colorado Connecticut Delaware Florida Georgia Hawaii Idaho Illinois Indiana Iowa Kansas Kentucky Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi Missouri Montana Nebraska Nevada New Hampshire New Jersey New Mexico New York North Carolina North Dakota Ohio Oklahoma Oregon Pennsylvania Rhode Island South Carolina South Dakota Tennessee Texas Utah Vermont Virginia Washington West Virginia Wisconsin Wyoming DC

Record of Sale State Provision for Reported to Right-to-Carry State or Local Concealed Govt. -M -R17 -R -R X L -R X M -L -R -R X L -R X D -R -M -R -R -R -R X L X L X R -R -R X R -R -R -R -R X L -R X L X R -R 7 R -R X R X R X L X R X16 R -R -R -R -R17 -R X R -R -D -R X D

Carrying Openly Prohibited

OwnerID Cards or Licensing

Firearm Rights Constitutional Provision

State Firearms Preemption Laws

Range Protection Law

X19 --X20 X21 X22 X -X X X -X X X ----X X X19 X ------X -X -X21

----------X -X -------X --------X -X ---

X X X X -X X X X X X X X X -X X X X -X X -X X X X X X -X -X X X X X X X X X X X X X X X X X X NA

X X X X X X22 X24 X X X -X -X25 X X X X X X X24 X X X X X -X X X24 X X24,26 X X X X X X X X X X X X X X X X X X --

X X X X X X X X X X -X X X X X X X X X X X -X X X -X X X X X X X X X X X X X X X X X X X -X X X --

7,18

7

X21 -X19 X X -X20 X X21 X20 -X23 ---X

---------------X

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PART 16. CHALLENGING SELECTED STATE CODES, STATUTES AND MUNICIPAL CODES

Notes: 1. “Assault weapons” are prohibited in Connecticut, New Jersey and New York. Some local jurisdictions in Ohio also ban “assault weapons.” Hawaii prohibits “assault pistols.” California bans “assault weapons”, .50BMG caliber firearms, some .50 caliber ammunition and “unsafe handguns.” Illinois: Chicago, Evanston, Oak Park, Morton Grove, Winnetka, Wilmette, and Highland Park prohibit handguns; some cities prohibit other kinds of firearms. Maryland prohibits “assault pistols”; the sale or manufacture of any handgun manufactured after Jan. 1, 1985, that does not appear on the Handgun Roster; and the sale of any handgun manufactured after January 1, 2003 that is not equipped with an “integrated mechanical safety device.” Massachusetts: It is unlawful to sell, transfer or possess “any assault weapon or large capacity feeding device” [more than 10 rounds] that was not legally possessed on September 13, 1994 and the sale of handguns not on the Firearms Roster. The City of Boston has a separate “assault weapons” law. The District of Columbia prohibits new acquisition of handguns and any semi-automatic firearm capable of using a detachable ammunition magazine of more than 12 rounds capacity and any handgun not registered after February 5, 1977. Virginia prohibits “Street Sweeper” shotguns. (With respect to some of these laws and ordinances, individuals may retain prohibited firearms owned previously, with certain restrictions.) The sunset of the federal assault weapons ban does not affect the validity of state and local “assault weapons” bans. 2. National Instant Check System (NICS) exemption codes: RTC-Carry Permit Holders Exempt From NICS L-Holders of state licenses to possess or purchase or firearms ID cards exempt from NICS. 3. NICS exemption notes: Arkansas: Those issued on and after 4/1/99 qualify. Mississippi: Permits issued to security guards do not qualify. North Dakota: Those issued on or after 12/1/1999 qualify. 4. Maryland subjects purchases of “assault weapons” to a 7-day waiting period. 5. Waiting period for all sales. California: 10 days; sales, transfers and loans of handguns must be made through a dealer or through a sheriff`s office. Maryland: 7 days; purchasers of regulated firearms must undergo background checks performed by the State Police, either through a dealer or directly through the State Police. Rhode Island: 7 days; private sales can be made through a dealer or the seller must follow the same guidelines as a sale from a dealer. 6. The waiting period does not apply to a person holding a valid permit or license to carry a firearm. In Connecticut, a certificate of eligibility exempts the holder from the waiting period for handgun purchases; a hunting license exempts the holder for long gun purchasers. California: transfers of a long gun to a person`s parent, child or grandparent are exempt from the waiting period. 7. In certain cities or counties. 8. May be extended by police to 30 days in some circumstances. An individual not holding a driver`s license must wait 60 days. 9. Connecticut: A certificate of eligibility or a carry permit is required to obtain a handgun and a carry permit is required to transport a handgun outside your home. District of Columbia: No handgun may be possessed unless it was registered prior to Sept. 23, 1976 and re-registered by Feb. 5, 1977. A permit to purchase is required for a rifle or shotgun. Hawaii: Purchase permits are required for all firearms Illinois: A Firearm Owner`s Identification Card (FOI) is required to possess or purchase a firearm, must be issued to qualified applicants within 30 days, and is valid for 5 years. Iowa: A purchase permit is required for handguns, and is valid for one year. Massachusetts: Firearms and feeding devices for 294, STATUTES AND MUNICIPAL CODES PART 16. CHALLENGING SELECTED STATE CODES

PART 16. CHALLENGING SELECTED STATE CODES, STATUTES AND MUNICIPAL CODES

firearms are divided into classes. Depending on the class, a firearm identification card (FID) or class A license or class B license is required to possess, purchase, or carry a firearm, ammunition thereof, or firearm feeding device, or “large capacity feeding device.” Michigan: A handgun purchaser must obtain a license to purchase from local law enforcement, and within 10 days present the license and handgun to obtain a certificate of inspection. Minnesota: A handgun transfer or carrying permit, or a 7-day waiting period and handgun transfer report, is required to purchase handguns or “assault weapons” from a dealer. A permit is valid for one year, a transfer report for 30 days. Missouri: A purchase permit is required for a handgun, must be issued to qualified applicants within 7 days, and is valid for 30 days. New Jersey: Firearm owners must possess a FID, which must be issued to qualified applicants within 30 days. To purchase a handgun, a purchase permit, which must be issued within 30 days to qualified applicants and is valid for 90 days, is required. An FID is required to purchase long guns. New York: Purchase, possession and/or carrying of a handgun require a single license, which includes any restrictions made upon the bearer. New York City also requires a license for long guns. North Carolina: To purchase a handgun, a license or permit is required, which must be issued to qualified applicants within 30 days. Persons with a Right-to-Carry license are exempt. 10. A permit is required to acquire another handgun before 30 days have elapsed following the acquisition of a handgun. In Virginia, those with a permit to carry a concealed weapon are exempt from this prohibition. 11. Requires proof of safety training for purchase. California: Must have Handgun Safety Certificate receipt, which is valid for five years. Connecticut: To receive certificate of eligibility, must complete a handgun safety course approved by the Commissioner of Public Safety. Hawaii: Must have completed an approved handgun safety course. Maryland: Must complete an approved handgun safety course. Michigan: A person must correctly answer 70% of the questions on a basic safety review questionnaire in order to obtain a license to purchase. New York: Some counties require a handgun safety training course to receive a license. Rhode Island: Must receive a state-issued handgun safety card. 12. Every person arriving in Hawaii is required to register any firearm(s) brought into the State within 3 days of arrival of the person or firearm(s), whichever occurs later. Handguns purchased from licensed dealers must be registered within 5 days. 13. “Assault weapon” registration. California had two dates by which assault weapons had to be registered or possession after such date would be considered a felony: March 31, 1992 for the named make and model firearms banned in the 1989 legislation and December 31, 2000 for the firearms meeting the definition of the “assault weapons in the 1999 legislation. In Connecticut, those firearms banned by specific make and model in the 1993 law had to be registered by October 1, 1994 or possession would be considered a felony. A recent law requires registration of additional guns by October 1, 2003. In New Jersey, any “assault weapon” not registered, licensed, or rendered inoperable pursuant to a state police certificate by May 1, 1991, is considered contraband. 14. Chicago only. No handgun not already registered may be possessed. 15. New York City only. 16. Purchasers of handguns who do not possess a permit to carry a pistol must file an application for purchase, which will be retained by the chief of police or sheriff for one year. However state law prohibits the establishment of a centralized registry of gun owners. 17. Vermont and Alaska law respect your right to carry without a permit. Alaska also has a permit to carry system to establish reciprocity with other states. 295 CODES, STATUTES AND MUNICIPAL CODES PART 16. CHALLENGING SELECTED STATE

PART 16. CHALLENGING SELECTED STATE CODES, STATUTES AND MUNICIPAL CODES

18. A person with a concealed handgun license may transport a loaded handgun in a vehicle if it is in a holster. 19. Carrying a handgun openly in a motor vehicle requires a license. 20. Arkansas prohibits carrying a firearm “with a purpose to employ it as a weapon against a person.” Tennessee prohibits carrying “with the intent to go armed.” Vermont prohibits carrying a firearm “with the intent or purpose of injuring another.” 21. Loaded. 22. Municipalities may prohibit open carry in government buildings if such prohibition is clearly posted. 23. Local jurisdictions may opt of the prohibition. 24. Preemption through judicial ruling. Local regulation may be instituted in Massachusetts if ratified by the legislature. 25. Except Gary and East Chicago and local laws enacted before January 1994. 26. Preemption only applies to handguns. Concealed carry codes: R: Right-to-Carry “Shall issue” or less restrictive discretionary permit system (Ala., Conn.) (See also note #21.) M: Reasonable May Issue; the state has a permissive may issue law, but the authorities recognize the right to keep and bear arms. L: Right-to-Carry Limited by local authority`s discretion over permit issuance. D: Right-to-Carry Denied, no permit system exists; concealed carry is prohibited.

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PART 17. CHALLENGING SELECTED MARTIME CONVENTIONS AND TREATIES

Part 17. Challenging Selected Maritime Conventions and Treaties Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

297 PART 17. CHALLENGING SELECTED MARTIME CONVENTIONS AND TREATIES

PART 17. CHALLENGING SELECTED MARTIME CONVENTIONS AND TREATIES

A. PIRACY AND ARMED ROBBERY AGAINST SHIPS: Guidance to Shipowners and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed Robbery Against Ships (International Maritime Organization’s Maritime Safety Committee (MSC) Circular 623 Rev. No. 3, dated May 29, 2002) Firearms ¶45. The carrying and use of firearms for personal protection or protection of a ship is strongly discouraged. ¶46. Carriage of arms on board ship may encourage attackers to carry firearms thereby escalating an already dangerous situation, and any firearms on board may themselves become an attractive target for an attacker. The use of firearms requires special training and aptitudes and the risk of accidents with firearms carried on board ship is great. In some jurisdictions, killing a national may have unforeseen consequences even for a person who believes he has acted in self defense.

B. Maritime Labour Convention, 2006 502 “Considering that, given the global nature of the shipping industry, seafarers need special protection, and Mindful also of the international standards on ship safety, human security and quality ship management in the INTERNATIONAL CONVENTION FOR THE SAFETY OF LIFE AT SEA, 1974, as amended, the Convention on the International Regulations for Preventing Collisions at Sea, 1972, as amended, and the seafarer training and competency requirements in the INTERNATIONAL CONVENTION ON STANDARDS OF TRAINING, CERTIFICATION AND WATCHKEEPING FOR SEAFARERS, 1978, as amended, . . .” “Regulation 2.7 – Manning levels Purpose: To ensure that seafarers work on board ships with sufficient personnel for the safe, efficient and secure operation of the ship 1. Each Member shall require that all ships that fly its flag have a sufficient number of seafarers employed on board to ensure that ships are operated safely, efficiently and with due regard to security under all conditions,503 taking into account concerns about seafarer fatigue and the particular nature and conditions of the voyage.” “Standard A2.7 – Manning levels 1. Each Member shall require that all ships that fly its flag have a sufficient number of seafarers on board to ensure that ships are operated safely, efficiently and with due regard to security. Every ship shall be manned by a crew that is adequate, in terms of size and qualifications, to

502

Not ratified by the United States. Ratified by Bahamas Feb. 11, 2008; Marshal Islands, Sep. 25, 2007; Liberia, June 7, 2006. 503

“Security under all conditions” includes the right of armed self-defense against attacks by pirates under the Second Amendment. The right of armed self-defense must be construed as an absolute right albeit subject to “positive” regulation with the intent to accommodate that right as much as possible and as is reasonable under maritime law. This includes the right of the American seafarer to bring his own firearms (handgun and/or rifle) for safe keeping under the master’s control to be issued as safety and security conditions dictate.

298 CONVENTIONS AND TREATIES PART 17. CHALLENGING SELECTED MARTIME

PART 17. CHALLENGING SELECTED MARTIME CONVENTIONS AND TREATIES ensure the safety and security of the ship and its personnel, under all operating conditions, 504 in accordance with the minimum safe manning document or an equivalent issued by the competent authority, and to comply with the standards of this Convention.

C. International Maritime Organization (IMO) Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation, 1988.505 Concern about unlawful acts which threaten the safety of ships and the security of their passengers and crews grew during the 1980s, with reports of crews being kidnapped, ships being hi-jacked, deliberately run aground or blown up by explosives. Passengers were threatened and sometimes killed. In November 1985 the problem was considered by IMO’s 14th Assembly and a proposal by the United States that measures to prevent such unlawful acts should be developed by IMO was supported.

504

“Under all operating conditions” include operating in congested international waters with known pirate activities. Any seaman assigned security watch in known pirate waters must be issued the appropriate firearms for personal safety and security and for the security of the ship and its crew. 505

PROTOCOL OF 2005 TO THE CONVENTION FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF MARITIME NAVIGATION (the “2005 SUA Protocol”) and the PROTOCOL OF 2005 TO THE PROTOCOL FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF FIXED PLATFORMS LOCATED ON THE CONTINENTAL SHELF (the “2005 Fixed Platforms Protocol”), adopted by the International Maritime Organization Diplomatic Conference in London October 14, 2005, and signed by the United States of America February 17, 2006 (Treaty Doc. 110-8); submitted to Senate October 1, 2007. Not yet ratified.

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PART 17. CHALLENGING SELECTED MARTIME CONVENTIONS AND TREATIES Resolution A.584(14) The Assembly adopted resolution A.584(14) Measures to prevent unlawful acts which threaten the safety of ships and the security of their passengers and crew which notes “with great concern the danger to passengers and crews resulting from the increasing number of incidents involving piracy, armed robbery and other unlawful acts against or on board ships, including small craft, both at anchor and under way.” The IMO Assembly directed the Maritime Safety Committee to develop, on a priority basis, detailed and practical technical measures, including both shoreside and shipboard measures, to ensure the security of passengers and crews on board ships. The measures were to take into account the work of the International Civil Aviation Organization (ICAO) in the development of standards and recommended practices for airport and aircraft security. In December 1985 further support came from the United Nations General Assembly which called upon IMO “to study the problem of terrorism aboard or against ships with a view to making recommendations on appropriate measures.” MSC Circular The MSC in 1986 issued a Circular (MSC/Circ.443) on Measures to prevent unlawful acts against passengers and crews on board ships - which states that Governments, port authorities, administrations, shipowners, shipmasters and crews should take appropriate measures to prevent unlawful acts which may threaten passengers and crews. The Circular gives guidelines on measures that can be taken - with application to passenger ships engaged on international voyages of 24 hours or more and port facilities which service them. In November 1986 the Governments of Austria, Egypt and Italy proposed that IMO prepare a convention on the subject of unlawful acts against the safety of maritime navigation ‘to provide for a comprehensive suppression of unlawful acts committed against the safety of maritime navigation which endanger innocent human lives, jeopardize the safety of persons and property, seriously affect the operation of maritime services and thus are of grave concern to the international community as a whole.” Convention aims The proposal was supported, and in March 1988 a conference was held in Rome which adopted the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation. The main purpose of the convention is to ensure that appropriate action is taken against persons committing unlawful acts against ships. These include the seizure of ships by force; acts of violence against persons on board ships; and the placing of devices on board a ship which are likely to destroy or damage it.

D. Chapter XI-2 - Special Measures to Enhance Maritime Security of The International Convention for Safety of Life at Sea (1974 as amended) (SOLAS) The Chapter was adopted in December 2002 and entered into force on July 1, 2004. Regulation XI-2/3 of the new chapter enshrines the INTERNATIONAL SHIP AND PORT FACILITIES SECURITY CODE (ISPS Code). Part A of the Code is mandatory and part B contains guidance as to how best to comply with the mandatory requirements. The regulation requires Administrations to set security levels and ensure the provision of security level information to ships entitled to fly their flag. Prior to entering a port, or whilst in a port, within the territory of a Contracting

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PART 17. CHALLENGING SELECTED MARTIME CONVENTIONS AND TREATIES Government, a ship shall comply with the requirements for the security level set by that Contracting Government, if that security level is higher than the security level set by the Administration for that ship. Regulation XI-2/8 confirms the role of the Master in exercising his professional judgement over decisions necessary to maintain the security of the ship. It says he shall not be constrained by the Company, the charterer or any other person in this respect. Regulation XI-2/5 requires all ships to be provided with a ship security alert system, according to a strict timetable that will see most vessels fitted by 2004 and the remainder by 2006. When activated the ship security alert system shall initiate and transmit a ship-to-shore security alert to a competent authority designated by the Administration, identifying the ship, its location and indicating that the security of the ship is under threat or it has been compromised. The system will not raise any alarm on-board the ship. The ship security alert system shall be capable of being activated from the navigation bridge and in at least one other location. Regulation XI-2/6 covers requirements for port facilities, providing among other things for Contracting Governments to ensure that port facility security assessments are carried out and that port facility security plans are developed, implemented and reviewed in accordance with the ISPS Code. Other regulations in this chapter cover the provision of information to IMO, the control of ships in port, (including measures such as the delay, detention, restriction of operations including movement within the port, or expulsion of a ship from port), and the specific responsibility of Companies.

E. International Ship and Port Facility Security Code (ISPS Code)506 In essence, the Code takes the approach that ensuring the security of ships and port facilities is basically a risk management activity and that to determine what security measures are appropriate, an assessment of the risks must be made in each particular case. The purpose of the Code is to provide a standardized, consistent framework for evaluating risk, enabling governments to offset changes in threat with changes in vulnerability for ships and port facilities. This risk management concept will be embodied in the Code through a number of minimum functional security requirements for ships and port facilities. For ships, these requirements will include: · ship security plans · ship security officers · company security officers · certain onboard equipment For port facilities, the requirements will include: · port facility security plans · port facility security officers · certain security equipment

506

http://www.imo.org/Newsroom/mainframe.asp?topic_id=583&doc_id=2689#code

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PART 17. CHALLENGING SELECTED MARTIME CONVENTIONS AND TREATIES In addition the requirements for ships and for port facilities include: · monitoring and controlling access · monitoring the activities of people and cargo · ensuring security communications are readily available

F. Chapter II: Master-Deck Department of the International Convention on Standards of Training, Certification and Watchkeeping for Seafarers, 1978 The 1978 STCW Convention was the first to establish basic requirements on training, certification and watchkeeping for seafarers on an international level. Previously the standards of training, certification and watchkeeping of officers and ratings were established by individual governments, usually without reference to practices in other countries. As a result standards and procedures varied widely, even though shipping is the most international of all industries. The Convention prescribes minimum standards relating to training, certification and watchkeeping for seafarers which countries are obliged to meet or exceed. The Convention did not deal with manning levels: IMO provisions in this area are covered by a regulation in Chapter V of the International Convention for the Safety of Life at Sea (SOLAS), 1974, whose requirements are backed up by resolution A.890(21) Principles of safe manning, adopted by the IMO Assembly in 1999, as amended by Resolution A.955(23) Amendments to the Principles of Safe Manning (Resolution A.890(21)). The Articles of the Convention include requirements relating to issues surrounding certification and port State control. One especially important feature of the Convention is that it applies to ships of non-party States when visiting ports of States which are Parties to the Convention. Article X requires Parties to apply the control measures to ships of all flags to the extent necessary to ensure that no more favourable treatment is given to ships entitled to fly the flag of a State which is not a Party than is given to ships entitled to fly the flag of a State that is a Party. The difficulties which could arise for ships of States which are not Parties to the Convention is one reason why the Convention has received such wide acceptance. By December 2000, the STCW Convention had 135 Parties, representing 97.53 percent of world shipping tonnage. Chapter II: Master-Deck Department The Chapter establishes basic principles to be observed in keeping a navigational watch, covering such matters as watch arrangements, fitness for duty, navigation, navigational equipment, navigational duties and responsibilities, the duties of the look-out, navigation with a pilot on board and protection of the marine environment. The regulations include mandatory minimum requirements for certificating masters and chief mates; for certification of officers in charge of a navigational watch; and for certification of deck ratings forming part of a navigational watch. The regulations also include basic principles to be observed in keeping watch in port and mandatory minimum requirements for a watch in port on ships carrying hazardous cargo. The 1995 amendments, adopted by a Conference, represented a major revision of the Convention, in response to a recognized need to bring the Convention up to date and to respond to critics who pointed out the many vague phrases, such as “to the satisfaction of the Administration”, which resulted in different interpretations being made.

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PART 17. CHALLENGING SELECTED MARTIME CONVENTIONS AND TREATIES The 2006 amendments (Adopted May 2006; Entered into force January 1, 2008) add new minimum mandatory training and certification requirements for persons to be designated as ship security officers (SSOs). The amendments to the STCW Convention and to parts A and B of the STCW Code include Requirements for the issue of certificates of proficiency for Ship Security Officers; Specifications of minimum standards of proficiency for ship security officers; and Guidance regarding training for Ship Security Officers. Further amendments to part A of the STCW Code add additional training requirements for the launching and recovery of fast rescue boats. The amendments have been prepared in response to reports of injuries to seafarers in numerous incidents involving the launching and recovery of fast rescue boats in adverse weather conditions.

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PART 17. CHALLENGING SELECTED MARTIME CONVENTIONS AND TREATIES

304 CONVENTIONS AND TREATIES PART 17. CHALLENGING SELECTED MARTIME

PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES

Part 18. Racketeering and Treason Against the Constitution by Federal Judges Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

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PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES

A. The RICO Act Includes the United States Government If the State of Illinois can be held as a RICO Enterprise then most assuredly under the equal justice under the law doctrine and the Tenth Amendment the United States can be held as a RICO Enterprise in regard to the Second Amendment. Citing the Brief of the United States in United States v. Lawrence E. Warner & George H. Ryan, Sr., 7th Circuit, Nos. 06-3517 and 06-3528 IV. The RICO Charge Was Legally Sound and the Instructions were Correct. B. Analysis 1. The State of Illinois Is a Proper RICO Enterprise. Count One charged appellants with racketeering conspiracy, in violation of 18 U.S.C. § 1962(d). R110:Ct1,¶8(JA240). It alleged that the defendants, acting through Ryan’s governmental offices, used the State of Illinois as the “enterprise” for their illegal activity. R110: Ct1, ¶¶ 1, 2, 5, 8 (JA228, 233, 239, 240). Although the statute defines “enterprise” to include “any legal entity” (18 U.S.C. § 1961(4)), Ryan argues that states cannot be enterprises for purposes of the RICO statute. Br56-58. Ryan’s argument overlooks well-established authority, in this Circuit and others, holding “enterprise” is broadly construed to include governmental and public entities. More than twenty-five years ago, in United States v. Grzywacz, 603 F.2d 682, 685-87 (7th Cir. 1979), this Court held that a public entity (in that case, the Madison, Illinois police department) could be charged as the “enterprise” for racketeering activity. This Court has reaffirmed that the racketeering statute should be construed broadly and that public and governmental entities may be charged as “enterprises.” United States v. Hocking, 860 F.2d 769, 778 (7th Cir. 1988) (state Department of Treasury), overruled on other grounds, United States v. Levy, 955 F.2d 1098, 1103n.5 (7th Cir. 1992); United States v. Conn, 769 F.2d 420, 42425 (7th Cir. 1985) (Cook County Circuit Court); United States v. Kovic, 684 F.2d 512, 516 (7th Cir. 1982) (Chicago Police Department); United States v. Lee Stoller Enterprises, Inc., 652 F.2d 1313, 1316-19 (7th Cir. 1981) (Sheriff’s Office of Madison County, Illinois). See also United States v. Genova, 187 F. Supp. 2d 1015, 1028-29 (N.D. Ill. 2002) (Calumet City), rev’d on other grounds, 333 F.3d 750 (7th Cir. 2003); United States v. Lobue, 751 F.Supp. 748, 755 (N.D. Ill. 1990) (Chicago Heights). This Court’s interpretation of “enterprise” as including public and governmental entities is consistent with that of other circuits. Lee Stoller Enterprises, 652 F.2d at 1318n.9 (collecting cases). See also United States v. Turkette, 452 U.S. 576, 580 (1981) (“[t]here is no restriction upon the associations embraced by the definition” of “enterprise”). Faced with this overwhelming precedent, appellants rely on United States v. Mandel, 415 F. Supp. 997, 1022 (D. Md. 1976), a district court decision pre-dating virtually all of the circuit court decisions on the issue. Br57. In Mandel, the court concluded that the State of Maryland could not be a valid enterprise. Id. at 1022. But Mandel did not differentiate between the naming of sovereign States and the naming of any other public entities as enterprises; by its reasoning, no public entities could be “enterprises”under the racketeering statute. Mandel has been discredited by all courts that have considered the issue, including the Fourth Circuit, which includes the District of Maryland. See United States v. Angelilli, 660 F.2d 23, 33 n.10 (2d Cir. 1981); United States v. Long, 651 F.2d 239, 241 (4th Cir.1981); United States v. Clark, 646 F.2d 1259, 1261-67 (8th Cir. 1981). In arguing that states may not be considered “legal entities” under the racketeering statute, appellants miscast a straightforward issue of statutory interpretation into an issue of federalism. Br58. Their reliance on cases dealing with federalism or state sovereignty, such as Alden v. Maine, 527 U.S. 706, 748 (1999), is misplaced. Nothing in RICO precludes the states from PART 18. RACKETEERING AND TREASON AGAINST306 THE CONSTITUTION BY FEDERAL JUDGES

PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES addressing corruption or infringes in any way on the legitimate functioning of state government or on its sovereignty. Appellants overlook the fundamental principle that the racketeering enterprise, whether it be a legitimate business, governmental entity or association in fact, is merely the vehicle through which defendants conduct alleged racketeering activities. See United States v. McDade, 28 F.3d 283, 296 (3d Cir.1995) (proper to charge Congressional committee as enterprise, since “major purpose of the RICO statute was to protect legitimate enterprises by attacking and removing those who had infiltrated them for unlawful purposes”) (citations omitted). To define a governmental unit as an enterprise does not impugn its employees or subjects, nor disadvantage the entity. Ryan argues that Congress did not intend for sovereign states to be enterprises because RICO authorizes statutory remedies like “dissolution or reorganization.” Br57. That argument was rejected by this Court in Grzywacz, 603 F.2d at 685-86, and further repudiated by the Supreme Court in Turkette, 452 U.S. at 585, which noted: Even if one or more of the civil remedies might be inapplicable to a particular illegitimate enterprise, this fact would not serve to limit the enterprise concept. Congress has provided civil remedies for use when the circumstances so warrant. It is untenable to argue that their existence limits the scope of the criminal provisions. The statute does not mandate the imposition of any particular remedy, but rather, depending on the situation, offers an array of possible remedies. Governmental units may be enterprises under the RICO statute. The indictment properly charged the State of Illinois as being the racketeering enterprise used by the defendants.

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PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES

B. The Civil RICO Act Includes the United Nations (1). Michael Goldsmith and Vicki Rinne, CIVIL RICO, FOREIGN DEFENDANTS, AND “ET”, 73 Minn. L. Rev. 1023, (April, 1989) II. JURISDICTIONAL BARRIERS TO EXTRATERRITORIAL RICO SUITS Although courts have held that RICO applies to foreign as well as to United States defendants, no extraterritorial RICO case has resulted in a judgment.507 Jurisdictional requirements have raised serious obstacles.508 To accept an extraterritorial RICO case, a court must have prescriptive, adjudicative, and enforcement jurisdiction.509 Although lack of adjudicative 507

Plaintiffs have filed approximately one dozen extraterritorial RICO cases in United States courts, four of which were dismissed for failure to prove jurisdiction. See Michelson v. Merrill Lynch, Pierce, Fenner & Smith, 709 F. Supp. 1270, 1285 (S.D.N.Y. 1989) (finding no jurisdiction over foreign defendants); Huang v. Sentinel Gov’t Sec., 657 F. Supp. 485, 491-92 (S.D.N.Y. 1987) (same); Ancilla Domini Health Servs. v. Communications Assocs., No. 84-C-2771a (N.D. Ill. Nov. 5, 1985) (LEXIS, Genfed library, Dist file) (same); Nordic Bank PLC v. Trend Group, L., 619 F. Supp. 542, 564 (S.D.N.Y. 1985) (same); Soltex Polymer Corp. v. Fortex Indus., 590 F. Supp. 1453, 1460 (E.D.N.Y. 1984) (same), aff’d, 832 F.2d 1325 (2d Cir. 1987). In another five cases, plaintiffs established jurisdiction, but their RICO claims were stayed or dismissed. See Republic of Phil. v. Marcos, 818 F.2d 1473, 1490 (9th Cir. 1987) (holding RICO claims barred by act of state and political question doctrines); S.A. Mineracao da Trinidade-Samitri v. Utah Int’l, Inc., 745 F.2d 190, 191 (2d Cir. 1984) (staying “nonarbitrable” RICO claims pending arbitration of other claims); FMC Corp. v. Varonos, No. 87-C-9640 (N.D. Ill. Oct. 20, 1988) (LEXIS, Genfed library, Dist file) (finding RICO claims insufficient); Selman v. American Sports Underwriters, No. 84-0099-C (W.D. Va. Oct. 4, 1988) (LEXIS, Genfed library, Dist file) (same); Chisholm & Col. v. Bank of Jamaica, 643 F. Supp. 1393, 1404-05 (S.D. Fla. 1986) (same). Courts have maintained RICO causes of action against foreign defendants in only four cases. See In re All Terrain Vehicles Litig., No. 88-237 (E.D. Pa. Feb. 23, 1989) (LEXIS, Genfed library, Dist file) (denying foreign defendant’s motion to dismiss); Chamarac Properties, N.V. v. Pike, Fed. Sec. L. Rep. (CCH) 93,761 (S.D.N.Y. 1988) (same); North Carolina v. Alexander & Alexander Servs., 680 F. Supp. 746, 750 (E.D.N.C.), certification for immediate appeal denied, 685 F. Supp. 114, 117 (E.D.N.C. 1988) (same); Shulton, Inc. v. Optel Corp., 1987-1 Trade Cas. (CCH) 67,436 (D.N.J. 1986) (same). 508

See, e.g., Michelson v. Merrill Lynch, Pierce, Fenner & Smith, 709 F. Supp. 1270, 1285 (S.D.N.Y. 1989) (finding no jurisdiction over foreign defendants because foreign service of process lacking); Huang v. Sentinel Gov’t Sec., 657 F. Supp. 485, 491-92 (S.D.N.Y. 1987) (finding no jurisdiction over foreign defendants because minimum contacts lacking); Ancilla Domini Health Servs. v. Communications Assocs., No. 84nC-2771 (N.D. Ill. Nov. 5, 1985) (LEXIS, Genfed library, Dist file) (finding no jurisdiction over foreign defendants because personal jurisdiction lacking); Nordic Bank PLC v. Trend Group, L., 619 F. Supp. 542, 564 (S.D.N.Y. 1985) (denying jurisdiction over foreign defendants because foreign service of process lacking); Soltex Polymer Corp. v. Fortex Indus., 590 F. Supp. 1453, 1460 (E.D.N.Y. 1984) (same), aff’d, 832 F.2d 1325 (2d Cir. 1987). 509

Traditionally, discussions on international law divide jurisdiction into the right 73 to prescribe rules and the right to enforce them. J. Sweeney, C. Oliver & N. Leech, CASES AND MATERIALS ON THE INTERNATIONAL LEGAL SYSTEM 89 (2d ed. 1981). The RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES considers jurisdiction in three categories: (a) jurisdiction to prescribe, i.e., the authority of a state to make its law applicable to persons or activities; (b) jurisdiction to adjudicate, i.e., the authority of a state to subject particular persons or things to its judicial process; and (c) jurisdiction to enforce, i.e., the authority of a state to use the resources of government to induce or compel compliance with its law. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES Part IV, introductory note (1988) [hereinafter RESTATEMENT]. The Restatement recognizes that adjudication deals primarily with judicial function while enforcement often encompasses executive or administrative action in addition to the judicial process. Id.

PART 18. RACKETEERING AND TREASON AGAINST308 THE CONSTITUTION BY FEDERAL JUDGES

PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES jurisdiction appears to be the most frequent basis for rejecting an extraterritorial case, each jurisdictional predicate merits careful consideration. A. JURISDICTION TO PRESCRIBE Jurisdiction to prescribe, also known as subject matter jurisdiction, 510 provides judicial authority over the topic of a dispute. 511 Under international law, prescriptive authority may derive from territorial, nationality, passive personality, universality, or protective principles. 512 These principles often work together in practice,513 but are best understood when treated separately. Citing Footnote 59 in Michael Goldsmith and Vicki Rinne, CIVIL RICO, FOREIGN DEFENDANTS, AND “ET”, 73 Minn. L. Rev. 1023, at 1039 (April, 1989):514 Plaintiffs have filed approximately one dozen extraterritorial RICO cases in United States courts, four of which were dismissed for failure to prove jurisdiction. See Michelson v. Merrill Lynch, Pierce, Fenner & Smith, 709 F. Supp. 1270, 1285 (S.D.N.Y. 1989) (finding no jurisdiction over foreign defendants); Huang v. Sentinel Gov’t Sec., 657 F. Supp. 485, 491-92 (S.D.N.Y. 1987) (same); Ancilla Domini Health Servs. v. Communications Assocs., No. 84-C-2771a (N.D. Ill. Nov. 5, 1985) (LEXIS, Genfed library, Dist file) (same); Nordic Bank PLC v. Trend Group, L., 619 F. Supp. 542, 564 (S.D.N.Y. 1985) (same); Soltex Polymer Corp. v. Fortex Indus., 590 F. Supp. 1453, 1460 (E.D.N.Y. 1984) (same), aff’d, 832 F.2d 1325 (2d Cir. 1987). In another five cases, plaintiffs established jurisdiction, but their RICO claims were stayed or dismissed. See Republic of Phil. v. Marcos, 818 F.2d 1473, 1490 (9th Cir. 1987) (holding RICO claims barred by act of state and political question doctrines); S.A. Mineracao da TrinidadeSamitri v. Utah Int’l, Inc., 745 F.2d 190, 191 (2d Cir. 1984) (staying “non-arbitrable” RICO 510

The RESTATEMENT uses the term jurisdiction to prescribe to avoid confusion with the term subject matter jurisdiction as used in a national context. Jurisdiction to prescribe addresses transnational activity. RESTATEMENT, supra note 73, § 401 comment c; see also Moessle, THE BASIC STRUCTURE OF THE UNITED STATES SECURITIES LAW ENFORCEMENT IN INTERNATIONAL CASES, 16 Cal. W. Int’l l.J. 1, 7 (1986) (stating that jurisdiction to prescribe is preferable term); see generally Lowenfeld, ANTITRUST, INTEREST ANALYSIS, AND THE NEW CONFLICT OF LAWS (Book Review), 95 Harv. L. Rev. 1976, 1980-84 (1982) (reviewing J. Atwood & K. Brewster, ANTITRUST AND A MERICAN BUSINESS ABROAD (2d ed. 1981)). 511

See supra note [86]. Prescriptive jurisdiction occurs when a nation, by legislative action, executive decree, administrative regulation, or judicial decision, declares a principle or legal norm. J. Sweeney, C. Oliver & N. Leech, supra note [86], at 89. In practice, a court considering an extraterritorial case first must ask if national law applies to the conduct in dispute. 512

United States v. King, 552 F.2d 833, 851 (9th Cir. 1976), cert. denied, 430 U.S. 966 (1977); Rocha v. United States, 288 F.2d 545, 549 n.4 (9th Cir.), cert. denied, 366 U.S. 948 (1961); 1 NAT. COMM’N ON THE REFORM OF FEDERAL CRIMINAL LAWS, Working Papers 72-73 (1970); see also United States v. Pizzarusso, 388 F.2d 8, 10 (2d Cir.) (stating that “International law has recognized, in varying degrees, five bases of jurisdiction” (citing HARVARD RESEARCH IN INTERNATIONAL LAW, JURISDICTION WITH RESPECT TO CRIME, 29 Am. J. Int’l l. Spec. Supp. 435, 445 (1935))), cert. denied, 392 U.S. 936 (1968); RESTATEMENT, supra note 73, § 402 (same). Some scholars recognize as a sixth basis for extraterritorial jurisdiction crimes under international law, including war crimes and crimes against humanity. See Attorney General of Isr. v. Eichmann, 36 I.L.R. 277 (Isr. Sup. Ct. 1962). Most authorities, however, treat this category as encompassed by the universality principle. Cf. I. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 305 (3d ed. 1979) (noting distinction between universality and crimes under international law). 513

The passive personality principle, for example, is similar to the protective principle, and the nationality, territorial, and protective principles also interrelate. I. Brownlie, supra note [89], at 306; see, e.g., King, 552 F.2d at 851-52 (finding jurisdiction established under both nationality and territorial principles); United States v. Daniszewski, 380 F. Supp. 113, 115-16 (E.D.N.Y. 1974) (finding jurisdiction established under nationality principle and indicating court was prepared to rely on protective principle as well). 514

Full download available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=890366

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PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES claims pending arbitration of other claims); FMC Corp. v. Varonos, No. 87-C-9640 (N.D. Ill. Oct. 20, 1988) (LEXIS, Genfed library, Dist file) (finding RICO claims insufficient); Selman v. American Sports Underwriters, No. 84-0099-C (W.D. Va. Oct. 4, 1988) (LEXIS, Genfed library, Dist file) (same); Chisholm & Col. v. Bank of Jamaica, 643 F. Supp. 1393, 1404-05 (S.D. Fla. 1986) (same). Courts have maintained RICO causes of action against foreign defendants in only four cases. See In re All Terrain Vehicles Litig., No. 88-237 (E.D. Pa. Feb. 23, 1989) (LEXIS, Genfed library, Dist file) (denying foreign defendant’s motion to dismiss); Chamarac Properties, N.V. v. Pike, Fed. Sec. L. Rep. (CCH) 93,761 (S.D.N.Y. 1988) (same); North Carolina v. Alexander & Alexander Servs., 680 F. Supp. 746, 750 (E.D.N.C.), certification for immediate appeal denied, 685 F. Supp. 114, 117 (E.D.N.C. 1988) (same); Shulton, Inc. v. Optel Corp., 1987-1 Trade Cas. (CCH) 67,436 (D.N.J. 1986) (same). Although courts have held that RICO applies to foreign as well as to United States defendants, no extraterritorial RICO case 70 has resulted in a judgment. 71 Jurisdictional requirements have raised serious obstacles. 72 To accept an extraterritorial RICO case, a court must have prescriptive, adjudicative, and enforcement jurisdiction. 73 Although lack of adjudicative jurisdiction appears to be the most frequent basis for rejecting an extraterritorial case, each jurisdictional predicate merits careful consideration.515 # No extraterritorial RICO case has resulted in a judgment. # Plaintiffs have filed approximately one dozen extraterritorial RICO cases in United States courts, four of which were dismissed for failure to prove jurisdiction. # In another five cases, plaintiffs established jurisdiction, but their RICO claims were stayed or dismissed. (1) See Republic of Phil. v. Marcos, 818 F.2d 1473, 1490 (9th Cir. 1987) (holding RICO claims barred by act of state and political question doctrines); (2) S.A. Mineracao da Trinidade-Samitri v. Utah Int’l, Inc., 745 F.2d 190, 191 (2d Cir. 1984) (staying “non-arbitrable” RICO claims pending arbitration of other claims); (3) FMC Corp. v. Varonos, No. 87-C-9640 (N.D. Ill. Oct. 20, 1988) (LEXIS, Genfed library, Dist file) (finding RICO claims insufficient); (4) Selman v. American Sports Underwriters, No. 84-0099-C (W.D. Va. Oct. 4, 1988) (LEXIS, Genfed library, Dist file) (same); (5) Chisholm & Col. v. Bank of Jamaica, 643 F. Supp. 1393, 1404-05 (S.D. Fla. 1986) (same). # Courts have maintained RICO causes of action against foreign defendants in only four cases. (1) See In re All Terrain Vehicles Litig., No. 88-237 (E.D. Pa. Feb. 23, 1989) (LEXIS, Genfed library, Dist file) (denying foreign defendant’s motion to dismiss); (2) Chamarac Properties, N.V. v. Pike, Fed. Sec. L. Rep. (CCH) 93,761 (S.D.N.Y. 1988) (same); (3) North Carolina v. Alexander & Alexander Servs., 680 F. Supp. 746, 750 (E.D.N.C.), certification for immediate appeal denied, 685 F. Supp. 114, 117 (E.D.N.C. 1988) (same); (4) Shulton, Inc. v. Optel Corp., 1987-1 Trade Cas. (CCH) 67,436 (D.N.J. 1986) (same).

515

Id. at 1042-1043

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PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES

C. The United Nations, the United States and the States are Racketeering Enterprises Over the Second Amendment (1). Definition of Enterprise under the RICO Act. 516 The term “enterprise” includes “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). For a full discussion of the enterprise’s required relationship to interstate and foreign commerce, see [U.S. Department of Justice, RACKETEER INFLUENCED & CORRUPT ORGANIZATIONS: A MANUAL FOR FEDERAL PROSECUTORS, Fourth Edition, July 2000,] Section III(C)(3)) [Effect on Interstate Commerce]. It is now settled that the term “enterprise” encompasses both legitimate and illegitimate enterprises. United States v. Turkette, 452 U.S. 576 (1981).517 Prosecution under RICO, however, does not require proof that either the defendant or the enterprise was connected to organized crime.518

(2). Types of Enterprises. 519 The courts have given a broad reading to the term “enterprise.” Noting that Congress mandated a liberal construction of the RICO statute in order to effectuate its remedial purposes and pointing to the expansive use of

516

U.S. Department of Justice, RACKETEER INFLUENCED & CORRUPT ORGANIZATIONS: A MANUAL FOR FEDERAL PROSECUTORS, Fourth Edition, July 2000, (pp. 37-38). Available online at:, http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/rico.pdf. 517

See also United States v. Doherty, 867 F.2d 47, 68 (1st Cir. 1989); United States v. Blackwood, 768F.2d 131 (7th Cir.), cert. denied, 474 U.S. 1020 (1985); United States v. Ruggiero, 726 F.2d 913, 923 (2d Cir.), cert. denied, 469 U.S. 831 (1984); United States v. Cauble, 706 F.2d 1322, 1330 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984); United States v. Lemm, 680 F.2d 1193, 1198 (8th Cir. 1982), cert. denied, 459 U.S. 1110 (1983); United States v. Bledsoe, 674 F.2d 647, 662 (8th Cir. 1982), cert. denied, 459 U.S. 1040 (1983); United States v. Thevis, 665 F.2d 616, 626 (5th Cir.), cert. denied, 456 U.S. 1008 (1982); United States v. Griffin, 660 F.2d 996, 999 (4th Cir. 1981), cert. denied, 454 U.S. 1156 (1982); United States v. Martino, 648 F.2d 367, 380-81 (5th Cir. 1981), rev’d in part on other grounds, 681 F.2d 952 (5th Cir.) (en banc), cert. denied, 456 U.S. 949 (1982); United States v. Clark, 646 F.2d 1259, 1267 n.7 (8th Cir. 1981); United States v. Sutton, 642 F.2d 1001, 1006-09 (6th Cir. 1980) (en banc), cert. denied, 453 U.S. 912 (1981); United States v. Errico, 635 F.2d 152, 155 (2d Cir. 1980), cert. denied, 453 U.S. 911 (1981); United States v. Provenzano, 620 F.2d 985, 992-93 (3d Cir.), cert. denied, 449 U.S. 899 (1980); United States v. Aleman, 609 F.2d 298, 304-05 (7th Cir. 1979), cert. denied, 445 U.S. 946 (1980); United States v. Rone, 598 F.2d 564, 568-69 (9th Cir. 1979), cert. denied, 445 U.S. 946 (1980); United States v. Swiderski, 593 F.2d 1246, 1248-49 (D.C. Cir. 1978), cert. denied, 441 U.S. 993 (1979). An enterprise, however, cannot be an inanimate object such as a bank account, Guidry v. Bank of LaPlace, 954 F.2d 278, 283 (5th Cir. 1992), or an apartment building, Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir. 1989). 518

See National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 260 (1994); H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 245, 248-49 (1989); United States v. Aucoin, 964 F.2d 1492, 1496 (5th Cir.), cert. denied, 506 U.S. 1023 (1992); United States v. Ruiz, 905 F.2d 499, 502 (1st Cir. 1990); Plains Resources, Inc. v. Gable, 782 F.2d 883, 886-87 (10th Cir. 1986); United States v. Hunt, 749 F.2d 1078, 1088 (4th Cir. 1984), cert. denied, 472 U.S. 1018 (1985); United States v. Romano, 736 F.2d 1432, 1441 (11th Cir. 1985); United States v. Cauble, 706 F.2d 1322, 1330 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984). See also United States v. Gottesman, 724 F.2d 1517, 1521 (11th Cir. 1984); Moss v. Morgan Stanley, Inc., 719 F.2d 5, 21 (2d Cir. 1983), cert. denied, 465 U.S. 1025 (1984); Bennett v. Berg, 685 F.2d 1053, 1063 (8th Cir.), aff’d in part, rev’d in part, 710 F.2d 1361 (8th Cir. 1982), cert. denied, 464 U.S. 1008 (1983); United States v. Bledsoe, 674 F.2d 647, 663 (8th Cir. 1982), cert. denied, 459 U.S. 1040 (1984); United States v. Uni Oil, Inc., 646 F.2d 946, 953 (5th Cir. 1981), cert. denied, 455 U.S. 908 (1982); United States v. Aleman, 609 F.2d 298, 303 (7th Cir. 1979), cert. denied, 423 U.S. 946 (1980); United States v. Campanale, 518 F. 1975), cert. denied, 423 U.S. 1050 (1976). 519

U.S. Department of Justice, RACKETEER INFLUENCED & CORRUPT ORGANIZATIONS: A MANUAL FOR FEDERAL PROSECUTORS, Fourth Edition, July 2000, (pp. 39-46). Available online at:, http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/rico.pdf.

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PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES the word “includes” in the statutory definition of the term, courts have held that the list of enumerated entities in Section 1961(4) is not exhaustive but merely illustrative.520 Thus public and governmental entities521 as well as private entities may constitute a RICO “enterprise”,522 including commercial entities such as corporations 523 or groups of corporations524 (both foreign and domestic), 525 partnerships,526 sole proprietorships 527 and cooperatives;528 benevolent and non-profit organizations such as unions and union benefit funds,529 schools, 530 and 520

See United States v. London, 66 F.3d 1243-44 (1st Cir. 1995) (association-in-fact enterprise consisting of bar and check cashing business), cert. denied, 116 S. Ct. 1542 (1996); United States v. Aimone, 715 F.2d 822, 828 (3d Cir. 1983), cert. denied, 468 U.S. 1217 (1984); United States v. Thevis, 665 F.2d 616, 625 (5th Cir.), cert. denied, 456 U.S. 1008 (1982); United States v. Angelilli, 660 F.2d 23, 31 (2d Cir. 1981), cert. denied, 455 U.S. 945 (1982). See also United States v. Huber, 603 F.2d 387, 394 (2d Cir. 1979), cert. denied, 445 U.S. 927 (1980); United States v. Perkins, 596 F. Supp. 528, 530-31 (E.D. Pa.), aff’d, 749 F.2d 28 (3d Cir. 1984), cert. denied, 471 U.S. 1015 (1985). Cf. United States v. Turkette, 452 U.S. 576, 580 (1981) (“[t]here is no restriction upon the associations embraced by the definition [of enterprise]”). 521

Plaintiff’s emphasis.

522

See United States v. Lee Stoller Enterprise, 652 F.2d 1313, 1318 (7th Cir.), cert. denied, 517 U.S. 1155 (1981); United States v. Clark, 646 F.2d 1259, 1263 (8th Cir. 1981); United States v. Frumento, 563 F.2d 1083, 1090-92 (3d Cir. 1977), cert. denied, 434 U.S. 1072 (1978); see also United States v. Brown, 555 F.2d 407, 415-16 (5th Cir. 1977), cert. denied, 435 U.S. 904 (1978); United States v. Barber, 476 F. Supp. 182 (S.D. W. Va. 1979), aff’d, 668 F.2d 778 (4th Cir.), cert. denied, 459 U.S. 829 (1982).

523

See United States v. Kravitz, 738 F.2d 102, 113 (3d Cir. 1984) (health care delivery corporation), cert. denied, 470 U.S. 1052 (1985); United States v. Hartley, 678 F.2d 961, 988 n.43 (11th Cir. 1982) (corporation producing seafood products), cert. denied, 459 U.S. 1170 (1983); United States v. Webster, 639 F.2d 174, 184 n.4 (4th Cir.) (tavern and liquor store), cert. denied, 454 U.S. 857 (1981); United States v. Zemek, 634 F.2d 1159, 1167 (9th Cir. 1980) (taverns), cert. denied, 450 U.S. 916 (1981); United States v. Weisman, 624 F.2d 1118, 1120 (2d Cir.) (theater), cert. denied, 449 U.S. 871 (1980); United States v. Swiderski, 593 F.2d 1246, 1248 (D.C. Cir. 1978) (restaurant serving as front for narcotics trafficking), cert. denied, 441 U.S. 933 (1979); United States v. Brown, 583 F.2d 659, 661 (3d Cir. 1978) (auto dealership), cert. denied, 440 U.S. 909 (1979); United States v. Forsythe, 560 F.2d 1127, 1135-36 (3d Cir. 1977) (bail bond agency). 524

See Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 262-64 (2d Cir. 1995) (defendant and two corporations constituted the RICO enterprise), cert. denied, 516 U.S. 1114 (1996); United States v. Kirk, 844 F.2d 660, 664 (9th Cir.)(group of corporations), cert. denied, 488 U.S. 890 (1988); United States v. Huber, 603 F.2d 387, 394 (2d Cir. 1979) (group of corporations can be an enterprise within meaning of RICO), cert. denied, 445 U.S. 927 (1980); United States v. Perkins, 596 F. Supp. 528, 530-31 (E.D. Pa.), aff’d, 749 F.2d 28 (3d Cir. 1984) (group of corporations set up by defendant to defraud government constituted a RICO enterprise), cert. denied, 471 U.S. 1015 (1985); United States v. Pryba, 674 F. Supp. 1504, 1508 (E.D. Va. 1987) (enterprise could consist of group of individuals and corporations); Snider v. Lone Star Art Trading Co., 659 F. Supp. 1249, 1253 (E.D. Mich. 1987)(combination of individuals and corporations meets enterprise definition); Trak Microcomputer Corp. v. Wearne Bros., 628 F. Supp. 1089, 1094-95 (N.D. Ill. 1985) (group of corporations can constitute RICO enterprise). 525

See United States v. Parness, 503 F.2d 430, 439 (2d Cir. 1974) (foreign corporation can constitute a RICO enterprise), cert. denied, 419 U.S. 1105 (1975).

526

See United States v. Cauble, 706 F.2d 1322, 1331 (5th Cir. 1983) (limited partnership), cert. denied, 465 U.S. 1005 (1984); United States v. Zang, 703 F.2d 1186, 1194 (10th Cir. 1982) (partnership), cert. denied, 464 U.S. 828 (1983); United States v. Griffin, 660 F.2d 996, 999 (4th Cir. 1981) (partnership may be enterprise), cert. denied, 454 U.S. 1156 (1982); Eisenberg v. Gagnon, 564 F. Supp. 1347, 1353 (E.D. Pa. 1983) (limited partnership); United States v. Jannotti, 501 F. Supp. 1182, 1185-86 (E.D. Pa. 1980), rev’d on other grounds, 673 F.2d 578 (3d Cir.) (en banc) (law firm operated through payment of bribes), cert. denied, 457 U.S. 1106 (1982). 527

See United States v. Benny, 786 F.2d 1410, 1414-15 49 (9th Cir.), cert. denied, 479 U.S. 1017 (1986); McCullough v. Suter, 757 F.2d 142 (7th Cir. 1985); United States v. Tille, 729 F.2d 615, 618 (9th Cir.), cert. denied, 471 U.S. 1064 (1984); United States v. Melton, 689 F.2d 679, 685 (7th Cir. 1982); State Farm Fire & Casualty Co. v. Estate of Caton, 540 F. Supp. 673, 676 (N.D. Ind. 1982). However, the sole proprietorship is not favored as a RICO enterprise. See cases infra at pp. 73-75. 528

See United States v. Bledsoe, 674 F.2d 647, 660 (8th Cir. 1982) (dicta), cert. denied, 459 U.S. 1040 (1983).

PART 18. RACKETEERING AND TREASON AGAINST312 THE CONSTITUTION BY FEDERAL JUDGES

PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES political associations;531 governmental units such as the offices of governors, state and congressional legislators,532 courts and judicial offices, 533 police departments and sheriffs’ offices,534 county prosecutors’ 529

See United States v. Norton, 867 F.2d 1354, 1359 (11th Cir. 1989) (the Laborers International Union of North America, its subordinate local unions and its affiliated employee benefit funds); United States v. Robilotto, 828 F.2d 940, 947 (2d Cir. 1987) (Local 294 of the International Brotherhood of Teamsters), cert. denied, 484 U.S. 1011 (1988); United States v. Provenzano, 688 F.2d 194, 199-200 (3d Cir.) (Local 560 of the Teamsters Union), cert. denied, 459 U.S. 1071 (1982); United States v. LeRoy, 687 F.2d 610, 616-17 1982) (Local 214 of Laborers International Union of North America), cert. denied, 459 U.S. 1174 (1983); United States v. Scotto, 641 F.2d 47, 51, 54 (2d Cir. 1980) (Local 1814 of the International Longshoremen’s Association), cert. denied, 452 U.S. 961 (1981); United States v. Rubin, 559 F.2d 975, 989 (5th Cir. 1977) (unions and employees welfare benefit plans), vacated and remanded, 439 U.S. 810 (1978), aff’d in part and rev’d in part on other grounds, 591 F.2d 278 (5th Cir.), cert. denied, 444 U.S. 864 (1979); United States v. Kaye, 556 F.2d 855, 861-62 (7th Cir.) (Local 714 of the International Brotherhood of Teamsters), cert. denied, 434 U.S. 921 (1977); United States v. Campanale, 518 F.2d 352, 355 (9th Cir. 1975) (applying RICO without discussion to Local 626 of the International Brotherhood of Teamsters), cert. denied, 423 U.S. 1050 (1976); United States v. Local 560, International Brotherhood of Teamsters, 581 F. Supp. 279, 335 (D.N.J. 1984), aff’d, 780 F.2d 267 (3d Cir. 1985) (Local 560 and its benefit fund), cert. denied, 476 U.S. 1140 (1986); United States v. Field, 432 F. Supp. 55, 57-58 (S.D.N.Y. 1977) (International Longshoremen’s Association), aff’d, 578 F.2d 1371 (2d Cir.), cert. denied, 439 U.S. 801 (1978); United States v. Ladmer, 429 F. Supp. 1231 (E.D.N.Y. 1977) (applying RICO without discussion to the International Production Service & Sales Employees Union, but dismissing action for failure to establish a pattern of racketeering activity); United States v. Stofsky, 409 F. Supp. 609 (S.D.N.Y. 1973) (applying RICO to a union representing workers in New York’s fur garment manufacturing industry), aff’d, 527 F.2d 237 (2d Cir. 1975), cert. denied, 429 U.S. 819 (1976). 530

See United States v. Weatherspoon, 581 F.2d 595, 597-98 (7th Cir. 1978) (beauty college approved for veterans’ vocational training by the Veterans Administration).

531

See Hudson v. LaRouche, 579 F. Supp. 623, 628 (S.D.N.Y. 1983) (unincorporated national political association affiliated with a political candidate). 532

See United States v. Blandford, 33 F.3d 685, 703 (6th Cir.) (Office of the Representative for House District 14 together with individuals employed therein), cert. denied, 514 U.S. 1095 (1995); United States v. McDade, 28 F.3d 283, 295-96 (3d Cir.) (Congressman McDade and his Congressional offices in Washington, D.C. and in the 10th Congressional District of Pennsylvania), cert. cert. denied, 514 U.S. 1003 (1995); United States v. Freeman, 6 F.3d 586, 596-97 (9th Cir. 1993)(Offices of the 49th Assembly District), cert. denied, 511 U.S. 1077 (1994); United States v. Thompson, 685 F.2d 993 (6th Cir. 1982) (en banc) (applying RICO to the Tennessee Governor’s Office, but questioning the wisdom of not defining the enterprise in the indictment as a “group of individuals associated in fact that made use of the office of Governor of the State of Tennessee”), cert. denied, 459 U.S. 1072 (1983); United States v. Long, 651 F.2d 239, 241 (4th Cir.) (office of Senator in the South Carolina legislature), cert. denied, 454 U.S. 896 (1981); United States v. Sisk, 476 F. Supp. 1061, 106263 (M.D. Tenn. 1979), aff’d, 629 F.2d 1174 (6th Cir. 1980) (Tennessee Governor’s Office), cert. denied, 449 U.S. 1084 (1981); see also United States v. Gillock, 445 U.S. 360, 373 n.11 (1979) (“[o]f course, even a member of Congress would not be immune under the federal Speech or Debate Clause from prosecution for the acts which form the basis of the . . . [RICO] charges here”). But see United States v. Mandel, 415 F. Supp. 997, 1020-22 (D. Md. 1976), rev’d on other grounds, 591 F.2d 1347 (4th Cir.), aff’d on reh’g, 602 F.2d 653 (4th Cir. 1979) (en banc) (state of Maryland not an “enterprise” for RICO purposes), cert. denied, 445 U.S. 961 (1980). Mandel, however, has been discredited by all courts that have considered the issue, including the Fourth Circuit. See, e.g., United States v. Angelilli, 660 F.2d 23, 33 n.10 (2d Cir. 1981), cert. denied, 455 U.S. 945 (1982); United States v. Long, 651 F.2d 239, 241 (4th Cir.), cert. denied, 454 U.S. 896 (1981); United States v. Clark, 646 F.2d 1259, 1261-67 (8th Cir. 1981); United States v. Altomare, 625 F.2d 5, 7 n.7 (4th Cir. 1980); United States v. Baker, 617 F.2d 1060, 1061 (4th Cir. 1980); see also United States v. Powell, No. 87 CR 872-3 (N.D. Ill. February 27, 1988) (City of Chicago proper enterprise for purposes of RICO); State of New York v. O’Hara, 652 F. Supp. 1049 (W.D.N.Y. 1987) (in civil RICO suit, City of Niagara Falls proper enterprise); Commonwealth v. Cianfrani, 600 F. Supp. 1364 (E.D. Pa. 1985) (Pennsylvania Senate). 533

See United States v. Grubb, 11 F.3d 426, 438 (4th Cir. 1993)(55 Office of the 7th Judicial Circuit); United States v. Conn, 769 F.2d 420, 424-25 (7th Cir. 1985) (Cook County Circuit Court); United States v. Blackwood, 768 F.2d 131, 137-38 (7th Cir.) (Cook County Circuit Court), cert. denied, 474 U.S. 1020 (1985); United States v. Angelilli, 660 F.2d 23, 30-34 (2d Cir. 1981) (New York City Civil Court), cert. denied, 455 U.S. 945 (1982); United States v. Sutherland, 656 F.2d 1181 (5th Cir. 1981) (applying RICO without discussion to Municipal Court of El Paso, Texas), cert. denied, 455 U.S. 949 (1982); United

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PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES offices,535 tax bureaus,536 fire departments,537 and executive departments and agencies.538 An enterprise may also be comprised of a combination of entities539 called an association-in-fact.540

States v. Stratton, 649 F.2d 1066, 1074-75 (5th Cir. 1981) (judicial circuit); United States v. Bacheler, 611 F.2d 443, 450 (3d Cir. 1979) (Philadelphia Traffic Court); United States v. Joseph, 526 F. Supp. 504, 507 (E.D. Pa. 1981) (Office of the Clerk of Courts of Lehigh County, Pennsylvania); United States v. Vignola, 464 F. Supp. 1091 (E.D. Pa.), aff’d, 605 F.2d 1199 (3d Cir. 1979) (same), cert. denied, 444 U.S. 1072 (1980). 534

See United States v. DePeri, 778 F.2d 963 (3d Cir. 1985) (Philadelphia Police Department), cert. denied, 475 U.S. 1109 (1986); United States v. Alonso, 740 F.2d 862, 870 (11th Cir. 1984) (Dade County Public Safety Department, Homicide Section), cert. denied, 469 U.S. 1166 (1985); United States v. Ambrose, 740 F.2d 505, 512 (7th Cir. 1984) (Chicago Police Department), cert. denied, 472 U.S. 1017 (1985); United States v. Davis, 707 F.2d 880, 882-83 (6th Cir. 1983) (Sheriff’s Office of Mahoning County, Ohio); United States v. Lee Stoller Enterprise, Inc., 652 F.2d 1313, 1316-19 (7th Cir.) (Sheriff’s Office of Madison County, Illinois), cert. denied, 454 U.S. 1082 (1981); United States v. Bright, 630 F.2d 804, 829 (5th Cir. 1980) (Sheriff’s Office of DeSoto County, Mississippi); United States v. Karas, 624 F.2d 500, 504 (4th Cir. 1980) (Office of County Law Enforcement Officials), cert. denied, 449 U.S. 1078 (1981); United States v. Baker, 617 F.2d 1060, 1061 (4th Cir. 1980) (Sheriff’s Department of Wilson County, North Carolina); United States v. Grzywacz, 603 F.2d 682, 685-87 (7th Cir. 1979) (Police Department of Madison, Illinois), cert. denied, 446 U.S. 935 (1980); United States v. Burnsed, 566 F.2d 882 (4th Cir. 1977) (applying RICO without discussion to the Vice Squad of the Charleston, South Carolina Police Department), cert. denied, 434 U.S. 1077 (1978); United States v. Brown, 555 F.2d 407, 415-16 (5th Cir. 1977) (Macon, Georgia Municipal Police Department), cert. denied, 435 U.S. 904 (1978); United States v. Cryan, 490 F. Supp. 1234, 123944 (D.N.J.) (applying RICO to Sheriff’s Office of Essex County, New Jersey, but limiting RICO culpability to only those defendants who actually committed or authorized the acts charged in the indictment), aff’d, 636 F.2d 1211 (3d Cir. 1980). 535

See United States v. Goot, 894 F.2d 231, 239 (7th Cir.), cert. denied, 498 U.S. 811 (1990); United States v. Yonan, 800 F.2d 167-68 (7th Cir. 1986) (Cook County State’s Attorney’s Office), cert. denied, 479 U.S. 1055 (1987); United States v. Altomare, 625 F.2d 5, 7 n.7 (4th Cir. 1980) (Office of Prosecuting Attorney of Hancock County, West Virginia). 536

See United States v. Burns, 683 58 F.2d 1056, 1059 n.2 (7th Cir. 1982) (Cook County, Illinois, Board of Tax Appeals), cert. denied, 459 U.S. 1173 (1983); United States v. Frumento, 563 F.2d 1083, 1089-92 (3d Cir. 1977) (Pennsylvania Department of Revenue’s Bureau of Cigarette and Beverage Taxes), cert. denied, 434 U.S. 1072 (1978). 537

See United States v. Balzano, 916 F.2d 1273, 1290 (7th Cir. 1990)(Chicago Fire Department).

538

See United States v. Hocking, 860 F.2d 769, 778 (8th Cir. 1988) (Illinois Department of Transportation); United States v. Dozier, 672 F.2d 531, 543 and n.8 (5th Cir.) (Louisiana Department of Agriculture), cert. denied, 459 U.S. 943 (1982); United States v. Angelilli, 660 F.2d 23, 33 n.10 (2d Cir. 1981), cert. denied, 455 U.S. 945 (1982); United States v. Long, 651 F.2d 239, 241 (4th Cir.), cert. denied, 454 U.S. 896 (1981); United States v. Clark, 646 F.2d 1259, 1261-67 (8th Cir. 1981); United States v. Altomare, 625 F.2d 5, 7 n.7 (4th Cir. 1980); United States v. Baker, 617 F.2d 1060, 1061 (4th Cir. 1980); United States v. Davis, 576 F.2d 1065, 1067 (3d Cir.) (warden of county prison), cert. denied, 439 U.S. 836 (1978); State of Maryland v. Buzz Berg Wrecking Co., 496 F. Supp. 245, 247-48 (D. Md. 1980) (Construction and Building Inspection Division of the Department of Housing and Community Development for the City of Baltimore); United States v. Barber, 476 F. Supp. 182, 191 (S.D. W. Va. 1979) (West Virginia Alcohol Beverage Control Commission). 539

See United States v. Parise, 159 F.3d 790, 794-95 (3d Cir. 1998) (enterprise consisted of four organizations); United States v. London, 66 F.3d 1227, 1243-44 (1st Cir. 1995)(two or more legal entities), cert. denied, 511 U.S. 1155 (1996); United States v. Console, 13 F.3d 641, 652 (3d Cir. 1993)(law firm and medical practice), cert. denied, 511 U.S. 1076 (1994); United States v. Blinder, 10 F.3d 1468, 1473 (9th Cir. 1993)(six corporations); United States v. Butler, 954 F.2d 114, 120 (2d Cir. 1992)(broad enterprise consisting of Local 200, the pension funds, and Local 362); United States v. Collins, 927 F.2d 605 (6th Cir.)(Table)(group of corporations), cert. denied, 502 U.S. 858 (1991); United States v. Masters, 924 F.2d 1362, 1366 (7th Cir.)(law firm, two police departments, and three individuals who are defendants), cert. denied, 500 U.S. 919 (1991); United States v. Stolfi, 889 F.2d 378, 379-80 (2d Cir. 1989) (local union and its welfare benefit fund); United States v. Feldman, 853 F.2d 648, 655-59 (9th Cir. 1988) (association of five corporations and two individuals, including the defendant), cert. denied, 489 U.S. 1030 (1989); United States v. Perholtz, 842 F.2d 343, 352-54 (D.C. Cir.) (group of individuals, corporations, and partnerships), cert. denied, 488 U.S. 821 (1988); United States v. Pryba, 674 F. Supp. 1504, 1508 (E.D. Va. 1987) (enterprise could consist of group of individuals and corporations); Snider v. Lone Star Art Trading Co., 659 F. Supp. 1249, 1253 (E.D. Mich. 1987) (group of individuals and corporations proper enterprise); United States v.

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PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES

D. The Private Attorney General and the Human Rights Defender The PRIVATE ATTORNEY GENERAL, is defined by Black’s Law Dictionary, Sixth Edition, as the concept [ ] that a successful private party plaintiff is entitled to recovery of his legal expenses, including attorney fees, if he has advanced the policy inherent in public interest legislation on behalf of a significant class of persons. Dasher v. Housing Authority of City of Atlanta, Ga., D.C.Ga., 64 F.R.D. 720, 722. See also EQUAL ACCESS TO JUSTICE ACT. Citing the conclusion in Pamela S. Karlan, DISARMING THE PRIVATE ATTORNEY GENERAL, Illinois Law Review, Vol. 2003, No.1, 183-210:541 The overriding theme that links together the Supreme Court’s decisions on a range of issues— from the scope of Eleventh Amendment immunity to the scope of congressional power under section 5 of the Fourteenth Amendment, and from when to find implied rights of action to when to award attorney’s fees—can be stated quite simply: The current Court is creating an evergreater regulation-remedy gap. It has left Congress free to regulate a wide range of subjects, but it is engaged in a form of court stripping that reduces the possibilities for judicial enforcement of statutory commands. Thus, I would argue that a “virulent variety of freewheeling interventionism lies at the core of [the Court’s] devices of restraint.”542 The Congress and Supreme Court of an earlier era constructed the institution of the private attorney general because they recognized that, without private attorneys general, it would be impossible to realize some of our most fundamental constitutional and political values. The current Court seems bent on dismantling this centerpiece of the Second Reconstruction. For all its invocations of Marbury’s declaration that it “is emphatically the province and the duty of the judicial department to say what the law is,”543179 the current Court seems to have forgotten Marbury’s equally important acknowledgment—that “the government of the United States has been emphatically termed a government of laws, and not of men,” but “will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal

Dellacroce, 625 F. Supp. 1387, 1390 (E.D.N.Y. 1986) (two “crews” of the Gambino Crime Family and their supervisor sufficient RICO enterprise); United States v. Aimone, 715 F.2d 822, 826 (3d Cir. 1983) (enterprise may be comprised of a combination of “illegal” entities and a group of individuals associated in fact), cert. denied, 468 U.S. 1217 (1984); United States v. Thevis, 665 F.2d 616, 625-26 (5th Cir.), cert. denied, 456 U.S. 1008 (1982); United States v. Huber, 603 F.2d 387, 393-94 (2d Cir. 1979), cert. denied, 445 U.S. 927 (1980); United States v. Campanale, 518 F.2d 352, 357 n.11 (9th Cir. 1975) (enterprise composed of two corporations and a union), cert. denied, 423 U.S. 1050 (1976). 540

See United States v. Turkette, 452 U.S. 576, 581 (1981); United States v. Nabors, 45 F.3d 238 (8th Cir. 1995) (association-in-fact consisting of the defendants); United States v. Stefan, 784 F.2d 1093, 1103 (11th Cir.) (enterprise consisting of a group of individuals associated in fact sufficient where individuals identified by name), cert. denied, 479 U.S. 1009 (1986); United States v. Mitchell, 777 F.2d 248, 259 (5th Cir. 1985) (group of individuals associated together for the purpose of importing marijuana sufficient for RICO enterprise), cert. denied, 476 U.S. 1184 (1986); United States v. Local 560, Int’l Brotherhood of Teamsters, 780 F.2d 267, 273 (3d Cir. 1985) (“Provenzano group,” group of individuals, could constitute enterprise), cert. denied, 476 U.S. 1140 (1986); United States v. Santoro, 647 F. Supp. 153, 176 (E.D.N.Y. 1986) (“Luchese Family” alleged as association-infact enterprise), aff’d, 880 F.2d 1319 (2d Cir. 1989); Van Dorn Co. v. Howington, 623 F. Supp. 1548, 1554 (N.D. Ohio 1985) (unnamed association of defendants could constitute proper enterprise). 541

http://home.law.uiuc.edu/lrev/publications/2000s/2003/2003_1/Karlan.pdf

542

Gerald Gunther, THE SUBTLE VICES OF THE “PASSIVE VIRTUES”—A COMMENT ON PRINCIPLE AND EXPEDIENCY IN JUDICIAL REVIEW, 64 Colum. L. Rev. 1, at 25 (1964). The quoted text summarizes Gunther’s assessment of Alexander M. Bickel’s article, The Passive Virtues. 543

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

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PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES right.”544 When the law furnishes no remedy because the Supreme Court has cast out the remedies that the political branches have tried to provide, then the courts threaten to become the most dangerous branch “to the political rights of the Constitution,”545181 and not the least. The United States’ PRIVATE ATTORNEY GENERAL DOCTRINE and the United Nations’ HUMAN RIGHTS DEFENDER serve essentially the same public policies inherent in public interest legislation on behalf of a significant class of persons that are in the interest of justice. A PRIVATE ATTORNEY GENERAL may appear in court “ex rel.” on behalf of the “United States” or the “People of the United States of America.” Both statutes [RICO and Clayton Act] bring to bear the pressure of [“PRIVATE ATTORNEYS GENERAL”] on a serious national problem for which public prosecutorial resources are deemed inadequate; the mechanism chosen to reach the objective in both the Clayton Act and RICO is the carrot of treble damages. Agency Holding Corp. v. Malley-Duff & Associates, 107 S.Ct. 2759, 483 U.S. 143, 151 (1987). Citing Rotella v. Wood et al., 528 U.S. 549, 557-558 (2000): “. . . [T]here is a clear legislative record of congressional reliance on the Clayton Act when RICO was under consideration, see Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 489 (1985), and we have recognized before that the Clayton Act’s injury-focused accrual rule was well established by the time civil RICO was enacted. Klehr , 521 U. S., at 189 . In rejecting a significantly different focus under RICO, therefore, we are honoring an analogy that Congress itself accepted and relied upon, and one that promotes the objectives of civil RICO as readily as it furthers the objects of the Clayton Act. Both statutes share a common congressional objective of encouraging civil litigation to supplement Government efforts to deter and penalize the respectively prohibited practices. The object of civil RICO is thus not merely to compensate victims but to turn them into prosecutors, [“PRIVATE ATTORNEYS GENERAL,”] dedicated to eliminating racketeering activity. 546 Id.,547 at 187 (citing Malley-Duff , 483 U. S., at 151 ) (civil RICO specifically has a “further purpose [of] encouraging potential private plaintiffs diligently to investigate”). The provision for treble damages is accordingly justified by the expected benefit of suppressing racketeering activity, an object pursued the sooner the better. It would, accordingly, be strange to provide an unusually long basic limitations period that could only have the effect of postponing whatever public benefit civil RICO might realize. The Clayton Act avoids any such policy conflict by its accrual rule that “generally, a cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiff’s business,” Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U. S., at 338 , and the Clayton Act analogy reflects the clear intent of Congress to reject a potentially longer basic rule under RICO.

544

Marbury, 5 U.S. at 163.

545

THE FEDERALIST NO. 78, supra note 3, at 465.

546

This objective of encouraging prompt litigation to combat racketeering is the most obvious answer to Rotella’s argument that the injury and pattern discovery rule should be adopted because “RICO is to be read broadly” and “‘liberally construed to effectuate its remedial purposes,’” Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 497-498 (1985) (quoting Pub. L. 91-452, § 904(a), 84 Stat. 947). 547

Emphasis mine.

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PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES

E. Disarming the Private Attorney General DISARMING THE PRIVATE ATTORNEY GENERAL Pamela S. Karlan* Stanford Law School Research Paper No. 36 (2002) http://ssrn.com/abstract_id=308220 The two great Alexanders of constitutional law – Hamilton and Bickel – saw courts as essentially reactive institutions. The judiciary, Hamilton wrote in the Federalist Paper that gave Bickel’s book its title, is “the least dangerous branch” because it can “take no active resolution whatever ... and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”548 Bickel applied this general proposition even to the fundamental constitutional principle of equality expressed in Brown v. Board of Education,549 suggesting that the Supreme Court might properly decline to grant an immediate remedy because realistic enforcement would require enlisting Congress and the President.550 The Alexandrian view depends on a model of adjudication in which the courts announce a rule and then rely on the political branches to obey or enforce it.551 But Marbury shows that the converse can also be true. There is an important class of cases in which the legislature and the executive must depend on the judiciary for the efficacy of their judgments. In these cases, it is judicial refusals to act that pose a danger “to the political rights of the Constitution.”552 Marbury itself recognized this threat, when Chief Justice Marshall observed that the government of the United States could no longer be “termed a government of law, and not of men .... if the laws furnish no remedy for a vested legal right.”553 As the Court stated last Term, although there are “vital limits on judicial authority,” when “contending parties invoke the process of the courts, ... it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront.”554 What makes that declaration so ironic is the context. As in Marbury, an aspirant for federal office sought the Court’s assistance. But unlike William Marbury, George W. Bush managed to procure a sweeping remedial order from the Supreme Court without ever identifying any vested legal right that the remedy he requested would actually vindicate.555 Moreover, the same Court that provided George W. Bush with an

548

See The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed. 1961); this passage appears as the epigraph to Bickel’s book. 549

347 U.S. 483 (1954).

550

See Alexander M. Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 247-54, 267-72. (1962).

551

Even when it comes to straightforward constitutional adjudication, however, as Gerald Gunther explained in a classic article, there can be substantial costs to a court’s refusal to address properly presented claims. See Gerald Gunther, THE SUBTLE VICES OF THE “PASSIVE VIRTUES” – A COMMENT ON PRINCIPLE AND EXPEDIENCY IN JUDICIAL REVIEW, 64 Colum. L. Rev. 1 (1964). 552

THE FEDERALIST, No. 78, supra note 3, at 465.

553

5 U.S. at 163.

554

Bush v. Gore, 531 U.S. 98, 111 (per curiam).

555

I explore this point at substantial length in Pamela S. Karlan, Nothing Personal:

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PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES unprecedented remedy in the service of an expansive, if evanescent, equal protection claim has shown itself strikingly resistant to judicial remedies for civil-rights plaintiffs raising more traditional equality-based claims. There are two ways a court might retrench on civil rights protections. First, a court might explicitly redefine an underlying right in narrower terms. For example, in City of Mobile v. Bolden,556 the Supreme Court redefined the preexisting jurisprudence of racial vote dilution, embodied in such decisions as White v. Regester,557 to forbid only those electoral structures that were adopted or maintained for racially discriminatory purposes, rather than prohibiting also those that had a disparate impact on minority voters.558 Similarly, in Patterson v. McLean Credit Union,559 the Supreme Court offered a cramped interpretation of 42 U.S.C. § 1981’s protection against racial discrimination in the right “to make and enforce contracts.”560 It held that section 1981 “extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment,”561 and thus that racial harassment of employees was not actionable under section 1981. The other approach, which is more insidious, is for the court to leave the formal right in place, but to constrict the remedial machinery. At best, this will dilute the value of the right, since some violations will go unremedied. At worst, it may signal potential wrongdoers that they can infringe the right with impunity. Remedial abridgment is a pervasive tool of the contemporary Supreme Court. In criminal procedure, for example, Carol Steiker has shown that while the Burger and Rehnquist Courts have left in place most of the Warren Court’s restrictions on police activity, they have developed new “inclusionary” rules that allow the introduction of unconstitutionally obtained evidence, thereby dampening the effect of “conduct” rules directed at law enforcement personnel. 562 Similarly, in structural reform litigation, Daryl Levinson has pointed to ways in which the Court’s retrenchment on the scope of appropriate remedies has backwashed into the definition of the underlying rights.563

The Evolution of the Newest Equal Protection from Shaw v. Reno to Bush v. Gore, 79 N.C.L. Rev. 1345 (2001), and Pamela S. Karlan, Equal Protection: Bush v. Gore and the Making of a Precedent, in The Unfinished Election of 2000, at 159, 185-95 (Jack N. Rakove ed. 2001). 556

446 U.S. 55 (1980).

557

412 U.S.755 (1973).

558

For discussions of this retrenchment, see, e.g., Samuel Issacharoff, Pamela S. Karlan & Richard H. Pildes, THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS 708-10, 729-45 (2d ed. 2001); James U. Blacksher & Larry T. Menefee, FROM REYNOLDS V. SIMS TO CITY OF MOBILE V. BOLDEN: HAVE THE WHITE SUBURBS COMMANDEERED THE FIFTEENTH AMENDMENT?, 34 Hastings L.J. 1, 4, 28 (1982). 559

491 U.S. 164 (1989).

560

42 U.S.C. § 1981 provided, at the time, that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens ....” Congress subsequently amended § 1981 to overturn the Court’s decision in Patterson, declaring that “[f]or purposes of this section, the term ‘make and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b) (1994). 561

491 U.S. at 176.

562

See Carol S. Steiker, COUNTER-REVOLUTION IN CRIMINAL PROCEDURE?: TWO AUDIENCES, TWO ANSWERS, 94 Mich. L. Rev. 2466 (1996).

563

See Daryl J. Levinson, RIGHTS ESSENTIALISM AND REMEDIAL EQUILIBRATION, 99 Colum. L. Rev. 857 (1999).

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PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES *** In this article, I shall discuss how several of the Supreme Court’s civil rights decisions from last Term reflect this strategy as well. For the most part, the Court has left the political branches’ power to regulate relatively unconstrained. That is, the Court assumes that Congress and the Executive can prohibit various forms of primary conduct. At the same time, however, the Court has launched a wholesale assault on one of the primary mechanisms Congress has used for enforcing civil rights: the private attorney general. The idea behind the “private attorney general” can be stated relatively simply: Congress can vindicate important public policy goals by empowering private individuals to bring suit. While one can imagine a regime in which Congress simply delegates the government’s own right to enforce its laws to private bounty hunters – that is essentially what qui tam lawsuits envision564 – the current reliance on private attorneys general is more modest. It consists essentially of providing a cause of action for individuals who have been injured by the conduct Congress wishes to proscribe, usually with the additional incentive of attorney’s fees for a prevailing plaintiff. Virtually all modern civil rights statutes rely heavily on private attorneys general. As the Court explained in Newman v. Piggie Park Enterprises,565 one of the earliest cases construing the Civil Rights Act of 1964, which forbids various kinds of discrimination in public accommodations, federally funded programs, and employment, Congress recognized that it could not achieve compliance solely through lawsuits initiated by the Attorney General: A [public accommodations] suit is thus private in form only. When a plaintiff brings an action ..., he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also as a “private attorney general,” vindicating a policy that Congress considered of the highest priority. 566 Thus, Piggie Park recognized the piggybacking function of the Act: Congress harnessed private plaintiffs to pursue a broader purpose of obtaining equal treatment for the public at large. Later, the Court explained that this public function exists even when a civil rights plaintiff asks for compensatory damages rather than injunctive relief. “Unlike most private tort litigants,” the civil rights plaintiff “seeks to vindicate important civil and constitutional rights that cannot be valued solely in monetary terms.... Regardless of the form of relief he actually obtains, a successful civil rights plaintiff often secures important social benefits.”567 Thus, when “his day in court is denied him,” the congressional policy which a civil rights plaintiff “seeks to assert and vindicate goes unvindicated; and the entire Nation, not just the individual citizen, suffers.”568 In this article, I explore four decisions from October Term 2000 in which the Supreme Court sharply abridged the ability of private attorneys general to get their day in court. In two cases, the Court denied private plaintiffs the ability to bring lawsuits altogether. In Board of Regents v.

564

And what Judge Jerome Frank, who apparently coined the phrase “private attorney general” in his 1943 opinion in Associated Industries v. Ickes, 134 F.2d 694, 704 (1943), imagined. For discussions of qui tam lawsuits, see, e.g., Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000); Evan Caminker, Comment, THE CONSTITUTIONALITY OF QUI TAM ACTIONS, 99 Yale L.J. 341 (1989). 565

390 U.S. 400 (1968) (per curiam).

566

Id. at 401-02.

567

City of Riverside v. Rivera, 477 U.S. 561, 574 (1986).

568

Id. (internal quotation marks omitted).

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PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES Garrett,569 the Court underscored its narrow reading of congressional enforcement power under section 5 of the Fourteenth Amendment, holding that Congress cannot authorize private damages lawsuits against state governments that discriminate against the disabled. And in Alexander v. Sandoval,570 the Court held that there is no private right of action to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in federally funded programs or activities. In each of these cases, the Court left open (perhaps only for the time being) the possibility of other forms of congressional or administrative enforcement, but the elimination of private attorneys general altogether will surely decrease overall enforcement of the underlying rights. In two other cases, the Court left open the formal availability of private lawsuits, but created substantial practical barriers to private vindication of public policy. In Circuit City v. Adams, 571 the Court construed the Federal Arbitration Act in a way that permits employers to compel workers to arbitrate claims under federal fair-employment laws. And in Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources,572 the Court rejected the preexisting “catalyst theory” for attorney’s fees. Under that theory, courts had awarded plaintiffs attorney’s fees when their lawsuits led the defendant to change the challenged practice voluntarily. The Supreme Court, however, held that fees can be awarded only if there is a judicially sanctioned change in the parties’ legal relationship. These decisions will cut down both on the amount of civil rights enforcement and on the development of the law through the creation of binding precedent.

Conclusion The overriding theme that links together the Supreme Court’s decisions on a range of issues – from the scope of Eleventh Amendment immunity to the scope of congressional power under section 5 of the Fourteenth Amendment, and from when to find implied rights of action to when to award attorney’s fees – can be stated quite simply: The current Court is creating an evergreater regulation-remedy gap. It has left Congress free to regulate a wide range of subjects, but it is engaged in a form of courtstripping that reduces the possibilities for judicial enforcement of statutory commands. To paraphrase my colleague Gerry Gunther, a “virulent variety of freewheeling interventionism lies at the core of [the Court’s] devices of restraint.”573 The Congress and Supreme Court of an earlier era constructed the institution of the private attorney general because they recognized that, without private attorneys general, it would be impossible to realize some of our most fundamental constitutional and political values. The current Court seems bent on dismantling this centerpiece of the Second Reconstruction. For all its invocations of Marbury’s declaration that it “is emphatically the province and the duty of the judicial department to say what the law is,”574 the current Court seems to have forgotten Marbury’s equally important acknowledgment – that “the government of the United States has been emphatically termed a government of laws, and not of men,” but “will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal 569

531 U.S. 356 (2001).

570

532 U.S. 275 (2001).

571

532 U.S. 105 (2001).

572

532 U.S. 598 (2001).

573

Gerald Gunther, THE SUBTLE VICES OF THE “PASSIVE VIRTUES” – A COMMENT ON PRINCIPLE AND EXPEDIENCY IN JUDICIAL REVIEW, 64 Colum. L. Rev. at 25 (1964). 574

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

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PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES right.”575 When the law furnishes no remedy because the Supreme Court has cast out the remedies that the political branches have tried to provide, then the courts threaten to become the most dangerous branch “to the political rights of the Constitution,”576 and not the least.

575

5 U.S. at 163.

576

The Federalist, No. 78, supra note 3, at 465.

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PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES

PART 18. RACKETEERING AND TREASON AGAINST322 THE CONSTITUTION BY FEDERAL JUDGES

PART 19. THE CLAIMS

Part 19 The Claims Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

323THE CLAIMS PART 19.

PART 19. THE CLAIMS

A. The U.S. Coast Guard Final Agency Action Denial was Wrongfully Based Upon a Personal Ideology in Violation of the Oath of Office That Don Hamrick’s cause of action arose in 2002 from a judicial review of the U.S. Coast Guard’s final agency action denial (46 C.F.R. § 1.01–30) of his application for an endorsement on his Merchant Mariner’s Document, such endorsement to read, “National Open Carry Handgun” for which there were and still are no federal laws or regulations for or against that particular endorsement. The reason given for the denial is found in the U.S. Coast Guard’s letter dated April 19, 2002: Dated April 19, 2002 Dear Mr. Hamrick: This is to address your appeal of a decision by the Commanding Officer, Coast Guard National Maritime Center concerning your Merchant Mariner’s Document. In your letter of 19 January 2002, you applied to have your Merchant Mariner’s Document endorsed “National Open Carry Handgun.” The Commanding Officer, Coast Guard National Maritime Center replied to you in his letter of 22 February, denying your application. You appealed that decision in your letter of 16 March to Secretary of Transportation Norman Y. Mineta, and supplemented your appeal with your letter 29 March, also to Secretary Mineta. Your appeal was forwarded to me for final agency action as outlined in 46 CFR 1.03-15(j). I am impressed with your scholar ship and zeal in formulating arguments in support of your application for a “National Open Carry Handgun” endorsement on your Merchant Mariner’s Document, but I am not persuaded to agree with you.577 As you have noted, the laws and regulations do not provide for such an endorsement nor do they prohibit it. Instead, the matter is left to my judgment.578 My decision, after considering all the material your have submitted, is that it would not be in the best interest of marine safety or security579 to initiate the endorsement you have applied for. Your appeal is therefore denied and the Commanding Officer, National Maritime Center is directed not to place any endorsements regarding firearms on any merchant mariner’s licenses or documents. This decision constitutes final agency action as cited above. Capt. J. P. Brusseau Director of Field Activities Marine Safety, Security and Environmental Protection Outline of the U.S. Coast Guard’s Administrative Process Denying Plaintiff’s Application for National Open Carry Handgun. February 22, 2002

Capt. Fink, Commanding Officer, National Maritime Center, Arlington, Virginia issued the initial denial of Petititoner’s application for National Open Carry Handgun” endorsement on his Merchant Mariner’s Document in his letter dated February 22, 2002. Capt. Fink stated in the above letter: “This is in response to your application dated January 10, 2002, for an endorsement on your merchant mariner’s document that would entitle

577

Emphasis added.

578

Emphasis added.

579

Emphasis added.

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PART 19. THE CLAIMS you to carry a handgun. MMDs serve the purposes of identifying the mariner and providing evidence of his or her professional qualifications. An endorsement authorizing carriage of a handgun is beyond the scope of the professional requirements for the crew on board a merchant vessel and is not authorized by regulation.” Capt. Fink did not cite the regulation he referred to in his letter to Petitioner because there is no Coast Guard regulation in existence that prohibits authorizing my endorsement for “National Open Carry Handgun” but the Second Amendment to the U.S. Constitution. I relied on email as his primary means of correspondence with the Coast Guard for its expediency and the Coast Guard knew this. The Coast Guard was still operating under the U.S. Department of Transportation. I appealed the denial to Norman Mineta, Secretary of the Department of Transportation, in a letter dated March 16, 2002. In that letter in referring to Capt. Fink’s letter above, stated: “Considering the omission of the very regulation Capt. Fink cited casts doubt on his familiarity with all extendable laws and its constitutional repercussions. I noted that Capt. Fink had unfortunately used the word entitle in his letter. The definition of that word is, “To give a right or legal title to : qualify (one) for something : furnish with proper grounds for seeking or claiming something.”580 The U.S. Coast Guard does not have the right nor the power to entitle me to own, possess, or carry a firearms or even to deny me that right without due process extending from cause of offense. The Second Amendment to the U.S. Constitution is the authorizing document protecting my right to keep and bear arms from infringement, which is superior to any Coast Guard regulation. I have searched the CFRs, the U.S. Code, and studied the U.S. Constitution and the Bill of Rights and the remaining Amendments. I can find no Coast Guard regulation or law that positively prohibits the Coast Guard from endorsing my Merchant Mariner’s Document for National Open Carry Handgun (for personal security ashore in the United States). The Coast Guard can oversee our private lives ashore with access to the NATIONAL DRIVER’S REGISTER for matters concerning our MERCHANT MARINER’S DOCUMENT as required by 46 CFR § 12.02 through 12.024(d)(5). I construe 46 CFR § 12.02 through 12.02-4(d)(5) to be a duplication of government service, pursuing the same purpose as the BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS FORM ATF F 4473, FIREARMS TRANSACTION RECORD as both essentially investigates the same background information. This “government waste of efficiency” is like blinders on a horse. This shortfall in respecting Merchant Mariners’ human rights have been outside the Coast Guard’s range of tunnel vision. I seek to bring this human right of self-preservation through armed selfdefense and personal security to within the Coast Guard’s vision and compel the Coast Guard to amend their regulations concerning the 580

Merriam-Websgter, Inc., Webster’s Third New International Dictionary.

325THE CLAIMS PART 19.

PART 19. THE CLAIMS Merchant Mariner’s Document, acknowledging the Merchant Mariners’ Second Amendment rights while ashore. My appeal to the Department of Transportation was referred back to the Coast Guard without comment for final determination. Capt. J. P. Brusseau mailed his 46 CFR § 1.03-15(j) “final agency action” letter of April 19, 2002 but did not give notice of denial by email to Petitioner. This error upon the Coast Guard caused Capt. Brusseau to use poor judgment in interpreting the intent and purpose of an article Appellant had emailed to Capt. Brusseau, after he mailed his denial letter, erroneously assuming the email was intended to be a personal threat to coerce his approval for the endorsement, he initiated a criminal investigation through the Naval Criminal Investigative Service in Europe because Appellant was employed aboard a government pre-positioned ship, anchored off the coast of Klaepeda, Lithuania. Appellant has a pending federal civil rights lawsuit for damages and defamation in the lower court. This is my claim for damages against the U.S. Coast Guard. May 7, 2002

The President of the United States, through the Department of Justice formally reversed a longstanding policy on the Second Amendment, now stating the Second Amendment is, in fact, a constitutional right of the individual. The Department of Justice filed their U.S. Supreme Court brief in the Emerson case stating this new policy change.

May 10, 2002

I filed via email an appeal for reconsideration, relying on 46 CFR § 1.0315(a) through (g), on faith of received a fair review.

May 24, 2002

Capt. Brusseau affirmed his own 46 CFR § 1.03-15(j) “final agency action” denial. Again, he mailed his letter without emailing me his action as I had primarily used email for correspondence with Capt. Brusseau. In that letter of May 24, 2002 Capt. Brusseau recited his authority for the denial stating: My letter to you of April 19, 2002, constitutes final agency action under subpart 1.03 of title 46 Code of Federal Regulations (CFR). See 46 CFR § 1.03-15(j). The authority to take action has been delegated by the Secretary of Transportation to the Commandant of the Coast Guard pursuant to 46 CFR § 1.45(a)(2) and subsequently delegated by the Commandant to this office and the Commanding Officer, National Maritime Center, pursuant to 46 CFR § 1.03-15(g) and (h)(3). Because the Commanding Officer, National Maritime Center, took initial action on your request, the appeal was handled by this office. As a consequence of the foregoing, you have exhausted all administrative remedies available to you by the Department of Transportation and the Coast Guard. Capt. Brusseau exceeded his authority when he states Appellant has exhausted all administrative remedies available to Appellant by the Department of Transportation and the Coast Guard. The Coast Guard regulation, 46 CFR § 1.03-15(j) Final Agency Action refers to an “agency.” An agency is subordinated to a department of the United States government. The Final Agency Action only referes to the appeals PART 19. THE 326 CLAIMS

PART 19. THE CLAIMS process within the U.S. Coast Guard. It is not a barrier to appeals to the Department of Transportation because 49 U.S.C. § 2103 says: The Secretary [of the Department of Transportation] has general superintendence over the merchant marine of the United States and of merchant marine personnel insofar as the enforcement of this subtitle is concerned and insofar as those vessels and personnel are not subject, under other law, to the supervision of another official of the United States Government. In the interests of marine safety and seamen’s welfare, the Secretary shall enforce this subtitle and shall carry out correctly and uniformly administer this subtitle. The Secretary may prescribe regulations to carry out the provisions of this subtitle. My requested endorsement was for National Open Carry Handgun while ashore in the United States. This situation place me outside the jurisdiction of the Coast Guard and under the jurisdiction of the Department of Transportation. The Department of Transport has the authority to instruct the Coast Guard to implement regulations supporting and protecting seamen’s Second Amendment rights, especially after the President of the United States as set official government policy that the Second Amendment is an individual right, hence Appellant’s individual right to keep and bear arms for personal security, hence the National Open Carry Handgun” endorsement Appellant has requested for his Merchant Mariner’s Document. [NOTE: The U.S. Coast Guard is now operating under the U.S. Department of Homeland Security] Capt. Brusseau, in his letter of May 24, 2002, relied on his letter of April 19, 2002, and the Commanding Officer, National Maritime Center’s letter of February 22, 2002 in affirming the denial. He states in that letter of May 24, 2002: The points of law relied upon for the determination made by Commanding Officer, National Maritime Center, in connection with your initial request are contained in his letter to you dated February 22, 2002. Essentially, his point was that endorsements on merchant mariner documents authorizing the carriage of handguns is beyond the scope of professional requirements for crews on merchant vessels and is not authorized. The points of law relied upon for the determination made by this office on the appeal are contained in the letter dated April 19, 2002. Capt. Brusseau’s and Capt. Fink’s statements that “carriage of handguns is beyond the scope of professional requirements for crews on merchant vessels and is not authorized is a fraudulent lie. Appellant was required to attend a Small Arms Recertification Course as a “professional requirement for crews on a merchant vessel,” a U.S. government ammo ship, such training authorized by Military Sealift Command, and OPNAVINST 3591.1C, “Watch Stander Small Arms Re-certification Course and 46 U.S.C. § 7306(a)(3) “General requirements and classifications for able seamen: is qualifed professionally as demonstrated by an applicable examination or educational requirements. Capt. Fink and Capt Brusseau have broken the law with their denying Appellant’s application. Additionally, it is at the Master’s discretion to

327THE CLAIMS PART 19.

PART 19. THE CLAIMS issue firearms to the crew for any given circumstances endangering the ship or its crew which is authorized under Maritime Law. Capt. Fink’s (Commanding Officer, National Maritime Center) letter of February 22, 2002 does not cite which Coast Guard regulation or law he relied on in denying Appellant’s application. The failure to disclose Coast Guard regulations by name and number when denying an applications implies a predilection, a partiality, a prejudice, or a bias in judgment. An abuse of authority, in other words. The letter only “claims,” without any supporting basis in law or regulation. In relying on Capt. Fink’s letter of February 22, 2002, Capt. Brusseau, in fact, based his final agency action not on Coast Guard regulation but on Capt. Fink’s predilection, partiality, prejudice, or bias in judgment in violation of the Oath of Office to support and defend the Constitution of the United States which includes the Second Amendment rights of U.S. seamen. Capt. Brusseau even acknowledges in his letter of April 19, 2002, stating, “As you have noted, the laws and regulations do not provide for such an endorsement nor do they prohibit it. Instead, the matter is left to my judgment. My decision, after considering all the material you have submitted, is that it would not be in the best interest of marine safety or security to initiate the endorsement you have applied for.” THE COAST GUARD’S DELIBERATE INDIFFERENCE TO MY FIRST AND SECOND AMENDMENT RIGHTS BECAME ACTIONABLE FOR TORT DAMAGES May 25, 2002

While aboard a U.S. Government vessel anchored off the coast of Lithuania and for due cause and failure of Capt. Brusseau to notify me by email of his official letter from the day before (May 24, 2002) affirming the final agency action denial, I emailed an article titled, “IN THE NEWS! WHO DO YOU WANT HOLDING THIS GUN? THE CRIMINAL/TERRORIST IN OFFENSIVE USE? OR, THE INNOCENT LAW-ABIDING CITIZEN (MERCHANT SEAMAN WHILE ASHORE) IN DEFENSIVE USE?” I used a dramatic literary style to convey the fear law-abiding citizens live with everyday of their lives of being murdered because they do not have immediate access or possession of firearms for self-defense. Because I realized the intensity of the topic I included disclaimers to prevent misperceptions of alleged threats of harm. Capt. Brusseau failed to comprehend these disclaimers. Upon receipt of my email of May 25, 2002, or at some point in time thereafter, Capt. Brusseau initiated a criminal investigation calling into service the Naval Criminal Investigative Service (NCIS) against me. Capt. Brusseau’s action caused me to be pulled off the vessel, a U.S. government pre-position ship anchored off the coast of Klaipeda, Lithuania on the eve of the vessel’s departure for a scheduled 10-day exercise at sea with the U.S. Navy, causing me to miss the vessel’s departure, causing the vessel to sail short-handed one Able Seaman in violation of the Coast Guard’s own regulations, causing me to be unlawfully detained at the Hotel Klaipeda in Lithuania waiting for two days for two civil special agents of the NCIS to arrive to conduct their two-hour interview. I had to wait at the hotel for an addition ten days for PART 19. THE 328 CLAIMS

PART 19. THE CLAIMS the vessels next port of call, Tallinn, Estonia. On July 18, 2002 I filed my first federal civil rights lawsuit for damages and defamation which was dismissed. The NCIS determine me to be innocent of all charges brought by Capt. Brusseau. Capt. Brusseau’s action causing two special agents of the NCIS to go on a wild goose chase, chasing phantom threats, endangered national security when those two special agents could have made better use of their time chasing after real threats against the United States. I was employed aboard the S/S Major Stephen W. Pless, a government contracted RO/RO & Container ship with vehicular and containerized cargo for the U.S. Marines in the pre-position fleet of the United States Government. I was and had been corresponding with the U.S. Coast Guard and other branches of the U.S. government concerning the Second Amendment rights of the U.S. Merchant Seaman while ashore in the United States while not employed aboard any vessel of the United States while aboard the Pless and prior to employment aboard the Pless. I initiated an application with the U.S. Coast Guard for a National Open Carry Handgun endorsement on his Merchant Mariner’s Document (I.D. card), and once denied, initiated the U.S. Coast Guard appeals process. I was culturally isolated in a foreign country during the 12-day “false detention/imprisonment.” At one point soon after the interview Petitioner received a phone call from the ship’s agent advising Petitioner that arrangements have been made to fly Petitioner back to the United States. This implied Petitioner was fired. In a subsequent telephone call from the ship’s company immediately following that call an effort was made to sort the matter and return Petitioner to the ship. This effort was successful. Whatever Capt. Brusseau claimed or alleged, either verbally or in written orders to the U.S. Navy and/or to the U.S. Naval Criminal Investigative Service was false, misleading, disparaging and defamatory placing Capt. Brusseau in a vulnerable position for slander and/or libel.

B. Teetering on Judicial Tyranny and Despotism It should be noted that the Heller opinion came to us on a 5-4 vote. I characterize that vote as a threat to the United States guarantee of a Republican form of government teetering on judicial tyranny and despotism. What we have today in the federal courts is a modern day Praetorian Guard protecting the U.S. Government from the People’s First Amendment right to petition the government for redress of grievances and from the the People’s Seventh Amendment right to a civil jury trial in response to the U.S. Government’s progressive encroachments and wrongs upon the People’s constitutional rights and their human rights. Justice Stevens’ dissenting opinion in Heller at 9-10 would restrict the First Amendment right to petition on his belief that “petitions must involve groups of individuals acting in concert.” Justice Stevens’ dissenting opinion in Heller: “The Court also overlooks the significance of the way the Framers used the phrase “the people” in these constitutional provisions. In the First Amendment, no words define the class of individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right

329THE CLAIMS PART 19.

PART 19. THE CLAIMS peaceably to assemble, and to petition the Government for a redress of grievances, that is described as a right of “the people.” These rights contemplate collective action. While the right peaceably to assemble protects the individual rights of those persons participating in the assembly, its concern is with action engaged in by members of a group, rather than any single individual. Likewise, although the act of petitioning the Government is a right that can be exercised by individuals, it is primarily collective in nature. For if they are to be effective, petitions must involve groups of individuals acting in concert.” I cite Ayn Rand’s quotation: “We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do anything it pleases, while the citizens may act only by permission; which is the stage of the darkest periods of human history, the stage of rule by brute force.” Four of the nine Justices would have us in another dark period of human history but for that teetering swing vote.

C. Most Federal Judges are Mad Hatters on the Wrong Side of the Looking Glass Justice Scalia describes Stevens’ view that “bear Arms” is restricted to military usage as worthy of the Mad Hatter. A very colorfull way of describing lunacy. From Judge Huvelle’s Memorandum dismissing my Case No. 02-1435 with prejudice she wrote thar “no court has ever so much as suggested that the Thirteenth Amendment confers any right to bear arms, and it is entirely fanciful to suggest that its prohibition of involuntary servitude somehow requires the overturning of a whole variety of gun control legislation.” But now the Supreme Court has held that “[t]he handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense.” This case is Plaintiff’s first post-Heller lawsuit for not only his Second Amendment right to openly keep and bear arms in interstate and maritime travel under state, federal, and maritime law but now for his Seventh Amendment right under constitutional law and human rights law. Plaintiff’s case presents Judge Ellen Segal Huvelle’s Memorandum, in Hamrick v. President George W. Bush, U.S. District Court for the District of Columbia, No. 02-1435 (2002), asserted that “Miller remains the most authoritative modern pronouncement on the amendment’s meaning and its conclusion that the right to bear arms is limited by the needs of an organized militia has subsequently been echoed by the Supreme Court and followed in this and other circuits” is completely debunked by Justice Scalia’s opinion in Heller. Judge Huvelle’s views on the Second Amendment are mirrored expansively by Justice Stevens’ dissenting opinion in Heller. In debunking Justice Stevens’ dissenting opinion Justice Scalia has collaterally debunked Judge Huvelle’s Memorandum above. Note Scalia’s opinion, pages 15-16: JUSTICE STEVENS points to a study by amici supposedly showing that the phrase “bear arms” was most frequently used in the military context. See post, at 12–13, n. 9; Linguists’ Brief 24. Of course, as we have said, the fact that the phrase was commonly used in a particular context does not show that it is limited to that context, and, in any event, we have given many sources where the phrase was used in nonmilitary contexts. Moreover, the study’s collection appears to include (who knows how many times) the idiomatic phrase “bear arms against,” which is

581

581

Plaintiff’s emphasis.

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PART 19. THE CLAIMS irrelevant. The amici also dismiss examples such as “ ‘bear arms . . . for the purpose of killing game’ “ because those uses are “expressly qualified.” Linguists’ Brief 24. (JUSTICE STEVENS uses the same excuse for dismissing the state constitutional provisions analogous to the Second Amendment that identify private-use purposes for which the individual right can be asserted. See post, at 12.) That analysis is faulty. A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass 582 (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter. 583 Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to military use. Scalia’s use of the phrase “unknown this side of the looking glass” and “the mad hatter” are insightful metaphors for my RULE 9 PLEADING SPECIAL MATTERS OF FRAUD, MISTAKE AND CONDITIONS of Mind of federal judges holding to the states right to arm a militia interpretation of the Second Amendment. In Lewis Carroll’s, “THROUGH THE LOOKING GLASS” Alice ponders what the world is like on the other side of a mirror, and to her surprise, is able to pass through to experience the alternate world. She discovers a book with looking-glass poetry, “Jabberwocky,” which she can read only by holding it up to a mirror.584 This corresponds to psychiatric term “projection” as used in Sarah Thompson, M.D., “RAGING AGAINST SELFDEFENSE: A PSYCHIATRIST EXAMINES THE ANTI-GUN MENTALITY.” 585 Therefore, Judge Ellen Segal Huvelle is apparently a Mad Hatter on the wrong side of the looking glass along with every other judge holding to the debunked interpretation of the Second Amendment. Citing from William W. Van Alstyne, THE DEMISE OF THE RIGHT-PRIVILEGE DISTINCTION IN CONSTITUTIONAL LAW, Harvard Law Review, Vol. 81:1439, on the Doctrine of Unconstitutional Conditions: “It would be a palpable incongruity to strike down an act of state legislation which, by words of express divestment, seeks to strip the citizens of rights guaranteed by the federal Constitution, but to uphold an act by which the same result is accomplished under the guise of a surrender of a right in exchange for a valuable privilege which the state threatens otherwise to withhold. . . . If the state may compel the surrender of one constitutional right as a condition of its favor, it may, in like manner; compel a surrender of all. It is inconceivable that guarantees embedded in the Constitution of the United States may thus be manipulated out of existence.” Frost & Frost Trucking Co. v. Railroad Comm’n, 271 U.S. 583, 593-94 (1926). Essentially, this doctrine declares that whatever an express constitutional provision forbids government to do directly it equally forbids government to do indirectly. . . . The unconstitutional conditions doctrine has been applied, for example, to forbid a state to discontinue unemployment benefits to a person refusing Saturday employment for religious reasons. Sherbert v. Verner, 376 U.S. 398, 404 (1963) (“It is to late in the day to doubt that the liberties of religion and expression may be infringed by the denial of or placing of conditions upon a benefit or privilege.”) And it has been employed to protect the status of state college students from summary termination, against the argument that the privilege of attendance had been conditioned upon their acceptance of a rule 582

Plaintiff’s emphasis.

583

Plaintiff’s emphasis

584

http://en.wikipedia.org/wiki/Through_the_Looking-Glass

585

See http://www.jpfo.org/filegen-n-z/ragingagainstselfdefense.htm

331THE CLAIMS PART 19.

PART 19. THE CLAIMS permitting summary dismissal. Dixon v. Alabama State Bd. Of Educ., 294 F.2d 150, 156 (5th Cir.), cert. denied, 368 U.S. 930 (1961) (“the State cannot condition the granting of even a privilege upon the renunciation of the constitutional right to procedural due process”). For other applications see, e.g., Speiser v. Randall, 357 U.S. 513, 519-20 (1958) (special veterans’ exemption from state tax cannot be conditioned on a loyalty oath); Standard Airlines, Inc. v. CAB, 177 F.2d 18, 20 (D.C. Cir 1949) (CAB cannot condition a flying permit on consent to discretionary summary revocation); Lawson v. Housing Authority, 270 Wis. 269, 275, 70 N.W.2d 605, 608-09, cert. denied, 350 U.S. 882 (1955) (tenant in public housing may challenge regulation requiring certification of nonmembership in certain “subversive” organizations as conditions of continued occupancy). The doctrine would appear to apply equally well to every other case where the enjoyment of a government-connected interest is conditioned upon a rule requiring that one abstain from the exercise of some right protected by an express clause in the Constitution. The doctrine of unconstitutional conditions is highly attractive for two quite practical reasons. First, it preserves the appearance of judicial objectivity. A court need not “weigh” or “balance”; it need simply apply the literal mandate of a given constitutional provision flatly to forbid government from conditioning its largess on any waiver of such a provision regardless of the circumstances. A court may thus avoid any unseemly appearance of acting as a superlegislature. - Second, the doctrine greatly expedites decision making and provides clear guidelines in cases which might otherwise be especially difficult to resolve. Instead of canvassing a host of variables in a quasi-legislative fashion on the strength of a barely adequate record, a court may seem to have but a single straightforward question to resolve: did the regulation in question condition the petitioner’s privilege upon the waiver of a named constitutional right?

D. Judge Edith Jones of the Fifth Circuit, “The American legal system has been corrupted almost beyond recognition.” told the Federalist Society of Harvard Law School on February 28, 2003, Excerpted from MassNews.com March 7, 2003 report by Geraldine Hawkins Judge Edith Jones said: " The question of what is morally right is routinely sacrificed to what is politically expedient. The change has come because legal philosophy has descended to nihilism. " “The integrity of law, its religious roots, its transcendent quality are disappearing. " “The first 100 years of American lawyers were trained on Blackstone, who wrote that: ‘The law of nature . . . dictated by God himself . . . is binding . . . in all counties and at all times; no human laws are of any validity if contrary to this; and such of them as are valid derive all force and all their authority . . . from this original.’ The Framers created a government of limited power with this understanding of the rule of law - that it was dependent on transcendent religious obligation,” said Jones. " The business about all of the Founding Fathers being deists is “just wrong,” or “way overblown.” They believed in “faith and reason,” and this did not lead to intolerance. " Having lost sight of the moral and religious foundations of the rule of law, we are vulnerable to the destruction of our freedom, our equality before the law and our self-respect. It is my fervent hope that this new century will experience a revival of the original understanding of the rule of law and its roots.

(1) Three Contemporary Threats to the Rule of Law The first contemporary threat to the rule of law comes from within the legal system itself.

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PART 19. THE CLAIMS The second threat to the rule of law comes from government, which is encumbered with agencies that have made the law so complicated that it is difficult to decipher and often contradicts itself. “Agencies have an inherent tendency to expand their mandate,” says Jones. “At the same time, their decision-making often becomes parochial and short-sighted. They may be captured by the entities that are ostensibly being regulated, or they may pursue agency self-interest at the expense of the public welfare. Citizens left at the mercy of selective and unpredictable agency action have little recourse.”586 The third and most comprehensive threat to the rule of law arises from contemporary legal philosophy. “Throughout my professional life, American legal education has been ruled by theories like positivism, the residue of legal realism, critical legal studies, post-modernism and other philosophical fashions,” said Jones. “Each of these theories has a lot to say about the ‘is’ of law, but none of them addresses the ‘ought,’ the moral foundation or direction of law.” Jones quoted Roger C. Cramton, a law professor at Cornell University, who wrote in the 1970s that “the ordinary religion of the law school classroom” is “a moral relativism tending toward nihilism,587 a pragmatism tending toward an amoral instrumentalism, a realism tending toward cynicism, an individualism tending toward atomism, and a faith in reason and democratic processes tending toward mere credulity and idolatry.”

(2) No ‘Great Awakening’ In Law School Classrooms The judge said ruefully, “There has been no Great Awakening in the law school classroom since those words were written.” She maintained that now it is even worse because faith and democratic processes are breaking down. “The problem with legal philosophy today is that it reflects all too well the broader postEnlightenment problem of philosophy,” Jones said. She quoted Ernest Fortin, who wrote in Crisis magazine: “The whole of modern thought . . . has been a series of heroic attempts to reconstruct a world of human meaning and value on the basis of . . . our purely mechanistic understanding of the universe.” Jones said that all of these threats to the rule of law have a common thread running through them, and she quoted Professor Harold Berman to identify it: “The traditional Western beliefs in the structural integrity of law, its ongoingness, its religious roots, its transcendent qualities, are disappearing not only from the minds of law teachers and law students but also from the consciousness of the vast majority of citizens, the people as a whole; and more than that, they are disappearing from the law itself. The law itself is becoming more fragmented, more subjective, geared more to expediency and less to morality. ... The historical soil of the Western legal tradition is being washed away . . . and the tradition itself is threatened with collapse.” Judge Jones concluded with another thought from George Washington:

586

Emphasis added due to the quote having direct application to the U.S. Coast Guard final agency action denying Don Hamrick’s Second Amendment application to the Merchant Mariner’s Document for an endorsement for “National Open Carry Handgun” as a matter of a constitutional right. 587

Emphasis added. Judge Jones view of a nihilistic form of government inspired Don Hamrick to write a political poem titled “A Nihilistic Form of Government, This United States.” See page ___.

333THE CLAIMS PART 19.

PART 19. THE CLAIMS “Of all the dispositions and habits which lead to prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism who should labor to( subvert these great pillars of human happiness – these firmest props of the duties of men and citizens.”

(3) Judge Edith Jones declares that the Rule of Law has religious origins. The King James Bible Deuteronomy 16:18-20, 18: Judges and officers shalt thou make thee in all thy gates, which the LORD thy God giveth thee, throughout thy tribes; and they shall judge the people with just judgment. 19: Thou shalt not wrest judgment; thou shalt not respect persons, neither take a gift; for a gift doth blind the eyes of the wise, and pervert the words of the righteous. 20: That which is altogether just shalt thou follow, that thou mayest live, and inherit the land which the LORD thy God giveth thee.

E. Extortion Under Color of Official Right - Hobbs Act: Title 9 U.S. Attorneys’ Manual: Criminal Resource Manual § 2404 In addition to the “wrongful use of actual or threatened force, violence, or fear,”588 the Hobbs Act (18 U.S.C. § 1951) defines extortion in terms of “the obtaining of property from another, with his consent . . . under color of official right.” In fact, the under color of official right aspect of the Hobbs Act derives from the common law meaning of extortion. As the Supreme Court explained in a recent opinion regarding the Hobbs Act, “[a]t common law, extortion was an offense committed by a public official who took ‘by color of his office’ money that was not due to him for the performance of his official duties. . . . Extortion by the public official was the rough equivalent of what we would now describe as ‘taking a bribe.’” Evans v. United States, 504 U.S. 255 (1992). In order to show a violation of the Hobbs Act under this provision, the Supreme Court recently held that “the Government 589 need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.”590 While the definition of extortion under the Hobbs Act with regard to force, violence or fear requires the obtaining of property from another with his consent induced by these means, the under color of official right provision does not require that the public official take steps to induce the extortionate payment: It can be said that “the coercive element is provided by the public office itself.” Evans v. United States, 504 U.S. 255 (1992); see United States v. Margiotta, 688 F.2d 108, 130 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) (“[t]he public officer’s misuse of his office supplies the necessary element of coercion . . . .”).

588

Includes the fear of being denied justice for wrongful acts of the U.S. Coast Guard, the U.S. Coast Guard, the U.S. Marshals Service, the U.S. Department of Justice, and the judges themselves. 589

Emphasis added. Don Hamrick presumes that Equal Justice Under the Law includes an unrepresented civil plaintiff with a civil RICO Act case acting in the capacity of a Private Attorney General the right and the duty to apply the Hobbs Act against federal judges and against the Chief Justice of the U.S. Supreme Court and their court clerks. 590

This includes the federal courts compelling payment of filing fees from Don Hamrick, a seaman, in violation of the Seamen’s Suit law, 28 U.S.C. § 1916.

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PART 19. THE CLAIMS This theory of extortion under color of official right has resulted in the successful prosecution of a wide range of officials, including those serving on the federal,591 state and local levels. For example: United States v. O’Connor, 910 F.2d 1266 (7th Cir. 1990), cert. denied, 111 S. Ct. 953 (1991) (police officer accepts payments from FBI agents posing as crooked auto parts dealers); United States v. Stephenson, 895 F.2d 867 (2d Cir. 1990) (international trade official in Department of Commerce accepts payments to influence ruling); United States v. Spitler, 800 F.2d 1267 (4th Cir. 1986) (state highway administrator accepts money from road building contractor); United States v. Wright, 797 F.2d 245 (5th Cir. 1986), cert. denied, 481 U.S. 1013 (1987) (city prosecutors accept money for not prosecuting drunk drivers); United States v. Greenough, 782 F.2d 1556 (11th Cir. 1986) (city commissioner accepts money for awarding city concession); United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985), cert. denied, 475 U.S. 1012 (1986) (judges accept payments to fix cases); United States v. Mazzei, 521 F.2d 639 (3d Cir.) (en banc), cert. denied, 423 U.S. 1014 (1975) (state senator accepts money from landlord seeking government office lease). In United States v. Stephenson, 895 F.2d at 871-73, the defendant, who was a federal official, unsuccessfully contended that the Hobbs Act only applied to state and local officials and that prosecution of federal official for extortion would have to be exclusively brought under 18 U.S.C. § 872: extortion by officers and employees of the United States. The court found that the government could seek a charge under whichever of these two overlapping statutes it thought appropriate. Moreover, “it is not a defense to a charge of extortion under color of official right that the defendant could also have been convicted of bribery.” Evans v. United States, 504 U.S. 255 (1992). GENERAL RULE: The usual fact situation for a Hobbs Act charge under color of official right is a public official trading his/her official actions in a area in which he/she has actual authority in exchange for the payment of money. Some cases under certain fact situations, however, have extended the statute further. For example: " Some courts have held that a Hobbs Act violation does not require that the public official have de jure power to perform any official act paid for as long as it was reasonable to believe that he/she had the de facto power to perform the requested act. See United States v. Nedza, 880 F.2d 896, 902 (7th Cir. 1989) (victim reasonably believed state senator had the ability to impact a local business); United States v. Bibby, 752 F.2d 1116, 1127-28 (6th Cir. 1985); United States v. Sorrow, 732 F.2d 176, 180 (11th Cir. 1984); United States v. Rindone, 631 F.2d 491, 495 (7th Cir. 1980) (public official can extort money for permit beyond control of his office, so long as victim has a reasonable belief that he could affect issuance); United States v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978), cert. denied, 439 U.S. 1116 (1979); United States v. Harding, 563 F.2d 299 (6th Cir. 1977), cert. denied, 434 U.S. 1062 (1978); United States v. Brown, 540 F.2d 364 (8th Cir. 1976); United States v. Hall, 536 F.2d 313 (10th Cir.), cert. denied, 429 U.S. 919 (1976); United States v. Hathaway, 534 F.2d 386 (1st Cir.), cert. denied, 429 U.S. 819 (1976); United States v. Mazzei, 521 F.2d 639, 643 (3rd Cir.) (en banc), cert. denied, 423 U.S. 1014 (1975); United States v. Price, 507 F.2d 1349 (4th Cir. 1974). " Most courts have held that a Hobbs Act violation does not require that the public official be the recipient of the benefit of the extortion, and that a Hobbs Act case exists where the corpus of the corrupt payment went to a third party. However, consistent with the federal offenses of bribery and gratuities under 18 U.S.C. § 201 (see 9 U.S.A.M. §§ 85.101 through 85.105), where the corpus of the corrupt payment inures to the benefit of a person or entity other than the public official most courts have also required proof of a quid pro quo understanding between the private corrupter and the public official. See United States v. Haimowitz, 725 F.2d 1561, 1577 (11th 591

Emphasis added.

335THE CLAIMS PART 19.

PART 19. THE CLAIMS Cir.), cert. denied, 469 U.S. 1072 (1984) (“a Hobbs Act prosecution is not defeated simply because the extorter transmitted the extorted money to a third party.”); United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) (insurance agency made kickbacks to brokers selected by political leader of town); United States v. Scacchetti, 668 F.2d 643 (2d Cir.), cert. denied, 457 U.S. 1132 (1982); United States v. Forszt, 655 F.2d 101 (7th Cir. 1981); United States v. Cerilli, 603 F.2d 415 (3rd Cir. 1979), cert. denied, 444 U.S. 1043 (1980); United States v. Trotta, 525 F.2d 1096 (2d Cir. 1975), cert. denied, 425 U.S. 971 (1976); United States v. Brennan, 629 F.Supp. 283 (E.D.N.Y.), aff’d, 798 F.2d 581 (2d Cir. 1986). But see McCormick v. United States, 500 U.S. 257 (1991)(allegedly corrupt payment made in the form of a campaign contribution to a third party campaign organization was insufficient to support a Hobbs Act conviction absent evidence of a quid pro quo). " Some courts have held that the Hobbs Act can be applied to past or future public officials, as well as to ones who presently occupy a public office at the time the corrupt payment occurs. See United States v. Meyers, 529 F.2d 1033, 1035-38 (7th Cir.), cert. denied, 429 U.S. 894 (1976) (court answered affirmatively the question “whether, within the meaning of the Hobbs Act, it is a crime for candidates for political office to conspire to affect commerce by extortion induced under color of official right during a time frame beginning before the election but not ending until after the candidates have obtained public office.”); United States v. Lena, 497 F.Supp. 1352, 1359 (W.D. Pa. 1980), aff’d mem., 649 F.2d 861 (3rd Cir. (1981); United States v. Barna, 442 F.Supp. 1232, 1235 (M.D.Pa. 1978), aff’d mem., 578 F.2d 1376 (3rd Cir.), cert. denied, 439 U.S. 862 (1978). " Some courts have held that private persons who are not themselves public officials can be convicted under this provision if they caused public officials to perform official acts in return for payments to the non-public official. United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) (court upheld conviction of head of local Republican Party under color of official right where defendant could be said to have caused, under 18 U.S.C. §2(b), public officials to induce a third party to pay out money); see United States v. Haimowitz, 725 F.2d 1561, 1572-73 (11th Cir.), cert. denied, 469 U.S. 1072 (1984) (private attorney’s conviction of Hobbs Act violation upheld due to complicity with state senator); United States v. Marcy, 777 F.Supp. 1398, 1399-400 (N.D.Ill. 1991); United States v. Barna, 442 F.Supp. 1232 (M.D. Pa.), aff’d mem., 578 F.2d 1376 (3rd Cir.), cert. denied, 439 U.S. 862 (1978). But see United States v. McClain, 934 F.2d 822, 829-32 (7th Cir. 1991) (“we believe that, as a general matter and with caveats as suggested here, proceeding against private citizens on an ‘official rights’ theory is inappropriate under the literal and historical meanings of the Hobbs Act, irrespective of the actual ‘control’ that citizen purports to maintain over governmental activity.”). " Some courts have also held that private individuals who make payments to a public official can be charged under the Hobbs Act, either as an aider and abettor or co-conspirator, if he or she is truly the instigator of the transaction. See United States v. Torcasio, 959 F.2d 503, 505-06 (4th Cir. 1992); United States v. Spitler, 800 F.2d 1267, 1276-79 (4th Cir. 1986) (conviction affirmed for aiding and abetting extortion under color of official right even though defendant, who paid kickbacks from corporate coffers, was an officer of the victim corporation); United States v. Wright, 797 F.2d 245 (5th Cir. 1986). But see United States v. Tillem, 906 F.2d 814, 823-24 (2d Cir 1990) (consultant employed to help restaurants obtain approvals from corrupt health inspectors had no stake in the conspiracy and was not promoting the outcome). " Finally, in a federal prosecution of a state legislator, there is no legislative privilege barring the introduction at trial of evidence of the defendant’s legislative acts. The Supreme Court has held that in such a prosecution a speech or debate type privilege for state legislators cannot be made applicable through Fed.R.Evid. 501. The Court said such privilege is not required by separation of powers considerations or by principles of comity, the two rationales underlying the Speech or PART 19. THE 336 CLAIMS

PART 19. THE CLAIMS Debate Clause of the U.S. Constitution, art. I, §6, cl. 1. United States v. Gillock, 445 U.S. 360, 368-74 (1980).

F. Evidence of Habit/Routine Practice (Rule 406, Fed.R.Ev.) Leads to Presumptions in General in This Civil Action of Corruption, Racketeering, and Judicial Treason Against the Constitution (Rule 301, Fed.R.Ev.) Federal Rules of Evidence: Rule 406 Habit/Routine Practice of Unconstitutional Summary Judgements Constitutes Rule 301 Presumption in General in this Civil Action of Article III Treason Against the Constitution and Against the Common Law Right to a Civil Jury Trial under the Seventh Amendment in an Unlawful and an Unconstitutional Racketeering Scheme over the Second Amendment if Equal Justice Under the Law and the Rule Of Law is to Mean Anything to the American People (see American Bar Association’s Model Code of Judicial Conduct) I am submitting evidence ender Rule 406 Habit; Routine Practice, Federal Rules Of Evidence, that the federal courts unconstitutionally denied my seventh amendment right to a civil jury trial from bias against my second amendment cases and from bias against my status as an unrepresented civil plaintiff with a constitutional rights case against the United States Government. Rule 406 reads: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. The following is the list of my cases that were dismissed (mostly with prejudice) on Summary Judgment from Motion to Dismiss. Attached to the list of cases is the statutory right of exemption from filing fees afforded a seaman under the Seamen’s Suit Law, 28 U.S.C. § 1916. The U.S. District Courts in the District of Columbia and Charlotte, North Carolina rightfully obey but to which the U.S. Supreme Court, the DC Circuit, the 8th Circuit, and the U.S. Court in Little Rock, Arkansas all apparently conspired to obstruct my Seventh Amendment right to a civil jury trial by economic means by unlawfully compelling me to pay their respective filing fees that have now accumulated in the amount of $1,465.00. I have exhausted all judicial, executive, and legislative remedies. I even attempted the Citizen’s Arrest Warrant as a remedy of last resort seeking assistance from the U.S. Marshals Service but was treated as a criminal suspect with a regional manhunt. I was intercepted and interrogated for 2 hours by the agents of the U.S. Marshals Service Washington, DC office at the Greyhound Bus Station in Richmond, Virginia even though I clearly stated to an agent of the U.S. Marshals Service, Little Rock, Arkansas office, that my trip to Washington, DC was intended to visit the U.S. Marshals Service in Washington, DC for help in apply the “citizen’s arrest” law of the DC Code, § 23.582(b)(1)(A). Resorting to physical hands-on citizen’s arrest under the Law of Citizen’s Arrest under DC Code, § 23.582(d) was unnecessary for the commons sense fact of the extreme availability of federal law enforcement in the federal courts such that you couldn’t help but to bump shoulders with a “fed” in the hallways. Regardless of my expressed lawful intent and procedure I was put on a watchlist just because I made inquiries about the common law right of citizen’s arrest and constitutional rights as applied against federal judges under the auspice of the Checks and Balance System of Government implied by the Tenth Amendment and by the Guarantee of a Republican Form of Government in the Constitution of the United States). This is compelling evidence of an out-of-control federal judiciary with the U.S. Marshals Service to protect federal judges in their commission of administrative felonies to which they have no immunities. U.S. District Court/DC, No. 02-1434 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 02-1435 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 03-2160 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 04-0422 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 04-2040 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 05-1993 (OBEYED 28 U.S.C. § 1916) U.S. District Court/Charlotte, NC), No. 04-0065 (OBEYED 28 U.S.C. § 1916)

337THE CLAIMS PART 19.

PART 19. THE CLAIMS U.S. District Court/Charlotte, NC), No. 04-0344 (OBEYED 28 U.S.C. § 1916) ! DC Circuit, No. 02-5334 (VIOLATED THE LAW) ! DC Circuit, No. 04-5316 (VIOLATED THE LAW) ! DC Circuit, No. 05-5414 (VIOLATED THE LAW) ! DC Circuit, No. 05-5429 (VIOLATED THE LAW) ! 8th CIRCUIT, CASE NO. 07-2400 (VIOLATED THE LAW) ! U.S. District Court/Little Rock, No. 06-0044. (VIOLATED THE LAW) ! U.S. Supreme Court, Nos. 03-145 (VIOLATED THE LAW) ! U.S. Supreme Court, Nos. 04-1150 (VIOLATED THE LAW) ! U.S. Supreme Court, Nos. 04M56 (VIOLATED THE LAW)

G. Evidence of U.S. Supreme Court Bias Against Second Amendment Cases and Against Pro Se Plaintiffs with a Second Amendment Case Sean Silveira, et al. v. Bill Lockyer, Atty. General of California, et al.

Hamrick v. President George W. Bush, et al,

U.S. Supreme Court

U.S. Supreme Court

Case No. 03-51

Case No. 03-145

Docketed: July 8, 2003 Lower Ct: United States Court of Appeals for the Ninth Circuit Case Nos.: (01-15098) Decision Date: December 5, 2002

AUGUST 19, 2003 Waiver of right of respondent George W. Bush, President of the United States, et al. to respond filed.

Rehearing Denied: May 6, 2003

AUGUST 20, 2003 DISTRIBUTED Conference of September 29, 2003.

Date

OCTOBER 6, 2003 Petition DENIED.

Proceedings and Orders

Jul 3 2003 Petition for writ of certiorari filed. (Response due August 7, 2003) Jul 30 2003 Brief amicus curiae of Pink Pistols filed. Jul 30 2003 Brief amicus curiae of Women Against Gun Control filed. Jul 30 2003 Brief amicus curiae of Jews for the Preservation of Firearms Ownership filed. Aug 6 2003 Brief amicus curiae of Second Amendment Sisters, Inc. filed. Aug 7 2003 Brief amicus curiae of National Rifle Association filed. Aug 7 2003 Brief amicus curiae of Doctors for Sensible Gun Laws filed. Aug 7 2003 Waiver of right of respondent Bill Lockyer, Attorney General of California to respond filed. Aug 20 2003 DISTRIBUTED for Conference of

PART 19. THE 338 CLAIMS

for

PART 19. THE CLAIMS September 29, 2003. Sep 22 2003 Response Requested . (Due October 22, 2003) Oct 22 2003 Brief of respondents Bill Lockyer, Attorney General of California, and Gray Davis, Governor in opposition filed. Oct 27 2003 Reply of petitioners Sean Silveira, et al. filed. Nov 5 2003 DISTRIBUTED for Conference of November 26, 2003. Dec 1 2003 Petition DENIED.

Hamrick v. President George W. Bush, et al, U.S. Supreme Court, No. 03-145 DENIED! REASONS FOR GRANTING THE WRIT Petitioner’s is a Second Amendment case as a federal civil rights case for U.S. seamen’s rights. The case has reached the U.S. Supreme Court under Rule 11 and under Compelling Reasons under Rule 10(a) of the Rules of the Supreme Court of the United States. 592 The “compelling reasons” to grant the Petition for Writ

of Certiorari are from an unprecedented double-Circuit split decisions on the Second Amendment that the United States Court of Appeals for the Ninth Circuit in Silveira, et al v. Lockyer, No. 0115098, (9th Cir. Dec. 5, 2002) has entered a decision on the Second Amendment that is opposite in meaning to the decision of the United States Court of Appeals for the Fifth Circuit in United States v. Emerson, No. 99-10331 (5th Cir. Oct. 16, 2001, Revised Oct. 18, 2001).593 The Ninth Circuit ruled that “the Second Amendment does not confer an individual right to own or possess arms.” The Fifth Circuit ruled: “We agree with the district court that the Second Amendment protects the right of individuals to privately keep and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia.” It is now under Rule 9(c) of the Federal Rules of Civil Procedure for Conditions Precedent in that not only did the Ninth Circuit create a Circuit Split on the Second Amendment with the Fifth Circuit but the Ninth Circuit is now a Circuit Split in and of itself. On February 18 the Ninth Circuit handed down an opinion in Nordyke v. King, 2003 WL 347009 (9th Cir. 2003). Nordyke sharply criticized the [Silveira] decision . . . which went into great detail in an attempt to refute Emerson and the individual rights view: “We feel that the Silveira’s panel’s exposition of the connecting interpretations of the Second Amendment was both unpersuasive and, even more importantly, unnecessary . . . There was simply no need for the Silveira panel’s broad digression. . . . The Silveira panel’s decision to re-examine the scope and purpose of the Second Amendment was improper. . . We ignore the Silveira panel’s unnecessary historical disquisition as the dicta that is . . . .” In a special concurrence, Judge Gould wrote that Hickman was “wrongly decided,” that the remarks in Silveira v. Lockyer about the ‘collective rights’ theory of the Second Amendment 592

My emphasis showing that the 53 U.S. Supreme Court ignores its own rules on split-circuit opinions when it comes to a Second Amendment case espousing an individual right.

593

Emphasis is the Plaintiff’s.

339THE CLAIMS PART 19.

PART 19. THE CLAIMS are not persuasive,” and that the individual-rights view of Emerson should be adopted. Further, contrary to other Ninth Circuit precedent (Fresno Rifle & Pistol Club v. Van de Kamp), States cannot violate the Second Amendment, for “maintenance of an armed citizenry might be argued to be implicit in the concept of ordered liberty and protected by the Due Process Clause of the Fourteenth Amendment.”594 The Ninth Circuit’s double-Circuit Split with itself and with the Fifth Circuit resulted from the Supreme Court’s 64-year55 aversion to Second Amendment cases and must come to an end. It cannot be overstated that Petitioner’s case “is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court. See 28 U.S.C. § 2101(e)” of Rule 11 that burdens and compels the Supreme Court to correct its own error of silence on the Second Amendment that Justice Thomas had speculated in the Printz case. Justice Thomas stated: Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a republic.” 3 J. Story, Commentaries §1890, p. 746 (1833).595 That some future date is now! Petitioner has not exhausted all of the available documentation asserting the fact that the Second Amendment right to keep to keep and bear arms is an individual right and that right has been unconstitutionally denied to the Petitioner not only by the U.S. Coast Guard, but also by the collective effect of State and Federal laws standing in repugnance to the United States Constitution effectively nullifying the Second Amendment for the purposes of traveling the United States while armed for the purpose of personal security. In reiterating Joseph Story’s commentary on the common defense clause of the Preamble to the Constitution, “No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?596 Petitioner disagrees with State Oil Co. v. Khan 522 U.S. 3, 118 S.Ct. 275, 139 L. Ed. 2d 199, where in that case it was said that, “The doctrine of stare decisis reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right.” On the contrary, Petitioner asserts that it is more important that the applicable rule of law be settled right than that it be just simply and expediently settled lest we introduce tyranny as a component to the rule of law. The Petitioner, Don Hamrick, respectfully prays that his Petition for Writ of Certiorari be accepted on reason that the case has imperative public importance having certain constitutional questions that require immediate determination in the Supreme Court of the United States. Pleading Rule 9(b) Special Matters of Fraud, Mistake and Conditions of Mind, FEDERAL RULES OF CIVIL PROCEDURE: The collective right the state to arm a militia version of the second amendment was a fraudulent political ideology that replaced the rule of law

594

NRA INSTITUTE FOR LEGISLATIVE ACTION. Updates and Alerts: Ninth Circuit Disputes Silveira Decision, Judge Calls Second Amendment an Individual Rights. No longer available online at original URL but a similar article, if not the same article, is available at: http://www.nraila.org/issues/Articles/Read.aspx?ID=103 595

Referring to the United States v. Miller case of 1939.

596

Printz v. United States (95-1478), 521 U.S. 98 (1997). Nos. 95-1478 and 95-1503. Jay Printz, Sheriff/Coroner, Ravalli County, Montana, Petitioner 95-1478 v. United States, Richard Mack, Respondent No. 95-1503 on writs of certiorari to the united states court of appeals for the ninth circuit [June 27, 1997] Justice Thomas, concurring.

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PART 19. THE CLAIMS Pleading includes Rule 9 Pleading Special Matters of Fraud, Mistake and Conditions of Mind of U.S. District Court for the District of Columbia Judge Ellen Segal Huvelle’s Memorandum, Case No. 02-1435 (October 9, 2002) dismissing my Second Amendment case with prejudice. Extracted from that Memorandum: “Moreover, the established law on this subject hardly supports petitioner’s cause. In United States v. Miller, 307 U.S. 174, 178 (1939), the Supreme Court found that “absent some reasonable relationship to the preservation or efficiency of a well regulated militia,” the possession of a weapon (a short-barreled shotgun) could be proscribed without running afoul of the Second Amendment. Miller remains the most authoritative modern pronouncement on the amendment’s meaning and its conclusion that the right to bear arms is limited by the needs of an organized militia has subsequently been echoed by the Supreme Court and followed in this and other circuits. See United States v. Lewis, 445 U.S. 55, 65 n.8 (1980); Fraternal Order of Police v. United States, 173 F.3d 898, 905-06 (D.C. Cir. 1999); accord United States v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001) (holding that “a federal criminal gun control law does not violate the Second Amendment unless it impairs the state’s ability to maintain a well-regulated militia”). Under this interpretation, petitioner’s claims appear largely without merit.” On June 26, 2008 Justice Scalia of the U.S. Supreme Court, in District of Columbia, et al, v. Heller, No. 07-290 held that: “The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” Under the Heller opinion’s interpretation and in accordance with simple logic contradicting Judge Huvelle’s interpretation my Second Amendment claims do have merit in fact and law. Therefore, it is my claim under Rule 9 of the Federal Rules of Civil Procedure that the judicial doctrince that the Second Amendment was a collective right of the State to maintain a well-regulated militia, i.e., the collective right standard, was a criminally fraudulent political ideology that was substituted for the Rule of Law. It is also my claim specifically that Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia and generally that any federal judge dismissing Second Amendment civil cases for the individual right on the basis of the collective right standard is evidence for a Rule 9 Pleading Special Matters of Fraud and “Conditions of Mind” impuning the competency of Judge Huvelle and other federal judges under the “Good Behaviour Clause” of Section 1, Article III, of the Constitution of the United States and violations of: CANON 1. A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY. RULE 1.1 Compliance with the Law A judge shall comply with the law,* including the Code of Judicial Conduct. RULE 1.2 Promoting Confidence in the Judiciary A judge shall act at all times in a manner that promotes public confidence in the independence,* integrity,* and impartiality* of the judiciary, and shall avoid impropriety and the appearance of impropriety. COMMENT [1] Public confidence in the judiciary is eroded by improper conduct and conduct that creates the appearance of impropriety. This principle applies to both the professional and personal conduct of a judge. [3] Conduct that compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the

341THE CLAIMS PART 19.

PART 19. THE CLAIMS judiciary. Because it is not practicable to list all such conduct, the Rule is necessarily cast in general terms. [5] Actual improprieties include violations of law, court rules or provisions of this Code. The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge.

PART 19. THE 342 CLAIMS

PART 19. THE CLAIMS CANON 2 A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY, COMPETENTLY, AND DILIGENTLY. RULE 2.2 Impartiality and Fairness A judge shall uphold and apply the law,* and shall perform all duties of judicial office fairly and impartially.* COMMENT [1] To ensure impartiality and fairness to all parties, a judge must be objective and open-minded. [2] Although each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question. RULE 2.3 Bias, Prejudice, and Harassment (A) A judge shall perform the duties of judicial office, including administrative duties, without bias or prejudice. COMMENT [1] A judge who manifests bias or prejudice in a proceeding impairs the fairness of the proceeding and brings the judiciary into disrepute. RULE 2.11 Disqualification (A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality* might reasonably be questioned, including but not limited to the following circumstances: (1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge* of facts that are in dispute in the proceeding.

343THE CLAIMS PART 19.

PART 19. THE CLAIMS

H. Calendar Committee and Judge Reggie B. Walton of the U.S. District Court for DC Violated Court Order of Judge Richard W. Roberts. ORDER OF RECUSAL

REVISED ORDER OF RECUSAL

January 13, 2004

January 20, 2004

Plaintiff Don Hamrick has filed an action against United States Attorney General John Ashcroft and others, and the action was randomly assigned to me. Plaintiff has filed a motion for recusal, alleging that an appearance of impropriety exists because I was appointed by former President Clinton. Plaintiff offers no evidence that could reasonably call into question my impartiality in these proceedings on the basis of my status as a Clinton appointee.

Plaintiff Don Hamrick has filed an action against United States Attorney General John Ashcroft and others, and the action was randomly assigned to me. Plaintiff has filed a motion for recusal, alleging that an appearance of impropriety exists because I was appointed by former President Clinton. Plaintiff offers no evidence that could reasonably call into question my impartiality in these proceedings on the basis of my status as a Clinton appointee. Accordingly, his motion will be denied.

However, there is now pending in the United States Court of Federal Claims a class action lawsuit filed by a class of present and former Department of Justice attorneys seeking damages against the United States for alleged violations of the Federal Employees Pay Act, 5 U.S.C. §§ 5541-97 (1994). See John Doe, et al., on behalf of themselves and all other similarly situated v. United States, Civil Action No. 98-896C. I am currently a member of that class. Since Canon 3C(1) of the Code of Conduct for United States Judges requires a judge to “disqualify himself . . . in a proceeding in which the judge’s impartiality might reasonably be questioned,” the Committee on Codes of Conduct of the Judicial Conference of the United States has opined that recusal is required from any proceeding in which the Attorney General appears as a real party in interest, unless a waiver of such disqualification pursuant to Canon 3D1 is submitted by all parties involved in the suit. Plaintiff’s motion for recusal makes plain that he would not waive my disqualification under Canon 3C(1). Thus, my recusal from this case is now appropriate. For the reasons stated above, it is therefore ORDERED that plaintiff’s motion for recusal [4] be, and hereby is, GRANTED. The Clerk of the Court is directed to reassign this matter to the Calendar Committee. Because United States District Judge Ellen Segal Huvelle of this Court is also a named defendant in this suit, I recommend to the Calendar Committee that it seek to have a judge from another district assigned to this matter. When 1. the general provisions of Canon 3C(1) serve as the basis for disqualification, Canon 3D permits a judge to continue to participate in a proceeding if all of the parties and lawyers, after notice of the basis for the disqualification, agree in writing to waive the disqualification under a procedure independent of the judge’s participation. SIGNED this 13th day of January, 2004.

However, there is now pending in the United States Court of Federal Claims a class action lawsuit filed by a class of present and former Department of Justice attorneys seeking damages against the United States for alleged violations of the Federal Employees Pay Act, 5 U.S.C. §§ 5541-97 (1994). See John Doe, et al., on behalf of themselves and all other similarly situated v. United States, Civil Action No. 98-896C. I am currently a member of that class. Since Canon 3C(1) of the Code of Conduct for United States Judges requires a judge to “disqualify himself . . . in a proceeding in which the judge’s impartiality might reasonably be questioned,” the Committee on Codes of Conduct of the Judicial Conference of the United States has opined that recusal is required from any proceeding in which the Attorney General appears as a real party in interest, unless a waiver of such disqualification pursuant to Canon 3D1 is submitted by all parties involved in the suit. Plaintiff’s motion for recusal makes plain that he would not waive my disqualification under Canon 3C(1). Thus, my recusal from this case is now appropriate. For the reasons stated above, it is therefore ORDERED that plaintiff’s motion for recusal [4] be, and hereby is, DENIED. However, I am recusing myself sua sponte. The Clerk of the Court is directed to reassign this matter to the Calendar Committee. Because United States District Judge Ellen Segal Huvelle of this Court is also a named defendant in this suit, I recommend to the Calendar Committee that it seek to have a judge from another district assigned to this matter. 1. When the general provisions of Canon 3C(1) serve as the basis for disqualification, Canon 3D permits a judge to continue to participate in a proceeding if all of the parties and lawyers, after notice of the basis for the disqualification, agree in writing to waive the disqualification under a procedure independent of the judge’s participation. SIGNED this 20th day of January, 2004.

RICHARD W. ROBERTS United States District Judge

RICHARD W. ROBERTS United States District Judge

PART 19. THE 344 CLAIMS

PART 19. THE CLAIMS Emphasis added. Judge Richard W. Roberts was originally assigned to my RICO Act case. I filed a motion for recusal and he granted Don Hamrick’s motion for recusal on January 13, 2004. But one week later, on January 20, 2004, he revised that motion to deny Don Hamrick’s motion so that he could recuse himself sua sponte. In that motion Judge Roberts recommended to the Calendar Committer that a judge from another district be assigned to Don Hamrick’s case remained unchanged. However, Judge Reggie B. Walton, a judge in that same U.S. District Court as Judge Roberts, was assigned to Don Hamrick’s civil RICO Act case under questionable circumstances that imply judicial misconduct at the administrative level where Judge Reggie B. Walton is not protected by absolute immunity because Calendar Committee assignments are not judicial acts. On January 15, 2004, Judge Walton was assigned to Don Hamrick’s civil RICO Act case for the Second Amendment (No. 03-2160) while still presiding over another Second Amendment case, Seegars v. Ashcroft, (No. 03-0834). On January 29, 2004, a full two weeks after being assigned to Don Hamrick’s case for the Second Amendment, Judge Walton ruled in the Seegars case “that the Second Amendment does not apply to the District of Columbia.” Under the Canons and under 28 U.S.C. § 455, he was not qualified to preside over Don Hamrick’s case. This fact implies judicial misconduct on the parts of the (1) Court Clerk, (3) Judge Walton himself and (3) the Calendar Committee for not complying with Judge Richard W. Roberts Court Order that, “The Clerk of the Court is directed to reassign this matter to the Calendar Committee.” By whatever the circumstances were that Judge Walton got assigned to Don Hamrick’s case there is the distinct appearance that Judge Walton had a pre-disposed opinion on the merits of Don Hamrick’s case to dismiss his case with prejudice. The following are allegations of violations of the Canons that Don Hamrick presents to Congress on Judge Reggie B. Walton: Canon 1: Judge Walton did not uphold the integrity and independence of the judiciary. Canon 2A. Judge Walton did not act in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Canon 3: Judge Walton did not perform his duties of judicial office impartially nor diligenly. Canon 3B(1) & (5): Judge Walton presided over and decided Don Hamrick case in which is was not qualified by reason of bias or prejudice from the Seegars case. Canon 3B(2): While Judge Walton was not swayed by a fear of criticism as evidenced in his Seegars opinion that the Second Amendment does not apply to the District of Columbia he was apparently swayed by partisan politics and public clamor whether of his own political ideology on the Second Amedment or was misinformed by the politicalization of the U.S. Department of Justice over the then upcoming presidential election in 2004 as evidenced by the U.S. Department of Justice failure or refusal to inform Judge Walton of the Justice Department’s imminent internal release on August 24, 2004, of their Memorandum Opinion for the Attorney General [John Ashcroft] titled Whether the Second Amemdment Secures an Individual Right, in which the conclusion was, “The Second Amendment secures a right of individuals general, not a right of States or a right restricted to persns serviing in militias.” The politicalization of the U.S. Department of Justice is evidenced in that the Memorandum Opinion was not only withheld as evidence from Don Hamrick’s case vindicating the merits of his case but that the Memorandum Opinion was not released to the public until mid-December, well after the November presidential elections. These two events are sufficient to proof Judge Walton was externally swayed by partisan politics and personally swayed by his Seegars opinion. The Docket Report shows that Judge Walton denied or ignored nearly all of Don Hamrick’s motions, judicial notices of adjudicative facts, and other pleadings while he granted every motion and pleading by the Government Defense Attorney, Dennis Barghaan. Judge Walton denied Don Hamrick’s case with prejudice.

345THE CLAIMS PART 19.

PART 19. THE CLAIMS On Appeal the DC Circuit affirmed Judge Walton’s dismissal of my RICO Act claims but remanded my case for further proceedings on Second Amendment grounds. Judge Walton, response to the DC Circuit’s Mandate issued a dirty trick of a so called “Scheduling Order” that resembled more like a repeat of Rule 7 pleadings than a Rule 16 Scheduling Order in anticipation of Rule 26 Discovery Order.

CLAIM No. (1): Human Rights Violations BY JUDICIAL FIAT, BY EXECUTIVE ACTION, AND BY WRONGFUL DENIAL OF A LEGISLATIVE REMEDY BY PRIVATE BILL THE U.S. GOVERNMENT WRONGFULLY STRIPPED THE PLAINTIFF OF HIS STATUS AS A FREE CITIZEN IN VIOLATION OF THE THIRTEENTH AND FOURTEENTH AMENDMENTS BY LEAVING THE PLAINTIFF WITH NO ENFORCEABLE STATUTORY, CONSTITUTIONAL, OR HUMAN RIGHTS TO PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES. THE FEDERAL COURTS WRONGFULLY DISMISSED PLAINTIFF’S CASES FROM 2002 TO 2008, IN PART, ON THE BASIS OF SOVEREIGN IMMUNITY, ABSOLUTE IMMUNITY, AND/OR QUALIFIED IMMUNITY, AMONG OTHER WRONGFUL REASONS FOR DISMISSAL BY IGNORING THE CONGRESSIONALLY LEGISLATED BY DELEGATION OF AUTHORITY FOR FEDERAL REGULATIONS FOR STATUTORY WAIVER OF SOVEREIGN IMMUNITY FOR JUDICIAL REVIEW (46 C.F.R. § 1.01–30(A)) OF THE U.S. COAST GUARD’S FINAL AGENCY ACTION OF PLAINTIFF’S CLAIM OF WRONGFUL DENIAL OF SECOND AMENDMENT RIGHTS. The wrongful denial of Don Hamrick’s Second and Seventh Amendment rights violate international human rights treaties on access to the courts for judicial remedy of the U.S. Coast Guard’s denial of his Second Amendment rights by way of final agency action. Even if the U.S. Supreme Court refuses to incorporate the Second Amendment through the Fourteenth Amendment as applying to the States under the Incorporation Doctrine the States still cannot legislate against the Second Amendment rights of U.S. citizens under the Fourteenth Amendment because U.S. Citizens do not give up their Second Amendment rights just because they travel interstate. Therefore, State gun control laws that places out-of-state citizen’s in jeopardy of arrest for possession of a handgun or other firearms when all else is relating to the possession is law makes those State laws unconstitutional, let alone the human right to life and the human right of self-defense under international human rights treaties. In 2002 the U.S. Coast Guard denied Don Hamrick his Second Amendment right to “NATIONAL OPEN CARRY HANDGUN” endorsement on Don Hamrick’s Merchant Mariner’s Document in recognition of federally required occupational training in small arms in accordance with OPNAVINST 3591.1C: SMALL ARMS TRAINING AND QUALIFICATION, dated May 13, 2002; ENCLOSURE (3) QUALIFICATION CRITERIA FOR SECURITY PERSONNEL (AFLOAT) dated May 13, 1992,597 through the Military Sealift Command, shipping companies, and the Seafarers International Union. The small arms training falls under the GENERAL REQUIREMENTS AND CLASSIFICATIONS FOR ABLE SEAMEN, 46 U.S.C. § 7306(a)(3): “To qualify for an endorsement as able seaman authorized by this section, an applicant must provide satisfactory proof that the applicant is qualified professionally as demonstrated by an applicable examination or educational requirements .” 597

Current edition is OPNAVINST 3591.1E: SMALL ARMS TRAINING AND QUALIFICATION, dated February 20, 2007; ENCLOSURE (1) RANGE REGULATIONS; ENCLOSURE (2) SMALL ARMS DRY FIRE TRAINING PROCEDURE AND GUIDELINES; ENCLOSURE (3) QUALIFICATIONS FOR PISTOLS – M9 Beretta Pistol and the M11 9mm Compact Pistol (Selection for U.S. civilian Able Seamen are limited to the M9 9mm Beretta Pistol; ENCLOSURE (4) QUALIFICATIONS FOR RIFLE - M14, M16 (series) rifles, M4A1, M727, and Mk-18 Carbines, Rifle selection for U.S. civilian Able Seamen limited to the M14.; ENCLOSURE (5) QUALIFICATION CRITERIA FOR SHOTGUNS - 12-gauge 00 buckshot and slugs; ENCLOSURE (6) QUALIFICATION CRITERIA FOR LIGHT, MEDIUM AND HEAVY MACHINE GUN PERFORMANCE E VALUATION - M60 and MK43 (variants) 7.62MM medium machine guns, M240 (variants) 7.62MM medium machine guns, and MK46 Mod 0 (M249 Squad Automatic Weapon (SAW)) 5.56MM light machine guns (not available to civilian Able Seamen).

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PART 19. THE CLAIMS The small arms training was a fulfilling requirement for 33 C.F.R. § 104.220 COMPANY OR VESSEL PERSONNEL WITH SECURITY DUTIES: Company and vessel personnel responsible for security duties must have knowledge, through training or equivalent job experience, in the following, as appropriate: (a) Knowledge of current security threats and patterns; (b) Recognition and detection of dangerous substances and devices; (c) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security; (d) Techniques used to circumvent security measures; (e) Crowd management and control techniques; (f) Security related communications; (g) Knowledge of emergency procedures and contingency plans; (h) Operation of security equipment and systems; (i) Testing and calibration of security equipment and systems, and their maintenance while at sea; (j) Inspection, control, and monitoring techniques; (k) Relevant provisions of the Vessel Security Plan (VSP); (l) Methods of physical screening of persons, personal effects, baggage, cargo, and vessel stores; and (m) The meaning and the consequential requirements of the different Maritime Security (MARSEC) Levels. There are no federal laws or regulations for or against the “National Open Carry Handgun” endorsement and the security regulation does not provide for arming watchstanding Able Seamen (STCW) or dayworking Able Seamen while the vessel is transiting known pirate waters or at other times requiring extra security. The federal regulation, 33 C.F.R. § 104.22, places unarmed company and vessel personnel with security duties at grave risk of personal injury or death when security duties require that they approach and confront suspicious persons. It is unrealistic and suicidal to expect crew members to comply with 33 C.F.R. § 104.22 without the security of firearms. The U.S. Coast Guard did not support and defend the Second Amendment of the Bill of Rights as part of the Constitution as required by the Oath of Office. Instead the U.S. Coast Guard followed the International Maritime Organization’s Maritime Safety Committee policy on, PIRACY AND ARMED ROBBERY AGAINST SHIPS: GUIDANCE TO SHIPOWNERS AND SHIP OPERATORS, SHIPMASTERS AND CREWS ON PREVENTING AND SUPPRESSING ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS, MSC/Circ.623/ Rev.3, dated May 29, 2002, paragraphs 45 and 46 states: Firearms 45

The carrying and use of firearms for personal protection or protection of a ship is strongly discouraged.

46

Carriage of arms on board ship may encourage attackers to carry firearms thereby escalating an already dangerous situation, and any firearms on board may themselves become an attractive target for an attacker. The use of firearms requires special training and aptitudes and the risk of accidents with firearms carried on board ship is great. In some jurisdictions, killing a national may have unforeseen consequences even for a person who believes he has acted in self defence.

347THE CLAIMS PART 19.

PART 19. THE CLAIMS

CLAIM No. (2): Retaliation by the The U.S. Coast Guard UNLAWFULLY RETALIATED AGAINST THE PLAINTIFF FOR BEING NAMED AS A DEFENDANT IN HIS PREVIOUS CIVIL RICO ACT COMPLAINT BY MALICIOUSLY, WILFULLY AND WITHOUT JUST CAUSE CONSPIRED WITH MICHAEL PRENDERGAST, ASSOCIATE DIRECTOR FOR SECURITY OPERATIONS OF THE U.S. DEPARTMENT OF TRANSPORTATION TO ISSUE AND DID ISSUE TWO BAR NOTICES (2004 AND 2006) PROHIBITING THE PLAINTIFF FROM VISITING ANY U.S. COAST GUARD, U.S. DEPARTMENT OF TRANSPORATION, OR FAA FACILITIES IN THE DISTRICT OF COLUMBIA WITHOUT PRIOR PERMISSION OF MICHAEL PRENDERGAST. These Bar Notices are a violation of my Seventh Amendment right to a civil jury trial as an unrepresented civil plaintiff and a violation of my due process rights to notice and my right to appeal of said Bar Notices. The Plaintiff was lawfully pursuing his case as an unrepresented civil plaintiff and as Private Attorney General, (and at the time he was unaware that he was also acting as a Human Rights Defender). The Bar Notices did not detail any alleged offenses. The Bar Notices did NOT include any administrative appeal procedures to contest the Bar Notices. This omission violates the ADMINISTRATIVE PROCEDURES ACT, 5 U.S.C § 551-559; NEGOTIATED RULEMAKING PROCEDURE, 5 U.S.C § 560-570a; ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE ADMINISTRATIVE PROCESS 5 U.S.C § 571-584; and JUDICIAL REVIEW 5 U.S.C § 701-706. The Bar Notices are clearly an abuse of authority in retaliation for my application of the Rule of Law against the U.S. Coast Guard in the pursuit of equal rights and equal justice under the law.

CLAIM No. (3): Judicial Treason Against the Constitution & Bill of Rights EVIDENCE OF JUDICIAL CONSPIRACY TO ABOLISH THE FIRST AMENDMENT RIGHT TO PETITION THE GOVERNMENT FOR REDRESS OF GREIVANCES AND THE SEVENTH AMENDMENT RIGHT TO A CIVIL JURY TRIAL UNDER 42 U.S.C. § 1983 RENDERS RES JUDICATA INAPPLICABLE BECAUSE (1) SUMMARY JUDGMENT IS UNCONSTITUTIONAL; (2) PLAINTIFF’S RIGHTS WERE IMPROPERLY ADJUDICATED AND IGNORED; (3) NEW EVIDENCE IS PRESENTED IN DEFENSE OF PLAINTIFF’S SEVENTH AMENDMENT RIGHT TO A CIVIL JURY TRIAL; AND (4) INFRINGEMENTS OF NOT ONLY THE SAME CONSTITUTIONAL RIGHTS WRONGFULLY ADJUDICATED BUT ALSO INFRINGEMENTS OF DIFFERENT CONSTITUTIONAL AND STATUTORY RIGHTS AND CORRESPONDING HUMAN RIGHTS ARISING FROM A CONTINUING TIME-BASED ACCUMULATION OF TRANSACTIONAL NUCLEUS OF FACTS ARE PRESENTED IN THIS AMENDED COMPLAINT AMOUNTING TO AN UNCONSTITUTIONAL DENIAL OF THE SEVENTH AMENDMENT RIGHT TO A CIVIL JURY TRIAL. AFFECTED CASES U.S. District Court/DC, No. 02-1434 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 02-1435 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 03-2160 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 04-0422 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 04-2040 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 05-1993 (OBEYED 28 U.S.C. § 1916) U.S. District Court/Charlotte, NC), No. 04-0065 (OBEYED 28 U.S.C. § 1916) U.S. District Court/Charlotte, NC), No. 04-0344 (OBEYED 28 U.S.C. § 1916) ! DC Circuit, No. 02-5334 (VIOLATED THE LAW) ! DC Circuit, No. 04-5316 (VIOLATED THE LAW) ! DC Circuit, No. 05-5414 (VIOLATED THE LAW) ! DC Circuit, No. 05-5429 (VIOLATED THE LAW) ! 8th CIRCUIT, CASE NO. 07-2400 (VIOLATED THE LAW) ! U.S. District Court/Little Rock, No. 06-0044. (VIOLATED THE LAW) ! U.S. Supreme Court, Nos. 03-145 (VIOLATED THE LAW) ! U.S. Supreme Court, Nos. 04-1150 (VIOLATED THE LAW) ! U.S. Supreme Court, Nos. 04M56 (VIOLATED THE LAW) PART 19. THE 348 CLAIMS

PART 19. THE CLAIMS

CLAIM No. (4): Obstructions of Justice MEMBERS OF THE FEDERAL COURTS, THE U.S. DEPARTMENT OF JUSTICE, THE U.S. MARSHALS SERVICE, THE FBI, AND THE U.S. COAST GUARD WILFULLY OBSTRUCTED JUSTICE PREVENTING THE PLAINTIFF FROM LAWFULLY ACTING IN THE CAPACITY OF A PRIVATE ATTORNEY GENERAL IN THE PROSECUTION OF HIS CIVIL RICO ACT CASE AND THEREBY WILFULLY AND WRONGFULLY DENIED MY SEVENTH AMENDMENT RIGHT TO A CIVIL JURY TRIAL. (1). Federal judges employing unconstitutional summary judgments to dismiss my Second Amendment cases from 2002 to 2008 are construed as obstructions of justice. (2). The U.S. Coast Guard maliciously initiated a criminal investigation of me through the Naval Criminal Investigative Service (NCIS) in retaliation for persuing Second Amendment rights where the NCIS found me to be innocent of the wrongful allegations made by the U.S. Coast Guard. (3). The U.S. Marshals Service and the FBI refused to investigate my evidence of extortion, 18 U.S.C. § 872, of filing fees of the federal courts that are exempt for seamen such as I, 28 U.S.C. § 1916. When pressed to act in face of my Citizen’s Arrest Warrant for federal judges and court clerks for such extortions amounting to $1,465.00 I was threated with arrest by the U.S. Marshals Service. The U.S. Marshals Service twice visited my elderly mother in a beligerent disregard to the fact that the U.S. Marshals Service could have sent emails to me in lieu of a criminal investigation because I have be emailing the U.S. Marshals Service on a regular basis while traveling around the United States. The U.S. Marshals Service deliberately chose to pay visits to my elderly mother in order to harass and apply family pressures to me in order to get me to cease and decist pursuing my statutory and constitutional rights as applied to federal judges and court personnel. All inquiries I made with the U.S. Department of Justice and the U.S. Marshals Service as to way I cannot enforce the Seamen’s Suit law, 28 U.S.C. § 1916 were ignored. It was not until recently that I learned that the Seamen’s Suit law does not have an explicit provision for a private right of action. The actions I have been taking in regard to my Citizen’s Arrest Warrant were based on an implied private right of action when all available legislative, executive, and judicial remedies were and are exhausted. Citing Paul B. Stephan in Section III Private Enforcement of Federal Statutes: An Evolving Jurisprudence in PRIVATE REMEDIES FOR TREATY VIOLATIONS AFTER SANCHEZ-LLAMAS, 11 Lewis & Clark L. Rev. 65 (2007) 598 Justice Brennan, writing for the Court in Cort v. Ash 422 U.S. 66 (1975), “offered a four-point test for determining whether courts could infer a power of private enforcement from a statute that did not expressly address the issue.”

598

Available online at http://www.lclark.edu/org/lclr/objects/LCB_11_1_Stephan.pdf.

349THE CLAIMS PART 19.

PART 19. THE CLAIMS “In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant.” Stylizing the text from the above law review by Stephan, p. 71 for display here: TEST (1). “[am I, as the plaintiff] “one of the class for whose especial benefit the statute was enacted,”— that is, does the statute create a federal right in favor of the plaintiff?” ANSWER: Yes. I am a merchant seaman. The Seamen’s Suit Law, 28 U.S.C. § 1916 is specificly directed to merchant seamen. TEST (2). “[Is] there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?” ANSWER: Citing Isbrandtsen Co. v. Johnson, 343 U.S. 779, 782-784 (1952): Whenever congressional legislation in aid of seamen has been considered here since 1872, this Court has emphasized that such legislation is largely remedial and calls for liberal interpretation in favor of the seamen. The history and scope of the legislation is reviewed in Aguilar v. Standard Oil Co., 318 U.S. 724, 727 -735 (1943), and notes. “Our historic national policy, both legislative and judicial, points the other way [from burdening seamen]. Congress has generally sought to safeguard seamen’s rights.” Garrett v. Moore-McCormack Co., 317 U.S. 239, 246 (1942). “[T]he maritime law by inveterate tradition has made the ordinary seaman a member of a favored class. He is a ‘ward of the admiralty,’ often ignorant and helpless, and so in need of protection against himself as well as others. . . . Discrimination may thus be rational in respect of remedies for wages.” Warner v. Goltra, 293 U.S. 155, 162 (1934); Cortes v. Baltimore Insular Line, 287 U.S. 367, 375, 377 (1932); Wilder v. Inter-Island Navigation Co., 211 U.S. 239, 246-248 (1908); Patterson v. Bark Eudora, 190 U.S. 169 (1903); Brady v. Daly, 175 U.S. 148, 155-157 (1899). “The ancient characterization of seamen as ‘wards of admiralty’ is even more accurate now than it was formerly.” Robertson v. Baldwin, 165 U.S. 275, 287 (1897); Harden v. Gordon, 11 Fed. Cas. No. 6,047, 2 Mason (Cir. Ct. Rep.) 541, 556. Statutes which invade the common law or the general maritime law are to be read with a presumption favoring the retention of longestablished and familiar principles, except when a statutory purpose to the contrary is evident. No rule of construction precludes giving a natural meaning to legislation like this that obviously is of a remedial, beneficial and amendatory character. It should be interpreted so as to effect its purpose. Marine legislation, at least since the Shipping Commissioners Act of June 7, 1872, 17 Stat. 262, should be construed to make effective its design to change the general maritime law so as to improve the lot of seamen. “The rule that statutes in derogation of the common law are to be strictly construed does not require such an adherence to the letter as would defeat an obvious legislative purpose or lessen the scope plainly intended to be given to the measure.” Jamison v. Encarnacion, 281 U.S. 635, 640 (1900); Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437 (1907), 440. The direction of the current of maritime legislation long has been evident on its face. “In this country these notions were reflected early, and have since been expanded, in legislation designed to secure the comfort and health of seamen aboard ship, hospitalization at home and care abroad. . . . The legislation . . . gives no ground for making inferences adverse to the seaman or restrictive of his rights. . . . Rather it furnishes the strongest basis for regarding them broadly, when an issue concerning their scope arises, and particularly when it relates to the general character of relief the legislation was intended to secure.” Aguilar v. Standard Oil Co., 318 U.S. 724, 728-729 (1943).

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PART 19. THE CLAIMS Citing Nicholas Schreiber v. K-Sea Transportation Corp. New York, Supreme Court, Appellate Division, April 25, 2006; 5410N Index 104992/04 107571/04: Petitioner, as a ward of the admiralty, is entitled to heightened protection from the courts. There is a long-standing policy to safeguard the rights of seamen, whose contracts are traditionally viewed with solicitude: They are emphatically the wards of the admiralty; and though not technically incapable of entering into a valid contract, they are treated in the same manner, as courts of equity are accustomed to treat young heirs, dealing with their expectancies, wards with their guardians, and cestuis que trust with their trustees. . . . If there is any undue inequality in the terms, any disproportion in the bargain, any sacrifice of rights on one side, which are not compensated by extraordinary benefits on the other, the judicial interpretation of the transaction, is that the bargain is unjust and unreasonable, that advantage has been taken of the situation of the weaker party, and that pro tanto the bargain ought to be set aside as inequitable. (Garrett v. Moore-McCormack Co., 317 U.S. at 246, 1942 AMC at 1650, quoting Harden v. Gordon, 2000 AMC 893, 902, 11 Fed Cas 480, 485 [1823]) TEST (3). “[Is] it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?” ANSWER: Yes, by the fact that seamen are wards of the Admiralty. TEST (4). [Is] the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law? ANSWER: The cause of action is strictly for the federal courts. But when the judicial, the executive, and the legislative branch denies all available remedies under the First Amendment right to petitition the government for redress of grievances and the Seventh Amendment right to a civil jury trial under the aggregate effect of appearing to be generalized corruption and obstructions of justice then the only remedy left is the Ninth Amendment right and the Tenth Amendment power reserved to the People to make citizen’s arrests with the Citizen’s Arrest Warrant with accompanying evidence of felony violations of federal law, as in my case, the Seamen’s Suit Law, 28 U.S.C. § 1916. But because the Seamen’s Suit Law does not explicitly provide for such a private right of action such as the Citizen’s Arrest remedy as a remedy of last resort or even the traditional Seventh Amendment right to a civil jury trial the victim must present a civil case against the United States for a civil jury trial for a judicial determination on the implied private right of action in the Seamen’s Suit Law. See also, We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 04-1211 (August 31, 2005): The Supreme Court, however, has held that “the First Amendment does not impose any affirmative obligation on the government to listen, to respond . . .” See Smith v. Ark. State Highway Employees, Local 1315, 441 U.S. 463, 465 (1979). Id. We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 04-1211 (August 31, 2005). Affirmed, DC Circuit, No. 05-5359 (May 8, 2007) (Certiorari denied, January 7, 2008; Petition for Rehearing denied, February 25, 2008): We need not resolve this debate, however, because we must follow the binding Supreme Court precedent. See Tenet v. Doe, 544 U.S. 1, 10-11 (2005). And under that precedent, Executive and Legislative responses to and consideration of petitions are entrusted to the discretion of those Branches. See also, Justice Harlan’s Dissent in Downes v. Bidwell, 182 U.S. 244 at 376-382 (1901) Mr. Justice Harlan, dissenting:

351THE CLAIMS PART 19.

PART 19. THE CLAIMS In Martin v. Hunter, 1 Wheat. 304, 324, 326, 331, 4 L. ed. 97, 102, 104, this court speaking by Mr. Justice Story, said that ‘the Constitution of the United States was ordained and established, not by the states in their sovereign capacities but emphatically, as the preamble of the Constitution declares, by ‘the People of the United States.” In McCulloch v. Maryland, 4 Wheat. 316, 403-406, 4 L. ed. 579, 600, 601, Chief Justice Marshall, speaking for this court, said: ‘The government proceeds directly from the people; is ‘ordained and established’ in the name of the people; and is declared to be ordained ‘in order to form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity.’ The assent of the states, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. The Constitution, when thus adopted, was of complete obligation, and bound the state sovereignties. . . . The government of the union, then (whatever may be the influence of this fact on the case) is emphatically and truly a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them and for their benefit. This government is acknowledged by all to be one of enumerated powers. . . . It is the government of all; its powers are delegated by all; it represents all, and acts for all.’ Although the states are constituent parts of the United States, the government rests upon the authority of the people of the United States, and not on that of the states. Chief Justice Marshall, delivering the unanimous judgment of this court in Cohen v. Virginia, 6 Wheat. 264, 413, 5 L. ed. 257, 293, said: ‘That the United States form, for many and for most important purposes, a single nation, has not yet been denied. In war, we are one people. In making peace, we are one people. . . . In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests . . . is the government of the Union. It is their government, and in that character they have no other. America has chosen to be, in many respects and to many purposes, a nation; and for all these purposes her government is complete; to all these objects it is competent. The people have declared that in the exercise of all powers given for those objects it is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory.’ In reference to the doctrine that the Constitution was established by and for the states as distinct political organizations, Mr. Webster said: ‘The Constitution itself in its very front refutes that. It declares that it is ordained and established by [182 U.S. 244, 378] the People of the United States. So far from saying that it is established by the governments of the several states, it does not even say that it is established by the people of the several states. But it pronounces that it was established by the people of the United States in the aggregate. Doubtless, the people of the several states, taken collectively, constitute the people of the United States. But it is in this their collective capacity, it is as all the people of the United States, that they established the Constitution.’ In view of the adjudications of this court I cannot assent to the proposition, whether it be announced in express words or by implication, that the national government is a government of or by the states in union, and that the prohibitions and limitations of the Constitution are addressed only to the states. That is but another form of saying that, like the government created by the Articles of Confederation, the present government is a mere league of states, held together by compact between themselves; whereas, as this court has often declared, it is a government created by the People of the United States, with enumerated powers, and supreme over states and individuals with respect to certain objects, throughout the entire territory over which its jurisdiction extends. If the national government is in any sense a compact, it is a compact between the People of the United States among themselves as constituting in the aggregate the political community by whom the national government was established. The Constitution speaks, not simply to the states in their organized capacities, but to all peoples, whether of states or territories, who are subject to the authority of the United States. Martin v. Hunter, 1 Wheat. 327, 4 L. ed. 103. ... Although from the foundation of the government this court has held steadily to the view that the government of the United States was one of enumerated powers, and that no one of its branches, nor all of its branches combined, could constitutionally exercise powers not granted, or which were not necessarily implied from those expressly PART 19. THE 352 CLAIMS

PART 19. THE CLAIMS granted (Martin v. Hunter, 1 Wheat. 326, 331, 4 L. ed. 102, 104) . . . This nation is under the control of a written constitution, the supreme law of the land and the only source of the powers which our government, or any branch or officer of it, may exert at any time or at any place. . . .To say otherwise is to concede that Congress may, by action taken outside of the Constitution, engraft upon our republican institutions a colonial system such as exists under monarchical governments. Surely such a result was never contemplated by the fathers of the Constitution. If that instrument had contained a word suggesting the possibility of a result of that character it would never have been adopted by the people of the United States. . . . The idea prevails with some-indeed, it found expression in agruments at the bar-that we have in this country substantially or practically two national governments; one to be maintained under the Constitution, with all its restrictions; the other to be maintained by Congress outside and independently of that instrument, by exercising such powers as other nations of the earth are accustomed to exercise. It is one thing to give such a latitudinarian construction to the Constitution as will bring the exercise of power by Congress, upon a particular occasion or upon a particular subject, within its provisions. It is quite a different thing to say that Congress may, if it so elects, proceed outside of the Constitution. The glory of our American system [182 U.S. 244, 381] of government is that it was created by a written constitution which protects the people against the exercise of arbitrary, unlimited power, and the limits of which instrument may not be passed by the government it created, or by any branch of it, or even by the people who ordained it, except by amendment or change of its provisions. ‘To what purpose,’ Chief Justice Marshall said in Marbury v. Madison, 1 Cranch, 137, 176, 2 L. ed. 60, 73, ‘are powers limited, and to what purpose is that limitation committed to writting, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.’ The wise men who framed the Constitution, and the patriotic people who adopted it, were unwilling to depend for their safety upon what, in the opinion referred to, is described as ‘certain principles of natural justice inherent in Anglo-Saxon character, which need no expression in constitutions or statutes to give them effect or to secure dependencies against legislation manifestly hostile to their real interests.’ They proceeded upon the theory-the wisdom of which experience has vindicated- that the only safe guaranty against governmental oppression was to withhold or restrict the power to oppress. They well remembered that Anglo- Saxons across the ocean had attempted, in defiance of law and justice, to trample upon the rights of Anglo-Saxons on this continent, and had sought, by military force, to establish a government that could at will destroy the privileges that inhere in liberty. They believed that the establishment here of a government that could administer public affairs according to its will, unrestrained by any fundamental law and without regard to the inherent rights of freemen, would be ruinous to the liberties of the people by exposing them to the oppressions of arbitrary power. Hence, the Constitution enumerates the powers which Congress and the other departments may exercise,-leaving unimpaired, to the states or the People, the powers not delegated to the national government nor prohibited to the states. That instrument so expressly declares in [182 U.S. 244, 382] the 10th Article of Amendment. It will be an evil day for American liberty if the theory of a government outside of the supreme law of the land finds lodgment in our constitutional jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all violation of the principles of the Constitution. Citing Leeper v. Texas, 139 U.S. 462, 463 (1891), 11 Sup. Ct. Rep. 577. “By the Fourteenth Amendment, the powers of states in dealing with crime within their borders are not limited, except that no state can deprive particular persons or classes of persons of equal and impartial justice under the law, that law in its regular course of administration through courts of justice is due process, and when secured by the law of the state, the constitutional requirement is satisfied, and that due process is so secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government unrestrained by the established principles of private right and distributive justice.”) The following cases were dismissed by arbitrary exercise of government (judicial bias by interjected a political ideology as a replacement for the Rule of Law and equal justice under the law) power under the

353THE CLAIMS PART 19.

PART 19. THE CLAIMS unconstitutional summary judgment in violation of the Seventh Amendment right to a civil jury trial under the common law: U.S. District Court/DC, No. 02-1434 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 02-1435 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 03-2160 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 04-0422 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 04-2040 (OBEYED 28 U.S.C. § 1916) U.S. District Court/DC, No. 05-1993 (OBEYED 28 U.S.C. § 1916) DC Circuit, No. 02-5334 (VIOLATED 28 U.S.C. § 1916) DC Circuit, No. 04-5316 (VIOLATED 28 U.S.C. § 1916) DC Circuit, No. 05-5414 (VIOLATED 28 U.S.C. § 1916) DC Circuit, No. 05-5429 (VIOLATED 28 U.S.C. § 1916) 8th CIRCUIT, CASE NO. 07-2400 (VIOLATED 28 U.S.C. § 1916W) U.S. District Court/Little Rock, No. 06-0044. (VIOLATED 28 U.S.C. § 1916) U.S. Supreme Court, Nos. 03-145 (VIOLATED 28 U.S.C. § 1916) U.S. Supreme Court, Nos. 04-1150 (VIOLATED 28 U.S.C. § 1916) U.S. Supreme Court, Nos. 04M56 (VIOLATED 28 U.S.C. § 1916)

CLAIM No. (5): My Human Right to a Civil Jury Trial Violated The Wrongful Denial of My Seventh Amendment Right to a Civil Jury Trial Violated My Human Rights Under International Human Rights Treaties Wisconsin v. Constantineau, 400 U.S. 433 (January 19, 1971). The police chief of Hartford, Wisconsin, pursuant to a state statute, caused to be posted a notice in all retail liquor outlets in Hartford that sales or gifts of liquor to appellee, a resident of that city, were forbidden for one year. The statute provides for such “posting,” without notice or hearing, with respect to any person who “by excessive drinking” produces certain conditions or exhibits specified traits, such as exposing himself or family “to want” or becoming “dangerous to the peace” of the community. On appellee’s suit seeking, inter alia, injunctive relief, a three-judge federal court held the statute unconstitutional as violative of procedural due process. Held: 1. The label or characterization given an individual by “posting,” though a mark of serious illness to some, is to others such a stigma or badge of disgrace that procedural due process requires notice and an opportunity to be heard. Pp. 436-437. 2. Since here the state statute is unambiguous and there is no uncertain issue of state law, the federal court properly proceeded to determine the federal constitutional claim. Zwickler v. Koota, 389 U.S. 241, 250 -251. Pp. 437-439. Citing David Sloss’ law review article, “When Do Treaties Create Individually Enforceable Rights? The Supreme Court Ducks the Issue in Hamdan and Sanchez-Llamas,” 45 Columbia Journal of Transnational Law 20 (2006), I will invoke my right to enforce my Seventh Amendment right to a civil jury trial through 28 PART 19. THE 354 CLAIMS

PART 19. THE CLAIMS U.S.C. § 1331 Federal Question (“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States”) in reference to the above noted cases in their individual and in their aggregate effect of unconstitutional summary judgment dismissals under the following human rights treaties: United Nations DECLARATION ON HUMAN RIGHTS DEFENDERS Article 6. Obstruction of Justice. Article 9 The Right to Effective Remedy of Human Rights Violations Article 13. Obstruction of Justice. THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION Article III.1. Abuse of Authority, (Equivalent to 18 U.S.C. § 4. Misprision of Felony). Article III.11. Obstruction of Justice. Article IV. Acts of Corruption (18 U.S.C. § 872 Extortion Under Color of Law) United Nations CONVENTION AGAINST CORRUPTION Article 11. Measures Relating to the Judiciary and Prosecution Services; Article 19. Abuse of Functions; Article 24. Concealment; Article 25. Obstruction of Justice; Article 27. Participation and Attempt; Article 28. Knowledge, Intent and Purpose as Elements of an Offence; Article 30. Prosecution, Adjudication and Sanctions; Article 32. Protection of . . . Victims; Article 33. Protection of Reporting Persons; Article 34. Consequences of Acts of Corruption [“Citizen’s Arrest Warrant”] Article 39. Cooperation Between National Authorities and the Private Sector. NOTE: United States Declaration No. (2) The United States declares that the provisions of the Convention (with the exception of Articles 44 and 46) are non-self-executing. None of the provisions of the Convention creates a private right of action. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS Article 14.1. Denial of Equal Justice Under the Law Article 15.1. Threatened False Arrest (As applied against U.S. Marshals Service) Article 16. Denial of Equal Justice Under the Law NOTE: United States Declaration No. (1) “That the United States declares that the provisions of articles 1 through 27 of the Covenant are not self-executing.” The Senate declared in 138 Cong. Rec. S4781-84 (1992) that “the provisions of Article 1 through 27 of the Covenant are not self- executing”, and in S. Exec. Rep., No. 102-23 (1992) stated that the declaration was meant to “clarify that the Covenant will not create a private cause of action in U.S. Courts.” UNIVERSAL DECLARATION OF HUMAN RIGHTS Article 6. Denial of Equal Justice Under the Law (Treated without rights). Article 7. Denial of Equal Justice Under the Law (Unrepresented Civil Plaintiff) Article 8. Denial of Effective Remedy. Obstruction of Justice. Article 9. Threatened False Arrest (As applied against U.S. Marshals Service)

355THE CLAIMS PART 19.

PART 19. THE CLAIMS Article 10. Wrongfully Denied a Jury Trial (Violation of my Seventh Amendment) AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN Article II. Denial of Equal Justice Under the Law Article XVIII. Denial of a Fair Civil Trial (Seventh Amendment) Article XXIV. Denial of Right to Petition for Redress (First Amndment) Article XXVI. Denial of Due Process Rights (Fifth & Fourteenth Amendments) The Federal Question here is whether the United States violates the U.S. Constitution by adding Reservations, Understandings, and Declarations (RUDs) to human rights treaties that mirror constitutional rights of U.S. citizens as individuals and thereby violating the human rights of U.S. citizens.

CLAIM No. (6): U.S. Marshals Service Committed Obstructions of Justice and Conspiracies to Obstruct Justice Claims Against William Jessup of the U.S. Marshals Service for Unlawfully Obstructing, Blocking, Ignoring, and Threatening Arrest of the Plaintiff in His Lawful Exercise of Citizen’s Arrest of Federal Judges and Their Court Clerks for Extortion of Exempted Filing Fees 28 U.S.C. § 1916 Under Color of Law 18 U.S.C. § 872 and Under Color of Official Right (RICO) 18 U.S.C. § 1951(a) and § 1951(b)(2) of Judges of the DC Circuit and of the Chief Justice of the U.S. Supreme Court and their Court Clerks as Fugitives from Justice “In order to prove Hobbs Act extortion ‘under color of official right,’ ‘the [plaintiff / prosecutor] need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” United States v. Urban, 404 F.3d 754, 768 (3d Cir. 2005) (quoting Evans v. United States, 504 U.S. 255, 268 (1992)). The Seamen’s Suit law, 28 U.S.C. § 1916 provides: “In all courts of the United States, seamen may institute and prosecute suits and appeals in their own names and for their own benefit for wages or salvage or the enforcement of laws enacted for their health or safety without prepaying fees or costs or furnishing security therefor.” Appended to this Private Bill are annotated copies of Court Orders from the U.S. Court of Appeals for the District of Columbia Circuit unlawfully compelling payment of that Court’s filing fee from Don Hamrick, who, being a seaman, is exempt from paying their filing fee. Other documents including the August 30, 2007 letter from the Krista Jaffe, Private First Class, Supreme Court of the United States Police, Threat Assessment Unit, confirming the U.S. Supreme Court received $600 in filing fees from Don Hamrick. That letter it stated: The purpose of this letter is to advise why you have not received reimbursement from the Supreme Court of the United States for your filings. In No. 03-145 (Hamrick v. Bush, et al.), you submitted the docket fee of $300.00. The petition for a writ of certiorari was denied October 6, 2003. In No. 04-1150 (Hamrick v. Bush, et al.), the motion for leave to proceed as a seamen was denied. The docket fee of $300.00 was also submitted in this case, and the petition for a writ of certiorari is denied by this Court, the petitioner is not reimbursed the docket fee. Why a letter from the U.S. Supreme Court Police Threat Assessment Unit? I submit that the U.S. Supreme Court Police, U.S. Marshals Service, and other federal law enforcement agencies perceive “equal justice under the law,” applying the law equally to judges and court clerks when evidence of felony activity exists against federal judges and their court clerks, and presented under color of the right to make citizen’s arrest in accordance with D.C. Code § 23-582 as criminal activity. “We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do anything it pleases, while the citizens may act only by permission; which is the stage of the darkest periods of human history, the stage of rule by brute force.” Ayn Rand PART 19. THE 356 CLAIMS

PART 19. THE CLAIMS Because Don Hamrick visited the staff of Arkansas U.S. Senator Mark Pryor at the U.S. Senate seeking congressional assistance in obtaining the return of the extorted under color of law $600 in filing fees from the U.S. Supreme Court by way of a Citizen’s Arrest Warrant for the Chief Justice of the U.S. Supreme Court, John G. Roberts and the Court Clerk. The staff promptly called the U.S. Supreme Court Police for assistance. The Capitol Police and the U.S. Marshals Service arrived with the U.S. Supreme Court Police as though Don Hamrick had committed a criminal act. Although no arrests were made by anyone that day the incident triggered the U.S. Supreme Court Police to investigate my claims of Extortion Under the Color of Law, 18 U.S.C.§ 872 of filing fees from a seaman, Don Hamrick, in violation of the Seamen’s Suit law, 28 U.S.C. § 1916. Krista Jaffe of the U.S. Supreme Court Police made no references to the Seamen’s Suit law and addressed the matter in all absence to the allegation of Extortion Under Color of Law. The letter was essentially a coverup of the extortion because if Krista Jaffe did mention Don Hamrick’s statutory right of exemption from the U.S. Supreme Court’s filing fee the letter would, be necessity, trigger official investigations by the U.S. Supreme Court Police, the U.S. Marshals Service, the FBI, and the U.S. Department of Justice and in strong probability would cascadingly trigger congressional investigations by the House and Senate Judiciary Committees. So, Krista Jaffe committed the criminal act of covering up the extortion. Don Hamrick would latter file a Petition for Writ of Certiorari that would have all the incriminating Court Orders from the DC Circuit as admissible evidence proving just cause for the self-styled Citizen’s Arrest Warrants for the Chief Justice and the Court Clerk. The requisite Motion to Proceed as a Seaman accompanied the Petition for Writ of Certiorari. Both were filed with the U.S. Supreme Court. The Motion to Proceed as a Seaman was given “No. 07M24.”

357THE CLAIMS PART 19.

PART 19. THE CLAIMS

The U.S. Supreme Court Docket Report for No. 07M24 No. 07M24 Title:

Docketed:

Don Hamrick, Petitioner v. George W. Bush, President of the United States, et al. November 13, 2007

Lower Ct:

United States Court of Appeals for the Eighth Circuit

Case Nos.:

(07-2400)

~~~Date~~~

~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~

Nov 5 2007

Motion of petitioner for leave to proceed as a seaman filed.

Nov 14 2007

DISTRIBUTED for Conference of November 30, 2007.

Dec 3 2007

Motion Denied.

Under the strict interpretation of the Rule of Law it is Don Hamrick’s understanding that if the law on Extortion Under Color of Law, 18 U.S.C. § 872 and the Seamen’s Suit law 28 U.S.C.§ 1916 are clear, and his case for Second Amendment rights of seamen under U.S. law and maritime law are construed to fall under the safety clause of the Seamen’s Suit law then Don Hamrick, in fact and law, has the statutory right to proceed as a seaman in any court of the United States. The Court Orders of the U.S. Court of Appeals for the District of Columbia compelling Don Hamrick to pay that Court’s filing fee and the above denial of the Motion to Proceed as a Seaman are unlawful administrative acts that are not protected by absolute immunity nor any other immunities. In the matter of the denied Motion to Proceed as a Seaman the Petition for Writ of Certiorari with its evidence of extortion under color of law and the Citizen’s Arrest Warrants for the Chief Justice and the Court Clerk it can now be substantiated that the Chief Justice and the Court Clerk have unlawfully resisted Citizen’s Arrest, escaped Citizen’s Arrest, and by strict interpretation of the Rule of Law, they are now fugitives from justice.

Revision to the Rules of the Supreme Court of the United States July 17, 2007 http://www.supremecourtus.gov/ctrules/2007revisedrules.pdf Rule 40.2 as of 2007 A seaman suing under 28 U.S.C. § 1916 may proceed without prepayment of fees or costs or furnishing security therefor, but is not entitled to proceed under Rule 33.2, except as authorized by the Court on separate motion under Rule 39. Revised Rule 40.2 A seaman suing under 28 U.S.C. § 1916 may proceed without prepayment of fees or costs or furnishing security therefor and may file a motion for leave to proceed on papers prepared as required by Rule 33.2. The motion shall ask leave to proceed as a seaman and be accompanied by an affidavit or declaration setting out the moving party’s seaman status. A copy of the motion shall precede and be

PART 19. THE 358 CLAIMS

PART 19. THE CLAIMS attached to each copy of the petition for writ of certiorari or other substantive document filed by the seaman. [CLERK’S COMMENT: . . . THE REVISED RULE ALSO EXTENDS THE EXEMPTION FROM THE PREPARATION OF BOOKLET-FORMAT DOCUMENTS TO SEAMEN. IF THE REASON FOR THE STATUTORY EXEMPTIONS IS TO REMOVE COST BARRIERS, THE EXEMPTION OF THE PRINTING REQUIREMENT REMOVES THE BIGGEST COST BARRIER TO FILING IN THIS COURT.]

CLAIM No. (7): Don Hamrick has a Right to a Private Bill Remedy Citing as Precedence Wilke v. Robbins, 551 U.S. ____; 433 F. 3d 755; 1127 S.Ct. 2588 (June 25, 2007). The U.S. Supreme Court’s opinion in Wilkie v. Robbins directs Don Hamrick by manner of precedence, to seek relief from the U.S. Congress with a PRIVATE BILL as a remedy to patterns of wrongful behavior of U.S. Government employees that has otherwise been denied by final agency action and denied Bivens and RICO Act remedies by the federal courts. In Robbins, the Court said: We think accordingly that any damages remedy for actions by Government employees who push too hard for the Government’s benefit may come better, if at all, through legislation. “Congress is in a far better position than a court to evaluate the impact of a new species of litigation” against those who act on the public’s behalf. Bush, 462 U. S., at 389. And Congress can tailor any remedy to the problem perceived, thus lessening the risk of raising a tide of suits threatening legitimate initiative on the part of the Government’s employees. Ibid. (“[Congress] may inform itself through factfinding procedures such as hearings that are not available to the courts”); cf. Harlow v. Fitzgerald, 457 U. S. 800, 814 (1982) (recognizing “the danger that fear of being sued will dampen the ardor of all but the most resolute, or the most irresponsible public officials, in the unflinching discharge of their duties” (internal quotation marks and brackets omitted)). Id. at 22 (last paragraph in II. C.) In Don Hamrick’s case, as in Robbins, the federal courts and federal agencies have employed a systematic pattern of wrongful and malicious behavior amounting to not only constitutional violations but also violations of human rights of access to the courts, to a civil jury trial, and to a judicial remedy consisting “of an episodic series of small events—events that in isolation may verge on the trivial. But—as the metaphor “death by a thousand cuts” suggests—a series of small harms, in unison or in sequence, can add up to one very large harm indeed.”599 The combined effect of the Judicial Branch, the Executive Branch, and the Legislative Branch unilaterally restricting available remedies has created unconstitutional conditions of a nihilistic form of Government repugnant to our guaranteed Republican form of Government were remedies are all but abolished. This is, by definition, tyranny most rampant. This type of abuse of authority and abuse of office, in matters where firearms are included under the umbrella of property rights (physical taking) and included under the Second Amendment (non-physical, legislative takings) of the Fifth Amendment ought to be included in Title 18, Part I – Crimes, Chapter 65 – Malicious Mischief; in Title 5, Government Organization and Employees, Part I, The Agencies Generally, Chapter 7, Judicial Review, § 704 Actions Reviewable; in The Federal Tort Claims Act; in Title 28, Part I, Organization of the Courts, Chapter 16 – Complaints Against Judges and Judicial Discipline. 599

Citing Laurence H. Tribe, DEATH BY A THOUSAND CUTS: CONSTITUTIONAL WRONGS WITHOUT REMEDIES A FTER WILKIE V. ROBBINS [1127 S. CT. 2588 (2007)].

359THE CLAIMS PART 19.

PART 19. THE CLAIMS Justice Souter delivered the opinion to the Court in Wilkie v. Robbins 551 U.S. ____; 433 F. 3d 755; 1127 S.Ct. 2588 (June25, 2007) Officials of the Bureau of Land Management stand accused of harassment and intimidation aimed at extracting an easement across private property. The questions here are whether the landowner has either a private action for damages of the sort recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), or a claim against the officials in their individual capacities under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §§1961-1968 (2000 ed. and Supp. IV). We hold that neither action is available. Don Hamrick’s case survives Wilkie v Robbins closure of Bivens and RICO Act remedies because Don Hamrick’s case is a literal case of extortion under color of law, 18 U.S.C. § 872 in violation of a seman’s statutory right under 28 U.S.C. § 1916. Citing Wilkie v. Robbins: But even assuming that defendants’ conduct would be “chargeable under State law and punishable by imprisonment for more than one year,” 18 U. S. C. § 1961(1)(A), it cannot qualify as a predicate offense for a RICO suit unless it is “capable of being generically classified as extortionate,”600 Scheidler, 537 U. S., at 409, 410; accord, United States v. Nardello, 393 U. S. 286, 296 (1969). But yet, the U.S. Supreme Court denied Don Hamrick’s Motion to Proceed as a Seaman, (No. 07M24), which accompanied his Petition for Writ of Cetiorari on the vary same category of a pattern of racketeering activity under the RICO Act as Robbins claimed but with Hamrick’s additional Hobbs Act claim of extortion as a predicate act for RICO liability. The strict interpretation of the Rule of Law dictates that Don Hamrick’s case should have been heard by the U.S. Supreme Court and the denial of his Motion to Proceed as a Seaman non sequitur 601 to the Rule of Law. The U.S. Supreme Court affirms the public suspicion about formulating opinions to a pre-conceived decision before weighing in all the evidence with the remark in Robbins “The point here is not to deny that Government employees sometimes overreach, for of course they do, and they may have done so here if all the allegations are true. The point is the reasonable fear that a general Bivens cure would be worse than the disease.” Ib. at 23. (last paragraph in Section II. B. 1.). Congressional remedy for Don Hamrick is compelling.

CLAIM No. (8) Civil RICO Act Treble Damages in the amount of $14 Million Because of the U.S. Coast Guard’s wrongful detention, harassment, and defamation of Don Hamrick for exercising his First Amendment and Second Amendment rights and for involving the U.S. Coast Guard as a Defendant in his federal litigation Don Hamrick and the 5-year ordeal of obstructive federal litigation by the federal courts and the U.S. Department of Justice Don Hamrick seeks damages from the U.S. Congress in this Private Bill. Don Hamrick used a 2003 TSA wrongful detention case602 with a settlement of $50,000 for 3 hours of wrongful detention to arrive at his $14 million amount. That mathematical equation worked out as follows: $50,000 for 3 hours of wrongful detention ÷ 3 hours = $16,666.67/hour $16,666.67 x 24 hours = $40,0000/day 600

Emphasis added.

601

Latin: “it does not follow” inference or conclusion that does not logically follow from the premises.

602

http://www.cnsnews.com/Nation/archive/200308/NAT20030801b.html (Still available as of December 14, 2007).

PART 19. THE 360 CLAIMS

PART 19. THE CLAIMS $40,0000/day x 12 days of wrongful detention by U.S. Coast Guard = $4.8 million $4.8 million x RICO Act Treble Damages = $14.4 Million The U.S. Coast Guard in Washington, DC had Don Hamrick taken off a U.S. Government Pre-Position vessel anchored off the coast of Lithuania and placed in a hotel for what turned out to be 12 days, and under orders of the Coast Guard, was told to wait for the arrival of two civilian special agents of the U.S. Naval Criminal Investigative Service to be criminally interviewed. The ship left the very next day for a 10-day exercise with the U.S. Navy stranding Don Hamrick in Lithuania at company’s expense for the hotel bill and his own expenses for meals and other miscellaneous expenses which were never reimbursed. To cause the Coast Guard’s wrath Don Hamrick emailed a Second Amendment advocacy article in support of his application for the endorsement. The article cover had a photo of someone aiming a handgun at the viewer point-blank with the caption, “Who do you want holding this gun? The criminal? Or, the law-abiding citizen.” Don Hamrick had been emailing the U.S. Coast Guard officer in Washington, DC on a recurring basis for 6 months prior to the emailing of that Second Amendment article on May 25, 2002. The day before, on May 24, 2002, the U.S. Coast Guard officer mailed a letter to Don Hamrick’s home address affirming the April 19, 2002 (coincidentally on Patriot’s Day) Final Agency Action denying the endorsement. The Coast Guard did not email Don Hamrick about that letter to which the Coast Guard officer knew full well Don Hamrick was aboard ship anchored off the coast of Lithuania. The U.S. Coast Guard maliciously perceived this as a threat in retaliation for the May 24, 2002 letter without taking into consideration that Don Hamrick was not aware of the May 25, 2002 Coast Guard letter. The U.S. Congress statutorily waived sovereign immunity for U.S. seamen disputing Final Agency Actions of the U.S. Coast Guard under 46 C.F.R. § 1.01–30(a) which states: “Nothing in this chapter shall be construed to prohibit any party from seeking judicial review of any Commandant’s decision . . .” The U.S. Coast Guard retaliated against Don Hamrick for bringing suit against the Coast Guard in addition to others, including the President of the United States, George W. Bush on a Petition for Writ of Mandamus followed by five years of abusive of judicial procedures by the federal courts and the U.S. Department of Justice. The most egregious of these is the U.S. Department of Justice claiming the United States did not waive sovereign immunity from a suit such as this with the federal courts agreeing to that convenience in defiance of the actual waiver of sovereign immunity under 46 C.F.R. § 1.01–30(a). That is only the tip of the troubles Don Hamrick has experience with the federal courts and the U.S. Department of Justice.

CLAIM No. (9) $1 Million in Compensatory Damages Don Hamrick’s pursuit of his Second Amendment right through the U.S. Coast Guard’s administrative appeals process and through judicial review in the federal courts for an agonizing five years has not been without adversity or injury. has incurred medical injury to his health in the form of high blood pressure causing the end of his 19-year career as a seamen with the Seafarers International Union because by the act of Because Don Hamrick was fired off a U.S. container ship in Europe for high blood pressure that unexpected event knocked him out of his financial juggling act of putting his wages earned toward the expenses of pursuing his Second Amendment rights in the federal courts has financially ended his membership with the Seafarers International Union. Don Hamrick, at age 52, must start his life financially from scratch. Because Don Hamrick devoted his life from 2002 to the present pursuing and defending the constitutional rights of American seamen through the administrative process with the U.S. Coast Guard and through the judicial review process in the federal courts on his own initiative without an attorney and faced insurmountable obstacles Don Hamrick rightfully claims that the Commandant of the U.S. Coast Guard should provide honorary recognition under 14 U.S.C. § 93(a)(22) for his significant contribution to the recognition of rights and duties of U.S. Merchant Marine personnel as a vital component to the Common Defence clause of the Preamble to the U.S. Constitution which consists of not only the National Defense but also the Common Defence of actual freedom for

361THE CLAIMS PART 19.

PART 19. THE CLAIMS the people of the United States through the Second Amendment right to keep and bear arms as an additional part of compensatory damages..

PART 19. THE 362 CLAIMS

PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS)

Part 20. Statement of Proposed RICO Charges (Claims) Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

PART 20. STATEMENT OF P363 ROPOSED RICO CHARGES (CLAIMS)

PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) There is sufficient federal actions violating my First Amendment right to petition the Government for redress of grievances, my Seventh Amendment right to a civil jury trial under the common law, my human right to a fair trial under Article XVIII of the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN 1948, in this case to sustain a cause of action under the following remedies: (1) 42 U.S.C. § 1983 CIVIL ACTION FOR DEPRIVATION OF RIGHTS; (2) U.S.C. § 1986 ACTION FOR NEGLECT TO PREVENT DEPRIVATION OF RIGHTS; (3) 42 U.S.C § 1988 PROCEEDINGS IN VINDICATION OF CIVIL RIGHTS, (4) 18 U.S.C. § 242 DEPRIVATION OF RIGHTS UNDER COLOR OF LAW; and, (5) the RICO Act provision, 18 U.S.C. § 1964(c) for civil remedies providing threefold the amount of damages originally sustained. This includes the issuance of the petitioned WRIT OF MANDAMUS (or COURT ORDER), WRIT OF PROHIBITION, DECLARATORY JUDGMENT, and INJUNCTIVE RELIEF in my favor.

Charge Michael Chertoff

Violating Second Amendment rights and duties of U.S. seafarers by neglect, by overt acts, by failure to act, and/or by omission (42 U.S.C. § 1983, 1985, 1986) because the U.S. Department of Homeland Security has general superintendence of the U.S. Merchant Marine (46 U.S.C. § 2103) and has not made provisions for the Second Amendment rights and duties of U.S. Seafarers in the Code of Federal Regulations or legislated such rights and duties through the U.S. Congress.

Michael Prendergast

Malicious Retaliation against the Plaintiff whether on his own initiative or at the request of the U.S. Coast Guard, by issuing a Bar Notice twice, one on September 17, 2004 and the second time on August 11, 2006, circumstances described in Plaintiff’s Motion for Permanent Injunction.

Commandant, USCG

Violating Second Amendment rights and duties of U.S. seafarers by neglect, by overt acts, by failure to act, and/or by omission (42 U.S.C. § 1983, 1985, 1986) for allowing the continued state of no provisions in the Code of Federal Regulations or the U.S. Code addressing the Second Amendment rights and duties of U.S. Seafarers and their role in homeland security under the U.S. Department of Homeland Security.

Judge Reggie B. Walton

RICO Obstruction of Justice by Retaliating Against the Plaintiff/Victim 18 U.S.C. § 1513. Obstruction of Justice by Fraud and False Statements (18 U.S.C. § 455; 18 U.S.C. § 455(b)(1); and 18 U.S.C. § 1001). Violating my right to due process by accepting my case when the U.S. District Court for DC did not have jurisdiction (28 U.S.C. § 1402(a)(1)).

Judge Ellen Segal Huvelle

RICO Obstruction of Justice by Fraud and False Statements (18 U.S.C. § 455; 18 U.S.C. § 455(b)(1); and 18 U.S.C. § 1001). RICO Obstruction of Justice by Retaliating Against the Plaintiff/Victim 18 U.S.C. § 1513. Violating my right to due process by accepting my case when the U.S. District Court for DC did not have jurisdiction (28 U.S.C. § 1402(a)(1)). Judge Elle Segal Huvelle in Plaintiff’s original cases, and Judge Reggie B. Walton in Plaintiff’s Round-2 case employing the RICO Act, and the counsels for the Government made false representations of the facts of the

364 PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS)

PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) Plaintiff’s cases or concealed material facts from the Plaintiff and/or that counsels for the Government in league with the U.S. Department of Justice made false representations or concealed material facts from the Court. The Plaintiff presents the following chronology to support his claims: OCTOBER 26, 2002. Judge Ellen Segal Huvelle stated in her Memorandum dismissing Plaintiff’s case with prejudice that: FALSE REPRESENTATION: “Miller remains the most authoritative modern pronouncement on the amendment’s meaning and its conclusion that the right to bear arms is limited by the needs of an organized militia has subsequently been echoed by the Supreme Court and followed in this and other circuits. See United States v. Lewis, 445 U.S. 55, 65 n.8 (1980); Fraternal Order of Police v. United States, 173 F.3d 898, 905-06 (D.C. Cir. 1999); accord United States v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001) (holding that “a federal criminal gun control law does not violate the Second Amendment unless it impairs the state’s ability to maintain a well-regulated militia”).” THE CONCEALED MATERIAL FACT: The often-cited Miller case from 1939 is inconclusive, which is why gunrights and gun-control advocates both claim it supports their position. The record shows that the Court actually remanded this case back to the lower court for retrial and a hearing on the evidence, since there was no evidence presented. Because Miller had been murdered by that time and his co-defendant had taken a plea agreement, no retrial or evidentiary hearing was ever held. 603 On the basis of this particular Concealed Material Fact the Plaintiff has fulfilled the requirement for Equitable Estoppel against the U.S. Government. Dennis Barghaan

Obstruction of Justice (18 U.S.C. § 1505). Withholding evidence produced by the U.S. Department of Justice that vindicated my case for the Second Amendment as an individual right. OCTOBER 21, 2003. I filed my RICO Act case for the Second Amendment at the U.S. District Court for DC (No. 03-2160). Alan Burch, Assistant U.S. Attorney from the U.S. Attorney’s Office in Washington, DC (555 4TH ST., NW). JUNE 2, 2004. Almost 7.5 months since I filed my case Alan Burch is “Terminated” (word used in the Docket Report) and was replaced by Dennis Barghaan, “Special Attorney” from the U.S. Attorney’s Office for the Western District of Virginia in Alexandria under 28 U.S.C. 515 (out of jurisdiction U.S. Attorney). The Plaintiff alleges that the switch of defense attorneys has a direct bearing on the impending internal release of the Justice Department’s Memorandum Opinion titled, Whether the Second Amendment Secures an Individual Right on August 24, 2004, just 83 days away.

603

http://w 12 ww.gunlaws.com/SCGC-News.html

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PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) Something had to be done to prevent the Plaintiff from using that Memorandum Opinion as evidence in the District Court. So, the Justice Department brounght in a hatchet man to expedite the dismissal of Plaintiff’s case before the expected release date of the Memorandum Opinion. This implies a conspiracy against the due process rights of the Plaintiff in violation of 18 U.S.C. § 241. Plaintiff alleges that the sole purpose for the switch in defense attorneys is to effectively deny the Plaintiff his right to use the Justice Department’s upcoming Memorandum Opinion on the Second Amendment as evidence supporting his case. JUNE 21, 2004. Dennis Barghaan filed the Motion to Dismiss just 19 days after replacing Alan Burch. Plaintiff notes that the Department of Justice was going to internally release their Memorandum Opinion on August 24, 2004 which is just 64 days from June 21. Plaintiff has 60 days to respond to the Motion to Dismiss. If Dennis Barghaan had prior knowledge of the Department of Justice’s Memorandum Opinion it is the Appellant’s belief that he had a duty to inform the court of the impending release of this Memorandum Opinion because it had a direct impact upon the case at hand. If Dennis Barghaan did not have prior knowledge then the duty fell upon the Department of Justice to inform Dennis Barghaan of the impending release of the Memorandum Opinion because it was and is admissible evidence affecting the integrity of the governments argument against the Plaintiff/Appellant. The fact that the existence of the Memorandum Opinion was never made known to the District Court or to the DC Circuit or even to the Plaintiff, that the Plaintiff learned of the Memorandum Opinion through his Internet news links implies a deliberate attempt to subvert justice. The Appellant alleges that the timing of Dennis Barghaan’s Motion to Dismiss occurring just 64 days before the internal release of the Memorandum implies prior knowledge calculated to unjustly defeat Appellant’s case at the District Court. The Appellant further alleges that Dennis Barghaan’s obstructive tactics are meant to harass or to cause unnecessary delay or needless increase in the cost of litigation and Dennis Barghaan’s denials of factual contentions are not warranted on the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief because the Appellant has now identified the Memorandum Opinion as admissible evidence and there can be no lack of information on the Second Amendment as an individual right because it was the duty of the Justice Department to inform Dennis Barghaan of the Memorandum Opinion. That fact that this was not done implies an intentional violation of Rule 11(b)(1) and Rule 11(b)(4) of the Federal Rules of Evidence. JULY 12, 2004. The Justice Department issues a press release stating that Paul D. Clement was will serve as acting Solicitor General. JULY 15, 2004. The judge, Reggie B. Walton, denies my Motion for Change of Venue. AUGUST 10, 2004. My Objection to Motion to Dismiss filed out of time (because Kinkos lost my emailed Objection due to a virus attack. But Dennis Barghaan in a footnote in his rebuttal did not oppose my filing out of time). AUGUST 16, 2004. Dennis Barghaan files his rebuttal to my objection.

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PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) AUGUST 16, 2004. Wasting no time Judge Reggie B. Walton grants Motion to Dismiss just 8 days before the internal release of the Justice Department’s Memorandum Opinion. A job well done by Dennis Barghaan. Does Judge Walton actually read these motions? AUGUST 24, 2004. RELEVANT EVIDENCE CONCEALED FROM THE COURT & PLAINTIFF. 604 U.S. Department of Justice internally published their Memorandum Opinion for the Attorney General John Ashcroft titled, Whether the Second Amendment Secures an Individual Right. The Department of Justice did not release the Memorandum Opinion to the public until mid-December 2004, for obvious political gain until well after the presidential election in November. That Memorandum Opinion is documentary evidence, a government record under 28 U.S.C. § 1733 and is admissible as evidence because under Rule 704 of the Federal Rules of Evidence the Memorandum Opinion becomes an Opinion on an Ultimate Issue because it embraces an ultimate issue to be decided by the trier of fact. [Rule 406 Habit/Routine Practice] AUGUST 27, 2004. Plaintiff filed Notice of Appeal. AUGUST 27, 2004. On this date President Bush issues Executive Order 13353 ESTABLISHING THE PRESIDENT’S BOARD ON SAFEGUARDING AMERICANS’ CIVIL LIBERTIES. The Deputy Attorney General James Comey is appointed as Chairman. However, there may exist a conflict of interest with this appointment. In the May 21, 2001 edition of U.S. News & World Report then U.S. Attorney James Comey is reported to have said “To us gun possession itself is a crime of violence” in discussing Virginia’s Project Exile program. James Comey’s position against the Second Amendment as an individual right back then does not exactly square with his appointment to the President’s Board on Safeguarding American Civil Liberties. At best it compares more accurately to a Trojan Horse tactic for an undisclosed agenda. SEPTEMBER 9, 2004. Appellant filed his Appellant’s Brief at the DC Circuit. SEPTEMBER 14, 2004. Appellant filed MOTION FOR PERMISSIVE INTERVENTION BY THE PRESIDENT’S BOARD ON SAFEGUARDING AMERICANS’ CIVIL LIBERTIES AND OTHER THIRD PARTIE S & MOTION FOR APPEAL CONFERENCE. The DC Circuit has not yet ruled on this motion or any motion for judicial notice of adjudicative facts or presumptions in general that the Plaintiff has filed. Copy of this motion was FedEx’d to the Deputy Attorney General James Comey as Chairman of that civil liberties board. No response has yet been received. This is not a very good track record for the Government on protecting the civil liberties of the American people when the federal courts and the Executive Branch treats a pro se Plaintiff in such a manner.605

604

Plaintiff’s Emphasis. “THE SMALL CAPS” segment 13 was not part of the email but was included herein for clarification of its importance to Plaintiff’s allegation of misconduct. 605

Plaintiff’s Note: This entry was not in the original email. It is 14 provided herein for clarification on the apparent reluctance on the DC Circuit to rule on motions by the Plaintiff when the judicial history of Plaintiff’s cases continues the

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PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) MID-DECEMBER 2004: The U.S. Department of Justice Memorandum Opinion for the Attorney General titled, WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT, August 24, 2005, emerges in the public arena. The Memorandum Opinion concludes that: For the foregoing reasons, we conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collectiveright views. The text of the Amendment’s operative clause, setting out a “right of the people to keep and bear Arms,” is clear and is reinforced by the Constitution’s structure. The Amendment’s prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England’s Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion. Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment’s ratification, confirm what the text and history of the Second Amendment require.606 OBSERVATION FROM TIMELINE: Alan Burch was almost 7.5 months (225 days) as defense counsel and hadn’t filed the Motion to Dismiss. He was under Ted Olson as Solicitor General. Dennis Barghaan took a fast 2 months, 3 weeks, 4 days (75 days total) to get Judge Reggie B. Walton to dismissed the Plaintiff’s case with prejudice. It is the Appellant’s understanding that if evidence does not get admitted into the record at the District Court then that evidence cannot be submitted at the Appellant level. However, the ethical conduct of Dennis Barghaan and the Justice Department can be submitted as evidence of a conspiracy to subvert justice and for other allegations which can lead the DC Circuit in overturning the District Courts dismissal with prejudice.

A. RICO charges: U.S. Attorney’s Manual, Title 4 Civil Resource Manual § 109 It is unlawful for anyone employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. 18 U.S.C.A. § 1962(c) (West 1984). The Racketeer Influenced and Corrupt Organization Act (RICO) was passed by Congress with the declared purpose of seeking to eradicate organized crime in the United States. Russello v. United States, 464 U.S. 16, 26-27, 104 S. Ct. 296, 302-303, 78 L. Ed. 2d 17 (1983); United States v. Turkette, 452 U.S. 576, 589, 101 S. Ct. 2524, 2532, 69 L. Ed. 2d 246 (1981). A violation of Section 1962(c), requires (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S. Ct. 3275, 3285, 87 L. Ed. 2d 346 (1985). A more expansive view holds that in order to be found guilty of violating the RICO statute, the government must prove beyond a reasonable doubt: (1) that an enterprise existed; (2) that the enterprise affected interstate

pattern of the federal courts favor granting motions from the Government by deny motions from the Plaintiff. This implies a judicial bias against the Plaintiff. 606

http://www.usdoj.gov/olc/secondamendment2.htm.

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PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) commerce; (3) that the defendant was associated with or employed by the enterprise; (4) that the defendant engaged in a pattern of racketeering activity; and (5) that the defendant conducted or participated in the conduct of the enterprise through that pattern of racketeering activity through the commission of at least two acts of racketeering activity as set forth in the indictment. United States v. Phillips, 664 F. 2d 971, 1011 (5th Cir. Unit B Dec. 1981), cert. denied, 457 U.S. 1136, 102 S. Ct. 1265, 73 L. Ed. 2d 1354 (1982). An “enterprise” is defined as including any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity. 18 U.S.C.A. § 1961(4) (West 1984). Many courts have noted that Congress mandated a liberal construction of the RICO statute in order to effectuate its remedial purposes by holding that the term “enterprise” has an expansive statutory definition. United States v. Delano, 825 F. Supp. 534, 538-39 (W.D.N.Y. 1993), aff’d in part, rev’d in part, 55 F. 3d 720 (2d Cir. 1995), cases cited therein. “Pattern of racketeering activity” requires at least two acts of racketeering activity committed within ten years of each other. 18 U.S.C.A. § 1961(5) (West 1984). Congress intended a fairly flexible concept of a pattern in mind. H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S. Ct. 2893, 2900, 106 L. Ed. 2d 195 (1989). The government must show that the racketeering predicates are related, and that they amount to or pose a threat of continued criminal activity. Id. Racketeering predicates are related if they have the same or similar purposes, results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing characteristics and are not isolated events. Id. at 240, 109 S. Ct. at 2901; Ticor Title Ins. Co. v. Florida, 937 F. 2d 447, 450 (9th Cir. 1991). Furthermore, the degree in which these factors establish a pattern may depend on the degree of proximity, or any similarities in goals or methodology, or the number of repetitions. United States v. Indelicato, 865 F. 2d 1370, 1382 (2d Cir.), cert. denied, 493 U.S. 811, 110 S. Ct. 56, 107 L. Ed. 2d 24 (1989). Continuity refers either to a closed period of repeated conduct, or to past conduct that by its nature projects into the future with a threat of repetition. H.J., Inc., 492 U.S. at 241-42, 109 S. Ct. at 2902. A party alleging a RICO violation may demonstrate continuity over a closed period by proving a series of related predicates extending over a substantial period of time. Id. Predicate acts extending over a few weeks or months and threatening no future criminal conduct do not satisfy this requirement as Congress was concerned with RICO in long-term criminal conduct. Id. As to the continuity requirement, the government may show that the racketeering acts found to have been committed pose a threat of continued racketeering activity by proving: (1) that the acts are part of a long-term association that exists for criminal purposes, or (2) that they are a regular way of conducting the defendant’s ongoing legitimate business, or (3) that they are a regular way of conducting or participating in an ongoing and legitimate enterprise. Id. When a RICO action is brought before continuity can be established, then liability depends on whether the threat of continuity is demonstrated. Id. However, Judge Scalia wrote in his concurring opinion that it would be absurd to say that “at least a few months of racketeering activity. . .is generally for free, as far as RICO is concerned.” Id. at 254, 109 S. Ct. at 2908. Therefore, if the predicate acts involve a distinct threat of long-term racketeering activity, either implicit or explicit, a RICO pattern is established. Id. at 242, 109 S. Ct. at 2902. The RICO statute expressly states that it is unlawful for any person to conspire to violate any of the subsections of 18 U.S.C.A. § 1962. The government need not prove that the defendant agreed with every other conspirator, knew all of the other conspirators, or had full knowledge of all the details of the conspiracy. Delano, 825 F. Supp. at 542. All that must be shown is: (1) that the defendant agreed to commit the substantive racketeering offense through agreeing to participate in two racketeering acts; (2) that he knew the general status of the conspiracy; and (3) that he knew the conspiracy extended beyond his individual role. United States v. Rastelli, 870 F. 2d 822, 828 (2d Cir.), cert. denied, 493 U.S. 982, 110 S. Ct. 515, 107 L. Ed. 2d 516 (1989).

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PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS)

B. RICO-related Charges: U.S. Attorney’s Manual, Title 9 Criminal Resource Manual § 110 A major focus in curbing gang violence should be the consideration of prosecuting the gangs for the RICO-related charges of Violent Acts in Aid of Racketeering Activity under 18 U.S.C.A. § 1959. Originally designated 18 U.S.C.A. § 1952B, it was redesignated as 18 U.S.C.A. § 1959 in 1988. This statute can be a key law in prosecuting gang activity. The pertinent portion of 18 U.S.C.A. § 1959 provides: Whoever . . . for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the laws of any State or the United States, or attempts or conspires so to do, shall be punished . . . 18 U.S.C.A. § 1959 (West Supp. 1995). “Enterprise” is defined under 18 U.S.C.A. § 1959(b)(2) (West Supp. 1995), to include “. . . any . . . group of individuals associated in fact although not a legal entity, which is engaged in, or the activities which affect, interstate or foreign commerce.” “Racketeering activity” is described in 18 U.S.C.A. § 1959(b)(1) as having the same meaning as Section 1961 under the RICO chapter found at 18 U.S.C.A. § 1961. Under that section, “racketeering activity” includes kidnapping, robbery, and dealing in narcotic drugs, which are chargeable under state law and punishable by imprisonment for more than one year. Proving these elements can be difficult but not impossible. “Enterprise” can be proven with evidence that the gang’s activities concentrated around cocaine, an item grown in South America and which must be moved in interstate and foreign commerce to be present in the United States. It can be argued that the gang’s receipt and use of firearms which were manufactured in other states, to commit their crimes, also adds to proof of the interstate or foreign commerce nexus which must be shown when proving an enterprise. Evidence shows that the participation by the gang members in crimes are required by of them to either become members, or continue or increase their membership in the gang. This is another element required to be proven under Section 1959. IMPORTANT NOTE: Prosecutions under RICO and RICO related statutes must be approved by the Criminal Division of the Department of Justice. United States Attorneys’ Manual, Title 9-110.101. The Department of Justice lawyers should prove immeasurably helpful in their advice and guidance in preparing for prosecution under this complex statute.

C. Extortion: Hobbs Act – Generally: U.S. Attorney’s Manual, Title 9 Criminal Resource Manual § 2402 The Hobbs Act prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce “in any way or degree.” Section 1951 also proscribes conspiracy to commit robbery or extortion without reference to the conspiracy statute at 18 U.S.C. § 371. The statutory prohibition of “physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section” is confined to violence for the purpose of committing robbery or extortion. United States v. Franks, 511 F.2d 25, 31 (6th Cir. 1975) (rejecting the view that the statute proscribes all physical violence obstructing, delaying, or affecting commerce as contrasted with violence designed to culminate in robbery or extortion). The extortion offense reaches both the obtaining of property “under color of official right” by public officials and the obtaining of property by private actors with the victim’s “consent, induced by wrongful use of actual or threatened force, violence, or fear,” including fear of economic harm. See this Manual at 2405 and Evans v. United States, 504 U.S. 255, 265, 112 S.Ct. 1181, 1188 (1992) (only a private individual’s extortion of property by the wrongful use of force, violence, or fear requires that the victim’s consent be induced by these means; extortion of property under color of official right does not require that a public official take steps to induce the extortionate payment).

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PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) Although the Hobbs Act was enacted in 1946 to combat racketeering in labor-management disputes, the extortion statute is frequently used in connection with cases involving public corruption, commercial disputes, and corruption directed at members of labor unions. Proof of “racketeering” as an element of Hobbs Act offenses is not required. United States v. Culbert, 435 U.S. 371, 98 S.Ct. 1112 (1978). However, a violation of the Hobbs Act may be part of a “pattern of racketeering activity” for purposes of prosecution under the Racketeer Influenced and Corrupt Organizations (RICO) statute (18 U.S.C. § 1961, et seq.).

D. Extortion By Force or Fear – U.S. Attorney’s Manual, Title 9 Criminal Resource Manual § 2403 In order to prove a violation of Hobbs Act extortion by the wrongful use of actual or threatened force, violence, or fear, the following questions must be answered affirmatively:

(1). Did the defendant induce or attempt to induce the victim to give up property or property rights? “Property” has been held to be “any valuable right considered as a source of wealth.” United States v. Tropiano, 418 F.2d 1069, 1075 (2d Cir. 1969) (the right to solicit garbage collection customers). “Property” includes the right of commercial victims to conduct their businesses. See United States v. Zemek, 634 F.3d 1159, 1174 (9th Cir. 1980) (the right to make business decisions and to solicit business free from wrongful coercion) and cited cases). It also includes the statutory right of union members to democratically participate in union affairs. See United States v. Debs, 949 F.2d 199, 201 (6th Cir. 1991) (the right to support candidates for union office); United States v. Teamsters Local 560, 550 F. Supp. 511, 513-14 (D.N.J. 1982), aff’d, 780 F.2d 267 (3rd Cir. 1985) (rights guaranteed union members by the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411).

(2). Did the defendant use or attempt to use the victim’s reasonable fear of physical injury or economic harm in order to induce the victim’s consent to give up property? A defendant need not create the fear of injury or harm which he exploits to induce the victim to give up property. See United States v. Duhon, 565 F.2d 345, 349 and 351 (5th Cir. 1978) (offer by employer to pay union official for labor peace held to be “simply planning for inevitable demand for money” by the union official under the circumstances); United States v. Gigante, 39 F.3d 42, 49 (2d Cir. 1994), vacated on other grounds and superseded in part on denial of reh’g, 94 F.3d 53 (2d Cir. 1996) (causing some businesses to refuse operations with the victim sufficiently induced the victim’s consent to give up property, consisting of a right to contract freely with other businesses, as long as there were other businesses beyond defendants’ control with whom the victim could do business). Moreover, attempted extortion may include an attempt to instill fear in a federal agent conducting a covert investigation or a defendant “made of unusually stern stuff.” See United States v. Gambino, 566 F.2d 414, 419 (2d Cir. 1977) (argument that FBI agent pretending to be extortion victim could not be placed in fear is not a defense to attempted extortion of the agent); see also United States v. Ward, 914 F.2d 1340, 1347 (9th Cir. 1990) (an attempt to instill fear included a demand for money from a victim who knew that the defendant was only pretending to be a federal undercover agent when he threatened the victim with prosecution unless money was paid). However, the payment of money in response to a commercial bribe solicitation, that is, under circumstances where the defendant does not threaten the victim with economic harm, but only offers economic assistance in return for payment to which the defendant is not entitled, is not sufficient to prove extortion by fear of economic loss. United States v. Capo, 817 F.2d 947, 951-52 (2d Cir. 1987) (solicitation of money from job applicants by persons having no decisionmaking authority in return for favorable influence with employment counselors was insufficient evidence of inducement by fear); but see United States v. Blanton, 793 F.2d 1553, 1558 (11th Cir. 1986) (inducement by fear was proven by the defendant’s solicitation of a labor consulting contract, to help PART 20. STATEMENT OF P371 ROPOSED RICO CHARGES (CLAIMS)

PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) employer stop outside union organizing, when the solicitation was accompanied by defendant’s threat to form another union and begin organizing employees if the consulting contract was not accepted).

(3). Did the defendant’s conduct actually or potentially obstruct, delay, or affect interstate or foreign commerce in any (realistic) way or degree? The Hobbs Act regulates extortion and robbery, which Congress has determined have a substantial effect on interstate and foreign commerce by reason of their repetition and aggregate effect on the economy. Therefore, the proscribed offenses fall within the category of crimes based on the Commerce Clause whose “de minimis character of individual instances arising under [the] statute is of no consequence.” United States v. Bolton, 68 F.3d 396, 399 (10th Cir. 1995) (upholding Hobbs Act convictions for robberies whose proceeds the defendant would have used to purchase products in interstate commerce), quoting, United States v. Lopez, --- U.S. ---, 115 S.Ct. 1624, 1630 (1995); material in brackets added; see also United States v. Atcheson, 94 F.3d 1237, 1243 (9th Cir. 1996) (robbery of out-of-state credit and ATM cards); United States v. Farmer, 73 F.3d 836, 843 (8th Cir. 1996) (robbery of commercial business); United States v. Stillo, 57 F.3d 553, 558 n.2 (7th Cir. 1995). Hobbs Act violations may be supported by proof of a direct effect on the channels or instrumentalities of interstate or foreign commerce, as for example, where the threatened conduct would result in the interruption of the interstate movement of goods or labor. See United States v. Taylor, 92 F.3d 1313, 1333 (2d Cir. 1996) (extortion of money, unwanted labor, and subcontracts on construction projects by threatened shutdowns and labor unrest); United States v. Hanigan, 681 F.2d 1127, 1130-31 (9th Cir. 1982) (robbery of three undocumented alien farm workers while they were traveling from Mexico to the United States in search of work); United States v. Capo, 791 F.2d 1054, 1067-68 (2d Cir. 1986), vacated on other grounds, 817 F.2d 947 (2d Cir. 1987) (scheme to extort local job applicants had a potential effect on interstate applicants who might otherwise be hired). Indirect effects on such commerce are also sufficient, as for example, where the obtaining of property and resulting depletion of the victim’s assets decreases the victim’s ability to make future expenditures for items in interstate commerce. Taylor, supra (depletion of contractors’ assets). However, the Seventh Circuit has distinguished Hobbs Act cases involving depletion of a business’ assets from those involving the depletion of an individual employee’s assets which, the court has ruled, are not as likely to satisfy the jurisdictional requirement of the Hobbs Act. United States v. Mattson, 671 F.2d 1020 (7th Cir. 1982); United States v. Boulahanis, 677 F.2d 586, 590 (7th Cir. 1982). Other circuits have agreed where the extortion or robbery of an individual has only an “attenuated” or “speculative” effect on some entity or group of individuals engaged in interstate commerce thereby diminishing the “realistic probability” that such commerce will be affected. See United States v. Collins, 40 F.3d 95, 100 (5th Cir. 1994) (conviction for robbery of a computer company employee reversed on grounds that theft of victim’s automobile with cellular phone had an insufficient effect on his employer’s business); United States v. Quigley, 53 F.3d 909 (8th Cir. 1995) (upholding the acquittal, following guilty verdict, of defendants who beat and robbed two individuals in route to buy beer at a liquor store).

(4). Was the defendant’s actual or threatened use of force, violence or fear wrongful? Generally, the extortionate obtaining of property by the wrongful use of actual or threatened force or violence in a commercial dispute requires proof of a defendant’s intent to induce the victim to give up property. No additional proof is required that the defendant was not entitled to such property or that he knew he had no claim to the property which he sought to obtain. See United States v. Agnes, 581 F.Supp. 462 (E.D. Pa. 1984), aff’d, 753 F.2d 293, 297-300 (3d Cir. 1985) (rejecting claim of right defense to defendant’s use of violence to withdraw property from a business partnership). However, the Supreme Court has recognized a claim-of-right defense to Hobbs Act extortion in labormanagement disputes.

372 PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS)

PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) In a 1973 decision, the Court reversed the conviction of union-member defendants who had used violence against an employer’s property, during an otherwise legitimate economic labor strike, in order “to achieve legitimate union objectives, such as higher wages in return for genuine services which the employer seeks.” United States v. Enmons, 410 U.S. 396, 400 (1973). The Court reasoned that the legislative history of the Hobbs Act disclosed that Congress had been concerned with attempts by union officials to extort wages for unwanted and fictitious labor, to which employees were not entitled, as contrasted with the policing of legitimate labor strikes in general. Therefore, the Court concluded that the union members’ use of violence during the strike was not “wrongful” for purposes of Hobbs Act extortion. The Supreme Court also made a broadly worded statement that “wrongful” has meaning in the Act only if it limits the statute’s coverage to those instances where the obtaining of the property would itself be “wrongful” because the alleged extortionist has no lawful claim to that property. Id. In its labor-management context, the claim-of-right defense is not applicable where defendants do not have legitimate labor objectives. The labor claim-of-right defense has been held not to excuse the following kinds of coercive demands: ! payoffs to union officials and employee representatives in violation of the federal labor laws (29 U.S.C. § 186); United States v. Quinn, 514 F.2d 1250, 1259 (5th Cir. 1975) (solicitation of church donation in return for removal of labor pickets); United States v. Gibson, 726 F.2d 869 (1st Cir. 1984) (request for payoff to remove pickets); ! sham fees which labor unions are not entitled to collect under the labor laws; United States v. Wilford, 710 F.2d 439, 444 (8th Cir. 1983) (economic coercion of dues and initiation fees from truck drivers who were selfemployed or who were told they would receive no member benefits); ! employee payments which violate existing labor contracts; United States v. Russo, 708 F.2d 209, 215 (6th Cir. 1983) (under threat of job loss, employees’ payment of health and pension contributions which labor contract required employer to pay); ! employer payments to labor unions which are not included in existing labor contracts; United States v. Traitz, 871 F.2d 368, 381-82 (3d Cir. 1989) (violence used to collect fines on employers for non-compliance with union rules which were not made part of the labor contract); ! demands that a non-union employer cease business operations during a sham union organizing campaign; United States v. Edgar Jones, 766 F.2d 994, 1002-03 (6th Cir. 1985) (violent campaign by union officials and union-represented competitor to drive the non-union employer out of business under the pretext of persuading employees to join the union and enforce area wage standards); ! employer payments for labor consulting to establish a bogus “sweetheart union” and thereby discourage legitimate organizing by other unions; United States v. Blanton, 793 F.2d 1553 (11th Cir. 1986). ! construction contractors’ payments of money, wages for unwanted and superfluous employees, and subcontracts with employee representatives which were unrelated to the hiring of employees. United States v. Taylor, 92 F.3d 1313, 1319 and 1333 (2d Cir. 1996) (extortion of contractors by leaders of minority labor coalitions). Several courts of appeals have limited the claim-of-right defense to the context of labor-management disputes by refusing to extend the defense to extortionate violence and economic fear in commercial disputes and public corruption cases. United States v. Debs, 949 F.2d 199, 201 (6th Cir. 1991) (violence against union members in retaliation for support of opposition candidate for union office); United States v. Castor, 937 F.2d 293, 299 (7th Cir. 1991) (violent threats to obtain consent to enter into business arrangement); United States v. Zappola, 677 F.2d 264, 269 (2d Cir. 1982) (beating of debtor to coerce repayment of purported debt); United States v. Porcaro, 648 F.2d 753, 760 (1st Cir. 1981) (franchisor’s violence to compel franchisee to vacate premises); United States v. French, 628 F.2d 1069, 1075 (8th Cir.1980) (public official’s kickbacks on bail bond settlements); United PART 20. STATEMENT OF P373 ROPOSED RICO CHARGES (CLAIMS)

PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) States v. Cerilli, 603 F.2d 415, 419 (3d Cir. 1979) (solicitation of political contributions); United States v. Warledo, 557 F.2d 721, 729-730 (10th Cir. 1977) (violence by Native Americans to compel railroad to pay reparations for tribal lands). However, other courts have held that the extortionate use of fear of economic harm in commercial disputes is subject to a claim-of-right defense on the grounds that, unlike violence, the use of economic fear is not inherently “wrongful.” See United States v. Kattar, 840 F.2d 118, 123-24 (1st Cir. 1988) (threat to expose church to litigation unless purported “award” for information was paid to defendant was not a legitimate use of economic fear where the information was false and defamatory); United States v. Clemente, 640 F.2d 1069, 1077-78 (2d Cir. 1981) (extortion of bogus consulting payments from subcontractor coerced by the threat of labor unrest against the subcontractor’s principal). Where the claim-of-right defense applies, courts have generally held that the Government must prove that the defendant knew that he was not entitled to receive the property which he sought to obtain. United States v. Arambasich, 597 F.2d 609, 611 (7th Cir. 1979) (demand by labor union official on employer that the official and others be hired for no-show employment using threat of labor unrest); United States v. Sturm, 870 F.2d 769, 774 (1st Cir. 1989) (in prosecution involving debtor’s withholding of property from a creditor-bank, “the term ‘wrongful’ requires the government to prove, in cases involving extortion based on economic fear, that the defendant knew that he was not legally entitled to the property that he received.”); United States v. Dischner, 974 F.2d 1502, 1515 (9th Cir. 1992) (failure to instruct that defendant must know he had no entitlement to property he sought by use of economic fear did not rise to the level of plain error; but “knowledge of the extortion encompasses knowledge of the lack of lawful claim to the property.”).

E. Extortion Under Color of Official Right - Hobbs Act USAM 9 Criminal.R.M. § 2404 In addition to the “wrongful use of actual or threatened force, violence, or fear,” the Hobbs Act (18 U.S.C. § 1951) defines extortion in terms of “the obtaining of property from another, with his consent . . . under color of official right.” In fact, the under color of official right aspect of the Hobbs Act derives from the common law meaning of extortion. As the Supreme Court explained in a recent opinion regarding the Hobbs Act, “[a]t common law, extortion was an offense committed by a public official who took ‘by color of his office’ money that was not due to him for the performance of his official duties. . . . Extortion by the public official was the rough equivalent of what we would now describe as ‘taking a bribe.’” Evans v. United States, 504 U.S. 255 (1992). In order to show a violation of the Hobbs Act under this provision, the Supreme Court recently held that “the Government need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts.” While the definition of extortion under the Hobbs Act with regard to force, violence or fear requires the obtaining of property from another with his consent induced by these means, the under color of official right provision does not require that the public official take steps to induce the extortionate payment: It can be said that “the coercive element is provided by the public office itself.” Evans v. United States, 504 U.S. 255 (1992); see United States v. Margiotta, 688 F.2d 108, 130 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) (“[t]he public officer’s misuse of his office supplies the necessary element of coercion . . . .”). This theory of extortion under color of official right has resulted in the successful prosecution of a wide range of officials, including those serving on the federal, state and local levels. For example: United States v. O’Connor, 910 F.2d 1266 (7th Cir. 1990), cert. denied, 111 S. Ct. 953 (1991) (police officer accepts payments from FBI agents posing as crooked auto parts dealers); United States v. Stephenson, 895 F.2d 867 (2d Cir. 1990) (international trade official in Department of Commerce accepts payments to influence ruling); United States v. Spitler, 800 F.2d 1267 (4th Cir. 1986) (state highway administrator accepts money from road building contractor); United States v. Wright, 797 F.2d 245 (5th Cir. 1986), cert. denied, 481 U.S. 1013 (1987) (city prosecutors accept money for not prosecuting drunk drivers); United States v. Greenough, 782 F.2d 1556 (11th Cir. 1986) (city

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PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) commissioner accepts money for awarding city concession); United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985), cert. denied, 475 U.S. 1012 (1986) (judges accept payments to fix cases); United States v. Mazzei, 521 F.2d 639 (3d Cir.) (en banc), cert. denied, 423 U.S. 1014 (1975) (state senator accepts money from landlord seeking government office lease). In United States v. Stephenson, 895 F.2d at 871-73, the defendant, who was a federal official, unsuccessfully contended that the Hobbs Act only applied to state and local officials and that prosecution of federal official for extortion would have to be exclusively brought under 18 U.S.C. §872: extortion by officers and employees of the United States. The court found that the government could seek a charge under whichever of these two overlapping statutes it thought appropriate. Moreover, “it is not a defense to a charge of extortion under color of official right that the defendant could also have been convicted of bribery.” Evans v. United States, 504 U.S. 255 (1992). GENERAL RULE: The usual fact situation for a Hobbs Act charge under color of official right is a public official trading his/her official actions in a area in which he/she has actual authority in exchange for the payment of money. Some cases under certain fact situations, however, have extended the statute further. For example: ! Some courts have held that a Hobbs Act violation does not require that the public official have de jure power to perform any official act paid for as long as it was reasonable to believe that he/she had the de facto power to perform the requested act. See United States v. Nedza, 880 F.2d 896, 902 (7th Cir. 1989) (victim reasonably believed state senator had the ability to impact a local business); United States v. Bibby, 752 F.2d 1116, 1127-28 (6th Cir. 1985); United States v. Sorrow, 732 F.2d 176, 180 (11th Cir. 1984); United States v. Rindone, 631 F.2d 491, 495 (7th Cir. 1980) (public official can extort money for permit beyond control of his office, so long as victim has a reasonable belief that he could affect issuance); United States v. Rabbitt, 583 F.2d 1014 (8th Cir. 1978), cert. denied, 439 U.S. 1116 (1979); United States v. Harding, 563 F.2d 299 (6th Cir. 1977), cert. denied, 434 U.S. 1062 (1978); United States v. Brown, 540 F.2d 364 (8th Cir. 1976); United States v. Hall, 536 F.2d 313 (10th Cir.), cert. denied, 429 U.S. 919 (1976); United States v. Hathaway, 534 F.2d 386 (1st Cir.), cert. denied, 429 U.S. 819 (1976); United States v. Mazzei, 521 F.2d 639, 643 (3rd Cir.) (en banc), cert. denied, 423 U.S. 1014 (1975); United States v. Price, 507 F.2d 1349 (4th Cir. 1974). ! Most courts have held that a Hobbs Act violation does not require that the public official be the recipient of the benefit of the extortion, and that a Hobbs Act case exists where the corpus of the corrupt payment went to a third party. However, consistent with the federal offenses of bribery and gratuities under 18 U.S.C. § 201 (see 9 U.S.A.M. §§ 85.101 through 85.105), where the corpus of the corrupt payment inures to the benefit of a person or entity other than the public official most courts have also required proof of a quid pro quo understanding between the private corrupter and the public official. See United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir.), cert. denied, 469 U.S. 1072 (1984) (“a Hobbs Act prosecution is not defeated simply because the extorter transmitted the extorted money to a third party.”); United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) (insurance agency made kickbacks to brokers selected by political leader of town); United States v. Scacchetti, 668 F.2d 643 (2d Cir.), cert. denied, 457 U.S. 1132 (1982); United States v. Forszt, 655 F.2d 101 (7th Cir. 1981); United States v. Cerilli, 603 F.2d 415 (3rd Cir. 1979), cert. denied, 444 U.S. 1043 (1980); United States v. Trotta, 525 F.2d 1096 (2d Cir. 1975), cert. denied, 425 U.S. 971 (1976); United States v. Brennan, 629 F.Supp. 283 (E.D.N.Y.), aff’d, 798 F.2d 581 (2d Cir. 1986). But see McCormick v. United States, 500 U.S. 257 (1991)(allegedly corrupt payment made in the form of a campaign contribution to a third party campaign organization was insufficient to support a Hobbs Act conviction absent evidence of a quid pro quo). ! Some courts have held that the Hobbs Act can be applied to past or future public officials, as well as to ones who presently occupy a public office at the time the corrupt payment occurs. See United States v. Meyers, 529 F.2d 1033, 1035-38 (7th Cir.), cert. denied, 429 U.S. 894 (1976) (court answered affirmatively the question “whether, within the meaning of the Hobbs Act, it is a crime for candidates for political office to conspire to affect commerce by extortion induced under color of official right during a time frame beginning before the election but not ending until after the candidates have obtained public office.”); United States v. Lena, 497 F.Supp. 1352, 1359

PART 20. STATEMENT OF P375 ROPOSED RICO CHARGES (CLAIMS)

PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) (W.D. Pa. 1980), aff’d mem., 649 F.2d 861 (3rd Cir. (1981); United States v. Barna, 442 F.Supp. 1232, 1235 (M.D.Pa. 1978), aff’d mem., 578 F.2d 1376 (3rd Cir.), cert. denied, 439 U.S. 862 (1978). ! Some courts have held that private persons who are not themselves public officials can be convicted under this provision if they caused public officials to perform official acts in return for payments to the non-public official. United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) (court upheld conviction of head of local Republican Party under color of official right where defendant could be said to have caused, under 18 U.S.C. §2(b), public officials to induce a third party to pay out money); see United States v. Haimowitz, 725 F.2d 1561, 1572-73 (11th Cir.), cert. denied, 469 U.S. 1072 (1984) (private attorney’s conviction of Hobbs Act violation upheld due to complicity with state senator); United States v. Marcy, 777 F.Supp. 1398, 1399-400 (N.D.Ill. 1991); United States v. Barna, 442 F.Supp. 1232 (M.D. Pa.), aff’d mem., 578 F.2d 1376 (3rd Cir.), cert. denied, 439 U.S. 862 (1978). But see United States v. McClain, 934 F.2d 822, 829-32 (7th Cir. 1991) (“we believe that, as a general matter and with caveats as suggested here, proceeding against private citizens on an ‘official rights’ theory is inappropriate under the literal and historical meanings of the Hobbs Act, irrespective of the actual ‘control’ that citizen purports to maintain over governmental activity.”). ! Some courts have also held that private individuals who make payments to a public official can be charged under the Hobbs Act, either as an aider and abettor or co-conspirator, if he or she is truly the instigator of the transaction. See United States v. Torcasio, 959 F.2d 503, 505-06 (4th Cir. 1992); United States v. Spitler, 800 F.2d 1267, 1276-79 (4th Cir. 1986) (conviction affirmed for aiding and abetting extortion under color of official right even though defendant, who paid kickbacks from corporate coffers, was an officer of the victim corporation); United States v. Wright, 797 F.2d 245 (5th Cir. 1986). But see United States v. Tillem, 906 F.2d 814, 823-24 (2d Cir 1990) (consultant employed to help restaurants obtain approvals from corrupt health inspectors had no stake in the conspiracy and was not promoting the outcome). ! Finally, in a federal prosecution of a state legislator, there is no legislative privilege barring the introduction at trial of evidence of the defendant’s legislative acts. The Supreme Court has held that in such a prosecution a speech or debate type privilege for state legislators cannot be made applicable through Fed.R.Evid. 501. The Court said such privilege is not required by separation of powers considerations or by principles of comity, the two rationales underlying the Speech or Debate Clause of the U.S. Constitution, art. I, §6, cl. 1. United States v. Gillock, 445 U.S. 360, 368-74 (1980). CAVEAT: The Hobbs Act and Campaign Contributions. The Supreme Court has held that, when an allegedly corrupt payment masquerades as a campaign contribution, and when there is no evidence that the corpus of the “contribution” inured to the personal benefit of the public officer in question or was a product of force or duress, the Hobbs Act requires proof of a quid pro quo agreement between the contributor and the public officer. McCormick v. United States, 500 U.S. 257 (1991). However, the Court has also held that proof that a quid pro quo agreement existed in a corruption case brought under the Hobbs Act may be proven circumstantially. Evans v. United States, 504 U.S. 255 (1992). This interpretation of the dimensions of the hobbs Act in corruption scenarios is consistent with the parameters of the facts needed to prove the federal crimes of bribery and gratuities under 18 U.S.C. § 201. See United States v. Brewster, 50-6 F.2d 62 (D.C. Cir. 1972), 9 U.S.A.M. §§ 85.101 through 85.105, supra. CAVEAT: The Hobbs Act and evidence of a quid pro quo. When the Hobbs Act is applied to public corruption scenarios that lack evidence of actual “extortionate” duress, some courts have interpreted the Hobbs Act very strictly to require proof of a quid pro quo relationship between the private and the public parties to the transaction, even where the corpus of the payment inured to the personal benefit of the public official. See United States v. Martinez, 14 F.3d. 543 (11th Cir. 1994)(Hobbs Act did not apply to pattern of in-kind payments given personally to Florida mayor in the absence of evidence of a quid pro quo relationship between the mayor and alleged private corrupter); United States v. Taylor, 993 F.2d 382 (4th Cir. 1993)(same); United States v. Montoya, 945 F.2d 1086 (9th Cir. 1991)(same); contra United States v. Brandford, 33 F.3d 685 (6th Cir. 1994)(Hobbs Act does not require proof of quid pro quo where corpus of corrupt payment inured to the personal benefit of public officer). In

376 PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS)

PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) addition, some courts require that corruption cases brought under the “color of official right” clause of the Hobbs Act be accompanied by proof that the public official induced the payment. See Montoya, supra. At the very least, the courts will probably not extend the “color of official right” clause of the Hobbs Act beyond the parameters of crimes of bribery and gratuities in relation to federal officials that are described in 18 U.S.C. § 201. See United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974), 9 U.S.A.M. §§ 85.101 through 85.105, supra. This means that where the corpus of the alleged corrupt payment passed to someone or something other than the public official personally (including those where it passed to a political committee), the Hobbs Act probably does not apply unless there is also evidence of a quid pro quo. And even then, some Circuits, such as the Ninth, require additional proof that the payment was induced by the public official. PRACTICE TIP: The Public Integrity Section possesses considerable expertise in using the Hobbs Act to prosecute public corruption. While not required, AUSAs are strongly urged to consult with the Public Integrity Section in the investigation and prosecution of corruption cases under this statutory theory. Public Integrity can be reached at 202-514-1412, or by fax at 202-514-3003. Plaintiff’s case is one of a simple request for official recognition for mandatory occupational training in small arms imposed upon Able Seamen aboard U.S. government vessels of the preposition fleet in accordance with 46 U.S.C. § 7306(a)(3) states: “General requirements and classifications for able seamen to qualify for an endorsement as able seaman authorized by this section, an applicant must provide satisfactory proof that the applicant is qualified professionally as demonstrated by an applicable examination or educational requirements. The small arms training is required by OPNAVINST 3951.1C, Small Arms Training and Qualifications. The applicability statement from that naval instruction reads: This instruction applies to all active and reserve, Navy personnel, all Navy law enforcement and security personnel including Navy Absentee Collection Units, military and civilian, ashore and afloat, per [OPNAVINST 5530.14B, OPNAVINST 5580.1, OPNAVINST C8126.1 (NOTAL), and to all personnel whose duties require them to be armed. Plaintiff, being an Able Seaman, reported aboard a U.S. government ammunition vessel in Norfolk, Virginia. As a new crew member Plaintiff was required to attend small arms receritification training and Lynnhaven Shooting Range, a range approved by Military Sealift Command and the U.S. Navy, while the vessel was docked in Norfolk, Virginia. The Merchant Mariner’s Document is a federal document governed by federal regulations of the U.S. Coast Guard. The OPNAVINST training manual is a federal document of the U.S. Navy. The vessel Plaintiff was employed aboard was a vessel leased to and controlled by the Military Sealift Command, a federal operation of the U.S. government. The small arms training was a requirement by military regulations and federal laws. Plaintiff had every right to expect and to demand official recognition of that training in the form of an endorsement for “National Open Carry Handgun” on his Merchant Mariner’s Document in recognition of the original Second Amendment right to openly keep and bear arms. It was not the Coast Guard’s responsibility to be concerned with the Conflict of Laws Doctrine in regard to Plaintiff’s request for the contested endorsement. The Coast Guard, however, does have an oath of affirmation to support and defend to U.S. Constitution. That oath includes the act of supporting and defending the Bill of Rights to which the Second Amendment is included. The Coast Guard had a sworn duty by oath of office and by federal law to endorse Plaintiff’s Merchant Mariner’s Document. The Coast Guard’s action and the federal courts’ inaction in Plaintiff’s related case are the underpinnings of an incremental prelude to genocide. At anytime when a military officer openly denies a citizen of its own nation the right to possess, to wear, to carry, a firearm it is the introduction to an impending genocide upon its people at some time in the future. The Coast Guard’s final agency action denying Plaintiff’s Second Amendment application for the contested endorsement opens the door to a future genocide in the United States. Plaintiff PART 20. STATEMENT OF P377 ROPOSED RICO CHARGES (CLAIMS)

PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) alleges that the final agency action denial of a Second Amendment application falls under the crime of genocide, citing 18 U.S.C. § 1091(a)(4) in that the initial beginning of an era of genocide as the Basic Offense always begins when “whoever, whether in time of peace or in time of war, in a circumstance described in subsection (d) and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such, subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part. It is Plaintiff’s argument that by the Coast Guard denying a free U.S. Citizen his Second Amendment right to openly keep and bear arms in intrastate interstate travel under color of law subjects the group, (free, law-abiding U.S. citizens), to conditions of life that are intended to cause the physical destruction of the group in whole or in part because the U.S. government is beating the drums of homeland security and ever expanding its use of the PATRIOT Act and demanding more power from Congress to fight the war on terrorism is ignoring the First Amendment right of the people to freely assembly while armed under the Second, Fifth Ninth, Tenth, Thirteenth, and Fourteenth Amendment rights of the People to arm themselves against the common criminal and now against the terrorists in our open society sets up those genocidal conditions of 18 U.S.C. § 1091(a)(4).

F. The RICO Claims [At] the pleading stage of civil RICO actions, a plaintiff must plead damages to business or property in a manner consistent with Rule 8 to show standing and is not required to plead with the particularity required by Rule 9(b). See NOW, 510 U.S. at 256

(1). Robbins v. Wilkie, et al, 10th Circuit, No. 01-8037, (August 21, 2002): II. RICO claim To successfully state a RICO claim, a plaintiff must allege four elements: (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985); BancOklahoma Mortgage Corp. v. Capital Title Co. Inc., 194 F.3d 1089, 1100 (10th Cir. 1999). ... Plaintiffs who bring civil RICO claims pursuant to 18 U.S.C. § 1962 must show damage to their business or property as a result of defendants’ conduct. See Sedima, 473 U.S. at 496 (RICO plaintiff only has standing if “he has been injured in his business or property by the conduct constituting the violation”). ... In NOW v. Scheidler, 510 U.S. 249, 256 (1994), the Supreme Court stated, “We have held that at the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)) ...

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PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) Following the direction of the Supreme Court, we hold that at the pleading stage of civil RICO actions, a plaintiff must plead damages to business or property in a manner consistent with Rule 8 to show standing and is not required to plead with the particularity required by Rule 9(b). See NOW, 510 U.S. at 256. III. Bivens claim The district court granted Defendants’ Motion to Dismiss Appellant’s Bivens claim holding that the availability of remedies under the Administrative Procedures Act and the Federal Tort Claims Act precluded Appellant’s Bivens cause of action The Supreme Court has held that a plaintiff’s ability to pursue a Bivens claim is precluded in two specific instances. See Carlson v. Green, 446 U.S. 14, 18 (1980). Bivens claims are precluded when defendants can demonstrate “special factors counselling hesitation in the absence of affirmative action by Congress,” or when defendants can prove “that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective.” Id. (quotations omitted) (emphasis in original). ... However, the [Administrative Procedures Act (APA)] contains no remedy whatsoever for constitutional violations committed by individual federal employees unrelated to final agency action. Because Appellant cannot hold Defendants personally liable for allegedly violating his constitutional rights under the APA, the APA is an ineffective remedy. In this case, the APA does not preclude Appellant’s Bivens. ... Neither can Appellant’s Bivens claim be precluded by potential claims under the FTCA. specifically held that the FTCA and a Bivens claim are alternative remedies.

We have

When a federal law enforcement officer commits an intentional tort, the victim has two avenues of redress: 1) he may bring a Bivens claim against the individual officer based on the constitutional violation, or 2) he may bring a common law tort action against the United States pursuant to the FTCA. These are separate and distinct causes of action arising out of the same transaction. Engle v. Mecke, 24 F.3d 133, 135 (10th Cir. 1994) (citation omitted) (emphasis added). This statement is also consistent with Supreme Court holdings. “Plainly FTCA is not a sufficient protector of the citizens’ constitutional rights, and without a clear congressional mandate we cannot hold that Congress relegated [plaintiffs] exclusively to the FTCA remedy.” Carlson, 446 U.S. at 23. Thus, the existence of a potential FTCA claim is an insufficient basis for the district court to preclude Appellant’s Bivens claim. We hold that Appellant’s allegations that Defendants violated his constitutional rights through conduct unrelated to final agency decisions appealable pursuant to the APA are sufficient to state a cognizable Bivens claim. Because some of Appellant’s Bivens claims are not precluded by either the APA or the FTCA, we reverse the district court’s grant of Defendants’ Rule 12(b)(6) Motion to Dismiss Appellant’s Bivens claim.

G. Obstructions of Justice (18 U.S.C. § 1505) (1) Fraud and False States by the federal bench and bar under 18 U.S.C. § 1001. Hamrick v. President George W. Bush, et al, U.S. District Court for the District of Columbia, No. 02-1435, Judge Ellen Segal Huvelle, October 9, 2002, denying with prejudice my PETITION FOR WRIT OF MANDAMUS, WRIT OF PROHIBITION, DECLARATORY JUDGMENT, AND INJUNCTIVE RELIEF Hamrick v. Admiral Thomas H. Collins, USCG, et al, U.S. District Court for the District of Columbia, No. 021434, Judge Ellen Segal Huvelle, December 26, 2002, denying with prejudice my COMPLAINT FOR PART 20. STATEMENT OF P379 ROPOSED RICO CHARGES (CLAIMS)

PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) DEFAMATION AND DAMAGES, LIBEL AS A MATTER OF PRIVATE CONCERN, INJURY TO REPUTATION, UNLAWFUL INTERFERENCE WITH THE LAWFUL OPERATION OF A MERCHANT VESSEL, UNLAWFUL INTERFERENCE WITH A SEAMAN’S EMPLOYMENT ABOARD A MERCHANT VESSEL, WRONGFUL DETENTION/FALSE IMPRISONMENT OF A U.S. MERCHANT SEAMAN IN A FOREIGN COUNTRY, HARASSMENT, EMOTIONAL DISTRESS, AND SUBJECTION TO A MALICIOUS CRIMINAL INVESTIGATION EXTENDING FROM PETITIONER’S EXERCISE OF FIRST AMENDMENT RIGHTS TO FREE SPEECH AND TO PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES PURSUING SECOND AMENDMENT RIGHTS Hamrick v. President George W. Bush, et al, U.S. District Court for the District of Columbia, No. 03-2160, Judge Reggie B. Walton, August 16, 2004, denied with prejudice my CIVIL RIGHTS COMPLAINT OF RACKETEERING AND FRAUD UNDER THE RICO ACT FOR AN UNCONSTITUTIONAL PROTECTION SCHEME UNDER COLOR OF

H. Corruption in the U.S. Department of Justice (1). Justice Department Witheld Evidence from the Court I filed my RICO Act case for the Second Amendment at the U.S. District Court for DC (No. 03-2160). Alan Burch, Assistant U.S. Attorney from the U.S. Attorney’s Office in Washington, DC (555 4TH ST., NW). Almost 7.5 months since I filed my case Alan Burch is “Terminated” (word used in the Docket Report) and was replaced by Dennis Barghaan, “Special Attorney” from the U.S. Attorney’s Office for the Western District of Virginia in Alexandria under 28 U.S.C. 515 (out of jurisdiction U.S. Attorney). The Plaintiff alleges that the switch of defense attorneys has a direct bearing on the impending internal release of the Justice Department’s MEMORANDUM OPINION TITLED, WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT ON AUGUST 24, 2004, just 83 days away. Something had to be done to prevent the Plaintiff from using that Memorandum Opinion as evidence in the District Court. So, the Justice Department brounght in a hatchet man to expedite the dismissal of Plaintiff’s case before the expected release date of the Memorandum Opinion. This implies a conspiracy against the due process rights of the Plaintiff in violation of 18 U.S.C. § 241. Plaintiff alleges that the sole purpose for the switch in defense attorneys is to effectively deny the Plaintiff his right to use the Justice Department’s upcoming Memorandum Opinion on the Second Amendment as evidence supporting his case. Dennis Barghaan filed the Motion to Dismiss just 19 days after replacing Alan Burch. Plaintiff observes that the Department of Justice was going to internally release their Memorandum Opinion on August 24, 2004 which is just 64 days from June 21. Plaintiff has 60 days to respond to the Motion to Dismiss. If Dennis Barghaan had prior knowledge of the Department of Justice’s Memorandum Opinion it is the Appellant’s belief that he had a duty to inform the court of the impended release of this Memorandum Opinion because it had a direct impact upon the case at hand. If Dennis Barghaan did not have prior knowledge then the duty fell upon the Department of Justice to inform Dennis Barghaan of the impending release of the Memorandum Opinion because it was and is admissible evidence affecting the integrity of the governments argument against the Plaintiff/Appellant. The fact that the existence of the Memorandum Opinion was never made known to the District Court or to the DC Circuit or even to the Plaintiff, that the Plaintiff learned of the Memorandum Opinion through his Internet news links implies a deliberate attempt to subvert justice. The Appellant alleges that the timing of Dennis Barghaan’s Motion to Dismiss occurring jut 64 days before the internal release o the Memorandum implies prior knowledge calculated to unjustly defeat Appellant’s case at the District Court. The Appellant further alleges that Dennis Barghaan’s obstructive tactics are meant to harass or to cause unnecessary delay or needless increase in the cost of litigation and Dennis Barghaan’s denials of factual contentions are not warranted on the evidence or, if specifically so identified, are not reasonably based on a lack of information or belief because the Appellant has now identified the Memorandum Opinion as admissible evidence and there can be no lack of information on the Second Amendment as an individual right because it was the duty of the Justice Department to inform Dennis

380 PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS)

PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) Barghaan of the Memorandum Opinion. That fact that this was not done implies an intentional violation of Rule 11(b)(1) and Rule 11(b)(4) of the Federal Rules of Evidence.

04.

The Justice Department issues a press release stating that Paul D. Clement was will serve as acting Solicitor General.

04.

The judge, Reggie B. Walton, denies my Motion for Change of Venue.

2004.

My Objection to Motion to Dismiss filed out of time (because Kinkos lost my emailed Objection due to a virus attack. But Dennis Barghaan in a footnote in his rebuttal did not oppose my filing out of time).

2004.

Dennis Barghaan files his rebuttal to my objection.

2004.

Wasting no time Judge Reggie B. Walton grants Motion to Dismiss just 8 days before the internal release of the Justice Department’s Memorandum Opinion. A job well done by Dennis Barghaan. Does Judge Walton actually read these motions?

2004.

THE U.S. DEPARTMENT OF JUSTICE WITHHELD EVIDENDCE FROM THE COURT & PLAINTIFF.76 U.S. Department of Justice internally published their Memorandum Opinion for the Attorney General John Ashcroft titled, WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT, August 24, 2004. The Department of Justice did not release the Memorandum Opinion to the public until mid-December 2004, for obvious political gain until well after the presidential election in November. That Memorandum Opinion is documentary evidence, a government record under 28 U.S.C. § 1733 and is admissible as evidence because under Rule 704 of the Federal Rules of Evidence the Memorandum Opinion becomes an Opinion on an Ultimate Issue because it embraces an ultimate issue to be decided by the trier of fact. [Rule 406 Habit/Routine Practice]

2004.

Plaintiff filed Notice of Appeal.

2004.

On this date President Bush issues Executive Order 13353 ESTABLISHING THE PRESIDENT’S BOARD ON SAFEGUARDING AMERICANS’ CIVIL LIBERTIES . The Deputy Attorney General James Comey is appointed as Chairman. However, there may exist a conflict of interest with this appointment. In the May 21, 2001 edition of U.S. News & World Report then U.S. Attorney James Comey is reported to have said “To us gun possession itself is a crime of violence” in discussing Virginia’s Project Exile program. James Comey’s position against the Second Amendment as an individual right back then does not exactly square with his appointment to the President’s Board on Safeguarding American Civil Liberties. At best it compares more accurately to a Trojan Horse tactic for an undisclosed agenda.

R 9, 2004.

Appellant filed his Appellant’s Brief at the DC Circuit.

R 14, 2004.

Appellant filed MOTION FOR PERMISSIVE INTERVENTION BY THE PRESIDENT’S BOARD ON SAFEGUARDING AMERICANS’ CIVIL LIBERTIES AND OTHER THIRD PARTIES & MOTION FOR APPEAL CONFERENCE. The DC Circuit has not yet ruled on this motion or any motion for judicial notice of adjudicative facts or presumptions in general that the Plaintiff has filed. Copy of this motion was FedEx’d to the Deputy Attorney General James Comey as Chairman of that civil liberties board. No response has yet been received. This is not a very good track record for the Government on protecting the civil liberties of the American people when the federal courts and the Executive Branch treats a pro se Plaintiff in such a manner.77 OBSERVATION FROM TIMELINE: Assistant U.S. Attorney Alan Burch was almost 7.5 months (225 days) as defense counsel and hadn’t filed the Motion to Dismiss. He was under Ted Olson as Solicitor General. Dennis Barghaan took a fast 2 months, 3 weeks, 4 days (75 days total) to get Judge Reggie B. Walton to dismissed the Plaintiff’s case with prejudice.

PART 20. STATEMENT OF P381 ROPOSED RICO CHARGES (CLAIMS)

PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS)

(2). Federal and State Gun Control Laws Violate the Thirteenth and Fourteenth Amendments (a). “Actual Freedom” in Abraham Lincoln’s Emancipation Proclamation: “That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.”607 (b) “Actual Freedom” Defined in Dred Scott v. Sanford, 60 US (19 How.) 393, 417 (1857) “[If blacks were] entitled to the privileges and immunities of citizens... It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they please, singly or in companies...; and it would give the full liberty of speech...; to hold meetings upon public affairs, and to keep and carry arms wherever they went.”608 DEPARTMENT OF HOMELAND SECURITY Coast Guard [USCG–2004–17238]

Small Business Non-Retaliation Policy.609 AGENCY: Coast Guard, DHS. ACTION: Notice.

SUMMARY: The Coast Guard announces adoption of a small business nonretaliation policy. If a small business questions or lodges a complaint regarding a Coast Guard policy or action, or seeks outside help in dealing with a Coast Guard policy or action, the Coast Guard will not retaliate in any fashion. The full policy is set out in the body of this notice. DATES: The Commandant of the Coast Guard approved the small business nonretaliation policy on February 11, 2004. The policy remains in effect until modified or rescinded by the Commandant. ADDRESSES: Although we are not requesting them, you may make comments on this notice. To make sure that your comments and related material are not entered more than once in the docket, please submit them by only one of the following means: (1) Electronically through the Web site for the Docket Management System at http://dms.dot.gov. (2) By mail to the Docket Management Facility, (USCG–2004–17238), U.S. Department of Transportation, room PL–401, 400 Seventh Street, SW., Washington, DC 20590–0001. (3) By fax to the Docket Management Facility at 202–493–2251. 607

Emphasis added.

608

Emphasis added.

609

Available Online at http://www.uscg.mil/legal/NonRet_Policy_3-18-04.pdf

382 PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS)

PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) (4) By delivery to room PL–401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202–366–9329. The Docket Management Facility maintains the public docket for this notice. Comments and material received from the public will become part of this docket and will be available for inspection or copying at room PL–401 on the Plaza level of the Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find this docket on the Internet at http://dms.dot.gov. FOR FURTHER INFORMATION CONTACT: If you have questions on this notice, call Rich Walter, Office of Regulations and Administrative Law (G–LRA), U.S. Coast Guard, telephone 202–267–1534. If you have questions on viewing or submitting material to the docket, call Andrea M. Jenkins, Program Manager, Docket Operations, telephone 202–366–0271. SUPPLEMENTARY INFORMATION: The Office of the National Ombudsman of the U.S. Small Business Administration (SBA) has asked each Federal agency to adopt a policy that the agency will not retaliate against small businesses that question or complain about the way the agency does business. On February 11, 2004, the head of our agency, the Commandant of the Coast Guard, approved the following statement of Coast Guard policy: If you question or lodge a complaint regarding a Coast Guard policy or action, to us or to anyone else, or if you seek outside help in dealing with a Coast Guard policy or action, the Coast Guard will not retaliate against you in any fashion. The Coast Guard wants you to be able to comment, question, or lodge a complaint about our policies or actions without fear that we will retaliate or try to discourage future questions or complaints. If you think the Coast Guard has broken this promise, we will investigate, take appropriate action, and make sure that mistakes are not repeated. You may comment, ask questions, or file a complaint about Coast Guard policies or actions by contacting your local Coast Guard office, or you can also contact the Small Business Administration Office of the National Ombudsman at 888–REG–FAIR (734–3247), fax: 202– 481–5719, email: [email protected]. Small businesses generally are independently owned and operated and are not dominant in their field. If you need help determining whether or not your business qualifies as a “small business”, contact the SBA’s Office of the National Ombudsman using the information given in the preceding paragraph. Dated: March 11, 2004. John E. Crowley, Jr., Rear Admiral, U.S. Coast Guard, Judge Advocate General. [FR Doc. 04–6037 Filed 3–17–04; 8:45 am] BILLING CODE 4910–15–P

I. Exemptions to Foreign Sovereign Immunities Act of 1976 Apply to my Case Against the United Nations It is my claim that the U.S. Coast Guard’s declaration of their denial of my application for “NATIONAL OPEN CARRY HANDGUN” endorsement on my MERCHANT MARINER’S DOCUMENT as a FINAL AGENCY ACTION is part and partial to my civil RICO Act claim against the United States of racketeering an unlawful and an unconstitutional protection scheme over the Second Amendment and subsequently my claim against the United PART 20. STATEMENT OF P383 ROPOSED RICO CHARGES (CLAIMS)

PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) Nations for their War of Aggression against the Second Amendment as violating United Nations declarations, conventions, and covenants on human rights. I claim my right to sue the United Nations as a U.S. citizen under the exemptions to the FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976, codified in 28 U.S.C. § 1605, et seq.

28 U.S.C. § 1605(a) General Exceptions to the Jurisdictional Immunity of a Foreign State A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case— (1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver; (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States; (6) in which the action is brought, either to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration all or any differences which have arisen or which may arise between the parties with respect to a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration under the laws of the United States, or to confirm an award made pursuant to such an agreement to arbitrate, if (A) the arbitration takes place or is intended to take place in the United States, (B) the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards, (C) the underlying claim, save for the agreement to arbitrate, could have been brought in a United States court under this section or section 1607, or (D) paragraph (1) of this subsection is otherwise applicable.

J. Dennis Barghaan, Assistant U.S. Attorney from Alexandria, Virginia, acting as Special Attorney for the U.S. Department of Justice, and persons or persons unknown in the U.S. Department of Justice criminally withheld evidence (Memorandum Opinion for the Attorney General, Whether the Second Amendment Secures an Individual Right, dated August 24, 2004)610 vital to my Second Amendment case at the U.S. District Court for DC, Case No. 03-2160.

610

http://www.usdoj.gov/olc/secondamendment2.pdf

384 PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS)

PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) (3) Judge Reggie B. Walton abused the Federal Rules of Civil Procedure and criminally obstructed justice when he dismissed my Civil Rico Act case with prejudice and subsequently issued a abusive Scheduling Order after remand from the DC Circuit (judicial misconduct).

PART 20. STATEMENT OF P385 ROPOSED RICO CHARGES (CLAIMS)

PART 22. PETTITION FOR WRIT OF PROHIBITION

PART 21. PETITION FOR WRIT OF MANDAMUS (MY DEMANDS FOR JUSTICE) Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

PART 22. PETTITION FOR W386 RIT OF PROHIBITION

PART 22. PETTITION FOR WRIT OF PROHIBITION

A. Writ of Mandamus for Negotiated Rulemaking with the U.S. Coast Guard, the BATFE and the Maritime Advisory Committee for Occupational Safety and Health (MACOSH) of the U.S. Department of Labor as Special Procedures Under Rule 16(C)(9) Federal Rules Of Civil Procedure, 33 C.F.R. § 1.05-60, 5 U.S.C. § 561570a, and 5 U.S.C. Appendix - Federal Advisory Committee Act. Under the U.S. Code, Title 5 GOVERNMENT ORGANIZATION AND EMPLOYEES, § 569. ENCOURAGING NEGOTIATED RULEMAKING the President has the authority to designate an agency or designate or establish an interagency committee under 5 U.S.C. § 563. DETERMINATION OF NEED FOR NEGOTIATED RULEMAKING COMMITTEE to facilitate and encourage agency use of negotiated rulemaking. An agency that is considering, planning, or conducting a negotiated rulemaking may consult with such agency or committee for information and assistance. There is a need to determine the Second Amendment rights of American civilian seafarers to openly keep and bear arms in intrastate, interstate, and maritime travel. The U.S. Department of Labor’s MARITIME ADVISORY COMMITTEE FOR OCCUPATIONAL SAFETY AND HEALTH (MACOSH) under the Occupational Safety and Health Administration was reestablished in 2006 as duly published by the FEDERAL REGISTER, June 5, 2006, Vol. 71, No. 107, Notices Section: NOTICE OF REESTABLISHMENT OF MACOSH, Page 32374. From that notice: In accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended (5 U.S.C., App. 2), and after consultation with the General Services Administration (GSA), the Secretary of Labor has determined that the re-establishment of the Maritime Advisory Committee for Occupational Safety and Health (MACOSH) is in the public interest. The Committee will better enable OSHA to perform the duties imposed by the Occupational Safety and Health Act of 1970 (OSH Act), 84 Stat. 1590, 29 U.S.C. 651 et seq.) Authority to establish this Committee is found in sections 6(b) and 7(b) of the OSH Act; Section 41 of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 941), and other general agency authority in Title 5 of the United States Code, and 29 CFR part 1912. The Committee will advise OSHA on matters relevant to the safety and health of workers in the maritime industry. This includes advice on maritime issues that will result in more effective enforcement, training, and outreach programs, and streamlined regulatory efforts. The maritime industry includes employers in the shipbuilding, ship repair, shipbreaking, longshoring, and marine terminal industries. The committee will function solely as an advisory body and in compliance with the provisions of the Federal Advisory Committee Act and OSHA’s regulations covering advisory committees (29 CFR part 1912). The Committee charter will be filed 15 days from the date of this publication. The MARITIME ADVISORY COMMITTEE FOR OCCUPATIONAL SAFETY AND HEALTH (MACOSH) is perfectly situated to conduct the negotiated rulemaking with the plaintiff for a National Open Carry Handgun endorsement for the MERCHANT MARINER’S DOCUMENT under the MERCHANT MARINERS’ DOCUMENTS PILOT PROGRAM 611 which is found in the Notes Section of 46 U.S.C. § 7302. ISSUING MERCHANT MARINERS’ DOCUMENTS AND CONTINUOUS DISCHARGE BOOKS and supported by the U.S. Navy’s current OPNAVINST 3591.1E – SMALL ARMS TRAINING AND QUALIFICATION, dated February 20, 2007, through the Military Sealift Command’s agreement with the U.S. Coast Guard and the Seafarers International Union612 for said training in accordance with 14 U.S.C. § 148. MARITIME INSTRUCTION and other federal laws. 611

Pub. L. 108–293, title VI, § 611, Aug. 9, 2004, 118 Stat. 1058, provided that: “The Secretary of the department in which the Coast Guard is operating may conduct a pilot program to demonstrate methods to improve processes and procedures for issuing merchant mariners’ documents.” [Plaintiff’s note: The U.S. Coast Guard operates under the U.S. Department of Homeland Security begging the question of what role does the U.S. Merchant Marine and American civilian seafarers have in Homeland Security.] 612

http://www.seafarers.org/log/2003/022003/smallarms.xml

387 PART 22. PETTITION FOR WRIT OF PROHIBITION

PART 22. PETTITION FOR WRIT OF PROHIBITION

Maritime Advisory Committee for Occupational Safety and Health (MACOSH) Joseph V. Daddura, Acting Director, Office of Maritime U.S. Department of Labor Occupational Safety & Health Administration 200 Constitution Avenue Washington, D.C. 20210 Phone: (202) 693-2086 1-800-321-OSHA (6742) The Maritime Advisory Committee for Occupational Safety and Health (“MACOSH” or “Committee”) was established to advise the Assistant Secretary of Labor for OSHA on issues relating to occupational safety and health in the maritime industries. Current Membership Government Interests Stephen D. Hudock - National Institute for Occupational Safety and Health CAPT. Lorne Thomas – U.S. Coast Guard Charles Lemon - Washington State Department of Labor and Industry Jim Maddux - Designated Federal Official Employer Interests James Thornton – Northrop Grumman Newport News Shipbuilding CAPT. Teresa Preston – Atlantic Marine/ Alabama Shipyard, Inc. Marc MacDonald – Pacific Maritime Association Jim Burgin - National Maritime Safety Association Donald Raffo - General Dynamics Stewart Adams - Naval Sea Systems Command Employee Interests Michael Flynn - International Association of Machinists and Aerospace Workers David Tubman, Jr. - Marine Engineers’ Beneficial Association Robert Gleason - International Longshoremen’s Association, AFL-CIO John Castanho - International Longshore and Warehouse Union Earnest Whelan - International Union of Operating Engineers, Local 25 T. Warren Fairley, Jr. - International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forger and Helpers

B. Writ of Mandamus for Negotiated Rulemaking with the U.S. Coast Guard in Cooperation with other Agencies, States, Territories, and Political Subdivisions in Accordance with 14 U.S.C. § 141. The Commandant of the U.S. Coast Guard has the authority under 14 U.S.C. § 2; 93(a); § 141; § 631; § 632; § 633; and 33 C.F.R. § 1.05–1; § 1.05–5; § 1.05–10; § 1.05–60; to not only issue the Merchant Mariner’s Document with the “National Open Carry Handgun/Small Arms and Light Weapons” endorsement but to initiate NEGOTIATED RULEMAKING, under the authority of 5 U.S.C. § 569, and 33 C.F.R. § 1.05-60 with the Plaintiff and with representatives from the:

PART 22. PETTITION FOR W388 RIT OF PROHIBITION

PART 22. PETTITION FOR WRIT OF PROHIBITION

Executive Office of the President Assistant to the President for Homeland Security and Counterterrorism FRANCES F. TOWNSEND Assistant to the President for Legislative Affairs CANDIDA PEROTTI WOLFF Assistant to the President and Deputy Chief of Staff for Policy JOEL D. KAPLAN Assistant to the President for Domestic Policy, Walter Karl Zinsmeister Assistant to the President for Domestic Policy WALTER KARL ZINSMEISTER Deputy Assistant to the President for Domestic Policy TEVI D. TROY Deputy Assistant to the President and Deputy Director of Communications for Policy and Planning CATHERINE J. MARTIN Deputy Assistant to the President and Director, Intergovernmental Affairs MARGARET M. GRANT Deputy Assistants to the President for Legislative Affairs WILLIAM DOUGLAS BADGER, BRIAN C. CONKLIN, SEAN B. O’HOLLAREN The Domestic Policy Council

U.S. Senate Legislative Counsel (2 U.S.C. 271), Committee on Foreign Relations Committee on Homeland Security & Governmental Affairs Committee on the Judiciary Subcommittee on the Constitution Subcommittee on Crime and Drugs Subcommittee on Human Rights and the Law Subcommittee on Terrorism, Technology and Homeland Security Committee on Commerce, Science & Transportation Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard Subcommittee on Interstate Commerce, Trade, and Tourism

U.S. House of Representatives Legislative Counsel (2 U.S.C. § 281), Office of the Law Revision Counsel (2 U.S.C. § 285). Committee on Foreign Affairs Subcommittee on International Organizations, Human Rights, and Oversight Committee on Homeland Security Subcommittee on Border, Maritime and Global Counterterrorism Subcommittee on Transportation Security and Infrastructure Protection Subcommittee on Emergency Communications, Preparedness, and Respon Committee on the Judiciary Subcommittee on Courts, the Internet, and Intellectual Property Subcommittee on Crime, Terrorism, and Homeland Security Subcommittee on the Constitution, Civil Rights, and Civil Liberties Committee on Oversight and Government Reform Subcommittee on Domestic Policy Committee on Standards of Official Conduct Committee on Transportation and Infrastructure Subcommittee on Coast Guard and Maritime Transportation. Subcommittee on Economic Development, Public Buildings, and Emergency Management

389 PART 22. PETTITION FOR WRIT OF PROHIBITION

PART 22. PETTITION FOR WRIT OF PROHIBITION Subcommittee on Highways and Transit

U.S. Department of Homeland Security Secretary of Homeland Security Deputy Secretary of Homeland Security Commandant, United States Coast Guard U.S. Coast Guard Marine Safety and Security Council FEMA: Deputy Administrator, National Preparedness FEMA: National Protection and Programs Under Secretary POLICY: Assistant Secretary POLICY: Executive Director, Homeland Security Advisory Council POLICY: Assistant Secretary, Office of International Affairs POLICY: Assistant Secretary, Private Sector Coordination POLICY: Director, International Programs POLICY: Director, Special Programs POLICY: Director, Innovation/Homeland Security Advanced Research Projects Agency POLICY: Director, Transition COMPONENTS: Civil Rights and Civil Liberties Officer COMPONENTS: Director, Federal Law Enforcement Training Center COMPONENTS: Assistant Secretary, Office of Legislative Affairs COMPONENTS: Chief Privacy Officer COMPONENTS: Assistant Secretary, Transportation Security Administration COMPONENTS: White House Liaison

U.S. Department of Transportation White House Liaison Deputy Secretary Under Secretary for Policy Assistant Secretary for Governmental Affairs Assistant Secretary for Transportation Policy

Maritime Administration Administrator Deputy Administrator for Inland Waterways and Great Lakes Deputy Administrator Associate Administrator for National Security Associate Administrator for Port, Intermodal, and Environmental Activities Director of Congressional and Public Affairs Director, Office of Maritime Labor, Training, and Safety Superintendent, United States Merchant Marine Academy

Federal Motor Carrier Safety Administration Administrator Deputy Administrator Assistant Administrator (Chief Safety Officer) Regulatory Ombudsman Associate Administrator for Policy and Program Development Chief Counsel Director, Office of Civil Rights

PART 22. PETTITION FOR W390 RIT OF PROHIBITION

PART 22. PETTITION FOR WRIT OF PROHIBITION

U.S. Department of Justice The Attorney General Deputy Attorney General Associate Attorney General Senior Counsel, Office of Dispute Resolution Solicitor General Assistant Attorney General, Office of Legal Counsel Assistant Attorney General, Office of Legislative Affairs Assistant Attorney General, Office of Legal Policy Assistant Attorney General for Administration, Justice Management Division Assistant Attorney General, Civil Division Assistant Attorney General, Civil Rights Division Assistant Attorney General, Criminal Division Assistant Attorney General, Office of Justice Programs Director, Office of Intergovernmental and Public Liaison Director, Community Relations Service Director, Community Oriented Policing Services

U.S. Department of State Secretary of State Deputy Secretary of State Assistant Secretary for Legislative Affairs Director of the Office of Civil Rights Under Secretary for Political Affairs Permanent Representative of the United States of America to the Organization of American States Coordinator, International Information Programs

United States Mission to the United Nations United States Permanent Representative to the United Nations and Representative in the Security Council Deputy United States Representative to the United Nations United States Representative for Special Political Affairs in the United Nations United States Representative on the Economic and Social Council United States Representative for U.N. Management and Reform

BATF Director Deputy Director Office of Public and Governmental Affairs Office of Enforcement Programs and Services Office of Field Operations Office of Training and Professional Development Office of Professional Responsibility and Security Operations

Non-Governmental Organizations National Governors Association National Association of Counties National Rifle Association

391 PART 22. PETTITION FOR WRIT OF PROHIBITION

PART 22. PETTITION FOR WRIT OF PROHIBITION Jews for the Preservation of Firearms Ownership Second Amendment Sisters Second Amendment Foundation Gunowners of America Seafarers International Union and other seafaring labor unions.

C. Writ of Mandamus for Negotiated Rulemaking with the International Maritime Organization through the U.S. State Department in accordance with 14 U.S.C. § 142. The Coast Guard, through the Secretary [of Homeland Security], may exchange information, through the Secretary of State, with foreign governments [i.e., the International Maritime Organization of the United Nations] and suggest to the Secretary of State international collaboration and conferences on all matters dealing with the safety of life and property at sea, other than radio communication [i.e., such as ratifying the Maritime Labour Convention, adding the human right to armed self-defense and personal security to human rights treaties containing “right to life” provisions to effect United Nations recognition of the Second Amendment as a human right]. 46 U.S.C. § 7306(a)(3) GENERAL REQUIREMENTS AND CLASSIFICATIONS FOR ABLE SEAMEN and the corresponding 46 CFR §12.05-3(a)(3) GENERAL REQUIREMENTS (FOR ABLE SEAMEN) 12 U.S.C. § 12.05–3(b)(1) GENERAL REQUIREMENTS (FOR ABLE SEAMEN) - Personal survival techniques as set out in table A-VI/1-1 of the STCW Code613 (incorporated by reference in § 12.01–3).614

613

http://www.uscg.mil/nmc/stcw_code_ach6.asp#1

614

http://www.seafarers.org/phc/courses/upgrading.xml

PART 22. PETTITION FOR W392 RIT OF PROHIBITION

PART 22. PETTITION FOR WRIT OF PROHIBITION TABLE A-VI/1-1 Specification of minimum standard of competence in personal survival techniques (Plaintiff’s Note: No mention of defending against or surviving armed pirate attacks at sea!) COMPETENCE

KNOWLEDGE, UNDERSTANDING AND PROFICIENCY

Survive at sea in the Types of emergency situations event of ship which may occur, such as abandonment collision, fire, foundering Types of life-saving appliances normally carried on ships Equipment in survival craft Location of personal life-saving appliances

METHODS FOR DEMONSTRATING COMPETENCE Assessment of evidence obtained from approved instruction or during attendance at an approved course or approved in-service experience and examination, including practical demonstration of competence to: .1 don a life-jacket .2 don and use an immersion suit .3 safely jump from a height into the water

CRITERIA FOR EVALUATING COMPETENCE Action taken on identifying muster signals is appropriate to the indicated emergency and complies with established procedures The timing and sequence of individual actions are appropriate to the prevailing circumstance and conditions and minimize potential dangers and threats to survival Method of boarding survival craft is appropriate and avoids dangers to other survivors

Principles concerning survival .4 right an inverted liferaft while wearing a life-jacket including: Initial actions after leaving the ship and .5 swim while wearing a life-jacket procedures and actions in water minimize .1 value of training and drills threats to survival .6 keep afloat without a life-jacket .2 personal protective clothing .7 board a survival craft from ship and water while and equipment wearing a life-jacket .3 need to be ready for any emergency .4 actions to be taken when called to survival craft stations .5 actions to be taken when required to abandon ship .6 actions to be taken when in the water .7 actions to be taken when aboard a survival craft .8 main dangers to survivors Survive at sea in the event of ship abandonment (continued)

.8 take initial actions on boarding survival craft to enhance chance of survival .9 stream a drogue or sea anchor .10 operate survival craft equipment .11 operate location devices, including radio equipment

393 PART 22. PETTITION FOR WRIT OF PROHIBITION

PART 22. PETTITION FOR WRIT OF PROHIBITION 12 U.S.C. § 12.05–3(b)(4) GENERAL REQUIREMENTS (FOR ABLE SEAMEN) (4) Personal safety and social responsibilities as set out in table A-VI/1-4 of the STCW Code.615 TABLE A-VI/1-4 (Page 1 of 2) Specification of minimum standard of competence in personal safety and social responsibilities (Plaintiff’s Note: No mention of personal safety and social responsibilities for the Second Amendment right to keep and bear arms in intrastate, interstate, and maritime travel) COMPETENCE

KNOWLEDGE, UNDERSTANDING AND PROFICIENCY

METHODS FOR DEMONSTRATING COMPETENCE

CRITERIA FOR EVALUATING COMPETENCE

Comply with emergency Types of emergency which may occur, such Assessment of evidence obtained from Initial action on becoming aware of an procedures as collision, fire, foundering approved instruction or during emergency conforms to established Knowledge of shipboard contingency plans for attendance at an approved course emergency response procedures response to emergencies Information given on raising alarm is prompt, accurate, complete and clear Emergency signals and specific duties allocated to crew members in the muster list; muster stations; correct use of personal safety equipment Action to take on discovering potential emergency, including fire, collision, foundering and ingress of water into the ship Action to take on hearing emergency alarm signals Value of training and drills Knowledge of escape routes and internal communication and alarm systems Take precautions to Importance of adhering to safe working practices Assessment of evidence obtained from Safe working practices are observed prevent pollution of the at all times approved instruction or during and appropriate safety and protective marine environment Safety and protective devices available to attendance at an approved course equipment is correctly used at all protect against potential hazards aboard ship times Precautions to be taken prior to entering enclosed spaces Familiarization with international measures concerning accident prevention and occupational health*

615

http://www.uscg.mil/nmc/stcw_code_ach6.asp#1 and http://www.seafarers.org/phc/courses/upgrading.xml

PART 22. PETTITION FOR W394 RIT OF PROHIBITION

PART 22. PETTITION FOR WRIT OF PROHIBITION TABLE A-VI/1-4 (Page 2 of 2) Specification of minimum standard of competence in personal safety and social responsibilities (Plaintiff’s Note: No mention of personal safety and social responsibilities for the Second Amendment right to keep and bear arms in intrastate, interstate, and maritime travel) COMPETENCE Observe safe working practices

KNOWLEDGE, UNDERSTANDING AND METHODS FOR DEMONSTRATING PROFICIENCY COMPETENCE

CRITERIA FOR EVALUATING COMPETENCE

Importance of adhering to safe working Assessment of evidence obtained from Safe working practices are observed practices at all times approved instruction or during and appropriate safety and protective Safety and protective devices available to attendance at an approved course equipment is correctly used at all times protect against potential hazards aboard ship Precautions to be taken prior to entering enclosed spaces Familiarization with international measures concerning accident prevention and occupational health*

Understand orders and be understood in relation to shipboard duties Contribute to effective human relationships on board ship

Ability to understand orders and to communicate with others in relation to shipboard duties

Assessment of evidence obtained from Communications are clear and effective approved instruction or during at all times attendance at an approved course

Importance of maintaining good human Assessment of evidence obtained from and working relationships aboard ship approved instruction or during Social responsibilities; employment attendance at an approved course conditions; individual rights and obligations; dangers of drug and alcohol abuse

Expected standards of work and behavior are observed at all times

The MARITIME ADVISORY COMMITTEE FOR OCCUPATIONAL SAFETY AND HEALTH (MACOSH) can submit its report to the Court under the SPECIAL PROCEDURES of Rule 16(C)(9) FEDERAL RULES OF CIVIL PROCEDURE.

395 PART 22. PETTITION FOR WRIT OF PROHIBITION

PART 22. PETTITION FOR WRIT OF PROHIBITION

Part 22. Petition for Writ of Prohibition Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

PART 22. PETTITION FOR W396 RIT OF PROHIBITION

PART 22. PETTITION FOR WRIT OF PROHIBITION

A. Writ of Prohibition to Prohibit My Arrest by the U.S. Marshals Service or any other federal or district law enforcement agency for Exercising My Right to Make Citizen’s Arrests of Federal Judges and court clerks for felony EXTORTION UNDER COLOR OF LAW 18 U.S.C. § 872, and felony racketeering EXTORTION UNDER COLOR OF OFFICIAL RIGHT 18 U.S.C. § 1951(a) and § 1951(b)(2) of their respective court’s filing fees in violation of the Seamen’s Suit Law 28 U.S.C. § 1916 in accordance with D.C. Code § 23-582(b)(2) and § 23-582(c). B. Petition for Writ of Prohibition in Defence of Citizen’s Arrest Warrant of Federal Judges and Court Clerks for Felony Extortion I am demanding my Ninth Amendment right and Tenth Amendment power to enforce my rights under the Seamen’s Suit Law 28 U.S.C. § 1916 by Invoking the Registration of Judgments for Enforcement in Other Districts under 28 U.S.C. § 1963 by Writ of Mandamus or by Writ of Prohibition against the U.S. Marshals Service, the FBI, the Capitol Police, the U.S. Supreme Court Police, and any other federal law enforcement or any other law enforcement agencies and officials and officers thereof from interfering with, obstructing, or preventing me by arrest or threat of arrest for executing my Citizen’s Arrest Warrant of Federal Judges and their court clerks for felony racketeering Extortion Under Color of Law 18 U.S.C. § 872, and felony Extortion Under Color of Official Right 18 U.S.C. § 1951(a) and § 1951(b)(2) of their respective court’s filing fees in violation of the Seamen’s Suit Law 28 U.S.C. § 1916 in accordance with D.C. Code § 23-582(b)(2) and § 23-582(c). Hamrick v. George, US District Court for the Western District of NC, Charlotte Division, Case No. 03-cv-0344W, ORDER, November 9, 2006. Judge Frank D. Whitney: “If Plaintiff elects to exercise his appeal rights, the Court finds that 28 U.S.C. § 1916 waives the requirement of prepayment of docket fees or furnishing security therefor , and the Clerk of Court is so instructed.” Congress did not explicitly express a private right of action (i.e. civil jury trial under the Seventh Amendment are the Citizen’s Arrest method to a Sixth Amendment criminal trial as a remedy of last resort in the face of a hostile federal judicial system who would appear to be abandoning or seamen as wards of the Admiralty) in the Seamen’s Suit Law, 28 U.S.C. § 1916 to prevent the federal courts from extorting the exempted filing fees of the courts of the United States, 18 U.S.C. § 872 Extortion Under Color of Law and 18 U.S.C. § 1651(b)(c) Extortion Under Color of Official Right (Racketeering).

397 PART 22. PETTITION FOR WRIT OF PROHIBITION

23. PETTITION FOR DECLARATORY JUDGMENT

PART 23. PETITION FOR DECLARATORY JUDGMENT

Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

398 23. PETTITION FOR DECLARATORY JUDGMENT

23. PETTITION FOR DECLARATORY JUDGMENT

A. The Second Amendment Right to Openly Keep and Bear Arms in Intrastate, Interstate, and Maritime Travel is a Human Right B. The Second Amendment Right to Openly Keep and Bear Arms in Intrastate, Interstate, and Maritime Travel is a Constitutional Right. C. The Plaintiff is Not a Prohibited Person under 18 U.S.C. 18 U.S.C. 922 et seq From Owning or Possessing Firearms. D. The Plaintiff has a Seventh Amendment Right to a Civil Jury Trial. E. The Merits of Plaintiffs Case Warrants a Civil Jury Trial. F. The Federal Courts Wrongfully Collected Exempted Filing Fees from the Plaintiff in the Total Amount of $1,465.00 in Violation of the Seamen’s Suit Law, 28 U.S.C. § 1916. G. Pacer Service Center of the Administrative Office of the U.S. Courts Wrongfully Collected Docket Access Fees in the Total Amount of $393.00 in Violation of the Seamen’s Suit Law, 28 U.S.C. § 1916.

23. PETTITION FOR399 DECLARATORY JUDGMENT

24. PETTITION FOR INJUNCTIVE RELIEF

PART 24. PETITION FOR INJUNCTIVE RELIEF Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

PART 24. PETTITION FOR I400 NJUNCTIVE RELIEF

24. PETTITION FOR INJUNCTIVE RELIEF

A. Permanent Injunctive Relief Against the U.S. Department of Transportation and U.S. Coast Guard Bar Notice of 2004 and 2006. B. Permanent Injunctive Relief Against the The Executive Branch from any Further Harassment in connection with his First Amendment right to Petition the Government for Redress of Grievances and is Seventh Amendment right to a Civil Jury Trial. C. Permanent Injunctive Relief Against All Federal Courts of the United States from Requiring Payment of Filing Fees from U.S. Merchant Seaman with Second Amendment Cases qualifying under the Safety Clause of the Seamen’s Suit Law, 18 U.S.C. § 1916 D. Permanent Injunctive Relief Against Pacer Service Center of the of the Administrative Office of the U.S. Courts from Collecting Docket Access Fees from U.S. Merchant Seamen with Second Amendment Cases qualifying under the Safety Clause of the Seamen’s Suit Law, 18 U.S.C. § 1916

401FOR INJUNCTIVE RELIEF PART 24. PETTITION

PART 25. DAMAGES

Part 25. Damages Rule 8(d)(2). Alternative Statements of a Claim. In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law. My alternative statements of claims are presented in their alternative presentations in the following Parts of my complaint as shown here to support my primary claims in Part 19: Part 3. Purpose of this Case Part 4. In Defense of Pro Se Civil Litigation Part 5. Federal Questions Presented (28 U.S.C. § 1331) Part 6. Plaintiff’s Human Rights Declarations Part 7. Plaintiff’s Constitutional Rights Declarations Part 8. Plaintiff’s Religious Rights Declarations Part 9. Plaintiff’s Maritime Rights Declarations Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment Part 11. Challenging the Constitutionality of Summary Judgment Part 12. Challenging the Final Agency Action of the U.S. Coast Guard Part 13. Challenging the Federal Court Ruling Part 14. Challenging Selected Federal Laws Part 15. Challenging Selected Federal Regulations Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes Part 17. Challenging Selected Maritime Conventions and Treaties Part 18. Racketeering and Treason against the Constitution by Federal Judges Part 19. The Claims Part 20. Statement of Proposed Rico Charges (Claims) Part 21. Petition for Writ of Mandamu (My Demands for Justice) Part 22. Petition for Writ of Prohibition Part 23. Petition for Declaratory Judgment Part 24. Petition for Injunctive Relief Part 25. Damages

402 PART 25. DAMAGES

PART 25. DAMAGES Pro se litigants may be entitled to Attorney fees and costs under the Civil Rights Attorney’s Fee Award Act of 1976, 90 Stat. 2641, as amended 42 USC 1988

(1) RICO Act Damages for Wrongful Detention by the U.S. Coast Guard RICO Act damages in the amount of $14.4 million for the 12-day wrongful detention in Lithuania by the U.S. Coast Guard is a reasonable calculation based upon the Settlement Order in Rajcoomar v. United States, et al U.S. District Court for the Eastern District of Pennsylvania, No. 03-2294, (June 30, 2003).616 The United States and the Transportation Security Administration agreed to pay $50,000 for the 3-hour wrongful detention and issue a written apology to both Dr. Bob Rajcoomar and Dorothy Rajcoomar for the wrongful detention of August 31, 2002. Calculating the Damages For 12-days of Wrongful Detention (1)

$50,000 ÷ 3 hours = $1,666.67 per hour.

(2)

$1,666.67 x 24 hours = $400,000.00 per day.

(3) (4)

$400,000 x 12 days = $4.8 million $4.8 million x 3 RICO Damages = $14.4 million

Plus Damages for the obstructions of justice and denial of my Seventh Amendment right to a civil jury trial from 2002 to 2008 in an amount equl to the above damages of $14.4 million.

616

http://www.aclufl.org/pdfs/Legal%20PDfs/Rajcoomar%20settlement%20order.pdf

PART403 25. DAMAGES

PART 25. DAMAGES

The CNSNews report of the settlement below as the highlights of the case:

TSA Settles Lawsuit by Illegally Detained Passenger By Jeff Johnson CNSNews.com Congressional Bureau Chief August 01, 2003 Capitol Hill (CNSNews.com) The Transportation Security Administration (TSA) has agreed to settle a racial profiling lawsuit filed by a naturalized American who was illegally detained by Federal Air Marshals who claimed he was “watching too closely” as they restrained an unruly passenger. Limited details of the settlement were disclosed Thursday. Retired U.S. Army physician Bob Rajcoomar told the Philadelphia Inquirer Thursday that he was pleased the ordeal had finally come to a close. “The end is here,” he said from his home in Lake Worth, Fla. “Our objective was to make a statement that something is not right here. Let’s correct it for all the people. Let’s make America better,” Rajcoomar added. “And I think the judge agreed.” Airline security analyst Andrew Thomas, author of “Aviation Insecurity: The New Challenges of Air Travel,” was astonished at the settlement. “It’s the first time that I’ve been able to discern that the TSA has actually admitted that it was wrong in doing something, especially with regard to the air marshals program,” he told CNSNews.com Friday. In an official statement, the TSA initially defended the actions of the marshals involved and denied that race had anything to do with the incident. “Our marshals are trained to respond to actions and behavior, not skin tones,” the TSA statement said. “Based on our review of the Flight 442 incident we are confident they did just that.” Doctor: Marshal acted ‘as if he was a commando’ Rajcoomar and his wife Dorothy were flying from Atlanta to Philadelphia on Aug. 31, 2002. Because the flight was overbooked, Dr. Rajcoomar was seated in the first class section while his wife was in coach. Approximately 30 minutes prior to landing in Philadelphia, two men entered the first class section of the plane dragging a third man, who was later

identified as an “unruly passenger.” The two men ordered a passenger to move and placed the third man in the seat next to Rajcoomar. The men then produced badges and identified themselves as Federal Air Marshals. Fearful for his own safety, Rajcoomar asked a flight attendant to reseat him, which she did. While one marshal handcuffed the unruly passenger, the other, 29-year-old Shawn B. McCullers, began issuing orders over the aircraft’s public address system. “The other marshal took over the aircraft as if he was a commando and then whisked out his gun and started pointing it at almost 200 Americans in the aircraft,” Rajcoomar said following the incident. “And they started shouting at everyone to stay quiet, not to move, don’t take any pictures, etcetera, or they would be going to jail.” Passengers thought hijacking the plane.

marshals

were terrorists

The plain-clothed marshals held more than 180 passengers - some of whom feared they had been hijacked by armed terrorists - at gunpoint for the remainder of the flight. When the plane landed, they removed the unruly passenger and then returned with several uniformed Philadelphia Airport Police Officers. “Suddenly, behind me, out of nowhere somebody, one of these marshals, says, ‘Head down, head between your legs, hands up,’ and before long I was in handcuffs,” Rajcoomar recalled. “And the next thing I knew, with the help of police they dragged me out of the airplane and forced me into a police van on the tarmac.” Rajcoomar was held for three to four hours without being allowed to contact an attorney or even notify his wife of his whereabouts. Initially, he claimed, the marshals would not even tell him why he was under arrest.

404 PART 25. DAMAGES

PART 25. DAMAGES “Three hours [later], they told me that they didn’t like the way I looked and they didn’t like the way I looked at them,” said the Guyana-born ethnic Asian Indian who is now a naturalized American. The family practice physician believes his race was the sole provocation for the marshals’ actions. “Plain and simple,” he told Fox News Channel, “I am a, you know, a tan-colored fellow.” Thomas agreed. “They’ve gone out of their way at every moment since 9/11 to say, ‘We’re not going to racially profile anybody,’” he explained, “when, in fact, this individual was clearly chosen only because of race, no other reason.” In his lawsuit, Rajcoomar sought an apology, court-ordered changes to the marshals’ training and procedures and $250,000 in compensatory damages. U.S. District Judge John P. Fullam accepted the terms of the settlement agreed to by Rajcoomar and TSA, which included a $50,000 payment and a written apology from TSA director, Adm. James Loy, and training and procedures changes. Fullam certified, after reading a classified report from the TSA, that the needed changes, made evident by Dr. Rajcoomar’s mistreatment, had been initiated. Analyst says poor TSA training to blame for mistakes. Thomas believes the willingness on the part of TSA to submit its training program, even in a classified setting, to the scrutiny of a federal judge means the agency knew it had problems in that area.

“Certainly, bad training on the part of TSA of its air marshals was the primary factor here leading to the incident that occurred,” Thomas observed. “[By] TSA submitting its training protocols and procedures to the federal judge ... TSA readily admits that its training was inadequate.” Neither the judge nor the TSA would comment on the changes made to the agency’s training, passenger detention or other procedures. Political demands may have played a tertiary role in the inadequate training, Thomas added. “The normal six- to eight-week program that the air marshals used to pride themselves on, this intense training, was scaled back in response to the congressional mandate to get thousands of air marshals up into the skies after 9/11,” he explained. “As a result, individuals who had [law enforcement] firearms training, were placed in a program sometimes as short as five days before they were given the opportunity to go up and fly,” Thomas said. “Again, rushing this out there, trying to do things to make us feel safer about air travel, rather than doing it the right way,” Thomas concluded. “They really, really screwed up on this one.” Brian Turmail, spokesman for the TSA, told CNSNews.com Friday that the lawsuit is not “technically” settled because the agreement has not been approved by the U.S. Attorney’s Office. Until that happens, he said, the agency will be unable to make any public comment.

(2) RICO Act Damages for Obstructions of Justice by the U.S. Department of Justice (3) RICO Act Damages for Obstructions of Justice by the U.S. Marshals Service (4) RICO Act Damages for the Denial of my Seventh Amendment right to a Civil Jury Trial by the Federal Judiciary

PART405 25. DAMAGES

EXHIBIT 1. U.S. DEPARTMENT OF STATE GIVES AWAY 8 ISLANDS OF ALASKA TO RUSSIA

EXHIBIT 1. State Department Gives Away 8 Islands of Alaska to Russia

Oil? Ah, Let Russia Have It State Department Gives Away 125,000 Square Miles of Alaskan Ocean Floor WorldNetDaily: Black-Gold Blues http://worldnetdaily.com/index.php?fa=PAGE.view&pageId=70902 July 29, 2008 Even if Congress follows President Bush’s lead in opening off-shore oil exploration, there exist over 125,000 square miles of sea bottom that won’t be explored, because the State Department – amid controversy and against the will of Alaskans – has surrendered the land to Russia. Eight islands and their surrounding sea floors were ceded to the former Soviet Union as part of the U.S.-U.S.S.R. Maritime Boundary Treaty in 1991, a treaty signed by the U.S. Senate and President George Bush but never ratified by the Soviets. Nonetheless, an executive agreement enforcing the terms of the treaty until ratification has been in place through three presidencies, meaning the State Department officially recognizes the islands as Russian territory. Alaskan legislators, who were given no input or authority on the island giveaway, have long protested the treaty, declaring it null and void without Russian ratification. And since last week’s U.S. Geological Survey estimating that 90 billion barrels of oil lie undiscovered and technically recoverable above the Arctic Circle, those 125,000 square miles of seabed have taken on newly appreciated value. Five of the islands lie north of the Artic Circle, and the other three sit at the western end of Alaska’s Aleutian island chain. Carl Olson, a retired U.S. Navy Lieutenant Commander and chairman of State Department Watch, a nonpartisan foreign policy watchdog group, explained to WND the significance of the State Department’s stance: “The area off the coast of an island that a nation may use is called the exclusive economic zone. The group in charge of defining that is the State Department. So (the president and Congress) can say the off-shore areas are opened up, but still not recognize these quarter of

a million square miles available for American oil exploration.” Alaska state Rep. John B. Coghill told WND earlier, “The issues involve not only state sovereignty over vital territories but also significant national defense concerns and substantial economic losses over fisheries and petroleum.” The Alaskan legislature and a sympathetic California legislature have both passed resolutions asking Congress to allow Alaska at the bargaining table with Russia to resolve the islands’ ownership. After almost 20 years of official protests, the U.S. State Department has yet to acknowledge Alaska’s arguments. “It’s totally anti-public, anti-Congress, anti-state actions – but unfortunately the State Department thinks it has the power to adopt this boundary line with the Russians without anybody’s consent outside themselves, “ Olson told WND. “The State Department is basically chopping off a piece of Alaska and giving it to a foreign government without Alaska having any say in it.” The lands in dispute include the islands of Herald, Bennett, Henrietta, Jeanette, Copper Island, Sea Lion Rock, Sea Otter Rock, and Wrangel, which is the largest of the eight, roughly the size of Rhode Island and Delaware combined. The U.S. purchased Alaska from Russia in 1867, including the Aleutian Islands, which presumably would include Copper Island, Sea Otter Rock and Sea Lion Rock. In 1881, U.S. Captain Calvin L. Hooper landed on Wrangel Island and claimed it for the U.S. Also in 1881, the U.S. Navy claimed the islands of Bennett, Jeannette, and Henrietta. The British held Herald Island, but they gave up that claim, permitting the U.S. to take it. American citizens had occupied Wrangel Island

EXHIBIT 1. U.S. DEPARTMENT OF STATE GIVES 406 AWAY 8 ISLANDS OF ALASKA TO RUSSIA

EXHIBIT 1. U.S. DEPARTMENT OF STATE GIVES AWAY 8 ISLANDS OF ALASKA TO RUSSIA from approximately 1881 to 1924, when Russian soldiers landed and forcibly removed the American occupants from its shores. The Russians then reportedly used the island as a concentration camp. Many Alaskan legislators believe the islands were part of their state, even after the Wrangel invasion, though the U.S. State Department officially disagrees. Without a ratified treaty designating them as Russian, those same legislators and Carl Olson believe the islands still are American territory and can be reverted to the U.S. easily. The only thing binding the islands to Russia is “in the form of an executive agreement,” Olson told WND, “which means it can be changed with the stroke of a pen by the president, because it has no force of law.” “We have been steadily maintaining the pressure,” said Olson. “It’s just a matter of finding sympathetic people in Washington and the other states to go for it. There’s plenty of organizations who have endorsed our efforts, so we keep up the drumbeat.” Coghill has also sought the support of other states, claiming that the federal State Department has overstepped its authority in giving away a state’s land. “If they can do this to Alaska,” he warns, “they can do this to any state.” U.S. State Department officials did not return WND telephone calls to discuss the matter, but a State Department webpage devoted to the island controversy denies that islands were ever claimed by the United States and explains that though the treaty between the U.S. and Russian Federation was never fully ratified, “In a separate exchange of diplomatic notes, the two countries agreed to apply the agreement provisionally.” The webpage concludes, “The U.S. has no intention of reopening discussion of the 1990 Maritime Boundary Treaty.”

EXHIBIT 1. U.S. DEPARTMENT OF STATE407 GIVES AWAY 8 ISLANDS OF ALASKA TO RUSSIA

EXHIBIT 2 - NO RIGHT TO POLICE PROTECTION DOCTRINE

EXHIBIT 2. No Right to Police Protection Doctrine IT’S JUST THE LAW: Police Protection Law K.L. Jamison Kevin L. Jamison is an attorney in the Kansas City, Missouri area concentrating in the area of weapons and self-defense. Saturday, June 7, 2008 http://newsgroups.derkeiler.com/Archive/Alt/alt.politics/2008-06/msg01248.html The law allows a policeman to command a citizen to come to his aid.617 The reverse is not true. In 1849, Jonathan W. Pottle was held captive and forced to pay $2,500 for his release. Mr. Pottle thought that this was unreasonable because the sheriff was present during the extortion and refused to assist him. As a loyal American, Mr. Pottle sued over this failure to act, and lost. In an 1855 decision the United States Supreme Court perfunctorily recited the facts, and ruled that there is no right to police protection and no right to sue over its lack. Since that decision, there has been no right to police protection recognized in the United States.618 It could have been worse. More recently, women in a Washington D.C. home were raped and tortured while other women, hidden upstairs, twice called for help. Twice officers drove past the house without investigating. The hidden women were then discovered and tortured over a fourteen hour period. They sued. The court was sympathetic, but ruled there was no cause of action.619 The states have the same philosophy. In a Missouri case, an outraged community sued their sheriff demanding that the court order him to perform his duty. The requested order was to force the sheriff to close a facility that did not measure up to community standards; or at least those members of the loyal American community that filed lawsuits.620 The court refused to issue the order. A long chain of federal and state cases state that police have a responsibility to protect the community as a whole, but no duty to protect any individual within that whole. It may help to visualize the metaphysics of the philosophy to realize that the point is to prevent victims of crime from suing the police. The courts have allowed that the police must protect persons with a “special relationship” to the police. Such relationships are so special as to be nearly extinct. In my early years at the bar,621 the courts found special relationships in cases involving drunk drivers and protective orders. Federal courts have put an end to these special relationships. On May 16, 2006, the First Circuit Court of Appeals ruled in McCloskey v Mueller III, finding that the FBI had no duty to arrest a violent criminal. The criminal in question, Gary Lee Sampson, had called the FBI and advised them that he wanted to surrender on an armed robbery warrant. The FBI did not oblige. Reacting badly to the perceived snub, Mr. Sampson murdered three people. Their estates sued, but the court ruled that the FBI had no duty to the victims. Protective orders in adult abuse cases typically require police action to protect the subject. However, the Supreme Court has put an end to this fuzzy thinking. In Town of Castle Rock v Gonzales, Jessica Gonzales had

617

We shall take up the institution of the Posse some other time.

618

South v Maryland, 59 U.S. (How) 396; 15 L.Ed. 433 (1855).

619

Warren v District of Columbia, 444 A.2d 1 (D.C. App. En banc 1987).

620

Parker v Sherman, 456 S.W.2d 577 (Mo. 1970).

621

This is the legal bar, not the alcohol bar; they are often confused.

408 EXHIBIT 2 - NO RIGHT TO POLICE PROTECTION DOCTRINE

EXHIBIT 2 - NO RIGHT TO POLICE PROTECTION DOCTRINE

obtained a protective order against her husband. The order contained a “Notice to Law Enforcement Officials” which stated: You shall use every reasonable means to enforce this restraining order. You shall arrest, or . . . seek a warrant for the arrest of the restrained person when . . . the restrained person has violated or attempted to violate any provision of this order . . .”622 The husband violated the order by kidnapping the couple’s three children. Ms. Gonzales notified the police repeatedly, alerting them to the protective order and even the location of her husband. Mr. Gonzales subsequently murdered the children. The Court ruled that the explicit language of the order did not require the police to do anything and provided no cause of action. There is not even the right to have the police patrol one’s neighborhood. In 1972, Kansas City, Missouri conducted a patrol experiment to discover the impact of vehicle patrols on crime rates. Some neighborhoods received increased patrols, some the same level, some none at all. The neighborhoods involved were not informed they were part of a test, much less given a choice as to which group they could join.623 The experimenters were surprised to find that vehicle patrols made no difference in crime rates or citizen satisfaction. A later withdrawal of patrols was less popular. On June 1, 1996, drug dealers in the area of 27th and Benton in Kansas City became outraged at the arrest of one of their guild and rioted. Police units were withdrawn from the area in order to allow emotions to burn themselves out. While doubtless good operational practice, it was a trifle hard on the citizens at 27th and Benton. The rioters burned a passing car and attacked the owner. It might have been worse. During the April 1980 riots in Miami, police headquarters was under siege by the rioters.6248 It could be a great deal worse. National Guard troops assigned to guard airports after 9-11 carried unloaded weapons in many cases. 625 It appears that some commanders were more concerned about a John Wayne mentality among their troops than they were about terrorists in the airport. It might have been a very great deal worse. In 1919, the Boston police went on strike for 102 days and Home Guard units formed for WW I had to be called in. 626 One can never be certain of police response. There are regular “blackouts” in Kansas City when no police officer is available for any call. 627 When they are available, there is no guarantee they can be called. The Kansas City emergency communications system is notorious for dead spots, areas where it functions badly or not at all. Even the Plaza, a fashionable shopping district less than five miles from the communications building, has numerous dead spots endangering police, firefighters, and citizens.628 A Kansas City police officer, while vainly radioing for backup, was shot and wounded by a drug dealer. Officers were a minute away, but the radio crackled and hummed ineffectively, telling the assailant that the

622

Town of Castle Rock v Gonzales, 545 U.S. 748 (2005).

623

Wilson, THINK ABOUT CRIME, Basic Books, Inc N.Y. 1983 at 66-8.

624

Buchanan, THE CORPSE HAD A FAMILIAR FACE, Charter Books N.Y. 1989 at 311.

625

“Some guardsmen carried empty weapons at airports” Kansas City Star 27 May, 2002 at A9, clm 1.

626

_____ U.S. Home Defense Forces NOVA Publications McLean VA 1981 at 33. [Plaintiff’s Note: As of June 28, 2008: US Home Defense Forces (1981). This study was performed for the Assistant Secretary of Defense (MRA&L). The study provides the first and only detailed account of the forces raised by the states to maintain order when their National Guard units were mobilized into federal service during World War I, World War II, and the Korean War. 127 pages. $15.00, No. NP083. NOVA Publications, 7342 Lee Highway, No. 201, Falls Church, VA 22046 Order online at http://members.aol.com/novapublic/prod02.htm] 627

Cindy Eberting, “Police too busy to answer all calls” Kansas City Star 26 June, 1996 at A-1, clm 6.

628

Kansas City Star 20 March, 1997 page C-1, clm 1, and page 2, clm 1.

EXHIBIT 2 - NO RIGHT 409 TO POLICE PROTECTION DOCTRINE

EXHIBIT 2 - NO RIGHT TO POLICE PROTECTION DOCTRINE

officer was alone and vulnerable. The officer sued the radio system builders.629 It is possible to sue such outside parties, but not possible to sue the police. When police are available and can be called, they may not respond. A New York City woman pressed a silent alarm when an armed robber entered her business. The alarm company called 911; the operator, however, garbled the name of the business. The lady was murdered while the authorities put it down as a false alarm. After her funeral, the company received a letter threatening no response if there were further such alarms.630 A Kansas City businessman was alerted to a burglary by his alarm company. He went to his business, expecting to be met by the police, only to find himself pursuing the burglar alone. The alarm company had called 911, but the dispatcher refused to send police officers because the business’ alarm permit had expired. In fact, the alarm permit had not expired.631 A permit system intended to limit false alarms has instead been used to limit police protection. The ACLU has provided video cameras to residents of a crime-ridden St. Louis neighborhood. The cameras are not to provide evidence of crime, but to document police brutality. While police brutality does occur, the effort is not likely to speed officers to calls in the neighborhood. The problem of “de-policing” has arisen since the Cincinnati riots of 2000. The term describes a demoralized police force which no longer initiates action out of fear of criticism, police discipline, civil suits, and even criminal charges. 632 In the last twenty years, “community policing” has relied on aggressive enforcement of seemingly minor laws on the theory that lack of enforcement indicates a tolerance of serious crime. With criminals filing bogus criminal charges against aggressive officers, and wild charges of racism (some both wild and true) many officers are reluctant to exercise the requisite aggression. When the system functions, and an officer is available, and an officer responds, it may still not be enough. One department’s policy is to wait for backup when responding to domestic violence reports. This sensible practice had a woman stabbed to death while a police officer sat in his car three doors away, waiting for backup.633 Police response is directly related to police contact. This contact is tied to cell phone coverage and the 911 system. Cell phone coverage can be eccentric and dependent on the reliability of electronic devices. Even today, not all of Missouri is covered by the 911 system, and there is no map of the places that are not covered (for those who like surprises). Some places have the equipment to locate a 911 call from a cell phone to within 75 yards, but most can only narrow it down to the nearest cell phone tower. A Missouri cell phone user can dial *55 and be linked to a Highway Patrol headquarters, but not necessarily the nearest headquarters.634 Police are recruited from “Type A” aggressive personalities. They want to rescue people and charge into danger; it is their nature. However, they are ruled by bureaucrats and politicians both in and out of uniform. If these rulers decide that a person or persons shall not receive police protection, there is no recourse. One federal

629

Kansas City Star, 25 September, 1997 page C-1, clm 5. Ironically, it was later discovered that the failure of the system was due to requirements imposed by the city over the objections of the company. 630

Kopel “THE 911 GAMBLE” Blue Press, October, 1998 at 10.

631

Lila LaHood “Records flawed; alarm goes unanswered” Kansas City Star, August 8, 1998 at C-1, clm2.

632

“Wary of racism complaints” Seattle Times 26 June, 2001 and “Three tales prove job is impossible” N. Y. Post August 6, 2001. 633

“Superior says officer acted right” Kansas City Star 20 May, 1987 page 1, clm 5.

634

Author’s conversation with 911 Coordinator, Emergency Management Agency, Missouri Department of Public Safety, 7 June, 1999.

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EXHIBIT 2 - NO RIGHT TO POLICE PROTECTION DOCTRINE

court has proclaimed that “there is no constitutional right to be protected by the state against being murdered by criminals or madmen.”635 Fortunately, there is a constitutional right to the means to defend ourselves.

635

Bowers v DeVito, 686 F.2d 61

EXHIBIT 2 - NO RIGHT 411 TO POLICE PROTECTION DOCTRINE

EXHIBIT 3 –HELLE’S FUTURE IN THE LOWER COURTS

EXHIBIT 3. Heller’s Future in the Lower Courts HELLER’S FUTURE IN THE LOWER COURTS 102 Northwestern University Law Review Colloquy 406 (2008) Glenn H. Reynolds Beauchamp Brogan Distinguished Professor of Law University of Tennessee. Brannon P. Denning Professor of Law and Director of Faculty Development Cumberland School of Law, Samford University. The Supreme Court has released its long-awaited opinion in District of Columbia v. Heller, No. 07-290, slip op. (U.S. June 26, 2008) (link).636 and the buzz has been considerable. Though much has been made of the majority’s historic ruling and of the narrowness of that majority, many commentators have missed an important point. What Heller is most notable for is its complete and unanimous rejection of the “collective rights” interpretation that for nearly seventy years held sway with pundits, academics, and—most significantly—lower courts. The repudiation of this extensive body of case law637 suggests that the real test of Heller will occur once the lower courts, traditionally hostile to an individual rights interpretation of the Second Amendment, face the inevitable follow-up cases challenging other restrictive gun laws. Experience with other seemingly groundbreaking Supreme Court decisions in recent years, such as United States v. Lopez, suggests that lower-court foot-dragging may limit Heller’s reach, though this time around there will likely be considerably more scrutiny and more vigorous litigation efforts. If the lower courts present a challenge to the implementation of Heller, they also provide litigants with an opportunity. Given the fact that the Heller majority declined to give a detailed accounting of the proper standard of review to be used in subsequent Second Amendment cases, litigants have a rare opportunity to write on a tabula much more rasa than is ordinarily the case in constitutional litigation, making use of recent scholarship on the crafting of constitutional decision rules that implement constitutional provisions. In the pages that follow, we take a look at these aspects of Heller. The triumph of the Standard Model of the Second Amendment is examined in Part I. Part II asks whether Heller is merely the opening volley in the coming judicialization of the gun control debate, or whether like the Court’s attempt to rein in congressional power under the Commerce Clause, Heller will ultimately be seen as largely symbolic. Finally, in Part III, we discuss the possibility that recent scholarship on constitutional doctrine might play a role in separating permissible from impermissible gun controls post-Heller. I. INDIVIDUAL AND COLLECTIVE RIGHTS Pre-Heller discussions of the Second Amendment noted the conflict between an individual rights model in which the Amendment confers a right to arms on individual citizens, who are entitled to use the courts to resist infringements in the same fashion as other constitutional rights such as free speech or privacy, and a collective rights model in which they are not. Under the formulation of this individual right arrived at by a large number of Second Amendment scholars (often referred to as the “Standard Model” of Second Amendment individual rights

636

No. 07-290, slip op. [(554 U.S. ___ )] (U.S. June 26, 2008)

available at http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf. 637

See Brannon P. Denning, CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES V. MILLER AND THE SECOND AMENDMENT, 26 CUMB. L. REV. 961 (1996) (criticizing the case law citing United States v. Miller as authority for rejecting an individual rights interpretation). EXHIBIT 2 –HELLE’S FUTURE IN 412 THE LOWER COURTS

EXHIBIT 3 –HELLE’S FUTURE IN THE LOWER COURTS

interpretation), the right is not absolute, but is extensive: “[t]he purpose of the right to bear arms is twofold: to allow individuals to protect themselves and their families, and to ensure a body of armed citizenry from which a militia could be drawn, whether that militia’s role was to protect the nation or to protect the people from a tyrannical government.”638 Set against this individual rights view was the so-called collective rights interpretation, under which the Second Amendment protects only the right of states to maintain an organized militia (often characterized as the modern-day National Guard) and gives rise to no judicially enforceable right to bear arms on the part of individuals. This theory characterized virtually all writing on the subject from the federal courts of appeals after the Supreme Court’s 1939 opinion in United States v. Miller,639 though the Miller opinion itself did not adopt a collective rights approach. 640 Under the collective rights theory, the Second Amendment, if it were susceptible to judicial enforcement at all, could only be invoked by a state government whose state militia was impaired by federal action. Individuals, even those claiming membership in a state’s “unorganized” militia, could not challenge federal gun laws.641 Shortly after Miller was decided, federal courts of appeals began to overread it and to cite it for the proposition that only arms borne with the intent of participating in or contributing to the efficacy of a militia were protected. 642 These courts essentially equated the Miller Court’s refusal to hold that a sawed-off shotgun was protected by the Second Amendment with a refusal to recognize any individual right under the Amendment that was not, first and foremost, concerned with the maintenance of an organized and government-regulated military body.643 638

Glenn Harlan Reynolds, A CRITICAL GUIDE TO THE SECOND AMENDMENT, 62 Tenn. L. Rev. 461, 475 (1995), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=960788 639

307 U.S. 174 (1939); see, e.g., Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942) (stating that the Second Amendment was designed to foster “the efficiency of the well regulated militia . . . as necessary to the security of a free state”); United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942) (stating that the Second Amendment “was not adopted with individual rights in mind”).

640

See Brannon P. Denning and Glenn H. Reynolds, TELLING MILLER’S TALE: A REPLY TO DAVID YASSKY, 65 L. & Contemp. Probs. Spring 2002, at 113, available at http://www.law.duke.edu/shell/cite.pl?65+Law+&+Contemp.+Probs.+113+(Spring+2002) (discussing holding in Miller in light of briefs and arguments) .

641

“Unorganized” militia, by statute, designate able-bodied males within a certain age range as members. Unorganized militia are contrasted with the “select” militia of a state, which correspond roughly to the state’s National Guard. See, e.g., 10 U.S.C. § 311 (2000) (classifying the able-bodied male population aged 17–45 as the unorganized militia of the United States) http://www.law.cornell.edu/uscode/10/311.html. State rules are similar, except that many states include women. See, e.g., Kan. Stat. Ann. § 48-904(e) (1983) (“ ‘[U]norganized militia’ means all able-bodied male and female persons between the ages of 16 and 50 years.”); Ohio Const. art. IX, § 1 (1994) (authorizes “all citizens” to serve); Or. Rev. Stat. § 396.105(3) (1994) (“The unorganized militia shall consist of all able-bodied residents of the state between the ages of 18 and 45 who are not serving in any force of the organized militia or who are not on the state retired list and who are or who have declared their intention to become citizens of the United States; subject, however, to such exemptions from military duty as are created by the laws of the United States.”). 642

See Brannon P. Denning, CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES V. MILLER AND THE SECOND AMENDMENT, 26 CUMB. L. REV. at 981-87 (1996) (discussing early cases applying Miller). 643

See, e.g., Cases, 131 F.2d at 923; Tot, 131 F.2d at 266; Brannon P. Denning, CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES V. MILLER AND THE SECOND AMENDMENT, 26 CUMB. L. REV. at 981-87 (discuss-ing Cases and Tot). But see District of Columbia v. Heller, No. 07-290, slip op. at 49–50 [(554 U.S. ___ )] (U.S. June 26, 2008) (“It is entirely clear that the [Miller] Court’s basis for saying that the Second Amendment did not apply was not that the defendants were ‘bear[ing] arms’ not ‘for . . . military purposes’ but for ‘nonmili-tary use’ . . . . Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection . . . . Beyond that, the opinion provided no explanation of the content of the right.”). EXHIBIT 2 –HELLE’S F413 UTURE IN THE LOWER COURTS

EXHIBIT 3 –HELLE’S FUTURE IN THE LOWER COURTS

Subsequent courts went further, stating that Miller held that the Second Amendment did not guarantee an individual right.644 Reading those opinions closely, however, it is clear that many simply relied on what other courts had said about Miller, and some judicial characterizations of Miller’s facts are so inaccurate that it is difficult to believe that the judge writing the opinion could have actually read the Miller decision itself. 645 Lower court discussions of Miller resembled a game of judicial Telephone, with the actual holding of Miller becoming less and less recognizable as the years progressed. Prior to Heller, only the Fifth Circuit in United States v. Emerson646 held that the Second Amendment creates an individual right, although it found the right was not violated by the facts at hand. II. THE LOWER COURTS AND THE HELLER DECISION It is impossible to review the Second Amendment jurisprudence from the federal courts of appeals (excepting only Parker v. District of Columbia,647 the lower-court version of Heller, and United States v. Emerson) without noting two things: a significant hostility toward individual rights arguments, and a surprisingly deep investment in their own case law, despite its rather tenuous anchor in the Supreme Court’s decisions. This raises the question: what will they do when presented with gun-rights cases post-Heller? There is some reason to expect that the answer will be “not much.” The last constitutional revolution led by the Supreme Court—via its Lopez and Morrison648 decisions limiting Congressional power—essentially petered out in the face of lower-court resistance.649 In light of Gonzales v. Raich,650 which upheld the application of federal drug control laws to local, non-commercial, medical marijuana, lower court reluctance to read Lopez and Morrison looked prescient. Will that happen again with the Second Amendment? In Lopez, the Supreme Court struck down the Gun Free School Zones Act as being in excess of Congress’s enumerated power to regulate commerce among the several states. In the years following Lopez, hundreds of cases flooded the lower courts, most brought by defendants convicted of violating various federal criminal statutes, claiming that those laws also exceeded Congress’s commerce power.651 In the five years after Lopez, however, only one law—the civil suit provision eventually invalidated in Morrison—was struck down by a federal appellate court.652 Even after Morrison, when the Court not only reaffirmed Lopez but seemed to add, 644

See Brannon P. Denning, CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES V. MILLER AND THE SECOND AMENDMENT, 26 CUMB. L. REV. 988-98 (1996) (discussing lower court cases). 645

See id. at 997–98 (discussing Hickman v. Block, 81 F.3d 98 (9th Cir. 1996)).

646

270 F.3d 203 (5th Cir. 2001).

647

478 F.3d 370, 395 (D.C. Cir. 2007) (concluding “that the Second Amendment protects an individual right to keep and bear arms”), aff’d sub nom. District of Columbia v. Heller, No. 07-290 (June 29, 2008). 648

United States v. Morrison, 529 U.S. 598 (2000) (invalidating the civil-suit provision of the Violence Against Women Act as beyond Congress’s commerce power). http://supreme.justia.com/us/529/598/ 649

See Glenn H. Reynolds & Brannon P. Denning, LOWER COURT READINGS OF LOPEZ, OR WHAT IF THE SUPREME COURT HELD A CONSTITUTIONAL REVOLUTION AND NOBODY CAME? 2000 WIS. L. REV. 369 (2000) [hereinafter Reynolds & Denning, CONSTITUTIONAL REVOLUTION]; Brannon P. Denning & Glenn H. Reynolds, RULINGS AND RESISTANCE: THE NEW COMMERCE CLAUSE JURISPRUDENCE ENCOUNTERS THE LOWER COURTS, 55 Ark. L. Rev. 1253 (2003) [hereinafter Denning & Reynolds, RULINGS AND RESISTANCE] (discussing lower court cases following Morrison). 650

545 U.S. 1 (2005) (upholding application of the Controlled Substances Act to noncommercial marijuana grown and possessed for local, medicinal use under state law) http://supreme.justia.com/us/536/545/. 651

Several of these challenges are discussed in Glenn H. Reynolds & Brannon P. Denning, LOWER COURT READINGS OF LOPEZ, OR WHAT IF THE SUPREME COURT HELD A CONSTITUTIONAL REVOLUTION AND NOBODY CAME? 2000 WIS. L. REV. 369 (2000). 652

Brzonkala v. Va. Polytechnic Inst. and State Univ., 169 F.3d 820 (4th Cir. 1999) (en banc), aff’d sub. nom. United States v. Morrison, 529 U.S. 598 (2000). EXHIBIT 2 –HELLE’S FUTURE IN 414 THE LOWER COURTS

EXHIBIT 3 –HELLE’S FUTURE IN THE LOWER COURTS

“and we mean it,” courts were still reluctant to rigorously analyze federal statutes using the Lopez-Morrison framework. Though before Raich signaled a retreat, lower courts were beginning to uphold as-applied challenges to particular federal statutes.653 Will Heller suffer Lopez’s fate, serving more as casebook fodder than as actual authority? On the surface, there are some analogies between the Commerce Clause and the Second Amendment that suggest that, like Lopez, Heller itself may end up as so much sound and fury, signifying nothing—or at least nothing much. First, there are the institutional prejudices of the courts of appeals, favoring the status quo and possessing a desk-clearing mentality. Like the bureaucrats they increasingly resemble, the members of the appellate judiciary do not like to rock the boat. In addition, the courts of appeals have a history of more-or-less open hostility to claims of a private right to arms. The vast majority of cases to date suggest that, to the extent they can, they will try to rule against such a right. Second, as was true following Lopez, there are few federal firearms laws that are vulnerable under Heller. Indeed, Justice Scalia’s opinion took some pains to make clear what the Court was not calling into question: [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.654 Indeed the very enumeration of “presumptively lawful regulatory measures” seemed calculated to reduce expectations among, for example, felons convicted of possessing firearms in violation of federal law that Heller represented a “Get Out of Jail Free” card. Third, the Heller majority’s refusal to be pinned down on a specific standard of review might also leave an opening for lower courts to confine Heller to its facts.655 For example, a court might read Heller as standing for the proposition that anything less than an absolute ban could pass muster. Even if a reviewing court adopts the kind of intermediate standard of review urged by the Solicitor General,656 it might simply apply the standard in a way that defers to governmental judgments about the necessity of regulation. A more explicit articulation of the standard to be employed could have discouraged lower court evasion of Heller, or at least made such evasion somewhat easier to detect, if the Court was inclined to monitor lower courts for compliance, something that it did not do following Lopez.657 Fourth, because the majority preemptively (perhaps “peremptorily” is a better word) signaled its view that a number of federal gun control laws would not be called into question by Heller,658 the most promising targets—local gun bans similar to the District’s and restrictive state gun laws—lie beyond the immediate scope of Heller because the Second Amendment remains outside those provisions of the Bill of Rights that have been

653

See Brannon P. Denning & Glenn H. Reynolds, RULINGS AND RESISTANCE: THE NEW COMMERCE CLAUSE JURISPRUDENCE ENCOUNTERS THE LOWER COURTS, 55 Ark. L. Rev. 1253 (2003) (describing these as-applied challenges). 654

District of Columbia v. Heller, No. 07-290, slip op. at 54–55 (U.S. June 26, 2008) available at http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf.. A foot-note added, for good measure, that the Court’s list of “these presumptively lawful regulatory measures . . . does not purport to be exhaustive.” Id. at 55 n.26. 655

See id. at 63 (“[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field . . . .”). 656

Brief of the United States as Amicus Curiae, District of Columbia v. Heller, No. 07-290, at 8–9 (2008) (recommending remand for analysis using intermediate scrutiny as the standard of review), available at http://www.scotusblog.com/wp/wpcontent/uploads/2008/01/us-heller-brief-1-11-08.pdf . 657

Whatever one thinks of the substance of his test or how well that test implements the right guar-anteed by the Second Amendment, Justice Breyer at least described in some detail the approach he would take. See Heller, No. 07-290, slip op. at 8–12 (Breyer, J., dissenting) (describing the “interest-balancing” approach he would employ in Second Amendment cases). 658

See supra note 654 and accompanying text. EXHIBIT 2 –HELLE’S F415 UTURE IN THE LOWER COURTS

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incorporated through the Fourteenth Amendment and applied to states.659 Thus, the true test of Heller’s reach will turn on whether the Court will be willing to entertain one of the proliferating number of cases challenging these laws.660 If the Court does not, then, like Lopez, Heller may end up having all the robustness of a “but see” cite. 661 On the other hand, there are several important differences that ought not be overlooked between the situation following Lopez and that likely to follow Heller. Perhaps most important is the fact that there was virtually no coordinated follow-up litigation to Lopez on the part of the public interest bar. Most of the litigation was opportunistic: Lopez was cited in just about every appeal on behalf of those convicted of federal criminal offenses, who, as a group, rarely present the most sympathetic face. By contrast, several lawsuits were filed challenging gun control laws in other communities within hours of the Heller opinion’s publication. 662 Given the stakes, interest groups challenging local laws have greater incentive than individual criminal defense attorneys to ensure that only the best cases with the cleanest facts are brought. Moreover, there was relatively little public interest in Lopez or the Commerce Clause. The Second Amendment, on the other hand, is among the most significant provisions of the Bill of Rights from the standpoint of public engagement.663 The public interest groups sponsoring follow-up litigation will have every incentive to publicize lower court attempts to evade or blunt the effect of Heller and can try to choose cert-worthy cases from among those to be litigated. Given popular interest, the media and elected officials will have an incentive to monitor lower court implementation of Heller. It is also possible that the lower courts’ hostility to an individual right to arms was largely a product of the zeitgeist of an earlier era, carried forward as much by habit and stare decisis as by any institutional interest. With the individual right theory of the Second Amendment now not only endorsed by the Supreme Court, but also, thanks to extensive scholarship, academically respectable (and, of course, popular with a very large majority of citizens) it may be that today’s federal judiciary will be less hostile to the right than past courts. A related point is that lower court judges may perceive the stakes differently in Heller than they did in Lopez. Following Lopez to its logical conclusions suggested rethinking the foundations of the modern New Deal state, if not mandating the unwinding of that state. At the very least, it presented an opportunity for hundreds of criminal defendants to escape the consequences of their convictions. Neither was an appealing option for even the most ardent advocate for limiting federal power, so judges strenuously resisted following Lopez wherever it might lead—especially if it meant revisiting the constitutional legitimacy of statutes like the 1964 Civil Rights Act. By contrast, even reading Heller for all that it is worth, it is clear that significant regulations of private firearms ownership—including various licensing regimes—are not necessarily presumptively unconstitutional. Finally, despite the unanimity of the Court in its conclusion that the Second Amendment protected some individual right, the alternative limiting implementations of that right were expressed as dissents, as opposed to 659

United States v. Cruikshank, 92 U.S. 542 (1875) (refusing to apply the First and Second Amendments to the states) http://supreme.justia.com/us/92/542/case.html. For Heller’s discussion of Cruikshank and its continued significance in light of the Court’s incorporation of most provisions of the Bill of Rights to the states, see Heller, No. 07-290, slip op. at 47–49 & nn.22–23. 660

The majority did drop a pointed note that the case first declining to apply the Second Amendment to the states “also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.” Id. at 48 n.23. 661

Cf. John Copeland Nagle, THE COMMERCE CLAUSE MEETS THE DELHI SANDS FLOWER-LOVING FLY, 97 Mich. L. Rev. 174, 176 (1998) (“Whether Lopez marks a dramatic shift in Commerce Clause jurisprudence or is instead destined to be a ‘but see’ citation remains to be seen.”). 662

See, e.g., Maura Dolan, The 2nd Amendment: Reaction to the Court Ruling, L.A. Times, June 27, 2008, at A19, available at http://www.latimes.com/news/nationworld/nation/la-na-legal27-2008jun27,0,3173451.story. 663

See Jeffrey M. Jones, Public Believes Americans Have Right to Own Guns, Gallup, Mar. 27, 2008, http://www.gallup.com/poll/105721/Public-Believes-Americans-Right-Own-Guns.aspx (“A solid majority of the U.S. public, 73%, believes the Second Amendment to the Constitution guarantees the rights of Americans to own guns.”). EXHIBIT 2 –HELLE’S FUTURE IN 416 THE LOWER COURTS

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partial concurrences.664 Thus, there are not any narrow concurring opinions whose authors essentially control the outcome of future cases; the alternative approaches of the dissenters are, well, dissents. Imagine a situation, though, in which Justice Breyer’s “interest-balancing” approach was a concurring opinion; lower courts seeking to limit Heller might choose Justice Breyer’s standard of review in the absence of anything definite in the majority opinion.665 In Lopez, for example, though the Court listed a number of factors bearing on whether a given local activity “substantially affected” interstate commerce or not, the Court did not make clear whether all factors had to be satisfied, or just some, or whether some factors were indispensible to a finding that regulated activity had a substantial effect on interstate commerce. In response, many lower court judges interpreted the opinion narrowly. The presence of any factor distinguishing the statute under review from the Gun Free School Zones Act was deemed sufficient to turn back the constitutional challenge.666 Which set of forces will prevail? It’s impossible to say for certain, so we’ll equivocate and say, “it depends.” Bureaucrats tend to take the path of least resistance, and least controversy. Though some foot-dragging is likely, it’s equally likely that the kind of resistance demonstrated in response to Lopez won’t manifest itself in response to Heller, as such resistance would likely produce far more controversy. III. HELLER AND DECISION RULES Because of its reticence on the subject, Heller presents litigants with an opportunity to sell lower courts on a standard of review largely unencumbered by binding precedent. Subsequent litigation, then, might be a good test subject for examining the role that “decision rules” play in the “implementation” of constitutional rights.667 Given the considerable discretion that courts have in fashioning rules to implement constitutional guarantees,668 and the variety of doctrinal tests the Court has employed over the years to enforce various constitutional provisions,669 it is clear that older discussions framing the choice as between individual rights/strict scrutiny vs. states’ or collective rights/rational basis embodied a false choice.

664

See, e.g., Heller, No. 07-290, slip op. at 1 (Stevens, J., dissenting); id., slip op. at 1 (Breyer, J., dissenting). Justice Breyer seems to be feeling his way toward some sort of “undue burden” standard, though it is more of an “undue-burden-lite” standard, as it is difficult to imagine him upholding a ban on abortion in the District of Columbia on the basis that one could reach a friendlier jurisdiction for the price of a subway ticket. See id. at 30 (Breyer, J., dissenting) (“The adjacent states do permit the use of handguns for target practice, and those States are only a brief subway ride away.”). 665

Likewise, Justice Stevens’s primary dissent is, if anything, less clear than Justice Scalia’s majority opinion on the appropriate standard of review. By contrast, Justice Breyer’s dissent is quite detailed. 666

See See Glenn H. Reynolds & Brannon P. Denning, Lower Court Readings of Lopez, or What if the Supreme Court Held a Constitutional Revolution and Nobody Came? 2000 Wis. L. Rev. 369 at 385-91 (2000) (discussing several such cases). 667

What one of us has elsewhere called the “new doctrinalism” is concerned with judicial generation of rules that implement or enforce constitutional meaning. See generally Brannon P. Denning, THE NEW DOCTRINALISM IN CONSTITUTIONAL SCHOLARSHIP AND DISTRICT OF COLUMBIA V. HELLER, 75 Tenn. L. Rev. (forth-coming 2008); Kermit Roosevelt III, THE MYTH OF JUDICIAL ACTIVISM 22–36 (2006); Mitchell N. Berman, CONSTITUTIONAL DECISION RULES, 90 Va. L. Rev. 1 (2004) (link); Richard H. Fallon, Jr., IMPLEMENTING THE CONSTITUTION 76–101 (2001). 668

See, e.g., Kermit Roosevelt III, THE MYTH OF JUDICIAL ACTIVISM 22–36 (2006); Mitchell N. Berman, CONSTITUTIONAL DECISION RULES, 90 Va. L. Rev. at 23-36 (2004); Mitchell N. Berman, CONSTITUTIONAL DECISION RULES, 90 Va. L. Rev. 1 (2004) (link); Richard H. Fallon, Jr., IMPLEMENTING THE CONSTITUTION at 92-100 (2001) (describing factors influencing choices of decision rules). 669

See Richard H. Fallon, Jr., IMPLEMENTING THE CONSTITUTION 77–79 (2001) (listing “A Catalogue of Constitutional Tests”). EXHIBIT 2 –HELLE’S F417 UTURE IN THE LOWER COURTS

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As scholars such as Adam Winkler, and the Solicitor General’s brief made clear, recognition of an individual right does not doom all gun control regulations to constitutional oblivion.670 Subsequent litigation offers an opportunity for litigants to educate lower courts about the choices they have and offer the guidance the Court declined to provide about crafting rules that implement the guarantee Heller recognized. Scholars, too, have an opportunity to enter into the sort of dialogue with courts that both academics and judges agree is far too rare. This will be especially true of cases involving state and local restrictions—laws whose constitutionality was not squarely presented in Heller. Litigants ought to study and develop responses to Justice Breyer’s “interestbalancing” standard of review. Likewise, those defending existing or proposed gun controls—especially those that do not go as far as the District’s did—have another opportunity to argue against categorical rules and presumptions of unconstitutionality. In truth, this is probably the debate that we should have been having all these years: which regulations of private firearms are the “reasonable” ones that most people—including most of those who support an individual rights reading of the Second Amendment—can support. At the very least, the Court’s interring of the “collective rights” or “military purpose” interpretation of the Second Amendment has cleared the way for that debate to begin. CONCLUSION Though the civics-book formulation provides that the Supreme Court establishes clear principles which lower courts should conscientiously apply, reality is considerably more complex and frequently less satisfying. Unfortunately, as many lawyers can attest, the Supreme Court often formulates principles that are not clear, and sometimes it fails to establish principles at all. Lower courts, meanwhile, are not always conscientious in following the Supreme Court’s lead, whether for reasons of bureaucratic rigidity or because they have their own agendas. Given the Supreme Court’s light caseload, and the enormous number of cases in the lower courts, the path taken by the federal judiciary can diverge considerably from that established by the Supreme Court.671 Will Heller be such a case? As we have noted before, this depends—upon the behavior of litigants, upon the predilections of lower court judges, and upon the degree and nature of scrutiny that the process receives. For us, at least, it offers an opportunity to continue our study of how Supreme Court precedent influences lower courts in an entirely new context, for which we are properly grateful.

670

See generally Adam Winkler, Scrutinizing the Second Amendment, 105 MICH. L. REV. 683 (2007); Brief for the United States as Amicus Curiae, supra note 21. But see Glenn Harlan Reynolds, Guns and Gay Sex: Some Notes on Firearms, the Second Amendment, and “Reasonable Regulation”, 75 TENN. L. REV. 137 (2007) (comparing “reasonable regulation” in Second Amendment context to reason-able regulation in the context of the Supreme Court’s unenumerated rights jurisprudence). 671

See Glenn Harlan Reynolds, LOOKING AHEAD: OCTOBER TERM 2007, 2007 CATO SUP. CT. REV. 335, 350–52 (describing the Supreme Court’s reduced influence on federal courts of appeals).

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EXHIBIT 4 – THE LAW OF CITIZEN’S ARREST

EXHIBIT 4. The Law of Citizen’s Arrest 65 Columbia L.Rev. 502 (March 1965) The Law of Citizen’s Arrest 65 Columbia Law Review, 502-513 (March 1965) I. The Arrest A. Nature of the Crime B. Time of the Arrest C. Presence During Commission of the Crime D. Notice of Arrest E. Detention of thbe Person Arrested F. Use of Force [Not Needed in This Instance]

The Article Outline Above Adapted to the Case at Hand. “The role of the private person in the apprehension of criminals is defined by the law of citizen’s arrest -- an outgrowth of stagnated common-law rules that were derived from English practices of the Middle Ages. The inadequacy of existing law is perhaps suggested by the scant protection currently afforded the responsble citizen voluntarily participating in law enforcement. . . .” “If the private citizen is to assume his proper responsibility in the enforcement of the criminal law, the immunities and limitations of citizen’s arrest must be clerarly defined. If professional enforcement authorities are to receive necessary assistance from private individuals, the scope of citizen’s arrest must be adapted to the conditions and problems of modern soceity.”

A. Nature of the Crime Felony extortion under color of law & official right, 18 U.S.C. § 872 versus the Seamen’s Suit law, 28 U.S.C. § 1916

B. Time of the Arrest Citizen’s Arrests have been obstructed under threat of my own arrest by the U.S. Marshals Service. I waited patiently for the U.S. Attorney, the U.S. Marshals Service, the FBI, or the U.S. Department of Justice to review my Citizen’s Arrest Warrants and to begin corresponding with me to achieve a proper remedy. They remain silent. Time has run out. This is their final notice. Citizen’s Arrest is now imminent.

C. Presence During Commission of the Crime The U.S. Marshals Service claims that I was not present during the alleged extortion, i.e., in the presence of the judges signing their court orders compelling me to pay the filing fees. However, the Online (Internet) Docket Report is the lawful substitute for presence during the commission of the crime. Citing from the Columbia Law Review article: “. . . the [presence] requirement has been held satisfied in cases of perception by artificial means. For example, where a concealed radio transmitter conveyed sounds indicating the commision of a crime inside a house, the listener was deemed present at the crime for purposes of effecting a valid citizen’s arrest. People v. Burgess, 170 Cal. App. 2d 36, 338 P.2d 524 (Dist. Ct. App. 1959). “An exception to the observation requirement has been recognized in cases where a crime has been committed earlier and the supposed offender threatens to renew his criminal conduct. In this situation, the private citizen can make an arrest without having witnessed the commission of a crime. . . .

EXHIBIT 4 – THE LAW OF419 CITIZEN’S ARREST

EXHIBIT 4 – THE LAW OF CITIZEN’S ARREST “The traditional requirement of firsthand observation of a crime may well have outlived its usefulness as an appropriate limitation on citizen’s arrest. The purpose of the requirement is presumably to prevent the danger and imposition involved in mistaken arrests based upon uncorroborated or second-hand information. Its principal impact is in cases wherre the citizen learns of the commission of a crime and assumes the responsibility of preventing the escape of the offender. . . . “. . . In view of the already stringent temporal limitations that insure close proximity to commission of the crime, it would seem preferable to lower the incidence of mistaken arrests not through an arbitrary requirement of firsthand observation but by application of a standard of probable cause -- namely, that the apprehension be justified by probable cause for believing a crime had been committed.” Cf. Cal. Pen. Code § 836 (police arrest without a warrant) [Cal. Pen. Code § 836 still current today] Wis. Stat. Ann. § 954.02 (1958) (same) [Wis. Stat. Ann. for arrest without a warrant today is § 23.57]

D. Notice of Arrest “Because every man was privileged to resist unlawful attempts to restrict his freedom, the common law required notice to be given that an apprehension represented a citizen’s arrest. An arrester was obliged to make known his intent and the cause of the arrest. The notice requirement, however, was subject to a number of significant exceptions -- as where the arrester reasonably believed that notice woulde either be futile or unnecessary, endanger himself or others, or compromise the success of the arrest.” (See People v. Marendi, 213 N.Y. 600, 608-610, 107 N.E. 1058, 1060-61 (1915); Perkins, THE LAW OF ARREST, 25 Iowa L. Rev. 201, 250; Ali, CODE OF CRIMINAL PROCEDURE § 26, comment at 167 (Tent. Draft No. 1, 1928).) “The traditional notice requirement has been adopted by statute in the majority of states. In general the notification must aqccurately point to criminal conduct actually committed, and be communicated prior to the arrest.”

E. Detention of the Person Arrested “Once proper notice has been given, the citizen must restrain the apprehended person by force or the threat of force for the arrest to be valid. Mere compliance by the arrestee with a request to voluntarily submit to custody is insufficient. Although at common law a restraining touch would of itself effect an arrest even if the arrestee was never brought under physical control, actual detention is generally required by modern statutes.” “The requirement of actual detention provides a necessary condition for determining the liability both of the arrester for commission of false arrest and of the criminal for unlawful escape from custody.”

F. Use of Force There is no need for me to resort to the use of force because the federal judges, the Chief Justice of the U.S. Supreme Court and their court clerks have the U.S. Marshals Service, the Capitol Police, and the U.S . Supreme Court Police to perform the taking into physical custody aspect of citizen’s arrest in accordance with DC Code 23-582(c). I do not have to bring the arrestee to a federal law enforcement agent. The federal law enforcement agent will be present at my request to effect taking into physical custody aspect of the citizen’s arrest. (7) To discover, clarify and/or establish lawful remedies to violations of federal laws and constitutional rights by the three branches of the United States Government under constitutional law, human rights law, and the Law of Nations when all available normative remedies become exhausted by the victim or ignored by the federal courts through perpetual dismissals, or ignored by the executive and legislative branches (i.e., rejection of my proposed Private Bill by the staff of U.S. Senator Mark Pryor of Arkansas and U.S. Representative Marion Berry of Arkansas, the Plaintiff’s home state) up to and including the Law of Citizen’s Arrest, civil disobedience to create a criminal remedy under the Sixth Amendment, the role of the unorganized militia in constitutional law; and other means of enforcing the Checks and Balance System as implied by the “guarantee to every State in this Union a Republican Form of Government.”

420 EXHIBIT 4 – THE LAW OF CITIZEN ’S ARREST

EXHIBIT 5 – DAVE KOPEL, U.N. TO THE WORLD: YOU HAVE NO HUMAN RIGHT TO SELF-DEFENSE

EXHIBIT 5. Dave Kopel: U.N. To World: You Have No Human Right to SelfDefense U.N. To World: You Have No Human Right to Self-Defense Thwarted by the demise of its global gun ban treaty, the United Nations declares the human right of self-defense null and void. by Dave Kopel Second Amendment Project A Research Center for the Independence Institute Published in the NRA Magazine “America’s 1st Freedom” November 2006, pp. 26-29, 62-63. http://www.davekopel.com/2A/Foreign/UN-To-World.htm Self-defense is a privilege that governments may choose to grant or withdraw. You have no human right to self-defense. If a government does not impose repressive restrictions on gun ownership—more severe than even the laws in New York City or Washington, D.C.—then that government is guilty of violating international human rights. So says the United Nations in its latest assault on the Second Amendment. This July, the National Rifle Association and other pro-freedom groups won a tremendous victory at the U.N. Small Arms Review Conference when they helped block the creation of a global gun control treaty. Winning a very important battle, though, is not the same as winning a war. Since then, the global gun prohibition movement has already opened up a major new front in the war on our rights. This fall, the General Assembly of the United Nations will be considering a new Arms Trade Treaty. The treaty is backed by many governments, as well as by the world’s leading gun prohibition group, International Action Network on Small Arms (IANSA). Once the final language of the treaty is approved by the General Assembly, the treaty will be open for signature and ratification by all nations. At the highest level of generality, the Arms Trade Treaty is based on a very good idea: prohibiting the sale of arms to countries that use them to violate human rights. It would be a good idea, for example, if all nations refused to sell arms to the dictatorships in Burma, Zimbabwe or Cuba, all of which have an atrocious record of human rights violations. (And all of which, like other modern nations that are extreme violators of human rights, have extreme laws against citizen gun ownership.) However, any nation that has a conscience can already ban arms exports to such evil governments. Conversely, nations such as China, which currently supply arms to human rights abusers all over the world, have a long record of flouting the treaties they sign, so it would be foolish to expect that a new treaty would stop their arms exports to their favorite tyrannical allies. The Arms Trade Treaty will, however, increase international pressure to cut off arms sales to Israel. Although Israel’s human rights record is far superior to any of its neighbors (and superior to the large majority of U.N. members), the United Nations condemns Israel much more than any other nation for supposed violations of human rights. The Arms Trade Treaty can also be used to attempt to suppress the sale of civilian, police or military arms to the United States. The reason is that the U.N. is working to declare that all American gun laws, as well as the right to self-defense, are violations of human rights. THE U.N. HAS appointed University of Minnesota Law Professor Barbara Frey as its “Special Rapporteur on the prevention of human rights violations committed with small arms and light weapons.” A “Special Rapporteur” is a U.N.-designated expert and researcher on a subject.

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EXHIBIT 5 – DAVE KOPEL, U.N. TO THE WORLD: YOU HAVE NO HUMAN RIGHT TO SELF-DEFENSE Notably, the title the U.N. gave to Frey required her to look exclusively at how small arms are used to violate human rights—and to ignore how small arms are used to protect human rights, such as when used to resist genocide. But the one-sided nature of Frey’s research mission was consistent with her own views; Frey is a member of IANSA and participated in a 2005 strategy meeting in Brazil designed to support the gun prohibition referendum in that nation. On July 27, Frey issued her final report, declaring that there is no human right to self-defense and that insufficient gun control is a violation of human rights. (The report, “Prevention of human rights violations committed with small arms and light weapons,” is available on IANSA’s website, www.iansa.org/un/documents/salw_hr_report_2006.pdf.) On Aug. 21, the U.N. Human Rights Council’s Sub-Commission on the Promotion and Protection of Human Rights endorsed the Frey report in total and recommended that the full Human Rights Council (HRC) do so. It’s important to note that the U.N. Human Rights Council, despite its name, is composed of some of the worst human rights violators in the world, such as Cuba and Saudi Arabia. The U.N. rejected efforts by the United States to join the Human Rights Council, and instead allowed dictatorships such as China and Pakistan to join. It is all but certain that the Human Rights Council will follow the lead of its sub-commission and adopt the Frey Report as an official statement of HRC policy on human rights. At that point, the global and American gun prohibition lobbies can then begin to attack American gun laws because they “violate human rights.” According to Frey, governments have an affirmative human rights obligation to protect their subjects from violence. This obligation includes much more than simply making and enforcing laws against crime. According to Frey, the “due diligence” obligations means that: “It is reasonable for international human rights bodies to require States to enforce a minimum licensing requirement designed to keep small arms and light weapons out of the hands of persons who are likely to misuse them. … The criteria for licensing may vary from State to State, but most licensing procedures consider the following: (a) minimum age of applicant; (b) past criminal record including any history of interfamilial violence; (c) proof of a legitimate purpose for obtaining a weapon; and (d) mental fitness. Other proposed criteria include knowledge of laws related to small arms, proof of training on the proper use of a firearm and proof of proper storage. Licences should be renewed regularly to prevent transfer to unauthorized persons.” BY THE FREY/HRC standards, every American jurisdiction is a human rights violator because its gun laws are not severe enough. Even in New York City or Washington, D.C., the government does not require a gun license applicant to prove that he or she has “a legitimate purpose.” Once New York City or D.C. finally let you buy a shotgun, you can use it for any legitimate purpose—sporting clays, gunsmithing practice, collecting or even self-defense (assuming that you somehow can retrieve the locked gun in time to use it against a home invader). At every gun store in the United States, buyers must pass a background check under the National Instant Check System (or a state equivalent). Most states do not require a separate license for handgun purchases and even fewer require a license for long gun purchases. Only a few states mandate that a person who simply wants to continue owning the guns he already has must renew a license from the government every few years. The absence of mandatory, periodic licensing for continued possession of one’s own guns is another human rights violation, according to Frey. Similarly, the vast majority of American states allow children, under parental supervision, to use firearms; the family, not the government, decides when a particular child is ready to take his or her first shots with the family’s .22 pistol or rifle. Yet this, too, is a human rights violation, according to Frey and the HRC, since the government has not specified a minimum age for a gun license. The Frey/HRC rules declare almost all American self-defense laws to be human rights violations. The Frey report declares: “When small arms and light weapons are used for self-defence, for instance, unless the action was

422 EXHIBIT 6 – THE RIGHT OF A LITIGANT TO PROCEED PRO SE

EXHIBIT 5 – DAVE KOPEL, U.N. TO THE WORLD: YOU HAVE NO HUMAN RIGHT TO SELF-DEFENSE necessary to save a life or lives and the use of force with small arms is proportionate to the threat of force, selfdefence will not alleviate responsibility for violating another’s right to life.” Moreover, “Because of the lethal nature of these weapons and the jus cogens (a mandatory norm of general international law from which no two or more nations may exempt themselves or release one another) human rights obligations imposed upon all States and individuals to respect the right to life, small arms and light weapons may be used defensively only in the most extreme circumstances, expressly, where the right to life is already threatened or unjustifiably impinged.” Under international law, a jus cogens standard supersedes any contrary rule. Thus, Frey and the HRC are declaring that their restrictive view of self-defense trumps any contrary state, national or international law. The laws of all American states allow the use of deadly force against certain violent felonies (include rape, torture and mayhem) when the person being attacked reasonably believes that no lesser force will suffice. Yet Frey and the HRC will allow the use of deadly force only against a life-threatening attack, and not against other violent felonies. Thanks to NRA leadership, 14 states this year have adopted “Castle Doctrine” laws that state that a person may use a firearm (that is, deadly force) against a violent felon without having to calculate whether lesser force might suffice. The large majority of American jurisdictions state that a person who is attacked in his home need not retreat when attacked, and some jurisdictions also apply the no-retreat rule in public spaces. Yet all of these American protections of the right of self-defense are violations of human rights, according to the adopted report of the U.N.’s Special Rapporteur. YOU MIGHT WONDER HOW the U.N.’s claim that gun control is a human right, and that suppression of self-defense is a human right, can be reconciled with the actual human right of self-defense. Such a reconciliation is impossible, so the U.N., speaking through its Special Rapporteur, has simply declared that THERE IS NO HUMAN RIGHT TO SELF-DEFENSE. The Frey report admits that most criminal justice systems acknowledge self-defense, but the report claims that self-defense is merely a government-granted exemption to criminal liability, and that this exemption must be very narrowly construed. Frey and the U.N. assert that the traditional sources of international law do not support the existence of a right to self-defense. However, this premise is false. The United Nations’ own Universal Declaration of Human Rights recognizes, in its preamble, a last-resort right of self-defense against tyranny: “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.” To list all the sources of human rights law that recognize the right of self-defense would take many thousands of words, but the error of Frey’s assertion can easily be seen simply by looking to three of the great philosophers universally regarded as founders of international law. Hugo Grotius (Dutch, On the Law of War and Peace): “When our lives are threatened with immediate danger, it is lawful to kill the aggressor, if the danger cannot otherwise be avoided … We must observe that this kind of defence derives its origin from the principle of self preservation, which nature has given to every living creature.” Emerich de Vattel (Swiss, The Law of Nations): “Every nation, as well as every man, has, therefore, a right … to preserve herself from all injuries: and this right is a perfect one, since it is given to satisfy a natural and indispensable obligation … It is this right to preserve herself from all injury that is called the right to security.” Francisco Suárez (Spanish, 26 volumes, including De Legibus ac Deo Legislatore): Self-defense is “the greatest of rights,” encompassing individual protection against criminals, as well as community self-defense against tyrants.

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EXHIBIT 5 – DAVE KOPEL, U.N. TO THE WORLD: YOU HAVE NO HUMAN RIGHT TO SELF-DEFENSE The only way that the United Nations can use international law to deny the right to self-defense is to ignore the fundamental sources of international law itself. Yet many American officials, including some Supreme Court justices, have taken to using international law in defining the scope of the rights guaranteed by the United States Constitution. Professor Frey and the misnamed U.N. Human Rights Council are creating the tools that could, in the hands of judges or other government officials who are hostile to the Second Amendment, be used to decimate both our right to arms and our right to self-defense.

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EXHIBIT 6 – THE RIGHT OF A LITIGANT TO PROCEED PRO SE

EXHIBIT 6. The Right of a Litigant to Proceed Pro Se: Amicus Curiae Brief in Andrew Pickholtz v. Rainbow Technologies, Inc.and Software Security, Inc. Amicus Curiae Brief of Halt – an Organization of Americans for Legal Reform Supporting Reversal of the District Court in Andrew Pickholtz v. Rainbow Technologies, Inc. and Software Security, Inc., U.S. Court of Appeals for the Federal Circuit, No. 01-1173; Appeal from the United States District Court for the Northern District of California in 98-CV-2661, Judge Charles R. Breyer [EXCERPTED] has direct relevance to Plaintiff’s case:

Introduction The key issue presented in this case is whether the federal courts can treat a pro se litigant as a second class citizen. In circumstances where an award of attorneys fees is an appropriate sanction for discovery abuse, they should be awarded to a litigant proceeding pro se, just as they would be awarded to a litigant who is represented by counsel. Amicus curiae HALT -- An Organization of Americans for Legal Reform submits that the court below erred in its sweeping ruling that attorneys fees can never be awarded to a pro se litigant. For tens of millions of Americans who cannot afford to hire a lawyer, litigating pro se is often their only option. There is an overriding public interest in ensuring that these pro se litigants have full access to the protections of our judicial system. Particularly in the context of discovery, where the award of attorneys fees is an integral component of the prophylactic system that protects a party against misconduct by another party, the courts cannot deny attorneys fees solely on the ground that a party is proceeding pro se. Finally, failing to apply full sanctions against parties who have committed discovery abuses, simply because the opposing party is not represented by counsel, perversely undermines the entire system of sanctions. If a party knows that it can commit discovery abuses against a pro se litigant with a large degree of impunity, the courts are actually fostering the kind of dilatory misconduct that occurred in this case.

I. There is a fundamental right to proceed pro se in a civil case. The Judiciary Act of 1789 provides that: “In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct cases therein.” 28 U.S.C. § 1654. This ancient protection is rooted in the fundamental principles of our jurisprudence. As the Eleventh Circuit said, [T]he right to proceed pro se under 28 U.S.C. § 1654, is a fundamental statutory right that is afforded the highest degree of protection. It is a right which is deeply rooted in our constitutional heritage, and although statutory in origin, “its constitutional aura is underscored by the proposal the very next day of the Sixth Amendment” to the U.S. Constitution. Reshard v. Britt, 819 F.2d 1573, 1579 (11th Cir. 1987) (vacated on other grounds) (quoting United States v. Dougherty, 473 F.2d 1113, 1123 (D.C. Cir. 1972)). The Supreme Court underscored the historical importance of the right to selfrepresentation in Faretta v. California, 422 U.S. 806 (1975), noting that Thomas Paine, arguing in support of the 1776 Pennsylvania Declaration of Rights said: “Either party … has a natural right to plead its own cause; this right is consistent with safety, therefore it is retained; but the parties may not be able, … therefore the civil right of pleading by proxy, that is, by a council [sic], is an appendage to the natural right [of self-representation] ….” Faretta, 422 U.S. at 830 n.39, quoting Thomas Paine on a Bill of Rights, 1777, reprinted in 1 B. Schwartz, The Bill of Rights: A Documentary History 316 (1971).

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EXHIBIT 6 – THE RIGHT OF A LITIGANT TO PROCEED PRO SE If, as Faretta holds, a criminal defendant has the right to proceed pro se, the right applies with even greater force in a civil context. This is because, while impecunious criminal defendants are entitled to representation by counsel at no charge, Gideon v. Wainwright, 372 U.S. 335 (1963), no comparable right exists for civil litigants. However, civil litigants, like criminal defendants, often cannot afford counsel. The American Bar Association estimates that thirty-eight million American households are actually denied access to the civil justice system because they cannot afford a lawyer. See American Bar Association Consortium on Legal Services and the Public, Agenda for Access: The American People and Civil Justice – Final Report on the Implications of the Comprehensive Legal Needs Study (1996). For such persons to have access to the courts, their fundamental right to self-representation in civil cases must be afforded the greatest protection.

PLAINTIFF’S NOTE: On August 7, 2006, the American Bar Association’s House of Delegates (Task Force on Access to Civil Justice) unanimously approved “Civil Gideon Representation” “RESOLVED, That the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a matter of right at public expense to low income persons in those categories of adversarial proceedings where basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody, as determined by each jurisdiction.” http://www.abanet.org/legalservices/sclaid/downloads/06A112A.pdf On August 24, 2006 I filed my Motion for Civil Gideon Representation with the U.S. District Court in Little Rock, Arkansas, No. 1:06mc0025. On September 18, 2006 Judge William R. Wilson denied my Motion for Civil Gideon court appointed attorney.

II. Pro se litigants must have equal access to the discovery process. Given that a party to a civil action has the right to proceed pro se, it follows that these litigants must be given the same procedural protections and devices that are afforded to a litigant who is represented by counsel. Without the benefit of those same procedural safeguards, the right to proceed pro se is rendered meaningless. The Second Circuit noted as much when it stated that “[i]mplicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of a lack of legal training.” Tragath v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Because a civil litigant is not afforded an absolute right to counsel, Lassiter v. Dep’t of Soc. Serv., 452 U.S. 18, 26-27 (1981), a pro se litigant in a civil court must be given an equity of arms or she will be denied any effective opportunity to vindicate her rights in court. Degan v. United States, 517 U.S. 820 (1996). Julie M. Bradlow, Procedural Due Process Rights of Pro Se Litigants, 55 U. Chi. L. Rev. 659 (1988). Fundamental to one’s ability to litigate is the ability to obtain discovery of the opposing party’s evidence. Without access to sanctions of an equal deterrent effect as those afforded a represented party, a pro se litigant cannot effectively obtain discovery and therefore is denied the tools necessary to litigate. Tragath, 710 F.2d at 95.

A. Equal access to discovery is inherent in the right to procedural due process.

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EXHIBIT 6 – THE RIGHT OF A LITIGANT TO PROCEED PRO SE Procedural due process requires that no one be denied a liberty or property interest without both notice and the opportunity to be heard. Mullane v. Cent. Hanover Bank and Trust Co., 339 U.S. 306, 313 (1950). The doctrine is not rote in application. As stated by Chief Justice Burger in Little v. Streater, 452 U.S. 1, 5 (1981): Due process, “unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and circumstances.” Joint Anti-Facist Refugee Comm. v. McGrath, 341 U.S. 123, 162 (1951) (concurring opinion). Rather, it is “flexible and calls for such procedural protections as the particular situation demands.” Morrissey v. Brewer, 408 U.S. 471, 481 (1972). In this case, denial of sufficient sanctions interfered with the appellant Pickholtz’s ability to vindicate his rights. Indeed, without discovery, any litigant would find himself incapable of successfully pursuing his rights in court. As noted in Montalvo v. Hutchison, 837 F. Supp. 576 (S.D.N.Y. 1993), “discovery is a particularly critical means of securing justice when information is exclusively in the hands of an adversary,” as are the circumstances in this case. Because of the critical role played by discovery in the litigation process, courts readily impose sanctions upon parties that fail to comply with proper discovery requests. For a litigant’s ability to prove her case almost invariably depends on court-moderated cooperation from the opposing party. In its absence, most cases –– if not all –– would collapse. As the Supreme Court noted in Logan v. Zimmerman Brush Co., “due process has been interpreted as preventing the States from denying potential litigants use of established adjudicatory procedures, when such an action would be ‘the equivalent of denying them an opportunity to be heard’….” 455 U.S. 422, 437 (1982) citing Boddie v. Connecticut, 401U.S. 371, 380 (1971). In this case, defendant’s misconduct denied appellant Pickholtz’s “opportunity to be heard” for one full year, and sanctions must be applied with full force to vindicate this right. The district court is asked to do nothing more than to sanction with the same force as it does when a similar request is made by a party represented by counsel. The court should respond to requests for sanctions without regard for whether the requesting party is pro se or not. In addition, under Haines v. Kerner, 404 U.S. 519 (1972), courts are required to liberally construe the pleadings of pro se litigants. In the present case, though, the court is not even asked to apply a more lenient standard to a request for discovery sanctions by a pro se litigant – only to apply an equal one. That is, the court need only treat a request for sanctions by a pro se litigant the same as it would any sanction request by a represented party. Particularly in light of the Supreme Court’s recognition in Haines of the judiciary’s special obligation to protect the rights of pro se litigants, this court must maintain equity between parties during the course of discovery process. See also Tragath, 710 F.2d at 95 (2d Cir. 1983).

B. Pro se litigants must have access to sanctions of equal deterrent effect as those afforded to litigants represented by counsel. It is not enough that a court impose sanctions when a party fails to comply with a discovery request. For procedural due process rights to be fully protected, the court must swing the procedural hammer with sufficient force to compel compliance and deter future noncompliance –– and both to the same degree for pro se litigants as for represented parties. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976) (per curiam). To do less affords litigants with the relative luxury to be represented in court greater power to compel discovery than their pro se counterparts. Such unequal treatment of parties to a litigation wholly undermines the essential purpose of Rule 37, “to hold the scales of justice even.” See 8A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, §2284, at 614-615 (1994).

III. The district court abused its discretion by failing to impose a sanction sufficient to deter misconduct by those litigating against a pro se party. Since pro se litigants have a fundamental right to self-representation which includes access to meaningful sanctions in the case of misconduct by their opponents, it is the duty of the courts to impose sanctions sufficient to

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EXHIBIT 6 – THE RIGHT OF A LITIGANT TO PROCEED PRO SE deter misconduct against them. A failure to apply meaningful sanctions allows such litigation abuse to go unpunished, and invites its continuation. A sweeping denial of one of the most potent sanctions to pro se litigants, solely because they are not represented by counsel, constitutes a denial of their due process rights as well as a clear abuse of a court’s discretion.

A. The sanctions imposed by the district court were insufficient to deter discovery misconduct committed against an unrepresented party. In imposing sanctions upon the defendants-appellees, the magistrate judge found that “[n]o substantial justification exists for the approximate year that it took defendants to produce the source code and supporting documentation in electronic format.” Order Imposing Sanctions (April 24, 2000) (hereinafter, “Order”), p. 1, J.A. at 0032. Despite this twelve-month delay in producing documents that were subject to initial disclosure requirements, the sole sanctions imposed by the magistrate judge upon defendants-appellees were (1) to order the production of documents (whose production was previously required); and (2) to order an award of “reasonable expenses and costs” (excluding attorney’s fees) to appellant Pickholtz. Id. at 2-4, J.A. at 0033-0035. As noted above, the court has an obligation to “hold the scales of justice even” between litigants. Pro se litigants are held accountable for discovery abuses by imposition of monetary sanctions, including attorneys fees. Robinson v. Eng, 148 F.R.D. 635 (D. Neb. 1993). The threat of such a sanction acts as an effective deterrent to discovery misconduct. If appellant Pickholtz had engaged in discovery abuse similar to that committed by opposing counsel, there would be no basis for summarily rejecting an application for attorneys fees. In sharp contrast, the minimal sanction against defendants-appellees has no significant deterrent effect. Granting a pro se litigant the right to discovery without enforcing that right with the same sanctions available to protect parties who are represented eviscerates and effectively nullifies that right. Amicus curiae HALT submits that this inequality of sanctions violates the due process right of appellant Pickholtz to equal access to discovery.

B. Failure to grant attorneys fees to a pro se litigant for discovery abuses committed by an opposing party violates the due process rights of the pro se party. There is no sanction that fulfills the deterrent goal of Rule 37 of the Federal Rules of Civil Procedure more effectively than the imposition of attorneys fees. The Advisory Committee Notes on the most recent 1970 amendment to the Rule explicitly state that the goal of the amendment to Rule 37(a)(4) was to require courts to impose monetary sanctions that will effectively deter future discovery abuses. “And the potential or actual imposition of expenses is virtually the sole formal sanction in the rules to deter a party from pressing to a court hearing frivolous requests for or objections to discovery.” Fed. R. Civ. P. 37(a)(4) advisory committee’s note. The lion’s share of such expenses inescapably consists of attorneys fees. Moreover, Rule 37 “requires that expenses be awarded unless the conduct of the losing party or person is found to have been substantially justified.” Id. (emphasis supplied). The magistrate in this case found that the opposing party presented no substantial justification for its misconduct, and ordered the production of discovery and an award of expenses. Nevertheless, the court failed to award attorneys fees to pro se plaintiff Pickholtz, solely because he was not represented by counsel. Order, p. 1, J.A. at 0032. However, absent an award of attorneys fees, the nominal expenses imposed against opposing counsel fail to fulfill the deterrent objectives of Rule 37. In addition to inadequately deterring future misconduct, the court’s decision infringes upon pro se litigants’ due process rights to self-representation by depriving them of the most effective sanctioning mechanism to ensure discovery compliance. In other cases between represented parties, courts have awarded attorneys fees for failure to timely respond to written interrogatories, National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976); for failing to inquire into the accuracy of discovery documents, Business Guides v. Chromatic Communications Enters., 498 U.S. 533 (1991); and have even awarded amounts upwards of $1 million

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EXHIBIT 6 – THE RIGHT OF A LITIGANT TO PROCEED PRO SE dollars against a party engaging in a series of meritless motions and depositions and refusing to permit discovery, Chambers v. NASCO, 501 U.S. 32 (1991). The abusive conduct in this instance is no less egregious than that which required an award of attorneys fees in National Hockey League, Business Guides and Chambers. Appellant Pickholtz was forced to wait for a full year before opposing counsel produced the requested evidence. Order, p. 1, J.A. 0032. Further, opposing counsel deliberately and in bad faith produced dozens of boxes of computer encoded print-outs, when the request for the computer code itself (in electronic form) was clear and unambiguous. Plaintiff’s Motion Requesting Sanctions, J.A. 0131-32. In addition, opposing counsel attempted to preclude experts and consultants from reviewing the discovery material handed over to plaintiff by sending letters to Mr. Pickholtz’s technical experts and consultants, falsely claiming that Mr. Pickholtz could not legally disclose the facts of the case to them in anticipation of litigation. Plaintiff’s Motion Requesting Sanctions, J.A. 0133-34. Had appellant Pickholtz been represented by an attorney when he was forced by the defendant’s misconduct to secure court intervention to compel discovery, his request for an award of attorneys fees would not have been summarily denied by the court below. Amicus curiae HALT respectfully submits that this disparity of treatment between pro se parties and represented parties deprives pro se litigants of meaningful due process during the critical discovery phase of litigation. In denying attorneys fees, the magistrate judge asserted that there was “no authority that would permit [him] to award plaintiff, as a pro se litigant, attorney’s fees.” Order, p. 2, J.A. at 0033. Not only is there such authority under the broad sanctions provisions of Rule 37 discussed above, but federal courts also exercise inherent power to control the course of litigation before them and to punish misconduct that abuses the judicial process. Chambers, 501 U.S. at 43-46. A court cannot simply throw up its hands and claim that no remedy is available to the pro se litigant when his rights have been violated. It is the duty of the trial court to exercise its authority and to even-handedly apply the same sanctions to protect the due process rights of its litigants whether they are represented by counsel or are proceeding pro se. That is precisely the course followed by the Northern District of Illinois in In re Napier, Bank. No. 34 96 B 00559 (N.D. Ill. 1997), where the court imposed monetary sanctions against a represented party for discovery violations, including compensation to the pro se plaintiff for his time spent preparing motions before the court. In sum, the court below clearly erred when it concluded that there was “no authority that would permit it to award plaintiff, as a pro se litigant, attorney’s fees” (Order, p. 2, J.A. at 0033), and abused its discretion in denying attorneys fees on this erroneous basis. CONCLUSION For the foregoing reasons, amicus curiae HALT – An Organization of Americans for Legal Reform respectfully requests that this Court reverse the decision of the United States District Court for the Northern District of California denying attorney fees to plaintiff Andrew Pickholtz, and remand this case with instructions to determine an appropriate attorneys fees award.

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EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT PRO SE TASK FORCE REPORT

EXHIBIT 7. Comments on the Ninth Circuit pro se Task Force Report COMMENTS ON THE NINTH CIRCUIT PRO SE TASK FORCE REPORT By Charles W. Heckman, Dr. Sci., A Matter of Justice Coalition (AMOJ) Committee for the Ninth Circuit Submitted in behalf of: A Matter of Justice Coalition Formatted and uploaded to American Family Rights Association website on January 3, 2005 (Excerpted Portions that Apply to Don Hamrick)

III. PROBLEMS NOT ADDRESSED IN THE REPORT A. THE ROLE OF BIAS One of the many serious complaints often voiced by litigants but not seriously addressed in the report of the Task Force is bias by the judge. However, the report clearly expresses a common attitude toward pro se litigants, starting of p. 6 of the report: “Some judges and lawyers are convinced, for example, that pro se litigants as a class generally bring meritless claims, and that any program designed to educate or assist them would only increase the number of meritless claims in the court system. This point of view is doubtless influenced by those pro se cases that are brought by individuals suffering from a mental disability or for purposes of harassment. Closely related to that thought is the belief that appointing attorneys for pro se clients is a waste of resources and in the long run simply complicates efforts to keep the system clear of meritless cases.” The Task Force fails to identify who holds this opinion, but both lawyers and judges have frequently expressed it or opinions very much like it. The main focus of this task force should not be with methods by which unbiased judges can make the submissions of pro se litigants easier for the court to deal with but rather with developing methods to assist a pro se litigant who has been the victim of a judge with the preconception that whatever he submits to the court is without merit, and his lawsuit must be dismissed before any unnecessary time of the court is wasted. If all judges were perfect human beings, we could assume that the private opinion of a lawyer or a judge would not be reflected the judge’s rulings. However, we know that few people approach perfection, and prejudice by decision-makers against members of certain groups has been the cause of continuous, bitter conflict since the civil rights movement first brought the effects of biases of many kinds to public view. Prejudices often have a greater impact on the outcome of administrative hearings and lawsuits than parties with an obligation to be impartial like to admit. Whether the prejudice is deliberate and malicious or entirely unintended, decisions colored by personal biases can be just as devastating to the victims of the resulting injustice. An even more enlightening articulation of the prejudice litigants often face appeared in numerous discussions on the decision of a Washington State appeals court in Hill v. BCTI Income Fund, 97 Wn. App. 657 (1999), later upheld by the Washington State Supreme Court. Although it is the decision of a state court, it draws on the en banc opinion of the U. S. Court of Appeals for the Second Circuit in Fisher v. Vassar College, 70 F.3d 1420, 1437 (2d Cir.). The opinion in Hill v. BCTI defends a school of thought within the legal profession, which has been having a revolutionary effect on American jurisprudence. It parallels the controversial theory of a “living constitution,” which condones the “updating” of the United States Constitution by the courts to conform to the personal opinion of judges concerning what the public wants and will accept. On a more mundane level, this revolution in judicial theory is interpreted by many judges as a mandate to quickly dismiss any lawsuit that can be dismissed without causing a public outcry, regardless of the merits of the case. EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT PRO430 SE TASK FORCE REPORT

EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT PRO SE TASK FORCE REPORT One of the main innovations introduced by the decision in Fisher v. Vassar is the acceptability and utility of lying to the court. This was discussed at length in a dissenting opinion by the Chief Judge of the Court of Appeals of the Second Circuit, who pointed out the implications of the decision reached by his colleagues. Briefly stated, a jury of the trial court had determined that the spokesmen for Vassar had lied about the reason Fisher was denied tenure. It therefore concluded that the prima facie case Fisher had established had not been rebutted, and the relief she had demanded was granted. The Second Circuit, en banc, reversed the decision of the trial court by a single vote, ruling that the non-discriminatory reason given for not granting Fisher tenure had eliminated her prima facie case, even though the reason was shown unequivocally to be a lie. With the case in favor of Fisher eliminated, the court opined that she was required to meet a higher level of proof, which was not defined by the court and was apparently not humanly possible to meet, at least without the services of a certified mind-reader. Expanding on this legal opinion, the Washington State courts in Hill v. BCTI set an unattainable burden of proof on a plaintiff who has alleged discrimination as soon as the defendant lies to the court and alleges that the motivation was not to discriminate against the plaintiff. According to the opinion of the Washington courts, proving conclusively that the defendant’s allegation was a lie is not enough for a plaintiff to prevail. He must prove that the motive of the plaintiff was to discriminate against him for the reason alleged in the complaint. Hence, if age discrimination is alleged, the plaintiff must prove that the real reason for the discriminatory action and the subsequent lie by the defendant was actually the age of the plaintiff and not, for example, his religion, race, or gender. The judges of the Washington State Court of Appeals were well aware of the fact that the opposite decision had been reached by the United States Supreme Court, but they reasoned that the Supreme Court was wrong and the State of Washington was free to decide contrary to the highest Federal court because the State of Washington has its own constitution and its courts are therefore not bound by the United States Constitution, as interpreted by the Federal judiciary. What is interesting about this case in the context of pro se litigation is not the decision itself but rather the opinion of an author who defended the decision as vital to preserve the integrity of the judicial system. He stated clearly in his article that if one person came to a court with a discrimination complaint and obtained relief, this would encourage other litigants to file similar lawsuits, and there are already too many lawsuits being filed. There is a strong undercurrent within the legal profession, as well as among corporations that are frequently sued, propagating the opinion that filing civil lawsuits is somehow sinister and un-American. They wish to discourage most lawsuits by denying justice to litigants and thereby discouraging other litigants from seeking justice in a court. While there is a tradition from the Old West that a man settles his disputes by shooting it out with his adversary or settles lesser disputes with his fists, it was long thought that this was a less desirable alternative to letting a jury decide which party should prevail. Apparently, some members of the legal profession think otherwise and wish to close off the courts to ordinary citizens, returning dispute resolution to the means available in the “Wild West.” It would be well to determine how closely the decrease in justice provided in civil suits has paralleled the increase in crimes of violence between people with no civilized means available to settle their dispute. How many of the civil disputes wrongfully dismissed or inequitably settled come back to the court as a criminal case? The treatment of pro se litigants reflects the desire expressed by many politicians and judges that the number of lawsuits be reduced. Showing litigants who lack strong financial resources, the services of a first-class law firm, backing by an influential organization, or attention in the press that they have no chance of prevailing in a lawsuit or even of presenting their cases to a jury might well discourage other litigants from seeking redress in the courts but it also encourages persons in positions of authority to deliberately break the law, knowing that there is almost no chance that the victim would be able to obtain redress in a court of law. It seems obvious to me that the flood of lawsuits is the result of a massive increase in white collar crime in the United States, most of which is ignored by law enforcement authorities on the excuse that their time is

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EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT PRO SE TASK FORCE REPORT needed to combat crimes of violence. The victims are therefore forced to attempt to obtain redress in a civil lawsuit, and most are unable to obtain legal counsel. A recent estimate made by a group in Iowa suggested that 70% of the population of that state did not have enough money to retain the services of an attorney. Because most white collar criminals have learned the applicable law very well before embarking on their criminal careers and many seem to have the active assistance of local civil servants or even judges, attorneys do not see much chance of immediate success before a court and will therefore refuse to represent an indigent litigant on a contingency basis. Furthermore, many attorneys working out of small offices without a major law firm behind them hardly do better in court than pro se litigants. Therefore, as the white collar criminals, deliberate abusers of civil rights, unscrupulous business firms, and corrupt public officials become bolder, the victims have no way of protecting their property and livelihoods other than by representing themselves in a lawsuit. Even though an increasing number of pro se litigants see the courts as hostile to them and their needs for redress under the law, the flood of lawsuits grows because of the massive increase in the crimes that the current attitude of the courts has engendered. Missing from the report by the Task Force is any adequate remedy for the actions of judges who adhere to the belief that pro se litigants do not deserve full consideration by the court. This can be justified by the self-fulfilling prophesy that pro se litigants never win. As a result, many judges believe that any time given to a lawsuit in which a litigant represents himself is wasted. Therefore, pro se litigants really do not win simply because the prophesy that they will lose is self-fulfilling.

B. REMEDIES THAT FAIL If a district judge summarily dismisses the civil lawsuit of a pro se plaintiff without reviewing any of the facts and writes a short opinion that fails to address the fundamental complaint, indicating that the judge barely knew what issues the complaint addressed, the plaintiff can appeal the dismissal to the court of appeals. In a great many cases, the plaintiff receives a brief affirmation of the district judge’s opinion, which also fails to address the issues in the complaint and almost always contains the notation that the opinion cannot be cited as a precedent and should not be published. The plaintiff can then file an appeal with the United States Supreme Court with near certainty that certiorari will not be denied. Many litigants lack the money to have their petitions for certiorari correctly printed and bound to the satisfaction of the clerk, and others fail to present the legal issues in an understandable manner. Even if all submissions are perfect, however, the petition will almost certainly be denied in favor of appeals that are given considerable publicity in the press, are promoted by major organizations, or are otherwise likely to bring fame and praise to the justices. The problems of ordinary citizens, no matter how devastating to them and their families, are ignored, and they find that they would have little more chance of success in getting a justified complaint before a jury than they would have of winning a lottery. For example, after the courts in several circuits had summarily dismissed hundreds and perhaps thousands of lawsuits alleging employment discrimination at the complaint stage because the plaintiff had failed to provide enough hard evidence to establish a prima facie case when the complaint was submitted, the United States Supreme Court agreed to hear one of the appeals from the Second Circuit. In Swierkiewicz v. Sorema N.A., 534 U.S. (2002), it decided unanimously that it is a gross violation of procedures to dismiss a lawsuit at this stage of the proceedings. Among the points the justices made were that a plaintiff can prevail without establishing a prima facie case at all, that a judge’s opinion of whether or not a litigant will prevail before a jury is irrelevant to decision to dismiss a lawsuit, and that it is fundamentally unfair to dismiss a lawsuit before the whole body of facts can be revealed through discovery. While this decision provided the plaintiff with a chance to have his lawsuit heard by a jury on the merits, it affirmed that thousands of litigants whose lawsuits had been improperly dismissed over the many years during which the appeals courts had been violating procedures had been left without any access to justice.

EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT PRO432 SE TASK FORCE REPORT

EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT PRO SE TASK FORCE REPORT Still more perverse was the continued dismissal of lawsuits at the complaint stage, even after the Supreme Court had denounced this practice. It was well known to the judges guilty of this practice that any subsequent petitions for certiorari citing this issue would be denied on the grounds that the Supreme Court had already decided the issue and would not agree to decide it again. This would leave a litigant no way of redressing violations of his civil rights just because he had the bad luck of coming before a judge who is trying to discourage lawsuits by issuing non-precedential dismissals at the complaint stage and appeals court judges who affirm decisions of the lower court with a rubber stamp. Citing the clear opinion of the U.S. Supreme Court in Swiercewicz v. Sorema N.A. would have no effect on the outcome before a judge who assumes that anything filed pro se is without merit. In case of particularly severe violations of the law, procedures, or ethics by a judge, a litigant is limited to filing a complaint with a judicial board established for hearing such complaints. Other avenues of redress are closed off because judicial immunity from civil liability was made absolute during the 1990s, even if corruption or malice motivated the judge’s actions. Experience shows that the boards investigating misconduct by judges move extremely slowly, and a litigant has roughly one chance in a thousand of having a rogue judge censured, even mildly. It can be concluded that a litigant whose lawsuit has been dismissed because of the bias of a judge against him, a class to which he belongs, pro se litigants in general, or the kind of lawsuit he has filed has almost no chance of redress, either on appeal or in complaint proceedings against a judge. Human nature clearly dictates that when members of any group are permitted to perform illegal, immoral, and unjust actions against other persons with complete impunity, many of them will do so, some because of laziness, others because of malice, and still others in anticipation of gratuities from a favored party. A pro se litigant has no recourse against a judge who does not want his complaint heard due to bias of any kind, and the fact that a judge has the power to deny him access to a jury effectively eliminates an important civil right supposedly guaranteed by Amendment VII of the United States Constitution.

C. COMMON EXPERIENCES OF PRO SE LITIGANTS The solutions proposed by the Task Force presume good will by the judges and conformity with the standards of ethics and behavior traditionally held by our society. Unfortunately, in speaking and corresponding with many pro se litigants, I have learned that there are common problems that reflect an erosion of human values and are often accompanied by abusive behavior by judges. These problems are less likely to arise when a litigant is represented by a lawyer, whose status as an “insider” in the legal profession might tend to restrain the opposing attorney and presiding judge from improper conduct. Such conduct is difficult for pro se litigants to cope with, but it is readily recognized when it occur. Eventually, pro se litigants make their opinions of the court public, and the increasing criticism leads to a general loss of faith in courts. The growing dissatisfaction of the public with the judicial system is rooted in the negative opinions developed by many litigants who know they have been improperly or illegally treated. Losing a lawsuit is fundamentally different from being denied due process and a fair hearing, and even pro se litigants without formal education in a law school can immediately tell the difference. The most common complaints by litigants of misconduct by the courts include the following:

1. Perjury is tolerated by the judge This complaint has been made by the great majority of pro se litigants with whom I have spoken. Very often, the false testimony is given by one or more government employees. Even when parts of the testimony are shown to be false, judges continue to give full credence to the witness in the remaining parts of the testimony. The judge then dismisses the lawsuit of a pro se litigant citing the perjured testimony as evidence that the lawsuit has no merit. Usually there are documents in the file clearly showing that the testimony was false, but these are simply disregarded by the judge.

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EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT PRO SE TASK FORCE REPORT Prosecutions for perjury have become rare to non-existent. Government employees have been given complete immunity for perjury they commit “in the line of duty,” even if it is given with malice. Government prosecutors may suborn witnesses to perjury by promising them immunity for crimes they have been accused of. It has even been alleged that government employees can be fired for refusing to give false testimony at the behest of their supervisors. Many cases are known where civil servants have advanced their own careers by deliberately misleading courts, administrative boards, and even Congress to advance a political agenda espoused by the their supervisors.

2. Records submitted to the court disappear from the files This complaint has frequently been made. Some litigants note that the entries of the documents are still in the court records but the documents themselves have disappeared. Even if copies of the records are retained by the litigant, they usually cannot be added to a record on appeal unless they are still in the file of the lower court.

3. Judges’ opinions fail to address the issues of the lawsuit Many litigants complain that orders for dismissal address issues that were never raised in the lawsuit and fail to address the issues that were. In light of the fact that most judges have earned a law degree, some decisions have convinced the litigants that the legal issues were deliberately misconstrued by the judge. For example, if a plaintiff seeks injunctive relief pursuant to the Administrative Procedures Act and monetary relief citing the Federal Tort Claim Act, a judge may deny the injunctive relief on the grounds that there are no provisions for such relief in the Federal Tort Claim Act and that the Administrative Procedures Act does not authorize monetary relief. Similarly, a lawsuit alleging failure of the Department of Labor to investigate a discrimination complaint against a private university was dismissed on the grounds that the plaintiff was seeking Federal employment through the courts. Even a law professor from Hofstra University complained in a speech that he was tired of reading decisions that did not address the issues of the case. At best, this means that the law professor was able to understand the issues of the lawsuit from the submissions, while the judge allegedly was not. At worst, this indicates that the judge was deliberately falsifying the issues in order to justify an obviously faulty decision. According to the law professor, after he finished his speech, a judge leaned over to him and said, “You don’t know the half of it.”

4. Certain litigants must always win One of the most harmful practices of the courts becomes most evident when statistical surveys of the outcomes of litigation are conducted. Some judges have apparently developed strong biases for or against certain kinds of lawsuit or litigant and lose sight of the fact that each case deserves a separate analysis. The outcomes of these lawsuits most frequently favor government agencies as defendants and major special interest groups, such as the American Civil Liberties Union, as representatives of a plaintiff. Decisions are reached without jury trial to assure that the favored litigant wins. The trend to summarily dismiss lawsuits without trials is reflected in surveys showing that more than 11% of all civil lawsuits were decided by juries in the early 1960s, while less than 2% reach a jury now. It is not only the courts that are guilty of denying due process to protect favored litigants. Congress has also established special means of adjudication to remove the proceedings against certain agencies from the normal judicial channels. Some of the agencies established for administrative adjudication have earned a reputation for extreme bias in favor of the government agencies they are supposed to treat impartially. For example, the Merit System Protection Board (MSPB), which adjudicates complaints filed by veterans because their preference rights in the civil service have been violated, has never decided in favor of a veteran in any appeal. The United States Court of Appeals for the Federal Circuit, which is the only court with jurisdiction over appeals from the MSPB, has never decided in favor of a whistleblower, after hearing 71 appeals citing the Whistleblowers’ Protection Act. It is also doubtful whether it has ever decided in favor of a veteran, although I have yet to find records on this point. It is noteworthy that under the law, the burden of proof is on the agency, and in the case of appeals filed by EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT PRO434 SE TASK FORCE REPORT

EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT PRO SE TASK FORCE REPORT whistleblowers, clear and convincing evidence is required, giving whistleblowers a clear benefit of the doubt. Nevertheless, the agency always wins in such appeals, as well as those brought under veterans’ laws. The Veterans’ Employment and Training Service (VETS) accepts employment discrimination complaints from veterans. All complaints it receives are not maintained in the agency files, but of 1029 complaints it did place in its records in 2001, five were brought to the courts, but only one was adjudicated as a civil lawsuit. Any lawsuits brought by a plaintiff pro per fall into the category of “thousand to one shots,” but so do discrimination lawsuits brought against government agencies with the assistance of “B” or “C-class” lawyers. Similarly, civil rights and employment discrimination lawsuits routinely fail, unless a major special interest group supports one of the parties. Any time lawsuits that depend on an individual interpretation of the facts are decided so preponderantly in favor of one party without the assistance of a jury, suspicion of bias is justified. In conflicts between human beings, rank, job title, or affiliation do not determine which party has followed the law and which party has broken it. If the supervisor prevails one thousand times in whistleblower appeals for every time the whistleblower prevails, it is clear that the adjudication has not been impartial. This conclusion is given great support by the findings of Congress that reprisal against whistleblowers is a problem of massive proportions in the civil service, requiring several amendments to make the Whistleblowers’ Protection Act considerably stronger. That the efforts of Congress have been consistently undermined by the judges on the United States Court of Appeals for the Federal Circuit reflects an imbalance that has been developing between the powers of the legislative and judicial branches in recent years.

5. Different standards are applied to different litigants Powerful plaintiffs seek to delay litigation until the opponent dies or is forced to end the litigation for financial reasons. Some well-represented litigants do not respond to the summons until a motion for default has been entered, and judges routinely excuse the failure and refuse to enter a default judgment. The same judges are quick to dismiss lawsuits because a pro se plaintiff has missed a deadline by one or two days, even when the cause of the delay was beyond the control of the litigant. The lack of impartiality is plainly evident when one party is permitted unlimited delays, in spite of the fact that the United States Department of Justice or a major law firm with a large staff of lawyers is representing that party, while a pro se litigant forced to act alone is held to the strictest standards stipulated in the FRCP and local rules. Allowing one litigant unlimited delays while the other is facing severe financial difficulties as long as the lawsuit remains unsettled is a tactic that clearly violates judicial fairness and at least the spirit of the United States Constitution, which demands a speedy trial in criminal matters and, by implication, reasonable speed in settling civil disputes, as well.

6. Recent handling of civil lawsuits by the courts have instigated a white collar crime wave Many successful white collar criminals have obtained the cooperation of local courts to defraud private citizens out of large sums of money, often leaving the victim destitute. A few of the methods frequently used include abuse of bankruptcy procedures to loot estates, illegal foreclosures on real estate, seizure of cash or property without due process, and fraud during divorce proceedings. Federal courts should have jurisdiction over obvious frauds perpetrated by state courts under the RICO statute and civil rights laws. However, failure of effective action by Federal judges to stop obvious fraud perpetrated by colleagues employed by state and local government encourages larcenous state officials, including judges, to conclude that their positions allow them to illegally enrich themselves at the expense of selected victims with complete impunity. Litigants who have sought protection from state and local criminal gangs in Federal courts have encountered many years of delays, denial of jury trials, and refusals to issue decisions justified by the facts of the

435 PRO SE TASK FORCE REPORT EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT

EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT PRO SE TASK FORCE REPORT case. Many abuses have come to public attention in recent years, but the crime wave has grown so rapidly, many of the practices have not received sufficient publicity to warn potential victims. Crimes like identity theft, fraudulent foreclosure, fraud in stating fees and interest charges, and abuses of eminent domain have become epidemic throughout the United States. They can financially ruin victims, who have not found effective protection through either criminal or civil procedures.

7. Court orders go unheeded Failure of courts to enforce their own orders granting relief to litigants may eventually result in more difficulties than adjudicating the initial petition for relief. Plaintiffs may prevail but gain no redress from the decision because judges refuse to issue effective orders mandating the remedies demanded by a jury. This is a problem that often arises when the delinquent party is a government agency. Common examples of deliberate resistance to court orders include ignoring orders to produce documents requested under the Freedom of Information or Privacy Act and failure of public officials to obey orders to return money or property unlawfully taken from citizens by law enforcement agencies.

8. Judges give orders contrary to law and accepted standards of behavior Opposite the failure to enforce just orders for relief is issuing orders demanding illegal or obviously impractical relief from litigants. Examples of practices that have become common during the past few years include demands for support payments from one party to divorce proceedings that exceed the total earnings of the person ordered to pay, jailing of indigent litigants who cannot pay what the court has demanded of them for other reasons, removal of children from their natural parents without due process, and imposition of medical treatment on minor children without informing their parents.

9. Judges refuse to take actions required by law Many routine actions required of judges have created barriers to the enforcement of laws as intended by Congress. An excellent example of this is the action usually taken after a litigant complaints that he cannot obtain documents requested pursuant to the Freedom of Information Act. This law was passed by Congress because of the great resistance shown by Federal civil servants to making their unclassified documents available to the general public. Records created through the use of tax money should belong to the public and be made available on request. Congress obviously intended that documents formally requested be made available immediately. It therefore specified a waiting period of no more than ten working days and permitted a person who requested the records to file a lawsuit to obtain the documents if the agency is not forthcoming. It requires agencies to assist people making requests to identify the documents and to provide the documents after charging only minimal copying fees. Obviously, to uphold this law as Congress intended, a judge must order immediate release of the records to the court for distribution to the plaintiff after the court has ruled on any objections the agency has made to their release. Because obtaining records as quickly as possible is often necessary for a litigant to obtain some benefit to which he is entitled, complete an article for publication in a newspaper or periodical, or protect himself of a relative from the consequences of false information about him being distributed with official records, the rapid availability of records is vital. Instead of upholding the high standards demanded by the Freedom of Information Act, judges have consistently permitted lawsuits to obtain public information to drag on for several years, often making the intended use of the documents impossible. Judges seem to attempt to avoid issuing orders to government agencies, even when the law mandates this. They fail to review contested records in camera, as provided for in the law, and simply hope the plaintiff will eventually withdraw his demand for the documents. Although obtaining documents often costs plaintiffs excessive amounts of money for the litigation, judges seldom offer the EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT PRO436 SE TASK FORCE REPORT

EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT PRO SE TASK FORCE REPORT monetary relief specified in the law. They also fail to impose the requirement of the law that photocopy fees be reasonable. While private shops provide photocopies for 5 cents or less, agencies may charge exorbitant amounts to copy their documents. For example, about two years ago, one agency demanded 31 cents for each copy, or more than 6 times the price on the private market. The failure of the courts to impose sanctions on civil servants who make it a sport to defy the Freedom of Information Act has led to the development of procedures to keep public documents out of the hands of citizens who want to obtain them.

10. Courts have become inconsistent and arbitrary Courts have recently begun to establish very confusing precedents, reverse their own decisions, and ignore real issues rather than settling them. In recent years, different Courts of Appeals have issued opposite interpretations of the same law, making one action legal under the jurisdiction of one circuit and illegal under the jurisdiction of another. Because the United States Supreme Court denied certiorari each time a litigant attempted to obtain a definitive decision on some of these matters, Federal law can mean one thing in one circuit and the opposite in another. For example, whether or not Federal law permits factory workers to speak with each other in a language other than English depends upon the area of the country in which the factory is located. Changing public opinion or even an unusual personal opinion held by the judge to whom the case has been assigned may result in a lawsuit being decided in a manner contrary to other recent decisions in nearly identical cases. When judicial opinions on the interpretation of a law are continually fluctuating because one judge approves of the law while another does not, whichever litigant loses will feel cheated by the court because other litigants in exactly in the same position won their lawsuits. This situation causes more litigants to risk a lawsuit rather than settling the dispute out of court because winning or losing depends only on the whim of the judge hearing the case rather than on a consistent and unambiguous interpretation of the law. An advantage of being represented by counsel is often the knowledge he brings concerning which judges will be sympathetic to the litigant’s case and which will favor the other party. In an impartial system, such considerations would not be a factor. The founding fathers hoped to eliminate this problem by insisting that decisions be rendered by juries, but by increasingly usurping the duties of the jurors, judges have permitted their own beliefs on the wisdom of individual laws to override the stated intentions of Congress. Because all judges do not hold the same opinions, an increasing inconsistency in decisions is becoming an increasing problem for pro se litigants and lawyers, alike.

11. Federalism theory interferes with practical justice In recent history, Federal courts have intervened in many disputes between citizens and individual states, where the state court system was clearly violating or assisting in the violation of civil rights. Since the first Civil Rights statutes were passed in 1871, Congress has shown a clear intent to place the guarantees in Amendments XIII, XIV, and XV above the limitations on suits against states in Amendment XI. Federal courts belatedly struck down state laws deliberately passed to bar Americans of African descent from voting, attending schools with white children, and using public facilities. These rulings have clearly focused the attention of the nation on the fact that states are prone to commit actions against their citizens that violate Federal guarantees defined as civil and human rights by our Constitution. Recently, the theory of federalism has been revived, and Federal courts have become less willing to interfere with the actions of state courts, no matter how unjust and reprehensible. One of the most important reasons for Federal courts to exist is to provide citizens with a final recourse against clearly illegal actions committed by state and local government, which are much more likely to fall under the influence of criminal conspirators than the much more diverse Federal system. If the Federal courts disqualify themselves from settling disputes between citizens and state governments, they have clearly left the citizens vulnerable to losing their civil rights through clearly illegal actions by small, corrupt political machines.

437 PRO SE TASK FORCE REPORT EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT

EXHIBIT 8 – DAVE KOPEL – MEDELLION AND THE SECOND AMENDMENT

EXHIBIT 8. Dave B. Kopel, Medellin and the Second Amendment MEDELLIN AND THE SECOND AMENDMENT Dave B. Kopel, Posted on Eugene Volokh’s blog, The Volokh Conspiracy October 10, 2007 (The same day as the U.S. Supreme Court heard oral arguments on Medellin) http://volokh.com/posts/1192051881.shtml http://www.supremecourtus.gov/docket/06-984.htm The Supreme Court’s oral argument today in Medellin v. Texas has interesting implications for Second Amendment rights. The rationale promoted by the Bush administration, and which apparently has support from at least some of the Supreme Court, offers a roadmap for how a future U.S. President could evade Congress to impose highly restrictive gun controls. The Bush position is that when the Senate has adopted a non-self-enforcing treaty, the treaty becomes self-enforcing if: 1. The World Court issues a ruling under the treaty in a case in which the United States accepts jurisdiction, and 2. The President then, exercising his foreign policy discretion, decides that the World Court order must be implemented. The position of Medellin’s lawyers is even broader, that a World Court ruling is sufficient in itself. Now let’s see how this could work in a gun control hypothetical: 1. President Hillary Rodham Clinton strongly believes in gun control. (Consider that as Senator, she, unlike Senator Obama, actually voted against an appropriations rider to prevent federal funds from being used to fund gun confiscation during/after a natural disaster or similar emergency, even when the confiscation had no legal basis, or was formally prohibited by state law.) 2. She can’t get 60 votes in the Senate to pass her domestic anti-gun proposals, much less the 2/3 support necessary for ratification of the new UN international gun control treaty. (Without U.S. Ambassadors to the U.N. like John Bolton, a new U.N. gun control treaty is a certainty within a few years. Indeed, it is doubtful that any U.S. delegation can block the forthcoming Arms Trade Treaty.) 3. The United States has ratified the International Covenant on Civil and Political Rights, along with a reservation stating that the Covenant is not self-executing. 4. United Nations Special Rapporteur Barbara Frey (a University of Minnesota law professor) has written a report for the United Nations Human Rights Council. The report has been adopted by the Human Rights Council’s subcommission on the Promotion and Protection of Human Rights, which claims that the Report accurately describes existing mandatory international law. 5. Under the report’s standards, U.S. gun control laws are in massive violation of the international law obligation (contained, inter alia, in the International Covenant) not to violate “the right to life.” For example, most states do not require a periodically-renewed license for the possession of handguns, and hardly any do so for long guns. All states allow ordinary citizens, and the police, to use deadly force against certain felonies (e.g., rape, arson, armed robbery, serious assaults), even when the person using deadly force does not believe that deadly force is necessary to save a life. Even New York City’s gun laws are deficient, for they allow licensed owners of rifles and shotguns to use their guns for any lawful purpose (e.g., target shooting, hunting, collecting, selfdefense in the home) rather than only for a specified purpose. (For details, see pages 12-14 of my

438SECOND AMENDMENT EXHIBIT 8 – DAVE KOPEL – MEDELLION AND THE

EXHIBIT 8 – DAVE KOPEL – MEDELLION AND THE SECOND AMENDMENT forthcoming article in the BYU Journal of Public Law, “THE HUMAN RIGHT OF SELFDEFENSE.”) [See next item below!] 6. In collusion with the Clinton administration, a foreign government brings suit in before the World Court. The suit might be premised on the dangers to the foreign government’s nationals when they visit or work in the United States. The Clinton administration accepts the World Court’s jurisdiction. 7. The World Court issues a ruling consistent with the standards of the UN Human Rights Council. 8. President Clinton, exercising her foreign policy discretion, declares that all state governments must implement the ruling, by enacting gun licensing systems, and sharply restricting the use of guns for self-defense. 9. We are now at the same point as Medellin v. Texas, with one or more state governments claiming that the President cannot force them to obey a World Court ruling about a non-self-implementing treaty. 10. Based on the October 10 oral argument, it appears that there are currently some Justices on the court who think that the President can. By President Clinton’s second term, there might be a majority of Justices, in a Court whose membership was appointed almost entirely by one Clinton or another, who might agree. 11. What if some states refused to obey a direct order from the Supreme Court? Well, there are lots of ways to pressure the states, including withholding their appropriated federal funding for state and local criminal justice agencies. Would a Supreme Court that upheld President Clinton on the substantive issue be likely to declare it illegal for President Clinton to temporarily suspend the payment of money to states which are attempting to nullify a Supreme Court ruling? 12. There is an even simpler approach. Every firearms retailer holds a Federal Firearms License, and is subject to the regulatory control of the Bureau of Alcohol, Tobacco, Firearms and Explosives. No FFL may sell a gun to a customer without complying with the National Instant Check System, which is administered by the Department of Justice and FBI. President Clinton simply issues an order that no FFL may sell a gun, and NICS may not approve any transfers in any state which has not brought its laws into conformity with the World/Supreme Court rulings. Alternatively, President Clinton just orders administrative changes, so that the federal Form 4473 (which must be filled out by all retail gun buyers) states that it must be renewed every five years. A new line on the 4473 requires the buyer to make a multiple choice selection for one (and only one) purpose for which the gun will be used. Further, BATFE issues regulations under the federal Gun Control Act declaring that internationally-illegal uses of guns (e.g., against a rapist) constitute use of a gun “in a crime of violence”, which is a federal crime under the Gun Control Act. President Clinton directs the US Attorneys to prosecute accordingly. The federal statutes creating BATFE, requiring FFLs, and setting up NICS do not give the President any authority to issue such orders. But President Clinton could argue that she may issue such orders, based on her Article II foreign policy powers, in order to comply with the World and Supreme Court decisions. Moreover, the Senate ratification of the International Covenant implicitly gave her such powers, pursuant to the Supremacy Clause, to implement mandatory U.S. obligations arising from the Covenant. Would U.S. courts, and, eventually, the Supreme Court, uphold President Clinton’s actions regarding FFLs and NICS? It would be unrealistic to be confident that courts would not. Of course my suggestions about how a U.S. President might proceed after point 10 are just guesses. What is clear, is that with the right President having the opportunity to make a few Supreme Court appointments, getting

439 EXHIBIT 8 – DAVE KOPEL – MEDELLION AND THE SECOND AMENDMENT

EXHIBIT 8 – DAVE KOPEL – MEDELLION AND THE SECOND AMENDMENT to point 10 would be quite easy. After that, U.S. history shows that when a determined U.S. President wants to make recalcitrant states obey a U.S. Supreme Court ruling, the President eventually wins, one way or another.

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EXHIBIT 9 – FEDERAL J.A.I.L. FOR JUDGGES

EXHIBIT 9. Federal Judicial Accountability & Integrity Legislation (J.A.I.L.) FEDERAL JUDICIAL ACCOUNTABILITY & INTEGRITY LEGISLATION (J.A.I.L.) Reforms for the Federal Judiciary (a) PREAMBLE The House of Representatives and Senate Assembled find that an inordinate and ever-growing number of complaints of willful misconduct have been lodged with Congress involving federal judges across this nation; that the current Title 28 U.S.C. §372(c) (Judicial Misconduct and Disability Act) is in many cases inadequate because of conflicts of interest in judges judging themselves; that judicial integrity is of major importance and affects all areas of our American society. Be it therefore resolved that the House of Representatives and Senate Assembled hereby enact the following legislation which shall be known as the “Judicial Accountability and Integrity Legislation.” (b) DEFINITIONS For purposes of this legislation:

1. The term “blocking” shall mean any act that impedes the lawful conclusion of a case, to include unreasonable delay and willful rendering of a void judgment or order. 2. The term “federal judge” or “judge” shall mean any federal justice, judge, magistrate, commissioner, or any person shielded by judicial immunity. 3. The term “Juror” shall mean a Special Federal Grand Juror. 4. The term “strike” shall mean an adverse immunity decision based upon bad behavior as set forth in paragraph (c), or a criminal conviction as set forth in paragraph (r). 5. Where appropriate, the singular shall include the plural. (c) IMMUNITY Notwithstanding common law or any other provision to the contrary, no immunity shall be extended to any federal judge except as is specifically set forth in this statute. Preserving the purpose of protecting judges from frivolous and harassing actions, no immunity shielding a federal judge shall be construed to extend to any deliberate violation of law, fraud or conspiracy, intentional violation of due process of law, deliberate disregard of material facts, judicial acts without jurisdiction, blocking of a lawful conclusion of a case, or any deliberate violation of the Constitution of these United States, all violations of which shall constitute bad behavior. (d) SPECIAL FEDERAL GRAND JURY There is hereby created within the District of Columbia a twenty-five member Special Federal Grand Jury with full federal geographical jurisdiction, having power to judge on both law and fact. Their responsibility shall be limited to determining, on an objective standard, whether a civil suit against a federal judge would be frivolous and harassing or fall within the exclusions of immunity as set forth herein, and whether there is probable cause of criminal conduct by the federal judge complained of. (e) PROFESSIONAL COUNSEL The Special Federal Grand Jury shall have exclusive power to retain non-governmental advisors, special prosecutors, and investigators, as needed, who shall serve no longer than two years, after which term said officers shall be ineligible. However, with permission of the Special Federal Grand Jury, a special

441 FOR JUDGGES EXHIBIT 9 – FEDERAL J.A.I.L.

EXHIBIT 9 – FEDERAL J.A.I.L. FOR JUDGGES prosecutor may prosecute their current cases through all appeals and any applicable complaints to the Special Federal Grand Jury. (f) ESTABLISHMENT OF SPECIAL FEDERAL GRAND JURY SEAT A Special Federal Grand Jury seat is hereby created, which seat shall be located in excess of one mile of any federal judicial body. (g) FILING FEES Attorneys representing a client filing a civil complaint or answer before the Special Federal Grand Jury, shall at the time of filing pay a fee equal to the filing fee due in a civil appeal to the United States Supreme Court. Individuals filing a civil complaint or answer before the Special Federal Grand Jury in their own behalf as a matter of right, shall, at the time of filing, post a fee of one hundred dollars, or file a declaration, which shall remain confidential, stating they are impoverished and unable to pay and/or object to such fee. (h) ANNUAL FUNDING Should this statute lack sufficient funding through its filing fees under paragraph (g) and fines imposed under paragraph (q), which amount shall be deposited regularly into the exclusive trust account created by this statute in paragraph (j) for its operational expenses, Congress may impose appropriate surcharges upon the civil court filing fees of corporate litigants as necessary to make this statute self-supporting, or they may appropriate any and all necessary funds for the full implementation of this statute by legislation. (i) COMPENSATION OF JURORS Each Juror shall receive a salary commensurate to fifty percent of a federal district judge prorated according to the number of days actually served. (j) ANNUAL BUDGET The Special Federal Grand Jury shall have an annual operating budget commensurate to twenty times the combined salaries of the twenty-five Jurors serving full time, which sum shall be initially deposited by Congress into an exclusive trust account to be annually administered by the Controller. Should the trust balance within any budget year drop to less than an amount equivalent to the annual gross salaries of fifty federal district judges, the Controller shall so notify Congress, which shall replenish the account, prorated based on actual average expenditures during the budget year. Should the trust balance in any subsequent year exceed the annual operational budget at the beginning of a new budget year, the Controller shall return such excess to the United States Treasury. (k) JURISDICTION The Special Federal Grand Jury shall have exclusive power to establish rules assuring their attendance, to provide internal discipline, and to remove any of its members on grounds of misconduct. The Special Federal Grand Jury shall immediately assign a docket number to each complaint brought before it. Except as provided in paragraph (r), no complaint of judicial misconduct shall be considered by the Special Federal Grand Jury unless the complainant shall have first attempted to exhaust all judicial remedies available in the federal courts within the immediately preceding six-month period. Such six-month period, however, shall not commence in complaints of prior fraud or blocking of a lawful conclusion until after the date the Special Federal Grand Jury becomes functional. This provision is intended to apply remedially and retroactively.

442 EXHIBIT 9 – FEDERAL J.A.I.L. FOR JUDGGES

EXHIBIT 9 – FEDERAL J.A.I.L. FOR JUDGGES (l) QUALIFICATIONS OF JURORS A Juror shall have attained to the age of thirty years, and have been nine years a citizen of the United States, and an inhabitant of Washington, D.C. Those not eligible for Special Federal Grand Jury service shall include elected and appointed officials, members of the Bar, judges (active or retired), judicial, prosecutorial and law enforcement personnel, without other exclusion except previous adjudication of mental incapacity, imprisonment, or parole from a conviction of a felonious crime against persons. (m) SELECTION OF JURORS The Jurors shall serve without compulsion and shall be drawn by public lot by the Secretary of State from names on voters’ rolls and any citizen submitting his/her name to the Secretary of State for such drawing. (n) SERVICE OF JURORS Excluding the establishment of the initial Special Federal Grand Jury, each Juror shall serve one year. No Juror shall serve more than once. On the first day of each month, two persons shall be rotated off the Special Federal Grand Jury and new citizens seated, except in January it shall be three. Vacancies shall be filled on the first of the following month in addition to the Jurors regularly rotated, and the Juror chosen to fill a vacancy shall complete only the remainder of the term of the Juror replaced. (o) PROCEDURES The Special Federal Grand Jury shall serve a copy of the filed complaint upon the subject judge and notice to the complainant of such service. The judge shall have thirty days to serve and file an answer. The complainant shall have twenty days to reply to the judge’s answer. (Upon timely request, the Special Federal Grand Jury may provide for extensions for good cause.) The Special Federal Grand Jury shall have power to subpoena witnesses, documents, and other tangible evidence, and to examine witnesses under oath. The Special Federal Grand Jury shall determine the causes properly before it with their reasoned findings in writing within one hundred twenty (120) calendar days, serving on all parties their decision on whether immunity shall be barred as a defense to any civil action that may thereafter be pursued against the federal judge. A rehearing may be requested of the Special Federal Grand Jury within twenty days with service upon the opposition. Twenty days shall be allowed to reply thereto. Thereafter, the Special Federal Grand Jury shall render final determination within thirty days. All allegations of the complaint shall be liberally construed in favor of the complainant. The Jurors shall keep in mind, in making their decisions, that they are entrusted by the people of these United States with the duty of restoring a perception of justice and accountability of the federal judiciary, and are not to be swayed by artful presentation by the federal judge. They shall avoid all influence by judicial and government entities. The statute of limitations on any civil suit brought pursuant to this statute against a federal judge shall not commence until the rendering of a final decision by the Special Federal Grand Jury. Special Federal Grand Jury files shall always remain public record following their final determination. A majority of thirteen shall determine any matter. (p) REMOVAL Whenever any federal judge shall have received more than three strikes, the federal judge shall automatically be brought up on charges before Congress for Articles of Impeachment by the Special Federal Grand Jury through its special prosecutor for bad behavior and willful misconduct. Congress thereafter shall commence to a vote on such Articles of Impeachment. Upon a conviction, the federal judge shall be permanently removed from office. He may also be held liable under any other appropriate criminal or civil proceeding.

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EXHIBIT 9 – FEDERAL J.A.I.L. FOR JUDGGES (q) INDICTMENT Should the Special Federal Grand Jury also find probable cause of criminal conduct on the part of any federal judge against whom a complaint is docketed, it shall have the power to indict such federal judge except where double jeopardy attaches. The Special Federal Grand Jury shall, without voir dire beyond personal relationship, cause to be impaneled special trial jurors, plus alternates, which trial jurors shall be instructed that they have power to judge both law and fact. The Special Federal Grand Jury shall also select a non-governmental special prosecutor and a federal judge with no more than four years on the bench from a state other than that of the defendant judge (or outside of the District of Columbia, if the case so be). The trial jury shall be selected from the same pool of jury candidates as any regular federal jury. The special prosecutor shall thereafter prosecute the cause to a conclusion, having all the powers of any other prosecutor within these United States. Upon conviction, the special trial jury shall have exclusive power of sentencing (limited to incarceration, fines and/or community service), which shall be derived by an average of the sentences of the trial jurors. (r) CRIMINAL PROCEDURES. In addition to any other provisions of this statute, a complaint for criminal conduct of a federal judge may be brought directly to the Special Federal Grand Jury upon all the following prerequisites: (1) an affidavit of criminal conduct has been lodged with the appropriate prosecutorial entity within ninety (90) days of the commission of the alleged conduct; (2) the prosecutor declines to prosecute, or one hundred twenty (120) days has passed following the lodging of such affidavit and prosecution has not commenced; (3) an indictment, if sought, has not been specifically declined on the merits by a Grand Jury; and (4) the criminal statute of limitations has not run. Any criminal conviction (including a plea bargain) under any judicial process shall constitute a strike. (s) PUBLIC INDEMNIFICATION No federal judge complained of, or sued civilly by a complainant pursuant to this statute, shall be defended at public expense or by any elected or appointed public counsel, nor shall any federal judge be reimbursed from public funds for any losses sustained under this statute. (t) REDRESS The provisions of this statute are in addition to other redress that may exist and are not mutually exclusive. (u) PREEMINENCE Preeminence shall be given to this statute in any case of conflict with any other federal statute, case law, or common law to the contrary. The foreperson of the Special Federal Grand Jury shall read, or cause to be read, this statute to the respective Jurors semi-annually during the first week of business in January and July.

444 EXHIBIT 9 – FEDERAL J.A.I.L. FOR JUDGGES

EXHIBIT 10 – U.S. DEPT. OF STATE – INTERNATIONAL LEGAL AUTHORITIES

EXHIBIT 10. U.S. Department of State - International Legal Authorities U.S. DEPARTMENT OF STATE - INTERNATIONAL LEGAL AUTHORITIES http://www.state.gov/s/l/treaty/authorities/international/ Treaties are governed by international law and are a primary source of international law. Treaties play an important role in the orderly conduct of relations among states, particularly following World War II. In order for treaties to perform this role, internationally recognized rules concerning treaties have been developed. The VIENNA CONVENTION ON THE LAW OF TREATIES, concluded at Vienna on May 23, 1969 (VCLT), sets forth rules concerning the making, operation, suspension, and termination of treaties. The VCLT opened for signature in Vienna in May 1969, and it entered into force on January 27, 1980. Currently, over 90 countries have signed or acceded to the VCLT. The VCLT was signed for the United States on April 24, 1970, and President Nixon transmitted the treaty to the Senate for its advice and consent to ratification on November 22, 1971. The VCLT remains before the Senate Foreign Relations Committee. The United States has not ratified the VCLT and thus is not legally bound by its provisions. Nevertheless, the United States follows many of the rules in the VCLT in the conduct of its day-to-day work on treaties. States enter into treaties not only with other states, but also with other subjects of international law (in particular, international organizations). International organizations enter into treaties with each other. These treaties are not covered by the VCLT, but are the subject of the VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS, 1986 (VCLTSIO). This treaty is not yet in force, although many of its provisions are based on those in the VCLT and have been adapted for international organizations.

445 EXHIBIT 10 – U.S. DEPT. OF STATE – INTERNATIONAL LEGAL AUTHORITIES

EXHIBIT 11 – REPORT OF THE U.N. SECRETARY-GENERAL ON HUMAN RIGHTS DEFENDERS

EXHIBIT 11. Report of the U.N. Secretary-General on Human Rights Defeenders HUMAN RIGHTS DEFENDERS Report of the [United Nations] Secretary-General672 Available Online at http://www.un.org/documents/ga/docs/55/a55292.pdf Human rights questions: Human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms. 11 August 2000 Fifty-fifth session Item 116 (b) of the provisional agenda673

I. Introduction 1. The present report is submitted pursuant to General Assembly resolution 54/170 of 17 December 1999, in which the Assembly called upon Governments, specialized agencies and relevant intergovernmental and nongovernmental organizations to submit, at the request of the Secretary-General, on the basis of Commission on Human Rights resolution 1999/66 of 28 April 1999,674 proposals and ideas that should contribute substantially to further work on the implementation of the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.675 The Assembly also called upon the Commission on Human Rights to consider at its fifty-sixth session the report to be prepared by the Secretary-General pursuant to Commission resolution 1999/66, and requested the SecretaryGeneral to report to the Assembly at its fifty-fifth session on measures to implement the Declaration. 2. In his report to the Commission on Human Rights at its fifty-sixth session (E/CN.4/2000/95), the SecretaryGeneral summarized the views of the Governments, specialized agencies and intergovernmental organizations on the implementation of the Declaration and presented possible ways for its implementation. These included (a) the widespread dissemination of the Declaration in order to popularize it; (b) the incorporation of monitoring its implementation into existing United Nations mandates; (c) the establishment of a new United Nations mandate to monitor its implementation; (d) the active promotion of the Declaration by the Secretary-General, the United Nations High Commissioner for Human Rights and the United Nations human rights mechanisms; and (e) the effective promotion and implementation of the Declaration by all Member States. 3. By resolution 2000/61 of 26 April 2000,676 the Commission, inter alia, requested the Secretary-General to appoint, for a period of three years, a special representative who shall report on the situation of human rights defenders in all parts of the world and on possible means to enhance their protection in full compliance with the

672

In accordance with General Assembly resolution 54/248, sect. C, para. 1, this report is being submitted on 11 August 2000 so as to include as much updated information as possible. 673

A/55/150.

674

See OFFICIAL RECORDS OF THE ECONOMIC AND SOCIAL COUNCIL, 1999, SUPPLEMENT NO. 3 (E/1999/23), chap. II, sect. A.

675

General Assembly resolution 53/144, annex.

676

See OFFICIAL RECORDS OF THE ECONOMIC AND SOCIAL COUNCIL, 2000, SUPPLEMENT NO. 3 (E/2000/23), chap. II, sect. A.

446 EXHIBIT 11 – REPORT OF THE U.N. SECRETARY-G ENERAL ON HUMAN RIGHTS DEFENDERS

EXHIBIT 11 – REPORT OF THE U.N. SECRETARY-GENERAL ON HUMAN RIGHTS DEFENDERS Declaration. That request was endorsed by the Economic and Social Council in its decision 2000/220 of 16 June 2000.

II. Role and Risks of Human Rights Defenders 4. Article 1 of the Declaration proclaims that “Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels”. The legislative, administrative and other steps necessary to ensure that the rights and freedoms referred to in the Declaration are effectively guaranteed should be adopted by each State. In accordance with the fourth preambular paragraph of the Declaration, human rights defenders are persons acting alone or in association with others in contributing to the effective elimination of all violations of human rights and fundamental freedoms of peoples and individuals, including in relation to mass, flagrant or systematic violations such as those resulting from apartheid, all forms of racial discrimination, colonialism, foreign domination or occupation, aggression or threats to national sovereignty, national unity or territorial integrity and from the refusal to recognize the right of peoples to self-determination and the right of every people to exercise full sovereignty over its wealth and natural resources. They may belong to different professions, be members of governmental and non-governmental institutions, including civil servants, for example, law enforcement officers or prison officials. The activities of human rights defenders concern all categories of human rights: civil, cultural, economic, political, and social. Inspired and guided by human rights standards, human rights defenders act against the serious problems that affect the life of people throughout the world, such as hunger and poverty, intolerance and discrimination, abuse of power and corruption, insecurity, conflicts and repression, injustice and deprivation of liberty. They assist victims of human rights violations. In the work of human rights defenders, the concept of prevention takes a prominent place since, though just and necessary, compensation of victims always comes too late. 5. Human rights defenders are at the core of the human rights movement the world over. They work at democratic transformation in order to increase the participation of people in the decision-making that shapes their lives. Human rights defenders contribute to the improvement of social, political and economical conditions, the reduction of social and political tensions, the building-up of a peaceful environment, domestically and internationally, and the nurturing of national and international awareness of human rights. They form the base that regional and international human rights organizations and mechanisms, including those within the United Nations, build upon in the promotion and protection of human rights. 6. For their involvement in the struggle for human rights, the defenders are often the first victims of human rights violations perpetrated by State officials or non-State entities. Violence against them ranges from the most outright attacks against life, physical integrity and personal security and dignity, to more subtle and often diffuse forms of violence such as social disqualification through the association of human rights work with criminal activities, for example, terrorism or national treason. Legal restrictions imposed on freedom of association, assembly, information and movement are used to make human rights activities illegal. Judicial repression and physical violence are also used to hinder human rights advocacy. Human rights defenders can be the victims of harassment, threats, intimidation and restrictions on living conditions, such as loss of employment, denial of the right to work, of medical care or education for their children, loss of housing, land or citizenship. Violence also affects the relatives of human rights defenders and other persons associated with them. 7. Some human rights defenders are at greater risk because of the nature of the rights that they are seeking to protect. This is particularly true with regard to women who are human rights defenders. In many situations, women are at the front line of the struggle, not only for their own rights but also for those of their families and communities. In the midst of these struggles, many of these women are also personally at risk, for example, when they challenge the structures of societies that perpetuate discrimination against women, in particular where they relate to issues of sexuality and reproductive rights. Many women face additional discrimination because of their

447 -GENERAL ON HUMAN RIGHTS DEFENDERS EXHIBIT 11 – REPORT OF THE U.N. SECRETARY

EXHIBIT 11 – REPORT OF THE U.N. SECRETARY-GENERAL ON HUMAN RIGHTS DEFENDERS race, ethnicity, language, culture, religion or sexual orientation. In these circumstances, the call in the Beijing Platform for Action677 for Governments to ensure the protection of women engaged in the defence of human rights is of particular importance. 8. In resolution 54/170 of 17 December, the General Assembly, noting with deep concern that, in many countries, persons and organizations engaging in promoting and defending human rights and fundamental freedoms are facing threats, harassment and insecurity as a result of those activities and reiterating the importance of the Declaration, called for proposals and ideas that should contribute substantially to further work on the implementation of the Declaration. The importance of the Declaration and its promotion and implementation was also reiterated by the Commission in resolution 2000/61. 9. By resolutions 1998/3 of 20 August 1998 and 1999/3 of 20 August 1999,678 the Subcommission on the Promotion and Protection of Human Rights noted with deep concern that, in many countries, in contradiction to the commitments and obligations of Governments, persons and organizations engaged in promoting and defending human rights were facing threat, harassment and insecurity. It expressed concern at the increasing number of cases brought to its attention, concerning human rights defenders who, because of their activities in favour of the recognition, promotion and defence of human rights, had been persecuted, either by being arrested, convicted or imprisoned, or by being the victims of unresolved killings, or by being suspended or prohibited from exercising their professional activities, or by threat of suppression or actual suppression of the legal personality of the organization to which they belonged. 10. In view of this situation, the Subcommission urged each State to take measures to ensure the effective respect of its obligation in the field of human rights in accordance with the provisions of international instruments, including the Declaration, and to guarantee to individuals, groups, associations, organizations and organs of society the necessary conditions to exercise fully their activities in favour of the recognition, promotion and defence of human rights, and to ensure the security of all persons covered by the Declaration who were being persecuted because of their human rights activities. 11. In the same resolutions, the Subcommission also condemned the murders of 17 named human rights defenders. It called upon the Governments concerned to carry out thorough investigations to identify perpetrators and bring them to justice, and to ensure that crimes committed against human rights defenders do not go unpunished. It also requested the High Commissioner for Human Rights to undertake inquiries about the security of 18 other named individual human rights defenders whose life or security was deemed to be at risk and to inform the Subcommission of the results of her inquiries. The High Commissioner is providing the requested information to the Subcommission. 12. United Nations organs also express concern about continuing reports on repressive measures taken against private individuals and groups that cooperate with the United Nations in human rights matters. This is a problem closely related to human rights defenders. In resolution 2000/22 of 18 April 2000,6796 the Commission on Human Rights urged Governments to refrain from all acts of intimidation or reprisal against those who seek to cooperate or have cooperated with representatives of United Nations human rights bodies; those who avail or have availed themselves of procedures established under United Nations auspices for the protection of human rights and fundamental freedoms and all those who have provided legal assistance to them for that purpose; those who submit or have submitted communications under procedures established by human rights instruments; and those 677

REPORT OF THE FOURTH WORLD CONFERENCE ON WOMEN, BEIJING, 4-15 SEPTEMBER 1995 (United Nations publication, Sales No. E.96.IV.13), chap. I, resolution 1, annex II.

678

See, respectively, E/CN.4/1999/4, chap. II, sect. A, and E/CN.4/2000/2, chap. II, sect. A.

679

See OFFICIAL RECORDS OF THE ECONOMIC AND SOCIAL COUNCIL, 2000, SUPPLEMENT NO. 3 (E/2000/23), chap. II, sect. A.

448 EXHIBIT 11 – REPORT OF THE U.N. SECRETARY-G ENERAL ON HUMAN RIGHTS DEFENDERS

EXHIBIT 11 – REPORT OF THE U.N. SECRETARY-GENERAL ON HUMAN RIGHTS DEFENDERS who are relatives of victims of human rights violations. Further, the Commission requested all representatives of United Nations human rights bodies, as well as treaty bodies to help prevent the hampering of access to United Nations human rights procedures in any way and to report on such cases to the relevant United Nations organs. 13. The technical cooperation programmes of the Office of the United Nations High Commissioner for Human Rights and other agencies in the areas relevant to human rights offer support to Governments and civil society in creating conditions for the work of human rights defenders. The adoption of national plans of action in the field of human rights, as a participatory process involving both governmental bodies and nongovernmental organizations, provides a good framework for strengthening human rights advocacy. In many countries, the establishment and functioning of independent national human rights institutions significantly contributes to the same end. Projects in the area of human rights education provide another example of the assistance offered by the United Nations in line with the Declaration. 14. The Assisting Communities Together (ACT) project, implemented by the Office of the High Commissioner in cooperation with the United Nations Development Programme in more than 20 countries, launched in 1998 on the occasion of the fiftieth anniversary of the Universal Declaration of Human Rights, is intended to support practical human rights activities at the grass-roots level. This project is based on a bottom-up approach which emphasizes the role of civil society in the promotion and protection of human rights. It aims, through the provision of small grants to bona fide human rights defenders working individually or in association with others, at empowering people locally to raise human rights awareness and resolve local human rights problems. Thus, the ACT project also contributes to strengthening partnerships between United Nations and local human rights constituencies. Initially financed from voluntary contributions provided by Governments, the ACT project is now supported by the United Nations Fund for International Partnerships. 15. The Secretary-General has consistently underlined the importance of the Declaration and the need to promote its effective implementation.680 He has also drawn attention to the importance of cooperation between nongovernmental organizations and United Nations human rights bodies in order to advance its implementation. In particular, the Secretary-General has highlighted the important role in the campaign for the implementation of the Declaration of organizations, such as the Observatory for the Protection of Human Rights Defenders, a joint programme of the World Organization against Torture and the International Federation of Human Rights Leagues. The High Commissioner has also consistently urged the effective implementation of the Declaration. In her speech at the opening of the fifty-sixth session of the Commission on Human Rights, the High Commissioner emphasized the compelling need to take further measures to protect human rights defenders, and stated that the human rights community was looking to the Commission to implement the Declaration with practical measures. Human rights treaty bodies, as well as such United Nations entities as the United Nations Children’s Fund, have also focused on the Declaration.

III. Special Representative for Human Rights Defenders 16. The Commission on Human Rights, by resolution 2000/61, requested the Secretary-General to appoint, for a period of three years, a special representative who shall report on the situation of human rights defenders in all parts of the world and on possible means to enhance their protection in full compliance with the Declaration. In accordance with the decision of the Commission, which was endorsed by the Economic and Social Council in its decision 2000/220, the main activities of the special representative shall be: (a) To seek, receive, examine and respond to information on the situation and the rights of anyone, acting individually or in association with others, to promote and protect human rights and fundamental freedoms;

680

See, for example, E/CN.4/2000/95 and A/54/280.

449 -GENERAL ON HUMAN RIGHTS DEFENDERS EXHIBIT 11 – REPORT OF THE U.N. SECRETARY

EXHIBIT 11 – REPORT OF THE U.N. SECRETARY-GENERAL ON HUMAN RIGHTS DEFENDERS (b) To establish cooperation and conduct dialogue with Governments and other interested actors on the promotion and effective implementation of the Declaration; (c) To recommend effective strategies better to protect human rights defenders and follow up on these recommendations. 17. The Special Representative is expected to submit annual reports on his or her activities to the Commission on Human Rights and to the General Assembly, and to make suggestions and recommendations enabling him or her better to carry out his or her tasks and activities. 18. In its resolution 2000/61, the Commission urged all Governments to cooperate with and assist the Special Representative and to furnish all information in the fulfillment of his or her mandate upon request. Further, it requested the Secretary-General to provide the Special Representative with all necessary assistance, in particular in terms of staff and resources, and requested the Special Representative to report annually on his or her activities to the Commission and the General Assembly and to make any suggestions and recommendations enabling him or her better to carry out his or her tasks and activities. 19. The establishment of the implementation mechanism for the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms is a further milestone in the international efforts made since 1948 to recognize the vital role of human rights defenders in the improvement of the situation of human rights throughout the world, and to look for ways to provide more effective international protection to them and to their activities. This will be a central international mechanism for making the rights and responsibilities of human rights defenders, as laid down in the Declaration, a reality.

450 EXHIBIT 11 – REPORT OF THE U.N. SECRETARY-G ENERAL ON HUMAN RIGHTS DEFENDERS

EXHIBIT 12 – U.N. DECLARATION ON HUMAN RIGHTS DEFENDERS

EXHIBIT 12. U.N. Declaration on Human Rights Defenders DECLARATION ON THE RIGHT AND RESPONSIBILITY OF INDIVIDUALS, GROUPS AND ORGANS OF SOCIETY TO PROMOTE AND PROTECT UNIVERSALLY RECOGNIZED HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS A/RES/53/144 8 March 1999 Fifty-third session Agenda item 110 (b) RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY [on the report of the Third Committee (A/53/625/Add.2)] 53/144. Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms The General Assembly, Reaffirming the importance of the observance of the purposes and principles of the Charter of the United Nations for the promotion and protection of all human rights and fundamental freedoms for all persons in all countries of the world, Taking note of Commission on Human Rights resolution 1998/7 of 3 April 1998,681 in which the Commission approved the text of the draft declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms, Taking note also of Economic and Social Council resolution 1998/33 of 30 July 1998, in which the Council recommended the draft declaration to the General Assembly for adoption, Conscious of the importance of the adoption of the draft declaration in the context of the fiftieth anniversary of the Universal Declaration of Human Rights,682 1. Adopts the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, annexed to the present resolution; 2. Invites Governments, agencies and organizations of the United Nations system and intergovernmental and nongovernmental organizations to intensify their efforts to disseminate the Declaration and to promote universal respect and understanding thereof, and requests the Secretary-General to include the text of the Declaration in the next edition of Human Rights: A Compilation of International Instruments. 85th plenary meeting 9 December 1998

681

See Official Records of the Economic and Social Council, 1998, Supplement N 1 o. 3 (E/1998/23), chap. II, sect. A.

682

Resolution 217 A (III).

451 ON HUMAN RIGHTS DEFENDERS EXHIBIT 12 – U.N. DECLARATION

EXHIBIT 12 – U.N. DECLARATION ON HUMAN RIGHTS DEFENDERS ANNEX Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms The General Assembly, Reaffirming the importance of the observance of the purposes and principles of the Charter of the United Nations for the promotion and protection of all human rights and fundamental freedoms for all persons in all countries of the world, Reaffirming also the importance of the Universal Declaration of Human Rights683 and the International Covenants on Human Rights684 as basic elements of international efforts to promote universal respect for and observance of human rights and fundamental freedoms and the importance of other human rights instruments adopted within the United Nations system, as well as those at the regional level, Stressing that all members of the international community shall fulfill, jointly and separately, their solemn obligation to promote and encourage respect for human rights and fundamental freedoms for all without distinction of any kind, including distinctions based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and reaffirming the particular importance of achieving international cooperation to fulfil this obligation according to the Charter, Acknowledging the important role of international cooperation for, and the valuable work of individuals, groups and associations in contributing to, the effective elimination of all violations of human rights and fundamental freedoms of peoples and individuals, including in relation to mass, flagrant or systematic violations such as those resulting from apartheid, all forms of racial discrimination, colonialism, foreign domination or occupation, aggression or threats to national sovereignty, national unity or territorial integrity and from the refusal to recognize the right of peoples to self-determination and the right of every people to exercise full sovereignty over its wealth and natural resources, Recognizing the relationship between international peace and security and the enjoyment of human rights and fundamental freedoms, and mindful that the absence of international peace and security does not excuse noncompliance, Reiterating that all human rights and fundamental freedoms are universal, indivisible, interdependent and interrelated and should be promoted and implemented in a fair and equitable manner, without prejudice to the implementation of each of those rights and freedoms, Stressing that the prime responsibility and duty to promote and protect human rights and fundamental freedoms lie with the State, Recognizing the right and the responsibility of individuals, groups and associations to promote respect for and foster knowledge of human rights and fundamental freedoms at the national and international levels, Declares: Article 1 Everyone has the right, individually and in association with others, to promote and to strive for the protection and realization of human rights and fundamental freedoms at the national and international levels.

683

Resolution 217 A (III).

684

Resolution 2200 A (XXI), annex.

EXHIBIT 12 – U.N. DECLARATION ON452 HUMAN RIGHTS DEFENDERS

EXHIBIT 12 – U.N. DECLARATION ON HUMAN RIGHTS DEFENDERS Article 2 1. Each State has a prime responsibility and duty to protect, promote and implement all human rights and fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all conditions necessary in the social, economic, political and other fields, as well as the legal guarantees required to ensure that all persons under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in practice. 2. Each State shall adopt such legislative, administrative and other steps as may be necessary to ensure that the rights and freedoms referred to in the present Declaration are effectively guaranteed. Article 3 Domestic law consistent with the Charter of the United Nations and other international obligations of the State in the field of human rights and fundamental freedoms is the juridical framework within which human rights and fundamental freedoms should be implemented and enjoyed and within which all activities referred to in the present Declaration for the promotion, protection and effective realization of those rights and freedoms should be conducted. Article 4 Nothing in the present Declaration shall be construed as impairing or contradicting the purposes and principles of the Charter of the United Nations or as restricting or derogating from the provisions of the UNIVERSAL DECLARATION OF HUMAN RIGHTS,685 the INTERNATIONAL COVENANTS ON HUMAN R3IGHTS and other international instruments and commitments applicable in this field. Article 5 For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right, individually and in association with others, at the national and international levels: (a) To meet or assemble peacefully; (b) To form, join and participate in non-governmental organizations, associations or groups; (c) To communicate with non-governmental or intergovernmental organizations. Article 6 Everyone has the right, individually and in association with others: (a) To know, seek, obtain, receive and hold information about all human rights and fundamental freedoms, including having access to information as to how those rights and freedoms are given effect in domestic legislative, judicial or administrative systems; (b) As provided for in human rights and other applicable international instruments, freely to publish, impart or disseminate to others views, information and knowledge on all human rights and fundamental freedoms; (c) To study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights and fundamental freedoms and, through these and other appropriate means, to draw public attention to those matters.

685

Resolution 217 A (III).

453 ON HUMAN RIGHTS DEFENDERS EXHIBIT 12 – U.N. DECLARATION

EXHIBIT 12 – U.N. DECLARATION ON HUMAN RIGHTS DEFENDERS Article 7 Everyone has the right, individually and in association with others, to develop and discuss new human rights ideas and principles and to advocate their acceptance. Article 8 1. Everyone has the right, individually and in association with others, to have effective access, on a nondiscriminatory basis, to participation in the government of his or her country and in the conduct of public affairs. 2. This includes, inter alia, the right, individually and in association with others, to submit to governmental bodies and agencies and organizations concerned with public affairs criticism and proposals for improving their functioning and to draw attention to any aspect of their work that may hinder or impede the promotion, protection and realization of human rights and fundamental freedoms. Article 9 1. In the exercise of human rights and fundamental freedoms, including the promotion and protection of human rights as referred to in the present Declaration, everyone has the right, individually and in association with others, to benefit from an effective remedy and to be protected in the event of the violation of those rights. 2. To this end, everyone whose rights or freedoms are allegedly violated has the right, either in person or through legally authorized representation, to complain to and have that complaint promptly reviewed in a public hearing before an independent, impartial and competent judicial or other authority established by law and to obtain from such an authority a decision, in accordance with law, providing redress, including any compensation due, where there has been a violation of that person’s rights or freedoms, as well as enforcement of the eventual decision and award, all without undue delay. 3. To the same end, everyone has the right, individually and in association with others, inter alia: (a) To complain about the policies and actions of individual officials and governmental bodies with regard to violations of human rights and fundamental freedoms, by petition or other appropriate means, to competent domestic judicial, administrative or legislative authorities or any other competent authority provided for by the legal system of the State, which should render their decision on the complaint without undue delay; (b) To attend public hearings, proceedings and trials so as to form an opinion on their compliance with national law and applicable international obligations and commitments; (c) To offer and provide professionally qualified legal assistance or other relevant advice and assistance in defending human rights and fundamental freedoms. 4. To the same end, and in accordance with applicable international instruments and procedures, everyone has the right, individually and in association with others, to unhindered access to and communication with international bodies with general or special competence to receive and consider communications on matters of human rights and fundamental freedoms. 5. The State shall conduct a prompt and impartial investigation or ensure that an inquiry takes place whenever there is reasonable ground to believe that a violation of human rights and fundamental freedoms has occurred in any territory under its jurisdiction.

EXHIBIT 12 – U.N. DECLARATION ON454 HUMAN RIGHTS DEFENDERS

EXHIBIT 12 – U.N. DECLARATION ON HUMAN RIGHTS DEFENDERS Article 10 No one shall participate, by act or by failure to act where required, in violating human rights and fundamental freedoms and no one shall be subjected to punishment or adverse action of any kind for refusing to do so. Article 11 Everyone has the right, individually and in association with others, to the lawful exercise of his or her occupation or profession. Everyone who, as a result of his or her profession, can affect the human dignity, human rights and fundamental freedoms of others should respect those rights and freedoms and comply with relevant national and international standards of occupational and professional conduct or ethics. Article 12 1. Everyone has the right, individually and in association with others, to participate in peaceful activities against violations of human rights and fundamental freedoms. 2. The State shall take all necessary measures to ensure the protection by the competent authorities of everyone, individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights referred to in the present Declaration. 3. In this connection, everyone is entitled, individually and in association with others, to be protected effectively under national law in reacting against or opposing, through peaceful means, activities and acts, including those by omission, attributable to States that result in violations of human rights and fundamental freedoms, as well as acts of violence perpetrated by groups or individuals that affect the enjoyment of human rights and fundamental freedoms. Article 13 Everyone has the right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means, in accordance with article 3 of the present Declaration. Article 14 1. The State has the responsibility to take legislative, judicial, administrative or other appropriate measures to promote the understanding by all persons under its jurisdiction of their civil, political, economic, social and cultural rights. 2. Such measures shall include, inter alia: (a) The publication and widespread availability of national laws and regulations and of applicable basic international human rights instruments; (b) Full and equal access to international documents in the field of human rights, including the periodic reports by the State to the bodies established by the international human rights treaties to which it is a party, as well as the summary records of discussions and the official reports of these bodies. 3. The State shall ensure and support, where appropriate, the creation and development of further independent national institutions for the promotion and protection of human rights and fundamental freedoms in all territory under its jurisdiction, whether they be ombudsmen, human rights commissions or any other form of national institution.

455 ON HUMAN RIGHTS DEFENDERS EXHIBIT 12 – U.N. DECLARATION

EXHIBIT 12 – U.N. DECLARATION ON HUMAN RIGHTS DEFENDERS Article 15 The State has the responsibility to promote and facilitate the teaching of human rights and fundamental freedoms at all levels of education and to ensure that all those responsible for training lawyers, law enforcement officers, the personnel of the armed forces and public officials include appropriate elements of human rights teaching in their training programme. Article 16 Individuals, non-governmental organizations and relevant institutions have an important role to play in contributing to making the public more aware of questions relating to all human rights and fundamental freedoms through activities such as education, training and research in these areas to strengthen further, inter alia, understanding, tolerance, peace and friendly relations among nations and among all racial and religious groups, bearing in mind the various backgrounds of the societies and communities in which they carry out their activities. Article 17 In the exercise of the rights and freedoms referred to in the present Declaration, everyone, acting individually and in association with others, shall be subject only to such limitations as are in accordance with applicable international obligations and are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. Article 18 1. Everyone has duties towards and within the community, in which alone the free and full development of his or her personality is possible. 2. Individuals, groups, institutions and non-governmental organizations have an important role to play and a responsibility in safeguarding democracy, promoting human rights and fundamental freedoms and contributing to the promotion and advancement of democratic societies, institutions and processes. 3. Individuals, groups, institutions and non-governmental organizations also have an important role and a responsibility in contributing, as appropriate, to the promotion of the right of everyone to a social and international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights and other human rights instruments can be fully realized. Article 19 Nothing in the present Declaration shall be interpreted as implying for any individual, group or organ of society or any State the right to engage in any activity or to perform any act aimed at the destruction of the rights and freedoms referred to in the present Declaration. Article 20 Nothing in the present Declaration shall be interpreted as permitting States to support and promote activities of individuals, groups of individuals, institutions or non-governmental organizations contrary to the provisions of the Charter of the United Nations.

EXHIBIT 12 – U.N. DECLARATION ON456 HUMAN RIGHTS DEFENDERS

EXHIBIT 13 – CASTLE ROCK, COLORADO. V. JESSICA GONZALES

EXHIBIT 13. Castle Rock, CO. vs Jessica Gonzales 545 U.S. 748 (2005) (No Individual Right to Police Protection Killed 3 Little Girls) Town Of Castle Rock, Colorado v. Jessica Gonzales, Individually and a Next Best Friend Of Her Deceased Minor Children, Gonzales et al., 545 U.S. 748 (2005) Certiorari To The United States Court Of Appeals For The Tenth Circuit No. 04-278. June 27, 2005 Respondent filed this suit under 42 U. S. C. §1983 alleging that petitioner violated the Fourteenth Amendment.s Due Process Clause when its police officers, acting pursuant to official policy or custom, failed to respond to her repeated reports over several hours that her estranged husband had taken their three children in violation of her restraining order against him. Ultimately, the husband murdered the children. The District Court granted the town’s motion to dismiss, but an en banc majority of the Tenth Circuit reversed, finding that respondent had alleged a cognizable procedural due process claim because a Colorado statute established the state legislature’s clear intent to require police to enforce retraining orders, and thus its intent that the order.s recipient have an entitlement to its enforcement. The court therefore ruled, among other things, that respondent had a protected property interest in the enforcement of her restraining order. Held: Respondent did not, for Due Process Clause purposes, have a property interest in police enforcement of the restraining order against her husband. Pp. 6.19. (a) The Due Process Clause.s procedural component does not protect everything that might be described as a government .benefit”: “To have a property interest in a benefit, a person . . . must . . . have a legitimate claim of entitlement to it.. Board of Regents of State Colleges v. Roth, 408 U. S. 564, 577. Such entitlements are created by existing rules or understandings stemming from an independent source such as state law. E.g., ibid. Pp. 6.7. (b) A benefit is not a protected entitlement if officials have discretion to grant or deny it. See, e.g., Kentucky Dept. of Corrections v. Thompson, 490 U. S. 454, 462.463. It is inappropriate here to defer to the Tenth Circuit.s determination that Colorado law gave respondent a right to police enforcement of the restraining order. This Court therefore proceeds to its own analysis. Pp. 7.9. (c) Colorado law has not created a personal entitlement to enforcement of restraining orders. It does not appear that state law truly made such enforcement mandatory. A well-established tradition of police discretion has long coexisted with apparently mandatory arrest statutes. Cf. Chicago v. Morales, 527 U. S. 41, 47, n. 2, 62, n. 32. Against that backdrop, a true mandate of police action would require some stronger indication than the Colorado statute.s direction to .use every reasonable means to enforce a restraining order. or even to .arrest . . . or . . . seek a warrant.. A Colorado officer would likely have some discretion to determine that.despite probable cause to believe a restraining order has been violated.the violation.s circumstances or competing duties counsel decisively against enforcement in a particular instance. The practical necessity for discretion is particularly apparent in a case such as this, where the suspected violator is not actually present and his whereabouts are unknown. In such circumstances, the statute does not appear to require officers to arrest but only to seek a warrant. That, however, would be an entitlement to nothing but procedure, which cannot be the basis for a property interest. Pp. 9.15. (d) Even if the statute could be said to make enforcement .mandatory, . that would not necessarily mean that respondent has an entitlement to enforcement. Her alleged interest stems not from common law or contract, but only from a State.s statutory scheme. If she was given a statutory entitlement, the Court would expect to see EXHIBIT 13 – CASTLE457 ROCK V. JESSICA GONZALES

EXHIBIT 13 – CASTLE ROCK, COLORADO. V. JESSICA GONZALES some indication of that in the statute itself. Although the statute spoke of .protected person[s]. such as respondent, it did so in connection with matters other than a right to enforcement. Most importantly, it spoke directly to the protected person.s power to .initiate. contempt proceedings if the order was issued in a civil action, which contrasts tellingly with its conferral of a power merely to .request. initiation of criminal contempt proceedings.and even more dramatically with its complete silence about any power to .request. (much less demand) that an arrest be made. Pp. 15.17. (e) Even were the Court to think otherwise about Colorado.s creation of an entitlement, it is not clear that an individual entitlement to enforcement of a restraining order could constitute a .property. interest for due process purposes. Such a right would have no ascertainable monetary value and would arise incidentally, not out of some new species of government benefit or service, but out of a function that government actors have always performed.arresting people when they have probable cause. A benefit.s indirect nature was fatal to a due process claim in O.Bannon v. Town Court Nursing Center, 447 U. S. 773, 787. Here, as there, .[t]he simple distinction between government action that directly affects a citizen.s legal rights . . . and action that is directed against a third party and affects the citizen only . . . incidentally, provides a sufficient answer to. cases finding governmentprovided services to be entitlements. Id., at 788. Pp. 17.19. 366 F. 3d 1093, reversed. SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O.CONNOR, KENNEDY, SOUTER, THOMAS, and BREYER, JJ., joined. SOUTER, J., filed a concurring opinion, in which BREYER, J., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined.

EXHIBIT 13 – CASTLE ROCK 458 V. JESSICA GONZALES

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES

EXHIBIT 14. Human Rights Complaint: Jessica Gonzales v. United States INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Organizations of American States REPORT Nº 52/07 on PETITION 1490-05 ADMISSIBILITY JESSICA GONZALES AND OTHERS UNITED STATES (*) July 24, 2007 (*) Commission Member Professor Paolo Carozza did not take part in the discussion and voting on this case, pursuant to Article 17(2) of the Commission’s Rules of Procedure. I. SUMMARY 1. On December 27, 2005 the Inter-American Commission on Human Rights (hereinafter the “Commission” or “IACHR”) received a petition submitted by Caroline Bettinger-Lopez, Emily J. Martin, Lenora Lapidus, Steven Macpherson Watt, and Ann Beeson, attorneys-at-law with the American Civil Liberties Union686 (hereinafter the “Petitioners”) against the Government of the United States (hereinafter the “State” or “U.S.”). The petition was presented on behalf of Ms. Jessica Gonzales (Lenahan), a U.S. national who claims that the police failed to respond to her repeated and urgent calls over several hours informing that her estranged husband had taken their three minor daughters (ages 7, 8 and 10) in violation of a restraining order issued against him, which resulted in their death. The United States Supreme Court allegedly validated the law enforcement officials’ conduct, by holding that Ms. Gonzales was not entitled under the United States Constitution to have the restraining order enforced by the police. 2. The petition alleges that the preventable deaths of Ms. Gonzales’ children and the harm she suffered violated their rights to life and personal security under Article I, their right to protection of private and family life under Article V, their right to protection of the family under Article VI, their right to special protection for mothers and children under Article VII, and their right to the inviolability of the home under Article IX of the American Declaration on the Rights and Duties of Man (hereinafter “the American Declaration”). Petitioners further allege that the United States’ failure to investigate Ms Gonzales’ complaint and provide her with a remedy violated her right to resort to the courts under Article XVIII, and her right to obtain a prompt decision from the authorities under Article XXIV. Finally, the petition claims that the United States’ failure to ensure the substantive rights under the above articles violated Ms. Gonzales’ right to equality under Article II. In response to the petition, the State argues that the Petitioners’ claims are inadmissible because the alleged victim has failed to exhaust domestic remedies. 3. As set forth in this Report, having examined the contentions of the parties on the question of admissibility, and without prejudging the merits of the matter, the Commission decided to declare the Petitioners’ claims admissible with respect to Articles I, II, V, VI, VII, XVIII and XXIV of the American Declaration, to continue with the analysis of the merits of the case, to transmit the report to the parties, and to publish the report and include it in its Annual Report to the General Assembly of the Organization of American States. II. PROCEEDINGS BEFORE THE COMMISSION 686

By note dated October 26, 2006, the Human Rights Clinic of Columbia University Law School was accredited as a joint petitioner.

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EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES 4. Following the lodging of the Petitioners’ complaint, dated December 27, 2005, received by the Executive Secretariat on December 27, 2005, and a revision thereof with formatting corrections received on January 13, 2006, on April 17, 2006, the Commission transmitted the pertinent parts of the complaint to the State and requested information within two months as established by the Commission’s Rules of Procedure. 5. In a communication dated June 21, 2006, the State requested an extension of thirty days to prepare its response. On June 26, 2006, the Commission granted the State’s request for an extension. In a communication dated September 18, 2006 and received by the Commission on September 20, 2006, the State delivered its observations on the Petitioners’ complaint. By note dated September 22, 2006, the Commission transmitted the State’s response to the Petitioners and requested any additional information on the State’s response within one month. 6. In a communication dated November 27, 2006, the Petitioners provided information in connection with the complaint and requested the Secretariat’s assistance with obtaining all non-privileged documents relating to this matter that are in possession, custody, or control of the United States government. Subsequently, in a note dated November 27, 2006, the Commission requested the State to deliver to the Commission within one month copies of any documentation referred to in its response to the petition in this matter that have not previously been provided to the Commission together with any other documentation or other information that the State may consider relevant to the admissibility stage of the this proceeding before the Commission. 7. In a note dated December 11, 2006, and another one dated December 12, 2006, received by the Commission on December 12, 2006, the Petitioners delivered their reply to the response of the State dated September 18, 2006. The Commission transmitted the pertinent parts of the Petitioner’s reply to the State on January 3, 2007, with any observations requested within one month. In a note dated March 5, 2007, the State acknowledged receipt of the Commission’s note of January 3, 2007 and September 22, 2006. As a response to the latter, the State informed that, regarding the Petitioner’s request for additional documentation, there are no provisions in the rules of the Commission providing for requests of this kind and recommended that the Petitioners seek such documentation through appropriate state and federal procedures. 8. A hearing before the Inter-American Commission on Human Rights to address matters related to this case was convened on Friday, March 2, 2007, during the Commission’s 127th ordinary period of sessions. In a communication dated May 14, 2007, the Petitioners provided observations concerning the March 2, 2007 hearing of the case. By note dated May 17, 2007, the Commission transmitted the Petitioners’ observations to the State and requested a State’s response within one month. 9. In a communication dated July 6, 2007, Katherine Caldwell and Andrew Rhys Davies, attorneys of the firm Allen & Overy LLP, submitted an Amici Curiae brief in favor of the allegations of the petitioners in this case. The Amici Curiae brief was also submitted on behalf of 29 organizations, entities and international and national networks dedicated to the protection of the rights of women and children.687 By note dated July 20, 2007, the Commission transmitted a copy of this brief to the parties, for their information.

687

Center for Justice and International Law (CEJIL); The Latin American and Caribbean Committee for the Defense of Women’s Rights (CLADEM); Asociación Civil por la Igualdad y la Justicia (ACIJ), Argentina; Asociación por los Derechos Civiles (ADC), Argentina; Centro de Estudios Legales y Sociales (CELS), Argentina; Fundación Mujeres en Igualdad, Argentina; Fundación para Estudio e Investigación de la Mujer, Argentina; Instituto de Derechos Humanos, Facultad de Ciencias Jurídicas y Sociales, Universidad Nacional de La Plata, Argentina; Tracy Robinson, Faculty of Law, University of the West Indies, Barbados; La Oficina Jurídica Para la Mujer, Cochabamba, Bolivia; Constance Backhouse, Professor of Law and University Research Chair, University of Ottawa, Canada; Canadian Association of Sexual Assault Centres, British Columbia, Canada; Harmony House, Ottawa, Ontario, Canada; Professor Elizabeth Sheehy, University of Ottawa Faculty of Law, Canada; Centro de Derechos Humanos y Litigio Internacional (CEDHUL), Colombia; Corporación Sisma - Mujer,

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: J460 ESSICA GONZALES V. UNITED STATES

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES III. POSITIONS OF THE PARTIES A. Position of the Petitioners 10. The Petitioners allege that Ms. Gonzales and her husband lived in Castle Rock, Colorado and had married in 1990. In 1996, her husband began adopting abusive behavior towards her and her three minor daughters (ages 7, 8 and 10). In 1999, after he attempted to commit suicide, Ms. Gonzales filed for divorce and started living separately from him. In May of that year, she requested the issuance of a restraining order from the State of Colorado to protect her and her daughters. The order was granted in May (temporary) and in June 1999 (permanent). The order granted Ms. Gonzales the sole physical custody of her three minor daughters and allowed Mr. Gonzales occasional visitation or “parenting time.” The order provided that family visits could only occur once a week and during dinner time - “mid-week dinner visit” – and they had to be previously arranged between Simon and Jessica Gonzales. 11. The Petitioners claim that on June 22, 1999, Mr. Gonzales took the children with him in violation of the restraining order, as time for visitation had not been previously arranged. At approximately 5:50 p.m. on that same day, Ms. Gonzales called the Castle Rock Police Department to report the alleged abduction. In her call to the police department, the Petitioners allege that she informed them of the existence of the restraining order and that there had been no pre-arranged visitation with the children planned for that day. The Petitioners state that later that day she called the police again (7:30 p.m.) and approximately at 8:00 p.m. two officers arrived at her house. After showing them a copy of the restraining order, the Petitioners allege that the police officers informed Ms. Gonzales that there was nothing they could do to enforce it since her ex-husband was entitled to some “parenting time”. They also told her to wait until 10:00 p.m. to call the police again. 12. The Petitioners allege that Ms. Gonzales reported to the police a call she received from her husband around 8:30 p.m., who, upon her refusal to “rekindle” their relationship, communicated that he “[knew] what he needed to do.” They also allege that Ms. Gonzales reported an alarming call received that evening from Mr. Gonzales’ girlfriend, Rosemary Young, who expressed concern about whether Mr. Gonzales might harm himself or his children. She allegedly told Ms. Gonzales that her ex-husband had threatened to drive off a cliff earlier that day. 13. According to the Petitioners, the police dismissed all of Ms Gonzales’s calls. The latter simply replied that the father of the children had the right to spend time with them, even though she repeatedly mentioned the restraining order against him and that no visitation time had been agreed upon. She was only advised to wait until 10:00 p.m., and when she called at that time, her pleas were dismissed and she was again told to wait, until 12:00 a.m. According to the Petitioners, inaction and indifference persisted in the response even after Ms. Gonzales went to the Castle Rock police department and filed an incident report. 14. At approximately 3:30 a.m. the Petitioners allege that Mr. Gonzales appeared at the police station and opened fire at the police officers, who shot him dead on the scene. Subsequently the police found the bodies of the three murdered girls in the back of Mr. Gonzales’ truck.

Colombia; Liga de Mujeres Desplazadas, Colombia; Fundación Paniamor, Costa Rica; La Fundación PROCAL (Promoción, Capacitación y Acción Alternativa), Costa Rica; Centro de Apoyo Aquelarre (CEAPA), Dominican Republic; Movimiento de Mujeres Dominico - Haitiana (MUDHA), Dominican Republic; Núcleo de Apoyo a la Mujer (NAM), Dominican Republic; Jacqueline Sealy-Burke, Director, Legal Aid and Counseling Clinic (LACC), Grenada; Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, A.C. (CMDPDH), México; Organización Popular Independiente, A.C., Cd. Juárez, México; Organización Red de Mujeres Contra la Violencia, Nicaragua; Centro de la Mujer Panameña (CEMP), Panamá; Asociación Pro Derechos Humanos (APRODEH), Lima, Perú; Red Nacional De Casas De Refugio Para Mujeres y Niñas Victimas De Violencia Familiar y Sexual, Perú.

461 : JESSICA GONZALES V. UNITED STATES EXHIBIT 14 – HUMAN RIGHTS COMPLAINT

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES 15. The allegations indicate that after hearing about the shooting, Ms. Gonzales drove to the police station. 688 As she attempted to approach Mr. Gonzales’ truck, she was stopped by the police and taken to the local sheriff’s office. The petitioners allege that the officers refused to offer Ms. Gonzales any information on whether the girls were alive or not, and ignored her pleas to see the girls and identify them. She allegedly was detained in a room for 12 hours and interrogated, without any outside contact. The allegations indicate that she felt revictimized and was traumatized by the experience. Around 8:00 a.m. she was informed by state officials that Mr. Gonzales had murdered their daughters before he arrived at the police station. Allegedly, she was not permitted by the authorities to identify her daughters’ bodies until six days later, in their caskets at the moment of the burial. She also alleges that the authorities never allowed her to approach Mr. Gonzales’ truck and allegedly disposed of the truck three weeks after the death of her daughters. 16. The petitioners finally claim that Ms. Gonzales never learned any details of how, when and where her daughters died, their death certificates do not state this information, and therefore, she is still unable to include this information on their grave stones. 689 She allegedly has requested this information from the Castle Rock police and it has been denied. Overall, Ms. Gonzales alleges she was denied a factual investigation of the events surrounding the death of her daughters. 17. The Petitioners stress that at no time did the police appear concerned over the safety of her children, and that her repeated calls were met with disinterest. On one instance, a police officer allegedly dismissed her pleas, telling her that he “didn’t see what the big deal was.” The Petitioners also allege that the police did not respond to any emergencies that evening that would have prevented them from allocating resources towards the enforcement of Ms. Gonzales restraining order. Finally they claim that Ms. Gonzales trusted the police would take action, and had she known the police would not do anything to locate her daughters, she would have undertaken proactive steps to find them herself and avoid the tragedy. 18. The Petitioners indicate that Ms. Gonzales filed suit in the United States District Court for the District of Colorado, a court of federal level, alleging that the City of Castle Rock and several police officers had violated her rights under the Due Process Clause of the Fourteenth Amendment, claiming both substantive and procedural due process challenges. In the sphere of substantive due process, Ms. Gonzales claimed that she and her daughters had a right to police protection against harm from her husband. In the realm of procedural due process, she alleged that she possessed a protected property interest in the enforcement of her restraining order and that the Castle Rock police officers’ arbitrary denial of that entitlement without due process violated her rights. The District Court dismissed her case, which a panel of judges of the Third Circuit Court of Appeals affirmed in part and reversed in part. This finding was then affirmed in a rehearing before all the judges of the court (“en banc” review). 19. Ms. Gonzales’ case reached the Supreme Court, the highest judicial and appellate court in the United States. According to the Petitioners, on June 27, 2005, the Supreme Court rejected all of the claims presented by Ms. Gonzales, holding that her due process rights had not been violated. The Supreme Court held that despite Colorado’s mandatory arrest law and the express and mandatory terms of her restraining order, Ms. Gonzales had no personal entitlement to police enforcement of the order. 20. The Petitioners highlight that domestic violence is a widespread and tolerated phenomenon in the United States that has a disproportionate impact on women and has negative repercussions on their children. The

688

Hearing on the matter of Jessica Gonzales v. United States at the 127th Ordinary Period of Sessions of the Inter-American Commission on Human Rights, March 2, 2007. 689

Hearing on the matter of Jessica Gonzales v. United States at the 127th Ordinary Period of Sessions of the Inter-American Commission on Human Rights, March 2, 2007.

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: J462 ESSICA GONZALES V. UNITED STATES

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES petitioners also stress that even though the prevalence, persistence and gravity of the issue are recognized at the state and federal levels and legislative measures have been adopted to confront the problem, the response of police officers is to treat it as a family and private matter of low priority, as compared to other crimes. This perception influences negatively the response of the police in the implementation of protection orders. 21. Regarding the right to equality before the law, the Petitioners allege that the lack of State response to Ms. Gonzales’ reports was based on negative stereotypes embraced by some police officers and a facially neutral police department policy of assigning lower priority to reports of domestic violence incidents, a policy that affects women disproportionately. According to the Petitioners, this attitude from state authorities has a particularly alarming effect on women pertaining to different racial, ethnic, and lower-income groups. 22. Furthermore, the Petitioners allege that the doctrine of sovereign immunity severely limits the ability of victims of domestic violence to sue police departments for torts such as negligence when they fail to comply with their legal duties. The Petitioners argue that the Colorado Governmental Immunity Act (“hereinafter CGIA”) barred Ms. Gonzales from bringing suit against the Town of Castle Rock. The Petitioners argue that under Colorado state law, government actors such as police officers are immune from liability unless a plaintiff can demonstrate that the officers’ acts were “wanton and willful”.690 Such a showing, the Petitioners remark, will be impossible to make in most circumstances, and especially in domestic violence cases, because the injury typically results from a third party and non-State actor. Moreover, the Petitioners state that the highest state court in Colorado has interpreted this provision in an extremely restrictive manner, holding that the term “willful and wanton” for purposes of CGIA implies showing “that the officer purposefully acted or failed to act with conscious belief that this would probably harm” the victim.691 23. Finally, the Petitioners stress that Supreme Court interpretation of the Constitution prevents victims of domestic violence from obtaining legal remedies, and from holding the police legally accountable for failure to protect victims from acts of domestic violence. Therefore, negative stereotypes affecting women are perpetuated, and structures sustaining domestic violence are strengthened. The petition indicates that in 2000, the Supreme Court struck down a federal law which had created a cause of action to sue perpetrators of domestic violence by holding that Congress at the federal level did not have the constitutional authority to adopt such law.692 The Supreme Court also allegedly held in another decision that the government is under no substantive obligation to protect an individual from violence committed by a non-State actor.693 The Petitioners finally allege that the Supreme Court again denied legal remedy to victims of domestic violence in the case involving Ms. Gonzales, stating that an individual was not constitutionally entitled to the enforcement of a restraining order.694 24. Regarding the admissibility of the petition, the petitioners allege that Ms. Gonzales’ petition complies with all the Rules of Procedure of the Commission. They contend that Ms. Gonzales properly exhausted domestic remedies in accordance with Article 31 of the Rules of Procedure, that her petition has been filed within the sixmonth deadline established under article 32(1) of the Rules of Procedure, and that the American Declaration on the Rights and Duties of Man is binding on the United States.

690

Petitioners’ petition dated December 27, 2005, p. 37.

691

Petitioners’ observations to the State’s communication, dated December 12, 2006, p. 92.

692

The petition refers to the case of United States v. Morrison, 529 U.S. 598 (2000), according to which issues such as violent crime and family relationships belong to the local rather than the national sphere. Therefore, Congress at the federal level has no power to create a remedy for victims of gender-based violence. 693

The petition refers to the case of DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).

694

The petition refers to the Supreme Court decision in the case of Castle Rock v. Gonzales, 125 S.Ct. 2796 (2005).

463 : JESSICA GONZALES V. UNITED STATES EXHIBIT 14 – HUMAN RIGHTS COMPLAINT

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES 25. On the merits, the petitioners ask that the Commission declare the United States of America to be in violation of Articles I, II, V, VI, VII, IX, XVIII, and XXIV of the American Declaration, and recommend such remedies as the Commission considers adequate and effective for the violations Ms. Gonzales suffered. B. Position of the State 26. The State alleges that the events which occurred prior to the murders of Ms. Gonzales’ three daughters, on June 23, 1999, confirm that she had agreed that Mr. Gonzales could see their three daughters that evening for a mid-week dinner visit and that the visit was consistent with the restraining order. Therefore, the State alleges that the information available at the time revealed no indication that Mr. Gonzales was likely to commit that tragic crime against his own daughters. 27. The State alleges that the evidentiary records show that throughout the evening of June 22, 1999, and the early hours of June 23, 1999, the police responded professionally to the information Ms. Gonzales provided. The State argues that although the restraining order granted Ms. Gonzales “temporary sole physical custody” of the children, it granted Mr. Gonzales “parenting time with the minor children on alternating weekends commencing after work on Friday evening and continuing through 7:00 p.m. Sunday evening”. It also granted Mr. Gonzales a “mid-week dinner visit” to be “arranged by the parties.” Therefore, the State argues that since Ms. Gonzales consented to the mid-week dinner visit, Mr. Gonzales did not violate the restraining order by taking his daughters for the evening. 28. The State argues that members of the Castle Rock Police Department were responsive to her numerous requests for assistance and took her concerns seriously. In response to her initial call, allegedly two officers were dispatched to Ms. Gonzales’ house, one went directly to her house and the other one went to Mr. Gonzales’ house, and later joined the first officer at Ms. Gonzales’ house. The State also alleges that at no point did Ms. Gonzales show the officers a restraining order. 29. At approximately 8:43 p.m., Ms. Gonzales called the police and informed the dispatcher that she had received a telephone call from her husband and that he was with the children at Elitch’s amusement park in Denver. In that occasion, the State alleges that Ms. Gonzales did not mention any conversation with Rosemary Young (Mr. Gonzales’ girlfriend) nor did she mention any concern about Mr. Gonzales mental state or the safety of her children, nor did she request that an officer should be dispatched to locate Mr. Gonzales at the amusement park. 30. At 9:57 p.m., the State alleges that Ms. Gonzales called again and expressed frustration that her daughters had not arrived home. She did not mention that she was concerned about the safety of any of the children. Nor did she request that the Castle Rock police put out an “APB” (all points bulletin to other police departments). According to the State, Ms. Gonzales implicitly acknowledged that there was no restraining order violation when she explained to the police dispatcher in her first call to the Castle Rock police and in her subsequent conversations with an officer that she had agreed to the visit. 31. At approximately 12:30 a.m., on Wednesday, June 22nd, Ms. Gonzales showed up at the police department in tears. The State alleges that at this point she expressed concern about Mr. Gonzales’ mental state saying that he had “lost it” and that he might be “suicidal”. The State claims that the police ordered to locate Mr. Gonzales and his vehicle through an “Attempt to Locate BOLO” (an acronym for “Be On The Look Out” which is directed to other jurisdictions so that they may notify the requesting police department if they locate the individual in question). According to the investigation, the State informs that Mr. Gonzales reached the police station at 3:25 a.m. and fired shots through the window. After an exchange of gunfire with the officers, Mr. Gonzales died. When the officers approached Mr. Gonzales’s truck, they discovered the bodies of the three young girls.

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: J464 ESSICA GONZALES V. UNITED STATES

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES 32. The State argues that the petition is inadmissible for failure to state a breach of a duty by the United States under the American Declaration. The State alleges that no provision of the Declaration imposes an affirmative duty on States to actually prevent the commission of the crimes perpetrated by Mr. Gonzales. Furthermore, the State also alleges that no other provision of the Declaration contains language that even addresses implementation of the enumerated rights as the American Convention. The American Convention, on the other hand, includes a provision that describes the actual obligations of State Parties regarding implementation of the rights enumerated in the Convention. 33. Furthermore, the State alleges that Ms. Gonzales did not exhaust all available remedies to report the events suffered. Particularly, the State alleges that the actual facts of the case were not addressed in the domestic litigation. At the district court level, the Town of Castle Rock filed a motion to dismiss the claim. The District Court found that as a matter of law, Ms. Gonzales had failed to state a claim upon which relief could be granted. 695 Accordingly, the actual facts were not addressed in the litigation because the appeals process dealt with whether the federal law invoked by Ms. Gonzales, was available based on the allegations set forth in her complaint. The State claims that had Simon Gonzales survived an additional range of remedies such as criminal prosecution and criminal or civil contempt proceedings would have been available to Ms. Gonzales. The Supreme Court determined that the Fourteenth Amendment’s Due Process Clause, granted police officers discretion in enforcing restraining orders, and determined that Ms. Gonzales did not have federal entitlement to enforcement of the restraining order. 34. The State alleges that Ms. Gonzales never filed a complaint with the Castle Rock Police Department or with the Town of Castle Rock which would have prompted an investigation of her complaint by the Castle Rock Police Department or the Town of Castle Rock. In addition, although Ms. Gonzales chose not to pursue a claim under Colorado law, such as a civil suit in state court against the police officers under state tort law, the State alleges that “had she been able to establish that the Castle Rock police officers acted “willfully and wantonly” outside the scope of their employment, she should have filed a civil suit against them in state court.”696 Furthermore, the State argues that the Colorado Governmental Immunity Statute would have permitted such a suit had she been able to meet this standard.697 35. The State claims that the fact that Ms. Gonzales did not obtain positive results at the federal judicial level through the decision of the U.S. Supreme Court in this specific case, does not mean that domestic violence victims do not have resources available to them at the state or local level or that protection orders do not effectively protect their beneficiaries. 36. The State also describes a series of additional remedies and protections for victims of domestic violence at the national and state levels, such as billions of dollars devoted to implement programs related to domestic violence, as well as a diversity of laws that have been designed to improve the investigation of domestic violence cases. IV. ANALYSIS A. Competence of the Commission ratione personae, ratione materiae, ratione temporis and ratione loci 37. Upon considering the record before it, the Commission considers that it is competent to examine the present petition. Article 23 of the Commission’s Rules of Procedure authorizes petitioners to submit a complaint alleging violations of rights recognized in the American Declaration on the Rights and Duties of Man. The 695

Gonzales v. City of Castle Rock, No. 00-1285 (D.Co. filed Jan. 23, 2001).

696

State’s observations dated September 18, 2006, p. 21.

697

State’s observations dated September 18, 2006, p. 22.

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EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES alleged victims, Ms. Gonzales, and her three daughters Leslie, Katheryn and Rebecca Gonzales, are under the jurisdiction of the United States and their rights are protected under the American Declaration, the provisions of which the State is bound to respect in conformity with article 17 of the OAS Charter, article 20 of the Statute of the Commission, and article 29 of the Rules of Procedure of the Commission. The United States has been subject to the jurisdiction of the Commission since it deposited its instrument of ratification of the OAS Charter on June 19, 1951.698 Thus the Commission is competent ratione personae with respect to Ms. Gonzales. 38. Inasmuch as the Petitioners allege violations of articles I, II, V, VI, VII, IX, XVIII, and XXIV of the American Declaration on the Rights and Duties of Man, the Commission is competent ratione materiae to examine the petition. 39. The Commission is competent ratione temporis to examine the complaints because the petition alleges facts that occurred on or after the date on which the United States’ obligations under the American Declaration took effect. 40. Finally, the Commission is competent ratione loci, in so far as the petition alleges facts which have occurred while Ms. Gonzales was under the jurisdiction of the United States. B. Admissibility of the Petition 1. Exhaustion of domestic remedies 41. Article 31(1) of the Commission’s Rules of Procedure specifies that, in order to decide on the admissibility of a matter, the Commission must verify whether the remedies of the domestic legal system have been pursued and exhausted in accordance with generally recognized principles of international law. Article 31(2) of the Commission’s Rules of Procedure, however, specifies that this requirement does not apply if the domestic legislation of the state concerned does not afford due process of law for protection of the right allegedly violated, if the party alleging the violation has been denied access to domestic remedies or prevented from exhausting them, or if there has been an unwarranted delay in reaching a final judgment under the domestic remedies. As indicated by Article 31(3) of the Commission’s Rules, when a petitioner alleges one of these exceptions, it then falls to the State to demonstrate that domestic remedies have not been exhausted, unless that is clearly evident from the record. 42. The requirement of prior exhaustion applies when domestic remedies are available in practice within the national system, and would be adequate and effective in providing a remedy for the alleged violation. The Inter American Court of Human Rights has observed that domestic remedies, in accordance with generally recognized principles of international law, must be both adequate, in the sense that they must be suitable to address an infringement of a legal right, and effective, in that they must be capable of producing the result for which they were designed.699 While a number of remedies exist in the legal system of every country, the

698

Article 20 of the Statute of the IACHR provides that, in respect to those OAS member states that are not parties to the American Convention on Human Rights, the Commission may examine communications submitted to it and any other available information, to address the government of such states for information deemed pertinent by the Commission, and to make recommendations to such states, when it finds this appropriate in order to bring about more effective observance of fundamental human rights. See also Charter of the Organization of American States, Arts. 3, 16, 51, 112, 150; Regulations of the Inter-American Commission on Human Rights, Arts. 26, 51-54; I/A. Court H.R., Advisory Opinion OC-10/8 “Interpretation of the Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights,” July 14, 1989, Ser. A Nº 10 (1989), paras. 35-35; I/A Comm. H. R., James Terry Roach and Jay Pinkerton v. United States, Case 9647, Res. 3/87, 22 September 1987, Annual Report 1986-87, paras. 46-49. 699

I/A Court H.R., Velásquez Rodríguez Case, Merits, Judgment of July 29, 1988, Ser. C. Nº 4, (1988), paras. 64-66.

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: J466 ESSICA GONZALES V. UNITED STATES

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES exhaustion rule does not require the invocation of remedies which are inadequate,700 ineffective701 and offer no possibility of success. 702 For purposes of admissibility, the standard of analysis used for the prima facie assessment of the adequacy and effectiveness of the remedies under domestic law is not as high as the one required to determine whether a violation of Convention-protected rights has been committed. 703 43. In the case at hand, the parties are in dispute regarding compliance with the domestic remedy exhaustion requirement, and consequently, it falls to the Inter-American Commission to rule on the matter. The Petitioners allege that Ms. Gonzales has properly exhausted domestic remedies available to her in respect to the claims raised before the Commission. In particular, they claim that Ms. Gonzales presented her Constitutional due process claims to the domestic federal courts, that on June 27, 2005, the United States Supreme Court rejected those claims, and that all appeals have been exhausted. 44. The State in response argues that the present petition should be considered inadmissible because Ms. Gonzales failed to pursue a range of legal and administrative remedies that were available to her. The State claims that the holding of the U.S. Supreme Court in Town of Castle Rock, Colorado v. Gonzales, was limited to the particular claims raised by Ms. Gonzales regarding the particular Colorado statutory regime concerning the enforcement of protective orders and should not be construed to mean that there are no remedies available to victims of domestic violence in the United States or that restraining orders in such cases offer no protection to their beneficiaries. The State argues that there were a number of potential avenues that were not exhausted by Ms. Gonzales including: a) the filing of an administrative complaint with the Castle Rock Police Department or with the Town of Castle Rock which would have prompted an investigation of her complaint by the same entities; b) the pursuit of a civil suit in state court against the police officers under states tort law, which would have been permitted by the Colorado Governmental Immunity Statute;704 and c) the filing of an equal protection claim before federal courts. 45. The State also describes a series of additional remedies and protections for victims of domestic violence at the national and state levels such as billions of dollars allocated to the implementation of programs related to domestic violence, as well as a diversity of laws that have been designed to improve the investigation of domestic violence cases. Furthermore, the State claims that had Simon Gonzales survived an additional range of remedies such as criminal prosecution and criminal or civil contempt proceedings would have been available to Ms. Gonzales. 46. The Petitioners in response argue that none of the state and federal judicial remedies identified by the State were “viable legal avenues”705 for Ms. Gonzales and that no administrative channels were available to Ms. Gonzales in 1999 that would have afforded her an adequate and effective redress. They claim that the only remedy that was “available, adequate and effective”706 in 1999 that she could exhaust was a due process claim at the federal level. In regards to the other remedies mentioned by the State, the Petitioners argue that the presentation of a claim under the Equal Protection Clause of the United States Constitution would have been futile based on established Supreme Court precedent. Furthermore, they claim that the Colorado Governmental 700

I/A Court H.R., Velásquez Rodríguez Case, Merits, Judgment of July 29, 1988, Ser. C. Nº 4, (1988), para. 64.

701

I/A Court H.R., Velásquez Rodríguez Case, Merits, Judgment of July 29, 1988, Ser. C. Nº 4, (1988), para. 66.

702

I/A Court H.R., Velásquez Rodríguez Case, Merits, Judgment of July 29, 1988, Ser. C. Nº 4, (1988), para. 68.

703

Report Nº 08/05, Petition 12.238, Miriam Larrea Pintado, Ecuador, February 23, 2005, para. 31.

704

State’s Observations dated September 18, 2006, p. 22.

705

Petitioners’ Observations dated May 14, 2007.

706

State’s Observations dated September 18, 2006, p. 22.

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EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES Immunity Act barred Ms. Gonzales from bringing a civil tort suit against the Town of Castle Rock and the individual police officers. The Petitioners also allege that the State does not provide any information concerning the administrative complaint mechanisms it identifies in its response, and that the Petitioner was never informed of these mechanisms when the facts allegedly occurred. The petitioners finally claim that since Simon Gonzales did not survive, any remedies identified by the State in this regard were not in fact available to Ms. Gonzales and that these remedies would have been inappropriate to remedy the human rights violations alleged. 47. In considering the positions of the parties on the question of exhaustion, the Commission notes that Ms. Gonzales’ claims before the Commission focus on allegations she already raised before federal courts and reached the U.S. Supreme Court, the highest judicial instance and appellate court in the United States. Ms. Gonzales sued the Castle Rock Police Department and certain individual officers under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, raising both substantive and procedural challenges, which were ultimately rejected by the U.S. Supreme Court.707 The U.S. does not dispute this allegation. Furthermore, the Commission observes that the U.S. Supreme Court, in its decision, did not indicate that Ms. Gonzales had pursued the wrong remedies to raise her claims. 48. The Commission therefore concludes that the State in this case has not indicated how the alternative legal and administrative remedies it mentions could have provided Ms. Gonzales with a different outcome for her claims or how these could have been adequate and effective in remedying the violations alleged. Furthermore, both parties highlight precedent that limits the likelihood of success of any of these remedies, including the Supreme Court ruling in the Town of Castle Rock, Colorado v. Gonzales case, the Supreme Court cases establishing that the government has no obligation to protect an individual from acts committed by non-State actors, and existing immunity laws protecting state officials from liability. 49. In previous cases, this Commission has shared the view of the European Court of Human Rights that a petitioner may be excused from exhausting domestic remedies with respect to a claim where it is apparent from the record before it that any proceedings instituted on that claim would have no reasonable prospect of success in light of prevailing jurisprudence of the state’s highest courts.708 In these circumstances, the Commission has considered that proceedings in which claims of this nature are raised would not be considered “effective” in accordance with general principles of international law. In these circumstances, the Commission finds that any proceedings raising these claims before state courts would appear to have no reasonable prospect of success, and therefore would not be effective in accordance with general principles of international law. 50. Based on the above factors, the Commission concludes that the Petitioners properly exhausted all domestic remedies available within the United States legal system and, therefore, that their claims before the Commission are not barred from consideration by the requirement of exhaustion of domestic remedies under Article 31(1) of its Rules of Procedure. 2. Duplication

707

In regards to substantive due process, Ms. Gonzales argued that she and her daughters had a right to police protection against harm from her husband. In regards to procedural due process, Ms. Gonzales argued that she possessed a protected property interest in the enforcement of the terms of her restraining order and that the Castle Rock’s police officers arbitrary denial of that entitlement without due process violated her rights. 708

See, e.g., Case 11.193, Report 51/00, Gary Graham v. United States (Admissibility), Annual Report of the IACHR 2000, para. 60, citing Eur. Court H.R., De Wilde, Oomas and Versyp Cases, 10 June 1971, Publ. E.C.H.R. Ser. A, Vol.12, p. 34, paras. 37, 62; Eur. Court H.R., Avan Oosterwijck v. Belgium, Judgment (Preliminary Objections), November 6, 1980, Case Nº 7654/76, para. 37. See also Case 11.753, Report 108/00, Ramón Martinez Villareal v. United States (Admissibility), Annual Report of the IACHR 2000, para. 70.

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: J468 ESSICA GONZALES V. UNITED STATES

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES 51. In their petition, the Petitioners have stated that Ms. Gonzales’ claims are not pending before any other international forum. The State has not contested the issue of duplication of procedures. The Commission therefore finds no bar to the admissibility of the Petitioners’ claims under Article 33 of the Commission’s Rules of Procedure. 3. Timeliness of the petition 52. The record in the present complaint indicates that the Petitioners lodged their petition with the Commission on December 27, 2005 and therefore within six (6) months of the June 27, 2005 decision of the U.S. Supreme Court affirming Ms. Gonzales failure to establish a violation of the 14th Amendment of the U.S. Constitution. The State has not contested the issue of timeliness. As such, the Commission finds that the petition was not lodged beyond the time period prescribed under Article 32 of the Commission’s rules of Procedure. 4. Colorable Claim 53. For the purposes of admissibility, Article 34(a) of the Commission’s Rules of Procedure provides that petitions lodged with the Commission must state facts that tend to establish a violation of the rights referred to in Article 27 of the Rules of Procedure or whether the petitions must be dismissed as “manifestly groundless” or “obviously out or order” under Article 34(b) of the Commission’s rules of Procedure. In so doing, the Commission undertakes only a prima facie evaluation of the alleged facts with respect to the admissibility and does not consider or judge the merits of any claim. 54. In their allegations, the Petitioners raise three main claims of violations of Ms. Gonzales’ rights under the American Declaration: a. The preventable death of Ms. Gonzales’ daughters and the harms she suffered violated their rights to life and personal security under Article I, their rights to special protection under Article VII, and their rights to protection of family and home under Articles V, VI, and IX of the American Declaration; b. The United States’ failure to investigate Ms. Gonzales’ complaints, the failure to provide her an effective remedy, and the lack of access to information regarding the circumstances of the death of her daughters violated her rights to resort to courts under Article XVIII and to petition the government and receive a prompt decision under Article XXIV; c. The United States’ failure to guarantee Ms. Gonzales’ substantive rights outlined above violated her right to equality under Article II. 55. The State opposes these claims on the ground that the Petitioners have not cited any provision of the American Declaration that imposes an affirmative duty on States to actually prevent the commission of individual crimes by private parties such as the tragic criminal murders by Mr. Simon Gonzales of his three daughters. The State claims that no other provision of the Declaration contains language that even addresses implementation of the enumerated rights, let alone imposes an affirmative duty to prevent crimes such as those at issue in this case. 56. In this regard, according to the well-established and long-standing jurisprudence and practice of the inter-American system, the American Declaration is recognized as constituting a source of legal obligation for OAS member states, including in particular those states that are not parties to the American Convention on Human Rights.709 These obligations are considered to flow from the human rights obligations of member states 709

See I/A Court H.R., Advisory Opinion OC-10/89 “Interpretation of the Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights”, July 14, 1989, Ser. A Nº 10 (1989), paras. 35-45; James Terry Roach and Jay Pinkerton v. United States, Case 9647, Res. 3/87, 22 September 1987, Annual Report of the IACHR 1986-87, paras. 46-49. For examples of decisions in which the Commission has found violations of the American Declaration in respect of OAS member states that are not parties to the American Convention on Human Rights,

469 : JESSICA GONZALES V. UNITED STATES EXHIBIT 14 – HUMAN RIGHTS COMPLAINT

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES under the OAS Charter,710 which member states have agreed are contained in and defined by the American Declaration,711 as well as from the customary legal status of the rights protected under many of the Declaration’s core provisions.712 As a source of legal obligation, therefore, the State must implement the principles of the American Declaration in practice within its jurisdiction and it is appropriate for the Commission to consider and, where substantiated, find violations of that instrument attributable to a member state of the OAS, including the United States. Therefore, the Commission concludes that the scope of this obligation in the present case can and will be reviewed in light of the circumstances of the facts alleged, the jurisprudence of the Inter-American system of human rights713 and its application to countries which have not ratified the American Convention. The allegations of the parties in this case do not indicate the petition is manifestly groundless or out of order, thus, the Commission can declare this petition admissible. 57. With regard to the Petitioners’ claims, after carefully reviewing the information and arguments provided by the Petitioners and the State outlined by the Commission in Part III of this Report, the Commission considers that the facts alleged by the Petitioners in respect to these claims could tend to establish violations of Articles I, V, VI, VII, XVIII and XXIV of the rights of Ms. Gonzales and her daughters under the American Declaration and warrant an analysis on the merits of the complaint. 58. Furthermore, it considers that the alleged facts would constitute possible violations to Article II of the American Declaration. The IACHR observes that the Petitioners allege that the police authorities engage in a systematic and widespread practice of treating domestic violence as a low-priority crime, belonging to the private sphere, as a result of discriminatory stereotypes about the victims. These stereotypes influence negatively the police response to the implementation of restraining orders. The failures in the police response affect women disproportionately since they constitute the majority of victims of domestic violence. The deficiencies in the state response allegedly have a particularly alarming effect on women that pertain to racial and ethnic minorities, and lower-income groups. 59. It is the opinion of the IACHR that the facts alleged in the petition do not provide sufficient grounds to constitute a violation of the right to inviolability of the home, protected by Article IX of the American Declaration. V. CONCLUSIONS

see Case 1742 (Cuba), May 1975, Annual Report of the IACHR 1975; Maclean v. Suriname, Case 10.116, Resolution Nº 18/89, Annual Report of the IACHR 1988-1989; Michael Edwards et al. v. The Bahamas, Case 12.067, Report Nº 48/01, Annual Report of the IACHR 2000; Garza v. United States, Case 12.243, Report Nº 52/01, Annual Report of the IACHR 2000. 710

Charter of the Organization of American States, Arts. 3, 16, 51, 112, 150.

711

See e.g. OAS General Assembly Resolution 314, AG/RES. 314 (VII-O/77), June 22, 1977 (charging the Inter-American Commission with the preparation of a study to “set forth their obligations to carry out the commitments assumed in the American Declaration of the Rights and Duties of Man”); OAS General Assembly Resolution 371, AG/RES (VIII-O/78), July 1, 1978 (reaffirming its commitment to “promoting the observance of the American Declaration of the Rights and Duties of Man.”); OAS General Assembly Resolution 370, AG/RES. 370 (VIII-O/78), July 1, 1978 (referring to the “international commitments” of OAS member states to respect the rights recognized in the American Declaration of the Rights and Duties of Man). 712

Case 12.379, Report Nº 19/02, Lares-Reyes et al. (United States), February 27, 2002, para. 46.

713

I/A Court H.R., Case of the Mapiripán Massacre. Judgment of September 15, 2005. Series C No. 134, para. 111; I/A Court H. R., Case of the Massacre of Pueblo Bello. Judgment of January 31, 2006. Series C No. 140, para 123.

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: J470 ESSICA GONZALES V. UNITED STATES

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES 60. The Commission concludes that it has the competence to examine the Petitioners’ allegations, and that the petition is admissible for the alleged violations of Articles I, II, V, VI, VII, XVIII and XXIV of the American Declaration and in accordance with the Commission’s Rules of Procedure. 61. On the basis of the findings of fact and law set forth above, and without prejudging the merits of the matter, THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, DECIDES: 1. To declare the claims in the petition to be admissible in respect to Articles I, II, V, VI, VII, XVIII and XXIV of the American Declaration. 2. To declare this petition inadmissible regarding the alleged violation of the right provided for by Article IX of the American Declaration. 3. To continue with the analysis of the merits of the case. 4. To transmit this report to the parties. 5. To publish this report and include it in its Annual Report to the General Assembly of the Organization of American States. Done and signed in the city of Washington, D.C., on the 24th day of the month of July, 2007. (Signed): Florentín Meléndez, President; Víctor E. Abramovich, Second Vice-President; Sir Clare Roberts, Evelio Fernández Arévalos, and Freddy Gutiérrez Trejo Commissioners.

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EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15. James S. Gifford, Jus Cogens And Fourteenth Amendment Privileges Or Immunities: A Framework Of Substantive, Fundamental Human Rights In A Constitutional Safe-Harbor, 16 ARIZ. J. INT’L & COMP. LAW 484 (SPRING 1999) JUS COGENS AND FOURTEENTH AMENDMENT PRIVILEGES OR IMMUNITIES Table of Contents I. INTRODUCTION ..................................................................................................................................1 II. JUS COGENS: THE INTERNATIONAL DOCTRINE OF PEREMPTORY NORMS...........................................4 A. Defining Jus Cogens.................................................................................................................5 B. Jus Cogens as Natural Law.......................................................................................................8 1. The Development of International Law from Natural Law .................................................8 2. Modern Acceptance of Secular Natural Law in Jus Cogens Principles of International Law ................................................................................................................11 III. JUS COGENS LIMITATIONS ON CONSTITUTIONAL SOVEREIGNTY ....................................................11 A. The Trace of Secular Natural Law that Underwrites our Constitution......................................11 1. Classical Foundations of Secular Natural Law .................................................................11 2. English Foundations of Secular Natural Law ...................................................................13 B. The Constitutional Marriage of Natural Law with the Law of Nations .....................................14 1. An Originalist Understanding of the International Law of Nations as the Law of the Land ..........................................................................................................14 2. The Originalist View of the Law of Nations Discarded ....................................................15 3. The Role of Jus Cogens in a Return to Traditional Views of the Law of Nations ..............16 4. Fourteenth Amendment Privileges or Immunities Clause Incorporation of Jus Cogens.....18 IV. THE DEMISE OF THE PRIVILEGES OR IMMUNITIES CLAUSE ............................................................18 A. The Historical Context of the Reconstruction Amendments ....................................................19 1. The Thirteenth Amendment, the Black Codes, and the Civil Rights Act of 1866 ..............19 2. The Fourteenth Amendment ............................................................................................20 3. The Civil Rights Act of 1870 and the Fifteenth Amendment ............................................21 B. Article IV Privileges and Immunities: Corfield v. Coryell .......................................................21 C. The Slaughter-House Cases ....................................................................................................23 1. The Slaughter House Cases: Historical Prelude................................................................23 2. The Slaughter-House Cases: Chief Justice Miller’s Majority Opinion ..............................26 (a) The Court’s Rejection of the Thirteenth Amendment Argument..............................26 (b) The Court’s Rejection of the Fourteenth Amendment “Property” Argument ...........26 (c) The Court’s Rejection of the Fourteenth Amendment Equal Protection Argument ..27 (d) The Court’s rejection of the Fourteenth Amendment Privileges or Immunities argument ...........................................................................................27 D. Dismantling and Deconstructing the Slaughter-House Cases...................................................31 1. Reconciling Stare Decisis ................................................................................................31 2. Humoring an Originalist Bent Bench ...............................................................................34 V. INCORPORATING JUS COGENS WITHIN THE CONSTITUTION ..............................................................41 VI. CONCLUSION.................................................................................................................................43

472 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

473 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

Jus Cogens and Fourteenth Amendment Privileges or Immunities: A Framework of Substantive, Fundamental Human Rights in a Constitutional Safe-Harbor James S. Gifford* 16 Ariz. J. Int’l & Comp. Law 481 (Spring 1999) [p.481 (in original)]

I. INTRODUCTION I have seen the flames, I have seen the flames rising to nocturnal heavens; I have seen the parents and children, teachers and their disciples, dreamers and their dreams, and woe unto me, I have seen the children thrown alive into the flames.714 Senator Jesse Helms, during floor debate on ratification of the U.N. Convention on the Prevention and Punishment of the Crime of Genocide in 1985 (Convention),715 ardently lobbied against ratification and sought, at the very least, to “defang” the Convention of any but the most empty, “symbolic” import.716 [p.482] Ratification of the Convention meant, for Senator Helms that “we [would] submit in an entirely new way to a regime of international law.”717 The regime that Senator Helms was xenophobically concerned about was the Convention’s definition of genocide. 718 With Senators Lugar and Hatch, Senator Helms proposed that ratification 714

Elie Weisel, testimony before the Senate, quoted in 132 CONG. REC. S1252-04, (1986) (testimony of Sen.Metsenbaum).

715

See CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, Dec. 9, 1948, 78 UNT.S. 277 [hereinafter Convention] (ratified by the United States, with “Reservations, Declarations, and Understandings,” on Nov. 4, 1988). See also U.S. RESERVATIONS, DECLARATIONS, AND UNDERSTANDINGS, INTERNATIONAL CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, 132 Cong. Rec. S1355-01, (1986) [hereinafter U.S. Reservations], S. Exec. Rep. No. 2, at 17-27 (1985), reprinted in 132 Cong. Rec. S1377-78 (1986), reprinted in 80 Am. J. Int’l L. 612-13 (1986); Jordan J. Paust, CONGRESS AND GENOCIDE: THEY’RE NOT GOING TO GET A WAY WITH IT, 11 Mich. J. Of Int’l Law 90, 99 (1989). 716

See 132 CONG. REC. S1355-01 (1986) (statement of Senator Helms).

717

132 CONG. REC. S1252-04 (1986) (statement of Senator Helms) [hereinafter Helms statement].

718

See e.g., id.

The United Nations is scarcely more than a forum for totalitarian regimes seeking to impose a world totalitarian regime upon us all. At this point in history, we should be seeking to disentangle the United States from this enemy of democracy and freedom. As far as I am concerned, the United States is the ultimate protector of human rights in the world, both in terms of power to enforce a standard of freedom, and of our legal procedures and traditions. I do not want to see the United States submit itself to any international regime of law which is enforced by a group of nations which do not have our legal history and goals, and perhaps no understanding of those principles of our Nation. Id. Senator Helms does not address why a totalitarian infiltrated United Nations (UN) would draft and submit for ratification a Convention on Genocide, along with numerous other human rights instruments. Nor does Senator Helms acknowledge that the Convention on Genocide was drafted and initially submitted for ratification to member States over 40 years before the United States got around to ratifying it. However, Senator Helms did recognize that “when the United Nations was conceived, the world had high hopes that it would become the instrument for a better world. But these hopes have been dashed long ago. We now know that the UN has become an instrument for solidarity among those nations. . . that mock democracy and constitutional principles.” Id. Senator Helm’s wonderfully passive construction – “have been dashed” –

474 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT be conditioned upon a redefinition of genocide that was not congruent with the internationally accepted definition of genocide adopted by the Convention.719 The Convention’s definition of genocide arises from international law as a principle of jus cogens and is, thus, something more than a mere customary norm of international practice. As a principle of jus cogens, the international prohibition against genocide is a peremptory norm that does not allow derogation by any “civilized” country; whether a country fully ratifies the Convention or not, [p. 482] a principle of jus cogens cannot be violated.720 The definition contained in the Convention, also adopted by the Restatement (Third) of the Law of Foreign Relations of the United States, requires that an act of genocide be committed with “an intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”721 Yet, the reservations and understandings adopted during United States ratification of the Convention “understood” the Convention’s intent to destroy “in whole or in part” to mean a “specific intent to destroy, in whole or in substantial part.”722 Furthermore, the Convention’s second state act that would constitute genocide, “causing serious . . . mental harm,”723 was “understood” to mean “permanent impairment of mental faculties through drugs, torture, or similar techniques.”724 The U.S. also “understood” the prescription of genocide to be derogable “in the course of armed conflicts,” so long as one of the otherwise genocidal acts was committed “without the specific intent” that Senators Hatch, Lugar, and Helms read into Article Two of the Convention.725 These “understandings”726 serve to demote the crime of genocide from one of [p.484] peremptory, non-derogable status in international law to one of simply international custom and practice agreed to under a treaty. Thereby, Senator Helms’ “understandings” convert a principle of jus cogens into merely a conventional, rather than peremptory, rule of international law. It was this demotion in status that eventually mollified Senator Helms’ concern with ratifying the Convention, glosses over the contribution our failure to fully accept, with some sort of domestic qualification, any of the UN human rights instruments that grew out of the Second World War may have had to that dashing of hopes. 719

See Paust, supra note 2, at 94.

720

See Paust, supra note 2, at 94-95; see also discussion infra Part III and notes accompanying text.

721

CONVENTION ON GENOCIDE, supra note 2. See id. at art. 2. (the Convention’s definition of genocide). The earlier UN resolution on genocide of 1946 includes “in part” as the requisite intent and acknowledges that genocide is “a crime under international law.” G. A. Res. 96 (I), 1 UNGAOR, UNDoc. A/64/Add. 1, at 188-89 (1947). As Paust points out, “no other definition is accepted as such in any General Assembly or Security Council resolution or I.C.J. decision prior or subsequent to the adoption of the Convention.” Paust, supra note 2, at 94 n.4. See also RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES § 702 cmt. d (1987) [hereinafter RESTATEMENT (THIRD)] (“Genocide is defined in Article II of the CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE. . . . That definition is generally accepted for purposes of customary law under this section”). 722

U.S. Reservations, supra note 2, proviso II (1) (emphasis added).

723

CONVENTION ON GENOCIDE, supra note 2, art. 2 (b).

724

U.S. Reservations, supra note 2, proviso II (2) (emphasis added).

725

See id. at proviso II (4).

726

Senator Hatch explained that “an understanding is the means by which a government attempts to clarify or explain how certain provisions ought to be interpreted or applied in a treaty or convention.” 132 CONG. REC. S1252-04 (1986) (statement of Senator Hatch). But, as Senator Helms “clarified,” both “reservations” and “understandings” would be “equally binding under international law.” Helms Statement, supra note 4. “The difference between a reservation and an understanding is this,” continued Senator Helms: “A reservation excludes or varies the legal effect of one or more of the provisions of the treaty in their application to the reserving state . . . . An understanding merely clarifies the meaning of the provisions of the treaty but does not exclude or vary their legal effect.” Id. At least one scholar has argued that the particular “understandings” offered by Senators Helms, Hatch, and Lugar are “fundamentally incompatible with the object and purpose of the treaty and will thereby be legally unacceptable.” Paust, supra note 2, at 94.

475 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT rendering ratification “at most, symbolic.”727 Still, however much the Lugar-Helms-Hatch Provisions “defanged” the United Nations’ (UN) version of the Convention, and despite the effect of the U.S. Reservations in maintaining the “sovereignty of our Nation and the freedom of our people . . . against assault by the World Court,” Senator Helms still “symbolically” voted against ratification.728 But the non-derogability “fang” that caused Senator Helms such consternation is precisely one of the essential elements of a principle of jus cogens729 and cannot be agreed or contracted away by treaty.730 As one scholar has concluded, the “understanding” of the U.S. Reservations are “legally unacceptable since [they] are incompatible with the object and purpose of the Convention. Further, such an ‘understanding’ cannot be legally operative in the face of a contrary jus cogens, which is the case here.”731 Perhaps the nationalistic rhetoric of Senator Helms is correct after all: the international doctrine of jus cogens is indeed a “regime” of international law. But such a regime is not one in which a chosen few select which norms become peremptory and non-derogable. Rather, consensus of some nature is required, and a rule aspiring to jus cogens status must not only withstand pressures of time and custom but, too, must be “so fundamental to the international community of states as a whole that the rule constitutes a basis for the community’s legal system.”732 Consequently, once a rule of international law becomes ensconced as a principle of jus cogens, it “cannot be displaced by states, either in their treaties or in practice.”733 Jus cogens acts, in its capacity as an international peremptory and non-derogable rule of law, as “a natural law that is so fundamental that states . . . [p.485] cannot avoid its force.”734 The U.S., just as any other country, cannot legislate away the internationally binding nature of jus cogens.735 Part I of this Note explores the concept of jus cogens and argues that it is essentially a secular articulation of natural law. Jus cogens permits an appeal to peremptory norms that is not simply an appeal to an abstract, or religious, norm of natural law. Thus, an appeal to jus cogens avoids the often colorfully righteous trappings, the often disturbingly un-autonomous connotations, and the often rhetorically evangelical appeals to a higher deity which typically, if mistakenly, underlay modern appeals to a higher natural law. Instead, an appeal to jus cogens – unlike a mistaken characterization of secular natural law that hears nothing but religious medieval dogma – can serve to rationally and logically support legal argumentation and methodology. In Part II, this Note traces the development of natural law in the U.S., touching on its foundations in Roman law and in English common law. I argue that our Constitution was premised upon a traditional notion of natural law that was not founded upon empty appeals to a higher law-giver. I suggest that our modern conception of natural law has become unmoored from the theory of natural law espoused by the Framers, who accepted – as 727

Helms Statement, supra note 4.

728

Id.

729

See text and accompanying notes infra at part III(B).

730

See Karen Parker and Lyn Beth Neylon, JUS COGENS: COMPELLING THE LAW OF HUMAN RIGHTS, 12 Hastings Int’l & Comp. L. Rev. 411, 418 (1989). “Once an international norm becomes jus cogens, it is absolutely binding on all states, whether they have persistently objected or not. The rule is very clear: when a norm acquires jus cogens status, it is binding even on persistent objector states.” Id. 731

Paust, supra note 2, at 100 (footnote omitted).

732

Mark W. Janis, THE NATURE OF JUS COGENS, 3 Conn.J. Int’l L. 359, 362 (1988).

733

Id.

734

Id.

735

For the implementing domestic codification of the Convention as understood by Senator Helms, see 18 U.S.C.A. § 1091.

476 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT some scholars continue to accept – that natural law reflected fundamental tenets of international law and the law of nations.736 Furthermore, I suggest that for modern purposes, jus cogens is a secular articulation of the traditional natural law conception that informs our Constitution. Part III argues that the Privileges or Immunities Clause of the Fourteenth Amendment is the logical place to constitutionally re-moor traditional natural law as articulated by the principles of jus cogens. Our constitutional recognition of the limited scope of jus cogens natural law would ensure that the human rights [p.486] that attain jus cogens status under international law can be constitutionally guaranteed to all of those people that the Constitution seeks to protect. Part IV concludes this Note with a discussion of how the Supreme Court has, albeit without ever explicitly acknowledging such, occasionally utilized the concept of jus cogens to support historic Supreme Court decisions, such as Brown v. Board of Education,737 while incongruously and inconsistently denying the unwritten natural law premise of our Constitution in other cases, such as Bowers v. Hardwick, 738 Korematsu v. United States,739 and Hirabayashi v. United States,740 and, more recently, Glucksberg v. Washington741 and Vacco v. Quill.742 Throughout this Note, I use a number of English phrases as translations of jus cogens, most notably: “peremptory norm,” “fundamental norm” or “fundamental right,” and “inherent human right” or simply “human right.”743

II. JUS COGENS: THE INTERNATIONAL DOCTRINE OF PEREMPTORY NORMS If that which we have not seene, is not, our knowledge is wonderfull abridged.744 The International Court of Justice, the principal judicial body of the U.N.,745 decided Military and Paramilitary Activities in and Against Nicaragua746 on June 27, 1986. The opinion offered the principle of jus

736

Congress has the power to “define and punish . . . offenses against the Law of Nations.” U.S. CONST. art. I, § 8, cl. 10. Thus, Congress could adopt the doctrine of jus cogens as statutory law that would allow the courts to then interpret and incorporate much of internationally accepted human rights law. Congress could also explicitly adopt the doctrine of jus cogens pursuant to treaty, which would also allow the judiciary to apply international human rights law in domestic cases or controversies pursuant to the judiciary’s Article III powers. The focus of this Note, however, is on whether Congress has unwittingly already implicitly accepted the international principle of jus cogens through the various international conventions, declarations, and treaties that have been ratified, or, even more simply, by merely being a member State of the UN. If so, then the Supremacy Clause of Article VI requires the judiciary to apply and adhere to the principles of jus cogens because they are bound by the international law contained within and informing the treaties entered into under the authority of the United States. 737

347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954).

738

478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed.2d 140 (1986).

739

319 U.S. 432, 63 S. Ct. 1124, 87 L. Ed. 1497 (1943).

740

320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943).

741

521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed.2d 772 (1997).

742

521 U.S. 793, 117 S. Ct. 2293, 138 L. Ed.2d 834 (1997).

743

See discussion, infra at Part III(B)(3).

744

Montaigne, 1 MONTAIGNE’S ESSAYS 512 (John Florio trans., Nonesuch Press 1931) (1613).

477 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT cogens as a “further confirmation”747 of their decision to bind the U.S. to the prohibition of the use of [p.487] force despite the U.S.’s objections and justifications for the use of force in Nicaragua, a country with whom the U.S. was not at war.748 At least one major international legal scholar has persuasively argued that the decisions of the International Court of Justice are evidence of accepted international law as well as a source of international legal doctrine. 749 Whether or not one accepts that the opinions of the International Court of Justice are of any weight in international law does not detract from their instructive role, nor does it detract from their acknowledgment that the principle of jus cogens does in fact exist and should bind all member States of the U.N. Moreover, although the International Court of Justice was unwilling, in the earlier North Sea Continental Shelf Cases,750 “to attempt[] to enter into, still less pronounce upon any question of jus cogens,”751 the later acceptance of jus cogens as a supplementary rationale for deciding Nicaragua certainly stands as a persuasive, albeit dictum, pronouncement on the validity of jus cogens as a binding doctrine of international law.

A. Defining Jus Cogens Jus cogens literally translates as “cogent law.”752 Like habeas corpus, jus cogens defies modern translation from Latin.753 Consequently, jus cogens has been variously defined as peremptory norms, 754 as fundamental rights,755 as [p.488] fundamental norms,756 as overriding principles,757 as rights of inherent

745

See UN CHARTER art. 92; Statute of the International Court of Justice, Oct. 24, 1945, at art. 1, 59 Stat. 1031, T.S. No. 993 [hereinafter Stat. ICJ]. Under the Stat. ICJ, the ICJ is directed to utilize international customs, conventions, and generally recognized principles of law – as well as the decisions and teachings of judges and the writings and opinions of scholars – to interpret treaties and decide matters of international law. See id. at art. 36(2)(a), (b), art. 38. 746

Military and Parliamentary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27).

747

See id. at 100-01 (opinion for the International Court); id. at 151-53 (Singh, J., separate opinion); id. at 199-200 (SetteCamara, J., separate opinion). 748

See id. at 114, 238. The International Court of Justice reasoned that when “a State acts in a way prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained with the rule itself . . . [then] the significance of [the defense] . . . confirms rather than weakens the rule” that the objecting State wishes to derogate from with exceptions. Id. at 98. 749

See Lauterpacht, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT, 20-22 (1958).

750

North Sea Continental Shelf (W. Ger. v. Den., W. Ger. v. Neth.), 1969 I.C.J. 3 (Feb. 20).

751

Id. at 42.

752

See Parker & Neylon, supra note 17, at 414-15.

753

See U.N. CONFERENCE ON THE LAW OF TREATIES, 1st & 2nd Sess., at 297, U.N. Doc. A/CONF./39/11/Add. 2 (1971) (statement of Mr. Fattal (Lebanon)) (“neither the International Law Commission nor jurists in general had managed to find a modern equivalent for the Latin term jus cogens.”) See also Parker & Neylon, supra note 17, at 415 n.9 (for the observation that “in this respect, jus cogens joins habeas corpus.”) 754

VIENNA CONVENTION ON THE LAW OF TREATIES, at art. 53, U.N. Doc. A/CONF./39/27 (1969) reprinted in 63 Am. J. of Int’l L. 53 (1988), & 8 I.L.M. 679 (1969) [hereinafter Vienna Convention]. “A treaty is void if; at the time of its conclusion, it conflicts with a peremptory norm of general international law . . . . a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.” Id. 755

Anthony D’Amato, INTERNATIONAL LAW ANTHOLOGY 115 (1994) (“Jus cogens is a norm thought to be so fundamental that it invalidates rules consented to by states in treaties or custom.”)

478 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT dignity,758 as equal and inalienable rights,759 and as essential rights.760 Under whatever nomenclature one chooses, the body of norms under jus cogens are substantively compelling under international law doctrine, and jus cogens is a body of cogent law that is conclusively rational and convincing.761 Consequently, the doctrine of jus cogens is widely, if not unanimously, recognized as allowing for no derogation,762 even during circumstances of emergency.763 [p.489] Generally, scholars agree that customary international law informs the content of a particular jus cogens norm. 764 Yet, what constitutes customary international law is far from certain. For example, no formula exists that mandates how many countries will comprise a customary consensus that establishes a practice as

756

Jules Lobel, THE LIMITS OF CONSTITUTIONAL POWER: CONFLICTS BETWEEN FOREIGN POLICY AND INTERNATIONAL LAW, 71 Va. L. Rev. 1071, 1075 (1985) (“Unlike ordinary international law rules, . . . fundamental norms deprive nations of the legal power to commit certain acts. These fundamental norms. . . bar[] the use of torture, genocide, war crimes, or aggression.”) 757

Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 513 (3d ed. 1979).

758

UNIVERSAL DECLARATION Declaration].

759

OF

HUMAN RIGHTS, G.A. Res. 217(III)A, U.N. Doc. A/810 (1948) [hereinafter Universal

Id. at 1st preamb.

760

See AMERICAN CONVENTION ON HUMAN RIGHTS, in force July 18, 1978, O.A.S. T.S. No. 36, O.A.S. Doc. OEA/Sev.L/V/II.50, at 2d preambl., reprinted in 9 I.L.M. 673 (1970). 761

See VIII OXFORD ENGLISH DICTIONARY 323a (2d ed. 1991) (jus cogens Latin for “compelling law.”)

762

See Vienna Convention, supra note 41, at art. 64 (“If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates”); 2 RESTATEMENT (THIRD), supra note 8, at 167, § 702 cmt. n. (“Not all human rights norms are peremptory norms (jus cogens); but those in clauses (a) to (f) in this section [genocide, slavery or slave trade, the murder or causing the disappearance of individuals, torture or other cruel, inhuman, or degrading treatment or punishment, prolonged arbitrary detention, and systematic racial discrimination] are, and an international agreement that violates them is void”), RESTATEMENT supra at 174-75, reporter’s note 11 (“the rights recognized in clauses (a) to (f) of this section are not subject to derogation”); see also Rosalyn Higgins, DEROGATIONS UNDER HUMAN RIGHTS TREATIES, Brit. Y.B. Int’l Law 1976-1977, 281, 282 (1978) (“There certainly exists a consensus that certain rights – the right to life, to freedom from slavery or torture – are so fundamental that no derogation may be made”); Janis, supra note 19, at 359 (“Jus cogens, compelling law, is the modern concept of international law that posits norms so fundamental to the public order of the international community that they are potent enough to invalidate contrary rules which might otherwise be consensually established by states”); Paust, supra note 2, at 92 (“jus cogens allows no form of derogation under domestic or treaty-based law); Parker & Neylon, supra note 17, at 444 (“the binding, non-derogable nature of jus cogens rules has long been accepted as part of the customary law of treaties”). 763

See RESTATEMENT (THIRD), supra note 8, reporter’s note 11 to § 702, at 174-75 (“It has been suggested that a human rights norm cannot be deemed jus cogens if it is subject to derogation in time of public emergency. Nonderogability in emergency and jus cogens are different principles, responding to different concerns, and they are not necessarily congruent. In any event, the rights recognized in clauses (a) to (f) of this section are not subject to derogation in emergency under the Covenant [of Civil and Political Rights, art. 4].”) 764

See e.g., id. at § 102 cmt. k, reporter’s note 6 (jus cogens generally accepted as “a principle of customary law (albeit of a higher status”); Brownlie, supra note 43, at 513; Anthony D’Amato, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW 111, 132 n.73 (1971); Military and Parliamentary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 100 (June 27); Parker & Neylon, supra note 17, at 417.

479 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT binding customary norm. 765 Yet, according to the International Court of Justice, universality amongst the member States of the U.N. is not necessarily required. 766 In the North Sea Cases, for example, the International Court of Justice suggested that mere practice by treaty States will become a customary norm that binds an objecting non-party State where the treaty, or a specific provision of the treaty, has a norm-creating characteristic and where the widespread practices of other non-party States confirms the norm-creating characteristic of the treaty or the specific provision.767 Additionally, an indication of the norm must be present in the opinion juris and a sufficient lapse of time must have entrenched the practice.768 However, if the other elements are all present, the International Court of Justice recognized that a short time lapse would not serve to defeat finding the practice to be binding custom. 769 By allowing a short time span to be countered by the other factors, the International Court of Justice’s test is a balancing test rather than a test of rigid, conjunctive elements. Consequently, for a custom to become a binding norm, universal acceptance by the international community of states is not required.770 [p.490] Merely grounding jus cogens as customary international law suffers from a number of problems. Mainly, the Vienna Convention articulates peremptory norms as rules that arise out of general international law, not customary international law. 771 Furthermore, the International Court of Justice’s test fails to explicate whether a customary international law that serves on one occasion to bind a State to a practice that developed under a treaty to which that State was not a party will allow for derogation under some set of exigent circumstances. As Mark W. Janis points out, a number of presumptions must be made to draw from the Vienna Convention’s use of general international law a jus cogens doctrine premised upon custom.772 While Janis accepts that “peremptory norm” is equivalent to “jus cogens,” he nonetheless denies that a similar equivalence can be drawn between “general” and “customary” international law.773 Asserting customary international law as the weaker side of conventional international law, Janis maintains that treaties should trump customary international law since treaties are explicitly written and agreed upon rules, whereas custom “must be drawn awkwardly from the various evidences of state diplomacy and pronouncements.”774 Moreover, a treaty’s reliance upon consent by ratification also supports a treaty’s trumping power over custom, which relies upon opinion juris – vague assertions of the law-like appearance of the practice or rule desired to be binding upon a non-party state.775 Janis, consequently, argues that the Vienna Convention’s use of general international law was meant, and should, be interpreted to mean jus cogens itself, without any reliance upon constraining the Vienna Convention’s jus cogens principle by customary international law.776 Consequently, jus cogens can not only trump treaties but also, 765

See Parker & Neylon, supra note 17, at 417.

766

See id. at 417. See also NORTH SEA CONTINENTAL SHELF (W. Ger. v. Den., W. Ger. v. Neth.), 1969 I.C.J. 3, 41-43 (Feb. 20). 767

NORTH SEA CONTINENTAL SHELF, 1969 I.C.J. at 41-42.

768

Id.

769

Id.

770

Id. at 229 (Lachs, J., dissenting on other grounds).

771

See VIENNA CONVENTION, supra note 40, at art. 53.

772

See Janis, supra note 19, at 360.

773

Id.

774

Id.

775

Id.

776

Id. at 361.

480 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT customary international law itself 777 because “jus cogens . . . is . . . a form of international constitutional law, a norm that sets the very foundations of the international legal system.”778 [p.491]

B. Jus Cogens as Natural Law 1. The Development of International Law from Natural Law Peremptory norms took on international significance in the wake of the Nazi affront to humanity during the Second World War.779 The sway that Positivism gained during the beginning of the century maintained that binding law could only be made by explicit state acts, especially as articulated in treaties.780 In the face of Positivism, natural law theorists embraced the jus cogens approach of peremptory norms to invalidate treaties or state acts which, in the words of Verdross, an early advocate of jus cogens, espoused “the idea of a necessary law which all states are obliged to observe . . . [that is, an] ethics of the world.”781 The notion of peremptory norms grew from the recognition that international law required an ordre public – a public order that was itself an emanation of traditional natural law; thus, a public order was a necessary foundation of an international ethics, an ethics that, in turn, could legitimate and ground an international community of states.782 Generally, scholars agree that the principles of jus cogens trace principles of natural law.783 Like jus cogens, natural law is premised upon the validity of unwritten obligations and standards that serve to ensure that human interaction remains humane. 784 Consequently, natural law “acknowledges unwritten standards of behavior as a primary source of law.”785 Edmund Burke, a contemporary of the Framers of our Constitution, insisted that “we have obligations to mankind at large, which are not in consequence of any special voluntary pact. They arise from the relation of man to man . . . which [is] not [a] matter[] of choice.”786 Similarly, Emmanuel Kant argued that people “cannot get away from the idea of right in their private any more than in their public relations . . . . Right must be held sacred by [humanity], however great the cost and sacrifice to the ruling power.”787 Both Burke’s unwritten mutual obligations and Kant’s unwritten idea of right emanate from the [p.492] Roman emperor Lycurgus’s practice to never reduce his laws into writing. 788 Recognizing jus cogens’ affinity with natural law allows us to revive both 777

See Mark Janis, AN INTRODUCTION TO INTERNATIONAL LAW 54 (1988).

778

Janis, supra note 19, at 363.

779

See Janis, supra note 19, at 361.

780

Id.

781

Verdross, JUS DISPOSITIVIUM AND JUS COGENS IN INTERNATIONAL LAW, 60 Am. J. Int’l L. 55, 56 (1966), quoted in Janis, supra note 19, at 361. 782

See Janis, supra note 19, at 362.

783

See e.g., Parker & Neylon, supra note 17, at 419, n.41; see also sources listed supra at n.48.

784

See Parker & Neylon, supra note 17, at 419-20.

785

Id.

786

Edmund Burke, IV WORKS 165-66 (1791), quoted in Parker & Neylon, supra note 17, at n.42.

787

Emmanuel Kant, PERPETUAL PEACE 172-73, 183 (1915), quoted in Parker & Neylon, supra note 17, at n.42.

788

See Plutarch, Life of Lycurgus, in 1 THE LIVES OF THE NOBLE GRECIANS AND ROMANS 62 (John Dryden trans., Modern Library 1992). “Lycurgus would never reduce his laws into writing; nay there is a Rhetra expressly to forbid it. For he thought that the most material points, and such as most directly tended to the public welfare, being imprinted on the hearts of their youth by a good discipline, would be sure to remain, and would find a stronger security, than any compulsion would be, in the principles of action formed in them by their best law giver, education . . . . He thought it the best way to prescribe no

481 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT Burke’s “obligation to mankind” that belies our Constitution and Kant’s “idea of right” that led to our revolution: both allow us to assert unwritten principles “that would enable us to make of our received legal materials, as systematized by the legal science of [positivism], a living instrument of justice in the society of today and tomorrow.”789 Although legal invocations of natural law in American jurisprudence often evolve from religious sources,790 natural law may also be legitimately derived from secular and philosophical sources.791 The international principle of jus cogens grows out of this latter development and is, therefore, “a universal standard based upon a common humanity that can be arrived at by reason and thought.”792 The evolution of a secular natural law793 permitted the growth of an [p.493] international community of nations by acknowledging that commonality informs humanity794 and that nations of differing and contrasting cultural, religious, and political mores could productively participate in a common international law.795 Thus, by the middle of this century, political philosopher Jacques Maritain was able to insist that it is: by virtue of natural law that the Law of Nations and positive law take on the force of law, and impose themselves upon the conscience . . . . There is a dynamism which impels the unwritten law to flower forth in human law and

positive rule or inviolable usage in such cases [as pecuniary contracts and the like], willing that their manner and form should be altered according to the circumstances of time, and determinations of men of sound judgment. Every end and object of law and enactment it was his design education should effect.” Id. 789

Roscoe Pound, LAW AND MORALS 87 (1924), quoted in Parker & Neylon, supra note 17, at n.42.

790

See e.g., Meachum v. Fano, 427 U.S. 215, 230 n.10 (1976) (Stevens, J., dissenting). “Neither the Bill of Rights nor the laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are limitations on the power of the sovereign to infringe on the liberty of a citizen. The relevant state laws either create property rights, or they curtail the freedom of a citizen who must live in an ordered society. Of course, law is essential to the exercise and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive source. [P] I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal inalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or privileges conferred by specific laws or regulations” Id. (emphasis added). 791

See Parker & Neylon, supra note 17, at 419-20.

792

Id. at 420.

793

See e.g., H. Grotius, DE JURE BELLI AC PACIS LIBRI TRES PROLEGOMENA, §§ 8, 9, & 30 at 12-13, 21 (F. Kelsey trans., 1964) (1925), discussed in Parker & Neylon, supra note 17, at 421; quoted in Parker & Neylon, supra, at n.50 (“It is meet for the nature of man, within the limitations of human intelligence, to follow the direction of a well-tempered judgment, being neither led astray by fear or the allurement of immediate pleasure, nor carried away by rash impulse. Whatever is clearly at variance with such judgments is understood to be contrary also to the law of nature, that is, to the nature of man . . . . For the principles of law of nature, since they are always the same, can easily be brought into a systematic form; but the elements of positive law, since they often undergo change and are different in different places, are outside the domain of systematic treatment, just as other notions of particular things are.”) See also E. Vattel, THE LAW OF NATIONS 318, 138-39 (J. Chitty trans., 1870) discussed and quoted in Parker & Neylon, supra note 17, at 421, nn.51 & 52. (“The law of nature, whose object it is to promote the welfare of human society, and to protect the liberties of all nations . . . recommends the observance of the voluntary law of nations, for the common advantage of states . . . . The obligation of performing the offices of humanity . . . plainly appears to be solely founded upon the nature of man. Wherefore, no nation can refuse them to another, under pretense of its professing a different religion: to be entitled to them, it is sufficient that the claimant is our fellow-creature.”) 794

“Ah! That’s true,” Balzac’s Michael Chrestien confirms. “Before belonging to an individual, one belongs to Humanity.” Honore De Balzac, LOST ILLUSIONS 330 (Penguin edition, n.d.). 795

See Parker & Neylon, supra note 17, at 421.

482 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT to render the latter ever more perfect and just . . . . It is in accordance with this dynamism that the rights of the human person take political and social form in the community. 796

2. Modern Acceptance of Secular Natural Law in Jus Cogens Principles of International Law In articulating a distinction between natural law and natural right, Lloyd L. Weinreb notes that natural law, as conceived of today, is disfavored because of its historical reliance upon and early foundations in JudeoChristian theology.797 [p.494] Since natural law is seen to merely serve as an assertion of our “personal responsibility while still [fixing our penitent place] within and subjection to the Providence of an omnipotent God,” Weinreb finds it necessary to point out that the rubric of human rights was developed in order to reconceptualize the source of such rights.798 The linguistic switch in articulation from “natural” to “human” law or right denotes, for Weinreb, the “important point that all human beings possess the rights, so that the inquiry can cross national boundaries.”799 Weinreb’s distinction is paralleled in the distinction that grew between religious and secular natural law; indeed, Weinreb is observing the same historical shift traced above in this Note. The same distinction is also echoed by Karen Parker and Lyn Beth Neylon when they conclude that “modern human rights law is based on the natural law tenet that human beings have rights by virtue of being human . . . . Human rights instruments do not create rights, they merely recognize them.”800 The validity of Parker and Neylon’s assertion is readily apparent in the U.N. Universal Declaration of Human Rights.801 The preamble of the Universal Declaration, for example, asserts that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”802 Moreover, Article I of the Universal Declaration maintains that “all human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”803 Human rights are born by human beings, as the Universal Declaration acknowledges, by virtue of our simply being human; thus, the recognition of human rights is not contingent upon either conferral or grant by any sovereign or government. More recently, the U.N. Vienna Declaration and Programme of Action804 reaffirmed “the purposes and principles contained in the Charter of the U.N. and the Universal Declaration of Human Rights.”805 The Vienna Declaration also explicitly recognized and affirmed “that all human rights derive from the dignity and worth 796

J. Maritain, THE RIGHTS OF MAN AND NATURAL LAW 70-71 (D.C. Anson trans., 1943), quoted in Parker & Neylon, supra note 17, at 421. 797

See Lloyd L. Weinreb, Natural Law and Rights, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS, at 277-79 (Robert P. George ed., 1992).

798

Id.

799

Id.

800

Parker & Neylon, supra note 17, at 422. Compare discussion supra at note 77 (Justice Stevens’ dissent in Meachum).

801

UNIVERSAL DECLARATION, supra note 44.

802

Id. at preamb. para. 1.

803

Id. at art. I.

804

VIENNA DECLARATION AND PROGRAMME OF ACTION, WORLD CONFERENCE ON HUMAN RIGHTS, Vienna, 14-25 June 1993, UN Doc. A/CONF.157/24 (pt. I) at 20 (1993) [hereinafter Vienna Declaration].

805

Id.

483 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT inherent in the human person, and that the human person is the central subject of human rights and fundamental freedoms, and consequently should be [p.495] the principal beneficiary and should participate actively in the realization of these rights and freedoms.”806 The principles of jus cogens serve to ensure that human rights aren’t infringed by any government by providing that at least some human rights are so fundamental and inherent that an individual’s right to them will supersede and invalidate any state act or treaty that endeavors to ignore them. Indeed, as Parker and Neylon trace, “the three major legal systems – common law, civil law and socialist law – all incorporate principles of jus cogens.”807

III. JUS COGENS LIMITATIONS ON CONSTITUTIONAL SOVEREIGNTY Yes, it was not Zeus that made the proclamation; nor did Justice, which lives with those below, enact such laws as that, for mankind. I did not believe your proclamation had such power to enable one who will someday die to override God’s ordinances, unwritten and secure. They are not of today and yesterday; they live forever; none knows when first they were.808

A. The Trace of Secular Natural Law that Underwrites our Constitution 1. Classical Foundations of Secular Natural Law Deeply entrenched in American jurisprudence is the guiding thought that our legal system acknowledges no legal authority above the written Constitution; consequently, unwritten natural or fundamental law cannot supersede the written text of the Constitution.809 The roots of this deference lie, in part, in the [p.496] Supremacy Clause of Article VI,810 which Justice Black, for example, argued did not permit the judiciary to expound any unwritten law. 811 But recent scholars have traced a development of a traditional, secular natural law that, they argue, the framers accepted and thought was a given an implicit underpinning that validated our Constitution.812

806

Id.

807

Parker & Neylon, supra note 17, at 423. See generally id. at 423-27.

808

Sophocles, Antigone, in 2 THE COMPLETE GREEK TRAGEDIES: SOPHOCLES 178, 494-501 (David Greene et al. trans., Univ. of Chicago Press 1992). Antigone is responding to King Creon’s charge that she violated his public proclamation against the internment of her brother, Polyneices. See id. 809

See e.g., Thomas C. Grey, ORIGINS OF THE UNWRITTEN CONSTITUTION: FUNDAMENTAL LAW IN AMERICAN REVOLUTIONARY THOUGHT, 30 Stan. L. Rev. 843, 844 (1978); see also Charles L. Black, Jr., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED & UNNAMED (1997)(arguing that a vigorous human rights jurisprudence should emanate from the Declaration of Independence, the Ninth Amendment, and the “citizenship” and “privileges or immunities” clause of the Section 1 of the Fourteenth Amendment); Suzanna Sherry, THE FOUNDER’S UNWRITTEN CONSTITUTION, 54 U. Chi. L. Rev. 1127 (1987) (arguing that the framers did not intend to displace multiple sources of traditional “fundamental law” by the adoption of a written Constitution intended as only a sui generis species of “fundamental law”). 810

U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State Shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”) 811

See e.g., International Shoe v. Washington, 326 U.S. 310 (1945) (Black, J., concurring). “No one, not even those who most feared a democratic government, ever formally proposed that courts should be given power to invalidate legislation

484 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT Thomas C. Grey, for example, commences his inquiry into the secular natural law foundations of the Constitution with Aristotle’s “first comprehensive treatise on advocacy.”813 Aristotle suggested to young advocates that if positive law supported their position, then they should, of course, emphasize a deferential respect for written authority and lobby against judges succumbing to the vice of ingenuity.814 Yet, should positive law cut the other way, the advocate “must appeal to the universal law, and insist on its greater equity and justice.”815 Such an appeal carries rhetorical, if not logical, force because “there really is, as everyone to some extent divines, a natural justice and injustice that is binding on all” humanity.816 Consequently, Grey maintains that the Aristotelian dialogue between positive law on the one hand and unwritten natural justice on the other “permeates American constitutional law”817 and, unfortunately, threads American jurisprudence with incommensurable incongruities. 818 [p.497] Incorporating this Aristotelian dichotomy, Cicero emphasized that commonality was the underpinning of natural law, that it sublimated statutory law and was an internationally valid principle.819 Cicero asserted that: everyone ought to have the same purpose: to identify the interest of each with the interest of all. Once men grab for themselves, human society will completely collapse. But if nature prescribes (as she does) that every human being must help every other human being, whoever he is, just precisely because they are all human beings, then – by the same authority – all men have identical interests. Having identical interests means that we are all subject to one and the same law of nature: and, that being so, the very least that such a law enjoins is that we must not wrong one another. This conclusion follows inevitably from the truth of the initial assumption. 820 It is this initial assumption that Charles L. Black, Jr., for one, recognizes underwrites our Constitution and, too, that Senator Helms refuses to acknowledge as valid.

2. English Foundations of Secular Natural Law

under . . . elastic standards . . . . superimposing [a] natural justice concept on the Constitution’s specific prohibitions could operate as a drastic abridgment of democratic safeguards . . . .” Id. at 325. 812

See e.g., note 96, supra page 30.

813

Grey, supra note 96, at 843.

814

Id. See also Aristotle, Rhetoric, in 2 THE COMPLETE WORKS OF ARISTOTLE: THE REVISED OXFORD TRANSLATION 2152, 215253 (Jonathan Barnes ed., 1984). 815

Aristotle, supra note 101, quoted in Grey, supra note 96, at 843.

816

Grey, supra note 96 (quoting Aristotle, supra note 101).

817

See Grey, supra note 96, at 843.

818

Charles L. Black, Jr., for example, notes the logical devastation this tension has wreaked with our constitutional jurisprudence. “Our constitutional law has never been wholly ‘textual.’ But . . . recent cases on human rights seem to me to evidence, as to human rights, an uneasiness, a discomfort, with the conventional (though erroneous) dogma that human-rights protections must be found in specific texts.” BLACK, supra note 96, at 161. 819

See Cicero, On Duties III, in CICERO: SELECTED WORKS 167 (Michael Grant trans., Penguin Books 1971). “That one must not injure anybody else for one’s own profit – is not only natural law, an international valid principle: the same idea is also incorporated in the statutes which individual communities have framed for their national purposes. The whole point and intention of these statutes is that one citizen shall live safely with another; anyone who attempts to undermine that association is punished with fines, imprisonment, exile, or death.” Id. at 167.

820

Id. at 168.

485 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT England has no written constitution;821 thus, the development of the English common law tradition is closely tethered with principles of natural and fundamental law that bind the sovereign and Parliament.822 The natural and fundamental law that England’s “ancient constitution” espouses is legally supreme and, therefore, limits any individual branch or institution from usurping complete sovereignty.823 Since it is unwritten, the source and authority of English law is derived from custom, 824 from reason and natural justice, 825 and from [p.498] natural, religious, and enacted law.826 Lastly, natural and fundamental law could be relied upon and invoked by the judiciary as peremptory norms that invalidated inconsistent Acts of Parliament or royal enactments and proclamations.827 Such a foundation allowed Lord Coke, for example, to preempt an Act of Parliament in Dr. Bonham’s Case828 because: . . . . It appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will controul, it and adjudge such Act to be void . . . .829 In Calvin’s Case,830 decided a year or so before Dr. Bonham’s Case, Coke had relied upon Bracton and St. Germain to announce that the eternal and unchanging nature of natural law superseded any earthly law created by a sovereign or parliament.831 Shortly thereafter, Sir John Davies noted that “the Law of Nature . . . . is better than all written Laws in the world,” and took as the best evidence of those natural laws, the “Customary Law of England.”832 Further, Sir Henry Finch, widely recognized and influential both in England and in America,833 “firmly declared that positive laws contrary to natural law ‘lose their force, and are no laws at all.’”834 The opposition party in England 835 – and subsequently the American revolutionists836 – relied upon Coke’s language to challenge the entrenched notion that “an act of parliament can do no wrong, though it may do

821

See Parker & Neylon, supra note 17, at 423.

822

See Sherry, supra note 96, at 1128-29.

823

See Grey, supra note 96, at 850.

824

J.G.A. Pocock, for example, thought the “ancient constitution” invoked custom, not immutable abstract political principles. J.G.A. Pocock, THE ANCIENT CONSTITUTION AND THE FEUDAL LAW: A STUDY OF ENGLISH HISTORICAL THOUGHT IN THE SEVENTEENTH CENTURY, 16-18, 46 (1957), cited by Sherry, supra note 96, at 1129 n.4. 825

See Grey, supra note 96, at 850.

826

See Sherry, supra note 96, at 1129.

827

See Grey, supra note 96, at 850; Sherry, supra note 96, at 1129.

828

Dr. Bonham’s Case, 8 Co. Rep. 107, 77 Eng. Rep. 638 (K.B. 1610).

829

Id. at 118a. See also Julius Goebel, Jr., HISTORY OF THE SUPREME COURT OF THE UNITED STATES: ANTECEDENTS BEGINNINGS TO 1801 92 (Paul A. Freund ed., 1974) (quoting Bonham’s Case); Sherry, supra note 96, at 1130.

AND

830

77 Eng. Rep. 377 (K.B. 1608).

831

See id. at 391-92; see also Grey, supra note 96, at 853 & n.39.

832

J. Davies’ REPORTS 4 (1762), quoted in Grey, supra note 96, at 853-54.

833

See Grey, supra note 96, at 853 & n.40.

834

Grey, supra note 96, at 853 (quoting SIR Henry Finch, LAW, A DISCOURSE THEREOF 75 (D. Pickering ed., 4th ed. 1759)).

835

See Sherry, supra note 96, at 1129.

836

See Goebel, supra note 116, at 92; Sherry, supra note 96, at 1129-30.

486 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT several [p.499] things that look pretty odd.” 837 By the mid-eighteenth century, a body of opinion principally articulated and defended by Lord Camden, had evolved to insist that natural and fundamental principles existed that lay beyond the reach of legislative tampering.838 Henry St. John Viscount Bollingbroke, for example, defined a constitution as “that Assemblage of Laws, Institutions and Customs, derived from certain fix’d Principles of Reason, directed to certain fix’d Objects of publick Good, that compose the general System, according to which the Community hath agreed to be govern’d.”839 Bollingbroke, consequently, concluded that “A parliament cannot annul the Constitution.” 840 Blackstone went even further and commented that the “law of nature being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other[; therefore,] it is binding over all the globe in all countries, and at all times.”841 It was from the opposition party in England and upon this tradition of secular natural law that the American revolutionists drew and relied upon to draft a written constitution which simply reflected those norms by which they endeavored to constitute themselves a nation of united states free from the unlimited, unchecked will of a parliament that could do no wrong.842

B. The Constitutional Marriage of Natural Law with the Law of Nations 1. An Originalist Understanding of the International Law of Nations as the Law of the Land Jules Lobel argues that “new conceptions of fundamental norms,” like jus cogens peremptory norms, “echo theories, prevalent at the founding of the American Republic, holding that the fundamental principles of the law of nations [p.500] limited the constitutional power of a sovereign.”843 Lobel asserts that during the eighteenth century current theory held that both domestic law and international law grew out of natural law and were not, consequently, two separate bodies of independent law.844 Lobel analyzes the intersection of constitutional law, heavily laden with natural law origins, and international law, heavily founded upon principles of higher law norms that bind nations to a peremptory standard of behavior with each other.845 In addition to relying upon the oppositionist party of England and Lord Coke’s doctrine of natural law limitations, American revolutionists such as James Otis and John Adams also relied heavily upon the focus of continental Enlightenment thinkers that the law of nations served to derive principles of a nation’s constitution from the rights and duties of nations.846 Thus,

837

City of London v. Wood, 12 Mod. Rep. 669, 678 (1701), quoted in Sherry, supra note 96, at 1129 n.3.

838

See Goebel, supra note 116, at 91.

839

Henry St. John Viscount Bollingbroke, A DISSERTATION UPON PARTIES 108, 138 (3d ed. 1735) (Letters X, XII), quoted in Goebel, supra note 116, at 89. John Adams, Thomas Jefferson, and James Wilson were all adamant admirers of Bollingbroke’s thesis. Goebel, supra note 116, at 179.

840

Bollingbroke, supra note 126, at 210 (Letter XVII) quoted in Goebel, supra note 116, at 89.

841

William Blackstone, COMMENTARIES 27-31 (Lewis ed., 1897), quoted in Parker and Neylon, supra note 17, at 424.

842

See Sherry, supra note 96, at 1130. As Sherry notes, the “natural law tradition was also echoed in the thought of various continental influences on the Americans.” Id. 843

Lobel, supra note 43, at 1075.

844

Id. at 1078-79.

845

Id. at 1079.

846

Id. at 1079-80.

487 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT for many of the American revolutionaries, any government was necessarily limited by natural and fundamental law. 847 These peremptory natural rights were “antecedent and superior to governments and constitutions.” 848 As John Marshall observed in The Venus, 849 “the law of nations is a law founded on the great and immutable principles of equity and natural justice.”850 The international law of nations was promptly held applicable in U.S. courts.851 And, by 1793 a wellrespected Philadelphia lawyer was able to assert that The law of nations, being the common law of the civilized world, may be said, indeed, to be a part of the law of every civilized nation; but it stands on other and higher grounds than municipal customs, statutes, edicts, or ordinances. It is binding on every people and on every government . . . . Every branch of the national administration, each within its district and its particular jurisdiction, is bound to administer it. It defines offences and affixes punishments, and acts everywhere proprio rigore, whenever it is not altered or modified by particular national statutes, or usages not inconsistent with its great and fundamental principles . . . . This universal common law can [p.501] never cease to be the rule of executive and judicial proceedings until mankind shall return to the savage state.852 American revolutionary thought accepted the Enlightenment transformative view that a Constitution simply elucidates delegations of power from the people to a sovereign or legislature; thus, the people retained and reserved in themselves the ultimate source of governmental legitimacy.853 Since fundamental law superseded any governmental power, the one thing the people could not do was to delegate away to a governmental body the authority to breach or disregard the law of nations and natural law. 854 As Lobel phrases, “the people could not, by compact, delegate to the government any authority to deprive themselves of certain natural, inalienable rights.”855 Consequently, any compact or constitution, the very right of the people to make itself authorized by only the law of nations and nature, is limited by fundamental, natural law peremptory norms that cannot be abrogated nor derogated precisely because those rights are secured by fundamental international law, not by mere popular consent.856

2. The Originalist View of the Law of Nations Discarded Chief Justice John Marshall wrote in The Nereide 857 that until Congress passes an act, “the court is bound by the law of nations.”858 Although dicta, that part of Chief Justice Marshall’s opinion was thought by some to 847

Id. at 1081.

848

Id. at 1082.

849

12 U.S. 253 (1814).

850

Id. at 297, quoted in Parker & Neylon, supra note 17, at 421, n.53.

851

See e.g., discussion of early international piracy and prize cases in Lobel, supra note 43, at 1087-90.

852

Peter Duponceau, A DISSERTATION ON THE NATURE AND E XTENT OF THE JURISDICTION OF THE COURTS OF THE UNITED STATES 3 (Phila. 1824), quoted in Henfield’s Case, 11 F. Cas. 1099, 1122 n.6 (C.C.D. Pa. 1793)(No. 6,360), quoted in Lobel, supra note 43, at 1089. 853

See Lobel, supra note 43, at 1090-91.

854

See id. at 1091.

855

Id.

856

Id. at 1091-92.

857

13 U.S. 388 (1815).

858

Id. at 423, quoted in Lobel, supra note 43, at 1102.

488 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT mean that Congress could derogate from fundamental international law at will.859 As late as 1870, the Court still thought the issue of whether Congress could preemptively legislate against the law of nations or whether the law of nations would trump Congressional legislation was still being dodged. 860 In Miller v. United States,861 for example, the Court found the challenged statute conformed with international rules of law and, therefore, the Court [p.502] failed to address whether international law limited congressional war powers.862 Justices Field and Clifford issued a strong dissent in which they would have found that international law does indeed limit congressional legislation and, consequently, they would have found the statute unconstitutional.863 “The law of nations,” they concluded, “is no less binding upon Congress than if the limitations were written into the Constitution.”864 They argued that “the plain reason of this is, that the rules and limitations prescribed by that law were in the contemplation of the parties who framed and the people who adopted the Constitution.”865 However, the courts eventually did reach the question the Miller majority avoided – a tenet of modern American jurisprudence that legislation by “Congress can supersede prior treaties and customary international law.”866 Lobel argues that this deference to home-grown legislation over international fundamental law is undermined and eroded by both current international law and domestic politics and should, therefore, no longer be followed.867 After tracing how modern human rights treaties drafted and adopted in the wake of the judgment at Nuremberg have been disassociated from traditional bilateral treaties, Lobel’s conclusion is that the domestic legal rule which allows Congress to legislate in derogation of a treaty specifically arose from, and is only applicable to, cases concerning bilateral treaties, if the rule is applicable at all.868 “The courts,” Lobel expounds, “at least initially relied in part on the right to denounce [a bilateral] treaty for material breach or other reasons. To the extent that such a right no longer exists with respect to human rights and other multilateral treaties, the reasoning of these decisions has been undermined.”869

3. The Role of Jus Cogens in a Return to Traditional Views of the Law of Nations The developing principle of jus cogens seems to more closely resemble the traditional concept of natural law that the framers had in mind when they considered the relationship between the international law of nations and the Constitution they drafted. As Chief Justice John Jay recognized in Henfield’s [p.503] Case,870 an American citizen who participated on a French vessel to fight and plunder the British and Spanish could be

859

See Lobel, supra note 43, at 1102.

860

Id. at 1103.

861

78 U.S. 268 (1870).

862

Id. at 305-13, discussed in Lobel, supra note 43, at 1103.

863

See Lobel, supra note 43, at 1103.

864

Miller, 78 U.S. 268, 315-16.

865

Id.

866

Lobel, supra note 43, at 1103.

867

Id.

868

Id. at 1147.

869

Id.

870

11 F. Cas. 1099 (C.C.D. Pa. 1793)(No. 6,360).

489 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT indicted by the executive branch, despite the absence of a federal statute prohibiting Henfield’s conduct, because “foreign recruiters are hanged immediately, and very justly, as it is not to be presumed, that their sovereign ordered them to commit the crime; and if he did, they ought not to have obeyed his order, their sovereign having no right to command what is contrary to the law of nature.”871 Other cases, both before and after the revolution, had found similarly.872 The Revolutionary era idea that both the law of nature and the law of nations provide peremptory norms that trump domestic law worked to limit the domestic abuses of sovereigns and legislatures in the same manner that jus cogens seeks to work today. Thus, for at least twenty years of American jurisprudence following the Revolution, courts relied heavily upon international law and endeavored to establish fundamental international law principles that reflected natural law as inviolable and binding upon the fledgling government.873 Yet the departure that the Supreme Court has taken from the early colonial and revolutionary political and philosophical view of the law of nations is incommensurable with the development of international law after two World Wars and the post-Nuremberg Vienna Treaty.874 The doctrine now espoused by the Supreme Court that a statute may overrule a prior treaty875 is irreconcilable with the judgment from Nuremberg that “the very essence of the [Nuremberg] Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state.”876 Thus, in the opinion of Lobel “the dichotomy between international and municipal law cannot withstand the Nuremberg judgment. If individuals have international obligations that transcend national duties, a statute imposing legal duties on individuals in violation of those international obligations must be null and void.”877 Shortly after World War I, scholars were anticipating the development of jus cogens. Professor Sutherland, for example, argued in 1919 that any treaty violative of “the fundamental principles of the law of nations” could not stand, citing as exemplary of such fundamental principles rules that have since been embraced within jus cogens prescription: to prohibit the slave trade, to control [p.504] use of the open sea, or to invade and subjugate another country. 878 By the time Sir Hersch Lauterpacht issued his First Report on the Law of Treaties in 1953, the opinion that an ordre international public superseded treaties was widely received by scholars, the International Law Commission, and numerous governments.879 As a return to the understanding current during the founding of the American Republic, jus cogens can and should guide us towards incorporating internationally recognized human rights into our Constitution.

4. Fourteenth Amendment Privileges or Immunities Clause Incorporation of Jus Cogens Laurence H. Tribe has suggested that although natural rights theory:

871

Id. at 1104, discussed and quoted in Lobel, supra note 43, at 1088-89 & nn.89-91.

872

See e.g., Lobel, supra note 43, at 1088.

873

See Lobel, supra note 43, at 1096.

874

Id. at 1096, 1135-36.

875

Id. at 1096.

876

1 INTERNATIONAL MILITARY TRIBUNAL, TRIAL OF THE GERMAN MAJOR WAR CRIMINALS 171, 223 (1946), discussed and quoted in Lobel, supra note 43, at 1135 & n.315.

877

Lobel, supra note 43, at 1135.

878

See G. Sutherland, CONSTITUTIONAL POWERS 1138.

879

AND

WORLD AFFAIRS 141-43 (1919), discussed in Lobel, supra note 43, at

Id. at 1139-40.

490 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT . . . . Has no place in the article IV privileges and immunities clause, which is best understood as embodying the anti-discrimination principle that the framers deemed to be the basic cement of the union . . . . the development of a vigorous natural rights jurisprudence might make eminent sense with regard to the Fourteenth Amendment’s privileges or immunities clause, which suffered an unfortunate and unnecessary demise soon after its birth.880 Numerous scholars have picked up Tribe’s thread in attempts to limit the substantive retreat that the Supreme Court has begun to take from the Fourteenth Amendment. 881 But rather than simply reassign the somewhat constitutionally [p.505] suspect work of substantive due process to the Privileges or Immunities Clause, it seems more logical to recognize that the Privileges or Immunities Clause was intended to embrace the peremptory principals of law of nations. As currently articulated by the concept of jus cogens international human rights law, these peremptory principals of the law of nations arguably emanate from the Declaration of Independence’s reliance on the “Laws of Nature” to ensure self-evident truths and the Ninth Amendment’s reservation of unwritten, unenumerated rights to the people.882 In order to revitalize and resurrect the Privileges or Immunities Clause, one must first dispense with the jurisprudential onus of the Slaughter House Cases.

IV. THE DEMISE OF THE PRIVILEGES OR IMMUNITIES CLAUSE Invitis nubibus, “in spite of clouds.” Motto upon the crest of Edward III. The Slaughter-House Cases883 gutted the Privileges or Immunities Clause of the Fourteenth Amendment, essentially making it a dead letter. Since the Slaughter-House Cases, the Privileges or Immunities Clause continues to be read by the Court to secure only the most narrow range of political rights against infringement by the federal government. Consequently, the establishment of civil rights have been left in the hands of each individual state to secure, or disregard, as each state sees fit. Some understanding of the historical context of the Reconstruction Amendments and of prior Article IV jurisprudence concerning its Privileges and Immunities Clause is necessary to understand the mess Chief Justice Miller made of the Privileges or Immunities Clause in the Slaughter-House Cases. This Part of the Note first lays out the historical context of the Reconstructive Amendments as a whole and then turns to a discussion of Corfield v. Coryell,884 the main case that had interpreted the Privileges and Immunities Clause of Article IV at the time the Slaughter-House Cases were decided. Finally, this Part dismantles and deconstructs Chief Justice Miller’s majority Slaughter-House opinion.

880

Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW 535 n.23 (2d ed. 1988). The demise of the Privileges or Immunities Clause of the Fourteenth Amendment was achieved by the Supreme Court in the Slaughter-House Cases. See 83 U.S. 36 (1873) (discussed at length infra at part IV(C). 881

See e.g., Chester James Antieau, THE INTENDED SIGNIFICANCE OF THE FOURTEENTH AMENDMENT (1997); Black, Supra Note 96; Edwin S. Corwin, THE CONSTITUTION AND WHAT IT MEANS TODAY (Princeton, 1974); John Hart Ely, DEMOCRACY AND DISTRUST 22-30 (1980); Daniel Farber and Suzanne Sherry, A HISTORY OF THE AMERICAN CONSTITUTION (1990); William E. Nelson, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); Richard L. Aynes, CONSTRICTING THE LAW OF FREEDOM: JUSTICE MILLER, THE FOURTEENTH AMENDMENT, AND THE SLAUGHTER-HOUSE CASES, 70 Chi.-Kent L. Rev. 627 (1994); Richard L. Aynes, ON MISREADING JOHN BINGHAM AND THE FOURTEENTH AMENDMENT, 103 Yale L.J. 57 (1993); John Harrison, RECONSTRUCTING THE PRIVILEGES OR IMMUNITIES CLAUSE, 101 Yale L.J. 1385 (1992). 882

See Black, supra note 96.

883

83 U.S. 36 (1873).

884

6 Fed.Cas. 546 (C.C. Pa. 1823).

491 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT [p.506]

A. The Historical Context of the Reconstruction Amendments The historical context from which the Slaughter-House Cases885 arose, and within which Chief Justice Miller unforgivingly decided them, is important if one is to make some sense of his majority opinion. Chief Justice Miller decided for the majority that only those privileges and immunities “which owe their existence to the Federal government, its national character, its Constitution, or its laws” were embraced by the Privileges or Immunities Clause of the Fourteenth Amendment.886

1. The Thirteenth Amendment, the Black Codes, and the Civil Rights Act of 1866 As a response to the passage of the Thirteenth Amendment887 in 1865, grudgingly conditional for the southern states’ readmittance into the reconstructed union, the southern states began to pass what have become known as the “black codes.”888 The black codes sought to re-establish slavery, as near they could, by repressing the freedom of emancipated African-Americans; in essence setting aside African-Americans in the south as a separate caste of [p.507] citizens subject to specific regulations and restraints.889 The black codes did afford legal recognition to existing marriages and permitted African-American testimony in cases involving AfricanAmericans, and in some states to all cases; they allowed African-Americans to hold property; and they allowed African-Americans to sue and be sued.890 However, the black codes denied African-Americans, in Mississippi for example, the right to own farm lands and, in South Carolina, city lots; and, in a number of states, denied AfricanAmericans the right to bear arms without a special license.891 Punishment followed violation of the regulations and forced any African-American who failed to adhere to the restrictions into annual labor contracts; dependent children were required to enter into apprenticeships that reserved the right in masters to corporally punish; and vagrant African-Americans were subject to fines and, if

885

The Slaughter-House Cases, 83 U.S. 36, 21 L. Ed. 394 (1873) (refusing to invalidate a Louisiana statute that required New Orleans’ butchers to slaughter their meats only within a slaughtering house maintained, by one corporation to which the local butchers had to pay fees for the privilege of slaughtering within the corporations premises, outside a thirty-five mile circle around the city).

886

Id. at 78. See also CORWIN, supra note 168, at 386 (“‘The privileges or immunities of citizens of the United States’ were held in the famous Slaughter-House Cases, decided soon after the Fourteenth Amendment was added to the constitution, to comprise only those privileges and immunities which the Constitution, the laws, and the treaties of the United States confer, such as the right to engage in interstate and foreign commerce, the right to appeal in proper cases to national courts, the right to protection abroad, etc.; but not ‘the fundamental rights,’ which were said to still adhere exclusively to State citizenship, by virtue of Justice Washington’s reading of Article IV in Corfield.”) 887

U.S. CONST. amend. XIII (1865) (“Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.”) 888

Perhaps the passage of the “black codes” should be explained less as a responsive knee jerk to an order from the North, than as an Eloi-ish fear that the newly unenthralled Morlocks, so long just beneath the surface, might find themselves now a bit hungry for more than a promised but never delivered forty acres and a mule. See H.G. Wells, THE TIME MACHINE (1895). 889

George Brown Tindall and David E. Shi, AMERICA: A NARRATIVE HISTORY 703 (3d ed. 1984).

890

Id. at 703-04.

891

Id.

492 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT unable to pay, sold into private servitude.892 By the passage of black codes, the southern states rendered impotent any hoped for effect of the Thirteenth Amendment. The Congressional response to the oppressive black codes of the southern states was to pass the Civil Rights Act of 1866.893 Overriding President Johnson’s fervent veto, 894 the Civil Rights Act of 1866 was enacted under the Thirteenth Amendment’s implementation clause and announced that “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed” were citizens and were to be afforded “full and equal benefit of all laws,”895 including the same rights as “enjoyed by white citizens.”896 Under the rubric of rights “enjoyed by white citizens” that now “all persons born” on American soil would also enjoy were couched the rights “to give evidence in court, sue and be sued, to make and enforce contracts, and to buy, sell, inherit, and lease property.”897 Debate – following President Johnson’s line that the Civil Rights Act of 1866, as an exercise of power pursuant to the Thirteenth Amendment’s implementation clause, was beyond the scope of acceptable [p.508] congressional power – ensued over the constitutionality of the Civil Rights Act of 1866.898 In an effort to quell any concern over the constitutionality of the Civil Rights Act of 1866, Congress passed the Fourteenth Amendment in June of 1866, ratified by July of 1868.899

2. The Fourteenth Amendment Section one of the Fourteenth Amendment is discussed at length in its appropriate place in this Note; for now it is sufficient to note that this Section has engendered significant interpretive trouble since it’s inception. Nonetheless, under the most benign of readings, the first section articulates proscriptions on state governments, enforceable, through the fifth section, by the federal Congress. The second section of the Fourteenth Amendment provides for reapportionment of representation, curing the defect of counting only “three fifths of all other Persons” under the apportionment scheme of Article I,900 and providing a penalty, should any state see fit to still deny the right to vote to any male citizen of at least twenty-one years of age, by reducing the basis of representation in the proportion that the number of male citizens denied the right to vote bear to the whole number of male citizens of twenty-one years of age in that state.901 The third section prescribes eligibility for public office to only those who did not break an oath to uphold the Constitution.902 And the fourth section places beyond question the validity of the public debt incurred by the 892

Id. at 704.

893

See CIVIL RIGHTS ACT OF 1866, 14 Stat. 27 (recodified at 42 U.S.C.A. § 1981 (1994)).

894

Johnson believed the Civil Rights Act of 1866 exceeded any previous exercise of congressional, federal power and would “foment discord among the races.” Tindall & Shi, supra note 176, at 707. 895

Tindall & Shi, supra note 176, at 706.

896

Ronald D. Rotunda & John E. Nowak, 3 Treatise ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE, 524 (2d ed. 1992); CIVIL RIGHTS ACT OF 1866, 14 Stat. 27 (recodified at § 1981 (1994)).

897

Id.

898

Tindall & Shi, supra note 176, at 707.

899

Tindall & Shi, supra note 176, at 707; Rotunda & Nowak, supra note 183, at 524.

900

§ 19.1, at

U.S. CONST. art. I, § 2, cl. 3 (“Representatives and direct Taxes shall be apportioned among the several States which may be includeed within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.”) 901

U.S. CONST. amend. XIV, § 2 (1868).

902

U.S. CONST. amend. XIV, § 3 (1868).

493 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT Union during the Civil War as the public debt of the U.S. and ensured that the debt incurred by the Confederate states would go unrecognized. 903 The Fourteenth Amendment, read as a whole, is an attempt to remedy the then obvious deficiencies of the original constitutional separation of powers; providing that Congress shall have the power to enforce certain prescriptions against the states.

[p.509]

3. The Civil Rights Act of 1870 and the Fifteenth Amendment In 1870 Congress further supported the Reconstructive effort by securing the ratification of the Fifteenth Amendment.904 In response to several lower courts that found the Civil Rights Act of 1866 unconstitutional, 905 Congress reenacted the Civil Rights Act (now of 1870) and other civil rights legislation under the enforcement clause of the Fourteenth Amendment.906 Further prescriptive legislation followed. 907 Argued before the U.S. Supreme Court for three days, commencing on February 3, 1873, the Slaughter-House Cases, an amalgamation of three cases brought by the Butcher’s Benevolent Association of New Orleans and by various other individual butchers against the Crescent City Live-Stock Landing and Slaughter-House Company and against the State of Louisiana, were decided on April 14, 1873.908

B. Article IV Privileges and Immunities: Corfield v. Coryell Justice Bushrod Washington, riding circuit in 1823, struggled to define and impart substantive meaning to the Privileges and Immunities clause of Article IV of the Constitution. 909 Turning to the question of whether the challenged governmental act infringed the Privileges and Immunities Clause of [p.510] Article IV, Justice Washington felt “no hesitation” in asserting that the privileges and immunities spoken of in Article IV were, “in their very nature, fundamental [and] belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.”910 903

U.S. CONST. amend. XIV, § 4 (1868).

904

U.S. CONST. amend XV (1870) (“Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation.”) 905

People v. Brady, 40 Cal. 198 (1870), cited in Rotunda & Nowak, supra note 183, at 524 n.3.

906

16 Stat. 114; see also § 6 of the Civil Rights Act of 1870, 16 Stat. 190, now codified at 42 U.S.C.A. § 241; see generally United States v. Williams, 341 U.S. 70, 73-82, 95 L. Ed. 758, 71 S. Ct. 581, 582-87 (1951) (Frankfurter, J.); Williams, 341 U.S. at 83-84, (appendix to the opinion of Frankfurter J.). Williams is cited generally in Rotunda & Nowak. See Rotunda & Nowak, supra note 183, at 524 n.5. 907

Rotunda & Nowak, supra note 183, at 960 & n.6, citing to the Ku Klux Klan Act, 17 Stat. 13, now codified at 42 U.S.C.A. §§ 1983, 1985(3); Civil Rights Act of 1875, 18 Stat. 335. Modern codifications of Reconstructive legislation appear at 42 U.S.C.A. § 1981 (equal rights under the law), § 1982 (civil action for deprivation of rights), § 1985(3) (depriving person of rights or privileges); 18 U.S.C.A. § 241 (conspiracy against rights of citizens), § 242 (deprivation of rights under color of law); and 28 U.S.C. § 1443 (jurisdiction of Civil Rights Cases). See also 3 Rotunda & Nowak, TREATISE ON CONSTITUTIONAL RIGHTS: SUBSTANCE AND PROCEDURE §§ 19.1-19.39 (on § 1983 of tit. 42). 908

The Slaughter-House Cases, 83 U.S. 36, 21 L. Ed. 394 (1872).

909

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S. CONST. art. IV, § 2, cl. 1. 910

Corfield v. Coryell, 6 Fed.Cas. 546, 551 (C.C. Pa. 1823).

494 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT Justice Washington’s contemplation of the privileges and immunities of citizens in the several states can be read to include natural and fundamental human rights inherent to people, regardless of any “citizenship” conferred, or not conferred, by a government. Justice Washington commenced a shopping list of what privileges may be said to be “fundamental,”911 but offered, the caveat that “what these fundamental principals are, it would perhaps be more tedious than difficult to enumerate.”912 Thus, he remained careful to neither foreclose nor circumscribe the limits of his conception of “fundamental” rights. He concluded that the privileges he listed “may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental.”913 Consequently, Justice Washington maintained that: These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) “the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.”914 From Justice Washington’s reluctance to engage in a task he rhetorically presents as tedious,915 the Privileges and Immunities Clause emerges from Article IV of the Constitution to embrace fundamental rights that remain and that adhere to each of us, regardless of citizenship conferred by any government. Much like the peremptory norms of jus cogens, the particular privileges and immunities, such as the right to travel interstate, that arise from Article IV function as a federal citizenship trump to any infringement by a state. The consequence, for Justice Washington, is that the Privileges and Immunities Clause of Article IV [p.511] ensures that a state not infringe the constitutionally secured fundamental rights of a citizen of some other state arbitrarily beyond whatever infringements that the infringing state imposes upon its own citizens. This, at least, is the theory that has gained currency with the Court; the Privileges and Immunities Clause of Article IV simply serves to prohibit any state to arbitrarily discriminate against citizens of another state in favor of its own citizens.916 Indeed, as the recently handed down case of Lunding v. New York Tax Appeals Tribunal917 reaffirmed, the purpose of the 911

Including, amongst others, “the enjoyment of life and liberty.” Id.

912

Id.

913

Id. at 552.

914

Id. at 552 (emphasis added).

915

But which the Supreme Court has since “tediously” tried to demarcate under “substantive” due process.

916

See e.g., Corwin, supra note 168, at 208. Three other theories of the Privileges and Immunities Clause have, at various times, been proffered; yet the Court has rejected each. One would liken the Privileges and Immunities Clause to an equal protection guarantee and function to restrict the power of the national government by ensuring that the citizens of each state were not variously discriminated against by Congress. But, primarily because of its early espousal as a rationale for supporting the result of the Dred Scott case – which found that a Virginian slave by birth lacked standing, because he lacked citizenship, to claim that his purchase of freedom while residing in a free state made him free under the Missouri Compromise –, this rationale was never accepted by the Court. A second theory suggested that the Clause ensured that when a citizen of one state was in another state, the privileges and immunities granted by the latter state to its own citizens would apply to the visiting citizen from another state. In City of Detroit v. Osborne, the Court rejected this view. City of Detroit, 135 U.S. 492, 34 L. Ed. 260 (1890). Lastly, the third theory would have held the Clause to guarantee a citizen of a state that his home state privileges and immunities would never be infringed by any state in which that citizen traveled, in essence allowing a citizen to “carry with him his rights of State citizenship throughout the Union, without embarrassment by State lines.” Corwin, supra note 168, at 208. A view not only repetitious of the Full Faith and Credit Clause, but also specifically rejected by the Court in McKane v. Durston. See McKane, 153 U.S. 684, 38 L. Ed. 867 (1894); see also Corwin, supra note 168, at 208. 917

118 S. Ct. 766, 139 L. Ed.2d 717 (1998).

495 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT Privileges and Immunities Clause of Article IV “is to ‘strongly . . . constitute the citizens of the United States one people,’ by ‘placing the citizens of each State upon the same footing with the citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.’ “918 [p.512]

C. The Slaughter-House Cases 1. The Slaughter House Cases: Historical Prelude The state legislature of Louisiana, in 1869, enacted “An Act to Protect the Health of the City of New Orleans, to Locate the Stock-landings and Slaughter-houses, and to Incorporate the Crescent City Live-Stock Landing and Slaughter-House Company.”919 In the first four sections of the statute, the Louisiana legislature: prohibited the landing or slaughtering of meat intended for consumption within the city of New Orleans; forbade the continued existence of any established, or the future establishment of, any slaughter-houses except by the Crescent City Stock-Landing and Slaughter-House Company; established penalties for violation of the prohibitions; designated the select individuals who would comprise the Crescent City Company; and, authorized the Company to establish at least one grand slaughter-house capable of slaughtering five hundred animals a day. 920 The statute also, as paraphrased by Chief Justice Miller, “declared that the company . . . shall have the sole and exclusive privilege of conducting and carrying on the live-stock landing and slaughter-house business” and, furthermore, that “all such animals shall be landed at the stock landing and slaughtered at the slaughterhouses of the company, and nowhere else,” suitable penalties enforcing, and prices fixed according to the dictates of the statute.921 The fifth section of the statute ordered the closure of all other stock-landings and slaughterhouses within three months for an area that comprised a thirty-five mile circle around New Orleans.922 Naturally, the butchers in and around New Orleans were unpleased that their trade – many thought their calling – had been usurped by the Crescent City Company so monopolistically favored by the Louisiana legislature. Local butchers, consequently, challenged the statute and argued: (1) the statute created an involuntary servitude, (2) the statute abridged the butchers’ privileges or immunities as citizens of the U.S., (3) the statute denied the butchers equal protection of the laws, and (4) the statute deprived the butchers of their property in the toil of their labor, trade, or calling.923 The butchers’ first argument was couched as a violation of the Thirteenth Amendment; the latter three they claimed were all violative of the first section of Fourteenth Amendment.924

918

Id. at 728, quoting Paul v. Virginia, 75 U.S. 168, 180, 19 L. Ed. 357 (1869). The Court also reaffirmed the standard set down in Toomer v. Witsell, that the Privileges and Immunities Clause prohibits “discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States. But it does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it. Thus the inquiry in each case must be concerned with whether such reasons do exist and whether the degree of discrimination bears a close relationship to them. The inquiry must also, of course, be conducted with due regard for the principle that the States should have considerable leeway in analyzing local evils and in prescribing appropriate cures.” Toomer, 334 U.S. 385, 396, 92 L. Ed. 1460 (1948) quoted in Lunding v. NY Tax Appeals Tribunal, 139 L. Ed.2d 717, 729. 919

The Slaughter-House Cases, 21 L. Ed., 394, 403 (1872).

920

Id.

921

Id.

922

Id.

923

Id.

924

Id.

496 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT [p.513] The petitioner’s brief for the butchers traced the historical origins of the phrase “privileges and immunities” to Roman law. 925 In Roman law the phrase described certain classes of rights in the form either of a privilegium affirmativum, which comprised legislative preference to some but not others, or of an immunitas, a privilegium negativum which exempted some from certain duties or services to which others remained subjugated.926 As developed through English common law, the nobility, the clergy, and the people were all granted various privileges and immunities through charters and through custom.927 As used in Article IV of the Articles of Confederation and retained in Article IV Section Two of the Constitution, the privileges and immunities secured by American law are “not . . . political but civil rights,” such as the “protection of life, personal freedom, property, religion, [and] reputation.”928 The Fourteenth Amendment, argued the butchers, sought to bind the states, as political organizations, to the accomplishment of the same ends as the federal government; namely, respecting all citizens alike.929 Thus, the Privileges or Immunities clause of the Fourteenth Amendment simply bound the states to the strictures of the Privileges and Immunities Clause of Article IV. 930 “No citizen,” argued the butchers, “of the United States may be abridged in his privileges or immunities; he must be secured from arbitrary legislation over life, liberty and property; he must not be denied equal protection under the law . . . . Thus, union, justice, domestic tranquility and liberty may be attained, for the existing generation and their posterity.”931 Consequently, for the butchers, the conclusion was “manifest”: the Privileges or Immunities Clause of the Fourteenth Amendment functioned: to establish through the whole jurisdiction of the United States one people, and that every member of the Empire shall understand and appreciate the constitutional fact, that his privileges and immunities cannot be abridged by state authority; that state laws must be so framed as to secure life, liberty, property, from arbitrary violation, and protection of law shall be secured to all. Thus, as the great personal rights of each and every person were established and guarded, a reasonable [p.514] confidence that there would be good government might seem to be justified. 932 Chief Justice Miller disagreed, as did T.J. Durant and M.H. Carpenter, attorneys for the defendant Company and the state of Louisiana. The defendants, hoping perhaps to alarm the court, lobbied against giving the clause a broad reading, presented by them as a reading that “would prohibit any state from abridging any existing privileges of any citizens of the United States, or from enforcing any law already enacted which abridges any privileges or immunities of citizens, [and would] . . . . repeal . . . all laws which abridge privileges or immunities of citizens.”933

925

Id. at 397 (John A. Campbell, for plaintiffs in error).

926

Id.

927

Id.

928

Id.

929

Id.

930

Id.

931

Id.

932

Id. at 398 (John A. Campbell for plaintiffs in error).

933

Id. at 402. Thus, a broad reading of the clause would: repeal all licensing laws imposed upon particular employers; repeal all regulatory laws of dangerous or offensive employments; repeal all restraining laws of the manufacture or sale of liquor and gambling; repeal all laws observing the “Lord’ day” that prohibited labor on Sundays; repeal all regulatory laws that limited the number of employment hours of children, women, or men in particular occupations; repeal all charters and laws

497 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT Rather, for the defendants, “the true method of constitutional interpretation is [] not to take a provision from its connection and consider it by itself alone, but to consider it with reference to all other provisions upon the same or kindred subjects, and to the state of things in which it had its origin.”934 Thus, such a literal and broad reading of the clause should be avoided in favor of a narrow reading that would limit the privileges or immunities recognized by the Fourteenth Amendment to only those of interstate travel; of free entrance to, exit from, and passage through a state; of state citizenship upon residence; and, of protection of laws affecting personal liberty.935 While acknowledging that their source for this list was the enumeration Justice Washington had given to the Privileges and Immunities Clause of Article IV of the Constitution, the defendants were arguing for a limitation of the full the enumeration of rights Justice Washington had found embraced by the phrase “privileges and immunities.”936 Consequently, the defendants’ gloss of Corfield provided the support for them to also suggest that “there is no reason for giving any more extensive signification to this phrase, as used in the Amendment, than was given to it as used in the original Constitution.”937 The only purpose the defendants saw [p.515] in the Fourteenth Amendment, and particularly of the Privileges or Immunities Clause, “was to assure to all citizens and persons the same rights enjoyed by white citizens and persons.”938 Amidst the maelstrom of debate that surrounded Reconstruction legislation, black codes, and amendment of the Constitution, the Supreme Court sensed an urgency towards the resolution of the Slaughter-House Cases that prompted them to take up the Slaughter-House Cases out of their order on the docket and hear argument in January of 1872. Since one justice was then absent and the Court was equally divided 939 upon the proper resolution of the butchers’ claims, the Court, “impressed with the gravity of the questions raised” at argument in January, heard re-argument in February of 1873 before a full bench.940 Beneath these pressures, 941 Chief Justice Miller handed down his opinion for five members of the court. 942

2. The Slaughter-House Cases: Chief Justice Miller’s Majority Opinion After a cursory review of the Thirteenth, Fourteenth, and Fifteenth Amendments, Chief Justice Miller found himself in agreement with counsel for the defendants Crescent City Company and the State of Louisiana. Although finding that the protections ensured under the Reconstruction Amendments would adhere even “though the party interested may not be of African descent” – as the butchers here seem not to have been – Chief Justice Miller agreed that the proper interpretive rubric made it “necessary to look to the purpose which . . . was the

that granted particular privileges to particular citizens; prohibit any state from enacting a law to ensure the liberty of its citizens to any of the above; and shift what is essentially a legislative matter – regulating particular occupations – to the judiciary. See id. 934

Id. at 402 (T.J. Durant and M.H. Carpenter, for defendants in error).

935

Id.

936

Compare Corfield v. Coryell, 6 Fed. Cas. 546, 551-52, (C.C. Pa. 1823) (quoted infra n.261).

937

The Slaughter-House Cases, 21 L. Ed. 394, 402 (1872).

938

Id. at 402.

939

Id. at 402 (Miller, C.J.) (“At that hearing one of the justices was absent, and it was found, on consultation, that there was a diversity of views among those who were present”). 940

Id. at 402-03 (Miller, C.J.).

941

Id. at 402 (Miller, C.J.: “On account of the importance of the questions involved in these cases . . . .”; “impressed with the gravity of the questions raised . . .”). 942

For a discussion of the various and sundry motivations of the four Justices signing onto Miller’s majority opinion see Aynes, CONSTRICTING THE LAW OF FREEDOM, supra note 168, at 655-71.

498 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT pervading spirit” of the Reconstruction Amendments.943 Chief Justice Miller saw the Reconstruction Amendments as designed to remedy the specific evil of slavery.944 Despite Chief Justice Miller’s acknowledgement that despite such a pervading purpose and spirit to solely remedy the evil of slavery, that the only Amendment to even mention “race” was the Fifteenth,945 he [p.516] nonetheless molded his opinion around the fixed notion, as the defendants Company and the state of Louisiana would have him do, that each of Reconstruction Amendments were “addressed to the grievances of [the emancipated] race, and designed to remedy them as the fifteenth.”946

(a) The Court’s Rejection of the Thirteenth Amendment Argument Chief Justice Miller limited the Thirteenth Amendment’s usage of the word “servitude” to mean nothing less than slavery. 947 Servitude, as popularly understood, encompassed more than did the word slavery. 948 The Amendment’s modifying use of “involuntary” limited the scope of the servitude sought to be prohibited to those that essentially amounted to slavery. 949 Chief Justice Miller read “involuntary” as applicable only to human beings and, therefore, involuntary servitude meant personal servitude.950 Thus, as the butchers were butchers by choice, their indenture to the Crescent City Company did not amount to an involuntary servitude within the meaning of the Fourteenth Amendment. Consequently, Chief Justice Miller thought that a “microscopic search” of the Thirteenth Amendment “to find in it a reference to [mere] servitude, which may have been attached to property in certain localities, required an effort, to say the least of it;” and that was “all” he thought “necessary to say on the application of [the Thirteenth Amendment] to the statute of Louisiana now under consideration.”951

(b) The Court’s Rejection of the Fourteenth Amendment “Property” Argument The butchers’ property argument – that they possessed a property right to ply their trade and to practice their calling, therefore, the statute denied them their property without due process of law – was even more blithely dismissed.952 Analogizing the Fourteenth Amendment’s Due Process Clause to the Due Process [p.517] Clause of the Fifth Amendment,953 Chief Justice Miller found that the only difference between the two was that the former made applicable to the states the thought beneath the latter.954 Thus, since Chief Justice Miller failed to find any 943

The Slaughter-House Cases, 21 L. Ed. 394, 407 (1872) (Miller, C.J.).

944

Id.

945

Id. at 407 (Miller, C.J.: “It is true that only the 15th Amendment, in terms, mentions the negro by speaking of his color and his slavery”); but cf. U.S. CONST. amend. XV: “The right of citizens of the United States to vote shall not be denied or abridged . . . on account of race, color, or previous condition of servitude.” 946

The Slaughter-House Cases, 21 L. Ed. at 407 (Miller, C.J.).

947

Id. at 406 (Miller, C.J.).

948

Id.

949

Id.

950

Id.

951

Id. at 406 (Miller, C.J.).

952

Id. at 410 (Miller, C.J.).

953

U.S. CONST. amend. V (1791) (“No person shall . . . be deprived of life, liberty, or property, without due process of law.”) 954

The Slaughter-House Cases, 21 L. Ed. 394, 410 (1872) (Miller, C.J.). Oddly and incongruously, Chief Justice Miller was willing to read the Due Process Clause of the Fourteenth Amendment as synonymous with the Due Process Clause of the Fifth Amendment; yet, he remained unwilling to read the Privileges or Immunities Clause of the Fourteenth Amendment as synonymous with the Privileges and Immunities Clause of Article IV, indeed he read the latter two as antonyms. Id.

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EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT construction of the Fifth Amendment’s Due Process Clause that would find the “restraint imposed by the state of Louisiana upon the exercise of their trade by the butchers of New Orleans . . . to be a deprivation of property within the meaning of “due process of law, he thought it equally indisputable that the Due Process Clause of the Fourteenth Amendment could not be stretched to encompass the claimed deprivation of the butchers.955

(c) The Court’s Rejection of the Fourteenth Amendment Equal Protection Argument The butchers’ equal protection argument – that the Louisiana statute made it more difficult for them to ply their trade than the nineteen incorporated Company members and, thus, denied the butchers equal protection of the laws – received equally scant attention by Chief Justice Miller.956 Since the equal protection clause of the Fourteenth Amendment was “so clearly a provision for that race [African-Americans] and that emergency [the black code response to the Thirteenth Amendment] . . . a strong case would be necessary for its application to any other.”957

(d) The Court’s rejection of the Fourteenth Amendment Privileges or Immunities argument A good portion of Chief Justice Miller’s opinion was devoted to the Privileges or Immunities Clause of the Fourteenth Amendment to defeat the butchers’ last remaining argument – that they enjoyed a privilege, as citizens of the U.S., to ply their trade and to make a living according to their calling, and this [p.518] privilege was abridged, in violation of the Fourteenth Amendment, by the Louisiana statutory creation of the Crescent City Company monopoly on landing and slaughtering in New Orleans.958 The starting point is, of course, the text of the first section of the Fourteenth Amendment itself: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.959 Chief Justice Miller found the Privileges or Immunities Clause of the Fourteenth Amendment to be rather unambiguous: preliminarily he observed that the clause “put[] at rest both the questions” of whether Dred-Scott was over turned by the Reconstruction Amendments, and the question of whether persons may be citizens of the U.S. without regard to their citizenship granted by a particular state.960 Thus, the Fourteenth Amendment’s “main purpose was to establish the citizenship of the negro can admit no doubt,” Chief Justice Miller declared.961 Chief Justice Miller read the first section of the Fourteenth Amendment to establish national citizenship by birth or naturalization with a jurisdictional limitation that would exclude the children of citizens or subjects of foreign states born in the U.S.962 State citizenship, on the other hand, additionally required residence within a state.963 Thus, the Amendment establishes a distinction between national citizenship and state citizenship. 964 955

Id.

956

Id.

957

Id.

958

Id. at 398 (John A. Campbell for plaintiff’s in error).

959

U.S. CONST. amend. XIV, § 1.

960

The Slaughter-House Cases, 21 L. Ed. 394, 407 (1872) (Miller, C.J.).

961

Id. at 407-08 (Miller, C.J.).

962

Id. at 408.

963

Id.

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EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT “There is a citizenship of the United States and a citizenship of a state,” Chief Justice Miller reasoned, “which are distinct from each other and which depend upon different characteristics or circumstances in the individual.”965 Chief Justice Miller placed “great weight” on this distinction because the Privileges or Immunities Clause of the second sentence of the Fourteenth Amendment only adheres to national citizens, not state citizens.966 Moreover, the butchers’ argument hinged, in Chief Justice Miller’s eyes, upon assuming that the national citizenship and state citizenship were coextensive and, consequently, that the privileges and immunities that adhered to state citizenship under Article IV [p.519] were those meant to adhere to national citizenship under the Fourteenth Amendment.967 Chief Justice Miller found the butchers’ argument unpersuasive for he thought it “too clear for argument” that the change in phraseology between the first sentence – which recognized “citizens . . . of the State wherein they reside” – and the second sentence – which makes no mention of citizens of a state – was intended with some “understanding and with a purpose.”968 The purpose Chief Justice Miller read into the change of phraseology was that the Amendment secured only the privileges or immunities of national citizenship and left the security of the privileges and immunities of state citizenship where they had previously been protected, namely under Article IV of the Constitution.969 Chief Justice Miller then turned to tracing the occurrence of the phrase “privileges and immunities” through the Fourth Article of Confederation to Article IV of the Constitution. In the Fourth Article of Confederation the phrase adheres to “citizens in the several States.”970 The phrase was retained in section two of Article IV of the Constitution: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”971 Chief Justice Miller preliminarily concluded that the privileges and immunities spoken of by both Articles were “intended to be the same in each.”972 Fortunately, the Fourth Article of Confederation enumerates several of the privileges and immunities it sought to protect,973 while Justice

964

Id.

965

Id.

966

Id.

967

Id.

968

Id.

969

Id. at 408-09 (Miller, C.J.).

970

ARTS. OF CONFED., at art. IV.

971

U.S. CONST. at art. IV § 2 cl. 1 (emphasis added).

972

The Slaughter-House Cases, 21 L. Ed. 394, 408 (1872).

973

ARTS. OF CONFED., at art. IV. (“The better to secure and perpetuate the mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, provided that such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State of which the owner is an inhabitant; provide also that no imposition, duties or restriction shall be laid by any State, on the property of the United States, or either of them.”) Chief Justice Miller read the conjunctive “; and” to mean “such as,” and as a mere reiteration of what specific privileges and immunities the preceding clause spoke of. However, a more logical reading of the “and” is for it to plainly mean “also” or “in addition to.” Thus, the specific “civil rights” spoken of are of particular and enumerated importance to the maintenance of the states as a Union. However, the privileges and immunities of free citizens are left unenumerated but are deemed no less important to the maintenance of the Union. See id.

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EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT Washington had also enumerated [p.520] those privileges and immunities that Article IV similarly protects.974 Both gave Chief Justice Miller “some general idea of the class of civil rights meant by the phrase.”975 Chief Justice Miller, glossing Justice Washington’s Corfield opinion, first misquotes Justice Washington to maintain the proposition his misquote of Article IV established: that the privileges and immunities spoken of adhere to citizens “of” a state, not to citizens “in” a state.976 Furthermore, Chief Justice Miller truncated Justice Washington’s enumeration of the fundamental rights that the Privileges and Immunities Clause protects to merely those of the “general character” of, again purporting to quote Justice Washington, “protection by government, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may prescribe for the general good of the whole.”977 Thus, the Privileges and Immunities Clause of Article IV captured “nearly every civil right for the establishment and protection of which organized government is instituted.”978 But these civil rights are, asserts Chief Justice Miller, spoken of by Justice Washington and “in the constitutional provision he was construing” only “as rights belonging to the individual as a citizen of a state . . . . And they have [p.521] always been held to be the class of rights which the state governments were created to establish and secure.”979 From this premise, Chief Justice Miller argued that the claimed privilege of the butchers – to earn a living – was one of the fundamental rights that the state governments could ensure to its own citizens and was not one of the privileges or immunities of national citizenship.980 As such, a state could “restrain” that privilege, as Justice Washington recognized, “for the general good and welfare,” which is precisely what Louisiana had done in Chief

974

Corfield v. Coryell, 6 Fed. Cas. 546, 551-52 (C.C. Pa. 1823) (“What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old articles of confederation) ‘the better to secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.’”) 975

The Slaughter-House Cases, 21 L. Ed. 394, 408 (1872).

976

Id. at 408.

977

Id. at 408; compare Corfield, 6 Fed. Cas. at 551-52, quoted in note 261, supra.

978

The Slaughter-House Cases, 21 L. Ed. at 408.

979

Id. (emphasis added). One of the confounding logical circularities is that Chief Justice Miller asserts that Justice Miller’s list of rights that are privileges are to be left to the states to secure. One of the rights Justice Washington lists is the privilege to reside in any state a citizen wishes to reside. But the defining characteristic of state citizenship that distinguishes it from nation citizenship is residency. Thus, under Chief Justice Miller’s reading, you are a citizen of the state in which you reside, and a privilege of that citizenship may – if that state so wishes to grant – be the privilege to establish residency in another state. But should you exercise that privilege, you would then become a citizen of another state. 980

Id. at 409.

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EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT Justice Miller’s eyes. 981 Chief Justice Miller refused to acknowledge – as the butchers’ argument would, he thought, have him do – that the purpose of the 14th Amendment, by the simple declaration that no state should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, [was] to transfer the security and protection of all the civil rights which we have mentioned, from the states to the Federal government.982 In conclusion, Chief Justice Miller summarized: Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the states as such, and that they are left to the state governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges and immunities of citizens of the United States which no state can abridge, until some case involving those privileges may make it necessary to do so.983 [p.522] Wary that the criticism would be made that he had excluded all the possible rights that might be deemed privileges or immunities of national citizenship by delegating all those rights enumerated by the Fourth Article of Confederation and articulated by Justice Washington as protected by Article IV of the Constitution, and classified by Chief Justice Miller as “civil rights,” the Chief Justice went on, in dicta, to “venture to suggest some [privileges] which owe their existence to the Federal government, its national character, its Constitution, or its laws.”984 Of these political rights, Chief Justice Miller included: the right to travel to the seat of the national government; the right to petition the government for redress, or to conduct business with it; the right of free access to the sea ports, sub-treasuries, land-offices, and the “courts of justice in the several states;”985 the right to be protected by the national government while abroad or on the high seas; the right to peaceably assemble; the privilege of habeas corpus; the right to use the navigable waters of the U.S., irrespective of state boundaries; the “rights secured to our citizens by treaties with foreign nations; and the right to reside in any state in the Union, as well as the rights secured under the Reconstructive amendments. 986 Since the privilege claimed by the butchers did not fall within this class of political rights, they lost. Oddly enough, no such case “involving those privileges” has yet arisen. The Privileges or Immunities Clause of the Fourteenth Amendment has since lain, long and large as Tityus987 bound in his fetters, upon the

981

Corfield v. Coryell, 6 Fed. Cas. 546, 552 (C.C. Pa. 1823).

982

The Slaughter-House Cases, 21 L. Ed. 394, 409 (1872) (Miller, C.J.).

983

Id.

984

Id.

985

The Chief Justice, highly aware of the difference between “in” and “of,” arguably only had the federal courts located in the several states in mind here; had he the state courts in mind he would have probably opted to say the “courts of the several states.” 986

Slaughter-House Cases, 21 L. Ed. at 409-10.

987

Tityus, when Odysseus saw him in Hades, was stretched over some nine acres of ground, while two vultures tore at his liver. The liver, for the ancient Greeks, was the seat of desire; thus, Tityus’ punishment was appropriate for his violation of Leto. See e.g., THE OXFORD CLASSICAL DICTIONARY 1533 (3rd ed., 1996); see also Homer, ODYSSEY bk. XI ll. 576-81 (Allan Mandelbaum trans., Univ of Claif Press 1990) (“I saw the sone of splendid Gaea, Tityus, stretched on the ground for some six hundred cubits. Two vultures sat, one to each side, and tore his liver; their beaks plunged into his bowls, he could not ward them off; for Tityus had violated Leto, splendid mistress of Zeus, as she was walking through the fields of lovely Panopeus, heading toward Pytho.”

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EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT infernal ground of Chief Justice Miller’s bare majority; the current Court’s originalist bent, doing little more than Tityus’ ravenous vultures furious over their food, ignores the mess Chief Justice Miller made of the Privileges or Immunities Clause out of blind respect to stare decisis and, amongst some members of the current Court, from an almost fanatical devotion to pontificating an historically unsound originalism, as they still adhere to Chief Justice Miller’s creative misreading.

[p.523]

D. Dismantling and Deconstructing the Slaughter-House Cases 1. Reconciling Stare Decisis Stare decisis, while somewhat less entrenched in academic debate than fractious originalism, does have its limitations. In Planned Parenthood v. Casey,988 Justice O’Connor meticulously laid out a version of the doctrine of stare decisis.989 “The obligation to follow precedent begins with necessity,” Justice O’Connor remarked, “and a contrary necessity marks its outer limit.”990 She agreed with Justice Cardozo’s assessment that stare decisis pays tribute to efficiency since “no judicial system could do society’s work” if it ceaselessly worked on a case by case basis.991 Justice O’Connor, consequently, found that “a respect for precedent” is “indispensable” to “the very concept of the rule of law underlaying our own Constitution.”992 On the other hand, a prior ruling “come to be seen so clearly as error” engenders a contrary, limiting necessity on the doctrine of stare decisis.993 The Court is not bound by the doctrine of stare decisis to enforce a clearly erroneous, dated, or illogical decision.994 Thus, especially in the constitutional setting, the doctrine of stare decisis “is not an inexorable command.”995 When the Court reexamines a prior holding, both “prudential and pragmatic considerations” weigh The test is one of consistency to in to the decision whether or not to overrule a prior decision of the Court.996 determine if the prior decision or if overruling that decision would be more consistent with the rule of law.997 The test is also one of assessing and balancing the societal respective costs of letting an erroneous decision stand against overruling a prior decision. 998 Consequently, the Court should discern: whether the erroneous rule has proven intolerable because it is impractical and unworkable; whether the rule has engendered an especial societal or individual reliance that would add inequity to the respective cost of overruling the decision; whether related principles of law have developed to render the prior decision [p.524] outdated and abandoned doctrine; and,

988

505 U.S. 833, 120 L. Ed.2d 674 (1992).

989

Id. at 699-700 (O’Connor, J., plurality joint opinion with J.J. Kennedy and Souter, speaking, in part three, for the Court).

990

Id. at 699.

991

Id at 699-700 citing to Benjamin Cardozo, THE NATURE OF THE JUDICIAL PROCESS 149 (1921).

992

Planned Parenthood v. Casey, 120 L. Ed.2d. 674, 700 (1992).

993

Id.

994

Id.

995

Id., citing to Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-11, 76 L. Ed. 815 (1932) (Brandeis, J., dissenting).

996

Casey, 120 L. Ed.2d. at 700.

997

See id.

998

See id.

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EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT whether societal circumstances and facts have so changed, or come to be perceived so differently, as to render the prior decision unjustifiable in a modern context.999 Justice O’Connor’s factors weigh heavily against continued adherence to the Slaughter-House Cases’ reading of the Privileges or Immunities Clause of the Fourteenth Amendment. Although the practical effect of the Slaughter-House Cases has not, arguably, proven unworkable, this is only because Chief Justice Miller left nothing of the Privileges or Immunities Clause to work with. Instead, the Court felt pressured to create substantive due process to do the work Chief Justice Miller refused to allow the Privileges or Immunities Clause to do. Yet, as substantive due process is recognized by scholars and the Court to be itself logically unworkable, the initial reason for creating substantive due process becomes, by association, implicated. Thus, with the fall of substantive due process so too must fall Chief Justice Miller’s reading of the Privileges or Immunities Clause that prompted the court to turn to the Due Process Clause for constitutional protection of substantive human rights in the first place. In this sense, the fall-out of Chief Justice Miller’s reasoning is indeed itself unworkable. Overruling the Slaughter-House Cases would not “add inequity to the cost of repudiation.”1000 Since Chief Justice Miller left nothing of the Privileges or Immunities Clause, subsequent generations have not come to rely upon his reading in any practical way. The Court, however, clearly has relied heavily upon his abrogation of the privileges or immunities of national citizenship to engender their substantive due process jurisprudence. But again, as the Court comes to disfavor substantive due process, and comes to recognize its wholecloth appearance, that reliance becomes an increasingly tenuous a premise for retaining Chief Justice Miller’s reading of the Privileges or Immunities Clause. Indeed, an argument in favor of overturning the reasoning in the SlaughterHouse Cases is that, should the Rehnquist Court succeed in killing off substantive due process, the Privileges or Immunities Clause will be one of the only harbingers of human rights left in our Constitution. Thus, in abrogating substantive due process, the Court should recognize that so, too, must Chief Justice Miller’s reading be abrogated. [p.525] Chief Justice Miller’s reading of the Privileges or Immunities Clause has lain unused and unexplored for over a century. Under any definition of “abandoned doctrine,” the Slaughter-House Cases would clearly fall within it. The Court has never specifically readdressed the question presented to Chief Justice Miller by the butchers – in part, because to do so would call into question the legitimacy of the whole framework of substantive due process that grew from Chief Justice Miller’s reading of the Privileges or Immunities Clause. Perhaps most persuasive in post-Brown v. Board of Education society, are that the facts upon which Chief Justice Miller relied upon, under a reading of developing history, have “come to be seen so differently, as to have robbed the old rule of significant application or justification.” The Reconstruction Amendments are no longer seen as restricted in scope or application to Chief Justice Miller’s narrow historical sketch of them as merely remedies for antebellum America. And surely they are no longer seen as solely justified by Chief Justice Miller’s “one pervading purpose” beneath them all to merely guarantee “the freedom of the slave race.”1001 Thus, a balance of Justice O’Connor’s stare decisis factors leans heavily in favor of overturning the Slaughter-House Cases.

999

See id. (citations omitted). In the context of Casey, Justice O’Connor opined that the Court still adhered to the “central holding” of Roe v. Wade, because it had not been found unworkable, an entire generation had come to rely upon its holding that liberty encompasses a woman’s capacity to act in society and make reproductive choices, its central holding was not a doctrinal anachronism nor did its holding emerge as irreconcilable with other precedent, and its central holding was not altered by new facts or societal circumstances. Casey, 120 L. Ed.2d at 700-04. Roe v. Wade, 410 U.S. 113 (1973). 1000

Planned Parenthood v. Casey, 120 L. Ed.2d 674, 700 (1992).

1001

Slaughter-House Cases, 21 L. Ed.394, 407 (1872) (Miller, C.J.).

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EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT Chief Justice Rehnquist with Justices Scalia, Thomas, and White dissented from the majority’s “newly minted variation on stare decisis.”1002 For the Casey dissenters, stare decisis did not require retention of any part of Roe v. Wade.1003 Reiterating that stare decisis is not “a universal, inexorable command,” the dissenters thought it the Court’s “duty to reconsider constitutional interpretations that ‘depart from a proper understanding’ of the Constitution.”1004 This duty arises because “constitutional cases are uniquely durable” and because “correction through legislative action, save for constitutional amendment, is impossible.”1005 Consequently, Chief Justice Rehnquist announced: “Our constitutional watch does not cease merely because we have spoken before on an issue; when it becomes clear that a prior constitutional interpretation is unsound we are obliged to reexamine the question.”1006 For the dissenters, the doctrine of stare decisis is not simply limited by the list O’Connor’s joint opinion provides. Rather, clearly erroneous decisions and plain error in reasoning can both provide enough of an impetus to trigger [p.526] what the dissenters feel is the duty of the Supreme Court: to overturn badly, erroneously, and falsely reasoned law. The Slaughter-House Cases stand as the clearest example of the unique durability the dissenters point out enshrouds poorly reasoned Supreme Court constitutional decisions. Clearly, a constitutional decision that rests, as does Chief Justice Miller’s reading of the Privileges or Immunities Clause, upon an historical account which no longer is of any argumentative weight, and upon a different, pre-Brown v. Board of Education, constitutional landscape, and upon blatant rewritings of the constitutional texts and of the precedents relied upon to interpret those constitutional texts, cannot but make it “clear” that the Slaughter-House Cases’ “constitutional interpretation is unsound” and, consequently, according to the Chief Justice and the other Casey dissenters, the Court should find themselves “obliged to reexamine the question.”1007 As the dissenters were so eager to dismantle Roe, perhaps, too, they should be so urged to heed their own words and reasoning to dismantle the Slaughter-House Cases: The authors of the joint opinion, of course, do not squarely contend that Roe v. Wade was a correct application of “reasoned judgment”; merely that it must be followed, because of stare decisis. But in their exhaustive discussion of all the factors that go into the determination of when stare decisis should be observed and when disregarded, they never mention “how wrong was the decision on its face?” Surely, if “the Court’s power lies . . . in its legitimacy, a product of substance and perception,” the “substance” part of the equation demands that plain error be acknowledged and eliminated. Roe was plainly wrong – even on the Court’s methodology of “reasoned judgment,” and even more so (of course) if the proper criteria of text and tradition are applied.”1008 If the Slaughter-House Cases cannot be seen as a “wrong decision on its face,” having actually interpreted a constitutional text that does not exist, it is difficult to explain what would be. Roe was constitutionally wrong, according to the Casey dissenters’ argument, because it was premised upon what has become seen as a faulty scientific and medical schema. If a basis for overturning a Supreme Court constitutional decision is found to exist where the scientific and medical foundations upon which that decision rests are, in time, 1002

Casey, 120 L. Ed.2d at 758 (Rehnquist, C.J., and JJ. Scalia, Thomas, and White, concurring in the judgment in part and dissenting in part).

1003

Id. at 765-66 citing to Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405 (1932).

1004

Casey, 120 L. Ed. 2d 674, 766 (1992) quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 577 (1985). 1005

Casey, 120 L. Ed. 2d at 766.

1006

Id.

1007

Id.

1008

Id. at 784 (Rehnquist, C.J. and J.J. White, Scalia, and Thomas, concurring in the judgment in part and dissenting in part).

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EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT found erroneous, then [p.527] surely a Supreme Court constitutional decision should be overturned where the very constitutional text interpreted is pointed out not to exist in our Constitution.

2. Humoring an Originalist Bent Bench The other bastion of adherence and devotion to the Slaughter-House Cases lies in the originalist outlook several of the current members of the Court espouse. Chief Justice Miller’s opinion is littered with originalist methodology.1009 However, James Landis’ caveat to the originalist is worth keeping in mind: The gravest sins are perpetrated in the name of the intent of the legislature. Judges are rarely willing to admit their role as actual lawgivers, and such admissions as are wrung from their unwilling lips lie in the field of common and not statute law. To condone in these instances the practice of talking in terms of the intent of the legislature, as if the legislature had attributed a particular meaning to certain words, when it is apparent that the intent is that of the judge, is to condone atavistic practices too reminiscent of the medicine man.1010 Justice Scalia adheres to Landis’ caveat. Justice Scalia believes that any interpretation couched as discerning legislative intent ought to be avoided for precisely the gastronomic logic Landis saw beneath the veil of legal reasoning premised upon divining legislative intent. Often, divining “legislative intent” directs the judicial inquiry into the political mechanisms of how and why a statute might have been passed instead of judiciously interpreting the words of the statute themselves. For Justice Scalia, such an inquiry by the judiciary is of a decidedly undemocratic nature and, therefore, invalid under our Constitution.1011 Justice Scalia discusses the case of Church of the Holy Trinity v. United States1012 to illustrate the errors yielded by legislative intent interpretation.1013 As [p.528] Justice Scalia points out, the Holy Trinity court relied upon just about everything but the language of the statute itself to conclude: It is a case where there was presented a definite evil, in view of which the legislature used general terms with the purpose of reaching all phases of that evil, and thereafter, unexpectedly, it is developed that the general language thus employed is broad enough to reach cases and acts which the whole history and life of the country affirm could not have been intentionally legislated against. It is the duty of the courts, under those circumstances, to say that, however broad the language of the statute may be, the act, although within the letter, is not within the intention of the legislature, and therefore cannot be within the statute.1014 Since Justice Scalia would have little trouble dismissing the extrajudicial sources the Holy Trinity Court depended upon, he would have consequently found “that the act was within the letter of the statute, and was 1009

See e.g., Slaughter-House Cases, 21 L. Ed. 394, 410 (1872) (interpreting the Reconstructive Amendments in the light of their history and of their “pervading purpose”). 1010

James M. Landis, A NOTE ON “STATUTORY INTERPRETATION,” 43 Harv. L. Rev. 886, 891 (1930) quoted in Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION 18, (Amy Gutmann ed., 1997).

1011

See Scalia, supra note 297.

1012

Church of the Holy Trinity v. United States, 143 U.S. 457 (1892). The court concluded, in Holy Trinity, that the phrase “to perform labor or service of any kind in the United State[s]” did not bar the emigration of an Englishman who had contracted with a New York City church to be its rector and pastor. The Court reasoned that the language as used in the federal statute sought to make unlawful the importation or migration of aliens who had entered into labor or service contracts or agreements prior to emigrating into the United States was simply limited to manual labor contracts or agreements and, consequently, did not reach the non-manual labor of spiritual guidance. Id.

1013

See Scalia, supra note 297, at 18-21.

1014

Church of the Holy Trinity, 143 U.S. at 472, quoted in Scalia, supra note 297, at 20.

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EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT therefore within the statute: end of case,” in so far, Justice Scalia notes, as the matter of statutory construction was concerned. 1015 Nonetheless, he would have remained concerned about the statute’s constitutionality, though not overly so: It is possible (though I think far from certain) that in its application to ministers the statute was unconstitutional. But holding a provision unconstitutional is quite different from holding that it says what it does not; constitutional doubt may validly be used to affect the interpretation of an ambiguous statute, [citation omitted], but not to rewrite a clear one. 1016 [p.529] Although Justice Scalia remains an originalist, he does not maintain that the originalism he embraces concerns these illegitimate forays into divining “legislative intent,” a process he thinks quite impossible. 1017 Of equal distaste to Justice Scalia as the use of legislative intent as a ground for legal reasoning is the recent fad of turning to legislative history to intuit what the sundry legislators had in mind when they passed a particular piece of legislation, instead of what they actually wrote down, passed through two houses, and had signed by the President. Noting that the use of legislative history only came into vogue in the 1940s, Justice Scalia brings to our attention a concurrence in which Justice Jackson disparaged the majority’s affinity for utilizing legislative history to support their opinion: I should concur in this result more readily if the Court could reach it by analysis of the statute instead of by psychoanalysis of Congress. When we decide from legislative history, including statements of witnesses at hearings, what Congress probably had in mind, we must put ourselves in the place of a majority of Congressmen and act according to the impression we think this history should have made on them. Never having been a Congressman, I am handicapped in that weird endeavor. That process seems to me not interpretation of a statute but creation of a statute.1018 To underscore his point, Justice Scalia notes how a recent brief submitted to the Supreme Court concluded an extensive opening discussion of legislative history by noting with disappointment: “Unfortunately, the legislative debates are not helpful. Thus, we turn to the other guidepost in this difficult area, statutory language.”1019 Such misguided legal argumentation leads Justice Scalia to express his “view that the objective indication of the words, rather than the intent of the legislature, is what constitutes the law leads me, of course, to the conclusion that legislative history should not be used as an authoritative indication of a statute’s meaning.” 1020 Justice Scalia supports his conclusion with Chief Justice Taney’s observation that: In expounding this law, the judgment of the court cannot, in any degree, be influenced by the construction placed upon it by individual members of Congress in the debate which took place [p.530] on its passage, nor by the motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself; and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with

1015

Scalia, supra note 297, at 20 n.22.

1016

Id., citing to United States v. Delaware & Hudson Co., 213 U.S. 366, 407-08 (1909); Moore Ice Cream Co. v. Rose, 289 U.S. 373, 379 (1933). 1017

See Scalia, supra note 297, at 20.

1018

United States v. Public Utils. Comm’n of Cal., 345 U.S. 295, 319 (1953) (Jackson, J., concurring) quoted in Scalia, supra note 297, at 30-31.

1019

Scalia, supra note 297, at 31.

1020

Id. at 29-30.

508 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT the laws upon the same subject, and looking, if necessary, to the public history of the times in which it was passed. 1021 Chief Justice Taney’s comment elucidates that originalism is a fractious enterprise. An originalist position can be broken down into those who emphasize divining: (1) the original meaning of a provision, through contemporary dictionaries, other contemporaneous documents, and tracing the contemporary usage of the provisions words through case law or treatises; or (2) the original intention of the specific drafters of a provision – which may differ from the contemporaneous definition and usage of the words themselves – through study of the provision’s various drafts, proposals, and legislative history, and then current popular debate; or (3) the original understanding and, thus, the intention of those who ratified a provision – which may differ from both the meaning of the words employed in that provision and, too, from the drafters’ intentions – through any recordation (which is often scant) of the debates within the ratifying conventions.1022 As if taking a cue from Chief Justice Taney, Justice Thomas, in United States v. Lopez,1023 recently displayed a devout adherence to the originalist position of the second ilk, scouring contemporary dictionaries and common usage to discern the meaning of the words themselves as used in the Commerce Clause of the Constitution.1024 After pointing out distinctions that Hamilton and the state [p.531] ratification conventions drew between commerce, agriculture, and manufacturing, Justice Thomas concluded that “interjecting a modern sense of commerce into the Constitution generates significant textual and structural problems” which he, for one, wished to avoid and, therefore, he refused to find room within the “Commerce” clause to harbor regulations of firearms in or around our public, governmentally funded, schools.1025 Much of the criticism Justice Scalia levels against Church of the Holy Trinity may, with perhaps even greater force, be leveled against the Slaughter-House Cases. Just as the Holy Trinity Court allowed the influence 1021

Aldridge v. Williams, 44 U.S. 9, 24 (1845) quoted in Scalia, supra note 297, at 30.

1022

For a succinct summary of the various originalist interpretive schema, see THE COMPLETE BILL OF RIGHTS: THE DRAFTS, DEBATES, SOURCES, AND ORIGINS lv-lx (Neil H. Cogan ed., Oxford 1997) (which commences with the somewhat ominous epigraph, culled from Deuteronomy 6:7: “And you shall impress them upon your children”).

1023

United States v. Lopez, 514 U.S. 549, 131 L. Ed.2d 626, 115 S. Ct. 1624 (1997) (striking down the Gun-Free School Zones Act of 1990 under commerce clause analysis) (Thomas, J. concurring).

1024

Id. at 655 (Thomas, J., concurring). Commencing his Lopez opinion with a discursive definition of how “commerce” was defined “at the time the original Constitution was ratified,” Justice Thomas opined:

“Commerce” consisted of selling, buying, and bartering, as well as transporting for these purposes. See 1 S. Johnson, A DICTIONARY OF THE ENGLISH LANGUAGE 361 (4th ed. 1773) (defining commerce as “Intercourse; exchange of one thing for another; interchange of any thing; trade; traffick”); N.Bailey, AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (26th ed. 1789) (“trade or traffic”); T. Sheridan, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1796) (“Exchange of one thing for another; trade, traffick”). This understanding finds support in the etymology of the word, which literally means “with merchandise.” See 3 OXFORD ENGLISH DICTIONARY 552 (2d ed. 1989) (com – “with”; merci – “merchandise”). In fact, when Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably. See THE FEDERALIST NO. 4, p 22 (J. Jay) (asserting that countries will cultivate our friendship when our “trade” is prudently regulated by Federal Government); id. NO. 7, at 39-40 (A. Hamilton) (discussing “competitions of commerce” between States resulting from state “regulations of trade”); id., NO. 40, at 262 (J. Madison) (asserting that it was an “acknowledged object of the Convention . . . that the regulation of trade should be submitted to the general government”); Lee, Letters of a Federal Farmer No. 5, in PAMPHLETS ON THE CONSTITUTION OF THE UNITED STATES 319 (P. Ford 3d 1888); Smith, AN ADDRESS TO THE PEOPLE OF THE STATE OF NEW YORK, in id, at 107. Id. 1025

Id. (Thomas, J. concurring).

509 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT of a perceived definite evil, which they saw infused the general language used in the statute in question with a more controlling meaning than the specific words used by the legislature, so, too did Chief Justice Miller premise his Slaughter-House majority opinion upon rectifying the specific atrocities still perpetrated upon the newly emancipated African-Americans by the newly re-admitted southern states in antebellum America. In denying the butchers’ equal protection argument, for example, Chief Justice Miller reasoned that the equal protection clause could not reach the butchers because they were not of the newly emancipated class the amendment, so clearly and exclusively for Chief Justice Miller, protected: [p.532] In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to [the equal protection clause of the Fourteenth Amendment]. The existence of laws in the states where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden. If, however, the states did not conform their laws to its requirements, then by the 5th section of the article of amendment Congress was authorized to enforce it by suitable legislation. We doubt very much whether any action of a state not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that emergency, that a strong case would be necessary for its application to any other.1026 The premise of Chief Justice Miller’s decision rests upon divining, beyond the general language of the Reconstruction Amendments, which he acknowledged do not limit themselves on their face to merely being applicable to newly emancipated African-Americans, the “pervading purpose” which motivated Congress to draft and pass them and, consequently, limits the applicability of the Reconstruction Amendments. As Justice Scalia articulated the failings of the Holy Trinity Court to be so, too, does Chief Justice Miller go beyond merely upholding the Louisiana landing and slaughtering statute; so too does he go beyond employing a doubt in the general language of the reconstruction amendments to control his decision; so, too, does he go beyond employing doubt in the ambiguous language of the Constitution to rewrite it. Chief Justice Miller, whose reading of the Privileges or Immunities Clause of the Fourteenth Amendment rests and falls upon the language of the Privileges and Immunities Clause of Article Four, actually does rewrite the constitutional text of Article IV and of the leading case1027 interpreting that Article. With his own personally penned Constitution, Chief Justice Miller is fully able to usurp “a majority of Congressmen and act according to the impression [he thought] this history should have made upon them.”1028 For example, Chief Justice Miller’s conclusion – despite his acknowledgment that the civil war prompted many to “believe in the necessity of a strong national [p.533] government,”1029 – evinces just such an usurpation of history to divine legislative intent: But, however pervading this sentiment, and however it may have contributed to the adoption of the Amendments we have been considering, we do not see in those Amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the states with powers for domestic and local rights, including the regulation of civil rights, the rights of person and of property, was essential to the perfect working of our complex form of

1026

Slaughter-House Cases, 21 L. Ed.394, 410 (1872) (Miller, C.J.).

1027

See Corfield v. Coryell, 6 Fed. Cas. 546 (C.C. Pa. 1823).

1028

United States v. Public Utils. Comm’n of Cal., 345 U.S. 295, 319 (1953)(Jackson, J., concurring) quoted in Scalia, supra note 297, at 30-31. 1029

The Slaughter-House Cases, 21 L. Ed. at 410 (Miller, C.J.).

510 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT government, though they have thought proper to impose additional limitations on the states, and to confer additional power on that of the nation.1030 Between a pervading sentiment and a pervading purpose lies Chief Justice Miller’s version of legislative intent and, perhaps to use a somewhat loose definition, legislative history as well. If one were to adopt the originalist methodology of Justice Thomas to discern the contemporary meaning of the actual words employed in the Privileges or Immunities Clause of the Fourteenth Amendment and of the Privileges and Immunities Clause of Article Four, one would turn, as a starting point, to Justice Thomas’ collection of antiquarian dictionaries. 1031 Johnson defined “privilege” as “Immunity; publick right.”1032 “Immunity,” in turn, was defined by Johnson as, in one sense, “Privilege; exemption,” as well, in another sense, as “Freedom.”1033 The etymology of “privilege” supports the contention that by “privilege,” those in the Eighteenth and Nineteenth centuries meant natural, or as we might mean, human and civil rights: priv-us, private, peculiar + lex, legem, law.1034 And “immunity” has been [p.534] handed down to us from medieval Latin, immunis, immune, meaning exempt, free, and privileged. 1035 Thus, as Justice Bradley, a dissenter in the Slaughter-House Cases, properly read “privileges” and “immunities” as employed in Article IV and the Fourteenth Amendment: Citizenship is not an empty name, but that, in this country at least, it has connected with it certain incidental rights, privileges, and immunities of the greatest importance. And to say that these rights and immunities attach only to state citizenship, and not to citizenship of the United States, appears to me to evince a very narrow and insufficient estimate of constitutional history and the rights of men, not to say the rights of the American people . . . Even if the Constitution were silent, the fundamental privileges and immunities of citizens, as such, would be no less real and no less inviolable than they now are.1036 Justice Bradley, using “rights” and “privileges” synonymously, also recognizes that the privileges and immunities of which the Constitution speaks are not granted by the Constitution, since the privileges and immunities adhere to us a matter of human right, but are, rather, acknowledged as pre-existing the foundation of any government and are, therefore, securely protected by the Constitution’s mention of them. While perhaps a bit distasteful to Justice Scalia, Chester James Antieau’s recent survey of the original debates surrounding the adoption and ratification of the Fourteenth Amendment reveals that the Privileges and Immunities Clause was understood, by those who suggested, drafted, passed, and ratified the Amendment, to further recognize and secure under federal constitutional protection natural, human, civil rights for citizens of the

1030

Id.

1031

Having only, at the moment, Samuel Johnson’s and the Oxford English Dictionary at my disposal, we shall have to make do with a somewhat less exhaustive collection.

1032

Samuel Johnson, 2 A DICTIONARY OF THE ENGLISH LANGUAGE (Longman facsimile of the 1755 1st ed.) (quoting, by way of example of usage, John Dryden: “And counts it nature’s privilege to die.”)

1033

Samuel Johnson, 1 A DICTIONARY OF THE ENGLISH LANGUAGE, (Longman facsimile of the 1755 1st ed.).

1034

12 OXFORD ENGLISH DICTIONARY 522 (2d ed. 1989) (also defining “privilege,” in one sense, as “A right, advantage, or immunity granted to or enjoyed by a person, or a body or class of persons, beyond the common advantages of others; an exemption in a particular case from certain burdens or liabilities”). 1035

7 OXFORD ENGLISH DICTIONARY 690-91 (2nd ed. 1989).

1036

Slaughter-House Cases, 21 L. Ed. at 116, 119 (Bradley, J., dissenting).

511 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT U.S., if not for all human beings, regardless of citizenship, within America.1037 As John Bingham – to choose but one example of the many Antieau offers – drafter of all but the first sentence of the Fourteenth Amendment, explained his own purpose: “In drawing up the Fourteenth Amendment, I attempted to secure civil rights for human beings. These meant the rights to life, liberty and property. They include [p.535] privileges and immunities bestowed upon human beings by the Supreme Power. These are natural rights.”1038 Consequently, under the methodology of Justice Thomas, one would come to the conclusion that Justice Washington arrived at but which Chief Justice Miller abrogated – while nonetheless claiming to adhere to Justice Washington’s precedent – that the original constitutional meaning of “privileges” and “immunities” was “natural right,” what today we tend to think of as “human” or “civil rights.” Yet any branch of originalism can carry analysis only so far, and to end the analysis, with the static, perhaps intolerant, conclusion that the words analyzed cannot tolerate the “interjection of a modern sense” of their meaning “generates [more] significant textual and structural problems” than the refusal to do so solves.1039 Ralph Waldo Emerson once observed of originality and quotation: All things are in flux. It is inevitable that you are indebted to the past. You are fed and formed by it. The old forest is decomposed for the composition of the new forest. The old animals have given their bodies to the earth to furnish through chemistry the forming race, and every individual is only a momentary fixation of what was yesterday another’s, is today his, and will belong to a third tomorrow. So it is in thought. Our knowledge is the amassed thought and experience of innumerable minds: our language, our science, our religion, our opinions, our fancies we inherited. Our country, customs, laws, our ambitions, and our notions of fit and fair – all these we never made, we found them ready-made; we but quote them. Goethe frankly said, “What would remain to me if this are of appropriation were derogatory to genius? Every one of my writings has been furnished to me by a thousand different persons, a thousand things; wise and foolish have brought me, without suspecting it, the offering of their thoughts, faculties, and experience. My work is an aggregation of beings taken from the whole of nature; it bears the name of Goethe.”1040 Emerson’s conclusion – a weighty criticism that exposes the limitations of Justice Thomas’ constitutional approach – is a helpful guide to the judicious and pragmatic use of originalism: [p.536] We cannot overstate our debt to the Past, but the moment has the supreme claim. The Past is for us; but the sole terms on which it can become ours are its subordination to the Present. Only an inventor knows how to borrow, and every man is or should be an inventor. We must not tamper with the organic motion of the soul. ‘Tis certain that thought has its own proper motion, and the hints which flash from it, the words overheard at unawares by the free mind, are trustworthy and fertile when obeyed and not perverted to low and selfish account. This vast memory is only raw material. The divine gift is ever the instant life, which receives and uses and creates, and can well bury the old in the omnipotency with which Nature decomposes all her harvest for recomposition.1041

1037

Antieau, supra note 168 (arguing that Chief Justice Miller misquoted, misconstrued, and misapplied the privileges and immunities clause of Article IV and the privileges or immunities clause of the Fourteenth Amendment). 1038

Id. at 50 & n.19.

1039

Lopez, 131 L. Ed.2d 626, 655 (1997) (Thomas, J., concurring).

1040

Ralph Waldo Emerson, Quotation and Originality, reprinted in THE PORTABLE EMERSON 284-303, 300 (Mark Van Doren ed., Viking Press March 1975). 1041

Id. at 302-03.

512 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT As if echoing Justice Holmes’ admonishment that following a rule of law laid down by the ancients for no better reason than that it was laid down by the ancients,1042 Emerson’s thoughts point out that Justice Thomas’ constitutional methodology subordinates Justice Thomas to the intellectual status of something a tad less than an Emersonian inventor – forgetful of the organic nature of our souls, uncreatively and wastefully restricting the omnipotency and necessity of decomposition, the harbinger of a fruitful harvest. Justice Oliver Wendell Holmes incorporates the organic Emersonian workings of growth, decay, and renewal, into his theory of the law and of the Constitution: A very common phenomenon, and one very familiar to the student of history, is this. The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received.1043 [p.537] From the decay of old rules sprouts new rules; and, as new meaning and content is judicially engrafted upon old forms, the law evolves. Throughout Justice Holmes’ jurisprudence we can discern how he had tried to see the law as an organic whole. As Justice Holmes explains: I also have tried to see it as a reaction between tradition on the one side and the changing desires and needs of a community on the other. I have studied tradition in order that I might understand how it came to be what it is, and to estimate its worth with regard to our present needs; and my references to the Year Books often have had a skeptical end. I have considered the present tendencies and desires of society and have tried to realize that its different portions want different things, and that my business was to express not my personal wish, but the resultant, as nearly as I could guess, of the pressure of the past and the conflicting wills of the present. I have considered the social and economic postulates on which we frame the conception of our needs, and I have to see them in a dry light. It has seemed to me that certainty is an illusion, that we have few scientific data on which to affirm that one rule rather than another has the sanction of the universe, that we rarely could be sure that one tends more distinctly than its opposite to the survival and welfare of the society where it is practiced, and that the wisest are but blind guides.1044 The proper reading of the Privileges or Immunities Clause for which this Note argues would allow the Constitution to become the organic instrument Justice Holmes, for one, hoped we would make of it.

1042

THE COMPLETE BILL OF RIGHTS, supra note 309, at 275.

1043

Oliver Wendell Holmes, The Common Law, reprinted in THE ESSENTIAL HOLMES 239 (Richard A. Posner ed., Univ. of Chicago Press 1992).

1044

Oliver Wendell Holmes, Twenty Years in Retrospect: Speech at a Banquet of the Middlesex Bar Association, December 3, 1902, reprinted in THE ESSENTIAL HOLMES, supra note 330, at 151.

513 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

V. Incorporating Jus Cogens Within The Constitution On this day when the sunlight had, so to speak, destroyed reality, reality concentrated itself in certain dusky and transparent creatures which, by contrast, gave a more striking, a closer impression of life: the shadows.1045 [p.538] Cases like Brown, Griswold, and Roe – cases, that is, where the Supreme Court finds and affords constitutional protection to an unenumerated “fundamental” right – accept, albeit often without acknowledgment, the premise of jus cogens: an unenumerated fundamental right functions as a peremptory norm to invalidate governmental acts that are repulsive to our Kantian sense of right and our Burkeian sense of mutual obligation. Indeed, the Court’s test for finding a fundamental right – that it must be “deeply rooted in our traditions” and necessary for “ordered” civil democracy – is oddly similar to that the International Court of Justice invoked for discerning “customary international law” as a premise for finding a jus cogens peremptory norm1046 – where the custom must have a normative quality, recognized by a number of States, present in the opinion juris, and entrenched by practice through time. The two inquiries are indeed similar, but one of the differences remains that the Court is recalcitrant in letting fundamental rights jurisprudence grow whereas the principal of jus cogens is open to growth and never static. When the Supreme Court invokes such a peremptory right, they have usually done so beneath the logically suspect rubric of substantive due process. However, the Privileges or Immunities Clause of the Fourteenth Amendment is the more logical place to lodge a jurisprudence that recognizes that we each enjoy certain privileges and immunities because we are human, not because they are granted by any government. Developing a jus cogens jurisprudence beneath the Privileges or Immunities Clause would obviate any concern that cases such as Korematsu and Hirabayashi could recur. Genocide, as internationally defined, encompasses both “causing serious bodily or mental harm to members of the group” and “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.”1047 These prohibitions could, arguably, apply to relocation of a specific racial group. And, since a peremptory norm against genocide found under jus cogens is non-derogable, the fact that we were involved in a war with other members of the same racial group would not serve to justify the relocation. Similarly, in the Bisbee Deportation Case, the genocide principal of jus cogens, if incorporated through various treaties to be the law of the land, would have made it possible to bring the case in a federal court under federal question jurisdiction instead of in the state court which found the relocators innocent after only 15 minutes of jury deliberation. Similarly, beneath a jus cogens prescription on genocide, federal Indian jurisprudence might find a [p.539] footing on which to reform its heretofore inhumane approach to the indigent peoples of the Americas. Beneath jus cogens, dissents such as Scalia’s in Romer v. Evans would not have any stable constitutional ground to stand upon. Seen by some commentators as a call for homosexual apartheid, 1048 Colorado’s

1045

Marcel Proust, 2 IN SEARCH OF LOST TIME: WITHIN A BUDDING GROVE 556 (C.K. Scott Moncrieff et al., trans., Modern Library 1992). 1046

The International Court of Justice’s articulation of “customary international law” is culled from the North Sea Cases. See discussion supra at notes 37 & 38. For the proposition that jus cogens is premised upon customary international law see Military and Parliamentary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 100-01 (June 27), discussed supra notes 33-35; see also Vienna Convention, supra note 48 and accompanying text. 1047 1048

CONVENTION ON GENOCIDE, supra note 2, art. 2(b), (c).

See William N. Eskridge, DEMOCRACY, KULTURKAMPF, (1997).

AND THE

APARTHEID

OF THE

CLOSET, in 50 Vand. L. Rev. 419

514 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT Amendment Two1049 and Scalia’s defense of it would both be illegitimate under jus cogens. Arguably, jus cogens proscriptions – against slavery, or against degrading treatment, or, as is more likely, against systematic racial discrimination that becomes a general prescription against any kind of systematic discrimination – could be employed to defeat endeavors like Amendment Two and Scalia’s reasoning. Furthermore, such a jurisprudence of jus cogens would continue to allow the Supreme Court to ring the death knell of substantive due process without reaching the inhumane results of cases like Bowers and Glucksberg. Adoption of a jus cogens jurisprudence would also serve to reformulate federal Indian law towards a more humane posture. Even if the Court remains unpersuaded that the Slaughter-House Cases were wrongly reasoned and wrongly decided, a doctrine of jus cogens might still lie hidden in the shadows of Justice Miller’s opinion. By accepting that the Privileges or Immunities Clause does ensure those privileges and immunities created and recognized beneath treaties that the U.S. has entered into, Justice Miller has left open the door for jus cogens to enter our jurisprudence anyway. Analysis of those few international human rights treaties we have ratified and, arguably, by our very membership in the U.N., we have accepted the doctrine of jus cogens that nearly all scholars have found underwrites those treaties and the U.N. Thus, jus cogens emanates from many of the treaties we have ratified and should become a recognized persuasive force in our jurisprudence. The peremptory norms of jus cogens should be relied upon to invalidate federal and state legislation that remains inconsistent with those ideals to ensure that the human rights Senator Helms thinks we are the vanguards of are ensured to ourselves.

[p.540]

VI. Conclusion Justice Souter, in his concurring opinion in Glucksberg v. Washington, 1050 discerned the origins of substantive due process in the demise the Slaughter-House Cases made of the Privileges or Immunities Clause. 1051 And, despite the Court’s occasional admission that Slaughter-House Cases’ interpretation of the Privileges or Immunities Clause was and is somewhat lacking, the Court nonetheless tends to “reaffirm[] that interpretation without questioning its own frequent reliance on the Due Process Clause as authorization for substantive judicial review.” 1052 Justice Souter’s acknowledgment that the Privileges or Immunities Clause and not the Due Process Clause is the proper constitutional setting for developing a substantive human rights jurisprudence1053 is,

1049

The effect, and surely also the purpose, [of which] was to reinforce a regime of the closet for gay people. Amendment 2 was not only sending a message of disapproval to a traditionally despised minority -- itself potentially chilling or incendiary or both -- but was removing an important prerequisite for political participation by many gay people (job protection). Though Amendment 2 was enacted by a democratic process, it would have had the antidemocratic effect of impairing the ability of gays to mobilize politically.” Id. at 441.

1050

Glucksberg v. Washington, 521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed.2d 772 (1997) (upholding Washington State statute which provides that a person who knowingly causes or aids another to attempt suicide is guilty of the felony of promoting a suicide attempt against substantive due process challenge claiming a fundamental liberty interest in doctor assisted suicide). 1051

See id. 2279, n.6 (Souter, J. concurring) (“The Slaughter-House Cases are important, of course, for their holding that the privileges or immunities Clause was no source of any but a specific handful of substantive rights. To a degree, then, that decision may have led the Court to look to the Due Process Clause as a source of substantive rights”) (citations omitted).

1052

Id. (discussing Twining v. New Jersey, 211 U.S. 78, 95-97, as exemplary of this logical inconsistency).

1053

See Glucksberg, 117 S. Ct. at 2279, n.6 (Souter, J. concurring) (citation: “See also J. Ely, Democracy and Distrust 14-30 (1980) (arguing that the privileges or immunities Clause and not the Due Process Clause is the proper warrant for courts’ substantive oversight of state legislation).”)

515 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT however, undermined by Justice Souter’s adoption of Justice Harlan’s reasoning in his dissent in Poe v. Ullman.1054 Justice Harlan was unable, maintains Justice Souter, to interpret the text of the due process clause absent a substantive component. “Were due process merely a procedural safeguard,” quotes Justice Souter, “it would fail to reach those situations where the deprivation of life, liberty, or property was accomplished by legislation which by operating in the future could, given even the fairest possible procedure in application to individuals, nevertheless destroy the enjoyment of all three.”1055 Justice Souter draws from Justice Harlan’s interpretation the unavoidable conclusion that “the Due Process Clause thus imposes nothing less than an obligation to give substantive content to the words ‘liberty’ and ‘due process of law.’”1056 [p.541] Yet, if the admission is made that the Slaughter-House reading of the Privileges or Immunities Clause is suspect, and that the Privileges or Immunities Clause should be given more substantive meaning that it has heretofore enjoyed, then substantive due process is repetitiously superfluous at best. Rather, the more logical reading of the entire first section of the Fourteenth Amendment would be that the Privileges or Immunities Clause recognizes the natural human rights that our Constitution presumes exist and precede any formation of government.1057 Among the more important and representative of these are life, liberty, and property. Consequently, the Due Process Clause serves to ensure that the human rights recognized and ensured as privileges or immunities of national citizenship are neither denied nor infringed by rebellious state legislation – recall, at this time the southern states were still passing black codes – without federally defined due process of law. Similarly, the Equal Protection Clause functions to ensure that the due process nationally mandated to ensure the privileges or immunities of national citizenship are equally applied by all the states. Consequently, the first section – indeed, the entire Fourteenth Amendment – is a strong reaffirmation of federal supremacy and centralization thought indispensable to the continuation of the Union in the wake of the bloody rift the Civil War made of the U.S. Ostensibly to support his concurring opinion in Glucksberg, Justice Stevens quoted the English poet John Donne to emphasize that allowing a death by assisted suicide affected and lessened the quality of life for each individual in society: [p.542] Who casts no up his eye to the sun when it rises? but who takes off his eye from a comet when that breaks out? Who bends not his ear to any bell which upon any occasion rings? but who can remove it from that bell which is passing a piece of himself out of this world? No man is an island, entire of itself; every man is a piece of the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a 1054

367 U.S. 497, 6 L. Ed.2d 989 (1961).

1055

Id. at 541, quoted in Glucksberg v. Washington, 117 S. Ct. 2258, 2281, 138 L. Ed.2d 772, 815 (1997) (Souter, J. concurring).

1056

Poe, 367 U.S. 497.

1057

See e.g. THE DECLARATION OF INDEPENDENCE preamb. (“When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume the Powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitled them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation. . . .”) Id. at para. 1 (“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”) See also U.S. CONST. amend. IX (“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”) Read together, the Declaration of Independence and the Ninth Amendment accept and acknowledge that human beings are entitled to human rights by simple virtue of being human. Furthermore, that these human rights are peremptory in nature, they justified, for instance, our revolution and independence from the British regime that had ceased to acknowledge these rights in the colonists. For a fascinating study of how the Declaration of Independence, the Ninth Amendment, and the Privileges or Immunities Clause of the Fourteenth Amendment could be read to work conjunctively to provide the constitutional basis for a vigorous development of domestic human rights law, see generally Black, supra note 96.

516 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT promontory were, as well as if a manor of they friend’s or of thine own were; any man’s death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.1058 Commentators have heard the death knell of substantive due process ringing for at least the past fifteen years. For example, in Bowers v. Hardwick, the Supreme Court refused to find a “fundamental” liberty interest in consensual same-gender sex. 1059 And with Glucksberg,1060 the Court has seemingly announced that it is no longer in the business of finding new fundamental rights under the substantive due process rubric by refusing to extend the assumed holding in Cruzan1061 to cover doctor assisted suicide for the terminally ill. Yet if the bell indeed rings for substantive due process, the Court has yet to imply whether that bell also rings for the constitutional protection of newly articulated liberty interests and newly recognized human rights. On the other hand, the Court has not indicated that they will find somewhere else to ground human rights in our Constitution. This Note has offered the Court a logical locale, in the Privilege or Immunities Clause of the Fourteenth Amendment, and a logical methodology, under the rubric of incorporating principles of jus cogens, to continue the constitutional work of protecting our self-evident and inalienable human rights.

1058

John Donne, Meditation No. 17, in DEVOTIONS UPON EMERGENT OCCASIONS 86-87 (A. Raspa ed., 1987) quoted in Glucksberg v. Washington, 521 U.S. 702, 117 S. Ct. 2302, 2305 n.8 (1997) (Stevens, J., concurring).

1059

See Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed.2d 140 (1986) (Due Process Clause of the Fourteenth Amendment does not protect consensual homosexual sodomy even within the privacy of home).

1060

Glucksberg, 138 L. Ed.2d. at 772.

1061

Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 111 L. Ed.2d 224 (1990) (assuming, for purposes of argument, that a liberty interest would exist in a mentally competent patient to refuse unwanted medical treatment; the patient on behalf of whom Cruzan was brought was in a coma).

517 EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT

EXHIBIT 16 – UNITED STATES V. HOLLIS WAYNE FINCHER, 8TH CIRCUIT

EXHIBIT 16. United States v. Hollis Wayne Fincher, 8th Circuit United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 07-2514 No. 07-2888 ___________ United States of America, Appellee, v. Hollis Wayne Fincher, Appellant.

* * * * * * *

Appeals from the United States District Court for the Western District of Arkansas.

___________ Submitted: March 10, 2008 Filed: August 13, 2008 ___________ Before WOLLMAN, BOWMAN, and MELLOY, Circuit Judges. ___________ WOLLMAN, Circuit Judge. Hollis Wayne Fincher was convicted by a jury on one count of possession of a machine gun, in violation of 18 U.S.C. §§ 922(o), 924(a)(2), and one count of possession of an unregistered sawed-off shotgun, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Fincher does not dispute that he possessed these guns or that he did so without a license. He appeals his conviction, however, arguing that he has the right to possess these weapons under the Second Amendment of the United States Constitution because his possession has some reasonable relationship to the maintenance of a well regulated militia. Fincher also challenges the district court’s determination that he is not eligible for court appointed counsel and challenges the [-2-] district court’s request to resentence him. We affirm the conviction and remand the issue of Fincher’s eligibility for court appointed counsel to the district court for further inquiry. I. Second Amendment A. Background Before Fincher’s trial began, the government became aware of Fincher’s intention to argue to the jury that his possession of guns was protected under the Second Amendment. Because that issue is a matter of law, the government filed a motion in limine asking the district court to prevent Fincher from arguing matters of law to the jury. After hearing oral argument on the motion, the district court granted the motion in part and denied it in part. In doing so, the district court stated that matters of law are “quintessentially within the province of the judge and not matters to be addressed to the jury.” Nevertheless, the district court stated that it would allow Fincher to present evidence outside the presence of the jury that under United States v. Miller, 307 U.S. 174 (1939), and United States v. Hale, 978 F.2d 1016 (8th Cir. 1992), his possession of the guns was reasonably related to a well regulated militia.

518 WAYNE FINCHER, 8TH CIRCUIT EXHIBIT 16 – UNITED STATES V. HOLLIS

EXHIBIT 16 – UNITED STATES V. HOLLIS WAYNE FINCHER, 8TH CIRCUIT At the close of the government’s case, Fincher moved for judgment of acquittal. The district court denied the motion, stating that it was based on an attack on the law and not the evidence, and that under Hale, 978 F.2d 1016, the fact that a particular weapon may be susceptible to military use does not by itself establish a Second Amendment right to possess the weapon. During his case-in-chief, Fincher presented his own testimony, which the district court heard in camera. Fincher testified that he possessed the guns as part of his membership in the Washington County Militia (“WCM”), an organization he helped found in 1994. He testified that the purpose of the WCM is to ensure the [-3-] militia can operate as effectively militarily as possible in a time of state emergency and that the WCM has regular meetings and training sessions for its members. Fincher testified that between seven and nine individuals attend any given meeting of the WCM, though it is not always the same individuals in attendance. The WCM does not maintain a roster of its members or an inventory of weapons. The WCM is not a secret organization. In fact, along with the other members of the WCM, Fincher wrote and sent letters to federal agencies via certified mail informing them of the WCM’s existence and attempting to put them on notice that the WCM was lawful under state law. Fincher also sent at least one letter to the governor of Arkansas, informing him about the WCM, seeking approval, and stating that the governor’s failure to object to the WCM’s declaration would provide affirmation that the state of Arkansas did not object to the WCM. Fincher denied receiving a letter from the governor stating that the state records did not contain any reference to the WCM and that no such organization was registered with, or sanctioned by, the office of the governor or the state of Arkansas. In addition to sending written notice of the WCM to various governmental offices, Fincher invited local sheriffs to view the WCM facilities and weapons. Fincher also told state officials that the WCM possessed machine guns, which the public could observe at any one of the three annual picnics sponsored by the WCM, and he showed the machine guns to at least one sheriff. Fincher also testified about how the weapons used by the WCM were chosen and stored, some at the WCM facility and others at the individual members’ residences. When asked about the procedures for activating the WCM in the case of an emergency, Fincher stated that if an emergency occurred while he was the commander of the WCM, he would contact “the sheriff if – if I was able, you know, depending on the emergency, or the governor, or probably any other – or maybe the mayor of a city or any – anyone or no one. If there was an emergency that had to be taken care of, we [-4-] have the right to preserve life, liberty, and pursuit of happiness. We have the duty to. You don’t stand around and wait for someone to tell you you can protect your life or perform emergency medical assistance or put out a fire. These are natural offices of the people.” He also testified that the state could call up the militia at any point, and that even though the written notices that WCM sent to various governmental offices did not contain any phone numbers or other direct contact information, the governor would know how to contact them. The district court ruled that Fincher’s proffered testimony would not be admitted because the WCM, despite its attempts to receive state recognition, was an unorganized and unregulated militia and therefore, as a matter of law, did not fall within the auspices of the Second Amendment. The district court also noted that even if the WCM was a state-sponsored or state-connected militia, there was no evidence that the person in charge of that militia would determine that possession of machine guns or sawed-off shotguns was necessary to the preservation of a well regulated militia. B. Discussion Fincher asserts that the district court erred by not allowing the jury to determine whether his possession of firearms was reasonably related to a well regulated militia and therefore protected by the Second Amendment. We review a district court’s grant of a motion in limine for abuse of discretion,

519 WAYNE FINCHER, 8TH CIRCUIT EXHIBIT 16 – UNITED STATES V. HOLLIS

EXHIBIT 16 – UNITED STATES V. HOLLIS WAYNE FINCHER, 8TH CIRCUIT Robinson v. Potter, 453 F.3d 990, 995 (8th Cir. 2006), and we accord it great deference on evidentiary rulings such as the admissibility of proffered testimony, United States v. Wilson, 103 F.3d 1402, 1406 (8th Cir. 1997). We review de novo the district court’s legal conclusions, such as whether possession of firearms in relation to membership in a non-state-sponsored militia is protected by the Second Amendment. United States v. Lippman, 369 F.3d 1039, 1043 (8th Cir. 2004). -5The role of the jury is to decide facts, not legal issues. United States v. Peck, 161 F.3d 1171, 1174 (8th Cir. 1998). Accordingly, the district court did not err in prohibiting Fincher from arguing or presenting evidence regarding a question of law to the jury. We turn to the question whether the district court erred by concluding that Fincher’s possession of the guns did not fall within the protection of the Second Amendment. We conclude that the district court’s determination that the WCM was not affiliated with the state militia and therefore not subject to the protections of the Second Amendment under Miller and Hale is well supported by the record. Fincher contends that our decision in Hale, 978 F.2d 1016, established an affirmative defense to the charge of unlawful possession of firearms. In Hale, we stated that the possession of firearms is not protected unless the possession bears a reasonable relationship to a well regulated militia. 978 F.2d at 1020; see also United States v. Pfeifer, 371 F.3d 430, 438 (8th Cir. 2004) (citing Hale); United States v. Farrell, 69 F.3d 891, 894 (8th Cir. 1995) (same). Although the WCM is not a secretive organization and has held relatively regular training sessions and meetings over the years, we stated in Hale that “‘[t]echnical’ membership in a state militia (e.g., membership in an ‘unorganized’ state militia) or membership in a non-governmental military organization is not sufficient to satisfy the ‘reasonable relationship’ test.” Hale, 978 F.2d at 1020 (citing United States v. Oakes, 564 F.2d 384, 387 (10th Cir. 1977)). In Arkansas, the state militia is defined as: (a) The militia shall be divided into two (2) parts: the organized, consisting of the active and inactive Army National Guard and Air National Guard; and the unorganized, consisting of all those persons of the militia not in the active or inactive Army National Guard or the Air National Guard. (b) The militia shall consist of all able-bodied male residents of the state between the ages of seventeen (17) and forty-five (45) years who are, or intend to become, citizens of the United States, unless exempt by law, together with all other acceptable volunteers, waiving necessary requirements. [-6-] Ark. Code. Ann. § 12-61-101 (emphasis added). Thus, despite WCM’s attempts to contact the governor’s office and become an organized state militia, the district court correctly concluded that Fincher’s testimony, even if believed by the jury, would not support his Second Amendment argument because Fincher is not a member of an organized state militia. Rather, Fincher’s testimony established that the WCM was an “unorganized” militia because it is not the Army National Guard or the Air National Guard and is not formally connected with the state of Arkansas. Therefore, under Hale, Fincher’s possession of firearms is, as a matter of law, not reasonably related to a well regulated militia and is thus not protected by the Second Amendment. In reaching this conclusion, we have taken into account the Supreme Court’s recent decision in District of Columbia v. Heller, 128 S. Ct. 2783 (2008),1062 in which the Court held that the District of 1062

At trial, Fincher’s Second Amendment argument focused on his claim of right to possess the guns because they are military weapons and he is a member of the militia and not a claim of an individual right to possess a machine gun or unregistered sawed-off shotgun. Nevertheless, we think it is clear that even if Fincher had made the latter argument at trial, his possession of the guns is not protected under Heller.

520 WAYNE FINCHER, 8TH CIRCUIT EXHIBIT 16 – UNITED STATES V. HOLLIS

EXHIBIT 16 – UNITED STATES V. HOLLIS WAYNE FINCHER, 8TH CIRCUIT Columbia’s complete prohibition on the possession of usable handguns in one’s home violated the Second Amendment. Id. at 2817-18. In holding that the Second Amendment guarantees “the individual right to possess and carry weapons in case of confrontation,” Id. at 2797,1063[FN2] the Court also stated that the right to possess firearms is not beyond the reach of all government regulation. Id. at 2799, 2816 (“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts [-7-] routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”). In discussing the limitations the government can place on an individual’s right to possess firearms, the Court noted that Miller does not protect “weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.” Heller, 128 S. Ct. at 2815-16. The Court also articulated a nonexclusive list of what it viewed to be acceptable government regulation of firearms: [T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” Id. at 2816-17 (internal citations and footnote omitted). Accordingly, under Heller, Fincher’s possession of the guns is not protected by the Second Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and therefore fall within the category of dangerous and unusual weapons that the government can prohibit for individual use. Furthermore, Fincher has not directly attacked the federal registration requirements on firearms, and we doubt that any such attack would succeed in light of Heller. Accordingly, because [-8-] Fincher’s possession of guns is not protected by the Second Amendment, the district court did not abuse its discretion in preventing him from arguing otherwise to the jury. II. Court Appointed Counsel A. Background The circumstances surrounding Fincher’s court appointed counsel are fully recited in the district court’s order, United States v. Fincher, No. 06-50064-001, 2007 WL 2177062 (W.D. Ark. July 27, 2007), and are largely undisputed by Fincher. For the purpose of our analysis, we will highlight the main facts. Fincher was arrested on November 9, 2006, for violating 18 U.S.C. § 922(o). When he made his initial appearance later that day, he requested the appointment of an attorney because of his financial inability to retain counsel. He executed a “Financial Affidavit In Support of Request For Attorney or Other Court Services Without Payment Of Fee” (“the financial affidavit”), which indicated that he had no personal income, that his wife made $10.50 an hour, that he had $2,000 in savings, that he owned two vehicles of unknown value, one on which he was still making payments, and that he owned his home and 120 acres of real estate in Fayetteville, Arkansas, which had unknown value. Based upon that information, the district court appointed counsel to represent Fincher pursuant to the Criminal Justice Act. 1063

We note that the Supreme Court did not address the question whether the Second Amendment is incorporated through the Fourteenth Amendment and thus applicable to the states.

521 WAYNE FINCHER, 8TH CIRCUIT EXHIBIT 16 – UNITED STATES V. HOLLIS

EXHIBIT 16 – UNITED STATES V. HOLLIS WAYNE FINCHER, 8TH CIRCUIT On December 13, 2006, Fincher’s appointed counsel withdrew because Fincher had retained other counsel. Thereafter, Fincher was convicted on both counts charged in the indictment. On March 8, 2007, Fincher informed the district court that he no longer had counsel and requested that counsel be appointed for him, which was done. Before Fincher was sentenced, he executed a quitclaim deed conveying the 120 acres of real estate to his daughters in exchange for consideration of “One dollar [-9-] ($1.00) and other good and valuable consideration,” and reserving a life estate in the property for himself and his wife. Thereafter, the district court imposed concurrent sentences of 78 months’ imprisonment on each count. Fincher was also subject to a fine of up to $250,000. Although the guidelines range called for a fine of between $12,500 and $125,000, the district court imposed a fine of only $1,000 under the belief that Fincher had no significant assets. After sentencing, Fincher requested release on bond pending appeal. The district court conducted a hearing on the matter and agreed that Fincher could be released on $100,000 bond. Fincher indicated that he could not post bond in that amount. The district court noted that Fincher might be able to use his real estate to secure the bond, whereupon Fincher’s daughters executed a mortgage for that purpose. As a result, the district court became aware that Fincher’s property had significant value, and that Fincher had conveyed it to his daughters. As a result of these circumstances, on July 3, 2007, the district court held an evidentiary hearing to determine Fincher’s financial eligibility for court appointed counsel. The district court received testimony from Fincher, his wife, and his two daughters. The district court also requested that Fincher provide supporting documents, such as his contract with retained counsel and the deed transferring the real estate. In addition, the district court ordered an independent appraisal of the property, which estimated that it had a value of $455,000. On July 27, 2007, the district court entered an order stating that Fincher “is not now, nor has he ever been at any time material to this proceeding, financially unable to obtain counsel to represent him in this proceeding and that appointments of counsel for him were improvidently made.” Fincher, 2007 WL 2177062, at *10. Accordingly, the district court ordered Fincher to reimburse the United States Treasury $8,357.55 for the legal services provided to him by the attorneys appointed under the Criminal Justice Act. Id. [-10-] B. Discussion Fincher asserts that the district court’s July 27, 2007, order revoking his eligibility for court appointed counsel should be reversed because he did not misrepresent the value of his real estate when he stated that the value was unknown. He also challenges the appraised value of the property and the district court’s conclusion that he owns the property free and clear. Fincher asserts that he was subjectively unaware of the value of the property when he filled out the affidavit, that the property is not worth nearly as much as the appraised value because it is landlocked, and that he owned it as a joint tenant with his wife. Fincher further contends that the transfer of the property to his daughters was legitimate because he informed the Assistant United States Attorney who was working on the case about the transfer. The Criminal Justice Act provides a framework for ensuring that individuals who are financially unable to afford defense counsel are provided counsel as required by the Sixth Amendment. United States v. Brockman, 183 F.3d 891, 897 (8th Cir. 1999). The Act requires that each United States district court create “a plan for furnishing representation for any person financially unable to obtain adequate representation . . . .” 18 U.S.C. § 3006A(a). A person is eligible for court appointed counsel if, after the United States magistrate judge or court conducts an “appropriate inquiry,” the court is satisfied that “the person is financially unable to obtain counsel.” 18 U.S.C. § 3006A(b). Financial inability to obtain

522 WAYNE FINCHER, 8TH CIRCUIT EXHIBIT 16 – UNITED STATES V. HOLLIS

EXHIBIT 16 – UNITED STATES V. HOLLIS WAYNE FINCHER, 8TH CIRCUIT counsel is not the same as being indigent or destitute, but the defendant has the burden of establishing that he or she is financially unable to obtain counsel. Brockman, 183 F.3d at 897; Museitef v. United States, 131 F.3d 714, 716 (8th Cir. 1997). “If at any time after the appointment of counsel the United States magistrate judge or the court finds that the person is financially able to obtain counsel or to make partial payment for the representation, it may terminate the appointment of counsel or authorize payment as provided in subsection (f), as the interests of justice may dictate.” 18 U.S.C. § 3006A(c)); see also [-11-] 18 U.S.C. § 3006A(f) (“Whenever the United States magistrate judge or the court finds that funds are available for payment from or on behalf of a person furnished representation, it may authorize or direct that such funds be paid . . . .”); Museitef, 131 F.3d at 715. Thus, our review of the district court’s determination of financial eligibility for court appointed counsel is a three-step process. See United States v. Parker, 439 F.3d 81, 92 (2d Cir. 2006) (reviewing district court’s mid-case appointment of counsel). We must ask, (1) whether the district court conducted an “appropriate inquiry” into the defendant’s financial eligibility, (2) whether the district court correctly determined the defendant’s financial eligibility, and (3) whether the district court erred when it weighed the “interests of justice.” Id. at 92-93. Because we ultimately remand this issue to the district court for further review, we reach only the first of these three questions. To determine a defendant’s financial eligibility, the district court should make a “full inquiry” into the defendant’s actual ability to retain counsel. Museitef, 131 F.3d at 716. A full-scale adversarial hearing is not required, however, before a district court may order repayment of attorney’s fees under the Criminal Justice Act. United States v. Vale, 140 Fed. Appx. 302, 303 (2d Cir. 2005) (unpublished opinion) (citing United States v. Crosby, 602 F.2d 24, 28 (2d Cir. 1979)); see also Parker, 439 F.3d at 93 (“The task necessarily varies with the circumstances presented, and no one method or combination of methods is required.” (internal quotation omitted)). We review de novo the adequacy of the district court’s inquiry. Parker, 439 F.3d at 93 n.12. In this case, the district court’s initial inquiry was based upon the financial affidavit submitted by Fincher. See id. at 93 (noting that in some cases the court’s inquiry may be limited to the defendant’s statements on the financial affidavit). Based upon the limited information available at that time, the district court did not err in appointing counsel for Fincher. Brockman, 183 F.3d at 897 (any doubt about the [-12-] defendant’s eligibility for court appointed counsel should be resolved in the defendant’s favor); United States v. Cohen, 419 F.2d 1124, 1127 (8th Cir. 1969) (district court’s determination that defendant was ineligible for court appointed counsel based upon the ownership of real estate with an unknown value and without a more searching inquiry was error). Although a district court should investigate information contained in an affidavit when the information provided renders the defendant’s eligibility questionable, the district court’s initial determination of eligibility can be amended when new information comes to light. See In re Boston Herald, Inc., 321 F.3d 174, 179 (1st Cir. 2003) (erroneous eligibility determinations can be corrected at a later time). In this case, the district court became aware of the fact that Fincher’s property had significant value when it was mortgaged to secure Fincher’s $100,000 bond and Fincher testified that he knew that property in the same area had recently sold for between $2,000 and $4,000 an acre. This new information was sufficient to warrant a reexamination of Fincher’s eligibility.1064 1064

In its July 27, 2007, order, the district court noted that it should have conducted a investigation beyond Fincher’s financial affidavit before it initially appointed him counsel. Fincher, 2007 WL 2177062, at *7. Nevertheless, the district court reasoned that the defendant has the burden of establishing financial eligibility for court appointed counsel and that Fincher did not meet this burden and in fact misrepresented his financial eligibility by listing the 120 acres as having an unknown value when, in fact, he knew that real estate in the same area had recently sold for between $2,000 and $4,000 an acre. See id. (citing United States v. Lefkowitz, 125 F.3d 608 (8th

523 WAYNE FINCHER, 8TH CIRCUIT EXHIBIT 16 – UNITED STATES V. HOLLIS

EXHIBIT 16 – UNITED STATES V. HOLLIS WAYNE FINCHER, 8TH CIRCUIT Fincher argues that the district court erred in determining that he was not eligible for court appointed counsel because the district court did not take into consideration the fact that the property is landlocked and therefore is not as valuable as the appraisal indicates. Fincher testified at the hearing, however, that the property is located one mile off a public road and that there is an unpaved road that goes [-13-] directly to the property. Fincher also informed the district court that the property has a right-of-way that, although not currently used, is attached to ownership of the property. Furthermore, it is undisputed that Fincher and his wife currently reside on the property, suggesting that the property is not in fact inaccessible. The appraisal acknowledges that any ingress and egress to the property would need to be improved, as the current road is not paved. Accordingly, we conclude that the district court did not err in accepting as accurate the appraiser’s opinion that the property had a value of $455,000, which falls within Fincher’s estimate that the property is worth between $2,000 and $4,000 an acre. Fincher argues for the first time on appeal that because he owned the property as a joint tenant with his wife, he did not own it free and clear, and that the district court therefore erred by concluding otherwise. This late-raised assertion is directly contradicted, however, by the testimony of Fincher’s daughter, who testified that Fincher’s name is the sole one on the title. Furthermore, Fincher’s wife testified that she did not know if she had ever been deeded any portion of the property. Although the quit claim deed that transferred the property to Fincher’s daughters in early 2007 recites that Fincher and his wife each owned an undivided one-half interest in the property as tenants in common, there is no evidence in the record that Fincher and his wife owned the property as joint tenants. Accordingly, the district court did not err when it found that Fincher owned the property free and clear because Fincher has not established that there are any mortgages or liens on the property. Regarding Fincher’s transfer of the property to his daughters via quit claim deed, we conclude that Fincher’s letter to the Assistant United States Attorney regarding the transfer of the property does not insulate the transfer from later question. Testimony at the evidentiary hearing from Fincher, his wife, and his two daughters, as well as the letter sent to the AUSA, all indicate that the property was transferred after Fincher’s conviction to avoid the possibility of the property being sold to pay any fine imposed by the district court as part of Fincher’s sentence. Accordingly, the [-14-] district court did not err in concluding that the attempted transfer of the property should be considered when determining Fincher’s eligibility for court appointed counsel. Despite these conclusions and the fact that the district court conducted a more thorough inquiry into Fincher’s eligibility in July 2007 than it did initially, the district court’s analysis leaves factual questions unanswered. Thus, we remand this issue to the district court for further consideration of whether Fincher’s wife has any ownership in the property and, if so, whether that affects Fincher’s ownership of the property or the application of the Arkansas Homestead Exemption. Specifically, the district court must consider whether the entire 120 acres of real estate is protected by the Homestead Exemption, making Fincher eligible for court appointed counsel despite his ownership of the property, or whether the exemption protects only a portion of the real estate. See Ark. Code Ann. § 16-66-210; see also United States v. Trevino, 679 F.Supp. 636, 636 (S.D. Tex. 1987) (doubting that defendants should have to sell their homestead to appeal criminal conviction); Perry v. Chief of Police of City of Marianna, Ark., 660 F.Supp. 1546, 1552 (E.D. Ark. 1987) (in determining indigency, defendant should not be required to sell his inexpensive car or his home).1065 Additionally, the district court should consider

Cir. 1997)). 1065

Generally, cases in which a defendant’s ineligibility for court appointed counsel has been affirmed are based upon the defendant’s income and cash flow, not a requirement that the defendant sell his homestead to facilitate the payment of defense costs. See, e.g., Lefkowitz, 125 F.3d at 621 (defendant had recently spent several hundred thousand dollars on other attorney’s fees and personal expenses and district court found defendant’s own testimony

524 WAYNE FINCHER, 8TH CIRCUIT EXHIBIT 16 – UNITED STATES V. HOLLIS

EXHIBIT 16 – UNITED STATES V. HOLLIS WAYNE FINCHER, 8TH CIRCUIT whether Fincher has the current ability [-15-] to reimburse the United States Treasury for the legal services he received in light of the transfer of the real estate to Fincher’s daughters. III. IFP Status on Appeal We turn next to Fincher’s request for in forma pauperis (“IFP”) status on appeal. Because we remand to the district court for further review the issue of Fincher’s eligibility for court appointed counsel, we do not reach this issue. Nevertheless, Fincher’s IFP status on appeal is dependent upon his eligibility for court appointed counsel at the trial level. If the district court concludes that Fincher is eligible for court appointed counsel and therefore should not be required to reimburse the cost of the legal services he received, and Fincher’s financial circumstances do not change between the time of the district court and the appellate court proceedings, he should be granted IFP status on appeal. See United States v. Danielson, 325 F.3d 1054, 1077 (9th Cir. 2003) (court appointed counsel continues on appeal unless defendant’s financial situation changes and he or she is no longer financially eligible). IV. Sentencing On the basis of its conclusion that Fincher misrepresented his financial eligibility for court appointed counsel, the district court seeks a remand for resentencing. In light of our conclusion that the district court must conduct a more searching inquiry into Fincher’s eligibility for court appointed counsel, we decline the request for remand. Moreover, it is questionable whether we have jurisdiction to remand in the absence of an appeal or cross-appeal from the government, or whether the district court has jurisdiction to resentence a defendant in the absence of statutory authority to do so. See Greenlaw v. United States, No. 07-330, 2008 WL 2484861 (U.S. June 23, 2008) (holding that a circuit court cannot increase a defendant’s sentence without a government appeal or cross-appeal); United States v. Ross, 245 F.3d 577, 585-86 (6th Cir. 2001) (district court may not resentence defendant without [-16-] statutory authority); see also United States v. Sadler, 234 F.3d 368, 373-74 (8th Cir. 2000) (a district court’s “change of heart as to the appropriateness of the sentence, rather than a correction in the application of the guidelines,” is not the type of “clear error” that can be corrected under Rule 35(c) (internal quotation and citation omitted)); cf. United States v. Fortino, No. 07-3476, 2008 WL 2388893 (8th Cir. June 13, 2008) (per curiam). V. Conclusion The conviction is affirmed. The order directing Fincher to reimburse the United States Treasury $8,357.55 for the legal services he received pursuant to the Criminal Justice Act is vacated and the case is remanded the district court for further proceedings consistent with the views set forth in this opinion.

______________________________

of indigence to be lacking credibility); United States v. Harris, 707 F.2d 653, 661 (2d Cir. 1983) (district court found that defendant had “substantial income” in the past two years and might have had other undisclosed income); United States v. Wetzel, 488 F.2d 153, 157 (8th Cir. 1973) (affirming reimbursement order (for about $350) because defendant received $19,000 for the sale of cattle and owned real estate (the opinion provides no indication that the real estate was defendant’s homestead)).

525 WAYNE FINCHER, 8TH CIRCUIT EXHIBIT 16 – UNITED STATES V. HOLLIS

EXHIBIT 17 – HELLER’S FUTURE IN THE LOWER COURTS

EXHIBIT 17. Heller’s Future in the Lower Courts

HELLER’S FUTURE IN THE LOWER COURTS Glenn H. Reynolds Beauchamp Brogan Distinguished Professor of Law, University of Tennessee.

Brannon P. Denning Professor of Law and Director of Faculty Development, Cumberland School of Law, Samford University.

102 Northwestern University Law Review Colloquy 406 (2008) The Supreme Court has released its long-awaited opinion in District of Columbia v. Heller,1066 and the buzz has been considerable. Though much has been made of the majority’s historic ruling and of the narrowness of that majority, many commentators have missed an important point. What Heller is most notable for is its complete and unanimous rejection of the “collective rights” interpretation that for nearly seventy years held sway with pundits, academics, and—most significantly—lower courts. The repudiation of this extensive body of case law1067 suggests that the real test of Heller will occur once the lower courts, traditionally hostile to an individual rights interpretation of the Second Amendment, face the inevitable follow-up cases challenging other restrictive gun laws. Experience with other seemingly groundbreaking Supreme Court decisions in recent years, such as United States v. Lopez, suggests that lowercourt foot-dragging may limit Heller’s reach, though this time around there will likely be considerably more scrutiny and more vigorous litigation efforts. If the lower courts present a challenge to the implementation of Heller, they also provide litigants with an opportunity. Given the fact that the Heller majority declined to give a detailed accounting of the proper standard of review to be used in subsequent Second Amendment cases, litigants have a rare opportunity to write on a tabula much more rasa than is ordinarily the case in constitutional litigation, making use of recent scholarship on the crafting of constitutional decision rules that implement constitutional provisions. In the pages that follow, we take a look at these aspects of Heller. The triumph of the Standard Model of the Second Amendment is examined in Part I. Part II asks whether Heller is merely the opening volley in the coming judicialization of the gun control debate, or whether like the Court’s attempt to rein in congressional power under the Commerce Clause, Heller will ultimately be seen as largely symbolic. Finally, in Part III, we discuss the possibility that recent scholarship on constitutional doctrine might play a role in separating permissible from impermissible gun controls post-Heller.

1066

No. 07-290, slip op. (U.S. June 26, 2008).

1067

See Brannon P. Denning, Can the Simple Cite Be Trusted?: Lower Court Interpretations of United States v. Miller and the Second Amendment, 26 CUMB. L. REV. 961 (1996) (criticizing the case law cit-ing United States v. Miller as authority for rejecting an individual rights interpretation).

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EXHIBIT 17 – HELLER’S FUTURE IN THE LOWER COURTS I. INDIVIDUAL AND COLLECTIVE RIGHTS Pre-Heller discussions of the Second Amendment noted the conflict between an individual rights model in which the Amendment confers a right to arms on individual citizens, who are entitled to use the courts to resist infringements in the same fashion as other constitutional rights such as free speech or privacy, and a collective rights model in which they are not. Under the formulation of this individual right arrived at by a large number of Second Amendment scholars (often referred to as the “Standard Model” of Second Amendment individual rights interpretation), the right is not absolute, but is extensive: “[t]he purpose of the right to bear arms is twofold: to allow individuals to protect themselves and their families, and to ensure a body of armed citizenry from which a militia could be drawn, whether that militia’s role was to protect the nation or to protect the people from a tyrannical government.”1068 Set against this individual rights view was the so-called collective rights interpretation, under which the Second Amendment protects only the right of states to maintain an organized militia (often characterized as the modern-day National Guard) and gives rise to no judicially enforceable right to bear arms on the part of individuals. This theory characterized virtually all writing on the subject from the federal courts of appeals after 1069 though the Miller opinion itself did not adopt a the Supreme Court’s 1939 opinion in United States v. Miller, 1070 collective rights approach. Under the collective rights theory, the Second Amendment, if it were susceptible to judicial enforcement at all, could only be invoked by a state government whose state militia was impaired by federal action. Individuals, even those claiming membership in a state’s “unorganized” militia, could not 1071 challenge federal gun laws. Shortly after Miller was decided, federal courts of appeals began to overread it and to cite it for the proposition that only arms borne with the intent of participating in or contributing to the efficacy of a militia were protected. 1072 These courts essentially equated the Miller Court’s refusal to hold that a sawed-off shotgun was protected by the Second Amendment with a refusal to recognize any individual right under the Amendment that 1068

Glenn Harlan Reynolds, A CRITICAL GUIDE TO THE SECOND AMENDMENT, 62 Tenn. L. Rev. 461, 475 (1995), vailable at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=960788 (link).

1069

4 307 U.S. 174 (1939); see, e.g., Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942) (stating that the Second Amendment was designed to foster “the efficiency of the well regulated militia . . . as necessary to the security of a free state”); United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942) (stating that the Second Amendment “was not adopted with individual rights in mind”).

1070

See Brannon P. Denning and Glenn H. Reynolds, Telling MILLER’S TALE: A REPLY TO DAVID YASSKY, 65 L. & CONTEMP. PROBS. Spring 2002, at 113, available at http://www.law.duke.edu/shell/cite.pl?65+Law+&+Contemp.+Probs.+113+(Spring+2002) (discussing holding in Miller in light of briefs and arguments)

1071

“Unorganized” militia, by statute, designate able-bodied males within a certain age range as members. Unorganized militia are contrasted with the “select” militia of a state, which correspond roughly to the state’s National Guard. See, e.g., 10 U.S.C. § 311 (2000) (classifying the able-bodied male population aged 17–45 as the unorganized militia of the United States) (link). State rules are simi-lar, except that many states include women. See, e.g., Kan. Stat. Ann. § 48-904(e) (1983) (“‗[U]norganized militia’ means all able-bodied male and female persons between the ages of 16 and 50 years.”); Ohio Const. art. IX, § 1 (1994) (authorizes “all citizens” to serve); Or. Rev. Stat. § 396.105(3) (1994) (“The unorganized militia shall consist of all able-bodied residents of the state between the ages of 18 and 45 who are not serving in any force of the organized militia or who are not on the state retired list and who are or who have declared their intention to become citizens of the United States; subject, however, to such exemptions from military duty as are created by the laws of the United States.”).

1072

See Denning, supra note 2, at 981–87 (discussing early cases applying Miller).

EXHIBIT 17 – HELLER’S527 FUTURE IN THE LOWER COURTS

EXHIBIT 17 – HELLER’S FUTURE IN THE LOWER COURTS was not, first and foremost, concerned with the maintenance of an organized and government-regulated military body.1073 Subsequent courts went further, stating that Miller held that the Second Amendment did not guarantee an individual right.10749 Reading those opinions closely, however, it is clear that many simply relied on what other courts had said about Miller, and some judicial characterizations of Miller’s facts are so inaccurate that it is difficult to believe that the judge writing the opinion could have actually read the Miller decision itself.1075 Lower court discussions of Miller resembled a game of judicial Telephone, with the actual holding of Miller becoming less and less recognizable as the years progressed. Prior to Heller, only the Fifth Circuit in United States v. Emerson1076 held that the Second Amendment creates an individual right, although it found the right was not violated by the facts at hand. II. THE LOWER COURTS AND THE HELLER DECISION It is impossible to review the Second Amendment jurisprudence from the federal courts of appeals (excepting only Parker v. District of Columbia,107712 the lower-court version of Heller, and United States v. Emerson) without noting two things: a significant hostility toward individual rights arguments, and a surprisingly deep investment in their own case law, despite its rather tenuous anchor in the Supreme Court’s decisions. This raises the question: what will they do when presented with gun-rights cases post-Heller? There is some reason to expect that the answer will be “not much.” The last constitutional revolution led by the Supreme Court—via its Lopez and Morrison1078 decisions limiting Congressional power—essentially petered out in the face of lower-court resistance.1079 In light of Gonzales v. Raich,1080 which upheld the application of federal drug control laws to local, non-commercial, medical marijuana, lower court reluctance to read Lopez and Morrison looked prescient. Will that happen again with the Second Amendment?

1073

See, e.g., Cases, 131 F.2d at 923; Tot, 131 F.2d at 266; Denning, supra note 2, at 981–87 (discuss-ing Cases and Tot). But see District of Columbia v. Heller, No. 07-290, slip op. at 49–50 (U.S. June 26, 2008) (“It is entirely clear that the [Miller] Court’s basis for saying that the Second Amendment did not apply was not that the defendants were ‘bear[ing] arms’ not ‘for . . . military purposes’ but for ‘nonmili-tary use’ . . . . Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection . . . . Beyond that, the opinion provided no explanation of the content of the right.”). 1074

See Denning, supra note 2, at 988–98 (discussing lower court cases).

1075

See id. at 997–98 (discussing Hickman v. Block, 81 F.3d 98 (9th Cir. 1996)).

1076

270 F.3d 203 (5th Cir. 2001).

1077

478 F.3d 370, 395 (D.C. Cir. 2007) (concluding “that the Second Amendment protects an individual right to keep and bear arms”), aff’d sub nom. District of Columbia v. Heller, No. 07-290 (June 29, 2008).

1078

United States v. Morrison, 529 U.S. 598 (2000) (invalidating the civil-suit provision of the VIOLENCE AGAINST WOMEN ACT as beyond Congress’s commerce power). 1079

See Glenn H. Reynolds & Brannon P. Denning, LOWER COURT READINGS OF LOPEZ, OR WHAT IF THE SUPREME COURT HELD A CONSTITUTIONAL REVOLUTION AND NOBODY CAME? 2000 WIS. L. REV. 369 (2000) [hereinafter Reynolds & Denning, Constitutional Revolution]; Brannon P. Denning & Glenn H. Reynolds, RULINGS AND RESISTANCE: THE NEW COMMERCE CLAUSE JURISPRUDENCE ENCOUNTERS THE LOWER COURTS, 55 Ark. L. Rev. 1253 (2003) [hereinafter Denning & Reynolds, Rulings and Resistance] (discussing lower court cases following Morrison). 1080

545 U.S. 1 (2005) (upholding application of the Controlled Substances Act to noncommercial marijuana grown and possessed for local, medicinal use under state law).

EXHIBIT 17 – HELLER’S FUTURE528 IN THE LOWER COURTS

EXHIBIT 17 – HELLER’S FUTURE IN THE LOWER COURTS In Lopez, the Supreme Court struck down the Gun Free School Zones Act as being in excess of Congress’s enumerated power to regulate commerce among the several states. In the years following Lopez, hundreds of cases flooded the lower courts, most brought by defendants convicted of violating various federal criminal statutes, claiming that those laws also exceeded Congress’s commerce power.1081 In the five years after Lopez, however, only one law—the civil suit provision eventually invalidated in Morrison—was struck down by a 1082 Even after Morrison, when the Court not only reaffirmed Lopez but seemed to add, federal appellate court. “and we mean it,” courts were still reluctant to rigorously analyze federal statutes using the Lopez-Morrison framework. Though before Raich signaled a retreat, lower courts were beginning to uphold as-applied challenges to particular federal statutes.1083 Will Heller suffer Lopez’s fate, serving more as casebook fodder than as actual authority? On the surface, there are some analogies between the Commerce Clause and the Second Amendment that suggest that, like Lopez, Heller itself may end up as so much sound and fury, signifying nothing—or at least nothing much. First, there are the institutional prejudices of the courts of appeals, favoring the status quo and possessing a desk-clearing mentality. Like the bureaucrats they increasingly resemble, the members of the appellate judiciary do not like to rock the boat. In addition, the courts of appeals have a history of more-or-less open hostility to claims of a private right to arms. The vast majority of cases to date suggest that, to the extent they can, they will try to rule against such a right. Second, as was true following Lopez, there are few federal firearms laws that are vulnerable under Heller. Indeed, Justice Scalia’s opinion took some pains to make clear what the Court was not calling into question: [N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.1084 Indeed the very enumeration of “presumptively lawful regulatory measures” seemed calculated to reduce expectations among, for example, felons convicted of possessing firearms in violation of federal law that Heller represented a “Get Out of Jail Free” card. Third, the Heller majority’s refusal to be pinned down on a specific standard of review might also leave an opening for lower courts to confine Heller to its facts.1085 For example, a court might read Heller as standing for the proposition that anything less than an absolute ban could pass muster. Even if a reviewing court adopts the kind of intermediate standard of review urged by the Solicitor General,1086 it might simply apply the standard in a way that defers to governmental judgments about the necessity of regulation. A more explicit articulation of the standard to be employed could have discouraged lower court evasion of Heller, or at least made such evasion

1081

Several of these challenges are discussed in Reynolds & Denning, CONSTITUTIONAL REVOLUTION, supra note 14.

1082

Brzonkala v. Va. Polytechnic Inst. and State Univ., 169 F.3d 820 (4th Cir. 1999) (en banc), aff’d sub. nom. United States v. Morrison, 529 U.S. 598 (2000). 1083

See Denning & Reynolds, RULINGS AND RESISTANCE, supra note 14 (describing these as-applied challenges).

1084

District of Columbia v. Heller, No. 07-290, slip op. at 54–55 (U.S. June 26, 2008) (link). A footnote added, for good measure, that the Court’s list of “these presumptively lawful regulatory measures . . . does not purport to be exhaustive.” Id. at 55 n.26.

1085

See id. at 63 (“[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field . . . .”).

1086

Brief of the United States as Amicus Curiae, District of Columbia v. Heller, No. 07-290, at 8–9 (2008) (recommending remand for analysis using intermediate scrutiny as the standard of review), available at http://www.scotusblog.com/wp/wpcontent/uploads/2008/01/us-heller-brief-1-11-08.pdf (link).

EXHIBIT 17 – HELLER’S529 FUTURE IN THE LOWER COURTS

EXHIBIT 17 – HELLER’S FUTURE IN THE LOWER COURTS somewhat easier to detect, if the Court was inclined to monitor lower courts for compliance, something that it did not do following Lopez.1087 Fourth, because the majority preemptively (perhaps “peremptorily” is a better word) signaled its view that a number of federal gun control laws would not be called into question by Heller, 1088 the most promising targets—local gun bans similar to the District’s and restrictive state gun laws—lie beyond the immediate scope of Heller because the Second Amendment remains outside those provisions of the Bill of Rights that have been incorporated through the Fourteenth Amendment and applied to states.1089 Thus, the true test of Heller’s reach will turn on whether the Court will be willing to entertain one of the proliferating number of cases challenging these laws. 1090 If the Court does not, then, like Lopez, Heller may end up having all the robustness of a “but see” cite. 1091 On the other hand, there are several important differences that ought not be overlooked between the situation following Lopez and that likely to follow Heller. Perhaps most important is the fact that there was virtually no coordinated follow-up litigation to Lopez on the part of the public interest bar. Most of the litigation was opportunistic: Lopez was cited in just about every appeal on behalf of those convicted of federal criminal offenses, who, as a group, rarely present the most sympathetic face. By contrast, several lawsuits were filed challenging gun control laws in other communities within hours of the Heller opinion’s publication.1092 Given the stakes, interest groups challenging local laws have greater incentive than individual criminal defense attorneys to ensure that only the best cases with the cleanest facts are brought. Moreover, there was relatively little public interest in Lopez or the Commerce Clause. The Second Amendment, on the other hand, is among the most significant provisions of the Bill of Rights from the standpoint of public engagement.1093 The public interest groups sponsoring follow-up litigation will have every incentive to publicize lower court attempts to evade or blunt the effect of Heller and can try to choose cert-worthy cases from among those to be litigated. Given popular interest, the media and elected officials will have an incentive to monitor lower court implementation of Heller. It is also possible that the lower courts’ hostility to an individual right to arms was largely a product of the zeitgeist of an earlier era, carried forward as much by habit and stare decisis as by any institutional interest. With the individual right theory of the Second Amendment now not only

1087

Whatever one thinks of the substance of his test or how well that test implements the right guaranteed by the Second Amendment, Justice Breyer at least described in some detail the approach he would take. See Heller, No. 07-290, slip op. at 8–12 (Breyer, J., dissenting) (describing the “interest-balancing” approach he would employ in Second Amendment cases).

1088

See supra note 19 and accompanying text.

1089

United States v. Cruikshank, 92 U.S. 542 (1875) (refusing to apply the First and Second Amendments to the states) (link). For Heller’s discussion of Cruikshank and its continued significance in light of the Court’s incorporation of most provisions of the Bill of Rights to the states, see Heller, No. 07-290, slip op. at 47–49 & nn.22–23. 1090

The majority did drop a pointed note that the case first declining to apply the Second Amendment to the states “also said that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry required by our later cases.” Id. at 48 n.23.

1091

Cf. John Copeland Nagle, THE COMMERCE CLAUSE MEETS THE DELHI SANDS FLOWER-LOVING FLY, 97 Mich. L. Rev. 174, 176 (1998) (“Whether Lopez marks a dramatic shift in Commerce Clause jurisprudence or is instead destined to be a ‘but see’ citation remains to be seen.”). 1092

See, e.g., Maura Dolan, THE 2ND A MENDMENT: REACTION TO THE COURT RULING, L.A. TIMES, June 27, 2008, at A19, available at http://www.latimes.com/news/nationworld/nation/la-na-legal27-2008jun27,0,3173451.story. 1093

See Jeffrey M. Jones, Public BELIEVES AMERICANS HAVE RIGHT TO OWN GUNS, Gallup, Mar. 27, 2008, http://www.gallup.com/poll/105721/Public-Believes-Americans-Right-Own-Guns.aspx (“A solid majority of the U.S. public, 73%, believes the Second Amendment to the Constitution guarantees the rights of Americans to own guns.”).

EXHIBIT 17 – HELLER’S FUTURE530 IN THE LOWER COURTS

EXHIBIT 17 – HELLER’S FUTURE IN THE LOWER COURTS endorsed by the Supreme Court, but also, thanks to extensive scholarship, academically respectable (and, of course, popular with a very large majority of citizens) it may be that today’s federal judiciary will be less hostile to the right than past courts. A related point is that lower court judges may perceive the stakes differently in Heller than they did in Lopez. Following Lopez to its logical conclusions suggested rethinking the foundations of the modern New Deal state, if not mandating the unwinding of that state. At the very least, it presented an opportunity for hundreds of criminal defendants to escape the consequences of their convictions. Neither was an appealing option for even the most ardent advocate for limiting federal power, so judges strenuously resisted following Lopez wherever it might lead—especially if it meant revisiting the constitutional legitimacy of statutes like the 1964 Civil Rights Act. By contrast, even reading Heller for all that it is worth, it is clear that significant regulations of private firearms ownership—including various licensing regimes—are not necessarily presumptively unconstitutional. Finally, despite the unanimity of the Court in its conclusion that the Second Amendment protected some individual right, the alternative limiting implementations of that right were expressed as dissents, as opposed to partial concurrences.1094 Thus, there are not any narrow concurring opinions whose authors essentially control the outcome of future cases; the alternative approaches of the dissenters are, well, dissents. Imagine a situation, though, in which Justice Breyer’s “interest-balancing” approach was a concurring opinion; lower courts seeking to limit Heller might choose Justice Breyer’s standard of review in the absence of anything definite in the majority opinion.1095 In Lopez, for example, though the Court listed a number of factors bearing on whether a given local activity “substantially affected” interstate commerce or not, the Court did not make clear whether all factors had to be satisfied, or just some, or whether some factors were indispensible to a find ing that regulated activity had a substantial effect on interstate commerce. In response, many lower court judges interpreted the opinion narrowly. The presence of any factor distinguishing the statute under review from the Gun Free School Zones Act was deemed sufficient to turn back the constitutional challenge.1096 Which set of forces will prevail? It’s impossible to say for certain, so we’ll equivocate and say, “it depends.” Bureaucrats tend to take the path of least resistance, and least controversy. Though some foot-dragging is likely, it’s equally likely that the kind of resistance demonstrated in response to Lopez won’t manifest itself in response to Heller, as such resistance would likely produce far more controversy.

1094

See, e.g., Heller, No. 07-290, slip op. at 1 (Stevens, J., dissenting); id., slip op. at 1 (Breyer, J., dissenting). Justice Breyer seems to be feeling his way toward some sort of “undue burden” standard, though it is more of an “undue-burden-lite” standard, as it is difficult to imagine him upholding a ban on abortion in the District of Columbia on the basis that one could reach a friendlier jurisdiction for the price of a subway ticket. See id. at 30 (Breyer, J., dissenting) (“The adjacent states do permit the use of handguns for target practice, and those States are only a brief subway ride away.”). 1095

Likewise, Justice Stevens’s primary dissent is, if anything, less clear than Justice Scalia’s majority opinion on the appropriate standard of review. By contrast, Justice Breyer’s dissent is quite detailed.

1096

See Reynolds & Denning, CONSTITUTIONAL REVOLUTION, supra note 14, at 385–91 (discussing several such cases).

EXHIBIT 17 – HELLER’S531 FUTURE IN THE LOWER COURTS

EXHIBIT 17 – HELLER’S FUTURE IN THE LOWER COURTS III. HELLER AND DECISION RULES Because of its reticence on the subject, Heller presents litigants with an opportunity to sell lower courts on a standard of review largely unencumbered by binding precedent. Subsequent litigation, then, might be a good test subject for examining the role that “decision rules” play in the “implementation” of constitutional rights.1097 Given the considerable discretion that courts have in fashioning rules to implement constitutional guarantees,1098 and the variety of doctrinal tests the Court has employed over the years to enforce various constitutional provisions,1099 it is clear that older discussions framing the choice as between individual rights/strict scrutiny vs. states’ or collective rights/rational basis embodied a false choice. As scholars such as Adam Winkler, and the Solicitor General’s brief made clear, recognition of an individual right does not doom all gun control regulations to constitutional oblivion.110035 Subsequent litigation offers an opportunity for litigants to educate lower courts about the choices they have and offer the guidance the Court declined to provide about crafting rules that implement the guarantee Heller recognized. Scholars, too, have an opportunity to enter into the sort of dialogue with courts that both academics and judges agree is far too rare. This will be especially true of cases involving state and local restrictions—laws whose constitutionality was not squarely presented in Heller. Litigants ought to study and develop responses to Justice Breyer’s “interestbalancing” standard of review. Likewise, those defending existing or proposed gun controls—especially those that do not go as far as the District’s did—have another opportunity to argue against categorical rules and presumptions of unconstitutionality. In truth, this is probably the debate that we should have been having all these years: which regulations of private firearms are the “reasonable” ones that most people—including most of those who support an individual rights reading of the Second Amendment—can support. At the very least, the Court’s interring of the “collective rights” or “military purpose” interpretation of the Second Amendment has cleared the way for that debate to begin. CONCLUSION Though the civics-book formulation provides that the Supreme Court establishes clear principles which lower courts should conscientiously apply, reality is considerably more complex and frequently less satisfying. Unfortunately, as many lawyers can attest, the Supreme Court often formulates principles that are not clear, and sometimes it fails to establish principles at all. Lower courts, meanwhile, are not always conscientious in following the Supreme Court’s lead, whether for reasons of bureaucratic rigidity or because they have their own agendas. Given the Supreme Court’s light caseload, and the enormous number of cases in the lower courts, the

1097

What one of us has elsewhere called the “new doctrinalism” is concerned with judicial generation of rules that implement or enforce constitutional meaning. See generally Brannon P. Denning, THE NEW DOCTRINALISM IN CONSTITUTIONAL SCHOLARSHIP AND DISTRICT OF COLUMBIA V. HELLER, 75 Tenn. L. Rev. (forthcoming 2008); Kermit Roosevelt III, THE MYTH OF JUDICIAL ACTIVISM 22–36 (2006); Mitchell N. Berman, CONSTITUTIONAL DECISION RULES, 90 Va. L. Rev. 1 (2004); Richard H. Fallon, Jr., IMPLEMENTING THE CONSTITUTION 76–101 (2001). 1098

See, e.g., Roosevelt, supra note 32, at 23–36; Berman, supra note 32, at 92–100 (describing factors influencing choices of decision rules). 1099

See Fallon, supra note 32 at 77–79 (listing “A Catalogue of Constitutional Tests”).

1100

See generally Adam Winkler, SCRUTINIZING THE SECOND AMENDMENT, 105 Mich. L. Rev. 683 (2007); BRIEF FOR THE UNITED STATES AS AMICUS CURIAE, supra note 21. But see Glenn Harlan Reynolds, GUNS AND GAY SEX: SOME NOTES ON FIREARMS, THE SECOND AMENDMENT, AND “REASONABLE REGULATION”, 75 Tenn. L. Rev. 137 (2007) (comparing “reasonable regulation” in Second Amendment context to reasonable regulation in the context of the Supreme Court’s unenumerated rights jurisprudence).

EXHIBIT 17 – HELLER’S FUTURE532 IN THE LOWER COURTS

EXHIBIT 17 – HELLER’S FUTURE IN THE LOWER COURTS path taken by the federal judiciary can diverge considerably from that established by the Supreme Court.1101 Will Heller be such a case? As we have noted before, this depends—upon the behavior of litigants, upon the predilections of lower court judges, and upon the degree and nature of scrutiny that the process receives. For us, at least, it offers an opportunity to continue our study of how Supreme Court precedent influences lower courts in an entirely new context, for which we are properly grateful.

1101

See Glenn Harlan Reynolds, Looking Ahead: October Term 2007, 2007 CATO SUP. CT. REV. 335, 350–52 (describing the Supreme Court’s reduced influence on federal courts of appeals).

EXHIBIT 17 – HELLER’S533 FUTURE IN THE LOWER COURTS

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES

EXHIBIT 18. John Ross, Prohibition’s Ugly Legacy by John Ross, Unintended Consequences

PROHIBITION’S UGLY LEGACY John Ross March 12, 1974 It is presented as a factual college term paper in economics, from UNINTENDED CONSEQUENCES by John Ross, Pages 348-361. Copyright © 1996 by Accurate Press. ISBN 1-888118-04-0. * A year after the 1933 repeal of Prohibition, Congress passed the National Firearms Act of 1934 and created a situation that was (and is) both unique and bizarre. The situation is unique because no other consumer good or manufactured product in the entire country is treated under the law in the same way that National Firearms Act firearms are treated. The situation is bizarre because under this law, two absolutely identical guns, consecutively produced within one minute of each other by the same manufacturer on the same assembly line, can fall into such drastically different legal categories that possession of one has the government’s blessing, while possession of the other (even by the same person) merits a ten-year prison sentence. As if this were not unusual enough, a 1968 amendment to the National Firearms Act now prohibits the owner of the “bad” weapon (whichever of the two guns it may be) from placing himself in compliance with federal law. The National Firearms Act introduced a huge distortion into the free market for all guns which fell under its scope. The result is a three-tier pricing schedule in the market for firearms regulated by this obscure section of the U.S. Code, as well as several legal questions which, to date, have not yet been resolved. This paper addresses a distortion in the free market caused by government intervention. It is not intended to be a political science treatise. However, in order to fully understand this distortion and “how we got here,” some history is in order. This is an unfamiliar area to most people, and it is quite possible that without a thorough explanation of the history behind the current law, the average person would refuse to believe our present situation. HISTORY The issue of owning militia-type arms to protect oneself and one’s freedoms was not controversial in the early days of our country’s history. It was taken for granted. All citizens of this country had this basic right. Prior to 1934, there were no federal laws regulating firearms ownership, 1102 and virtually no state laws, either. All prohibitions (and attendant punishment) focused on violent criminal actions and not possession of inanimate objects. Two events changed this situation on a state level: The Emancipation Proclamation, and large-scale immigration. Many lawmakers didn’t like the idea of foreigners and former slaves having the same rights as whites. The especially disliked the idea of these “undesirables” being able to protect themselves and control their own destinies. Legislators didn’t want blacks being able to defend their freedoms, either at the voting booth, or by having guns. Because the Second Amendment guaranteed the right to keep and bear arms, and the Fourteenth Amendment guaranteed equal protection under the law, legislative creativity was required.

*

The author, John Ross, has affirmed that the PROHIBITION’S UGLY LEGACY is historically and academically factual and no part of it is fiction. 1102

There was a law enacted in 1920 which prohibited sending handguns through the mail except by law enforcement entities, and required that a common carrier be used instead.

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN534 ROSS, AUTHOR, UNITENDED CONSEQUENCES

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES Poll taxes and literacy tests solved the problem of blacks voting. Blocking Constitutionally-protected black possession of inanimate object required a slightly different strategy. One solution to the dilemma was to require permits to possess or carry arms.1103 These permits could then be arbitrarily denied. Another answer was for a state to enact an outright prohibition on carrying weapons for self-protection.1104 These outright prohibitions were then selectively enforced. The South Carolina legislature, perhaps pleased with the success of their poll tax, passed a law in 1875 prohibiting ownership of all firearms other than those manufactured by Colt or Winchester.1105 Since these makes were much more expensive than all others, this law was a novel way to prevent poor people of all races from having guns.

Immigrants got similar treatment. In complete defiance of the U.S. Constitution, California state law prohibited Chinese from testifying against whites in any court of law for a 20-year period in the late 1800s.1106 In New York, discussion urging passage of the 1907 Sullivan Law made mention of how that law would make it illegal for “swarthy immigrants” to have guns1107. Texas gun restrictions subjugated Americans of Mexican origin.1108 All these laws, however, were passed on a state level. It was not until 1934 that any federal law was enacted which affected firearms possession. There is some disagreement about the impetus behind this law, as will soon be discussed.

THE NATIONAL FIREARMS ACT OF 1934 The first significant federal gun law was passed in June of 1934 with minimal fanfare. It attracted little attention because it only affected a small number of arms: Full-automatic weapons (machine guns), rifles and shotguns with barrels shorter than eighteen inches (amended to sixteen inches for rifles in 1958), and rifles and shotguns with overall lengths less than twenty-six inches. These arms now fell under federal regulation. In addition, any device designed or redesigned to muffle the report of a firearm (a “silencer”) also fell under the scope of the National Firearms Act,1109 despite the fact that these devices were not and are not in any way, shape, or form, “firearms.” Because of the Second Amendment, Congress realized it did not have the authority to ban these arms. Instead, the bill was slipped in as a revenue-raising measure under the Interstate Commerce Clause. Under the National Firearms Act, no person my transport, deliver, or sell in interstate commerce any firearm or silencer as described above without first having in his possession a stamp-affixed form for the firearm.

1103

Laws of this nature were passed in many states at one time or another. Notable exceptions were Vermont and New Hampshire.

1104

Many states, including Missouri, have such outright prohibitions. Some statutes rely on vague wording, such as Missouri’s prohibition on carrying a weapon for protection into and “church, school, or any other assembly of persons met for any lawful purpose.” (emphasis added) This last item allows police to arrest blacks and ignore whites.

1105

I have not found the actual text of this law, but there are many references to it in several publications.

1106

Stanford M. Lyman, CHINESE AMERICANS (New York: Random House, 1974) P.71

1107

This phrase became a buzzword with many politicians who wanted to expand their political power, and is found in numerous texts.

1108

Many people have serious misconceptions of Texas law, and think of that state as one where everyone carries guns legally. Nothing could be further from the truth. There is no provision in Texas law to carry a weapon for protection outside your home or automobile. Those who do are relying on the crony system to save them.

1109

NFA of 1934, Section 11.

535JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES The tax stamp must first be bought so that it can be affixed to the federal form when it is approved. For the form to be approved, the applicant must be fingerprinted, signed off by the local police chief, and submit to an FBI records check. The “stamp” referred to in the law costs $200. The owner of an NFA-regulated weapon must have this approved form (with the $200 stamp affixed) in his possession before the arm (or silencer) in question may be transported in interstate commerce. This $200 tax must be paid each time the NFA-regulated item changes ownership. Because of the size of the tax, the frequency with which it must be paid, and the method by which it is levied, the National Firearms Act bears a strong resemblance to the Stamp Act of 1765.1110 Being fingerprinted and forced to submit to an FBI investigation is unusual, to say the least, for a revenue-raising measure. To put this “revenue-raising” tax in perspective, in 1934, $200 was more than a month’s wages for a worker building Model “A”s on the Ford assembly line in Dearborn, Michigan. 1111 In the ‘20s, silencers sold for $20 in hardware stores and Thomson submachine guns could be bought out of the Sears catalog for $125. The idea that levying a $200 tax on these manufactured good would actually raise revenue is absurd. The demand for each of the items covered y the National Firearms Act was elastic enough that virtually no one was willing to pay the government an additional $200 for any of them. According to Treasury Department records, there was not a single tax-paid registration in 1934,1112 and there was one in 1935(12).1113 Another consequence of the Act was that new development of machine guns by individual inventors stopped overnight. Given that the vast majority of full-auto weapons now in use were designed by private individuals, this is a serious issue. The U.S.’s foremost authority on machine guns, Lt. Col. George M. Chin, has frequently described the Act a devastating blow to American security in that is has crippled all future military small arms development in this country and will continue to do so until it is repealed.1114 After passage of the Act, there were only three classes of people who continued to buy these goods: Large companies bought the weapons for strike control and other labor relations purposes. 1115 Police departments, the military, and special occupational taxpayers1116 continued to buy, for they were exempt from the tax. Violent criminals continued to buy these weapons outside of legal channels, just as they had obtained liquor during Prohibition. This reality brings us to the next issue concerning this obscure federal law.

REASONS FOR THE PASSAGE OF THE NATIONAL FIREARMS ACT 1110

On March 22, 1765, Parliament levied a tax on the Colonists’ newspapers and legal and commercial documents, all of which had to carry a special stamp. The Colonists formed the first intercolonial Congress which met in October of that year to declare American rights and grievances, specifically concerning the Stamp Act. Parliament rescinded the Stamp Act in March of 1766, but coupled this recission with passage of the Declaratory Act, claiming England’s supremacy over America “in all cases whatsoever”. The Colonists’ rights and their insistence on maintaining them became the basis for the American Revolution.

1111

About $5 a day, according to a conversation with Arthur Wilkes, who was an assembly line worker during that period.

1112

New York Times, Dec. 25, 1934.

1113

New York Times, Nov. 6, 1936.

1114

Given that most reliable U.S. designs now in use (1919A4, 1917A1, ANM2, MG52A, M2HB, BAR, M14, M1A1) were all developed by private citizens, and the guns with major flaws (M60) were designed by companies, Chinn’s comment cannot be disregarded.

1115

“You could not run a coal company without machine guns” is a quote widely ascribed to industrialist Richard B. Mellon. Other large companies with union problems (auto manufacturers, for example) also purchased machine guns.

1116

Special Occupational Taxpayers are those who pay an annual licensing fee to actively deal in NFA-regulated items.

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN536 ROSS, AUTHOR, UNITENDED CONSEQUENCES

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES In almost every published description of the National Firearms Act of 1934 is a mention of the 1929 “St. Valentine’s Day Massacre”1117(16), and a statement to the effect that the Act was passed because machine guns were being used with horrible results by bootleggers and other organized crime figures. There are several things wrong with this claim. First, it is laughable to hope that people for whom murder is a standard business practice will go present themselves to the local police chief to get fingerprinted, and pay $200 for the privilege. Similarly, it is ludicrous to think that putting legal restrictions on firearms will reduce their availability to those people whose entire livelihood involves finding, buying, transporting, selling, and delivering illegal goods. Second, the highly publicized incidents of underworld gangs machinegunning each other over liquor shipments stopped overnight with the repeal of Prohibition, which occurred a full year before passage of the National Firearms Act. Third, the Act also affects weapons other than machine guns; rifles and shotguns with barrels or overall lengths below a certain minimum are regulated by the NFA. It is very difficult to conceive of a reason why the owner of a shotgun with a barrel 17-1/2” long should be charged with a felony I he refuses to be fingerprinted and pay $200, when owning a shotgun with a barrel a half-inch longer is no crime at all. To compound this utter absence of logic, under the National Firearms Act a person becomes a felon if he affixes a piece of wood to the butt of his pistol (doubling the weapon’s physical size), for he is now in possession of a “short-barreled rifle”, which is covered by the Act. To make the final leap from the illogical to the ridiculous, the Act regulates noise mufflers, which are not firearms at all. Hollywood to the contrary, the FBI has been unable to document a single case of a firearm silencer being used in a crime in the last fifty years.1118 Given that the citizens fire upwards of six billion rounds of ammunition per year,1119 the inclusion of silencers into the NFA is one of the greatest contributors to hearing loss in the United States and therefore must be regarded as one of the largest Public Health blunders of this century.1120 The real reason for the passage of the National Firearms Act can be summed up in four words: Expansion of federal powers. In 1934, two major changes had recently occurred in the United States. The first was that Franklin Roosevelt had initiated an exponential increase in the size and power for the federal government. The second change was the ratification of the Twenty-first Amendment, which repealed Prohibition. Let us examine the latter incident first. In the thirteen years that Prohibition had been in effect, there was a great proliferation of people involved in the illicit manufacture, importation, and distribution of alcohol. This in turn produced a tremendous expansion of the Treasury Department and the number of its agents.1121 With repeal, the liquor distribution was done by 1117

Al Capone, irritated at having fifteen of his men killed in three months by ‘Bugs’ Moran’s North-side gang, arranged a trap. On his orders, a truckload of stolen whiskey was offered to the North-siders at an attractive price, with another truckload to follow if Moran was satisfied. He was, and the second truck was sent to a trucking warehouse owned by Moran. As this second delivery was being made, a car appearing to be a Chicago Police vehicle pulled up. The “officers” lined Moran’s gang up against a wall, and the North-siders assumed it was time to pay off the policemen. Instead, the men dressed as officers (but working for Capone) killed all seven of them, using two Thompson Submachine Guns. The date was February 14, 1929.

1118

Pillows and blankets have been used, because they more completely eliminate the noise. Knives are also very commonly used as murder weapons.

1119

Spokesmen for Olin-Mathieson and Remington-Peters state that these two companies produce over two billion rounds each for domestic consumption. With other companies and imports added in, the actual total is much higher.

1120

Many European rifle ranges mandate use of silencers for this reason.

1121

The actual increase in the number of agents is unknown. The treasury’s budget for this type of work in 1932, however, was over ten times what it had been in 1918.

537JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES legitimate businessmen, and thousands of Treasury agents were idled. Federal legislation levying $200 taxes on goods worth between $3 and $100 was guaranteed to promote non-compliance by the citizens, thereby giving former Prohibition agents something to enforce. It is interesting to note that the original draft of the National Firearms Act included all handguns then in existence in the United States. Because of the handgun language, some of the strongest opposition to the original version of the National Firearms Act came from women, who were vulnerable to attack from stronger assailants and got the greatest benefit from being able to carry a small weapon for personal protection. The number of pistols and revolvers in the U.S. in 1934 has been variously estimated at between thirty and one hundred million.1122 Compare this figure with perhaps one million machine guns and shortbarreled long guns that fell under the Treasury’s jurisdiction in the National Firearms Act’s final form. 1123 One can only guess at what would have happened if in 1934 the government had told every citizen to cough up $200 for each handgun he owned that he might someday want to take or ship across state lines. The removal of handguns from the National Firearms Act may explain the odd inclusion of silencers in the legislation. In the first third of this century, silencers were commonly available in any store where firearms were sold. The term “silencer” is in fact a misnomer. It was a trade name coined by Hiram P. Maxim, and automotive engineer who applied the principles of muffler design to safety valves, compressors, blowers, and firearms.1124 A “silencer” does not make a firearm noiseless, any more than the muffler on a diesel truck exhaust conceals the fact that the truck is approaching.1125 With the 1934 Act making it a felony to transport common noise mufflers in interstate commerce without paying $200 (each!) to the government, millions of citizens were now in violation of federal law. Although the National Firearms Act stipulated a grace period where owners could register three weapons and silencers free of charge, the Treasury reported that a grand total of 15,791 registrations occurred in this period(25). 1126 This indicates approximately 1% compliance. The 1934 Act was thus a huge success at turning millions of citizens into criminals. The National Firearms Act fit in perfectly with the systematic creation of government programs and deficit spending that Franklin Roosevelt immediately began to institute the instant he took office. The NFA was a model vehicle for the continued expansion of government power: It was arbitrary (i.e. the 18-inch rule); it gave the government sweeping authority over something very common; it focused on inanimate objects rather than criminal behavior; it levied draconian taxes on these objects; and most importantly, it created millions of criminals with the stroke of a pen, just as Prohibition had.

1122

Domestic production of handguns in 1928 exceeded 5 million units. Given that firearms almost never wear out, the 100 million figure may actually be low. 1123

This number takes known domestic sales and assumes that, on average, one out of every three soldiers returning from WWI brought back one machine gun. If the discussions I have had with WWI vets are typical, the 1 million figure is low.

1124

Hiram Percy Maxim was the son of Hiram Stevens Maxim, who invented the first practical machine gun in 1884. No evidence has been found to indicate that the National Firearms Act was intended to single out the inventions of the Maxim family. It just ended up that way.

1125

Noise reducers for firearms are less effective than those for engines for two reasons: first, gas pressure in a gun barrel is much higher than exhaust pressure in a tailpipe. Second, a design for a gun must include a straight, open path from the gun’s muzzle to the exit end of the silencer to permit passage of the bullet. A muffler for an engine may employ all manner of reversing baffles, diffusing screens, and serpentine pathways to redirect exhaust gases that don’t contain chunks of lead travelling at supersonic speeds.

1126

New York Times, December 25, 1934.

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN538 ROSS, AUTHOR, UNITENDED CONSEQUENCES

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES A clear example of the fact that the National Firearms Act had nothing to do with crime and everything to do with government power occurred immediately prior to its passage. Senator Hatton Sumners of Texas, the Chairman of the House Judiciary Committee, had been a virulent opponent of the proposed bill and had bottled it up because it “did violence to states’ rights.” 1127 On April 23, 1934, Roosevelt called Sumners into the White House for a chat. Sumners agreed to vote for passage.1128

ENFORCEMENT OF THE NATIONAL FIREARMS ACT PRIOR TO 1968 After the NFA was passed, sales of affected items came to an abrupt halt. Domestic firearms manufacturers stopped producing any long guns with barrels shorter than 18 [inches]. They also quit making any pistols with lugs on the butt for shoulder stocks. Manufacturers of noise reducers (most notably the Maxim Silencer Co.) went out of business entirely. After the short grace period, citizens who owned NFA-regulated items on which the tax had not been paid had several choices. The first was to pay $200 to the Treasury for each item. In 1934, no one did this. The second choice was to relinquish NFA-regulated items to the Treasury without any compensation. No one did this, either. The third option, theoretically at least, was to avoid selling or transporting anything covered under the Act outside the state. The fourth was to disassemble the machine gun, short-barreled long gun, or silencer so that it was inoperable, and keep the parts separate. In the case of short-barreled arms, the owner could also replace the barrel with one of 18” or longer, and have a legal, functioning gun again without paying $200. Short-barreled rifles and shotguns were produced in low numbers in the years prior to 1934 1129 but the same could not be said for machine guns. The Colt-manufactured Thompson, BAR, and belt-fed Brownings had all been produced in large numbers and had been available on the civilian market for over a decade. Furthermore, two million American soldiers had been sent to Europe in WWI, and over half of these had served in combat units. These veterans had brought back many “war trophies”, as they were called, with complete legality.1130 Machine guns were a relatively new and interesting battlefield weapon in 1918,1131 and captured examples were brought home by most soldiers. A conservative estimate of the full-automatic WWI weapons brought into the United States by the returning two million veterans is one million.1132 Other knowledgeable sources place the figure at over twice that.1133 The Treasury Department decreed that the owners of these weapons could either register them for $200, or remove critical parts (such as the bolt) from them, which would render them inoperable. In this latter case, the gun was no longer considered a weapon subject to registration and $200 tax, but rather a “DEWAT”, which was the Treasury Department’s acronym (sort of) for Deactivated War Trophy.

1127

William J. Helmer, The Gun That Made the Twenties Roar (London: MacMillan & Co., 1969) p.125.

1128

New York Times, April 24, 1934.

1129

Ithaca Gun Company produced the “Auto and Burglar” gun and Harrington and Richardson made the “Handi-gun” in modest numbers. Both are now collector’s items.

1130

Bringing home U.S. ordnance is technically theft of government property, but at the end of a war it is typical for a U.S. soldier to keep the weapon he carried in combat without comment from the authorities. Arms captured from the enemy have always (prior to 1968) been acceptable for U.S. soldiers to bring home.

1131

WWI was the first major war fought with them.

1132

Thomas J. Fleming, in a phone conversation 8/27/70.

1133

Lt. Col. George M. Chinn, author of the now-declassified 2000-page work The Machine Gun for the Department of the Navy, in a phone conversation 8/30/70.

539JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES When agents encountered an otherwise law-abiding citizen with a non-taxed machine gun in his possession, standard procedure was to give him the choice of paying the $200 tax and registering it “live”, or removing the bolt and/or other internal parts. As years passed, the economy improved, wages and prices went up, and the U.S. fought in two more wars. A few million more veterans returned home from WWII and Korea with a few million more war trophies. By the ‘50s and ‘60s, some citizens actually were paying the $200 tax and getting tax stamps from the Treasury Department on weapons brought back from WWI, WWII, and Korea, and on newly-purchased machine guns from the many manufacturers around the world.

THE GUN CONTROL ACT OF 1968 In 1968, the National Firearms Act was amended by the Gun Control Act of 1968. This 1968 law enacted sweeping infringements on citizens’ rights to purchase and own virtually all types of guns. It also introduced a “sporting use” test on importation of firearms and ammunition. If certain guns or ammunition were determined by the Director of the Treasury to be not suitable for “sporting use”, importation of them was prohibited. The fact that the Bill of Rights concerns the preservation of freedom and not recreation is ignored in the 1968 Act. A 1939 Supreme Court decision ruling that military weapons are Constitutionally protected whereas sporting arms are not 1134 was ignored also. GCA ‘68 also contained language which modified the treatment under the law of NFA-regulated weapons. Since these provisions did not immediately affect nearly as many people as the rest of the new legislation, their significance was not fully understood at the time. Under the new provisions, all existing machine guns in the hands of U.S. citizens had to be registered with the NFA immediately, including DEWATs. A onemonth amnesty was instituted where the $200-per-gun NFA tax was waived. After this amnesty ended, however, registration of machine guns manufactured in the U.S. after the passage of these provisions posed serious problems for citizens and created legal questions that have not to this day been addressed. First of all, among the millions of owners of live machine guns and DEWATs, not everyone knew about the one-month amnesty before it was over. Second, of those who were aware of the one-month grace period, there was tremendous fear that the entire amnesty was a trap and the guns presented for registration would be confiscated. For this reason, only a tiny fraction of the machine guns and DEWATs were submitted for NFA registration during the Amnesty. 1135 The 1968 amendments to the National Firearms Act and the one-time amnesty completely ignored the fact that the Act only applies to those weapons transported in interstate commerce. The 1934 Act does not apply to a machine gun owner who never takes his gun out of state. The 1968 amendments have places such owners in the position where they cannot now comply with the law. An owner of a machine gun on which the tax has not been paid is prohibited by the 1968 amendments from paying the tax and putting the weapon on the NFA registry. This has created a situation not duplicated anywhere else in the entire U.S. Code. As an example of how this law introduces a severe distortion into both the economy and the lives of U.S. citizens, let us look at an example: A coal company heir owns a consecutive numbered pair of Model 1921 Thompson guns, serial numbers 1410 and 1411, which have been in his family in the same location since the mid1920s. In 1965 (but this could be any year between 1934 and 1968), thinking he might someday want to take one of the guns outside the state, he pays $200 and registers one of them (either one) under the NFA 1934. Just to be

1134

U.S. vs. Miller, United States Supreme Court, May 15, 1939.

1135

Many of the people I have spoken to who had a significant number (20 or more) of non-taxed NFA weapons and DEWATs decided to Amnesty – register two or three guns, hedging their bets in case of confiscation.

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN540 ROSS, AUTHOR, UNITENDED CONSEQUENCES

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES safe, he removes the bolt from the other, rendering it inoperable. Prior to GCA 1968, he was in complete compliance with the law. Today, the taxed gun is completely transferable to other citizens, and the gun can change hands an indefinite number of times, providing police and FBI checks are performed and $200 is paid to the Treasury for a tax stamp each time the weapon is transferred. Ownership of the non-taxed gun (the one without the bolt) is a felony,1136 and there is no provision in the law to allow the owner to place the weapon in the NFA registry. He can offer to pay two million dollars instead of two hundred, and he will still be denied registration. Under present interpretations of the 1968 amendments, the 1921 Thomson without the bolt is contraband and must be surrendered to BATF without any compensation. A Model 1921 Thompson is worth between $1500 and $2000 at the time of this writing if it is transferable.1137 The “sporting test” section of the 1968 Act prohibits importation of non-sporting weapons and ammunition into the U.S. This includes importation of U.S.-made weapons produced before 1968 but which were outside the country at the time GCA 1968 was passed. The exemption for this import ban is for military and law enforcement-related sales. Thus, a 1921 Thompson gun currently in England (there are thousands there) may only be imported into the United States by an agency of the U.S. Government, a police department, or a special occupational taxpayer who may then only sell it to one of these two types of purchasers.

THREE-TIER LEGAL STAATUS AND PRICING The example listed above makes it clear that government regulation has created three-tier status for identical manufactured good. Machine guns made in the United States can fall into three categories: a) Fully transferrable to any law-abiding resident1138 upon federal approval after FBI investigation and payment of $200 to the Treasury; b) Transferable (tax-exempt) to Special Occupational Taxpayers, police, of government agencies; and c) contraband weapons which may not be made legal. These three different legal categories result in three different prices for otherwise identical guns. To continue the Thompson example, a transferable, mint-condition 1921 Thompson now brings approximately $1800 on the U.S. collector market.1139 An identical gun recently imported from England and sitting in a customs bonded warehouse will bring at most $150, for it can only be sold to police and government agencies, and these entities are not willing to pay much for obsolete, fifty-year-old weapons. What the third gun is worth is anybody’s guess, for the only buyers for it will be those willing to risk a felony conviction(39).1140

FUTURE OF THE NATIONAL FIREARMS ACT The Gun Control Act of 1968, with its amendment to the National Firearms Act of 1934, is a recent continuation of a trend started during the Roosevelt administration towards more government and less freedom.

1136

As the law is now being interpreted. The case mentioned before where the gun has never crossed state lines has not yet been tested in court.

1137

From current price lists from six Special Occupational Taxpayers licensed to deal in these types of weapons.

1138

Individual state laws may prohibit ownership.

1139

Average of several advertised in dealer publications. Examples with a documented history (i.e. a weapon used by “Pretty Boy” Floyd) command a premium.

1140

Police and dealers I questioned were uneasy about estimating the “street value” of a non-taxed Thompson Submachine Gunn. The only dealer who was willing to say anything at all suggested “Couple hundred bucks, tops” as an estimate.

541JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES Recent and current administrations show no sign of reversing this trend. When freedom is at odds with government policy, one of two things eventually happens: Either freedom is crushed, or political leaders are forced out in disgrace and replaced with guardians of individual liberty.

CONCLUSION The National Firearms Act of 1934 is a bad law. Colonel Chinn has said on many occasions that the 1934 Act is the single most devastation piece of legislation to this nation’s defense ever enacted. From an economic viewpoint, the NFA of 1934 is a bad law because its tax is so high that it stops enterprise cold and distorts the free market. NFA 1934 is a bad law because it raises virtually no revenue at all, when a $5 tax and relaxed regulations might easily raise millions of dollars for the Treasury Department. The 1968 amendments to the 1934 Act are bad law because these amendments actually prohibit those people who want to pay the tax on their guns from doing so. These 1968 amendments have made criminals out of people with no criminal intent, and give these citizens no option other than to surrender their property with no compensation. These are the kinds of laws which led to the American Revolution. The National Firearms Act of 1934 should be repealed in its entirety.1141

1141

Emphasis in orginal.

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN542 ROSS, AUTHOR, UNITENDED CONSEQUENCES

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES

543JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY

EXHIBIT 19 – KOPEL, THE NATURAL RIGHT OF SELF-DEFENSE: HELLER’S LESSON FOR THE WORLD

EXHIBIT 19. David B. Kopel, The Natural Right of Self-Defense: Heller’s Lesson for the World, 58 Syracuse Law Revie __ (2008)

The Natural Right of Self-Defense: Heller’s Lesson for the World By David B. Kopel1142 One of the most important elements of the District of Columbia v. Heller decision is the natural law. Analysis of natural law in Heller shows why Justice Stevens’ dissent is clearly incorrect, and illuminates a crucial weakness in Justice Breyer’s dissent. The constitutional recognition of the natural law right of self-defense has important implications for American law, and for foreign and international law.

I. The Natural Law in Right of Armed Defense A. In the Heller Case Heller reaffirms a point made in the 1876 Cruikshank case. The right to arms (unlike, say, the right to grand jury indictment) is not a right which is granted by the Constitution. It is a pre-existing natural right which is recognized and protected by the Constitution: it has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The Second amendment declares that it shall not be infringed…”1143 As Heller pointed out, the 1689 English Declaration of Right (informally known as the English Bill of Rights) was a “predecessor of our Second Amendment.”1144 According to the Declaration: “[T]he subjects which are Protestants may have arms for their defense suitable to their conditions and as allowed by law.”1145 The Convention Parliament which wrote the Declaration of Right stated that the right to arms for defense was a “true, ancient, and indubitable right.” Yet as Joyce Malcolm has detailed,

1142

Research Director, Independence Institute, Golden, Colorado. Associate Policy Analyst, Cato Institute, Washington, D.C. J.D., University of Michigan, 1985. In Heller, Kopel wrote the amicus brief for the International Law Enforcement Educators & Trainers Association, and other law enforcement organizations and leaders; the brief was cited four times in Justice Breyer’s opinion. Kopel was one of three lawyers who joined Alan Gura at the Supreme Court counsel table on March 18, 2008, to assist Gura in his presentation of the oral argument.

1143

District of Columbia v. Heller, 554 U.S.---, 128 S.Ct. 2783, 2797-98 (2008).

1144

Id. at 2798.

1145

1 W. & M., c. 2, §7 (1689).

544 EXHIBIT 19 – KOPEL, THE NATURAL RIGHT OF SELF-D EFENSE: HELLER’S LESSON FOR THE WORLD

EXHIBIT 19 – KOPEL, THE NATURAL RIGHT OF SELF-DEFENSE: HELLER’S LESSON FOR THE WORLD

1689 was the first time that the right to arms had been formally protected by a positive enactment of English law.1146 The explanation is simple. The Convention Parliament did not believe that it was creating new rights, but simply recognizing established ones. Although previous Parliaments had not enacted a statute specifically to protect the right of armed self-defense, British case law since 1330 had long recognized an absolute right to use deadly force against home invaders.1147 The right to self-defense itself, along with its necessary implication of the right to use appropriate arms for self-defense, was considered to be firmly established by natural law. Thus, Heller quoted Blackstone’s treatise (which was by far the most influential legal treatise in the Early American Republic1148 ) explaining that the Declaration of Right protected “the natural right of resistance and self-preservation,” which was effectuated by “the right of having and using arms for selfpreservation and defence.”1149 Some other parts of the Heller opinion include citations to sources describing the right of armed self-defense as a “natural” or “inherent” right. The majority writes that “Justice James Wilson interpreted the Pennsylvania Constitution’s arms bearing right, for example, as a recognition of the natural right of defense ‘of one’s person or house’ — what he called the law of ‘self preservation.’”1150 Likewise quoted with approval is the 1846 Georgia Supreme Court decision Nunn v. State, which “construed the Second Amendment as protecting the ‘natural right of self-defence’.”1151 Similarly, “A New York article of April 1769 said that ‘[i]t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence.”1152 Thus, the Heller opinion concludes: “As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right.”1153 Heller’s recognition

1146

Joyce Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 117-18 (1994).

1147

David Caplan & Susan Wimmershoff-Caplan, POSTMODERNISM AND THE MODEL PENAL CODE, 73 UMKC L. Rev. 1080 (2005). 1148

“Blackstone, whose works, we have said, ‘constituted the preeminent authority on English law for the founding generation,’ Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen.” Heller at 2798.

1149

Slip op. at 20, quoting 1 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND *139–40 (1765); see also Heller at 2792, n. 7: “W. Duer, OUTLINES OF THE CONSTITUTIONAL JURISPRUDENCE OF THE UNITED STATES 31–32 (1833) (with reference to colonists’ English rights: ‘The right of every individual to keep arms for his defence, suitable to his condition and degree; which was the public allowance, under due restrictions of the natural right of resistance and self-preservation’).” 1150

Heller at 2793.

1151

Id. at 2809.

1152

Id. at 2799, quoting A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769.

1153

Id. at 2817. The opinion includes other statements that self-defense is a right. Id. at 2820 (“It is inconceivable that this law would have been enforced against a person exercising his right to self-defense on New Year’s Day against such drunken hooligans.”), at 2801 (“Justice Breyer’s assertion that individual self-defense is merely a ‘subsidiary interest’ of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self defense had little to do with the right’s codification; it was the central component of the right itself.”).

545 EXHIBIT 19 – KOPEL, THE NATURAL RIGHT OF SELF-DEFENSE: HELLER’S LESSON FOR THE WORLD

gton

EXHIBIT 19 – KOPEL, THE NATURAL RIGHT OF SELF-DEFENSE: HELLER’S LESSON FOR THE WORLD

self-defense as a natural right was consistent with the same view in The Federalist,1154 in most state constitutions,1155 and in case law from before the Civil War to modern times.1156 [Plaintiff’s Note: Footnote 15 is Converted to Text Here Due to its Large Size]: See, e.g., Isaacs v. State, 25 Tex. 174, 177 (1860)(“ It is the necessity of the case, andthat only which justifies a killing--on that necessity the right to kill rests, and when the necessity ceases, the right no longer exists. This limitation, which the law puts on the right of self-defense, is founded on the same law of nature and reason which gives the right of defense; and it does not restrain it, but protects it and prevents its abuse by those who would, under its color and the pretense of defense, seek to gratify revenge or an occasion to kill.”). Konigsberger v. Harvey, 12 Or. 286, 7 P. 114 (1885) (“The law upon that subject is the same as it was 500 years ago. The right of self-defense is a natural right, inherent in mankind…”); State v. McGonigle, 14 Wash. 594, 45 P. 20 (1896) (“The plea of self-defense rests on the natural right.”);

y

Thornton v. Taylor, 19 Ky. L. Rptr. 320, 39 S.W. 830 (Ky., 1897) (“The right of self-defense is a natural right…);

s

St. Louis Southwestern Ry. Co. v. Berger, 64 Ark. 613, 44 S.W. 809 (1898) (Railroad cannot be sued because of an employee’s act of lawful self-defense. The employee’s self-defense is “not within any employment he may make, being a natural right which he can neither surrender, nor gratify by any contractual act…”);

an Terr. Robinson v. Territory, 16 Okla. 241, 85 P. 451 (Indian Terr., 1905)(“The right of self-defense is founded upon the natural right of a man to protect himself against the unlawful assault upon him by another.”);

in

Miller v. State, 119 N.W. 850, 857 (Wis. 1909)(“the divine right of self-defense”). Railroad Commission of Ohio v. Hocking Valley R. Co. 82 Ohio St. 25, 91 N.E. 865 (1910)(“By universal consent self-defense is recognized as a natural right of every individual and of every collection of individuals.”);

ia

People v. Watson, 165 Cal. 645, 133 P. 298 (1913) (“While defendant’s conduct with the woman was immoral, it did not take away from him the natural right of self-defense…”);

i

State v. Arnett, 258 Mo. 253, 167 S.W. 526 (Mo., 1914)(If statute against exhibiting a weapon in an angry manner “was designed to abrogate the right of self-defense, and if its effect be to do so, it is then more than possible that its constitutional validity might well be questioned, for that it whittles away a 1154

THE FEDERALIST, no. 28 (Alexander Hamilton) (“that original right of self-defense which is paramount to all positive forms of government”).

1155

David B. Kopel, Paul Gallant, & Joanne D. Eisen, THE HUMAN RIGHT OF SELF-DEFENSE, 22 BYU J. Pub. L. 43, 101-02, 128 (2008)(35 U.S. state constitutions affirm that human rights are inherent, natural, or created by God; 37 state constitutions affirm a right of self-defense, sometimes, but not always, articulated in the same clause as right to arms).

1156

[Plaintiff’s Note: Footnote 15 is converted to text due to its large size.]

546 EXHIBIT 19 – KOPEL, THE NATURAL RIGHT OF SELF-D EFENSE: HELLER’S LESSON FOR THE WORLD

EXHIBIT 19 – KOPEL, THE NATURAL RIGHT OF SELF-DEFENSE: HELLER’S LESSON FOR THE WORLD

part of that ‘natural right to life, liberty and the enjoyment of the gains of their own industry,’ which is vouchsafed to the citizen by the organic law. Section 4, art. 2, Const. Mo.”);

linois

People v. Burns, 300 Ill. 361, 366, 133 N.E. 263 (Ill. 1921)(“When a citizen exercises the right of selfdefense, he is not taking the law into his own hands. He is simply exercising a natural right which the law recognizes and protects.”);

ouisiana

Allen v. Currie, 8 La. App. 30 (La. App., 1928)(“even men of mature years will, in the exercise of their natural right of self-defense, meet or repulse any aggressor who may attempt to encroach on their rights. This is unquestionably true.”);

ouisiana

National Life & Acc. Ins. Co. v. Turner, 174 So. 646, (La. App., 1937) (“The right of self-defense is a natural right.”);

Oklahoma

Hummel v. State, 69 Okla. Crim. 38, 99 P.2d 91 (Okla. Crim. App., 1940) (“the law adopts the natural right of self-defense, because it considers the future process of law an inadequate remedy for present injuries accompanied with force.”);

labama

Finch v. State, 445 So. 2d 964, 966 (Ala. Crim. App., 1983)(“We agree with proposition expounded in Blankenship, supra, that: ‘Self-defense is a common instinct and a natural right, and, as we understand it, means standing one’s ground and repelling, as a means of self-protection, unprovoked force with force.’”);

olorado

People v. Young, 825 P.2d 1004, 1007 (Colo. App., 1991)(citing the 1960 Colorado Supreme Court decision Vigil v. People that “self-defense is a natural right which is based on the law of selfpreservation”); Even in the South on the eve of the Civil War, the natural right of self-defense guaranteed the right to a free black to use violence against a white law enforcement officer: The conviction of the defendant may involve the proposition that a free negro is not justified, under any circumstances, in striking a white man. To this, we cannot yield our assent… … An officer of the town having a notice to serve on the defendant, without any authority whatever, arrests him and attempts to tie him!! Is not this gross oppression? For what purpose was he to be tied? What degree of cruelty might not the defendant reasonably apprehend after he should be entirely in the power of one who had set upon him in so highhanded and lawless a manner? Was he to submit tamely?--Or, was he not excusable for resorting to the natural right of self-defense? Upon the facts stated, we think his Honor ought to have instructed the jury to find the defendant not guilty. There is error. Venire de novo.

rth Carolina State v. Davis, 52 N.C. 52 (7 Jones) (1859). A decision from a few decades earlier shows the connections with the English and American common law natural right: the right of necessary defence, in the protection of a man’s person or property, is derived to him from the law of nature, and should never be unnecessarily restrained by municipal regulation. However proper it may be for every well ordered community to be tender of the public peace, and careful of the lives of its citizens, there can be neither policy or propriety in extending this tenderness and care so far as to 547 EXHIBIT 19 – KOPEL, THE NATURAL RIGHT OF SELF-DEFENSE: HELLER’S LESSON FOR THE WORLD

EXHIBIT 19 – KOPEL, THE NATURAL RIGHT OF SELF-DEFENSE: HELLER’S LESSON FOR THE WORLD

protect the robber, the burglar and the nocturnal thief, by an unnecessary restraint of the honest citizen’s natural right of self-defence. Sir Matthew Hale, in speaking on this subject, says, “the right of selfdefence in these cases is founded in the law of nature, and is not, nor can be superceded by the law of society. Before societies were formed, the right of self defence resided in individuals, and since, in cases of necessity, individuals incorporated into society, can not resort for protection to the law of society, that law with great propriety and strict justice considereth them as still, in that instance, under the protection of the law of nature.”

ucky

Gray vs. Combs, 30 Ky. 478 (1832). Hale was Lord Chief Justice of England from 1671-76, and one of the most influential of all common law judges and treatise authors. The quote actually appears to be from Michael Foster, CROWN CASES AND CROWN LAW 273-74 (1762). Foster was a judge of the Court of King’s Bench from 1745 to 1763, and was much respected by Blackstone. The quote, with attribution to Foster, appears in the 1847 American annotated edition of Matthew Hale, 1 HISTORY OF THE PLEAS OF THE CROWN 478 n.1 (W.A. Stokes & A. Ingersoll eds., Phil., 1847)(1732)(note added by editor). Because the 1847 “first American edition” of Hale post-dates the 1832 Kentucky court decision, it seems probable that the Kentucky court was using an English edition of Hale which also included an editor’s annotation with the Foster language.

nia

To muddy the trail a little further, part of the quote appears in Parrish v. Commonwealth, 81 Va. 1 (1884), citing to Hale as quoted in “Rutherforth Institutes”—which means Thomas Rutherforth, INSTITUTES OF NATURAL LAW: BEING THE SUBSTANCE OF A COURSE OF LECTURES ON GROTIUS DE JURE BELLI ET PACIS READ IN ST. JOHN’S COLLEGE, Cambridge ch. 16 (1st pub. 1754-56) (a series of Englishlanguage lectures on Grotius [infra] and natural law; Rutherforth’s treatise was very popular in the United States in the 18th and 19th centuries). Cf. Commonwealth v. Riley, Thacher’s Crim. Cas. 471, 474-75 (Boston Mun.Ct., Mass., 1837) (citing Foster: “In the case of justifiable self-defence, the injured party may repel force by force in defence of his person, habitation, or property, against one who manifestly intendeth and endeavors by violence or surprise, to commit a known felony upon either. It is justly considered that the right in such case, is founded in the law of nature, and is not, nor can be superseded by any law of society. There being at the time no protection from society, the individual is remitted for protection to the law of nature.”). B. Roots of the Right Although some modern scholars deny that natural law exists, there is no dispute that the Founders strongly believed in it.1157 In a constitutional sense, the natural law basis of the right to armed 1157

See, e.g., John Hart Ely, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980). Ely, who denies natural law, argues that judicial review should be limited to situations where the ordinary democratic process has failed to protect the rights of minorities. His theory would lead to same result in Heller. Every state legislature in the United States includes representatives from urban, suburban, and rural districts. The diversity of constituencies helps ensure that legislators have a diversity of life experiences, and makes it possible to legislators to explain to their colleagues aspects of daily life which may be unfamiliar. For example, a rural legislator may not understand from personal experience how big-city traffic jams waste so much time for suburban parents who are picking up children school or daycare, and shuttling them to sports or music lessons; but the rural legislator can learn about the problem by talking to her suburban colleagues. Similarly, an urban legislator may have no personal understanding of the traditional role of the shooting sports in American life, but a rural legislator can explain it to her. The District of Columbia, however, is a compact and densely-populated city. Its members represent only urban areas, so the Council necessarily suffers from a unique lack of intellectual and life-experience diversity, compared to state legislators. Moreover, the current Council’s predecessors worked to eradicate the culture of legitimate firearms usage within the District; zoning rules outlaw indoor shooting ranges throughout the District. Because of the urban-only structure of

548 EXHIBIT 19 – KOPEL, THE NATURAL RIGHT OF SELF-D EFENSE: HELLER’S LESSON FOR THE WORLD

EXHIBIT 19 – KOPEL, THE NATURAL RIGHT OF SELF-DEFENSE: HELLER’S LESSON FOR THE WORLD

self-defense is part of the original public meaning of the Second Amendment. That human rights were inherent, and not granted by government, was, after all, the basis on which the nation was created: “We hold these truths to be self-evident: that all men are endowed by their Creator with certain unalienable rights.”1158 “Natural law” as a term of legal art was originally based on Catholic legal thought. In the twelfth century, Gratian’s “Treatise of the Discordant Canons” consolidated and synthesized disparate sources in various canon laws (church laws). He began with an explanation of natural law: Natural law is common to all nations because it exists everywhere through natural instinct, not because of any enactment. It includes the union of men and women, the succession and rearing of children, the identical liberty of all in the acquisition of those things, which I omit, which are taken from the earth or at sea, the return of a thing deposited or of money entrusted, and the repelling of violence by force. This, and anything similar, is never regarded as unjust but is held to be natural and equitable.1159 Gratian’s formulation of the natural right of “repelling violence by force” was similar to an expression of the same principle in Roman Law.1160 In the five centuries from Gratian to the American Constitution, the concept of natural law, including natural rights, was developed by Catholic Scholars such as Thomas Aquinas, Francisco de Vitoria, Juan de Mariana, and Francisco Suárez (who called selfdefense “the greatest of all rights”). From the personal right of self-defense against lone criminals, they derived the people’s right of selfdefense against criminal, tyrannical governments.1161

the District’s government, it is uniquely susceptible to bigotry and irrational prejudice against law-abiding gun owners. To cite but one example, the District was the only government in the United States which forbade legal firearms owners from using their guns for self-defense in the home. 1158

United States, DECLARATION OF INDEPENDENCE, para. 2 (1776).

1159

Gratian, THE TREATISE ON LAWS (Decretum Dd. 1-20) WITH THE ORDINARY GLOSS 6 (Augustine Thompson & James Gordley trans., Catholic U. Pr. of America, 1993)(approx. 1150)(Distinction One, case 7, § 2). In the original: Ius naturale est commune omnium nationum, eo quod ubique instinctu naturae, non constitutione aliqua habetur, ut uiri et feminae coniunctio, liberorum successio et educatio, communis omnium possessio et omnium una libertas, acquisitio eorum, quae celo, terra marique capiuntur; item depositae rei uel commendatae pecuniae restitutio, uiolentiae per uim repulsio. Nam hoc, aut si quid huic simile est, numquam iniustum, sed naturale equumque habetur. Like self-defense, the natural law right of marriage and child-raising is not enumerated in the United States Constitution, but is a constitutionally-protected fundamental right. See, e.g., Zablocki v. Redhail 434 U.S 374 (1978)(marriage as fundamental right); Meyer v. Nebraska, 262 U.S. 390 (1923) (raising children). 1160

The key Roman law rules for self-defense rule were “arms may be repelled by arms” and “it is permissible to repel force by force.” DIG. 43.16.1.27 (Ulpian, Edict 69) (“Cassius writes that it is permissible to repel force by force, and this right is conferred by nature. From this it appears, he says, that arms may be repelled by arms.”).

1161

See David B. Kopel, THE CATHOLIC SECOND A MENDMENT, 29 Hamline L. Rev. 519 (2006) (Aquinas and Mariana); David B. Kopel, Paul Gallant, & Joanne D. Eisen, THE HUMAN RIGHT OF SELF-DEFENSE, 22 BYU J. Pub. L. 43 (2008) (Vitoria and Suárez); see also David B. Kopel, SELF-DEFENSE IN ASIAN RELIGIONS, 2 Liberty L. Rev. 79 (2007) (Hinduism, Sikhism, Confucianism, Taoism, and [in practice] Buddhism all respect self-defense as an inherent right; that the Asian religions have, in this regard, quite similar attitudes to Western religions provides an important data point in support of the theory that natural law is a real phenomenon).

549 EXHIBIT 19 – KOPEL, THE NATURAL RIGHT OF SELF-DEFENSE: HELLER’S LESSON FOR THE WORLD

EXHIBIT 19 – KOPEL, THE NATURAL RIGHT OF SELF-DEFENSE: HELLER’S LESSON FOR THE WORLD

Few Americans were familiar with these Catholic scholars, except for Aquinas. The AngloAmericans learned the language of natural rights, including the natural right of self-defense, from Protestant thinkers who had adopted the Catholic self-defense theories. The first of these writers were the persecuted Protestants of sixteenth-century France and England, including Theodore Beza, Peter Martyr Vermigli, and Christopher Goodman. For the Americans, the most influential were John Poynet, author of A SHORTE TREATISE OF POLITIKE POWER (1556), and the pseudonymous Marcus Junius Brutus, who wrote VINDICIAE CONTRA TYRANNOS (Vindication Against Tyrants) in 1579.1162 According to John Adams, Vindiciae was one of the leading books by which England’s and America’s “present liberties have been established.”1163 Adams wrote that there were three key periods in English history where scholars addressed the problems of tyranny and the proper structure of governments. The first of these, according to Adams, was the English reformation; next, when John Poynet put forth “all the essential principles of liberty, which were afterward dilated on by Sidney and Locke.”1164 The Founders were also familiar with the great writers of international law, who based their entire system on the foundation of the natural right of self-defense. Hugo Grotius, the most important writer of all time in international law, built the laws of international warfare by extrapolation from the natural right of personal defense.1165 Samuel von Puffendorf, who extended and elaborated Grotius’s work on international law and political philosophy, called self-defense the foundation of civilized society.1166 The DECLARATION OF INDEPENDENCE affirms that governments are created for the purpose of protecting natural rights.1167 Accordingly, a necessary feature of a legitimate government will be the protection of natural rights. As the Supreme Court explained in Cruikshank, the right to assemble and the right to keep and bear arms were, each, “found wherever civilization exists.”1168 Although personal 1162

See Marcus Junius Brutus, VINDICIAE, CONTRA TYRANNOS: OR, CONCERNING THE LEGITIMATE POWER OF A PRINCE OVER THE PEOPLE, AND OF THE PEOPLE OVER A PRINCE (George Garnett ed., 1994)(1st Pub. 1579); Douglas F. Kelly, THE EMERGENCE OF LIBERTY IN THE MODERN WORLD: THE INFLUENCE OF CALVIN ON FIVE GOVERNMENTS FROM THE 16TH THROUGH 18TH CENTURIES 44 (1992) (explaining Vindiciae’s debt to Catholic thought); John Dalberg Acton, THE HISTORY OF FREEDOM AND OTHER ESSAYS 82 (1993) (“the greater part of the political ideas” of John Milton and John Locke “may be found in the ponderous Latin of Jesuits who were subjects of the Spanish Crown,” such as Mariana and Suárez). 1163

John Adams, 3 A DEFENCE OF THE CONSTITUTIONS OF THE UNITED STATES OF AMERICA 210-11 (Union, N.J.: The Lawbook Exchange, 2001)(1st pub. Philadelphia, 1797). 1164

Id., at 210. Jefferson described John Locke, Algernon Sidney, Aristotle, and Cicero as the four major sources of the American consensus on rights and liberty, which Jefferson distilled into the DECLARATION OF INDEPENDENCE. Thomas Jefferson, letter to Henry Lee, May 8, 1825.

1165

Hugo Grotius, THE RIGHTS OF WAR AND PEACE (Liberty Fund 2005)(reprint of 1737 English translation by John Morrice of the 1724 annotated French translation by Jean Barbeyrac) (1625).

1166

Samuel Pufendorf, OF THE LAW OF NATURE AND NATIONS (The Lawbook Exchange 2005) (reprint of 1726 London edition of the 1706–07 Barbeyrac French translation and annotation, with English translation by Mr. Carew) (1672). 1167

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” United States, Declaration of Independence, para. 2 (1776).

1168

The right to assemble, with which the right to arms was construed in pari materia: existed long before the adoption of the Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free

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self-defense is not specifically mentioned in the Declaration of Independence, that natural right is the intellectual foundation, in Western philosophy, of the right of the people to defend all their natural rights by using force to overthrow a tyrant.1169

II. The Natural Right’s Implications for the Heller Dissents A. Natural Right and the Stevens Dissent Justice Stevens’ dissent does about as well as possible, given the facts available, on issues such as how much weight to give to the Second Amendment’s preamble, and whether “bear arms” must necessarily mean the carrying of guns only while in military service. Throughout the opinion, he argues passionately for his interpretation, although that interpretation requires the reader to view the evidence from very selectively; the dissent is like the argument that a sheet of paper has only one dimension, because if you look at it from just the right angle, it appears to be a straight line. Vast amounts of evidence have to be willfully ignored. For example, one treatise by Justice Story describes the Second Amendment in terms which are, at least arguably, not necessarily incompatible with Stevens’ militiaonly view.1170 But another treatise by Story, which quoted by the majority, describes the Second Amendment in terms which fit the Heller majority’s view, and which are plainly contrary to the Stevens militia-only theory.1171 The majority opinion discusses both treatises,1172 but Stevens writes at length about the first treatise, ignores the existence of the second treatise, and provides no explanation for having done so.1173 Justice Stevens dismisses the English Declaration of Right, and Blackstone’s description thereof, by contending that they addressed issues which were not of concern to the Founders, who according to Stevens were only thinking about the state ratification debates involving state vs. federal powers over government. It “derives its source,” to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, “from those laws whose authority is acknowledged by civilized man throughout the world.” It is found wherever civilization exists. It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established found it in existence, with the obligation on the part of the States to afford it protection. United States v. Cruikshank, 92 U.S. 542, 551-53 (1876)(including similar analysis regarding the “The right… of ‘bearing arms for a lawful purpose.’ This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”) 1169

Even if one claims that there is no such thing as natural law, the right of self-defense is so well-established in the common law and in long-standing American tradition that it is precisely the type of unemunerated right which requires constitutional recognition. See, e.g., Lawrence v. Texas, 539 U.S. 558, 588 (2003) (Scalia, J., dissenting), citing Washington v. Glucksberg, 521 U.S. 702 (1997) (unenumerated rights should be constitutionally recognized if they are “deeply rooted in this Nation’s history and tradition”); Montana v. Egelhoff, 518 U.S. 37, 56 (1996) (Scalia, J., plurality op.) (“the right to have a jury consider self-defense evidence” has strong support in the “historical record” and may be “fundamental”); Eugene Volokh, STATE CONSTITUTIONAL RIGHTS TO KEEP AND BEAR ARMS, 11 TEX. REV. L. & POL. 191 (2006) (many state right to arms provisions explicitly mention self-defense). 1170

3 Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1858 (1833)

1171

Joseph Story, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES § 450 (1840) (“One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia.”). 1172

Heller, at 2798, 2800, 2806-07

1173

Id. at 2839-40 (Stevens, J., dissenting).

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the militia.1174 Stevens’ view is contrary to that of James Madison, the author of the Second Amendment. In Madison’s notes for his speech introducing the Bill of Rights into the House of Representatives, he described arms rights amendment a remedying two crucial defects in the English Declaration of Right: that the right included only the Protestant population, and that the right was, as a statutory enactment, efficacious against the king, but not against the actions of later Parliaments.1175 But even without reference to Madison’s notes, the Stevens theory that the Second Amendment does not include the right of self-defense simply collapses when one gets to the word “the”. The Second Amendment does not purport to grant a right, but instead declares that “the right…shall not be infringed.” Thus, the Second Amendment guarantees a preexisting right. The Heller majority says so,1176 and Stevens concedes the point.1177 What was that pre-existing right? There are only two possibilities. One, as explicated by Scalia (consistent with Madison), is that the right is the English/Blackstone/natural right of arms for self-defense. Stevens, however, contends that “the” right is the right to serve in an armed militia. Only if he is correct about this point can his dissent as a whole be correct that the Second Amendment is purely about a right to have arms while in militia service. There is not a shred of evidence from 1789, or from anytime before 1789, that militia service was a “right.” As Justice Scalia pointed out, the Stevens claim that “the” pre-existing right in the Second Amendment was a pre-existing right to service in the militia is unsupported by any evidence. There is simply no document or other source, from the 18th, 17th, or 16th centuries (or indeed from any century until the 21st, when the claim was invented as part of the Heller litigation) that the Second Amendment was preceded somewhere in Anglo-American law by a right to serve in the militia, or to have arms solely while in the militia. Rather, this novel theory appears in the Heller amicus brief filed by the Brady Center.1178 The brief too is unadorned by any citation for its claim. B. Natural Right and the Breyer dissent

1174

Id. at 2837-38 (Stevens, J., dissenting).

1175

“They [the proposed Bill of Rights] relate 1st. to private rights-- . . . fallacy on both sides--espec[iall]y as to English Decln. of Rts--1. mere act of parl[iamen]t. 2. no freedom of press—Conscience . . . attainders—arms to Protest[an]ts.” James Madison, Notes for Speech in Congress Supporting Amendments (June 8, 1789), in 12 THE PAPERS OF JAMES MADISON 193-94 (Charles F. Hobson et. al. eds., 1979). One can only speculate about the Heller majority did not mention Madison’s notes. The notes were certainly discussed in one of the most important amicus briefs. BRIEF OF ACADEMICS FOR THE SECOND AMENDMENT, at 34-35, District of Columbia v. Heller, http://www.gurapossessky.com/news/parker/documents/07-290bsacAcademicsforSecondAmendment.pdf. Oral argument made it clear that, at least, Justice Kennedy had read that brief. Perhaps Justice Scalia was being absolutely faithful to the “original public meaning” theory of interpretation. That is, consider what the public thought the constitutional language meant; do not try to divine “original intent” two centuries later by looking at diaries of the Founders. 1176

Heller, at 2797-98.

1177

Id. at 2831 (Stevens, J., dissenting).

1178

Amicus brief for the Brady Center to Prevent Gun Violence et al., 18 n. 6, District of Columbia v. Heller, http://www.gurapossessky.com/news/parker/documents/07-290tsacBradyCenter.pdf (pointing out that the state militia systems pre-dated the Constitution, but providing no evidence that militia service was a right). For history of militia litigation in the United States, and the near-total absence of the Second Amendment therefrom, see J. Norman Heath, EXPOSING THE SECOND AMENDMENT: FEDERAL PREEMPTION OF STATE MILITIA LEGISLATION, 79 U. Det. Mercy L. Rev. 39 (2001).

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Most of the Breyer dissent lays out an interest-balancing test, in which Justice Breyer argues that there is some social science evidence in favor of the D.C. handgun ban, and therefore a judge cannot say as a matter of law that the ban is unconstitutional.1179 A crucial step in that interest-balancing test is the weight of the interest on each side. Justice Breyer points out that preservation of arms ownership for use in a citizen militia was a major concern of the Second Amendment.1180 Accordingly, he disputes the majority’s statement that the right of self-defense is “central” to the Second Amendment, and that the “core” of the Second Amendment is armed self-defense of the home.1181 Justice Scalia responded by explaining why interest-balancing was inappropriate for a core constitutional right, but he did not directly address Breyer’s question about why self-defense should be considered part of the core in the first place. However, the answer is fairly clear from the natural law perspective which is incorporated in the majority opinion. Blackstone describes the right to personal defensive arms (protected but not created by the 1689 English Declaration of Right) as a “natural” right. Other sources in the majority opinion make the same point that the Second Amendment protects a “natural” right. Even if balancing were appropriate, Justice Breyer’s scales are inaccurate, because they underweight the importance of self-defense. Surely nothing could be more fundamental than a natural right. The Declaration of Independence, after all, did not begin with a statement of the importance of rights which were created by government (e.g., the right of a citizen to be assisted by his nation’s consular offices when he is traveling in a foreign country). Rather, the Declaration starts with natural, inherent rights, and states that the very purpose of government is to protect these rights. By the Declaration’s principles, the time that is most appropriate for rigorous judicial review is when a government infringes on one of the natural rights which the very government was established to protect. From Grotius, Pufendorf, and many other sources, the Founders could see that self-defense had been protected under the laws of Ancient Rome and Ancient Greece, and from the very inception of the Hebrew nation.1182 The historical episodes when the right of armed self-defense was endangered—the persecution of the disarmed Huguenots in France, the gun bans of the power-mad Stuarts monarchs in 1179

Justice Breyer supported the argument by pointing to gun restrictions in a few cities in early America. The centerpiece of the argument was a Massachusetts law which prevented taking loaded guns into buildings in Boston. Heller, at 2849 (Breyer, J., dissenting) (Providing a fine for any person who “shall take into any Dwelling-House, Stable, Barn, Out-house, Warehouse, Store, Shop, or other Building, within the Town of Boston, any . . . Fire-Arm, loaded with, or having Gun-Powder.”). Justice Breyer took the case as standing for the possibility constitutionality of bans on self-defense guns in the home: “Even assuming, as the majority does, see ante, at 59–60, that this law included an implicit self-defense exception, it would nevertheless have prevented a homeowner from keeping in his home a gun that he could immediately pick up and use against an intruder. Rather, the homeowner would have had to get the gunpowder and load it into the gun, an operation that would have taken a fair amount of time to perform.” Justice Breyer appears to have misread the statute, which only outlawed the taking of guns into buildings. The statute did not prohibit loading a gun within one’s own home or business, and keeping it loaded therein.

1180

The balancing test is offered arguendo, since Justice Breyer explains that he is also joining the Stevens dissent, which argues that there is an individual Second Amendment right, but that right has no application outside of militia service. Heller, at 2847-48 (Breyer, J., dissenting). 1181

Heller, at 2866 (Breyer, J., dissenting) (“at most a subsidiary interest”).

1182

See Kopel, THE HUMAN RIGHT OF SELF-DEFENSE; see also David B. Kopel, THE TORAH AND SELF-DEFENSE, 109 Penn State L. Rev. 17 (2004); David B. Kopel, The RELIGIOUS ROOTS OF THE AMERICAN REVOLUTION AND THE RIGHT TO KEEP AND BEAR ARMS, 17 J. Firearms & Pub. Pol’y 167 (2005)(early Americans’ views of ancient Israel as their role model).

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England, the 1775 confiscation of privately-owned from the people of Boston by General Gage’s army—were precisely the episodes of tyranny which the Founders aimed to ensure would never again take place in the United States of America. From the Founders’ perspective, the right to arms truly was found “wherever civilization exists.”

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III. The Natural Right’s Implication for Future Legal Developments A. Implications for American Law Self-defense has generally been highly regarded by the American public, and Nicholas Johnson has persuasively argued that self-defense is the epitome of an unenumerated Ninth Amendment right.1183 In contrast, some commentary has denigrated self-defense as a privilege, not a right.1184 Heller moves self-defense from the shadowy limbo of the Ninth Amendment into the bright uplands of the Second Amendment. It is now beyond dispute, in an American court, that self-defense is an inherent right, and that it is protected by the United States Constitution. The constitutional history of the right of self-defense is similar to that of the right of association. The right of association is not formally stated in the Constitution. But it is easy to see how if the right did not exist, many of the core purposes of the First Amendment might be defeated. For example, if people could not voluntarily associate in groups such as the NAACP, then their practical ability to petition the government for redress of grievances, to assemble, and to speak out effectively on issues of public importance would be greatly diminished. Thus, starting in 1958, the Supreme Court recognized a constitutional right of association, finding it rooted in the First and Fourteenth Amendments.1185 Over the subsequent half-century, the Court has fleshed out that right, and applied it in many contexts far distant from the original cases involving Jim Crow state governments attempting to suppress the NAACP. In a series of cases in the late nineteenth and early twentieth centuries, the Supreme Court strongly defended the right of self-defense—holding, for example, that carrying a gun for lawful protection was not evidence of murderous intent, and that a crime victim was not required to retreat or to avoid any place where he had a right to be before he could exercise his right to use deadly force in selfdefense.1186 Likewise, the defensive actions of crime-victims should not be subjected to judicial secondguessing; as Justice Holmes memorably put it: “Detached reflection cannot be demanded in the presence of an uplifted knife.”1187 These cases were decided as matters of federal common law, most of them arising out of death sentences improperly imposed on people in the Indian Territory of Oklahoma for use of a gun in self-

1183

See Nicholas J. Johnson, SELF-DEFENSE? 12 J. Law, Econ. & Pol’y 187 (2006).

1184

E.g., Vera Bergelson, RIGHTS, WRONGS, AND COMPARATIVE JUSTIFICATIONS. 28 Cardozo L. Rev. 2481, 2488 (2007)(“All public officials--a policeman performing a valid arrest, a sheriff taking possession of the debtor’s property pursuant to a court judgment, or an executioner giving the prisoner a lethal injection in accordance with the execution order--act under the right to act that way. In contrast, people acting in self-defense, or pursuant to necessity or parental authority act merely under a privilege.”) 1185

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).

1186

See David B. Kopel, THE SELF-DEFENSE CASES: HOW THE UNITED STATES SUPREME COURT CONFRONTED A HANGING JUDGE IN THE NINETEENTH CENTURY AND TAUGHT SOME LESSONS FOR JURISPRUDENCE IN THE TWENTY-FIRST, 27 Am. J. Crim. L. 293 (2000). 1187

Brown v. United States, 256 U.S. 335, 343 (1921) (also declaring there is no duty to retreat).

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defense.1188 Now that Heller has made it clear that selfdefense is part of the Constitution, and not just part of federal common law, there may be plausible arguments that the rules of the Self-Defense Cases are likewise required as a matter of constitutional law. Should the Second Amendment be incorporated against the states, a few jurisdictions might have to change hostile procedural rules against self-defense. For example, until recently, Arizona required that a defendant asserting self-defense must carry the burden of proof.1189 The few states which require retreat by a crime victim in her own home might lose constitutional challenges to those laws. If a judge prohibited a criminal defense lawyer during voir dire from asking potential jurors about whether they had moral objections to self-defense, a criminal conviction from such a jury might be invalid.1190 B. Implications for Foreign Law Heller of course only applies as binding law within the jurisdiction of the United States. However, American constitutional law has a long record of infiltrating into other civilized nations. American protection for freedom of speech and freedom of the press, as well as American antidiscrimination laws, have had significant influence in our fellow democracies. Sometimes that influence is direct, with foreign courts citing American precedents. But more important, in the long run, is the effect that the American example has on the rights-consciousness of the public in those nations. The right to arms has already shown that it travels. In 2006, the people of Brazil overwhelmingly rejected a referendum to ban gun ownership, and proponents of the referendum noted with dismay the success of anti-referendum advertising which urged Brazilians not to surrender their rights.1191 For the last decade, the United Nations has led a concerted global campaign against citizen gun ownership. The global prohibitionists have, to the extent they have acknowledged any American interest in protecting American laws, claimed that the Second Amendment protects no individual right of gun ownership, but is only a “collective” right which no individual has a right to exercise. All nine Justices in Heller rejected that claim, and affirmed that the Second Amendment guarantees an individual right. As a fallback position, some advocates have stated that the American Second Amendment is unique, and that its very absence shows the permissibility of gun prohibition in other nations.1192

1188

Kopel, THE SELF-DEFENSE CASES, supra.

1189

E.g., State v. Farley, 199 Ariz. 542, 544-545, 19 P.3d 1258, 1260-1261 (Ariz. App. 2001) (upholding statutory requirement that criminal defendant prove self-defense by preponderance of evidence).

1190

Black v. State, 829 N.E.2d 607 (Ind. App., 2005) (based on self-defense right in Indiana Constitution).

1191

See David Morton, GUNNING FOR THE WORLD: THE NATIONAL RIFLE ASSOCIATION HAS FOUND THAT ITS MESSAGE -- LOVING FREEDOM MEANS LOVING GUNS -- TRANSLATES INTO ALMOST EVERY LANGUAGE, For. Pol., July 5, 2006: If you asked people in Bosnia, Botswana, or, for that matter, Brazil, what the Second Amendment of the U.S. Constitution stands for, most of them would probably have no idea. But the unexpected defeat of Brazil’s proposed gun prohibition suggests that, when properly packaged, the “right to keep and bear arms” message strikes a chord with people of very different backgrounds, experiences, and cultures, even when that culture has historically been anti-gun. In fact, the Second Amendment may be a more readily exportable commodity than gun control advocates are willing to accept, especially in countries with fresh memories of dictatorship. When it is coupled with a public’s fear of crime -- a pressing concern in most of the developing world -- the message is tailored for mass consumption. 1192

Accord Thomas Gabor, FIREARMS AND SELF-DEFENCE: A COMPARISON Document, Dept. of Just., Canada, July 1997, at 20,

OF

CANADA

AND THE

UNITED STATES, Working

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The latter argument was never really correct as a matter of constitutional law. Three nations besides the United States have a constitutional right to arms, and twenty nations have a formal constitutional recognition of self-defense.1193 Heller’s natural law explication of the inherent right of armed self-defense teaches another very relevant lesson. The right of self-defense is not culturally contingent, and it does not depend on national law. The right of self-defense is a universal, fundamental, natural and inherent human right. Of course there will be many governments which have ignored that right, and will continue to do so. For example, in the United Kingdom and the Netherlands, the principle that there is a right even of unarmed self-defense has been in grave danger—at least among the judiciary and the rest of the governing elites.1194 Yet because Heller was not written solely in terms of positive American law, but rather which explicit recognition of pre-existing natural rights, the case may play a role in reminding the people of the world that they too have “the natural right of resistance and self-preservation,” a right which is necessarily effectuated by “the right of having and using arms for self-preservation and defence.”1195 On the one side of the debate are the Kenyans who say that the central government, which is manifestly unable and unwilling to protect the tribespeople, should rescind its prohibition on their possession of arms. 1196 On the other side is the United Nations, which claims that self-defense is not a http://www.cfc-cafc.gc.ca/pol-leg/reseval/publications/reports/1997/pdfs/selfdef_en.pdf. 1193

Kopel, The HUMAN RIGHT OF SELF-DEFENSE, at 138-41. Self-defense is in the constitutions of Antigua & Barbuda, the Bahamas, Barbados, Belize, Cyprus, Grenada, Guyana, Haiti, Honduras, Jamaica, Malta, Mexico, Nigeria, Peru, Samoa, St. Kitts & Nevis, Saint Lucia, Saint Vincent and the Grenadines, Slovakia, and Zimbabwe. The right to arms is explicit in the Constitutions of Guatemala, Haiti, Mexico, and the United States. Id.

1194

Following years of public pressure, the government of the U.K. in July 2008 amended the self-defense law to clarify and protect some self-defense rights for the victims of home invasions. See Criminal Justice and Immigration Act 2008, 2008 ch. 4, § 76: reasonableness use of the force is to be judged according to the circumstances as the defender perceived them; and must consider “(a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and (b) that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.”; see also Richard Edwards, Crime Correspondent and Chris Hope, “HAVE-A-GO HEROES” GET LEGAL RIGHT TO DEFEND THEMSELVES, The Telegraph (London), July 16, 2008.

1195

A right of self-defense without a right to at least some defensive arms would be a right of little practical utility. It is arms—especially, firearms—which allow a weaker person to defend herself against a stronger attacker or group of attacker. It is the firearm which best makes a deterrent threat of self-defense, while allowing the victim to remain beyond the grasping distance of the stronger assailant(s).

1196

Paul Letiwa, WHY HERDERS WON’T SURRENDER THEIR FIREARMS JUST YET, The Nation (Kenya), April 30, 2008 http://allafrica.com/stories/200804300138.html (“‘‘How can the Government ask us to surrender our guns when we know very well that there is no security for us? If we give out our firearms, say today, who will protect us when the neighbouring tribes strike? How about our stolen livestock? Who is going to return them to us?’ Mr Lengilikwai talks with bitterness.”); Ng’ang’a Mbugua, LAW SHOULD BE CHANGED TO FREE GUNS, The Nation (Nairobi), Apr. 25, 2008, http://allafrica.com/stories/printable/200804251276.html (Noting success of armed defense program of the people of the Keiro Valley, “In the past, critics of liberalising access to firearms have argued that they would put ordinary people’s lives in peril because even squabbles in the streets or the bedroom would be resolved by bullets. Incidentally, such incidents are few and far between in the Kerio Valley despite the easy accessibility of AK- 47s as well as the relatively low levels or education and social sophistication….If Kenya is to achieve long-lasting stability, it ought to borrow a leaf from the US, whose constitution gives the people the right to bear arms and form militias for their own defence should the armed forces fail them,

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right, but is a violation of the right of the criminal attacker, which seeks to outlaw all defensive ownership of firearms, and which has declared that laws in the United States and other nations which allow use of deadly force against rapists and other violent predators are a human rights violation.119756 Heller points to a resolution of the conflict. Long before there was a United Nations, or a United States of America, there were inherent natural rights. The recognition of those rights is as old as civilization itself. Perhaps one of the greatest influences of Heller (and, I hope, its progeny) will be in other nations, where the explicit affirmation of the natural right of self-defense by the most influential court in the world will bolster our global brothers and sisters in their efforts to preserve and strengthen their own natural right of resistance and self-preservation.

as happened in Kenya after the December elections.”). See generally David B. Kopel, Paul Gallant & Joanne D. Eisen, HUMAN RIGHTS AND GUN CONFISCATION, 26 Quinnipiac L. Rev. 383 (2008) (describing gun policies in Kenya, Uganda, and South Africa). 1197

6. See U.N. Human Rights Council, Sub-Comm’n on the Promotion and Prot. of Human Rights, 58th Sess., ADOPTION OF THE REPORT ON THE FIFTY-EIGHTH SESSION TO THE HUMAN RIGHTS COUNCIL, U.N. Doc. A/HRC/Sub.1/58/L.11/Add.1 (Aug. 24, 2006), available at http://hrp.cla.umn.edu/documents/ A.HRC.Sub.1.58.L.11.Add.1.pdf. The United Nations report on self-defense in analyzed in detail in Kopel, THE HUMAN RIGHT OF SELF-DEFENSE, supra.

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EXHIBIT 20 – NICK BRADLEY, NATIONAL SECURITY, SWISS STYLE

EXHIBIT 20. Nick Bradley, National Security, Swiss Style

National Security, Swiss-Style by Nick Bradley

http://www.lewrockwell.com/orig8/bradley1.html June 11, 2007 Nick Bradley is an analyst in the United States Air Force and is currently pursuing an M.A. in Strategic Intelligence at American Military University. Contrary to popular belief, history has repeatedly shown that societies do not need full-time, governmentfunded militaries to defend themselves – a heavily-armed populace will suffice. Let us look at Switzerland. Since 1291, Switzerland has defended itself through the use of a heavily-armed populace and a robust militia. Throughout the past 800 years, the Swiss citizenry has defended their liberty against threats both foreign and domestic.

A Revolt against Taxes and Inflation During the Thirty Years’ War, the Swiss Confederation was the only major power to abstain from hostilities. As a result, the Swiss economy boomed from the wartime drop in productivity, selling agricultural products at high prices to war-ravaged countries (similar to the US agricultural boom during World War One, with agricultural output almost doubling). However, Swiss cities spent much of their resources building fortifications, such as bastions, to protect from invasion. The redirection of resources away from productive, commercial endeavors towards security reduced the tax base for the Cantonal governments. Additionally, the war’s heavy financial burden caused France and Spain to suspend payment to the Cantons for mercenary services rendered. In order to maintain revenue, the Cantonal governments began raising taxes. In order to keep wealth local, the city governments responded by debasing their currencies to reduce the real amount of tax payments to the Cantonal governments; Berne, for example, arbitrarily reduced the value of the copper Batzen by 50%, while other areas practiced coin clipping. At the same time, European agricultural prices plummeted with the economies of southern Germany returning to pre-war production levels. Swiss monetary authorities reacted to the price reductions by further debasing the currency. In reaction, the Swiss peasantry demanded a return to previous levels of taxation and an end to inflation, which Swiss authorities refused to do. As a result, an armed Swiss peasant revolt swept through the country, forcing authorities to eventually accede to their demands.

The Helvetic Republic During the French Revolution, radical French ideology infected much of the Swiss elite, particularly in the French-speaking Western Cantons. Swiss leadership acceded to French demands in 1798 and established the Helvetic Republic. The Radicals, backed by the occupying French Army, abolished the Cantonal governments and established a centralized state. The citizenry, particularly in the Catholic Cantons, rose up and challenged the centralized state and the French military presence through both armed and passive resistance. In 1803, Napoleon introduced the Act of Mediation, which restored the Cantons and removed all French troops from Switzerland.

560 SECURITY, SWISS STYLE EXHIBIT 20 – NICK BRADLEY, NATIONAL

EXHIBIT 20 – NICK BRADLEY, NATIONAL SECURITY, SWISS STYLE

20th Century In the 20th Century, Switzerland deterred invasion and forced involvement in both World Wars with its rugged terrain, a heavily-armed populace, and a policy of relative non-intervention. Prior to WWI, the German Kaiser asked in 1912 what the quarter of a million Swiss militiamen would do if invaded by a half million German soldiers. In response a man from Switzerland replied: “shoot twice and go home”. During the Nazi invasion of France, the Luftwaffe violated Swiss airspace over 200 times; the Swiss responded by forcing down Luftwaffe aircraft and even shot down 11+ Luftwaffe aircraft. The Third Reich responded by sending in saboteurs to destroy Swiss airfields, an unsuccessful endeavor. Shortly thereafter, Hitler called the Swiss “the most despicable and wretched people, mortal enemies of the new Germany” and began immediate plans for the invasion of Switzerland, known as Operation Tannenbaum. Hitler abandoned Operation Tannenbaum after it was realized that an invasion of Switzerland was untenable, with 20% of the civilian population voluntarily mobilized to defend the country – including old men and young boys, with Swiss women manning anti-aircraft artillery (AAA) pieces and running the civil defense corps. The Third Reich also realized that there was no central government to target, nullifying the strategy of blitzkrieg; most Swiss citizens did not even recognize the authority of the Federal President, and any surrender by the Federal Government would have been ignored in the Cantons. The Swiss also defended their sovereignty against Allied aggression as well. After US aircraft began accidentally bombing Swiss towns near the German border, the Swiss Air Force enacted a policy of forcing down single Allied aircraft and shooting at Bomber Formations (some have speculated that the bombings were not accidental and were designed to force Switzerland in the Alliance; during the war, the Swiss flaunted Allied and Axis sanctions by smuggling to the surrounding Axis powers). As accidental bombings persisted, the Swiss government declared that any further accidental bombings would be declared acts of war. Although Switzerland never declared war on the Allies, the Swiss Air Force forced down 23 aircraft in a three-day period in July of ‘44. In total, 1,700 US airmen were interred during the War and a few US aircraft were even shot down (this chapter of WWII history is entirely missing from US textbooks).

The “Swiss Model”, American Revolutionary Principles, and Private Antiterrorism The Founding Fathers of the American Revolution were inspired Swiss freedom. John Adams praised the Cantonal system, which prevented a despotic central government from emerging, gave citizens the right to vote in local elections, and where every citizen had an inalienable right to bear arms. Patrick Henry applauded the Swiss militia system for preserving Swiss independence with the need for a “mighty and splendid president.” In fact, some argue that the Swiss militia system was the inspiration for our own Second Amendment. Impressive efforts by the Swiss public over the years just goes to show that voluntary self-defense efforts by a population can deter even the most aggressive of enemies. What if we applied Swiss-style defense here in the United States? The US government could arm all 90 million adult males, age 18–64 with an M-16 and 1,200 5.56mm rounds (40 30-round magazines) for a one-time cost of about 1% (7 1/2 billion dollars) of the cost of our current annual combined security budget ($750B+). Terror threats could by quickly identified by private intelligence agencies such as Total Intelligence Solutions; voluntary civil defense corps would begin patrols of neighborhoods and offer assistance/protection to any victims if an attack actually occurred. If foreign retaliation was necessary after a terrorist or military attack, private military companies (PMCs), such as Blackwater USA or Triple Canopy, could rapidly expand their force strength by hiring local militia units and collecting financial contributions from corporations and patriots. Fourth-Generation Warfare expert and creator of the Global Guerillas blog, John Robb, envisions a future privatized security apparatus:

EXHIBIT 20 – NICK BRADLEY561 , NATIONAL SECURITY, SWISS STYLE

EXHIBIT 20 – NICK BRADLEY, NATIONAL SECURITY, SWISS STYLE Then, inevitably, there will be a series of attacks on U.S. soil. The first casualty of these will be another institution, the ultrabureaucratic Department of Homeland Security, which, despite its new extra-legal surveillance powers, will prove unable to isolate and defuse the threats against us. (Its one big idea for keeping the global insurgency at bay – building a fence between Mexico and the United States, proposed in a recent congressional immigration bill – will prove as effective as the Maginot Line and the Great Wall of China.) But the metaphorical targets of September 11 are largely behind us. The strikes of the future will be strategic, pinpointing the systems we rely on, and they will leave entire sections of the country without energy and communications for protracted periods. But the frustration and economic pain that result will have a curious side effect: They will spur development of an entirely new, decentralized security system, one that devolves power and responsibility to a mix of private companies, individuals, and local governments. This structure is already visible in the legions of private contractors in Iraq, as well as in New York’s amazingly effective counterterrorist intelligence unit. But as we look out to 2016, the long-term implications are clearer. Security will become a function of where you live and whom you work for, much as health care is allocated already. Wealthy individuals and multinational corporations will be the first to bail out of our collective system, opting instead to hire private military companies, such as Blackwater and Triple Canopy, to protect their homes and facilities and establish a protective perimeter around daily life. Parallel transportation networks – evolving out of the time-share aircraft companies such as Warren Buffett’s NetJets – will cater to this group, leapfrogging its members from one secure, wellappointed lily pad to the next. Members of the middle class will follow, taking matters into their own hands by forming suburban collectives to share the costs of security – as they do now with education – and shore up delivery of critical services. These “armored suburbs” will deploy and maintain backup generators and communications links; they will be patrolled by civilian police auxiliaries that have received corporate training and boast their own state-of-the-art emergency-response systems. As for those without the means to build their own defense, they will have to make do with the remains of the national system. They will gravitate to America’s cities, where they will be subject to ubiquitous surveillance and marginal or nonexistent services. For the poor, there will be no other refuge. This is what the Founding Fathers envisioned when they called for a robust militia, strong protection of the right to bear arms, and warned against standing armies. With the removal of the false assurances provided by the security state, Americans will need to take responsibility for their own security – personal security; we should follow the fine example the Swiss have set, an example that inspired our own revolutionary founders. Perhaps this is what Ron Paul–style national security would look like.

562 SECURITY, SWISS STYLE EXHIBIT 20 – NICK BRADLEY, NATIONAL

EXHIBIT 20 – NICK BRADLEY, NATIONAL SECURITY, SWISS STYLE

EXHIBIT 20 – NICK BRADLEY563 , NATIONAL SECURITY, SWISS STYLE

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21. John E. Wolfgram, How the Judiciary Stole the Right to Petition

HOW THE JUDICIARY STOLE THE RIGHT TO PETITION John E. Wolfgram* I.

INTRODUCTION**

II.

THE HISTORY OF JUDICIAL ARROGANCE TO FOUR CENTRAL ASPECTS OF THE PETITION CLAUSE ASPECT ONE: THE RIGHT OF PETITION FOR REDRESS VS. SOVEREIGN IMMUNITY ASPECT TWO: JUDICIALLY CREATED PERSONAL & OFFICIAL IMMUNITY ASPECT THREE: POLITICAL PERSECUTION FOR EXERCISING PETITION RIGHTS ASPECT FOUR: THE JUDICIAL CONTEMPT FOR PETITIONING TO REDRESS GRIEVANCES WITH GOVERNMENT IN FEDERAL COURT

A. B. C. D. III.

THE DUAL MEANING OF THE PETITION CLAUSE: PROCEDURAL VS. SUBSTANTIVE

IV. THE JUDICIARY IS ORGANIZED TO AVOID SUBSTANTIVE REDRESS OF CONSTITUTIONAL GRIEVANCES AND REASONABLE EXPLANATION OF UNREDRESSABILITY V.

CONCLUSION

_______________________________________

* John E. Wolfgram, B.A. Degree (University of Wisconsin), J.D. Degree (Southwestern University 1977) Wolfgram founded the Constitutional Defender Association in 1989 to advance Petition Clause Principles. Its name derives from the observation that the practical value of a Constitution depends on the effective enforcement of constitutional rights and limits against government, by the people. The Petition Clause is the People’s Right to redress government violations of the Constitution. It is The Constitution’s Defense system against government usurpation and oppression. More about the author and his legal philosophy can be obtained on line at www.constitution.org. There, look up his name under “Confirmed Abuses.”

** Editor’s note: To better demonstrate the author’s passionate voice, many points of emphasis herein have been italicized or capitalized accordingly.

564 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

565 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

HOW THE JUDICIARY STOLE THE RIGHT TO PETITION John E. Wolfgram* I. INTRODUCTION The right (of petition) embraces dissent, and “would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen. [D]eprivation of it would at once be felt by every freeman as a degradation.”1198 (emphasis added). This writer accepts the political wisdom and practical truth of the above quotation from a case that he presented and lost to the Court of Appeals. This Article examines the mechanisms by which the government has undermined and stolen the Right of Petition presently, and prospectively. To be sure, it has “practically denied” the Right of Petition. The theme suggests a practical implication. It is not that government has accomplished the “impossible” of practically denying the right, but rather that the “spirit of liberty” has almost “wholly disappeared and the people have become servile and debased.” But “fitness” to exercise the rights of freemen is never determined by the many who have become servile, but by the few who refuse, at any cost, to surrender their rights to government. It is for those very important few, lawyers, ordinary citizens and patriots, who carry the Nation’s full burden of liberty on their shoulders, for whom this Article is written.

FOREWORD: The Court has addressed the Petition Clause in many contexts, but four central aspects of it have been completely ignored. Those central aspects tell the story of how the Judiciary stole the most important parts of the First Amendment Petition Clause: The right of the individual to enforce his rights against government and its agents. The First Aspect is the right to sue government for redress. Instead of such a right, “sovereign immunity” is the rule, and government can only be sued according to its consent. Immunity abridges the right to redress grievances with government. This aspect demonstrates that sovereign immunity is unconstitutional and irrational. The reason: The right to petition government for redress and governmental immunity from redress, are direct contradictions. The former is our First Amendment. The latter is the progressive result of Supreme Court decisions. The Second Aspect is the inconsistency of personal and official immunities with the Petition Clause. Immunity “law” evolved from the Court attempting to navigate between that contradiction, on the one hand, and exposing that its immunity jurisprudence has rendered the Constitution all but unenforceable by the people against their government, on the other. That made the law so unnecessarily complex, compound and convoluted that only the rich can afford the attorneys necessary to protect constitutional rights or prosecute rights violators. That is a two-class society in the making because only the rich can obtain justice under the law. 1198.

See Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43, 51 (1997), cert. denied, 522 U.S. 937 (1997) (citing Story, COMMENTARIES ON THE CONSTITUTION 707 (1833)); see also Cooley, CONSTITUTIONAL LIMITATIONS: PROTECTIONS TO PERSONAL LIBERTY 728 (8th ed. 1927) (quoting Lieber, LIBERTY AND SELF GOVERNMENT 124 (2d ed. 1859)).

566 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION If there is to be personal or official immunity then there must be alternatives consistent with the Petition Clause. Both Chief Justice Burger and Justice Harlan proposed alternatives in their respective opinions in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).1199 Both the Court, and Congress, has ignored their call. The Third Aspect is judicial persecution of persons for “criminal exercise” of the Right to Petition. Because the significance of the Petition Clause is so judicially downplayed, United States attorneys frequently charge protected activity as crimes. Defense lawyers and public defenders are not trained to spot or effectively defend against such abuses. The result is putting thousands of “political prisoners” in jail for “criminal exercise” of Petition Clause rights. The Right to Petition is necessarily obnoxious to government’s will. After all, a petition for redress is a complaint that government violated rights and a demand that it stop, and to compensate the complainant for damages. It should not surprise anyone that government does not want the people doing that effectively. In America, a person who petitions government over grievances of constitutional rights violations that government does not want to hear, can go to prison for felonies like obstruction of justice, bank or mail fraud, or making “false claims.” In the United States today there are thousands of people in federal prisons for acts and intents that were merely an exercise of a petition right that is obnoxious when government (because of immunity) is stone deaf to petitions to redress grievances. It has whole systems of laws to politically persecute those who press their grievances “too far.” But the common law history of the Right demonstrates that “too far” is in most cases, a part of the Right of Petition. The Fourth Aspect is the way the judiciary itself treats the Right of Petition when exercised in the courts. The Court has worked out stringent tests to protect First Amendment rights requiring government meet standards of “compelling state interest”; “clear and present danger,” and striking laws for “vagueness” and “overbreadth” that fail the tests. Yet, in petitioning before government’s very own courts, the rules are vague, ambiguous, overly broad and judges determine such petitions arbitrarily and without care for the merits by dismissals which are by “law” with prejudice, as if on the merits. Appellate courts simply refuse to address major constitutional issues in unpublished opinions that decide cases without addressing the merits. The Court refuses to hear any of the four aspects raised in this article. The combined effect of these four arrogances to the Right to Petition leaves the people without effective means to communicate with government through process of law. The Court has often acknowledged that the alternative to judicial process is force. Therefore, in so abridging the right of the people to obtain just redress 1199.

Chief Justice Burger proposed that “Congress should develop an administrative or quasi-judicial remedy against the government itself to afford compensation and restitution for persons whose fourth amendment rights been violated.” 403 U.S. at 422. His error is in thinking such a system should originate in Congress, or be limited to fourth amendment rights. See U.S. v. Lee, 106 U.S. 196 (1882), recognized a right similar to that in Bivens, arising out of the due process and just compensation clauses. Justice Harlan’s concurring opinion in Bivens is that a direct action should lie for violation of any Constitutional Right. The question is not “judicial vs congressional power to create such a system.” The first amendment says “Congress shall make no law abridging ... the right of the people ... to petition government for a redress of grievances.” Thus, Congress does not have the power to abridge the right to sue government for redress. (emphasis added) But it can create alternatives that people are induced to use, so long as it does not abridge the basic right to sue for redress. The judiciary can not legislate, but the “petition clause” problem is not a legislative problem, but pre-emption of common law remedies by judicially created “sovereign immunity.” Thus, the end the Chief Justice urged, is not up to Congress, nor directly up to the judiciary. Rather, it is for the judiciary to free the people from “sovereign immunity”. Only by renouncing that assumption can it free the common law to develop remedies for rights violations. Then Congress can develop alternatives that the people freely choose over the Right to sue in the courts.

567 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION through the compulsory process of law, the judiciary is setting the people up for violence against government by refusing to hear their cries for justice. That is our government waging a war of oppression against its own people.

II. THE HISTORY OF JUDICIAL ARROGANCE TO FOUR CENTRAL ASPECTS OF THE PETITION CLAUSE A. ASPECT ONE: THE RIGHT OF PETITION FOR REDRESS VS. SOVEREIGN IMMUNITY Almost from the beginning of our nation, the Court assumed away a major significance of the Petition Clause, holding that as a sovereign nation, the United States is immune from suit, without addressing the affect of the Constitution generally1200 or of the Petition Clause specifically, on that “sovereign immunity.” In 1793, barely two years after the adoption of the Bill of Rights, Chief Justice Jay first announced the rule giving way to “sovereign immunity” in obiter dictum.1201 He noted that the issue was affected by the difference between a republic and a personal sovereign and saw no reason why a state may not be sued. But he doubted a suit would lie against the United States because “there is no power which the courts can call to their aid” to enforce a judgment. So began America’s journey into judicial tyranny. It is based on an irrational fear that if the courts ordered government to redress its wrongs arising under the Constitution, the government could refuse and make the judiciary seem weak. Judicial cowardice is not a very good reason to refuse to support the Constitution. Among other things, it assumes that the legislative and executive branches, when faced with a judicial determination that government owes compensation to redress grievances arising under the Constitution, would refuse to support the First Amendment Petition Clause and Fifth Amendment Due Process Clause rather than to raise the taxes necessary to fill an order arising under the Judiciary’s Article III jurisdiction. So, instead of standing tall for the Constitution and its enforceability against the government, our very first Supreme Court announced the “rule of unaccountability” of government to the people. That rule is this: “Because the Judiciary cannot enforce its order against the government requiring it to be fair and just under the Constitution, the judiciary will not require it to be.” That is hardly a rule upon which to found a great nation, but it is the rule upon which the relationship between the American Government and its citizens is founded. It is a rule of cowardice under an assumption that government is will basically rule by brute force. But more than anything, it is a self fulfilling prophesy. It lays the foundations for eventual federal arrogance to state and individual rights. In Cohens v. Virginia,1202 Chief Justice Marshall avoided Justice Jay’s weakness by simply asserting “the universally received opinion is that no suit can be commenced or prosecuted against the United States.” Later, In

1200.

Justice Brennan believed “sovereignty was surrendered in the Plan of the Convention.” See Edelman v. Jordan, 415 U.S. 651 (1974). See Art. I, Sections 9 and 10 for some specific “surrenders” by both federal and states at the Convention. The ninth and tenth amendments imply absence of federal immunity. The due process and just compensation clauses implies accountability by government for its wrongs. But for those who still doubt, The petition clause is the specific “surrender” of governmental immunity from the people. 1201.

See Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).

1202.

See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821).

568 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION United States v. Clarke,1203 he declared that because the United States is not “suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it.”1204 There can be seen from the trail of cases a common design to ignore the Petition Clause and the “Right of Petition” that it necessarily implies, without addressing it, but without specifically denying it either. In that sense, if the Petition Clause of the First Amendment does not mean that the people have a right to petition for just redress from government under the law that even Congress cannot abridge, what does it mean? Yet, over the first half of the nineteenth century, judicial arrogance to the single most important right of justice against government became our “common law,” the express declarations and implications of the Constitution as it is written to the contrary, notwithstanding. United States v. Lee:1205 It wasn’t until 1882 that the “right of petition” was discussed at all in the sovereign immunity context. In U.S. v. Lee, Justice Miller held that under the Due Process and Just Compensation 1203.

See United States v. Clarke, 33 U.S. (8 Pet.) 436 (1834).

1204.

The Court repeated the doctrine of sovereign immunity in at least a dozen cases in the nineteenth and early twentieth century, but it has never analyzed the constitutionality of the doctrine. The tenth amendment states that the powers not delegated to the United States are reserved. Where is the power of “sovereign immunity” delegated? If it is not fairly within the four corners of the Constitution, it is not a federal power; a fortiori, when it is also expressly prohibited to the United States by the petition clause. Some cases that assumed sovereign immunity without justifying it are: United States v. McLemore, 45 U.S. (4 How.) 286 (1846); Hill v. United States, 50 U.S. (9 How.) 386, 389 (1850); De Groot v. United States, 72 U.S. (5 Wall.) 419, 431 (1867); United States v. Eckford, 73 U.S. (6 Wall.) 484, 488 (1868); The Siren, 74 U.S. (7 Wall.) 152, 154 (1869); Nichols v. United States, 74 U.S. (7 Wall.) 122, 126 (1869); The Davis, 77 U.S. (10 Wall.) 15, 20 (1870); Carr v. United States, 98 U.S. 433, 437-39 (1879); Gibbons v. United States, 75 U.S. (8 Wall.) 269, 275 (1869); United Statess v. Lee, 106 U.S. 196 (1882); Peabody v United States, 231 U.S. 530, 539 (1913); Koekuk & Hamilton Bridge Co. v. United States, 260 U.S. 125, 127 (1922). In Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907), Justice Holmes stated the reason for sovereign immunity is because “there can be no legal right as against the authority that makes the law on which the right depends.” His explanation begs both the tenth amendment and petition clause questions, and portrays government power as not bound by any law, not even its own. Again, government is portrayed as a “Brut of Force” that trounces its own people without accountability for the wrongs it does. Such is a shocking statement by a man of his intellect, for it is obvious that the ultimate recourse against the authority that makes law but disregards rights, is revolution ... and then to institute a new government that is not so impertinent to the basis of power. That is exactly what our forebears did in 1776. Notwithstanding government’s objection to such an interpretation, that right of rebellion is embodied in the common law behind the petition clause. 1205.

See United States v. Lee, 106 U.S. 196 (1882). George Lee was the son of the Southern General from Virginia, Robert E. Lee. Before the Civil War, then Col. Robert E. Lee worked for Abraham Lincoln and held an estate in 1100 acres on the banks of the Potomac over looking Washington D.C. Before the War the property was known as “Arlington Estates”. But during the war, tens of thousands of dead soldiers from both North and South, were brought into Washington with no place to bury them. One popular story is that General Sherman inquired of who owned the property to purchase it for a cemetery. But upon learning that it belonged to Lee, he commandeered it, and today, 400 acres of it are best known as “Arlington National Cemetery.” The story behind U.S.. v. Lee is even more interesting. Arlington Estates was visible from the White House. In advance of the War Abraham Lincoln asked his Chief of Staff Col. Robert E. Lee, to Command the Army of the Potomac. Lee took leave back to Virginia to consider the offer. Two weeks later he returned and told Lincoln that his loyalties were with his Home State of Virginia. He left an embittered President behind. Lincoln knew that Lee was his best military strategist and history records the magnitude of his loss as Lee beat back Lincoln’s armies time after time. So the story goes, Lincoln, looking across the Potomac to Lee’s estate conceived a plan to hurt Lee and help finance the war effort at the same time. He would lay a war tax on property and require landowners to pay the tax personally to the tax collector, and not by agent. Southerners who owned land in the North wouldn’t be able to pay the tax, and would lose the

569 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION clauses government agents could be sued for unlawful takings, as a matter of right. At 27 L. Ed. 176, he “concedes” that sovereign immunity is “the established law of this country, and of this Court at the present day.” Then he discusses the English “Right to Petition.” He observes that it is uncertain whether the King “was not suable in his own courts and in his kingly character” but after the right was established, it “was practiced and observed in the administration of justice in England (and) has been as effective in securing the rights of suitors against the Crown, in all cases appropriate to judicial proceedings, as that which the law affords in legal controversies between the subjects of the King among themselves.” Notice the strange effect. Justice Miller determined that the “Right of Petition” is a part of the common law that we would normally inherit from England absent anything to the contrary in our Constitution. But he doesn’t treat it like that at all. What he does is to assume away our Petition Clause without so much as a curtsy to it: There is in this country, however, no such thing as the petition of right, as there is no such thing as a kingly head to the Nation, nor of any of the states which compose it. There is vested in no officer or body the authority to consent that the State shall be sued, except in the law making power, which may give such consent on the terms that it may choose to impose.1206 (emphasis added). Justice Miller’s statement is absolutely false. If the Framers, noticing the English “Petition of Right,” wrote it into the First Amendment as they wrote other “common law” rights into it, then it is our right too. No act of Congress is necessary to give it effect. In fact, the First Amendment precludes Congress from making any law “abridging” it. That is the strongest argument possible for a Right to sue government directly: It is written into our Constitution and may not be abridged even by Congress. The issue is the People’s Right to hold government to constitutional restraint. If they cannot hold it to account for such violations, then either the Constitution is not the supreme law, or the supreme law does not bind property. Eventually the Court determined that it violated due process to refuse to accept a tax paid by an agent. But Robert E. Lee never offered to pay the tax at all. After the war, Lee lost his civil rights, but under U.S. CONST. art. III, § 3, the forfeiture is limited to during the General’s lifetime. When Lee died, his son sought to regain title to Arlington Estates which included by then, two post Civil War military forts and Arlington National Cemetery. His theory was based in the common law of contract. If one to whom performance is due, refuses tender, or announces in advance that tender will be refused, the law treats it as if performance has been made. Thus, even though his father never offered to pay the tax, George Lee could treat it as paid. Because the United States had “sovereign immunity” Lee sued the generals in whose name the property was being held for the United States, to eject them. The case went to a Virginia jury to determine whether General Lee’s performance had been prevented by the tax collector’s announcement that it would not accept payment by an agent. The Virginia Jury, generally sympathetic to the Robert E. Lee family, found that performance had been prevented, and that the prevention was, according to previous Supreme Court Decision, unlawful. Therefore the issue must be treated as if the tax had been paid. That meant that the title that transferred the property to the generals was void and Lee’s son came into title upon Lee’s death. George Lee owned the property and could eject government officers. On certiorari to the Court, the United States interpleaded saying that it was the real party in interest, that it was a necessary party; that it had Sovereign Immunity, and that immunity extended to the generals as agents of the United States. Justice Miller’s treatment of the “Necessary Party” argument is most interesting. Citing from other cases, principally from Chief Justice Marshall in Osborn v. Bank of U.S., 22 U.S. (9 Wheat.) 738 (1824) he concluded: “Where the State is concerned, the State should be made a party, if it can be done. That it cannot be done (because of immunity) is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the State, in all respects as if the State were a party to the record.” 1206.

See 27 L. Ed. at 176.

570 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION government. The supreme law of the land must be as binding on government when government doesn’t like it as it is on citizens whether they like it or not. If either the people or government do not like certain constitutional clauses the remedy is to amend the Constitution, not “interpret” it contrary to its express and contextual meanings. The Constitution contains its own terms for amendment, and “judicial fiat” is not among them.

The Defense of Sovereign Immunity: The fallacies of sovereign immunity are best seen through its defense in the Lee dissent. It has only two basic propositions. The first is that the United States is a “sovereign,” and as such, cannot be sued without its consent. The second is a parade of horribles, if the sovereign is subject to suit. The first argument: “the United States is sovereign and cannot be sued.” “That maxim (immunity from suit) is not limited to a monarchy, but is of equal force in a republic. In the one, as in the other, it is essential to the common defense and general welfare, that the sovereign should not, without his consent, be dispossessed by judicial process, of forts, arsenals, military posts and ships of war necessary to guard the national existence against insurrection and invasion; of custom houses and revenue cutters, employed in the collection of revenues; or of light-houses and light-ships established for the security of commerce with foreign Nations and among different parts of the country.”1207 This argument contains Two Major Fallacies:

The First Fallacy: Where does this idea that government is immune from suit come from? The history of the right to sue government dates to 1215 A.D. and the signing of the Magna Carta. How in that light, is “sovereign immunity from suit” a “maxim?” And even if it were such in England, what would make it a “maxim” in post revolutionary America? Put more closely to the point raised by the dissent, who determines what is essential to the common defense and general welfare? To be sure, government through the Congress, and even through the executive, has a role. But the people, in framing the Constitution, had first choice of the values to be enshrined. If they determined it is government’s duty to redress their grievances for rights violations, it is not for government to re-evaluate that decision, but to carry it into effect. That is the Petition Clause command which “Congress shall make no law abridging.” The First Fallacy in defense of sovereign immunity then, is a “bootstrap” argument. By assuming that sovereign immunity is a “maxim”, the dissent begs the question at issue.

The Second Fallacy: The argument ignores the government’s right of condemnation. Where petition rights would dispose of government of essentials, government has a right to condemn what it needs, but it must pay a just compensation for it. Thus the parade of horribles the dissent sets out has nothing to do with loss of necessary facilities by judicial process. What they want to protect is government’s “right” to take property without just compensation: theft. That is today the people’s grievance with government: When it comes to the people’s rights, the official disposition is the same as that of organized crime: “take what you want, and don’t pay for it unless you get caught and then stonewall the aggrieved into oppression.”

1207.

Id. at 183.

571 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION The real substantive Petition Clause vs. Sovereign Immunity issue: What sovereign immunity allows is for government to wrongfully injure its citizens, their liberty and property, without just compensation? It is not injury to rights that is in issue. Rather, it is just compensation for such injury that is in issue: government wants the right to be a crook. The idea of government taking what ever it wants by force and oppression is the basic barbarian notion rejected by our Constitution, but resurrected by judicial interpretation. “Immunity” is “justified” by the very ancient (pre Magna Carta) “common law” of England, where the King took what he wanted and wasted the property and lives of those who resisted. As to the “parade of horribles” objection, Justice Miller observed: In this connection, many cases of imaginary evils have been suggested, if the contrary doctrine should prevail. Among these are seizure of vessels of war, invasions of forts and arsenals of the United States. Hypothetical cases of great evils may be suggested by the particularly fruitful imagination in regard to almost every law upon which depends the rights of the individual or of the government, and if the existence of laws is to depend upon their capacity to withstand such criticism, the whole fabric of law must fail. United States v. Lee allowed suit against the “Sovereign’s” officers. But courts since have given great weight “to the particularly fruitful imagination in regard to almost every law upon which depends the rights of the individual or of government. 1208

Sovereign Immunity Violates International Law: As shown, sovereign immunity finds no support in our history. It was not in our common law before the Constitution; it is actually prohibited by the Constitution, and its assumption is a living contradiction to the very idea of limited government designed into the Constitution. Sovereign immunity is inconsistent with government accountability for injuries caused in violation of its own law. Beyond arguments arising out of history and the clear language of the Petition Clause itself, the future prospects of governments remaining unaccountable to their own citizens for the injuries they cause in violation rights, is not very persuasive either. On that point, The Universal Declaration, Art. 8, states the essence of our Petition Clause, as to all governments: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by constitution or by law. Notice the words “right to an effective remedy.” What is an “effective remedy” for rights violations if it is not the right to sue government for just redress under law? That is a founding treaty of the United States with the 1208.

The reasons identified in Scheuer v. Rhodes, 416 U.S. 232 at 240 for official immunity are more illusory than real. While fear of personal liability may tend to intimidate officials, most officials are or can be covered by insurance or indemnity agreements. The idea that such fears would injure government performance is the same argument as “Doctors must be immune from negligence actions or otherwise hospitals will be intimidated from providing medical services.” The question is whether the complexity of rules carved out to immunize government officials become so burdensome so as to chill the people from seeking just redress for grievances with government. As that happens, government loses contact with accountability for the wrongs of its agents, and with that, all motives to become more fair, more kind and more gentle with its people. In Owen, 445 U.S. at 629, n.6, the Court notes that “Ironically, the publication of the libelous documents was caused by City Counselor’s assurance that ‘the City does have immunity in this area.” Thus, immunity creates its own Constitutional violations and neither the Judiciary nor Congress have any idea how extensive that problem is. Likewise, when the Court makes immunity policy, it has no scientific support for its finding that “fear of potential liability for doing his official duty” really impairs any public interest. In fact, one can come to the opposite conclusion: That exposure to liability for wrongs in office selects for more honest and diligent officials who know that the best defense to intimidation from potential liability for doing one’s job under the Constitution, is to understand and support the Constitution in the performance of that job.

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EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION United Nations forbidding our government from exercising immunity from its citizens for its violations of constitutional rights. Notice here, for later consideration, that the right to an effective remedy, is a substantive right. The International Covenant1209 Article II, §§ 2, 3 declares: 2. Where not already provided for by existing legislative or other measures, each State party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.1210 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding the violation has been committed by persons acting in an official capacity. (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;1211 (emphasis added)

Effective Rights is the Hallmark of Civilization: The argument that the Right of Petition includes the right to use the compulsory process of law against government to redress grievances with it does not depend on any particular idea of the common law or of history. The most important argument of all is that of the Petition Clause as it is written, and in its context. What else can be meant by those words then that government is accountable under the law for the wrongs that it does to the people. That is a fundamental concept of civilization, as we know it.

1209.

The International Covenant on Civil and Political Rights was adopted by the United Nations on 12/16/66, and signed by the United States on October 5, 1977. The Senate by resolution of 4/2/92, gave its advice and consent to ratification, subject to Reservations, Understandings and Declarations. Instrument of Ratification, signed by President George Bush, 6/1/92. There, Art. III, § 3 declares: “That the United States declares that it accepts the competence of the Human Rights Committee to receive and consider communications under Art. 41 in which a State Party clams that another State Party is not fulfilling its obligations under the Covenant.” 1210.

In the present context, the emphasized clauses obligate the United States Judiciary to free the Constitution’s petition clause to do its work by undoing the assumption of sovereign immunity. The Covenant is presented for both its binding force as “Supreme Law of the Land”, and also for its persuasive force in reason, to help understand the nature of our own petition clause, that it is a law of reason freely chosen by our founders: If we now choose it freely as a basis for the organization of free nations, why should we presume that it was less compelling when our founding fathers brought the thirteen colonies together under one constitution? 1211.

The International Covenant’s preamble states the purpose of effective judicial remedies notwithstanding the violation is committed by persons acting in official capacity, as follows: “Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights.” A condition necessary for enjoyment of rights, is compulsory process of law to protect those rights; and to obtain just redress for their violation.

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EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION Any barbarian state can say its people have rights and point to a “[b]ill of [r]ights.” But “rights” don’t mean a thing unless enforceable: people enforce rights, either with bombs and guns, or in a civilized world, through effective compulsory process of law; to wit: the judicial remedy. Sovereign immunity is the judicial theft of the people’s right to a civilized relationship between themselves, individually, and their government. It should be seen for what it is.

Concluding Aspect One: Thus began the myth of governmental sovereignty from the people. Today, the logic flows: Since the United States can only be sued by and through its consent, suits against it can be brought only as prescribed by Congress.1212 Only Congress can waive immunity. Its officers have no power to waive it.1213 Even when allowed, suits can be brought only in designated courts.1214 Congress may grant immunity to corporations. 1215 And on it goes: government is immune, by its own declaration, to violate rights with impunity. What are rights if government is immune to violate them? What is a “Right” without the effective right to redress for its violation? Rights means Accountability of Government directly to their own people for violations of their own people’s rights. That is the public policy of the United States, by treaty;1216 and by Constitution. Today, we have treaty obligations to expand judicial remedy to include rights violations “committed by persons acting in official capacity” and requiring effective remedies for violations of domestic law. But we are harnessed with a judiciary that insists on immunity from the people based in the bygone philosophy of “The Divine Right of Kings.” Per Justice Jay, the “reason” America adopted that medieval judicial philosophy is his lack of the courage of constitutional conviction. A few years later, Justice Marshall designed judicial supremacy over the Constitution so that it now means whatever The Court says that it means1217. Between them, they found a novel way to avoid the “messy business” of amending the Constitution. We can call that “Constitutional Amendment by Judicial Fiat.” It is not legal, and in effect, it undermines the entire reason for having a constitution at all. That is just cause for grievance with our “justice system.” The problem: how to capture the government’s attention?

1212.

See Lonergan v. United States, 303 U.S. 33 (1938).

1213.

See United States v. New York Rayon, Co. 329 U.S. 654 (1947).

1214.

See United States v. Shaw, 309 U.S. 495 (1940).

1215.

See Brady v. Roosevelt S.S. Co., 317 U.S. 575 (1943).

1216.

The Universal Declaration of Human Rights, Gen. Assem. Res. 217, A(III), 10 Dec. 1948, is a cornerstone human rights treaty of the United States with the United Nations. It’s preamble sets out the important role that government accountability to its own people plays in international peace: “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,” 1217.

The case that is credited with founding Judicial Supremacy is Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), by Chief Justice Marshall. Actually, it founded the judicial policy of “Judicial Review” and that is not quite the same thing as “Judicial Supremacy” where in addition to supremacy over the other branches, the judiciary assumes supremacy over the Constitution itself. In all probability, Chief Justice Marshall would be absolutely astounded at the judicial philosophy he is credited with founding.

574 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

B. ASPECT TWO: JUDICIALLY CREATED PERSONAL & OFFICIAL IMMUNITY Initially, the Petition Clause protects the Right to Petition government for redress; not necessarily its officers. Hence, while Government may not abridge the right to petition it for redress, it plausibly may immunize its officials from personally being sued, providing it leaves an unabridged remedy against government for the official’s conduct in government’s name.1218 Nothing so epitomizes the danger of abridging the Petition Clause, vis a vis personal immunities, more than Congress’ 1988 amendment of the Tort Claims Act. In 1971 Chief Justice Burger wrote, in his dissent in Bivens1219 “The venerable doctrine of respondeat superior (a master is liable for his agent’s acts) in our tort law provides an entirely appropriate conceptual basis for this remedy” (directly against government).1220 The Tort Law, 28 U.S.C. § 2674, allowed: “The United States shall be liable, ... in the same manner and to the same extent as a private individual under like circumstances...” In 1988 Congress amended it to reflect judicial immunities: ... The United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would be available to the employee whose act or omission gave rise to the claim. The 1988 amendment anticipates future abridgments including by Congress; but Congress didn’t conceive of agent immunity until the judiciary made immunity a part of daily life. Given the judicial teaching, that is not surprising, but lest we forget, it is the First Amendment Congress is abridging.1221 The Tort Claims Act is itself, a response by Congress to court created sovereign immunity, to relieve the harshness of the judicial doctrine. Now Congress endorses it.

Immunity Centralizes Power: 1218.

At least the petition clause does not forbid it. There are other clauses that might forbid it. For example, the nobility clause and due process clauses; and at some point, the equal protection clause. We should not forget that the class of “government officials” is the “ruling class”. It is doubtful the Constitution allows special privileges and immunities on the basis of that class distinction alone. 1219.

See Bivens, 403 U.S. at 422.

1220.

The Chief Justice was referring to the Tort Claims Act as a remedies model for violations of the Constitution by government officials. The Tort Claims Act does not cover Constitutional Torts, as such. 1221.

The problem is not that we are not able to trust Congress to determine how much abridgment is too much. Rather, Congress has never examined the issue in the light of the specific “public policy” written into the petition clause, because the judiciary has hidden that policy. There are reasonable market place alternatives to the public policy reasons for most immunity. i.e. government defends and insures or indemnifies its non-immune officers in most cases now, so what is the purpose of immunity? See Scheuer, 416 U.S. at 240. (Chief Justice Burger identified the two “mutually dependent rationales” on which the doctrine of official immunity rested.) They are the injustice of subjecting an officer to liability where he is required by his position to exercise discretion, and the danger that such liability would deter his willingness to execute his offices with the decisiveness and judgment required for the public good. Government indemnification, like insurance, lifts most, if not all of the burden from personal liability. But as to the basic argument, what is the difference between the discretion exercised by a public servant and a medical doctor such that the former is immune, even for intentional constitutional torts (Judges, Prosecutors) but a medical doctor in life and death decisions, is liable for a negligent twitch of a finger?

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EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION The purpose of “separation of powers” was to protect the people from a unified “kingly sovereign”. But as the judiciary granted special immunities to the other branches, it co-opted their independence and centralized power in the Judiciary. In effect, the judiciary is uniting the “sovereign branches” against the people:1222 First came absolute immunity to the President.1223 Then, almost immediately, was absolute immunity to Judges, state and federal;1224 Then to the President’s officers for discretionary acts.1225 Then to the States; vis a vis a reinterpretation of the Eleventh Amendment to provide the states with immunity from their own rights conscious citizens. 1226 Then qualified immunity to government agents.1227 With all immunities and “good faith extensions” of it, the law is so convoluted and contradictory that no one knows what the “law” is. 1228 That creates arbitrary power in all government officials. They not only have 1222.

A Judicially created immunity is a complete abridgment of the right to redress. To the victim of immunized conduct, all of government, local, state, federal; and all of its branches, are aligned against him, saying in effect, “You must accept the violation and injury, without recourse.” In a real sense, the Supreme Court has assumed the role of “king of kings” dispensing immunity to the lessor kings according to its pleasure. 1223.

See State v. Johnson, 71 U.S. 475 (1867); see also Nixon v. Fitzgerald 457 U.S. 731 (1982).

1224.

See Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872); see also Pierson v. Ray, 386 U.S. 547 (1967); Stump v. Sparkman, 435 U.S. 349 (1978); Mireles v. Waco, 502 U.S. 9 (1991). Bradley v. Fisher is the seminal case on judicial immunity. It sets the stage for unlimited personal immunities. Bradley is based on two false premises. One is that we inherited the British Common Law on that subject. That was handsomely refuted by Justice Black in Bridges v State, 314 U.S. 252, 260 (1941). The other was that judicial immunity WAS the British Common Law. In fact, Chief Justice Lord Denman stated that law in Kendillon v Maltby, 174 Eng. Rep. 562, 566 (N.P. 1842) as follows: “I have no doubt on my mind, that a magistrate, be he the highest judge in the land, is answerable in damages for slanderous language, either not relevant to the cause before him or uttered after the cause is at an end; but for words uttered in the course of his duty, no magistrate is answerable, either civilly or criminally, unless express malice and absence of reasonable or probable cause be established.” Today, constitution based commonwealth countries have no judicial immunity for violation of Constitutional Rights. See THE DIGEST OF BRITISH, COMMONWEALTH AND EUROPEAN CASES, Note 3641, “No Liability for acts done in Judicial Capacity—Unless Interference with Rights or Freedoms Under Constitution.” 1225.

Suggested in Harlow v. Fitzgerald, 457 U.S. 800, 812-13 (1982); qualified immunity to Attorney General, Mitchell v. Forsyth, 472 U.S. 511 (1985); Absolute immunity to Prosecutors; Imbler v. Pachtman, 424 U.S. 409 (1976). 1226.

See Hans v. Louisiana, 134 U.S. 1 (1890); see also Edelman v. Jordan, 415 U.S. 651 (1974). The prevailing eleventh amendment doctrine was that it did not prohibit suits against the States arising under federal question jurisdiction, nor suits against a State by its own citizens. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821). It was not until after the Civil War that the Court found that the eleventh amendment barred suits of citizens against their own Government as the prelude to Hans v Louisiana. Then in Edelman v. Jordan, in 1974, Justice Rehnquist married the eleventh amendment to the state sovereignty doctrine. We should remember that it is abridgment of the right to petition one’s own Government that the petition clause forbids. The eleventh amendment specifically does not abridge the right to petition one’s own state government in federal court for redress. The Court amended both the first and eleventh amendments by one simple act of judicial fiat, and by that judicial act, changed the “legal” relationship between government and governed. 1227.

See O’Connor v. Donaldson, 422 U.S. 563 (1975) ([s]uperintendent of Schools); see also Wood v. Strickland, 420 U.S. 308 (1975) ([s]choolboard members); Scheuer v. Rhodes, 416 U.S. 232 (1974) (state executive officers for discretionary acts). 1228.

A few examples from 42 U.S.C.A. 1983 demonstrates the point: “Qualified immunity covers liability for claims brought against police officers under both Section 1983, and common law.” Capone v. Marinelli, 868 F.2d 102 (3d Cir.

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EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION court created immunity, but they live a myth of extended unaccountability far beyond where even the Court ever dreamed it would go.

Notice: This takes the Effective Right to Petition away from the people and centralizes it in the federal government. Having bridged “Separation of Powers” to unite all of the federal government against the governed, it now co-opts the states by bribing them with a shield from their own citizens while amending the Tort Claims Act to take advantage of ever broadening judicial and legislative immunity. Should you be worried about this trend? This is “big government” uniting at all levels against its own people, creating the suspicion and fear that are the conditions for war and terrorism which then justifies more power to chill, punish and intimidate the restlessness it is causing. Such is government, somersaulting out of control, into worse and worse relations to its own people. 1229 Yes, you should be worried.

Immunity has its own Momentum: Given sovereign immunity and stare decisis,1230 arguments to extend immunity are much more persuasive than those to curtail it.1231 Such is the result of government’s organization to refine itself to do better what it is

1989); Police officers have absolute immunity for perjury at probable cause hearing. White v. Frank, 680 F. Supp. 629 (S.D.N.Y. 1988). Officers have qualified immunity for use of deadly force, where at time of incident, law is unsettled. Hamm v. Powell, 874 F.2d 766 (11th Cir. 1989). Once issue of qualified immunity is injected into civil rights case, “plaintiff has burden of demonstrating that defendants violated some ‘clearly established’ constitutional right,” Olzinski v. Maciona, 714 F. Supp. 401 (E.D. Wis. 1989); For qualified immunity, the officer must demonstrate good faith belief and reasonable grounds for his actions, and that they were within course of official conduct. But where a citizen’s right is clearly established, the officer may be immune if he neither knew, nor should have known of the legal standard due to extraordinary circumstances. Alexander v. Alexander, 706 F.2d 751 (6th Cir. 1983). Qualified immunity applies if either the officer didn’t know and shouldn’t have known his acts would violate rights, or where he acted “without malicious intention” to violate rights. Allen v. Dorsey, 463 F. Supp. 44 (E.D. Pa. 1978). Executive officials as a rule, enjoy qualified good-faith immunity. Coleman v. Frantz, 754 F.2d 719 (7th Cir. 1985). Then there is a whole different line of immunity, for “discretionary acts”. “A limited immunity from personal liability for unconstitutional conduct may be applied to many classes of public officials who are required to exercise discretion the course of their responsibilities.” Atcherson v. Siebenmann, 605 F.2d 1058 (8th Cir. 1979); ‘Acts which are discretionary in nature by a public official do clothe him with a governmental immunity of a limited nature.’ Dewell v Lawson, 489 F.2d 877 (10 th Cir. 1974) Immunity is extended to private parties performing government contracts; Devargus v. Mason & Hanger-Silas Mason Co,. 844 F.2d 714 (10th Cir. 1988), cert. denied, 498 U.S. 1074 (1991). Absolute prosecutorial immunity is extended to cover qualified immunity of a sheriff who holds a prisoner for 18 days without hearing on the grounds that he informed the prosecutor to arrange time for appearance, but the prosecutor didn’t act. Coleman v. Frantz, 754 F.2d 719 (7th Cir. 1985) . 1229.

Immunity is based on a dangerous myth: That unredressed grievances just go away. They don’t. They fester, and spread as rumor to become common knowledge of government’s injustice, to gradually rot the moral fiber of the Nation. The only protection Government has from the people, is to provide effective redress of just grievance. That is the teaching of the Magna Carta, the first amendment petition clause, The Universal Declaration of Human Rights and The International Covenant on Civil and Political Rights. It is extremely dangerous to believe those principles do not apply to The United States of America in the Twenty-First Century. 1230.

In the early nineteenth century beginnings of our “sovereign immunity” tradition, stare decisis impelled Courts to turn to British Common Law for authority and guidance, because there was very little else.

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EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION supposed to do. Unfortunately, under the doctrine of sovereign immunity, the primary thing government is “supposed to do” is protect itself from accountability to the people for violating their Constitutional Rights. Eventually, the Court recognized Congress’ power to “abrogate” state immunity for violation of civil rights; Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)1232 and the Commerce Clause; Pennsylvania v. Union Gas Co. 491 U.S. 1 (1989). But the “doctrine” of abrogation is a token to pacify Congress and conceal the true fact that Congress has no practical control over immunity at all. The law is so complex that immunity exists, as a practical matter whenever a judge wants it to; and he is not accountable for deprivation of rights to redress, or any constitutional rights. He has absolute immunity too. As the reader no doubt knows: “Power corrupts and absolute power corrupts absolutely.” Immunity is the absoluteness of any limited power, which corrupts absolutely.

This Difference of Orientation: Absent a showdown between sovereign immunity and the Petition Clause, abridgments are increasing because government, from individual agents, up through its organizational levels have organized to defend themselves from accountability based on the King’s “sovereignty” as a foundational concept in government to governed relations. This is a pervasive orientation away from the Constitution and human rights, and toward not just “big government” but “sovereign big government” where unaccountability to those injured in the “sovereign’s” name is a national way of life. 1233 And if you think that is a national problem, consider that the United States is by far the world’s greatest power; it is not accountable to its own people for its abuses of power, and that abuse of power flows freely into international circles. Given that reality, there is not a nation in the world that should not fear us in the same way that a reasonable person fears a child with a gun. We, as a nation, are capable of, and as a people, conditioned to the arbitrary and unreasonable use of force by government, against its own citizens, and against any nation that stands in the way of the corrupt flows of power from our government into the private sector. Direct enforceability of the Constitution is the difference between personal loyalty to temporal government vs. loyalty to constitutional principles. Temporal loyalty to government becomes loyalty to every corruption officials undertake in government’s name. That is a powerful difference. Of that the difference the

1231.

See U.S. v. Lee, 27 L. Ed. at 184. (Lee, J., dissenting) (attributes Lee’s success to overcoming these factors: “These principles appear to us to be axioms of public law, which would need no reference to authorities in their support, were it not for the exceeding importance and interest of the case, the great ability with which it has been argued, and the difference of opinion that has been manifested as to application of the precedents.”). 1232.

Neither the fourteenth amendment, nor § 5, authorizes Congress to contravene the express purposes of the Amendment, which is to extend protection of U.S. Constitutional Rights to all the People from state abridgment: Creation of State Immunity, whether by the Court, or Congress, contradicts the face and substance of the fourteenth amendment, not to mention what it does to the petition clause. 1233.

The philosophy that government may unlawfully injure some citizens for the greater good of the people, the nation, its government or of the “proletariat” are all variations of the same discredited philosophy that “The ends justify the means”. Given that governments will unlawfully injure some citizens, as a necessary incident to governing, the only rational alternative to “The ends justify the means” is an effective system of just redress for constitutional violations arising out of the governing process. Fifth amendment just compensation for taking private property for public use doesn’t require culpability. Why should unlawful taking of liberty be less redressed?

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EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION Constitution itself requires by oath, “to support this Constitution”1234 and not to support its officers who may fail or refuse to support it.1235 The Right to a Judicial Remedy is the right to enter an adversarial system. Such systems are supposed to tend toward “excellence”. But there is a huge disparity in this system. The people are not organized to defend against government’s coercive claims to “immunity”, but government is organized to take every advantage, systematically, of opportunities to extend it’s agents’ immunity. They are agents of the sovereign and entitled to immunity and to all of the highly skilled lawyers necessary to secure their “rights” against a legally disarmed citizenry. Under the premises, it is no longer an “adversarial system” but a system that has defeated the “separation of powers”; co-opted the states; and is now redesigned and manned by a “new nobility” of a “unified sovereign” to promote and protect “government sovereignty” from the people. That is another name for “government unaccountability to the governed”, at every level of government, all of the time. Put another way, with an effective Petition Clause the nation has 260 million citizen policemen to insure that officials do not sell the Constitution to the highest bidder or to personal desire. Immunity disables the Constitution’s “citizen policemen.” What is left is government accountable only to itself and to the free wheeling interests of the wealthy. That is a dictatorship in waiting ... for a Hitler, a Stalin; a Pol Pot; or maybe a more charismatic dictator who promises what the wealthy and corporate interests want, and then delivers those interests to infamy. But America will first find tyranny more diversified. It is called “judicial tyranny.” It is plain common sense that people are “corruptible” in the absence of effective controls over the means by which they satisfy human desires. That is the principle: “power corrupts, and absolute power corrupts absolutely.” If Lord Acton’s dictum is not “absolutely true”; it is so nearly true that it warns against insulating government power from accountability. Judges have “power” within the meaning of Lord Action’s dictum. Immunity for abuse of power puts such a degree of “absoluteness” into its use and abuse, that if judicial corruption is not the dominant characteristic of our judicial system, it is so rampant within it that the system cannot be trusted by anyone, at any time. Justice goes to the highest bidder, and all bids are kept secret from the people, and even from the participants. If it isn’t that way, it looks that way and no one can reasonably determine that it is not that way in any given case. This is not just because “power corrupts the just,” but as the judicial system becomes more the locus of arbitrary power it tends to draw more of those who seek that environment. The judiciary is a dynamic system of people who adapt to their environment according to principles of human nature. Change the environment to 1234.

U.S. CONST. art. VI, cl. 3: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath of Affirmation, to support this Constitution; ... “. 1235.

One of the more profound descriptions of the duty to support the Constitution notwithstanding that other officers may fail to do so was made by Judge Liddle in Wuebker v. Bowles, 58 N.Y.S.2d 671 (1944). On what the Oath requires of a Judge, his opinion is one of only two cited in the US Code Annotated; Art. VI, § 3, U.S.C.A. “Under the Constitutional requirement that all ... judicial officers of the several states shall take an oath to support the Constitution, the Constitution, alone, as it is written, is the sole test, and the support of an act of Congress or any law promulgated by any other federal official or any court decision, is not required.” That is the U.S.C.A. quotation. His statement goes on in Wuebker: “Only the Constitution and laws made in pursuance (not in violation thereof) are declared to be the supreme law of the land. Decisions of the Court are not included as any part of the supreme law of the land. That court may support the Constitution, as its oath requires, or it may fail to do so, but it cannot change it. Under Article 6, only the Constitution and the laws made pursuant to it are binding on this court.”

579 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION become a safe haven for corruption, as Bradley v Fisher changed the judiciary after 1872, and “judicial substance” changes to reflect its new clientele. Its new clientele depend on immunity to wield arbitrary power. Where once it drew men of iron character and the will to do justice, today the system actively selects in favor of would be politicians who lack the courage to state their convictions, if any they have. They are rewarded with judgeships as “political plums” for political favors traded behind closed doors. The judiciary creates the kind of judges it wants: In Stump v. Sparkman,1236 the Court held that constitutional standards are not enforceable against judges, even where the violations are in excess of jurisdiction and corrupt or malicious. Over the 135 years since the Civil War, the Court has redesigned the judiciary and indeed, all of government, to protect and promote corruption in office. If Judges are not corrupt when they become judges, the system offers an irresistible occasion to become corrupt because it gives them the power to violate the rights of the people who our Supreme Court has ruled, shall have no effective recourse against them. As official immunity causes endemic corruption, the stepping stones for a new, modern day Hitler in the United States is through 20,000 insulated judges protecting themselves and all of government from accountability to the people they injure in violation Constitutional Rights. They are insulated from all accountability, except one. That is accountability to their “superiors.” Who are their “superiors?” They are government officials who hold the same arbitrary power over the judges that the judges hold over us. And they also hold arbitrary power to dispense government favors to private parties and to other nations; favors we pay for, and favors that can get us into war; war without accountability by those who make war, to anyone. Is this just cause for a rights conscious people to distrust their “justice system?”

C. ASPECT THREE: POLITICAL PERSECUTION FOR EXERCISING PETITION RIGHTS The Right of Petition in history: in order to understand why government takes such a dim view of the Petition Clause we must realize its historical context. About eight hundred years ago King John of England and his upper class nobility had a running dispute with the lower nobility, the barons. The barons had the loyalty of most of the common people and that gave them an advantage at the “ballot box” that consisted of mostly swords and bows and arrows. The people siding with the barons gave them the military power to strongly suggest to King John that it would be in his interests to negotiate a bargain on June 15, in the year 1215 AD at Runnymede. The Great King bowed to the will of a people angered at his incursions against common decency. King John agreed to the terms of what is now the cornerstone of both British and American Constitutional Law: The Magna Carta. There is something very important about that date. Since 1215 there has not been a “sovereign” head of state, or “kingly sovereign” in our common law. Examine Chapter 61 of the Magna Carta. You will see why a “common law of sovereign immunity” wherein the king can’t be sued without his consent, is utterly false dogma. Our judicial doctrines of sovereign and official immunity depend on that false dogma. Our Supreme Court’s concepts of “sovereign immunity” depend on the idea that we had a “sovereign” in our English Common Law that was not accountable to the people for his wrongs to them. The fact is that there is no such sovereign as the Supreme Court has systematically created in America, for almost 800 years back into our English Common Law.

1236.

See Stump v. Sparkman, 435 U.S. 349 (1978).

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EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION Very few cases describe the origins of the right of petition. One such case was brought (and lost) by this writer.1237 The California Appeals Court describes the origin as follows: A. The Common or Natural Law Origin of the Right to Petition. The right to petition for redress of grievances is the right to complain about and to the government. The Magna Carta, chapter 61, purported to grant the right. Now it is viewed as a “natural” right.1238 [It] was confirmed by parliamentary resolution in 1669 as an inherent right 1239 and was lodged in the Bill of Rights of 1689.1240 ‘… it is the right of the subjects to petition the king…[and] all commitments and prosecutions for such petitioning are illegal’. 1241 The right embraces dissent, and ‘would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen.’ 1242 ‘[D]eprivation of it would at once be felt by every freeman as a degradation. The right of petitioning is indeed a necessary consequence of the right of free speech and deliberation  a simple, primitive, and natural right.’1243 Understand the significance of those origins: There was war between the royal government and the people and our ancestors were on the verge of tearing the royal government down and replacing it with one of their own choosing. The King was deeply troubled by the prospects of the heavy hand of the executioner’s axe, so he had to promise to be good. But the Magna Carta is not just a document of promises. It embodies the tradition of limited tolerance for government that eventually inspired the Revolution of 1776 and framed the concepts of limited government that were written into our Constitution in 1789. It is that “common law tradition” that is ultimately important because it reminds would be false “sovereigns” that if they get too oppressive, the people can and will tear unconstitutional government down and replace it again, with one that conforms to the Constitution.

1237.

See supra note 1, at 50-51.

1238.

See Paterson, LIBERTY OF PRESS, SPEECH & PUBLIC WORSHIP: RIGHT TO PETITION PARLIAMENT

30 (1980). 1239.

See Corwin, CONSTITUTION OF THE UNITED STATES 1914 (2d ed. 1964).

1240.

See 3 Stat. 417.

1241.

See San Filippo v. Bongiovanni 30 F.3d 424, 443 n. 23; (3d Cir. 1994); 1 BLACKSTONE, COMMENTARIES

*143. 1242.

See Story, COMMENTARIES ON THE CONSTITUTION 707 (1833); see also 1 Cooley, CONSTITUTIONAL LIMITATIONS: PROTECTIONS TO PERSONAL LIBERTY 728 (8th ed. 1927) (quoting Lieber, LIBERTY AND SELF GOVERNMENT 124 (2d ed. 1859). 1243.

The Court of Appeals cites a footnote at this point suggesting that “The ‘right to petition’ is distinct from the petition of right,’ permitting claims against the Crown. See generally Clode, PETITION OF RIGHT (1887); Wade & Bradley, CONSTITUTIONAL LAW 684 (1965); Chitty, PREROGATIVES OF THE CROWN 340 (1820). This writer disagrees. While one can conceptually distinguish between them, what we are looking at is the legal and cultural evolution of a single right that differs somewhat upon its uses. That conceptual distinction breaks down in post Revolution and Constitution America. Here, we never had a “kingly sovereign” by which to distinguish petitioning government from petitioning the Crown. Thus, the first amendment “Right to Petition Government for a Redress of Grievances” recognizes only the end product of that evolution, as it applies in America. The emphasis is on the right to petition “government” period.

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EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION That act of tearing government down when it becomes unresponsive to the people’s need for justice, and replacing it with a more accountable government, is itself an exercise of the “Right of Petition” when government oppressively abridges its otherwise free exercise.1244 That is what is meant by the declarations of Commons in 1669 and 1689, that the right of petition is a natural or inherent right. Our Declaration of Independence was an exercise of that inherent right, declaring to the world the refusals of the King to hear the petitions for redress by the Colonies, and the consequences thereof: rebellion. Of particular significance here is the means by which the Magna Carta declared that its limitations on government power and respect for rights was to be enforced. That is the common law foundation of our Petition Clause. It is Chapter 61 of the Magna Carta. It is worth examining in detail to get the full flavor of what the Right of Petition really means in the ongoing dialogue between government and governed.1245

The Magna Carta, Chapter 61. “Since, moreover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant to them the underwritten security, namely, that the barons choose five and twenty barons of the kingdom, whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our present Charter, so that if we […] or any one of our officers shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offence be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us […] and, laying the transgression before us, petition to have that transgression redressed without delay. And if we shall not have corrected the transgression […] within forty days, reckoning from the time that it has been intimated to us […], the four barons aforesaid shall refer that matter to the rest of the five and twenty barons, and those five and twenty barons shall together with the community of the whole realm, distrain and distress us in all possible ways, namely, by seizing our castles, lands, possessions, and in any other way they can, until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations toward us. And let whoever in the country desires it, swear to obey the orders of the said five and twenty barons for the execution of all the aforesaid matters, and along with them, to molest us to the utmost of his power; and we publicly and freely grant leave to everyone who wishes to swear, and we shall never forbid anyone to swear. All those, moreover, in the land who of themselves and of their

1244.

As you read Chapter 61 of the Magna Carta, infra, observe that it claims the right of petition to include tearing the government down, then after redress is obtained resubmitting to the king’s authority. In a nation without a “kingly sovereign” the equivalent is tearing the government down and replacing it with one conformable to the Constitution. That is the common law implication of the first amendment right, as it applies to a constitutional nation. If any further proof that it includes replacing unconstitutional government by force if necessary, observe that the second amendment requires the people keep the instruments by which they can effectively do exactly that. 1245.

The Magna Carta was originally written in Latin. There are many translations of it and the wording may vary depending upon the translation referred to.

582 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION own accord are unwilling to swear to the twenty five to help them in constraining and molesting us, we shall by our command compel the same to swear to the effect foresaid […].1246 The development of our common law understanding of the right of petition began, but didn’t end with the Magna Carta. Over the next 450 years it became the cornerstone upon which the House of Commons built its relationship with the King. Then in 1669, Commons resolved with authority that every commoner in England had “the inherent right to prepare and present petitions” to Commons “in case of grievance” and for commons to receive the same and judge its fitness. Twenty years later, after the “glorious revolution” the 5th right of the “Bill of Rights” of 1689 declared the right of the subjects to petition the King directly, and “all commitments and prosecutions for such petitioning to be illegal.”1247 That is our “common law.” It explains why our Supreme Court said of it: The right to sue and defend in the courts is the alternative of force. In an organized society, it is the right conservative of all other rights, and lies at the foundation of orderly government. 1248 That is what the Right of Petition is. It is the right conservative of all others. It is designed to bring government to account under the law of the land, or by force if necessary, for the violation of other rights. It is so powerful that its free use will prevent the hostilities of war between government and governed and the mere promise to respect it can restore peace to warring factions because it is the instrument of justice under law, as between government and governed. It is intended to subject government to the compulsory process of law when government does not want to fairly redress the grievance. It is so important that “law” without it, is “law without justice”, and that is another name for oppression. Abridgment of the Right of Petition is advance notice of government’s intent to relentlessly oppress its people. We in America, whose right of petition is so abridged and burdened by government created immunities from redress and accountability, are on notice of government’s intent to progressively and relentlessly oppress us into tyranny.

Understand something: “government’s intent to oppress” is not an intention agreed to by officials meeting in secret and designing a program of oppression. Such a “secret conspiracy” is not what we are talking about. What we are talking about is the natural and inevitable result of increasing abridgment of petition rights, whether protected by a constitution or not. That’s what it means to be a “natural” or “unalienable right.” Abridgment of the right to complain to the oppressor about his oppression is necessarily unnatural and progressively oppressive and that lays the seeds of rebellion and the foundations for terrorism. But there is something uniquely threatening about oppressing the unalienable right of petition because it is the “right conservative of all others.” The reason government abridges it is to allow its officers to violate all other rights with impunity and unaccountability. When government does that, there is only one just and proper response: To throw off such government by any means necessary. That is the bottom line of the “unalienable right of petition for redress.” 1246.

The rest of Chapter 61 guarantees that the King and his heirs shall never interfere with the petitioning process or punish or intimidate anyone for assisting the barons to coerce just redress from the government. 1247.

See CONSTITUTION OF THE UNITED STATES OF AMERICA, ANALYSIS AND INTERPRETATION 1188 (1992); see generally 12 ENCYCLOPEDIA OF THE SOCIAL SCIENCES 98 (1934). 1248.

See Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148 (1907).

583 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

The Scope of the Right: It is important to understand what the full scope of the right entails. The right to petition government for redress of grievances includes recourse to force and violence against the government when it abridges the free exercise of that right. Read the Magna Carta, Chapter 61 again. If the formal process for exercising the right is abridged, it describes in detail what the unredressed aggrieved can do. He may harass and molest the government in every way to get justice, save only that he not molest the physical persons of the King or His Family. What does this mean? It means that the legal or constitutional “Right of Petition” includes the people’s natural right of rebellion against oppression when government so abridges the established processes for petitioning it for just redress. In a real sense, the Right of Petition is like the right of self-defense. Where a person is justly aggrieved, government has in effect previously assaulted him or his rights. By petitioning for redress, he is exercising his right of self-defense against that onslaught. When government fails or refuses to justly redress, the conditions of assault and aggrievement continue and the individual is entitled by that right, to take greater and greater measures to obtain justice from his government oppressor, as his means of self defense against government oppression. Violence in response to oppression is a natural expression of the Right of Petition when its non-violent expression is abridged. Just as the common law countenances the violence necessary to defend oneself, so too it authorizes violence against government necessary to get its attention, when it abridges the non violent avenues of seeking just redress for its wrongs. Just as government has a primary duty to provide police and military protection for the people, government has a primary duty to justly redress the people’s grievances against it. That is a non-delegable duty that goes to the very essence of government functions. Who will tolerate a government that systematically levies injustice upon the people? The duty to redress grievances justly is the duty to provide systems of justice for the people. Police or military powers without domestic justice between government and governed is tyranny. Who needs a government that is organized to impose tyranny with its police and military powers? It is the province of the Petition Clause to impose justice on an unjust government. A “people’s right” that powerful can cause fear in government that it will be “abused” to interfere with the governing processes. No doubt, it can be abused and it is intended to always keep government conscious of its limitations. Governments should want to prevent conditions where the people can lawfully molest and harass it. There are only two ways to prevent people from molesting and harassing government, and government should always be conscious of them. The first is to render the right so accessible and just that the people find no need to coerce government to redress grievances with it. This is not just common sense for America, but it is common sense for every government, both as to the relations of government to governed, and as to the relations among nations. The right to just redress of grievances is the right to both justice, and the appearance of it. Terrorism, both international and domestic, all have two things in common. Whoever is behind it believes that he has unredressed grievances with the government at which the terrorism is directed. And he is able to convince others that his perception is correct. The only way to solve this problem is to change both the reality and perception from that of injustice to one of justice, at every level of government, from the local community all the way to the United Nations. The only way to do that is with open and fluid systems by which all grievances with government, real or imagined, can freely be addressed and justly redressed.

584 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION The only way to do that is when every government in all of its functions, is accountable to the governed in every way that it may create grievances with them, and that means that no government functionary can have immunity from just redress of grievances with it. The second is what we are experiencing. That is government progressively narrowing and abridging the right to petition while at the same time criminalizing the inevitable alternative avenues of petitioning that the people develop. That is oppression. Forbidding that oppression is exactly what our English common law imparted to the Right of Petition in 1689.1249 Those are the alternatives: systematic justice, or increasing oppression. It is that simple: The people either have a just relationship with government, or they suffer oppression. Initially, the government oppresses petitioning for redress by policies of sovereign and official immunity for it and its officers. What those policies mean is that the people cannot obtain redress as a matter of right against the government entities that are “immunized.” Today in America, such policies outright deny just redress in most cases. Where redress is theoretically allowed, immunity causes such increased complexity in the petitioning process that it generally frustrates petitioners seeking justice against government through the systems that are supposed to deliver justice under law. It is not that the judicial system is overburdened with petitions for redress. Rather, the law respecting just redress in both federal and state courts is so complex and convoluted with special privileges and immunities that government lawyers know that in most cases they can litigate petitioners into submission without ever getting to the merits or before a jury. What does that do? That prevents settlement out of court in even the most righteous petitions for redress because government lawyers know that they can beat the aggrieved unjustly in court. Government actually depends on judicial oppression to cover up its violations of constitutional rights. The judicial system, with its own “law making power” creating immunity and deciding how to apply what it creates, has redesigned itself for systematic oppression of petition rights. That reality annuls the “separation of powers” doctrine in every important sense. “Separation of powers” is now: “all of government organized against just redress to the people.” The increased complexity of “redress law” further causes increased need for lawyers and raises litigation costs immensely. The resulting high cost of petitioning for redress creates class divisions along lines of wealth where only the wealthy can effectively petition government for redress. That in turn gives wealth a capricious voice in shaping government and law not available or even apparent to common people. But the resulting oppression is apparent to them. These things combine to so increase the costs of petitioning so as to cause more people to turn to alternative forms to “harass and molest the government” into tending to the emerging judicial crisis. As might be expected, government does not take the people trying to “harass and molest it” lightly.

Criminalizing the Right of Petition: Government passes and enforces laws limiting the “legal” assistance the people can get in petitioning for redress. For example, it may limit attorney fees that can be charged for petitioning in some kinds of cases. That limits the claims that can be economically pursued.1250 That protects government from accountability for rights 1249.

Chapter 5 of the English Bill of Rights of 1689 outlawed criminal prosecutions for petitioning.

1250.

For example, it limits the contingency fee chargeable under the tort claims act and it limits the dollar amount attorneys may charge for Veteran’s petitions. The effect of these limitations is not to literally limit fees. Rather, it limits and frustrates the claims for redress that can be economically made.

585 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION violations that can’t be economically vindicated. That causes petty bureaucrats to become little tyrants unaccountable for petty dereliction and abuses to the people in government’s name. It passes and enforces attorney licensing laws that broadly prohibit “practicing law” by non-attorneys. These laws abridge the right to petition in two separate ways:

586 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION First, licensed attorneys are generally inadequate and prohibitively expensive for most abridged petitioning processes. They are controlled by their license and can not prosecute petitions effectively where government through its courts tells them that they should not. They are limited in the assistance they can give clients to the government approved means of petitioning. As government progressively abridges the petitioning process, licensed attorneys more and more become apologists for the abridgments. As we have seen, the actual common law right of petition contemplates that when government abridges effective petitioning processes, the people may go over, around or through the abridgments in any way necessary. In that way, licensing attorneys aids and abets government abridgments of the First Amendment Right by preventing effective counsel to the people as to what their common law rights are against government oppression. In effect, licensed lawyers tell the people that there are no alternatives to government oppression. That makes them the government’s “Judas Goats” leading the people into ever deepening wells of oppression from which there is less and less recourse to violence. Second, licensing lawyers unlawfully burdens the right to petition. Hiring a non-lawyer to help you petition government for redress is protected assembly to petition, and choosing the person to speak for you in the petitioning process is the very heart of freedom of speech. How dare the government license and control the people who you may choose to speak for you to government? In effect, such an assembly now becomes a “criminal exercise of First Amendment rights” 1251 by non-lawyer participants “practicing law to speak for you, without a license”. Next, it becomes “conspiracy to obstruct justice.” One can hardly find words to express the intellectual garbage involved in selling the idea that government can license the persons you choose to speak for you to government about your grievances with government. The only license necessary, is the “license” you give by your selection of those you authorize to speak for you. All licensing of persons to whom you may give that authority is necessarily a multiple abridgment of the First Amendment. As the people’s frustration increases with their licensed spokesmen and what they are allowed to say to government, they turn to further extremes. They might create their own courts (“Common Law Courts”) and record “common law liens” against government and its officers. This too is protected activity where government has previously so abridged the right of petition so as render it ineffective. But now government uses other kinds of laws to criminalize this conduct. For example, participating in a common law court may be conspiracy to obstruct government agents. Filing a lien against an I.R.S. or other government agency is treated as “filing a false claim” or “obstruction of justice” or “interfering in the administration of justice.” Sending a notice of lien by mail is prosecuted as “mail fraud”, and associating to exercise these petition rights becomes “aiding and abetting” or “conspiracy to commit” those “crimes.” Those are abuses of legal process and malicious prosecutions to oppress the right of petition for which government prosecutors have absolute immunity. The problem is that licensed attorneys don’t know how to deal with government oppression because it is not taught in government approved law schools. Attorneys are programmed to believe that government acts in good faith execution and enforcement of the law; and they are

1251.

The author considers this expression (“criminal exercise of [f]irst [a]mendment [r]ights”) to be a contradiction in terms. Yet, it accurately describes government’s efforts to chill the people from effectively seeking redress of grievances with it.

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EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION afraid to deviate from that government created belief system that they are licensed to follow. The punishment for attorneys deviating from their licensed program is professional blacklisting.1252 The result is that people charged with “criminal exercise of rights” are harnessed with “ineffective assistance of government licensed counsel” who lead them, like Judas Goats leading sheep through a “legal system” redesigned to convict and punish those who oppose government oppression according to the culture of our common law. This not only renders assistance of counsel ineffective, but it is reminiscent of British Star Chamber Practices.1253

1252.

The author is a “blacklisted attorney.” Part of the story of his blacklisting can be reviewed on the Internet at http://www.constitution.org under Confirmed Abuses. Another part of that blacklisting is recorded in Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43 (1997), cert. denied, 522 U.S. 937 (1997). What should be noted in that case is that he is being blacklisted under California’s Vexatious Litigant Statutes for having lost five cases against immunized government in seven years. See generally Wolfgram v. Wells Fargo, 53 Cal. App. 4th at 47: “… Wolfgram filed at least five unsuccessful suits against judges and other officials alleging misdeeds…” In other words, Wolfgram petitioned government for redress of grievances with government, and lost at least five petitions when he tried to penetrate government immunities. Now he is blacklisted from such petitioning. But what he learned in the process are the foundations for this article, and a book that is introduced under “Prelude” at the above web site. In point, “Justice” Morrison, who wrote the opinion, was so impressed by the intellectual quality of the brief that he wanted to show his own intellectual prowess in his opinion. When the opinion issued, it was “Not for publication”. But because of the intellectual quality of the opinion, mostly borrowed from Wolfgram and his attorney Kurt Simmons, Wolfgram was able to force publication of that part of the opinion that addresses the petition clause issues under the California Rules for Appeals. Then he took the case to the California Supreme Court and certiorari was denied. Then to the U.S. Supreme Court where cert. was again denied. Of five cases raising petition clause issues that Wolfgram has taken to the Court (all cert. denied) Wolfgram v. Wells Fargo is the only published opinion, and the only reason that it is published is because the judge was badgered into writing the history of the petition clause into an opinion that was intended “Not for Publication”. The rest of the opinion still is “Not for Publication.” 1253. Attorney licensing undermines effective assistance of counsel in cases of “criminal exercise of rights”. While the issue is somewhat different, the Court examined the relevant text and meaning of the sixth amendment right to assistance of counsel in Faretta v. California, 422 U.S. 818, 820 (1975). “In all criminal prosecutions, the accused shall enjoy the right … to be informed of the nature and cause of the accusation; … and to have the Assistance of Counsel for HIS defense.” (emphasis added).

That is what the sixth amendment says. “The purpose of the right to counsel is for the accused’s defense, not just defenses that counsel finds expedient for government. … An unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution.” Id. at 821. (emphasis added) While the Faratta issue was the right to defend one’s self, that right necessarily includes the right, when you have counsel, that counsel assist you in YOUR DEFENSE. The Court, in that vein, observed that an attorney is an assistant, and no matter how expert, an assistant is still an assistant. Then the Court described the only court in our legal history to force counsel on unwilling clients: The British Star Chamber. Id. See supra notes 17 and 18. (the Court described the impermissible thing the Star Chamber did by forcing counsel on the accused) That impermissible thing now seen as characteristic of “Star Chamber practice” was to make sure that no defense the King didn’t want made was made. The Court described what happened to counsel in Star Chamber practice who presented a defense the King didn’t want to hear. His fate was as bad as that of his “client.” Thus, the sixth amendment issue is not merely the right to counsel, but as it says on its face, it is the right to expert assistance in investigating and presenting the defendant’s very own defense. Licensed attorneys can’t present the defendant’s own defense against “political crimes” because “the king” doesn’t want that, and the king controls the lawyers through their licenses. Such attorney licensing is in effect, the foundation for a modern day transition to “star chamber” courts and the legal practices necessary to sustain political persecution.

588 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION Today, these kinds of cases are proliferating throughout the nation. The Montana Freemen cases where the “freemen” were charged and convicted of substantive crimes like bank and mail fraud are cases in point, and there were untold scores of similar prosecutions in their wake. In point, these were really Petition Clause cases where the government oppressively refused to allow the real facts and the First Amendment Law to go to the jury. The Montana freemen and many others were convicted of the “Criminal Exercise of First Amendment Rights.”1254 (emphasis added). What is the solution to criminalizing the exercise of Petition Clause rights? The common law specifically forbidding criminal prosecution of persons for petitioning government for redress developed out of Britain’s “glorious revolution” of 1689. Thereafter, the English Parliament made it unlawful to prosecute people for petitioning government for redress. But simply outlawing such persecutions does not solve the problem when government and its officers are immunized for such misconduct. Our First Amendment says that “Congress shall make no law abridging…” Would it make any difference if it also added that the executive “shall enforce no law abridging…?” It is extremely doubtful since the Executive is already sworn, “to the best of my Ability, preserve, protect and defend the Constitution of the United States.”1255 That includes the First Amendment. How can anyone prevent the executive from enforcing constitutionally corrupt laws corruptly, if he is already free from the consequences of violating his oath? All government prosecutors and judges are absolutely immune from accountability for malicious prosecution. So they are not accountable to the people whose constitutional rights they violate. If they are not accountable to the people they wrongfully injure, who, pray tell, are they accountable to? The power to be unaccountable for corruption in office must be nullified. Today in America, the language of the First Amendment notwithstanding, persecution for exercise of Constitutional Rights is a substantial portion of all federal criminal convictions. To find a solution one must first understand the problem. Abridgment of petition rights does not authorize unreasonable attacks on the government. But under the common law guidance of the Magna Carta, it does justify reasonable attacks on government authority like establishing common law courts and filing liens against government and its officers that have no greater effect then harassing government, when procedural and substantive petition rights are abridged or rendered ineffective. Whether or not it “authorizes” violence against government depends upon how oppressive government becomes. The problem is that even reasonable harassment attacks against government spiral out control because government has immense power and little or no accountability for its use or abuse, and, would you believe, it has no sense of humor; and no humility, at all. So, for example, some people are frustrated with governmental unaccountability and prefer to live in isolation from government. From that Petition Clause response and government’s lack of a sense of humor, we 1254.

A case of “Criminal Exercise of First Amendment Rights” just came down as this article was being written, form the Ninth Circuit Court of Appeals. In U.S. v. Fleming, (9th Cir. 2000) Fleming reacted to Federal Judge Coyle’s abridgments of his petition right by filing a lien against Judge Coyle for $10,000,000. He was charged and convicted of obstruction of justice under 18 U.S.C. § 1503. The issue of his first amendment petition clause rights was not raised on appeal. Fleming asserted such a common law right, but his Federal Defender attorney “conceded in his brief to this court that no such right exists.” 1255.

U.S. CONST. , art. II: Presidential Oath.

589 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION got “Ruby Ridge”, and a young mother shot dead while holding her baby, by a government sniper with a high powered sniper rifle. And government’s best excuse: We didn’t mean to shoot her or her baby. We only meant to kill her husband who was within a couple of feet of her and the baby, and who was not then endangering us. So for another example, there are people whose frustration with lack of government protection and redress problems leads them to isolate themselves in more or less self-sufficient communities. Again, government’s refusal to believe that sane and decent people could reasonably want to isolate themselves from unconstitutional government interference in their lives, gave us the flames and mass killings of Waco, and the federal organized cover-up that includes persecuting the victims for defending themselves against armed aggression. It should not be concluded that only government lacks a sense of humor in these matters. It seems that a former candidate for same United States Army “Delta” team that it appears more and more certain staged a military assault upon the Branch Davidian Compound, may have taken the matter personally and waged an “eye for an eye” campaign against government. That gave us Oklahoma City and the bombing deaths of more innocent men, women and children. That too has an aftermath which includes unreasonably increased government security for itself, and as Y2K demonstrated, for the Nation. That increased security not only erodes Petition Clause Rights, but it increases tension between government and governed. Instead of the government trying to solve the Petition Clause problem by making petitioning for redress more effective, it tries to increase its security from accountability by an organized attack on the Second Amendment disguised as a “war on crime” against “potential criminals” with guns. Do we need to be reminded that the hallmark of government oppression is that we are all “potential criminals?” We become actual criminals by mere resistance to oppression. This article does not try to excuse or justify any of these attacks. It merely points out that the “logic of war” is already upon us and it is a major part of the problem. That logic makes more “Wacos” and “Oklahoma Cities” all the more likely, and it does something worse. Government is organized to control anything that it believes may injure it. The aftermath of Waco is wide spread exposure to criticism. Government does not admit any wrong at Waco, but it admits that it suffered wide spread criticism. It will do little to prevent more “Wacos,” but it will do much to prevent the wide spread criticism. What it will do is act to contain freedom of information to the people, upon which widely spread criticism depends. What will that do to those who already believe government can not be trusted? Perhaps it will convince them all the more that the only recourse to government corruption is armed rebellion in the style the world has come to know as “terrorism”. That is the style of rebellion the nation felt at Oklahoma City. It can be worse: much worse as greater and greater means of mass destruction and mass killing are being designed privately or escape from both foreign and domestic government control. The world is developing markets for the instruments of mass terrorism … and we are the target. The solution is to release our Petition Clause to do its work, then to export it to every nation in the world: “made in America.” At this point the reader is reminded that the common law purpose and logic of the Petition Clause is to prevent this kind of cycle, to reduce government to governed tensions, and even to bring peace among warring factions, with its mere promise. We, the People, and the Nation and its government, all of us: We need that promise.

Solving the Problem:

590 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION If you understand the nature of the problem; that it is caused by governmental arrogance to the Right of Petition, then you also understand that the solution is to release the Right of Petition to do its work in bringing the government under our Constitution. Then we have to teach other nations to do the same, by our example. How can we do that? It is one thing to say “release the Petition Clause to do its work”, but without a concrete plan, the statement is so much rhetoric. What can be done? The immediate problem is that government is increasing the stakes by persecuting people for “criminal exercise of First Amendment rights” in violation of the common law right established in 1689 in the 5th right of the British Bill of Rights. That spiral has to be stopped in a way that is meaningful to both government and governed. There are legitimate applications of the kind of laws (conspiracy, aiding and abetting, obstruction, interference with government, bank and mail fraud, etc.) that also entrap legitimate exercise of Petition Clause rights. These laws chill and punish the most important political expression there is: political dissent to government oppression. But there is no practical way to throw all of those statutes or applications out as unconstitutional, even though they chill the First Amendment and are in that application, overly broad and vague. The normal mechanism for testing these applications is to wait until the legal theories that demonstrate abridgment of First Amendment rights develop, and then for the courts to address the issues in terms of “vagueness and over breadth” of laws chilling First Amendment rights. One major problem here is that there are so many laws that can be applied to abridge Petition Clause rights. Normally, it takes years, even decades to develop the legal theories necessary to overturn a very limited number of similar statutes; and during all of that time; the government resists development of such theories and persecutes those who develop them. Presently, there are a large number of laws that are applied to persecute the exercise of petition rights. By the time the legal theories are developed and applied, the pressures for violence will have increased dramatically, and government will have adopted new and even more oppressive measures to contain the increased pressures for violence. Moreover, all of that assumes that the courts are trustworthy as to this issue, and a major theme of this article is that they are not. The judiciary is a part of government and government does not want to see an effective Petition Clause because that nullifies arbitrary power at all levels. Effective petition rights create problems for all of government by requiring direct accountability of government officials to the people they injure. As demonstrated in Part I, supra, the judicial theft of the First Amendment Petition of Right is a fact the judiciary has effectively concealed for over 200 years. Why should anyone believe that the judges would change that concealment and denial policy now? There is a collateral problem. The longer it takes to show that government will honor the Petition Clause and make it effective, the more skeptical more people become and doubt that it ever will. That increases the pressures for modern rebellion (terrorism) to organize. Of course, government will develop its own counter measures, and that will inevitably stimulate a more vigorous response by those who fear tyranny. That is the “logic for war.” The way out of the cycle is to effectuate the right of petition so that persons accused of “Criminal Exercise of Petition Rights” can have the evidence and the First Amendment submitted to the jury. Paired with such an instruction is opening up the federal defender system so that the accused may select any counsel, as a matter of right, that is willing to work for him at the same price as conflict counsel. The reason is that the federal defender system is closed to competition and the result is to institutionalize ineffective assistance of counsel at public expense.

591 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION Compulsory State Bars should be abolished as state organized First Amendment abridgments. Voluntary associations competing to raise standards would replace them. On the one hand, this combination would chill government from bringing Petition Clause cases. On the other, it would begin the mending process as juries feed back the information Congress needs to determine proper Petition Clause non abridgment policy.1256 Such jury instruction and freeing lawyers to compete for effective public defense can be accomplished by an executive order, or by legislation. It need only declare that in any criminal prosecution, on request, a verbatim First Amendment jury instruction must be given and all evidence relevant to that issue be presented to the jury. It also should require that an accused otherwise entitled to counsel at public expense may select any willing counsel and no federal official may discriminate against any freely chosen counsel on the basis that such counsel is not a member of any State Bar Association. This does not solve the immunity vs. Petition Clause problem. It is a stopgap measure to prevent persecution for exercising First Amendment rights under color of criminal prosecution, and it begins to unwind the tension and increase dialogue between government and governed. There are other things that need be done to restore the Petition Clause, and through it, our Constitution to a state of political health. Some of these are discussed under Aspect Four.

D. ASPECT FOUR: THE JUDICIAL CONTEMPT FOR PETITIONING TO REDRESS GRIEVANCES WITH GOVERNMENT IN FEDERAL COURT We have discussed three central aspects of the Petition Clause that are never addressed by the judiciary. Those aspects are: 1. The Petition Clause vs. Sovereign Immunity Issue. 2. The Petition Clause vs. Personal and Official Immunities Issue. 3. The persecution of persons for “criminal exercise of Petition Clause rights.” The Fourth Aspect is intimately related to the first three because it inquires into why the judiciary refuses to address constitutional issues of major importance, generally, and specifically why it refuses to address the first three aspects of the Petition Clause. In point, there is no more serious constitutional issue then whether judicially created sovereign and official immunity violates the Petition Clause. Is there any jurisprudential thinker who does not immediately know that the United States under the doctrine of sovereign immunity is an entirely different nation than the United States with an effective Right of Petition? How do we account for the line of Supreme Court cases that established sovereign immunity while consistently refusing to address that issue in the Petition Clause context? It is not as if the Court totally ignores the Petition Clause. It just ignores the three central aspects of it mentioned above. For example: 1256.

The question for the jury in each case is whether the proposed application of law abridges a reasonable exercise of petition clause rights under the face of the first amendment, the evidence and argument. If it does, they must acquit. If it does not, then they determine the case according to the other issues presented. While no one case informs Congress on what policy to adopt, many such cases where the jury refuses to convict, does send such a message. This process of the jury applying the first to the case guides both Congress and the Executive in determining the temper of the people on the petition clause issue.

592 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION The Right to Petition has expanded. It no longer is confined to demands for “a redress of grievances” in any accurate meaning of these words, but comprehends demands for an exercise by government of its powers in furtherance of the interests and prosperity of the petitioners and of their views on politically contentious matters. 1257 “The right extends to the ‘approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of government. Certainly the right to petition extends to all departments of the government. The right of access to the courts is indeed but one aspect of the right of petition.’”1258 There is no doubt that the Judiciary recognizes that the Right to Access the Courts is a First Amendment Petition Clause right. If it recognizes that, does it also recognize that the business conducted before the courts once accessed, is also a Petition Clause right? A few cases have addressed that issue in a non-governmental context. One such line of US Supreme Court cases arises out of federal antitrust law. The issue: When can the filing of a lawsuit lead to antitrust liability? In Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc.1259 the Court refined the “Noerr-Pennington” antitrust immunity doctrine and the “sham exception” to it. “Sham” suits enjoy no constitutional immunity. They are to a Right to Petition like pornography is to the freedom of the press. Real Estate Investors clarified earlier cases and set out a two-part test for “shamness.” First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. Once that is established, the court can examine the litigant’s subjective motivation to see if it conceals an attempt to interfere directly with the business relationships of a competitor through governmental process, as opposed to interfering by reason of the outcome of that process. That is essentially the “malice” or wrongful subjective motive part of the two part test.

1257.

See CONSTITUTION OF THE UNITED STATES, ANALYSIS AND INTERPRETATION 1188 (1992); see also De Jonge v. Oregon, 209 U.S. 253, 264-65 (1937); Herndon v. Lowry, 301 U.S. 242 (1937). 1258.

Id. at 1188-89; California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972); see also NAACP v. Cliborne Hardware Co., 458 U.S. 886, 913–15 (1982). 1259.

See Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60 (1993).

593 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

But notice: Professional Real Estate Investors is not a “Petition to Government” to redress grievances with it. It is a suit between private parties to determine which party will get the government power to compel the other to obey the law. This line of cases deals with lawsuits as a procedural due process issue. That is, the issue is access to the courts as a right to use them as neutral arbitrators to resolve disputes between private parties. As a “Petition Clause” function, it does not necessarily have its common law roots in the Magna Carta. It is important to notice the difference in these functions. The judiciary performs two separate Petition Clause functions. The first is providing a neutral dispute resolution forum for suits among private parties. That function incidentally but necessarily includes providing the same forum to resolve disputes between government and governed. Why? Because the Petition Clause is couched in terms of “Congress shall make no law abridging…”. Establishing separate compulsory avenues for petitioning government for redress like exhaustion of administrative remedies or through “star chamber” process necessarily abridges the right to petition government and is unconstitutional.1260 The second is to provide a “neutral forum” by which private persons can obtain access to the compulsory processes of law to use against government to compel it to obey the law, or to redress injuries suffered by government action in violation of the law. Notice that both the first and second functions are met by the same due process of law consideration: Unabridged access to the courts. The Courts call this “unabridged access” a Petition Clause right, but it is really a due process right that is all the more binding on the government when it concerns substantive Petition Clause rights. It is in this second function that we run into substantive Petition Clause issues that find their roots in the Magna Carta. These are the issues that deal with substantive grievances with government’s conduct in its governing affairs. In this sense, petitioning through the courts is only one of many petitioning methods. For example, a picket at a courthouse protesting a particular judge, is both protected speech and petition. Likewise with lobbying the legislature or filing complaints with the executive regarding the executive conduct of governing. But while there are many methods of petitioning for redress with government, up to and including assembly to riot or to use force against it, only one method can use the law to subject the government to the law and to the redress consequences of violating it.1261 That is to petition the government for redress through the courts. That is the right of the citizen to use the compulsory process of the law to compel the government, just like any other party, to answer and to be accountable for its wrongs to the citizen, under the law. 1260.

The Author believes that compulsory administrative procedures for non-contractual grievances, violates the petition clause. There is something inherently coercive that abridges the right to petition when administrative procedures are required. But the government may offer them and induce people to exercise them with such advantages as fair standards, speedy resolution, right to raise constitutional issues, simplicity of petition, low cost and so on. People may be induced to waive constitutional rights. But the problem emerges when government can force you to exercise administrative remedies instead of inducing you. In that case they use abridgment of petition rights as a whip, and there is no inducement for government to make such procedures fair with just redress. 1261.

Notice that this is the principle violated by Chief Justice Jay in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 478 (1793). That case began the United States on the journey of “sovereign immunity” which is translated as “immunity from accountability to the people.” See supra page 4.

594 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION There is something very important to notice about this particular process. Its effectiveness in administering justice relies on the fairness of the law as between government and governed. Presumably, law that is fair as between private parties will also be fair as between government and governed. The reason? In making law as between private parties generally, the lawmaker seeks justice for the people, generally without bias. But if the lawmaker makes special laws for government, as a part of government, he has a bias for the governing function, and that function is necessarily to regulate the liberties of the people. Thus, the important function of substantive Petition Clause activity through the courts (obtaining justice between government and governed) depends on the regularity of both the compulsory processes of law and substantive law that is to be applied to determine what, if any redress against government, the citizen is entitled to.1262 So, for example, the right to sue the government in court is a due process right that applies to all grievances among parties, including grievances with government, albeit, the latter has a substantive Petition Clause status. In substantive Petition Clause cases, the right to that due process regularity is also a Petition Clause right because Congress may not abridge access to the courts for substantive Petition Clause purposes with special procedural requirements. But that Due Process right, even “raised” to Petition Clause status, is meaningless unless by that process you can subject the government to the common law,1263 as opposed to special laws designed to protect government from being compelled to redress grievances. So, for example, what good does it do to have a due process right protected by the Petition Clause to bring suits against government to redress grievances, if government is protected from accountability for the grievance by substantive laws of immunity? It is those substantive “laws” that violate the substance of the Petition Clause. The point here is that government immunity is the major substantive mechanism by which Petition Clause rights are undermined and gutted. There are other laws specially protective of government that undermine or gut substantive Petition Clause rights, but the immunity “laws” are by so far the greatest offenders that none of the others, like “tort claims” and “exhaustion of administrative remedies” acts, need be examined for the purposes of this article.

1262.

Notice the common law observation of Justice Miller in U.S. v. Lee, 27 L. Ed. 176. He “concedes” that sovereign immunity is “the established law of this country, and of this Court at the present day”. Then he discusses the English “Right to Petition”. He observes that it is uncertain whether the King “was not suable in his own courts and in his kingly character” but after the right was established, it “was practiced and observed in the administration of justice in England (and) has been as effective in securing the rights of suitors against the Crown, in all cases appropriate to judicial proceedings, as that which the law affords in legal controversies between the subjects of the King among themselves.” Notwithstanding that Justice Miller ignored our petition clause, that does describe our common law right to petition government for redress under our petition clause. 1263.

As used here, “common law” has a peculiar meaning that the author believes is also part of the meaning of that term as used in the seventh amendment. It means “the law that is common to and binding on all of the people.” It is in contradistinction to law specially designed for government, especially for government protection from the people under the “common law.” Notice that all seeking redress for any grievance that you have with government falls under the petition clause, and as to that, Congress shall make no law abridging. The necessary result is the right to petition for redress of grievances with government through the courts under the law that is common to the people without abridgment for government’s benefit.

595 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

III. THE DUAL MEANINGOF THE PETITION CLAUSE: PROCEDURAL VS. SUBSTANTIVE The Petition Clause has two separate meanings: A procedural meaning  the right to petition government for redress through all the means amiable to that end including judicial; and a substantive meaning  substantive redress shall not be abridged merely because government or its officers are defendants. It is “The right to substantively just redress.” How do you know it has two separate meanings? The First Amendment prohibits both procedural and substantive abridgments on its face. What more can be said than “Congress shall make no law abridging…” unless it be added, “and the judiciary shall make no law at all.”1264 Now, understanding this dual meaning: We are ready to examine the mechanics of how the judiciary systematically refuses to treat substantive Petition Clause suits with the dignity to which they are entitled under the “Common Law.” That is both as common to our people, and as derived through our legal heritage from the original understanding of the Magna Carta. Distinguish between procedural due process and a substantive Petition Clause Right, albeit, the procedural right is raised to a First Amendment status. The substantive right is for instance: “The government built a road across my land without paying a just compensation.” That is a Fifth Amendment violation. You have a Due Process right to sue the government on your claim in court. Doing that is a Petition Clause right, but to this point, it is all process. What about the right to have the claim heard on the merits? That is also a due process right. What about the right to have the claim decided by a jury? That also is a procedural right protected by the Seventh Amendment. What about the right to have the claim justly redressed? That is a substantive petition right. But what does that mean? In this case it means the right to make claim for and receive Fifth Amendment Just Compensation for government’s condemnation of a right of way across your property. In other words the substance of the Petition Clause right is the right to compel government to obey the Fifth Amendment Just Compensation Clause. Notice how the substantive right can be usurped. Suppose you sue the state highway commission in federal court for violation of your Fifth Amendment right to just compensation, under 42 U.S.C. § 1983. You are exercising the procedure of petitioning for redress. The highway commission moves to dismiss on the basis that it is a state agency constructing a state road and it has “state sovereign immunity” under the Eleventh Amendment. The suit is dismissed. What happened? The substantive doctrine of state immunity cut off the substantive Petition Clause right. You had your procedural right to petition for redress. The judge can’t doubt that you are making a Fifth or Fourteenth Amendment claim under 42 U.S.C. § 1983 pursuant to the Petition Clause, but substantive redress is barred. Why? You have two substantive constitutional rights to just compensation for the easement: The

1264.

U.S. CONST. Art. I, § 1, is conclusive of the issue. “All legislative Powers herein granted shall be vested in a Congress of the United States,” (emphasis added). “Shall be vested” is mandatory. The Supreme Court is not a part of Congress. Therefore no legislative powers by any name shall vest in it. Likewise, with the Executive Branch.

596 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION First and Fifth Amendments. Immunity of your own state government isn’t even mentioned in the Constitution.1265 How then does state immunity bar redress for constitutional violation? In effect, the judiciary allows a procedural Due Process right to exercise your Petition Clause rights through the judicial system, and it calls that the “Right of Petition” through judicial process. But it ignores the substantive nature of the right that demands just redress be accorded. Let’s get this concept straight. Our common law Right of Petition can be stated in different words to convey the same meaning. Observe again, the words of The International Covenant on Civil and Political Rights, Article II, § 3, as it conveys the Right of Petition. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding the violation has been committed by persons acting in an official capacity. (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (emphasis added) Subsection (a) means: “No government immunity.” Subsection (b) goes on to ensure “effective remedy” by requiring states to “develop the possibilities of judicial remedy” which, by way of subsection (a) is an “effective judicial remedy.” Would it make any difference if our Petition Clause used the same words, that the people shall have “effective judicial remedies” for the violation of constitutional rights? Did we miss something along the way? When the Framers adopted the Bill of Rights, could they possibly have intended “a bill of unenforceable rights”, or did they intend all along that “rights are enforceable through judicial remedies that are effective?” You know without being told that there was no misunderstanding. The Framers did not intend to sell the American people a “bill of rights” in name only. They intended the rights they enshrined into our Constitution to be enforced by the people, individually, against the government. They did that in these words: “Congress shall make no law […] abridging […] the right to […] petition Government for a redress of grievances” and combined it with Article III, § 2, “The judicial power shall extend to all cases, in law and equity, arising under this Constitution.” Tell me: does a petition to redress a violation of an enumerated Right by say, a federal judge, or federal prosecutor, or an FBI agent, or all of them in concert, “arise under this Constitution?” If it does, what law may be made to contravene just redress? There is only one answer: “None.” In both law and logic, it is that simple. Only Congress can make law, and nothing can contravene a legal right but another law. And as to the right to petition government for redress under law, Congress shall make no law abridging.

1265.

U.S. CONST. Amend. XI: “The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” On its face, it does not apply to suits by citizens against their own state.

597 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION Notice that using different words but of the same meaning, our Petition Clause and the common law from which it came, has been extended to the most important clauses of the most important treaties influencing the entire civilized world. Under it, prospectively, the peoples of the world shall be entitled to an “effective remedy” for violation of rights. But not so once you enter the courts of the “leader of the free world.” Petition Clause rights have no substantive value here. That is, you can petition for redress of grievances with government as a heightened due process right, but once in court, there is no effective right to justice. In America, the “land of the free” you cannot sue the “sovereign” without his consent. And his “consent” is couched in governmental and official immunities and special procedures and limitations which are applied by judges whose role is to protect government from accountability, and they are absolutely immune for the most outrageous violations of rights.1266 Our procedural judicial remedy is designed to be substantively ineffective.

Understand: We are not saying that the law is substantively hollow. We are saying, that just as government immunity is not the law, but a systematic judicial practice that nullifies substantive rights, that, and other judicial practice hollows out the substantive law. While judicially created immunity is practiced openly, many of the ways in which courts allow access but deny substantive redress in cases do not come under established immunity practice, but are just plain outright corrupt, and there is no other way to fairly describe it. One state Supreme Court has recognized that the right to sue government is at the heart of the First Amendment. The California Supreme Court led by Chief Justice Rose Bird addressed this highly volatile issue in City of Long Beach v. Bozak,1267. saying: The right of petition is of parallel importance to the right of free speech and the other overlapping cognate rights contained in the First Amendment and in equivalent provisions of the California Constitution. Although it has seldom been independently analyzed, it does contain an inherent meaning and scope distinct from the right of free speech. It is essential to protect the ability of those who perceive themselves to be aggrieved by the activities of governmental authorities to seek redress through all the channels of government. A tort action against a municipality is but one of the available means of seeking redress. (emphasis added). There is an important point to those words that is implicit in the Right to Petition. It is as important that wrongly perceived grievances be redressed with adequate explanation, as it is for real grievances to receive just redress.

1266.

In Mireles v. Waco, 502 U.S. 9 (1991) Judge Waco ordered his bailiff to find Attorney Mireles and he “ordered” his bailiff to “use excessive force” to bring Mireles before the court. The bailiff located, assaulted and battered Attorney Mireles, then brought him before Judge Waco. Mireles sued Judge Waco, all the way to the Supreme Court. That Honorable Court held that Judge Waco had judicial immunity from accountability to Mireles for his absurd “order” that violated Mireles’ constitutional rights. 1267.

31 F.3d 527, 535 (7th Cir. 1994), vacated, 459 U.S. 1095 (1983). (judgment reiterated under both state and federal constitutions by California Supreme Court in 33 Cal. 3d 727 (1983)).

598 EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

This is just common sense: If we are not to beg the question by assuming that all grievances are imaginary, then the process of obtaining redress must be designed to effectively sort them out; to redress imagined grievance with a reasonable explanation and to redress substantial grievances with just redress. That is a maxim of jurisprudence: justice must not only be done, but appear to be done. While it is clear that the California Court recognizes a substantive value to the Right of Petition, its emphasis is on the process by which redress is sought or made available. The opinion protects the petition right to bring the suit, regardless of whether it wins or loses. It only seems to imply that the process must be “effective.” That implication relies on an assumption that the judiciary will do justice and that it doesn’t take a heightened standard of substantive consideration to get the judiciary to do justice to the case. That is, “justice” is “justice” and that is what the judiciary delivers. Therefore, no specially heightened standard is required.

Ignores Systematic Bias: This assumption turns out to be utter nonsense in all cases except one: That one case is where the Petition Clause guarantees admission to a process in which the dice, in both appearance and fact, can’t be loaded against justice or substantive redress. It ignores the fact that the judiciary is part of government and judges are biased for their paymaster which demands by custom and practice, their obedience to government’s will over justice. The opposite of that assumption is declared very clearly in the Petition Clause’s common law ancestor, Chapter 61 of the Magna Carta. It proclaims the substantive petition right to just redress. While it is concerned with a “right of access” to the barons, the main concern is for timely (40 days) administration of substantive justice by granting appropriate redress. Thus Chapter 61 commands on that score: … And if we have not corrected the transgression […] within forty days, reckoning from the time that it has been intimated to us […] the four barons aforesaid shall refer the matter to the rest of the five and twenty barons, and those five and twenty barons shall together with the community of the whole realm disdain and distress us in all possible ways, namely by seizing our castles, lands, possessions and in any other way they can until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children;… (emphasis added) The Magna Carta’s focus is almost entirely substantive: “And if we have not corrected the transgression within forty days,” a state of moderate to severe war exists where the governed may lawfully ravage the government, and that continues “until redress has been obtained as they deem fit.” It could hardly be more powerfully stated that substantive redress is the issue, and process is only the lubricant to obtain substantive justice. Understand what that emphasis on substantive redress does to judicial bias. The command is, “just redress or war.” The reason for injustice is not relevant. If the grievance is brought to the barons, thereafter, “your fault, my fault, nobody’s fault” it doesn’t matter. The substantive right is “justice or war.” That is what keeps the barons, now the judges, honest. Where the people have effective recourse to judicial prejudice and self-dealing, judicial bias ceases to be a problem. Today, with immunity in place, the Right of Petition is mostly process and little or no substance, and all effective alternatives to petitioning through systems designed to be ineffective, is illegal. Thus, not only does the petitioner have to deal with substantive immunity, but with unbridled judicial bias in a judiciary insulated against accountability for violation of rights.

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EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION In effect, under the existing judicial “law,” you have a Right to Petition, but no right to justice, and no Court of Appeals has ever admitted the issue, or examined the conceptual difference. Let us now embrace the many vicissitudes thereunder. If the right to sue is the alternative to force, then the right to sue government is the alternative to rebellion or terrorism. If that is true, one aspect of the Right of Petition is access to the compulsory process of law to use against government as the civilized alternative to rebellion and terrorism. If judiciary is to serve that purpose, it must both fairly apply, and appear to fairly apply the law as between government and governed or the “civilized alternative” will be rejected. What is the Substance of the Petition Clause? If the Courts treat the Right of Petition as mere procedure, what is its substance? The answer is simple and direct. The substance of the Right of Petition is: “unconditionally effective enforcement of the rest of the Bill of Rights and limitations on government, and just redress for their violation.” The reason the answer is so simple and direct is because the alternative is lawful rebellion, terrorism and ultimately, civil war. That is the teaching of our common law. Underlying that teaching is a repetitive reality that the people learn and learn again. Allow judges to be biased for government and they will be prejudiced against redressing the people’s grievances  and government will abuse power more and more because of that bias. Allow government to decide when and if it will give just redress, and it will decide to give less and less justice. The result is simple logic: less justice means more oppression. Compound, complex, convoluted, vague and ambiguous “law” protects government from accountability. That environment maximizes judges’ ability to pick and choose the “law” or interpretation of it, which is most pleasing to their bias for government. Add to that “absolute judicial immunity” for exercising pro government anti redress bias, and pardon us if we observe that you have got to be stupid; or desperate; to pray for justice from that system. The only rational alternative to progressive oppression is a policy of “no excuses.” It is a primary duty of government to provide an effective system of just redress of grievances. Just like its duty to provide an effective military defense, there is no excuse for failure to provide justice as between government and governed. That is America’s common law culture.

IV. THE JUDICIARY IS ORGANIZED TO AVOID SUBSTANTIVE REDRESS OF CONSTITUTIONAL GRIEVANCES AND REASONABLE EXPLANATION OF UNREDRESSABILITY The Court said in Chambers, 207 U.S. at 148: “The right to sue and defend in the courts is the alternative of force.” That it is an alternative to force; there is no doubt. But if the judicial function merely replaces trial by combat with another arbitrary process for deciding winners, it can be done a lot cheaper and more fairly, with a roll of dice. While our judiciary has evolved some characteristics of justice, its redesign accents its barbarian origins as “the Sovereign’s” tool to control his subjects. That, instead of the unbiased administration of justice, has become the primary judicial function. Note the conflict between the two functions. That conflict involves some basic judicial intrusions into the Constitution that totally nullify the judicial function to administer justice under the law. Examine some of them:

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EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION 1. The judiciary interprets the Constitution, and only its interpretation counts. The judiciary is a branch of government. Thus, in disputes between government and governed over the meaning of the constitution, only government’s version counts. Is that “fairness?” That is the official state philosophy of “judicial supremacy” in action, and it is hardly “fair.”1268 Under that philosophy, government gets to be the only and final interpreter of the Constitution by which it regulates the people. How convenient for government. How unfortunate for the people. 2. Government has sovereign immunity; most of its agents have qualified immunity; and its prosecutors and judges have absolute immunity even for malicious prosecution and cover ups of civil rights violations by non-immune persons. What does that do to the idea of justice? 3. The First Amendment doesn’t exactly mean what it says by “Congress shall make no law […] abridging...” Instead, Congress can make laws abridging, providing they meet judicial tests of “state interest, narrowly drawn”, and all of the immunities the judiciary has created. 4. While we have personal freedom of speech within parameters, the only freedom we have to select our own spokespersons in the most important forums affecting our rights, the court’s of law, is by government licensed attorneys duly propagandized into the dogma of judicial supremacy. Government has propagandized and licensed the people’s Petition Clause spokesmen into believing that the Constitution means what the judicial branch of government says that it means; and they lead us into submission to endless bureaucratic and judicial control. 5. Article I, which vests all legislative power in Congress, doesn’t quite mean what it says either. The Judiciary can veto Congress and it can affirmatively write its own law as it did in the “immunities acts” which are judicial enactments that actually amend the Constitution, not just a little bit, but to the very foundations of the relationship between government and governed. These Judicial Amendments redefine and annul the very concept of “justice under law.” 6. As for the Second Amendment, the people should forget about keeping arms just in case our own government gets too far out of line. Since government is sole interpreter of the Constitution, it interprets that interpretation out of existence, and possession of arms becomes a common nuisance to be abated in every way bureaucrats can conceive.

1268.

“Judicial Supremacy” is the official legal philosophy of the United States. It’s origins are credited to Chief Justice John Marshal in his opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Actually, that founded the judicial policy of “Judicial Review.” That is not quite the same thing as “Judicial Supremacy” where in addition to supremacy over the other branches, the judiciary assumes supremacy over the Constitution itself. In all probability, Chief Justice Marshall would be absolutely astounded at the judicial philosophy he is credited with founding. While there are alternatives to Judicial Supremacy, it is taught in America as if there are none, and attorneys just learn to accept it as an inherent part of law practice. The alternative to Judicial Supremacy that is built into the Constitution, is the right to trial by jury where the jury determines the law as well as the fact. We still have the right, but it has been watered down so that the jury’s real function is instructed away by the courts. That function is the commonsense of a group of lay persons interposed between the accused and his accuser. The point is, Constitutional (and all “legal”) issues should be submitted to the Jury for their commonsense interposition. That is the constitutional balancing force against government having a monopoly on legal interpretation. It is practical that on any constitutional issue, the Nation has two separate lines of thought going all the time, as to what the real law is. One is the Supreme Court’s interpretation as government’s official spokesperson of what the Constitution means. The other is the version that emanates from a case by case evaluation by juries. That is the enforceable version. The push and pull between these two versions is the life of the “living constitution.” Everyday, the confluence of these two separate interpretations is the bargain struck between government and governed on what the Constitution really means.

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EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION 7. The troublesome Fourth Amendment: The only time people need security against government is if they are crooks. So, in that “constitutional” spirit, government protects crooks by excluding evidence obtained in violation of their rights. As to the rest of the people, government is protected by immunity, and not being crooks, honest people have no need for privacy anyway. 8. By the way, government can take liberty interests without any compensation, if it can find a “rational state interest”; and it has plenty of those. 9. Property interests are more protected. We are entitled to “just compensation” if government “takes” our property for public use. So what it does instead, supported and authorized in advance by judicial “interpretations” of “taking,” is to outlaw broad ranging uses of property though zoning; environmental and endangered species protection acts; and regulations of every sort, all for esteemed “public benefits” but avoiding the necessity of a “just compensation.” Understand what such takings of property rights do. It is not that environmental and endangered species protection and zoning are not worthy causes to spend tax dollars on. But that is not what the government does. Instead it coerces these “public benefits” from property owners, one individual at a time, without paying for it. That is, the cost of these collectively huge benefits is born by individuals, not by taxpayer/voters vis a vis government. To be sure, it is the judiciary that makes the rules by which these huge transfers of latent wealth occur. And on it goes. Nothing to be alarmed about. Government could do all of these things with constitutional amendments. So judicial amendments to the Constitution are just “matters of procedure,” and subjective rationalization justifying abandonment of principle rolls on. The point is not merely that the Judiciary usurped powers not delegated to it; but it has become so involved in and biased toward controlling the people for government, that it cannot fairly administer justice. The judiciary is no longer fit to perform its primary judicial function. Where does that leave our nation? The primary right of the people to control their own destiny through self government has been usurped; not boldly as by an invader, but surreptitiously by the branch of our own government that we trusted most. The people never got to decide the most important issues relevant to the kind of government they want for themselves and for their children. Oh, to be sure, they vote for “representatives,” but the fact is that the judiciary has so totally undermined the concept of limited government and unalienable rights that those running for office actually think that “Rights are the privileges government tolerates at any particular time,” and “libertarians” think government should tolerate more “rights.” In other words, today’s politicians and legal/constitutional/political scholars have not the foggiest idea of what the Constitution means, independently of what The Court says that it means. They rely on the Court to determine what “rights” are, and what their own job as our representatives is supposed to be. In a real sense, the Court dictates the entire political atmosphere to the people and their politicians. Most people who think about it, especially lawyers, actually believe that it is the right of the Court to be the “sole and finale arbitrator of Constitutional meaning and design.” They can’t conceive that it could be any other way, let alone can they get a picture of what the Supreme Court is doing to fundamental concept of individual rights and constitutional limitations on governmental power. Others see the arbitrary power wielded by the Court, but think of it as if we are governed by nine wise and noble legal scholars. That is, in effect, the “Rule by Philosopher Kings” that Plato seemed to favor. But, aside from the observation that if we are to be governed by “benevolent philosopher kings” then it should be openly so

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EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION and pursuant to an amended Constitution that authorizes “Philosopher King Supremacy” over it, and over the other branches. But the analogy fails in another respect. We are governed by the Court, as an institution, and far from the individual justices being “philosopher kings” they are “servants” of that institution and its rules; particularly of the rule of stare decisis and their own precedents. To the Court, stare decisis means more than simply following precedent. Of course, the Court has the power to overturn its prior decisions. Sometimes, as in National League of Cities v. Usery, 426 U.S. 833 (1976), and Garcia v. San Antionio Metro. Transit Auth., 469 U.S. 528 (1985), concerning Tenth Amendment Limits on the federal regulation Congress can subject states to under the Commerce Power, the same Court reverses its previous 5-4 decision by another 5-4 decision accomplished by one justice switching sides. That hardly reflects a “philosopher king” kind of leadership. But more to the point, when it comes to national policy like sovereign immunity, the Court has a much greater problem: How can it reverse itself without undermining its own basis of political power? How can it say to the people, “look, we made a mistake these past 200 years and never exactly noticed what the Petition Clause did to sovereign immunity, and, well, to be frank, we rewrote the Constitution the wrong way. Now we want to rewrite it the right way.” It’s not only, “Who’s going to trust them this time”, but why should we let the Court rewrite the Constitution again, when in the face of its admission, it never should have rewritten it the first time? Look, we are not talking about just any “mistake”. We are talking about a “mistake” that ignores the very foundation of republican control over government. That “mistake” annuls the very purpose of having a constitution  to limit government by holding it to account for its violations  and it is a “mistake” that benefits the party in error. In common law, that kind of “mistake” is not a mistake, but constructive fraud. Even if the Court didn’t know that it didn’t have Constitutional authority to make such a policy. But even if it didn’t know about the Petition Clause, such usurpation for its own benefit is still “constructive fraud.” Who will believe that the Court didn’t know those things? That is to say, if the Court ever admits that sovereign and court created official immunity is not constitutional, it opens a “pandora’s box.” The Court has never faced the kind of scrutiny that sometimes occurs to the political branches. But suddenly, there would be questions about how it could have made such a “mistake”; and then, “was it a mistake?” Then, if not a mistake, what is it for a branch of government to consciously undermine the people’s interests in the enforceability of what is after all, their Constitution? Some, perhaps many, will call it “treason.” But that brings up a new concept. The Justices’ actions are largely dictated by the institution in which they find themselves confined. If it is “treason” it is not a personal kind of treason, but something that is more like “institutional treason.” That is a concept that we legal philosophers don’t quite know what to do with. It is “out there”. It has some meaning, but as a concept that can help explain the perverse directions that constitutional republics might take that lead 180 degrees away from what you’d expect under their constitution, it requires a lot of exploration and analysis. As a concept of moral and legal judgment, it is almost useless. We do not begin to understand the psychological and sociological pressures and dynamics of legal institutions at that level of government. If it is “treason,” then we will have to deal with such additional concepts as “involuntary treason,” or “treason” under coercion and undue influence by the entire governmental structure of the nation against which the treason occurs.

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EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

V. CONCLUSION The purpose of this article is not to tell you, the reader, “the way that the law is.” At best, it can provide only a snapshot of a small piece of it, central to the law though it may be. The philosophy of law is much too young to know enough to tell you anything but small snapshots and rough outlines of legal theory, and the science of law has not yet been born. There is so much to be done in the philosophy of law that one’s lifetime is hardly time enough to start. Its future holds all of the excitement of a new science, undreamed of before. Its limits are so bound to human destiny that we shape today, by the understanding that we give, or fail to give, to its substance, the themes of human civilization, as it will exist forever, or as it may fail to exist beyond 21st Century. The purpose of this article is to start the next generation of legal philosophers thinking about what the law is, and why it is, and where it will take mankind, so that they can begin the journey that I only dream of. That journey is into the realm of law as a science for future civilizations, to set mankind free, to redesign and reconstruct his government as a vehicle to take him to the heights of freedom and dignity, that his God, and his soul for adventure, made him to seek. The Right of Petition is the right to substantive justice between government and governed. Upon that Right rests our hopes for freedom and dignity in the twenty-first century. Freedom and dignity thrive on justice, and cannot survive without it.

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