Plaintiff Preemptive Objection Anticipated Motion To Dismiss

United States District Court for the Eastern District of Arkansas, Northern Division, Batesville, Arkansas Don Hamrick, pro se 5860 Wilburn Road Wilburn, AR 72179 PLAINTIFF v. President George W. Bush, et al White House 1600 Pennsylvania Ave. Washington, DC 20500 DEFENDANTS

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18 U.S.C. § 1964(c) RICO Treble Damages 42 U.S.C. § 1983; § 1985; § 1986; § 1988 42 U.S.C. § 1402(a)(1) 42 U.S.C. § 2000h-2 Civil Action No. 06-0044GH (Recusal Demanded) (Judge broke federal law denying: 28 U.S.C. § 1916 by compelling payment of filing fee: 18 U.S.C. § 872 and administratively violated Rule 4(c)(2) Fed.R.Cv.Pro.) Jury Trial Demanded Damages Sought: $9 million (RICO Treble)

P LAINTIFF ’S P REEMPTIVE O BJECTION TO A NTICIPATED M OTION TO D ISMISS AND MOTION FOR INTERVENTION BY THE U.S. ATTORNEY GENERAL

P RESENTING STIGMATIC H ARM AS AN A DDITIONAL S TANDING TO S UE THE P LAINTIFF AS “P RIVATE A TTORNEY G ENERAL” M OTION FOR TEMPORARY INJUNCTION ON TWIC/MMC & FOR N EGOTIATED R ULEMAKING IN L IEU OF D EFENDANTS’ M OTION TO D ISMISS TO NEGOTIATE WITH THE DEFENDANTS , THE BATFE AND SELECT MEMBERS OF CONGRESS UNDER SPECIAL PROCEDURES OF RULE 16(C )(9) FED .R.CIV .P. (SEE 5 U.S.C. § 560 AND 33 C.F.R. § 1.05–60) TO ENACT FEDERAL PREEMPTION OF STATE GUN CONTROL LAWS AND THE REPEAL /REVISION OF SECLECTED FEDERAL GUN CONTROL LAWS AND REGULATIONS THAT PROHIBIT , INTERFERE WITH , OR OTHERWISE INFRINGE UPON THE RIGHT TO OPENLY KEEP AND BEAR ARMS IN INTERSTATE & INTRASTATE TRAVEL FOR THE PEOPLE & FOR THE PLAINTIFF ’S NATIONAL OPEN CARRY HANDGUN ENDORSEMENT ON HIS MERCHANT MARINER ’S DOCUMENT AS ONE CONDITION FOR SETTLEMENT

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Table of Contents 1. In the Interest of Justice I Request that the Defense Counsel Confer with Each of the Named Defendants for Their Input to Any Pleadings on Their Behalf, (i.e. Motion to Dismiss) in Clear Understanding of the Merits of My Case. . . . . . . . . . . . . 9 2. In the Interest of Justice I Proposes Partial Conditions for Settlement at this Early Stage under Rule 16(a)(5) and 16(c)(9) & (12) FED .R.CV .PRO . FOR A PRETRIAL CONFERENCE FOR THE PURPOSE OF “FACILITATING SETTLEMENT OF THE CASE ” THAT THE DEFENDA NTS SHALL WAIVE THEIR RIGHT TO FILE THEIR MOTION TO DISMISS IN FAVOR OF NEGOTIATED RULE MAKING A ND $3 MILLION SETTLEMENT WHEREUPON THE PLAINTIFF W ILL FORGO HIS RICO ACT CLAIMS FOR $9 MILLION IN TREBLE DAMAGES THEREBY SIGNIFICA NTLY SIMPLIFYING HIS CASE FOR SECOND AMENDMENT RIGHTS AT TRIA L . . . . . . . . . . . . . . . . . . . . . 9 42 U.S.C. § 2000h–2. Intervention by Attorney General; denial of equal protection on account of race, color, religion, sex or national origin . . . . . . . . . . . . . . . . . . . . . . . 9 3. The Plaintiff as a Private Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 III. Three Forms of the Private Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 4. Bowers v. Devito, 686 F.2d 616 (7th Cir. 1982) No Right to Police Protection . . . . . . . . . . . . . 12 There is a constitutional right not to be murdered by a state officer, for the state violates the Fourteenth Amendment when its officer, acting under color of state law, deprives a person of life without due process of law. Brazier v. Cherry, 293 F.2d 401, 404-05 (5th Cir. 1961). But there is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order. Discrimination in providing protection against private violence could of course violate the equal protection clause of the Fourteenth Amendment. But that is not alleged here. All that is alleged is a failure to protect Miss Bowers and others like her from a dangerous madman, and as the State of Illinois has no federal constitutional duty to provide such protection its failure to do so is not actionable under section 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 5. Stigmatic Harm as Plaintiff’s Additional Cause for Standing to Sue . . . . . . . . . . . . . . . . . . . . (1) has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical . . . . . . . . . . . . . . . . . . . . . (2) the injury is fairly traceable to the challenged action of the defendant . . . . . . . . . . . . . (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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6. Thomas Healy, Stigmatic Harm and Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. An Alternative View of Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. The Nature of Stigmatic Harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A. A Mark of Disgrace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . B. The Experience of the Stigmatized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . C. Stigmatic Harm as a Concrete Injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15 15 19 20 24 29

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7. The Hypocrisy of the Judicial and Executive Branches of the U.S. Government in Regard to the Separation of Powers Doctrine That Induces In the Federal Government a Schizoidic Pattern of Racketeering Activity Over the Second Amendment. In Other Words: The Government Goes Loony Over the Second Amendment . . . . . . . . 34 8. AMY CONEY BARRETT , STARE DECISIS AND DUE PROCESS , 74 UNIVERSITY OF COLORADO LAW REVIEW 1011, 1074-1075 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Does Distinguishing Dampen the Preclusive Effect of Stare Decisis? . . . . . . . . . . . . . . . 3. The Due Process Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

34 34 39 40

9. Assistant U.S. Attorney Dennis Barghaan’s Fraudulent Use of Inapplicable Case Law . . . . . 41 10. Excerpt from the Dred Scott Case in 1856 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 11. Excerpt from Lincoln’s Emancipation Proclamation of 1863 . . . . . . . . . . . . . . . . . . . . . . . . . 44 12. Exposing Assistant U.S. Attorney Dennis Barghaan’s Fraud, Misconduct & Hypocrisy On Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 13. Dissenting Opinions of Justices Brennan, Marshal, and Blackmun in DeShaney Vindicates My Case for Second Amendment Rights: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 14. Wilson v. State, 33 Ark. 557 (1878) (But to 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). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 15. Judge Sentelle’s Dissenting Opinion in Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1187 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 16. Is the U.S. Department of Justice Adhering to their Mission Statment’s “Fair and Impartial Administration of Justice for all Americans? I Think Not! . . . . . . . . . . . . . . . . 56 17. M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law, University of Virginia School of Law, Public Law and Legal Theory Research Papers Series, Working Paper No. 01-10. December 2001: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 Part II: Beyond Powers and Branches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 18. BOOK REVIEW: POPULA R ? CONSTITUTIONALISM ? THE PEOPLE THEM SELVES : POPULAR CONSTITUTIONA LISM AND JUDICIAL REVIEW . By Larry D. Kramer. New York: Oxford University Press. 2004. Pp. xii, 363. $29.95 (cloth). . . . . . . . . . . . . . . . . . . . . . . . 67 I. Introduction: Popular Constitutionalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 19. Matthew Adler, POPULAR CONSTITUTIONALISM AND THE RULE OF RECOGNITION : WHOSE PRACTICES GROUND U.S. LAW ? University of Pennsylvania Law School, Public Law and Legal Theory Research Paper Series, Research Paper No.54, September 2004 . . . . . 68

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20. The U.S. Coast Guard Committed Fraud Upon the U.S. Government Regarding the Merchant Mariner’s Document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 21. Citing Shelly Parker, et al v. District of Columbia, DC Circuit, No. 04-7041 (filed July 14, 2005, still pending) Appellant’s “SECOND MOTION TO ISSUE BRIEFING SCHEDULE AND SET ORAL ARGUMENT ON THE MERITS ,” pp. 6-7 . . . . . . . . . . . . . . . . . . . . . . . . 70 A. Administrative Exhaustion Is Not Required In Purely Constitutional Cases . . . . . . . . . . 70 B. Futile Acts Are Not Required To Sustain Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 22. Must I Be Arrested by the Feds in Order to Have My Case Taken Seriously? . . . . . . . . . . . . 71 23. Congress Owes the American People a “Clear Duty” toRepeal Federal Statutes that Excessively Burdens, Infringe, or Prohibits the Practical Exercise of Second Amendment Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 24. As to My RICO Act Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 46 CFR § 1.01–30 Judicial review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 46 CFR § 1.03–15 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 25. Damning Evidence of a Conspiracy to Obstruct Justice and Evidence of Racketeering an Unlawful and an Unconstitutional Protection Scheme Over the Second Amendment . . 74 26. The Origin of the Thirteenth and Fourteenth Amendments Are Based on the Infamous Slavery Case of Dred Scott V. Sandford, 60 u.s. (How.) 393, 416-417, (1856) . . . . . . . . . . 76 27. FEDERAL PREEMPTION of State Gun Control Laws is not entirely fanciful as Judge Huvelle Maliciously Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . USAM 4-3.100 Authority of the Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . USAM 4-3.140 Exceptions to the Redelegation of the Attorney General's Authority . . . . . . USAM 4-3.200 Bases for the Compromising or Closing of Claims Involving the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

80 82 82 83

29. Title 28 Code of Federal Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 28 C.F.R. § 0.160 Offers That May Be Accepted by Assistant Attorneys General. . . . . . . . . 84 28 C.F.R. § 0.161 Acceptance of certain offers by the Deputy Attorney General or Associate Attorney General, as appropriate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 30. Title 33 Code of Federal Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 33 C.F.R. § 1.05–60 Negotiated Rulemaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 31. Special Procedures under Rule 16(c)(9) Federal Rules of Civil Procedure . . . . . . . . . . . . . . 86 32. Negotiated Rulemaking With the U.S. Government Under the United States Code . . . . . . . 86 5 U.S.C. § 569. Encouraging Negotiated Rulemaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 5 U.S.C. § 566. Conduct of Committee Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 33. Federal Advisory Committee Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 5 U.S.C. Appendix - FEDERAL ADVISORY COMMITTEE ACT § 2. Findings and Purpose . . . . . . 88 34. U.S. CONSTITUTION , ARTICLE VI, CLAUSE 3: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

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35. The Heritage Foundation’s Backgrounder, No. 1379, dated June 22, 2000, PIRACY IN ASIA : A GROWING BARRIER TO MARITIME TRADE , by Dana R. Dillon (footnotes omitted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 36. International Maritime Organization, “PIRACY AND ARMED ROBBERY AGAINST SHIPS : GUIDANCE TO SHIPOW NERS AND SHIP OPERATORS , SHIPMASTERS AND CREWS ON PREVENTING AND SUPPRESSING ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS , Maritime Safety Committee’s Circular, MSC/Circ. 623/Rev.2, dated 20 June 2001 . . . . . 90 37. CORPUS JURIS SECUNDUM: VOLUME 87: TREATIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . II. Construction and Operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 C.J.S. § 6. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . III. Duration, Modification, Suspension, and Termination . . . . . . . . . . . . . . . . . 87 C.J.S. § 10. Generally — Effect of abrogation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 C.J.S. § 11. Modification or amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 C.J.S. § 12. Manner of termination — Termination by constitutional amendment or by Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 C.J.S. § 12. Manner of termination — Effect of War . . . . . . . . . . . . . . . . . . . . . . . . . . .

94 94 94 94 94 94

38. IV. Relation To, and Conflict With, Other Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 C.J.S. § 13. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 C.J.S. § 14. Acts of Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 C.J.S. § 15. State Constitutions and Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

95 95 95 95

39. The Second Amendment as a Civil Right in the United States . . . . . . . . . . . . . . . . . . . . . . . 16A C.J.S. § 444. Basic Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16A C.J.S. § 446. Bill of Rights in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16A C.J.S. § 511 Personal Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . a. In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reputation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16A C.J.S. § 478 The Right to Travel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16A C.J.S. § 480 Durational Residency Requirements to Right to Travel . . . . . . . . . . . . . . 16A C.J.S. § 482 Involuntary Servitude . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

95 95 95 96 96 96 97 97 97

40. International Treaties & Conventions Violating the U.S. Constitution & Bill of Rights . . . . . IMO/STCW 1995 Amended Standards of Training, Certification and Watchkeeping Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . International Convention for the Safety of Life at Sea (SOLAS), 1974 . . . . . . . . . . . . . . . . Paragraphs 44 and 45 of IMO/Maritime Safety Committee MSC/Circ. 623/Rev.3 dated 29 May 2002, PIRACY AND ARMED ROBBERY AGAINST SHIPS : GUIDANCE TO SHIPOW NERS AND SHIP OPERATORS , SHIPMASTERS AND CREWS ON PREVENTING ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS . . . . . . . . . . . . . . . . . . . . . . . . .

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98 98

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41. Repealing or Revising Federal Gun Control Laws & Regulations . . . . . . . . . . . . . . . . . . . . . 98 27 CFR § 178.38, Transportation of Firearms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 42. 18 U.S.C. § 921 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 18 U.S.C. § 921(a)(18) The term ''Secretary'' or ''Secretary of the Treasury'' means the Secretary of the Treasury or his delegate. . . . . . . . . . . . . . . . . . . . . . . . 98

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43. 18 U.S.C. § 922 Unlawful Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 18 U.S.C. § 922(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 18 U.S.C. § 922(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 18 U.S.C. § 922(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 18 U.S.C. § 922(a)(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 18 U.S.C. § 922(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 18 U.S.C. § 922(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 18 U.S.C. § 922(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 18 U.S.C. § 922(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 18 U.S.C. § 922(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 18 U.S.C. § 922(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 18 U.S.C. § 922(o)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 18 U.S.C. § 922(o)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 18 U.S.C. § 922(o)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 18 U.S.C. § 922(q)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 18 U.S.C. § 922(q)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 18 U.S.C. § 922(q)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 18 U.S.C. § 922(q)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 18 U.S.C. § 926A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 18 U.S.C. § 930 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 44. Federal Preemption of Selected State Gun Control Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Larry Pratt, DEATH BY A THOUSAND CUTS , April 2006, www.gunowners.org . . . . . . . . . . . . . . . . 104 CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

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1. IN THE INTEREST OF J USTICE I R EQUEST THAT THE D EFENSE C OUNSEL C ONFER WITH E ACH OF THE N AMED D EFENDANTS FOR T HEIR INPUT TO A NY P LEADINGS ON T HEIR B EHALF, (I.E. M OTION TO D ISMISS) IN C LEAR U NDERSTANDING OF THE M ERITS OF M Y C ASE. 2. IN THE INTEREST OF J USTICE I P ROPOSES P ARTIAL C ONDITIONS FOR S ETTLEMENT AT THIS E ARLY S TAGE UNDER R ULE 16(a)(5) and 16(c)(9) & (12) F ED.R.C V.P RO. FOR A P RETRIAL C ONFERENCE FOR THE P URPOSE OF “F ACILITATING S ETTLEMENT OF THE C ASE” THAT THE D EFENDANTS S HALL W AIVE T HEIR R IGHT TO F ILE T HEIR M OTION TO D ISMISS IN F AVOR OF N EGOTIATED R ULE M AKING AND $3 M ILLION S ETTLEMENT W HEREUPON THE P LAINTIFF WILL F ORGO H IS RICO A CT C LAIMS FOR $9 M ILLION IN T REBLE D AMAGES T HEREBY S IGNIFICANTLY S IMPLIFYING H IS C ASE FOR S ECOND A MENDMENT R IGHTS AT T RIAL See pages 80-88 for my proposed “special procedures” to settle this dispute..

TITLE 42 THE PUBLIC HEALTH AND WELFARE CHAPTER 21—CIVIL RIGHTS SUBCHAPTER IX—MISCELLANEOUS PROVISIONS 42 U.S.C. § 2000h–2. Intervention by Attorney General; denial of equal protection on account of race, color, religion, sex or 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.

I hereby move that this Motion and the Civil RICO Act Complaint serve as my timely application to the Attorney General requesting intervention (i.e., legal representation) in my RICO Act case by the U.S. Attorney General because I have been denied equal protection under the law on account of national origin (i.e. I am an Arkansas resident who unknowingly filed cases in the wrong U.S. District Court in the District of Columbia (See 28 U.S.C. § 1402(a)(1)) and the judges of that Court refused to transfer my case to the U.S. District Court for the Eastern District of Arkansas, Northern Division even though I fully apprised the judges of my Arkansas resident status and the laws cited herein. (See 28 U.S.C. § 1406(a) and § 1404(a)). My four years of litigation in the wrong U.S. District Court (See 28 U.S.C. § 1402(a)(1)):

9

Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if a court is without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in opposition to them. They constitute no justification and all persons concerned in executing such judgments or sentences are considered, in law, as trespassers.” Elliot v. Piersol, 1 Pet. 328, 340, 26 U.S. 328, 340 (1828). 28 U.S.C. § 1402(a)(1), United States as Defendant: Any civil action in a district court against the United States under subsection (a) of section 1346 of this title may be prosecuted only: (1) Except as provided in paragraph (2), in the judicial district where the plaintiff resides; Because I was not aware of the above law during these four years and because no judge or court clerk ever thought to compare my Arkansas address on every complaint, motion, and judicial notice of adjudicative facts with the above law on jurisdiction I wasted 4 years of federal litigation and many thousands of dollars from my wages as a seaman on court cases that are VOID FOR LACK OF JURISDICTION in the federal courts of Washington, DC. On August 1, 2006 I filed my Motion to transfer my RICO Act case from the U.S. District Court for the District of Columbia to the U.S. District Court for the Eastern District of Arkansas (Little Rock), Northern Division (Batesville), in accordance with the above law. On August 14, 2006 Judge Reggie B. Walton issued a Minute Order denied my motion without prejudice when in my view is a blatant violation of federal law on jurisdiction. This makes for classic misconduct of the most egregious kind — holding a case hostage in a Court that has no jurisdiction.

3. T HE P LAINTIFF AS A P RIVATE A TTORNEY G ENERAL Black's Law Dictionary defines the phrase "private attorney general" in these terms: The "private attorney general" concept holds that a successful private party plaintiff is entitled to recovery of his legal expenses, including attorneys fees, if he has advanced the policy inherent in public interest legislation on behalf of a significant class of persons.1, 2

1

BLACK'S LAW DICTIONARY 129 (6th ed. 1990) (subdefinition of "Attorney General") (quoting Dasher v. Hous. Auth. of Atlanta, 64 F.R.D. 722, 729 (N.D. Ga. 1974)). 2

Quoting William B. Rubenstein, ON WHAT A "PRIVATE ATTORNEY GENERAL" I S — AND WHY IT MATTERS, 57 Vand. L. Rev. 2129, 2149 (November 2004); Available Online at http://ssrn.com/abstract=743544 10

See 18 U.S.C. § 1964(c). See also, Rotella v. Wood, 528 U.S. 549, 557 (2000) (“Both statutes3 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.”4 Id. , 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.). For the purposes of this Civil RICO Act Complaint I construe the term “significant class of persons” to mean specifically law-abiding persons in the U.S. merchant marine and to mean generally law-abiding U.S. citizens under the Fourteenth Amendment having rights to travel the various states while exercising their Second Amendment right to openly keep and bear arms for personal safety and security (private interests) and for the security of a free State (a public interest and a governmental interest of the U.S. Government to which the U.S. Department of Justice ought to consider taking on a less adversarial position in defending against the merits of my case).

3

(1) The Clayton Antitrust Act of 1914, Act of Oct. 15, 1914, ch. 323, 38 Stat. 730, codified at 15 U.S.C. § 12 through 15 U.S.C. § 27 and 29 U.S.C. § 52 and 29 U.S.C. § 53, was enacted to remedy deficiencies in antitrust law created under the Sherman Antitrust Act of 1890 that allowed corporations to dissolve labor unions. The Clayton Act empowers private parties injured by violations of the Act to sue for treble damages under Section 4 and injunctive relief under Act Section 16. The Clayton Act is enforced by the Federal Trade Commission and the Antitrust Division of the U.S. Department of Justice. (2) The Organized Crime Control Act of 1970 (Pub.L. 91-452, 84 Stat. 922 October 15, 1970), Part of the Act created the Racketeer Influenced and Corrupt Organizations Act also known as the RICO Act, 4

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). 11

Citing from William B. Rubenstein, ON WHAT A "PRIVATE ATTORNEY GENERAL " IS — AND WHY IT MATTERS , 57 Vand. L. Rev. 2129, 2142 (November 2004):5 III. THREE FORM S OF THE PRIVATE ATTORNEY GENERAL The private attorney general concept is deployed in the legal literature in at least three distinct ways, each of which presents a different mix of the public and private features of lawyering: (1) some private attorneys general substitute for the public attorney general; (2) some private attorneys general supplement the public attorney general; and (3) some private attorneys general simulate an attorney general, acting as the advocate for a group, but solely for a group of private persons. As a civil plaintiff with a Civil RICO Act Complaint for Second Amendment rights I would be categorized as #(2) private attorney general supplemental to the “U.S. Attorney General” because I seek to enforce certain laws based on my own injury in fact by litigiously pursuing my own interests. Although my interests my be modest compared to the breadth of the statutory provision that I am derivatively attempting to enforce but for the corruption and obstructive acts of the federal judges presiding over my cases there exists the public interests and public policy.6 Therefore, in that respect I am pursuing both my own interests and a public interest for a change in public policy defining and expanding the Scope of the Second Amendment, which is a constitutional chore that the U.S. Government refuses to perform. I have cited many examples of misconduct by Assistant U.S. Attorney Dennis Barghaan, defense counsel for the U.S. Government in my previously aborted Civil RICO Act Complaint such as withholding vital evidence vindicating the merits of my case which is fully explained in the Complaint.

4. B OWERS V. D EVITO, 686 F.2 D 616 (7 TH C IR. 1982) N O R IGHT TO P OLICE P ROTECTION: There is a constitutional right not to be murdered by a state officer, for the state violates the Fourteenth Amendment when its officer, acting under color of state law, deprives a person of life without due process of law. Brazier v. Cherry, 293 F.2d 401, 404-05 (5th Cir. 1961). But there is no constitutional right to be protected by the state against being murdered by criminals or madmen. It is monstrous if the state fails to

5

Available Online at http://ssrn.com/abstract=743544

6

Adaptively paraphrasing William B. Rubenstein, ON WHAT A "PRIVATE ATTORNEY GENERAL" IS — AND WHY 57 Vand. L. Rev. at 2147 (November 2004).

IT MATTERS ,

12

protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties; it tells the state to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order. Discrimination in providing protection against private violence could of course violate the equal protection clause of the Fourteenth Amendment. But that is not alleged here. All that is alleged is a failure to protect Miss Bowers and others like her from a dangerous madman, and as the State of Illinois has no federal constitutional duty to provide such protection its failure to do so is not actionable under section 1983.

5. S TIGMATIC H ARM AS P LAINTIFF’S A DDITIONAL C AUSE FOR S TANDING TO S UE I construe and allege that all federal and state gun control laws in their aggregate effect are nothing more that a fraudulent attempt to appease the phobic of society by presenting a facade of a safe and gun-free society which, in fact and law is a government sanctioned dilution in blatant defiance of Bowers. The implication is that personal security and safety from violent criminal attacks resulting in bodily injury or death (murder) can only be prevented or mitigated in the instantaneous need for protection by the exercise of Second Amendment rights to openly keep and bear arms. Those who have pursued the Second Amendment rights to keep and bear arms, either concealed or openly have met with resistance, criticism, scorn and ridicule and prosecution by society and government in the same manner that African-Americans faced just because of their race. Prejudice and bigotry has shifted from race as a threat to society to firearms. In both cases denying a U.S. citizen the right to openly possess a firearm in public was and continues to be the badge of slavery. In this regard, denying me the right to possess a firearm in interstate travel is an Government sanction act of imposing slavery and involuntary servitude in violation of the Thirteenth and Fourteenth Amendments. This set of circumstances introductions Stigmatic Harm for gun owners as a cause for Standing to Sue to which the Assistant U.S. Attorney, Dennis Barghaan, exacerbates with his denial of or belligerently ignoring facts in my case. I now critique Mr. Barghaan’s Motion to Dismiss my Civil RICO Act Case from the U.S. District Court for the District of Columbia after winning my appeal at the DC Circuit on Second Amendment grounds. On Page 19 of Mr. Barghaan’s Motion to Dismiss cites boilerplate case law stating that three factors must be achieved before I have standing to sue: (1) has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the

13

injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. (1) has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; a. Coast Guard denied my Second Amendment rights on April 19, 2002. b. Coast Guard initiated a criminal investigation of me through the U.S. Naval Criminal Investigation Service because I exercised First Amendment rights pursuing Second Amendment rights while I was aboard a U.S. Government ship anchored off the coast of Lithuania where upon I was found to be innocent of Coast Guard allegations. c. The Department of Transportation, on September 17, 2004, issued a Bar Notice prohibiting me from visiting any DOT, FAA, and U.S. Coast Guard headquarters building in Washington, DC because I posted an article on the Internet criticizing the U.S. Coast Guard while I was a civil plaintiff with a case for mandamus relief and a tort claims case for damages in Washington, DC. d. The Department of Transportation, on August 11, 2006, issued their second Bar Notice because I was did not receive their 2004 Bar Notice and I attempted to visit the U.S. Coast Guard headquarters building in Washington DC as an unrepresented civil plaintiff with a Civil RICO Act case in accordance with the “Private Attorney General Doctrine.” e. Earlier in 2006 I was criminally interrogated by the U.S. Marshals Service because I exercised First Amendment rights pursuing Second Amendment rights as an unrepresented civil plaintiff with a Civil RICO Act case in accordance with the “Private Attorney General Doctrine.” f. All these criminal investigations of me for exercising constitutional rights invokes the Stigmatic Harm Doctrine for the purpose of Standing whereby I achieve standing for Government retaliation and harassment. (2) the injury is fairly traceable to the challenged action of the defendant Absolutely! (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Absolutely!

14

6. T HOMAS H EALY, S TIGMATIC H ARM AND S TANDING (Dec. 23, 2005) (discussing how law has at times reinforced stigmatization of certain groups)7 If the government violates the law in a way that stigmatizes a particular group, does a member of that group have standing to challenge the violation in federal court? In the well-known case of Allen v. Wright, the Supreme Court said no. According to the Court, stigmatic harm is too abstract and generalized to support standing in most cases. To permit standing on the basis of stigmatic harm alone, the Court stated, would “transform the federal courts into no more than a vehicle for the vindication of the value interests of concerned bystanders.” This Article revisits that decision. It begins by explaining that, in spite of Allen, the Court has never completely ruled out stigmatic harm as a basis for standing. In equal protection, electoral districting and establishment clause cases, the Court has sometimes invoked stigmatic harm as a basis for standing, while in its recent opinion in Lawrence v. Texas the Court relied on stigmatic harm to reach an issue that was not necessary to the resolution of the case. The Article then makes the normative claim that stigmatic harm should be a sufficient injury for purposes of standing. Drawing on social science research, it examines the nature of stigma, the role of law in creating and reinforcing stigma, and the harms experienced by the stigmatized. This research shows that stigmatic harm is every bit as concrete as other injuries recognized by the Court as sufficient for standing. Finally, after considering a number of possible objections, the Article describes various scenarios in which plaintiffs might rely on stigmatic harm as a basis for standing. - Excerpt II. AN ALTERN ATIVE VIEW

OF

STANDING

Before doing so, however, there is a preliminary issue I should discuss. Some scholars have argued that the injury-in-fact requirement at the heart of the Supreme Court’s standing doctrine is incoherent.190 According to these scholars, it makes no sense to

7

Available Online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=895194

190

See Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND ARTICLE III, 91 Mich. L. Rev. at 186-191 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 221-224 (1988). Other scholars have argued that the injury-in-fact requirement is not supported by the text of Article III or by historical practice. See Raoul Berger, STANDING TO SUE IN PUBLIC ACTIONS: IS IT A CONSTITUTIONAL REQUIREMENT?, 78 Yale L.J. 816, 837-40 (1969); Evan Caminker, THE CONSTITUTIONALITY OF QUI TAM ACTIONS, 99 Yale L.J. 341, 345; Louis L. Jaffe, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION, 462-67 (1965); Stephen L. Winter, THE METAPHOR OF STANDING AND THE PROBLEM OF SELF-GOVERNANCE, 40 Stan. L. Rev. at 1418-25 (1988); Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND ARTICLE III, 91 Mich. L. Rev. at 177 (1992). But the Court has not accepted these arguments, and some scholars have challenged them. See Ann Woolhandler and Caleb Nelson, Does History Defeat Standing Doctrine, 102 Mich. L. Rev. at 691 (2004) (arguing that history does support the injury-in-fact requirement); Bradley S. Clanton, STANDING AND THE ENGLISH PREROGATIVE WRITS: THE ORIGINAL UNDERSTANDING, 63 Brook. L. Rev. 1001 (1997) (same). Edward Hartnett has attacked the injury-in-fact requirement from a slightly different angle. He argues that the ability of the United States to bring criminal prosecutions to vindicate the public interest in compliance with the law demonstrates that Article III does not require an injury in fact. See Edward Hartnett, THE STANDING OF THE UNITED STATES: HOW CRIMINAL PROSECUTIONS SHOW THAT STANDING DOCTRINE IS LOOKING FOR ANSWERS IN ALL THE WRONG PLACES, 97 Mich. L. Rev. 2239, 2255-58 (1999). In a recent case, the Supreme Court appeared to respond to this argument, stating that the United States has standing to bring criminal prosecutions because 15

ask whether a plaintiff has been injured “in fact.” Every plaintiff alleges that some interest important to him has been infringed, they argue, even if that interest is simply a desire to ensure that the government acts lawfully.191 So a decision that a plaintiff has not been injured “in fact” is really a decision that the interest the plaintiff asserts is not one the courts are willing to recognize.192 Yet the only way for courts to determine what interests they are willing to recognize is by reference to legal norms.193 Therefore, it is wrong to claim that standing turns on a factual inquiry that is “independent of evaluation and of legal conventions.”194 As Cass Sunstein argues, “there can be no such law-free inquiry. It is a conceptual impossibility, indeed a form of metaphysics.”195 The conclusion that Sunstein and other prominent scholars draw from this analysis is that standing doctrine should not turn on whether the plaintiff has suffered an injury in fact.196 Instead standing should turn on whether the substantive law at issue gives the plaintiff a cause of action – in other words, whether the plaintiff has a meritorious claim.197 If this sounds familiar, it should. This is the view of standing that prevailed before the Court’s 1970 decision in [Association of Data Processing Service Organizations v. Camp, 397 U.S. 150 (1970)]. Indeed, Sunstein and others maintain that Data Processing was a mistake that has thrown standing doctrine seriously off course.198 The Court never should have abandoned the legal interest test, they argue, because asking whether the plaintiff has a legally enforceable right is the

violations of the law constitute an “injury to its sovereignty.” See Vermont Agency of Natural Resources v. Untied States ex rel. Stevens, 529 U.S. 765, 771 (2000). 191

See Gene R. Nichol, Jr., INJURY AND THE DISINTEGRATION OF ARTICLE III, 74 Cal. L. Rev. 1915, 1925 (1986); Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND ARTICLE III, 91 Mich. L. Rev. at 189 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 231 (1988). 192

See William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 231-32 (1988).

193

See Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND ARTICLE III, 91 Mich. L. Rev. at 192 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 231 (1988). 194

Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND ARTICLE III, 91 Mich. L. Rev. at 236 (1992). 195

Id; see also Gene R. Nichol, THE IMPOSSIBILITY OF LUJAN’S PROJECT, 11 Duke Envtl. L & Pol’y F. 193, 202 (2001) (stating that “injury is not a self-defining, factual construct,” but is instead “a malleable, value-laden concept”). 196

See Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND ARTICLE III, 91 Mich. L. Rev. at 235 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 223 (1988). 197

See Cass R. Sunstein, W HAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND ARTICLE III, 91 Mich. L. Rev. at 166-67 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 223-24 (1988). 198

See Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND ARTICLE III, 91 Mich. L. Rev. at 185-86 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 229-30 (1988). 16

only coherent way to determine whether the plaintiff’s claim can be heard in federal court.199 If Sunstein is correct, one might think that asking whether stigmatic harm is sufficient for standing is a misguided exercise. Under Sunstein’s view, we cannot determine whether a particular injury is sufficient for standing in the abstract. We can only determine whether the substantive law in a particular case confers a legally enforceable right on the plaintiff.200 Put another way, questions about standing cannot be answered at the wholesale level; they can be answered only at the retail level.201 It would therefore seem pointless to argue that stigmatic harm – or any other kind of injury – is sufficient for standing in general. One must ask instead whether the substantive law in a given case confers a right on the plaintiff not to be stigmatized. Sunstein’s theory of standing deserves serious consideration. But dealing properly with all questions it raises would require an extended analysis that does not seem appropriate here.202 Instead, I will simply offer two reasons why Sunstein’s critique of standing does not undermine the premise of this article. First, whatever the merits of Sunstein’s view, the Supreme Court has not adopted it. The Court sometimes looks to substantive law to inform its understanding of an alleged injury.203 And it occasionally uses language reminiscent of the legal interest test.204 But the Court still repeats the injury-in-fact requirement like a mantra at the beginning of every standing discussion205 and has relied on it to deny standing even

199

See Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN ? OF CITIZEN SUITS, “INJURIES,” AND ARTICLE III, 91 Mich. L. Rev. at 188-89 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 229-31 (1988). 200

See Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS , “INJURIES,” AND ARTICLE III, 91 Mich. L. Rev. at 189-91 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 231 (1988). 201

See Adam B. Cox, CITIZENSHIP, STANDING, AND IMMIGRATION LAW, 92 Cal. L. Rev. 373, 395 (2004) (arguing that the legal conventions that inform determinations of injury “are not trans-substantive; they depend on the specific legal claims at stake”); Harold J. Krent, LAIDLAW: REDRESSING THE LAW OF REDRESSABILITY, 12 Duke Envtl. L. & Pol'y F. 85, 109 (2001). 202

For now, I will limit myself to the following observation. If standing is folded into the merits of the case, it will cease to operate as a limit on what cases federal courts can hear. By the time a court decides whether the plaintiff has standing, it will have already heard the very case that standing doctrine is designed to determine whether it can hear. This might be an acceptable result if one thinks Article III’s case or controversy language does not limit what cases courts can hear. But Sunstein does not make this argument. He argues that the case or controversy limits courts to hearing cases in which the plaintiff has a cause of action without explaining how this is any limit at all. 203

The electoral districting and establishment clause cases are good examples. See supra Part IC.

204

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (describing “injury in fact” as “an invasion of a legally protected interest”); Warth v. Seldin, 422 U.S. 490 (1975) (stating that “the actual or threatened injury required by Article III may exist solely by virtue of ‘statutes creating legal rights – the invasion of which creates standing’”). 205

See e.g., Kowalski v. Tesmer, 125 S. Ct. 564, 567 (2004); Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 16-17 (2004); Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000). 17

where the substantive law clearly provided the plaintiff with a cause of action.206 Moreover, the Court has given no indication that it plans to abandon the injury-in-fact requirement anytime soon.207 This does not mean one must embrace the Court’s standing framework. Critiques are certainly worthwhile. But until those critiques are accepted, it also seems worthwhile to argue for change within the existing framework. Second, even under Sunstein’s approach, there would still be good reason to examine the nature of stigmatic harm. As Sunstein acknowledges, many statutes impose legal obligations on government agencies without clearly indicating who has a right to enforce those obligations.208 The same is true of most constitutional provisions.209 The 14th amendment does not specify who can enforce the equal protection clause, nor does the Accounts Clause210 identify who is entitled to enforce its provisions. Thus, when determining whether a plaintiff had standing to enforce a particular legal obligation, courts would have to consider the purpose behind that obligation and whether it was intended to protect the interest asserted by the plaintiff.211 This task would involve a fair amount of subjectivity, and courts inevitably would rely on judgments about what interests are worth protecting. For instance, courts would likely be sympathetic to claims that a statute was designed to protect economic interests because courts are familiar with such interests and are accustomed to vindicating them.212 But courts would be skeptical of claims that a statute was designed to protect an interest in, say, sexual fulfillment because that is not an interest courts have traditionally been concerned with.213 As Joseph Vining explained in his influential book Legal Identity, courts will not exercise their power unless they

206

See Raines v. Byrd, 521 U.S. 811, 815, 818, 820 n.3 (1997) (holding that members of Congress lacked standing to challenge Line Item Veto Act even though the act expressly gave them authority to sue); Lujan, 504 U.S. at 571-78 (holding that plaintiffs failed the injury-in-fact requirement and therefore lacked standing to challenge an administrative interpretation of the Endangered Species Act even though the act explicitly authorized “any person” to commence a civil suit to enjoin violation of the act). The Court limited the impact of Lujan in Federal Election Comm. v. Akins, 524 U.S. 11, 21 (1998), but it did not question the injury-in-fact requirement. 207

See Fallon et al., Hart & Wechsler’s THE FEDERAL COURTS AND THE FEDERAL SYSTEM at 132 (5th ed. 2003) (stating that “recent cases have not questioned the principle that Article III requires the plaintiff to show injury from the conduct under challenge”). [hereinafter Hart & Wechsler]. 208

See Cass R. Sunstein, STANDING INJURIES, 1993 Sup. Ct. Rev. 37, 53 (1993); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 265 (1988). 209

See William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 265 (1988).

210

See U.S. Const. art. I, § 9, cl. 7 (providing that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time”). 211

See William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 260-65, 271-72 (1988).

212

See Sunstein.

213

See Roe v. Wade, 410 U.S. 113, 128 (1973) (denying standing for married couple who challenged abortion ban on ground that it harmed their “marital happiness”); see also Nichol, supra note 195, at 202 (noting that the Court would be unlikely to recognize a plaintiff’s interest in maintaining segregation or remaining in the country undetected as an illegal alien). 18

“see” harm.214 And they will not “see” harm unless the interest asserted by the plaintiff has been recognized as a public value.215 What this means is that even if standing turns on a retail determination there is still value in discussing stigmatic harm at the wholesale level. Shedding light on the devastating consequences of social stigma can help foster a public commitment to eliminate stigma. And once elimination of stigma becomes a public value, courts will be more willing to see protection of that value as an implicit purpose of various legal provisions. As precedent, consider the history of environmentalism. A century ago, no court would have taken seriously the argument that a plaintiff had standing to challenge government actions that harmed the environment.216 As a result of the environmental movement, however, courts came to see protection of the natural world as a public value that warranted their intrusion into the democratic process.217 The courts’ appreciation of stigmatic harm could evolve in a similar way. In fact, one might argue that it already has. In Allen, the Court was quick to reject stigmatic harm as a basis for standing. But in the years since Allen, the Court has appeared increasingly sensitive to stigmatic harm, citing it as a reason for striking down laws based on racial and gender stereotypes.218 Perhaps we should not be surprised, therefore, that Lawrence relied on stigmatic harm to justify a broad exercise of judicial power. A court that can “see” stigmatic harm is more likely to do something about it. III. THE NATURE OF STIGM ATIC HARM But stigmatic harm is still only partly visible. In spite of the Court’s growing sensitivity to stigmatic harm, it has never fully examined the nature of stigma or what it means to be stigmatized.219 This is a serious oversight. The word stigma is sometimes used casually to refer to any type of negative association.220 But social scientists have long had a more sophisticated understanding of stigma. In this Part, I draw on that understanding to explore the nature of stigma and the experience of those who possess a stigmatizing trait. I also explain that stigma is a social construct and that the law, by shaping social norms, contributes to the cultural beliefs that generate stigma. Finally, I argue that, contrary to the Court’s conclusion in Allen, those who are stigmatized by government action are not simply concerned bystanders attempting to vindicate value interests. Instead, they are victims who suffer injuries

214

See Joseph Vining, LEGAL IDENTITY: THE COMING OF AGE OF PUBLIC LAW at 61 (Yale Univ. Press 1978);

215

See Vining at 61 (“What prevents the court from seeing harm is the absence, to the court’s eyes, of a ‘you’ to be harmed; and what prevents the court from seeing a ‘you,’ a person, is the absence of any public values to define a class for which the individual voice might speak.”); see also Nichol, supra note 41, at 326 (stating that “judges are far more likely to embrace jurisdiction if the plaintiff seems to be saying something that the judge understands, somehow, as his own”). 216

See Nichol, supra note 191, at 1933.

217

See id. at 1933-34.

218

See Shaw v. Reno, (509 U.S. 630 (1993); Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982).

219

See R.A. Lenhardt, UNDERSTANDING THE MARK: RACE, STIGMA AND EQUALITY IN CONTEXT, 79 N.Y.U. L. Rev. 803, 812, 815-16 (2004). 220

See e.g., Viv Bernstein, VICTORY AT DAYTONA HAS STIGMA ATTACHED, N.Y. Times, Feb. 20, 2006 at

D1. 19

every bit as concrete as the economic, aesthetic, and environmental injuries that the Court has already recognized as sufficient for standing. For that reason, I conclude, stigmatic harm should qualify as an injury in fact for purposes of Article III standing. A. A Mark of Disgrace In ancient Greece, a stigma was “a sign or mark, cut or burned into the body, that designated the bearer as a person who was morally defective and to be avoided – a slave, a criminal, or a traitor, for example.”221 The term continued to carry this physical connotation through the seventeenth century, when the branding of criminals was common.222 Today, the word stigma still refers to a mark of disgrace, but not one physically cut or burned onto a person.223 Instead, stigma is a mark of disgrace that attaches to a characteristic or trait society views as deeply discrediting.224 This mark spoils the social identify of its bearer and reduces him “in our minds from a whole and usual person to a tainted, discounted one.”225 A stigmatized person is thus “disfavored or dishonored” in the eyes of others, “a kind of social outcast.”226 Indeed, “by definition, we believe the person with a stigma is not quite human.”227 In his seminal work on the subject, Erving Goffman identified three types of stigmatizing traits.228 First, there are “abominations of the body.” These are physical defects, such as blindness, deafness, paraplegia, and obesity. Second are “blemishes of individual character.” These are traits that are viewed as reflecting a flawed character, such as drug addiction, mental retardation, mental illness, homelessness, and homosexuality. Finally, there are “tribal stigmas” – characteristics transmitted through lineage that contaminate all members of a family. Examples of tribal stigmas include membership in devalued racial, ethnic or religious groups.

221

See Jennifer Crocker et al., Social Stigma, in THE HANDBOOK OF SOCIAL PSYCHOLOGY 504 (4th ed. 1998).

222

See Oxford English Dictionary at 691 (noting that use of the term “stigmatize,” which means to mark with a ‘stigma’ or brand, was “very frequent in the 17th c, with reference to the then common punishment of branding”). 223

See Erving Goffman, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY, at 1-2 (1986).

224

See id. at 2-3.

225

Erving Goffman, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY, at 3, 19 (1986).

226

Lenhardt, supra note 219, at 809; Regina Austin, ‘THE SHAME OF IT ALL’: STIGMA AND THE POLITICAL DISENFRANCHISEMENT OF FORMERLY CONVICTED AND INCARCERATED PERSONS, 36 Colum. Hum. Rts. L. Rev. 173, 174 (2004) (“The stigmatized are outcasts who are to be avoided and isolated. They are dehumanized and considered defective or unwholesome.”). 227

Erving Goffman, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY, at 5 (1986); see also Crocker, supra note 221, at 504 (stating that “the person who is stigmatized is a person whose social identity, or membership in some social category, calls into question his or her full humanity”); Stephen C. Ainley and Faye Crosby, STIGMA JUSTICE, AND THE DILEMMA OF DIFFERENCE, IN THE DILEMMA OF DIFFERENCE: A MULTIDISCIPLINARY VIEW OF STIGMA 17 (1986) (“Stigma involves situations where one individual or group treats another individual or group as less than fully human.”); John F. Dovido et al., STIGMA: INTRODUCTION AND OVERVIEW, IN THE SOCIAL PSYCHOLOGY OF STIGMA 1 (2000) (“Stigmatization, at its essence, is a challenge to one’s humanity.”). 228

See Erving Goffman, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY, at 4 (1986). 20

Social scientists have also categorized stigmatizing traits in other ways. For instance, some stigmatizing traits, such as physical defects, are immediately visible, while others, such as mental illness, are only apparent upon closer examination.229 Stigmatizing traits also differ in the degree to which they are controllable.230 Those who are mentally retarded or paralyzed can do little to change their situation, but those who are obese, addicted to drugs, or homeless have at least some ability to improve their circumstances. Related, but not identical, to controllability is the extent to which the stigmatized person is responsible for the stigmatizing trait.231 A person who is paraplegic has little ability to regain the use of his legs, but if he was injured as a result of driving drunk, he might be viewed as responsible for his paralysis. By contrast, a person who is obese has some ability to lose weight, but his tendency toward obesity may be due to a genetic condition. Although we can categorize stigmatizing traits, however, it is impossible to compile a list of all traits and characteristics that are stigmatizing. That is because whether a particular trait is stigmatizing depends upon the meaning that trait has in a particular social context.232 Blacks may be stigmatized in the United States, but there is nothing stigmatizing about being black in certain parts of the world. Homosexuality and obesity also vary in the extent to which they are stigmatizing.233 In some cultures, during some periods of history, being overweight was desirable,234 while sex between men was considered a normal part of male development.235 But in the modern United States, both obesity and homosexuality are generally considered to be stigmatizing.236 What this illustrates is that stigma is a social construct.237 There is nothing inherently stigmatizing about any particular trait or attribute.238 Instead, attributes become

229

See Crocker, supra note 221, at 507.

230

See id.

231

See id.

232

See Stephen C. Ainley et. Al., Stigma Reconsidered, in THE DILEMMA OF DIFFERENCE: A MULTIDISCIPLINARY VIEW OF STIGMA 3-4 (1986) (noting that “what is stigmatized is bound by culture and epoch”). 233

See Charles Stangor and Christian Crandall, Threat and the Social Construction of Stigma, in THE SOCIAL PSYCHOLOGY OF STIGMA, 65 (2000). 234

See Marc. C. Stafford and Richard R. Scott, Stigma, Deviance and Social Control: Some Conceptual Issues, in THE DILEMMA OF DIFFERENCE: A MULTIDISCIPLINARY APPROACH TO STIGMA, 80 (1986) (noting that “’fattening houses’ were used formerly in certain parts of Africa to produce beautiful women”). 235

See Stangor and Crandall, supra note 233, at 66.

236

See Stafford and Scott, supra note 234, at 77, 80; Stangor and Crandall, supra note 233, at 65-66.

237

See Ainley, supra note 232, at 4; Stafford, supra note 234, at 80 (explaining that stigma “is a relative phenomenon, meaning that what is a stigma in one social unit (family, company, nation) may not be so in others”); see also Gaylene Becker and Regina Arnold, Stigma as a Social and Cultural Construct in The Dilemma of Difference: A Multidisciplinary View of Stigma, 55 (1986) (“Stigma is a concept imbued with cultural meaning. It is not a property of the individual. . . .”). 238

See Ainley, supra note 232, at 4. 21

stigmatizing as a result of cultural beliefs that develop through a process of social learning.239 This process generates a collective understanding about what traits are desirable and what traits are discrediting. As a result, “broad views about what constitutes stigma are generally shared by members of a society.”240 Because stigma is a result of social understandings and cultural beliefs, it is difficult to pinpoint exactly how particular traits come to be stigmatized. Many of our cultural beliefs are passed down through a process of socialization that is so pervasive as to be almost invisible.241 But it is possible to identity some of the forces that contribute to stigma. For instance, sociologists have observed that “beliefs about minorities and other markable groups are transmitted by parents, the media, and other socialization agents,” such as churches and schools.242 Law also plays a role in the social construction of stigma. As legal scholars have increasingly come to appreciate, law not only reflects social norms, but also “helps shape social power and norms by prefiguring preferences, prejudices and interests.”243 So it is with stigma.244 When a social understanding develops that possession of a particular trait is deeply discrediting, law often crystallizes and reinforces that understanding. Consider the history of Jim Crow. After the Civil War, former slaves attempted to take their place in society as equal citizens. But Jim Crow laws reinforced the existing prejudice and placed a stamp of inferiority on blacks, as Justice Harlan recognized in his dissent in Plessy v. Ferguson245 and as the full court recognized in Strauder v. West Virginia.246 It was not until the Court overturned Plessy in Brown v. Board of Education that this legal stamp of inferiority was removed. And

239

See Larry G. Martin, Stigma: A Social Learning Perspective, in THE DILEMMA OF DIFFERENCE: A MULTIDISCIPLINARY VIEW OF STIGMA 147-149 (1986) (“Social learning is a powerful mechanism for both the acquisition and maintenance of behaviors that stigmatize others.”). 240

Becker and Arnold, supra note 237, at 40; see also Crocker, supra note 221, at 511.

241

See Lerita M. Coleman, Stigma: An Enigma Demystified in THE DILEMMA OF DIFFERENCE: A MULTIDISCIPLINARY VIEW OF STIGMA, 218 (1986) (stating that “the predisposition to stigmatize is passed from one generation to the next through social learning or socialization”). 242

See Edward E. Jones et al., SOCIAL STIGMA : THE PSYCHOLOGY OF MARKED RELATIONSHIPS 160-61 (explaining that according to the sociocultural view of stigma, “beliefs about minorities and other markable groups are transmitted by parents, the media, and other socialization agents”). 243

See William N. Eskridge Jr., NO PROMO HOMO: THE SEDIMENTATION OF ANTIGAY DISCOURSE AND THE CHANNELING EFFECT OF JUDICIAL REVIEW, 75 N.Y.U. L. Rev. 1327, 1327-31, 1333 (2000); Scott Burris, DISEASE STIGMA IN U.S. PUBLIC HEALTH LAW, 30 J.L. Med. & Ethics 179, 183 (2002) (explaining how law influences social perceptions and norms). 244

See Lee Jussim et al., Stigma and Self-Fulfilling Prophecies, in THE SOCIAL PSYCHOLOGY OF STIGMA 404 (2000) (noting that “major institutions (government, business, churches, etc) often do indeed have the power to ‘institutionalize’ stigmas”). 245

163 U.S. 537, 562 (1896) (Harlan, J., dissenting) (arguing that a law requiring whites and blacks to ride in separate railroad cars places a “badge of servitude” upon blacks”). 246

100 U.S. 303 (1880) (stating that the inability of blacks to serve on a jury “is practically a brand on them, affixed by the law, an assertion of their inferiority, and an impediment to securing equal protection to individuals of the race”). 22

even then, anti-miscegenation laws and the refusal of officials to enforce anti-discrimination laws continued to brand African Americans as inferior.247 Law contributes to stigma in several ways. First, it signals what behavior is appropriate toward certain groups. Thus, when law treats members of a group as second-class citizens, it invites others to discriminate against that group as well. The Court has recognized as much in several cases. In Strauder, for instance, the Court noted that excluding blacks from juries was a “stimulant” to racial prejudice.248 And in Lawrence, the Court explained that the Texas sodomy law “was an invitation to discrimination against homosexuals in both the public and private spheres.”249 Second, when law requires or permits segregation of stigmatized groups, it makes it more difficult for those groups to overcome the stereotypes that help to generate their stigma. As William Eskridge has pointed out, “stereotypes weaken as people observe non-stereotypical behavior in minorities they come to know, and prejudices weaken as people cooperate with minorities in win-win situations.”250 But if law supports the segregation of the stigmatized, they will be unable to eliminate those stereotypes. “By separating blacks from whites and by forcing gay people into the closets, the law makes it impossible for either minority to refute stereotypes associated with it or to soften prejudices harbored against its members.”251 But law does not simply reinforce social meanings that already exist. It also constructs categories that can then be used as a basis for stigmatization. During most of American history, for instance, homosexuality did not exist as a separate, semantic category. Although it was illegal to engage in sodomy, there was no category of persons known as homosexuals. That term was first used by doctors in the early 20th century, but only became culturally relevant as a result of emerging legal prohibitions. Thus, Eskridge explains, “law’s stigma helped create homosexuality as a totalizing and naturalized identity trait.”252

247

See Lenhardt, supra note 219, at 857; Lawrence Lessig, THE REGULATION OF SOCIAL MEANING, 62 U. Chi. L. Rev. 943, 991 (1995) (“Antimiscegenation laws, then, can be seen as a tool for preserving a certain social meaning associated with being white. They preserve this meaning by protecting and perpetuating the perceived ‘purity’ of the white race. And by maintaining that purity, the laws helped whites preserve a social meaning difference from blacks.”). 248

See 100 U.S. 308.

249

539 U.S. 558, 575 (2003). Indeed, according to Justice O’Connor’s concurrence, Texas stipulated in an earlier challenge that its sodomy law “‘legally sanctions discrimination against [homosexuals] in a variety of ways unrelated to the criminal law,’ including in the areas of employment, family issues, and housing”). See id. at 582. 250

See Eskridge, supra note 243, at 1410.

251

See Eskridge, supra note 243, at 1333.

252

See Eskridge, supra note 243, at 1334. 23

Of course, law can also be used to combat stigma.253 For instance, the Americans with Disabilities Act has helped to reduce the stigma of having a physical disability,254 as have “mainstreaming laws” that require schools to teach disabled students alongside students who are not disabled.255 Laws prohibiting discrimination on the basis of sexual orientation have also contributed to the improved social standing of gays and lesbians.256 But these examples do not undermine the claim that law shapes and reinforces social norms. Instead, they support that claim by demonstrating that when law removes its stamp of inferiority from stigmatized groups other actors in society are likely to follow. Public officials recognize this, which is why they often fight to maintain laws that stigmatize minority groups. When the District of Columbia proposed to repeal its sodomy laws, which had largely gone unenforced, members of Congress objected that the move would “decriminalize and thus legitimize sodomy.”257 Likewise, conservatives in Massachusetts opposed that state’s gay civil rights bill on the ground that it would be viewed as a step toward legal approval of the homosexual lifestyle.258 If law did not play an important role in shaping social norms and beliefs, such arguments would not be heard. B. The Experience of the Stigmatized The discussion so far has focused on the nature of stigma and the process through which it develops. But what about those who are stigmatized? What is life like for them and how do they experience being stigmatized? The answer to this question depends somewhat on the type of stigmatizing trait one possesses. Those who are thought to be responsible for their situation are often more reviled than those who are thought to be blameless. And those whose stigmatizing trait is visible may encounter more overt hostility than those whose trait is concealable.259 But in general, social scientists have identified several harms associated with being 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.260 In applying for jobs, looking for housing, dating, and a host of other social activities, the stigmatized person is conscious that he could be rejected or

253

See Martin, supra note 239, at 146.

254

See Michelle R. Hebl et al, Awkward Moments in Interactions Between Nonstigmatized and Stigmatized Individuals, in THE SOCIAL PSYCHOLOGY OF STIGMA 298 (2000). 255

See Frederick X. Gibbons, Stigma and Interpersonal Relationships, in THE DILEMMA OF DIFFERENCE: A MULTIDISCIPLINARY VIEW OF STIGMA 128 (1986). 256

See Hebl, supra note 254, at 298; Eskridge, supra note 243, at 1338.

257

See Eskridge, supra note 243, at 1344.

258

See Eskridge, supra note 243, at 1350.

259

See Erving Goffman, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY, at 48 (1986);

260

See Crocker, supra note 221, at 516. 24

looked down upon because of his stigma.261 This threat of discrimination is harmful in itself, producing anxiety and a feeling that one must “be constantly on guard.”262 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.”263 This discrimination makes it harder for the stigmatized to obtain employment, housing, education, and to develop lasting relationships with others.264 In the words of Goffman, “we exercise varieties of discrimination [against the stigmatized], through which we effectively, if often unthinkingly, reduce his life chances.”265 Being stigmatized also poses threats to one’s self-esteem.266 Research has shown that most stigmatized individuals are aware that society views them as devalued and tainted.267 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.268 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.269 As the social psychologist Gordon Allport once asked rhetorically, “what would happen to

261

See id. at 516-17 (noting that “the stigmatized are never entirely free of the possibility of encountering prejudice in others”). 262

See id. at 517; see also Carol T. Miller and Brenda Major, Coping With Stigma and Prejudice, in The Social Psychology of Stigma 244-45 (2000); Hebl, supra note 254, at 288-89 (2000). 263

See Miller and Major, supra note 262, at 244.

264

See Crocker, supra note 221, at 516 (prejudice and discrimination against the stigmatized “create barriers to obtaining resources such as employment, housing, and so on, and failure to obtain these resources may threaten or compromise the physical well-being and comfort of stigmatized individuals”); Dovido, supra note 227, at 5 (“even when stigma and social rejection do not jeopardize physical well-being directly, they can do so indirectly – for example, through limiting access to health care, education, employment, and housing, as well as through increasing stress and creating anxiety”); Hebl, supra note 254, at 388 (2000) (describing research showing that those who are obese “are less likely to attend elite colleges, less likely to get hired, and more likely to have a hard time finding dates” than those who are not obese); Miller and Major, supra note 262, at 246 (noting that “African Americans have more physical health problems than European Americans, including shorter life expectancies, higher heart disease, and higher infant mortality”). 265

See Erving Goffman, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY, at 5 (1986);

266

See Crocker, supra note 221, at 517.

267

Crocker, supra note 221, at 517; See Dovido, supra note 227, at 16; Gibbons, supra note 255, at 13233 (studies show that the mentally retarded and the blind are both aware of the negative attitudes others have of them). 268

See Jennifer Crocker and Diane M. Quinn, Social Stigma and the Self: Meanings, Situations, and Selfesteem in THE SOCIAL PSYCHOLOGY OF STIGMA 155 (2000); Delia Cioffi, The Looking-Glass Self Revisited: Behavior Choice and Self-Perception in the Social Token, in the SOCIAL PSYCHOLOGY OF STIGMA 185 (2000). 269

See Crocker, supra note 221, at 518. 25

your personality if you heard it said over and over again that you were lazy . . . and had inferior blood?”270 Early research supported the claim that being stigmatized lowers self-esteem. In Kenneth Clark’s famous study, black children given a choice between playing with black dolls and white dolls overwhelmingly chose the white dolls.271 But recently, researchers have suggested that the relationship between stigma and self-esteem is more complicated. Citing survey results showing little difference in self-esteem between stigmatized and non-stigmatized groups (such as between blacks and whites, those who are obese and those who are not), some social scientists argue that being stigmatized does not inevitably lead to lower self-esteem.272 Instead, they maintain that the effect of stigma on self-esteem varies depending upon the situation and the values that are salient to that situation.273 In one study, for instance, researchers tested the self-esteem of overweight and normal weight women after giving them a political speech to read.274 Some of the women read a speech emphasizing the values of inclusion and equality, while others read a speech emphasizing the values of individualism and the Protestant work ethic. In the group that read the speech emphasizing inclusion and equality, there was no difference in self-esteem between overweight and normal weight women.275 But in the group that read the speech emphasizing individualism and the Protestant work ethic, overweight women had lower self-esteem than normal weight women.276 A similar dynamic was observed in a study in which overweight and normal weight women were told they had been rejected for a date by a male evaluator after he had read profiles that included their weight.277 Some of the women had recently read an article indicating that weight is controllable, while others had read an article indicating the opposite. Researchers then administered a test of psychological well being and found that the self-esteem of overweight women who had read that weight is controllable was lower than the self-esteem of overweight women who had read that weight is uncontrollable.278 Whether the women felt bad about their rejection, the researchers concluded, turned in part on the understandings and beliefs about weight that they brought to the situation.279

270

See Gordon W. Allport, THE NATURE OF PREJUDICE at 142 (1954).

271

See Crocker and Quinn, supra note 268, at 155.

272

See id. at 157; Crocker, supra note 221, at 531.

273

See id. at 157-58, 175.

274

See id. at 169.

275

See id. at 170-71.

276

See id. at 171.

277

See id. at 174.

278

See id.

279

See id. at 175. 26

Sociologists have also discovered that members of stigmatized groups often find ways to protect their self-esteem. In one study, white evaluators interviewed black students sitting on the other side of a glass partition.280 Some of the interviews were conducted with the blinds drawn, while others were conducted with the blinds open. Researchers found that when the black students received negative evaluations from white evaluators who did not know their race, their self-esteem suffered.281 But when they received negative evaluations from evaluators who were aware of their race, their self-esteem stayed the same.282 The researchers concluded that in the latter situation the students attributed the negative evaluations to prejudice on the part of the white evaluators.283 In this way, they were able to protect their self-esteem from erosion. The lesson of these studies, some sociologists argue, is that self-esteem is not a fixed, stable trait. Instead, “self-esteem is constructed at the moment, in the situation, as a function of the meanings that individuals bring with them to the situation, and features of the situation that make those meanings relevant or irrelevant.”284 For this reason, it may be incorrect to assume that being stigmatized necessarily leads to lower self-esteem.285 But even if this is true, members of stigmatized groups certainly face greater threats to their self-esteem as a result of being stigmatized than they would otherwise. When white students were interviewed in the study above, for instance, their self-esteem did not vary depending upon whether the blinds were up or down.286 Knowing that others were aware of their race did not affect how they felt about themselves. For the black students, however, that knowledge played a key role in shaping their self-esteem. Thus, although being stigmatized may not lower one’s self-esteem at all times and in all places, those who are stigmatized must deal with threats to their self-esteem not faced by the non-stigmatized.287 Finally, the stigmatized are usually the targets of negative stereotypes, which can lead to self-fulfilling prophecies.288 One example is what social scientists have labeled

280

See id. at 164.

281

See id.

282

See id.

283

See id. at 164-65.

284

See id. at 153.

285

See Crocker, supra note 221, at 518.

286

See Crocker and Quinn, supra note 268, at 164.

287

See Miller and Major, supra note 262, at 244.

288

See Jussim, supra note 244, at 375-78, 391-92. Although stereotype and stigma are similar, they are not identical. For one thing, not all stereotypes are stigmatizing. We may stereotype librarians as quiet and bookish, but we do not generally stigmatize them. See id. at 376. In addition, although most stigmatized groups are the targets of negative stereotypes, not all stigmas are associated with a stereotype. For instance, we may stigmatize those with physical disabilities, but we do not usually stereotype them. See Monica Biernat and John F. Dovido, Stigma and Stereotypes, in THE SOCIAL PSYCHOLOGY OF STIGMA 90 (2000). 27

“stereotype threat.”289 In lay terms, stereotype threat exists when the fear of conforming to stereotype creates self-doubt that interferes with one’s performance. The best-known study of this phenomenon involved a test given to two groups that included both white and black students. 2 90 The first group was told the test was designed to measure intellectual ability, while the second group was told it was a non-diagnostic exercise. Researchers hypothesized that the performance of the black students would be affected by stereotypes about their intellectual capacities. The results proved them right. Black students who thought the test measured intellectual ability (those in group 1) did worse than black students who thought it was a mere exercise (those in group 2).291 By contrast, there was no difference between the scores of white students in the first and second groups. The conclusion: black students had internalized the negative stereotypes about their intellectual ability, and those stereotypes fueled self-doubt that undermined their performance.292 Subsequent studies have shown that other groups are also vulnerable to stereotype threat.293 Stereotype threat involves the internalization of negative stereotypes by the stigmatized. But self-fulfilling 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.294 To test this phenomenon, researchers conducted a two-part experiment. In the first part, they watched a series of interviews and observed that white interviewers treated black candidates more coldly than white candidates.295 In the second part, they trained another group of interviewers to treat white candidates in the cold manner in which the black candidates had initially been treated. When white candidates were then interviewed in this manner, they performed more poorly (as measured by independent judges) than white candidates who were treated warmly.296 The lesson, according to social scientists, is that the stereotypes we bring to interactions with the stigmatized are often self-fulfilling, thereby helping to perpetuate both the stereotype and the stigma.297 The harms associated with stigma are not insurmountable. Many stigmatized individuals develop ways of coping with their situation.298 As noted above, they may attribute negative outcomes to the prejudice of others rather than allow those

289

See C.M. Steele & J. Aronson, STEREOTYPE VULNERABILITY AND THE INTELLECTUAL TEST PERFORMANCE OF AFRICAN AMERICANS, 69 Journal of Personality and Social Psychology 797-811 (1995). 290

See id.

291

See id.

292

See id.

293

See Jussim, supra note 244, at 408.

294

See Jussim, supra note 244, at 378.

295

See id. at 380.

296

See id.

297

See id. at 380-84.

298

See Crocker, supra note 221, at 543; Miller and Major, supra note 262, at 249. 28

outcomes to affect their self-esteem. They may also try to compensate for, or even eliminate, their stigmatizing trait by changing their behavior or working harder.299 In some circumstances, they may simply avoid situations that would expose them to ridicule or prejudice.300 Overweight people often avoid the beach,301 and people with physical defects frequently stay at home.302 But although these strategies can lessen the harms associated with stigma, they also carry costs.303 Reflexively blaming negative outcomes on prejudice can prevent one from understanding other reasons behind those outcomes.304 Attempting to change behavior can backfire if those efforts fail, causing one to feel even worse than before.305 And avoiding situations that might expose one to ridicule or prejudice limits one’s access to important resources and “severely circumscribes one’s freedoms.”306 In short, being stigmatized is a serious injury with harmful consequences. Not all stigmatized people experience these harms in the same way,307 and many individuals are able to overcome these harms and lead happy, fulfilling lives.308 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.”309 C. Stigmatic Harm as a Concrete Injury Still, the question remains whether stigmatic harm should be sufficient for purposes of standing. In holding that it is not, the Court in Allen suggested that individuals who are stigmatized by government action do not suffer a concrete injury, at least when they are not personally denied equal treatment. The Court also compared plaintiffs alleging stigmatic harm to concerned bystanders attempting to vindicate value

299

See Miller and Major, supra note 262, at 253.

300

See id. at 255.

301

See id.

302

See id.; Erving Goffman, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY, at 12 (1986) (describing woman who never left home after becoming disfigured). 303

See id.

304

See Coleman, supra note 241, at 224 (noting that “stigmatized individuals sometimes blame the root of their difficulties on the stigmatic trait, rather than the root of their personal difficulties”). 305

See Miller and Major, supra note 262, at 263.

306

Id. at 264.

307

See Gibbons, supra note 255, at 123 (noting that most theorists “agree there is no single common experience associated with the process of stigmatization”); Dovido, supra note 227, at 3 (“the experience of being devalued is [] highly dependent on social context”). 308

See Dovido, supra note 227, at 2 (stating “many people with stigmatized attributes have high self-esteem, perform at high levels, are happy, and appear to be quite resilient, despite their negative experiences”). 309

Crocker, supra note 221, at 521. 29

interests. The Court did not elaborate on these claims, however, and a closer analysis strongly suggests that they are not true. First, is stigmatic harm concrete? The difficulty in answering this question is that the Court has never explained what it means for an injury to be concrete;310 it has simply labeled some injuries concrete and others abstract, as if the distinction was obvious. But the distinction is not obvious, and if we are to determine whether stigmatic harm is sufficiently concrete for standing we need to understand what the Court means when it uses that term. One possibility is that the Court uses the term concrete to refer to something that is real, not imaginary. A concrete harm would thus be one “existing in reality or in real experience,”311 as opposed to one existing only in the imagination of the plaintiff. But if that is the definition of concrete, stigmatic harm would certainly seem to qualify. Social scientists have amply documented the harms suffered by the stigmatized, from discrimination and prejudice to threats to self-esteem to self-fulfilling prophecies. Even the Court does not appear to deny that stigmatic harm is real. Before rejecting stigmatic harm as a basis for standing in Allen, the Court acknowledged that it is “one of the most serious consequences of discriminatory government action.” The Court has also relied on the existence of stigmatic harm to find equal protection violations in cases such as Brown v. Board of Education312 and Strauder v. West Virginia.313 And in Lawrence v. Texas, Justice Kennedy wrote that the stigma imposed by the Texas sodomy law “is not trivial,” while Justice O’Connor explained that it “subjects homosexuals to a lifelong penalty and stigma.”314 Thus, Allen cannot rest on a conclusion that stigmatic harm is merely imaginary. Another possibility is that “concrete” refers to something that can be seen or touched.315 This definition might exclude stigmatic harm, since one cannot actually see or touch the disgrace of stigma; one can see only the evidence of stigma in the way people react to the stigmatized and in the way the stigmatized react to others. But this definition would also exclude many other types of harm the Court has recognized for standing. One cannot see or touch the harm experienced by someone who loses the ability to enjoy a forest or to see a species of animal. Nor can one see or touch the representational harms in Shaw v. Reno,316 the loss of opportunity in Northeastern

310

See Allen v. Wright, 468 U.S. 737, 750 (1984) (stating that “the constitutional component of standing doctrine incorporates concepts concededly not susceptible of precise definition”); Chemerinsky, supra note 51, at 68 (explaining that “no formula exists for determining what types of injuries are adequate to allow a plaintiff to sue in federal court”). 311

See The American Heritage College Dictionary at 289.

312

347 U.S. 483 (1954).

313

100 U.S. 303 (1880).

314

539 U.S. at 575 & 584.

315

See The American Heritage College Dictionary at 289 (defining “concrete” as “perceptible by the

senses”). 316

509 U.S. 630 (1993). 30

Florida Contractors317 and Bakke,318 or the increased competition in Data Processing.319 In fact, other than physical injury and possibly loss of money, very few types of harm can be seen or touched. Perhaps by concrete the Court simply means that the harm must be specific or particular to the plaintiff.320 Indeed, the Court has often stated that plaintiffs must allege a harm that is personal, not general or widely shared.321 And it has sometimes used terms such as “concrete” and “personal” interchangeably.322 But there are two problems with this definition. First, it was rejected in the recent case of Federal Election Commission v. Akins,323 which made clear that standing will not be denied to plaintiffs just because the injuries they suffer are widespread or widely shared. “Where a harm is concrete, though widely shared,” the Court held, the injury-in-fact requirement is satisfied.324 Second, even if “concrete” means personal or particularized, stigmatic harm would seem to qualify. The Court has traditionally defined generalized injuries as ones that are shared in common by all members of society, such as when the government fails to follow the law.325 But stigmatic harm is not experienced by everyone in society; it is experienced only by the members of the stigmatized group. Moreover, even within a stigmatized group, the experience of being stigmatized differs from person to person.326 Thus, to borrow an example from Justice Scalia, just as all people who are denied the right to vote suffer a particularized injury, so all people who are stigmatized suffer an injury that is specific and personal to them.327

317

508 U.S. 656 (1993).

318

438 U.S. 265 (1978).

319

397 U.S. 150 (1970).

320

See The American Heritage College Dictionary at 289 (defining “concrete” as “of or relating to an actual, specific thing or instance; particular”). 321

See, e.g., Raines v. Byrd, 521 U.S. 811, 818 (1997) (stating that “a plaintiff must allege personal injury”) (internal quotations omitted); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (stating that “the injury must affect the plaintiff in a personal and individual way”); Ex Parte Levitt, 302 U.S. 633, 636 1937 (stating that a plaintiff must allege some “direct injury” and that “it is not sufficient that he has merely a general interest common to all members of the public”); Frothingham v. Mellon, 262 U.S. 447, 488 (1923) (stating that a plaintiff must allege some “direct injury . . . and not merely that he suffers in some indefinite way with people generally”). 322

See Lujan (Kennedy, J., concurring) (stating that a “party bringing suit must show that the action injured him in a concrete and personal way”); Akins, 524 U.S. at 25 (stating that “the informational injury at issue here . . . is sufficiently concrete and specific”). 323

524 U.S. 11, 24 (1998).

324

See id.

325

See Erwin Chemerinsky, FEDERAL JURISDICTION at 89-90 (4th Ed. 2003).

326

See supra note 307 and accompanying text.

327

See Akins, 524 U.S. at 35 (Scalia, J., dissenting). 31

This leads to the final possibility, which is that the Court uses the term “concrete” not to refer to a property of the harm itself, but to distinguish between plaintiffs who simply disagree with the government’s action and those whose interest in the case is unrelated to their personal views. In other words, we might define a “concrete” injury as one that is non-ideological. As with the previous possibility, there is some support in the Court’s cases for this definition. The Court has often stated that “a mere interest in a problem” is not sufficient for standing,328 a statement that is generally interpreted as barring purely ideological plaintiffs.329 Moreover, the Court has made clear that the primary goal of standing doctrine is to maintain the separation of powers by precluding parties from using the courts to reopen battles they lost in the political sphere.330 Thus, it makes sense to deny standing to plaintiffs who, in the words of Allen, are merely “attempting to vindicate value interests.” But that does not describe plaintiffs alleging stigmatic harm. It is true that such plaintiffs are likely to disagree with the government action that stigmatizes them. And if they succeed, their value interests may be vindicated. But their disagreement with the government is not the source of their injury. They are injured because the government’s action brands them with a mark of disgrace that invites discrimination and prejudice against them, threatens their self-esteem, and makes them vulnerable to stereotype threat and self-fulfilling prophecies. And they suffer these injuries regardless of whether they disagree with the government’s action and regardless of whether their value interests would be vindicated by a decision in their favor. To see the point more clearly, imagine a law that stigmatizes African Americans. Now imagine two plaintiffs who challenge the law. One is African American, the other is a white liberal. Both plaintiffs may disagree with the law and hold values that are in conflict with it. And both may feel they have been injured. The white liberal may even experience unease and anxiety because of the way African Americans are being treated. But any injury he suffers is due entirely to the fact that he disagrees with the law. If his value interests did not conflict with the law, he would suffer no harm. The African American, by contrast, suffers an injury that is unrelated to his value interests. Even if he did not disagree with the law, he would still experience the harm of being stigmatized.331 Thus, unlike the white plaintiff, whose injury flows entirely from his ideological interest in the case, the African American has an interest that is unrelated to his personal views. And if a “concrete” injury is one that is “non-ideological,” the African American plaintiff should have standing.

328

See Sierra Club v. Morton, 405 U.S. 727 (1972) (stating that “a mere interest in a problem, no matter how long standing the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient” for standing); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 222 n.11 (1974) (same); U.S. v. Richardson, 418 U.S. 166, 177 (1974) (same). 329

See Erwin Chemerinsky, FEDERAL JURISDICTION at 63 (4th Ed. 2003).

330

See Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992); Allen v. Wright, 469 U.S. 737, 752

(1984). 331

One might argue that a person cannot be stigmatized by a law he agrees with. But social scientists have shown that members of stigmatized groups often accept and contribute to the cultural beliefs that underlie their stigma. See Coleman, supra note 241, at 224; Gibbons, supra note 255, at 132; Hebl, supra note 254, at 289; Lenhardt, supra note 219, at 842. Moreover, although an African American who supports a law that stigmatizes him may not suffer a loss of self-esteem, he will still face the prejudice and discrimination that the stigmatizing law invites. 32

This list may not exhaust all the possible definitions of concrete. But it is hard to see how any definition could include all the injuries the court has recognized — aesthetic harm, loss of opportunity, the ability to live in an integrated neighborhood, increased competition — and yet not include stigmatic harm. Moreover, recognizing stigmatic harm as a basis for standing does not undermine the primary goal of standing doctrine, which is to maintain the separation of powers. Therefore, stigmatic harm seems sufficiently concrete to support Article III standing.

33

7. T HE H YPOCRISY OF THE J UDICIAL AND E XECUTIVE B RANCHES OF THE U.S. G OVERNMENT IN R EGARD TO THE S EPARATION OF P OWERS D OCTRINE T HAT INDUCES IN THE F EDERAL G OVERNMENT A S CHIZOIDIC P ATTERN OF R ACKETEERING A CTIVITY O VER THE S ECOND A MENDMENT. IN O THER W ORDS: T HE G OVERNMENT G OES L OONY O VER THE S ECOND A MENDMENT Even though these past four years of federal litigation is VOID FOR LACK OF JURISDICTION, it is not all a total waste. The U.S. Department of Justice filed enough Motions to Dismiss to establish their schizoidic position on this case such that I can use their Motions to Dismiss and the judges Memorandum Opinions granting their Motions to Dismiss as evidence of their hypocrisy on the Separation of Powers that is directly violating my rights to substantial and procedural due process under the Fourteenth Amendment amounting to a denial of my First Amendment right to petition.

M ISSION S TATEMENT FOR THE U.S. D EPARTMENT OF J USTICE “To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans.”

8. A MY C ONEY B ARRETT, S TARE D ECISIS AND D UE P ROCESS, 74 U NIVERSITY OF C OLORADO L AW R EVIEW 1011, 1074-1075 (2003): 2. D OES D ISTINGUISHING D AMPEN THE P RECLUSIVE E FFECT OF S TARE D ECISIS? Cynics might argue that precedent does not bind litigants because, no matter what the rules of stare decisis require, courts generally circumvent precedent they do not like.33 In this view, a court’s ability to distinguish cases significantly undercuts any potentially preclusive effect of stare decisis. The ability to distinguish cases, however, either honestly or disingenuously, does not entirely deprive stare decisis of its bite.34 To take disingenuous distinguishing (distinguishing the plainly indistinguishable) first: It undeniably happens, and every lawyer has her favorite example of it. Judicial dishonesty, however, simply cannot be the rule rather than the exception. Karl Llewellyn once described what he called the

33

See, e.g., Hiroshi Motomura, USING JUDGMENTS AS EVIDENCE, 70 Minn. L. Rev. 979, 1017 n.186 (1986) (“Stare decisis is not binding because cases can always be distinguished.”). 34

Cf. Lea Brilmayer, A REPLY, 93 Harv. L. Rev. 1727, 1728 (1980) (“Neither the cliché that any two cases are potentially distinguishable nor the characterization of some precedents as formative or tentative solves the problem. If taken literally, these seem to suggest that it would not make any difference whether adverse precedents were established. Regardless of whether one perceives the proper role of stare decisis as strong or weak, in the real world of litigation, precedents do have some binding force.”); Evan Tsen Lee, DECONSTITUTIONALIZING JUSTICIABILITY: THE EXAMPLE OF M OOTNESS , 105 Harv. L. Rev. 603, 652 (1992) (“[T]he undesirability of having an adverse precedent on the books is unquestionable.”). 34

“steadying factors in our appellate courts.”35 He argued that, among other things, the education of judges, the expectations of them on the bench, and the public nature of decisionmaking work strongly against any impulse to engage in unreasoned and willful decisionmaking.36 Llewellyn’s description is sensible, and practice appears to bear it out. In the main, judges do not treat precedent with thinly disguised contempt. Instead, they write their opinions as if precedent counts.37 A court’s capacity for “honest” distinguishing (distinguishing fairly allowed by the rules of stare decisis) does somewhat blunt a case’s effect on later litigants.38 Courts cannot, however, fairly distinguish every case. As Frederick Schauer has observed, the idea that a judge can, in “all or even most” cases, rationalize from precedent a result she wants is “at least erroneous and at times preposterous.”39 Cases involving judicial review illustrate well the fact that precedent is sometimes indistinguishable. Judicial review can affect nonparty litigants acutely. Once a court holds a statute or a portion of a statute facially unconstitutional, it is virtually impossible for later courts to resurrect it. For example, after United States v. Morrison,40 it is doubtful that any litigant could successfully bring a private cause of action under the Violence Against Women Act. After United States v. Lopez,41 it is unlikely that any federal prosecutor could secure a conviction under the Gun-Free School Zones Act. Cases interpreting texts are often difficult to distinguish; thus, they too can have a significant impact on later litigants. If a court holds that “mere possession” of a gun qualifies as “use” of it under the federal drug trafficking statute, 4 2 later defendants cannot persuasively argue that “use” requires “active employment.” Or, if a court holds that a correctible vision impairment is not a “disability” under the Americans

35

Karl N. Llewellyn, THE COMMON LAW TRADITION: DECIDING APPEALS 19–61 (1960).

36

Id.

37

This is true even when they do not agree with precedent. See, e.g., infra notes 48–49 (collecting cases in which courts follow precedent while noting disagreement with it). 38

The ability to distinguish is not logically inconsistent with preclusive effect. Courts can also distinguish prior cases for purposes of issue preclusion, and we have no trouble considering issue preclusion “preclusive.” See infra note92 and accompanying text. 39

Frederick Schauer, EASY CASES, 58 S. Cal. L. Rev. 399, 411 (1985).

40

United States v. Morrison, 529 U.S. 598 (2000).

41

United States v. Lopez, 514 U.S. 549 (1995). The precedential effect of Morrison and Lopez is, of course, primarily vertical. The point remains the same, however, when one considers the impact of such judicial review cases from a horizontal perspective. 42

Cf. United States v. Torres-Rodriguez, 930 F.2d 1375, 1385 (9th Cir. 1991) (holding that mere possession constitutes “use” under Section 924(c)), overruled by Bailey v. United States, 516 U.S. 137, 143 (1995) (holding that “use” under Section 924(c) requires some active employment). 35

with Disabilities Act,43 later plaintiffs cannot successfully argue that it does so qualify. The vagueness of language does not significantly diminish the potentially broad impact of textual interpretations on later litigants. For example, the word “use” may have a range of possible meanings, and it may be unclear which of those meanings Congress intended to convey in a particular statute. A court may hold that “brandishing” a gun violates a statutory prohibition on “using” a gun. This interpretation, to be sure, does not rule out all possible interpretations—if a later case presents the question whether “mere possession” constitutes “use” under the same statute, the earlier case will not answer the question. Nonetheless, the earlier case still makes at least one interpretation concrete. And that one, concrete interpretation (“brandishing” constitutes “use”) will govern all later cases presenting the same interpretive question. Even when it is distinguishable, precedent binds litigants. A litigant distinguishing a prior case does not contest that the precedent binds her as to the issue decided in that case. She simply argues that a different issue is at stake. Thus, a plaintiff who challenges a crèche and menorah display on city property is bound by Lynch v. Donnelly,44 which upheld a public crèche display, and by County of Allegheny v. ACLU, 4 5 which upheld a public menorah display. To win, she must argue that the display is unconstitutional despite these holdings. Whether a litigant argues by distancing herself from precedent or by trying to come within its terms, she acknowledges its binding effect. And even where prior cases do not control directly, they are likely to affect the outcome simply by defining the terms of the argument. As students of path-dependence theory have observed; “[T]he order in which cases arrive in the courts can significantly affect the specific legal doctrine that ultimately results.”46 This is precisely why litigants with an agenda in mind orchestrate the order in which “test” cases arrive in the courts.47

43

Cf. Sutton v. United Airlines, 527 U.S. 471, 488–89 (1999) (holding that a correctible vision impairment is not a disability for purposes of the Americans with Disabilities Act). 44

465 U.S. 668 (1984).

45

492 U.S. 573 (1989).

46

Oona Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common Law System, 86 IOWA L. REV. 601, 605 (2001); see also Frank Easterbrook, Stability and Reliability in Judicial Decisions, 73 CORNELL L. REV. 422, 425–26 (1988) [hereinafter Easterbrook, Stability and Reliability in Judicial Decisions]; Frank Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802, 817–21 (1982); Maxwell Stearns, Standing Back from the Forest: Justiciability and Social Choice, 83 CAL. L. REV. 1309 (1995). Frederick Schauer has observed that first cases can “distort by ‘hogging the stage;’” they set the frame of reference even though the first decisionmaker could not necessarily anticipate later issues that would be affected. Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633, 655 (1995) [hereinafter Schauer, Giving Reasons]; see also Jeffrey O. Cooper & Douglas A. Berman, Passive Virtues and Casual Vices in the Federal Courts of Appeals, 66 BROOK. L. REV. 685, 722–23 (2001) (“[B]ecause of the binding force given to circuit precedents, early decisions rendered in . . . imperfect settings may and often will establish how all future cases raising the particular legal issue are litigated and decided.”). 47

Hathaway, supra note 46, at 648–50. Hathaway gives the examples of Thurgood Marshall’s strategy in segregation cases and Justice Ruth Bader Ginsburg’s strategy in gender discrimination cases. Id. 36

Whatever theoretical arguments one might make about the ability of distinguishing to gut stare decisis, neither judges nor litigants behave as if precedent were meaningless. Instead, they treat precedent as having real effect on outcomes. For example, judges sometimes publicly assert that they are following precedent despite disagreement with either its reasoning or the result it commands.48 A recent Seventh Circuit case is illustrative. There, the court stated: [T]he judges of this panel believe that students involved in extracurricular activities should not be subject to random, suspicionless drug testing as a condition of participation in the activity. Nevertheless, we are bound by this court’s recent precedent in Todd . . . . [W]e believe that we must adhere to the holding in Todd . . . .49 Other opinions are to the same effect.50 The recent controversy over the legitimacy of unpublished opinions is more evidence that the federal courts take stare decisis very seriously.51 This issue is only significant because federal courts perceive published opinions as binding.52 Judges on both sides

48

See, e.g., Clay v. United States, 2002 WL 126094 (7th Cir. Jan. 25, 2002), rev’d, 123 S. Ct. 1072 (2003) (“Bowing to stare decisis, we are reluctant to overrule a recently-reaffirmed precedent without guidance from the Supreme Court.”); Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 426 (5th Cir. 1987) (bowing to precedent but urging that it be overruled en banc); United States v. Hoover, 246 F.3d 1054, 1065 (7th Cir. 2001) (Rovner, J., concurring) (“I accept, as I must, the panel’s holding in Jackson; it is the law of this circuit . . . . I do so, however, with great reservation as to the prudence [of the panel’s decision in that case]”); Moore v. Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir. 2000) (Wiener, J., concurring); Bellsouth Corp. v. FCC, 162 F.3d 678, 697 (D.C. Cir. 1998) (Sentelle, J., concurring) (joining majority’s result “only for reasons of stare decisis and binding precedent, not because I believe it correct”); Geib v. Amoco Oil Co., 163 F.3d 329, 330–31 (6th Cir. 1995) (Engel, J., concurring) (“Were this issue before us as an original matter . . . I am quite certain that I would hold [otherwise] . . . . However, I agree that we are bound to honor our prior decision as a matter of stare decisis . . . .”). For the expression of similar sentiment with respect to vertical stare decisis, see, for example, Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1113 (5th Cir. 1997) (Garza, J., concurring) (“For the second time in my judicial career, I am forced to follow a Supreme Court opinion I believe to be inimical to the Constitution.”), overruled by Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001); Sojourner T. v. Edwards, 974 F.2d 27, 31 (5th Cir. 1992) (Garza, J., concurring) (following Planned Parenthood v. Casey despite disagreement with it); Loughney v. Hickey, 635 F.2d 1063, 1065 (3d Cir. 1980) (Aldisert, J., concurring) (following precedent despite “vehement disagreement” with it). 49

Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052, 1066 (7th Cir. 2000) (adhering to Todd v. Rush County Sch., 133 F.3d 984 (7th Cir. 1998)). 50

See supra note 48 (collecting cases).

51

See supra note 1 (collecting post-Anastasoff literature); see also Robert J. Martineau, Restrictions on Publication and Citation of Judicial Opinions: A Reassessment, 28 U. MICH. J.L. REFORM 119 (1994); Lauren K. Robel, The Myth of the Disposable Opinions: Unpublished Opinions and Government Litigants in the United States Courts of Appeals, 87 MICH. L. REV. 940 (1989); Howard Slavitt, Selling the Integrity of the System of Precedent: Selective Publication, Depublication, and Vacatur, 30 HARV. C.R.-C.L. L. REV. 109 (1995); George M. Weaver, The Precedential Value of Unpublished Judicial Opinions, 29 MERCER L. REV. 477 (1988). 52

See, e.g., Milton S. Kronheim & Co. v. District of Columbia, 91 F.3d 193, 197 (D.C. Cir. 1996) (citing the distinction as justification for its departure from prior unpublished opinion). 37

of the issue have made that much clear.53 If stare decisis were nothing but a “noodle,” to borrow a word from Judge Posner,54 the distinction between published and unpublished opinions would be of no consequence.55 Litigants, too, take stare decisis seriously. Repeat litigants settle cases that are not sure wins for fear of the effect that a loss could have on cases coming down the pike. Repeat players who settle also try to convince the court to vacate precedent so as to escape its stare decisis effect. Nonparties invested in an issue file amicus briefs in an effort to shape the precedent that will later affect them. Nonparties occasionally seek even greater involvement. Courts grant motions for intervention as of right based on the potential for adverse stare decisis effects.56 In the high-profile case Piscataway Township Board of Education v. Taxman, nonparties engineered a settlement between the parties just before oral argument in the Supreme Court for fear of the blow that

53

See Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001); Anastasoff v. United States, 223 F.3d 898 (8th Cir.), vacated as moot on reh’g en banc, 235 F.3d 1054 (8th Cir. 2000); see also Richard S. Arnold, Unpublished Opinions: A Comment, 1 J. APP. PRAC. & PROCESS 219 (1999); Boggs & Brooks, supra note 1; Kozinski & Reinhardt, supra note 1; Boyce F. Martin, Jr., In Defense of Unpublished Opinions, 60 OHIO ST. L.J. 177 (1999). 54

Bethesda Lutheran Homes & Serv., Inc. v. Born, 238 F.3d 853, 858 (7th Cir. 2001).

55

Indeed, the use of unpublished opinions may be attributable at least in part to the rigidity of stare decisis. Because it is so difficult to overrule a published opinion, the courts of appeals sometimes use unpublished opinions to avoid precedential effect. See, e.g., Milton S. Kronheim & Co., 91 F.3d at 204–05 (Silberman, J., concurring) (noting that prior opinion was unpublished so as to avoid giving it precedential effect, thereby preserving the opportunity to raise the issue again); see also Cooper & Berman, supra note 46, at 739–40 (advocating use of the unpublished opinion as a way to avoid prematurely setting circuit precedent in stone); Patricia Wald, The Rhetoric of Results and the Results of Rhetoric, 62 U. CHI. L. REV. 1371, 1374 (1995) (“I have seen judges purposely compromise on an unpublished opinion incorporating an agreed-upon result in order to avoid a timeconsuming public debate about what law controls. I have even seen wily would-be dissenters go along with a result they do not like so long as it is not elevated to a precedent.”). Interestingly, Thomas R. Lee and Lance S. Lehnhof have asserted that the founding generation’s approach to precedent “is most closely aligned with the current treatment accorded to unpublished opinions, not with the more rigid adherence extended to their published counterparts.” Lee & Lehnhof, supra note 1, at 154. 56

See, e.g., Coalition of Ariz./N.M. Counties for Stable Econ. Growth v. Dep’t of Interior, 100 F.3d 837, 844 (10th Cir. 1996); Sierra Club v. Glickman, 82 F.3d 106, 109–10 (5th Cir. 1996); Oneida Indian Nation v. New York, 732 F.2d 261, 265–66 (2d Cir. 1984); Corby Recreation, Inc. v. General Elec. Co., 581 F.2d 175, 177 (8th Cir. 1978); NRDC v. United States Nuclear Regulatory Comm’n, 578 F.2d 1341, 1345 (10th Cir. 1978); Nuesse v. Camp, 385 F.2d 694, 702 (D.C. Cir. 1967); Fla. Power Corp. v. Granlund, 78 F.R.D. 441, 444 (M.D. Fla. 1978); In re Oceana Int’l, Inc., 49 F.R.D. 329, 332 (S.D.N.Y. 1970). The adverse stare decisis effects of a decision on nonparties do not typically require joinder under Rule 19, see Geoffrey Hazard, Indispensable Party: The Historical Origin of a Procedural Phantom, 61 COLUM. L. REV. 1254, 1288 n.183 (1961), although some scholars have argued that maybe they should, see Carl Tobias, Rule 19 and the Public Rights Exception to Party Joinder, 65 N.C. L. REV. 745, 777 (1987). In addition, while courts generally refuse to certify class actions based on adverse impact from stare decisis (because, of course, this would make all or most actions certifiable), they have certified classes when the possibility of adverse stare decisis effects is coupled with some sort of pre-existing legal relationship between class members. Elizabeth Barker Brandt, Fairness to the Absent Members of a Defendant Class: A Proposed Revision of Rule 23, 1990 B.Y.U. L. REV. 909, 948 n.80 (1990) (collecting cases). 38

bad precedent in that case could deal to affirmative action.57 The preclusive power of stare decisis is real, and those faced with its threat treat it as so.

3. T HE D UE P ROCESS Q UESTION This preclusive effect raises serious due process issues, and, as I shall argue below, occasionally slides into unconstitutionality. In adjudication—where, by definition, life, liberty, or property is at stake—the Constitution guarantees litigants due process of law.58 Due process includes the right to an opportunity to be heard on the merits of one’s claims or defenses.59 To the extent that a rigid application of stare decisis deprives litigants of this opportunity, it raises a due process issue. Occasionally, a court or commentator has at least flagged this problem.60 For example, in Northwest Forest Resource Council v. Dombeck, the D.C. Circuit recognized that the improper application of stare decisis can offend the Due Process Clause.61 In Dombeck, the district court had rejected the plaintiffs’ challenges to a federal environmental plan on the ground that it was bound by the stare decisis effect of a decision by a court in another district.62 The D.C. Circuit held that stare decisis did not apply because a district court is not bound by decisions from another district, and the rejection of the plaintiffs’ claims on this ground violated their “right to be heard on the merits of their claims.”63

57

Taxman v. Bd. of Educ. of Township of Piscataway, 91 F.3d 1547 (3d Cir. 1996), cert. granted sub nom. Piscataway Township Bd. of Educ. v. Taxman, 521 U.S. 1117 (1997), cert. dismissed, 522 U.S. 1010 (1997); see also Lisa Estrada, Buying the Status Quo on Affirmative Action: The Piscataway Settlement and its Lessons about Interest Group Path Manipulation, 9 GEO. MASON U. CIV. RTS. L.J. 207 (1999); Linda Greenhouse, Settlement Ends High Court Case on Preferences: Tactical Retreat, N.Y. TIMES, Nov. 22, 1997, at A1. 58

U.S. CONST. amend. V; see also infra notes 171–73 and accompanying text (discussing adjudication and due process). 59

Richards v. Jefferson County, 517 U.S. 793, 797–98, 797 n.4 (1996); Martin v. Wilks, 490 U.S. 755, 761–62 (1989); Blonder-Tongue Lab., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 329 (1971); Hansberry v. Lee, 311 U.S. 32, 40 (1940). 60

John McCoid has observed that if rigorously followed, the “no panel overruling” rule “seems to be on the borderline of a denial of due process to the party who is adversely affected by the prior decision. He has no true day in court on his claim or defense.” John McCoid, Inconsistent Judgments, 48 WASH. & LEE L. REV. 487, 513 (1991); see also Brilmayer, supra note 22, at 306–07 (1979) (identifying a due process problem in the application of stare decisis, albeit a due process problem of less severity than that posed by res judicata). In a related vein, Barry A. Miller has argued that sua sponte appellate rulings can violate a litigant’s due process right to an opportunity to be heard. Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 SAN DIEGO L. REV. 1253 (2002). 61

107 F.3d 897 (D.C. Cir. 1997). By contrast, the Sixth Circuit has dismissed the argument that rigid application of precedent to a nonparty violates the Due Process Clause as “obviously without merit.” Kent v. Johnson, 821 F.2d 1220, 1228 (6th Cir. 1987). 62

In Dombeck, the plaintiffs challenged the Secretary of Interior’s plan for managing forests in the Pacific Northwest. Other groups unsuccessfully had challenged the same plan in the Western District of Washington. Dombeck, 107 F.3d at 898. 63

Id. 39

Similarly, in Colby v. J.C. Penney Co., a district judge treated precedent from another district as outcomedeterminative in a sex discrimination suit against J.C. Penney. 6 4 The Seventh Circuit pointed out that neither claim nor issue preclusion could apply to the Colby plaintiff because she had not been a party to the prior suit.65 It then reversed the district court for treating persuasive authority as authoritative. In doing so, it observed that “within reason, the parties to cases before [this court and the district courts of this circuit] are entitled to our independent judgment.”6666 While the Seventh Circuit did not ground its decision in the Due Process Clause, its decision appears to rest on due process concerns. Both Dombeck and Colby raise more questions than they answer. In asserting that the due process failure lay in the district court’s choice to treat persuasive precedent as binding, Dombeck implies that the Due Process Clause would have permitted the court to foreclose the merits of the litigants’ claims with precedent from the same jurisdiction. The case does not explain why the rigid application of precedent offends the Due Process Clause in the former context but not the latter. Similarly, Colby does not explain why preclusion by out-of-circuit precedent offends fairness but preclusion by in-circuit precedent does not. The question of whether and how the Due Process Clause applies to the doctrine of stare decisis remains unexamined in existing scholarship and case law. ...

C ONCLUSION We tend to think of stare decisis as an institutional doctrine. Viewed through the lens of issue preclusion, however, its impact on individual litigants comes into focus. The preclusive impact of stare decisis is real, and it can affect a litigant dramatically. Through the operation of stare decisis, litigants are bound to results obtained by those who have gone before them. They typically lack the opportunity to press their own arguments about whether precedent correctly interprets underlying statutory or constitutional provisions. The comparison to issue preclusion also illuminates the due process limit on the courts’ application of precedent. In issue preclusion, as in the application of precedent, adjudication is involved; adjudication triggers the Due Process Clause. Issue preclusion handles due process limits by restricting preclusion to parties and their privies. Stare decisis, at least as a formal matter, has chosen to handle thedue process limit with flexibility. That flexibility, however, must be observed in substance as well as form. Flexibilityrequires that courts allow for the possibility of error-correction. Current stare decisis doctrine, however, does not generally allow for this possibility. Indeed, many aspects of current stare decisis doctrine—most notably, the combination of the nopanel-overruling rule and the stringent standards for en banc and Supreme Court review—affirmatively work against flexibility.

64

811 F.2d 1119 (7th Cir. 1987). J.C. Penney only permitted those employees who were “heads of household” to opt into the company’s medical and dental insurance plans. The EEOC had challenged the same policy unsuccessfully before a district court in Detroit. Id. at 1122. 65

Id. at 1124–25.

66

Id. at 1123. 40

This Article urges the federal courts to restore flexibility to stare decisis doctrine. Generally speaking, if a litigant demonstrates that a prior decision clearly misinterprets the statutory or constitutional provision it purports to interpret, the court should overrule the precedent. Reliance interests count, but they count far less when precedent clearly exceeds a court’s interpretive authority than they do when precedent, though perhaps not the ideal choice, was nonetheless within the court’s discretion. It is undeniable that attention to the participation rights of individual litigants would bring some inefficiency to stare decisis doctrine. It has done so for issue preclusion. But if due process indeed guarantees some opportunity to participate in judicial decisionmaking, we should start paying attention. Otherwise, the elaborate protections that we have in place for preclusion do not mean much.

9. A SSISTANT U.S. A TTORNEY D ENNIS B ARGHAAN’S F RAUDULENT U SE OF INAPPLICABLE C ASE L AW It is my understanding that in order to use case law the circumstances of a cited case must match up to a significant number traits to the contested case to be applicable for use. But in my RICO Act case in Washington, DC the Assistant U.S. Attorney Dennis Barghaan, defense counsel for the defendant U.S. Government, filed a flawed and fraudulent Motion to Dismiss on August 4, 2006 using inapplicable case law alleging that the President does not have a clear duty to act under the requirements for Mandamus relief in my Second Amendment case employing the RICO Act . On page 10 of that Motion to Dismiss Mr. Barghaan cited Garcia v. U.S. Department of Justice, 2005 WL 3273720, at *2 (D.D.C. Aug. 31, 2005) (As this Court has appropriately identified, an official only has a “clear duty to act” if the duty is ministerial, as opposed to discretionary, and “[a] ministerial duty is one that admits of no discretion, so that the official has no authority to determine whether to perform the duty.”) I bring to this Cout’s attention that Plaintiff Guillermo Ruiz Garcia in the above cited case is a federal inmate who filed a Freedom of Information Act request for records from the U.S. Department of Justice under 5 U.S.C. § 552. Garcia alleged that the DOJ failed to properly respond to his FOIA request. Defense Counsel’s use of a federal inmate’s FOIA case is insulting to my right to due process because I am not a federal inmate and my case is not a FOIA case. Mr. Barghaan’s use of such dirty tactics is revolting.

41

On page 17 of Mr. Barghaan’s Motion to Dismiss he employs a very interesting choice of words for his Section A, “MANDAMUS JURISDICTION CANNOT BE INVOKED TO MANDATE THAT THE PRESIDENT AND

CONGRESS ADOPT CERTAIN POLICY STANCES OR PROMULGATE CERTAIN REGULATIONS .” Put more in terms of the mandamus jurisprudence itself, plaintiff certainly does not have a “clear and indisputable right” to force various policy positions on federal government officials, and ironically enough, it is the Constitution itself – through the doctrine of separation of powers – that openly prohibits the same. Indeed, “[s]tated in its simplest terms, the separation of powers doctrine prohibits each branch of the government from ‘intrud[ing] upon the central prerogatives of another.’” United States v. Moussaoui, 382 F.3d 453, 469 (4th Cir. 2004) (quoting Loving v. United States, 517 U.S. 748, 757 (1996)), cert. denied, 544 U.S. 931 (2005); see also Mistretta v. United States, 488 U.S. 361, 382 (1989) (holding that separation of powers doctrine requires invalidation of statutes “that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch”). At its core, it is difficult to imagine an action that would more greatly “undermine the authority and independence” of the Executive and Legislative Branches than this Court’s ordering officials of those branches to take certain actions that the Constitution places within their exclusive sphere of authority. This time Mr. Barghaan uses three criminal cases: (1) a suspected terrorist Moussaoui whose

circumstance are in no way the least bit similar to my case unless Mr. Barghaan delusionally perceives my case as one of terrorism: The pursuit of actual freedom through litigious restoration of Second Amendment rights (Cf. Dred Scott v. Sanford, 60 U.S. (How.) 393, 416-417, (1856), description on the differences between a free citizen and a slave; and Cf. Abraham Lincoln’s Emancipation Proclamation); (2) Loving v. United States, a U.S. Army private found guilty of premeditated murder and felony murder; and (3) Mistretta v. United States, a case of indictment on three counts centering in a cocaine sale. Is Mr. Barghaan confused? My case is a CIVIL CASE ! My counter point in terms of mandamus jurisprudence itself, I, as a benefactor of “We, the People” in the Preamble to the U.S. Constitution establishing the six promises: (1) in Order to form a more perfect Union; (2) establish Justice, (3) insure domestic Tranquility, (4) provide for the common defence, (5) promote the general Welfare, and (6) secure the Blessings of Liberty to ourselves and our Posterity, do have a “clear and indisputable right” to force various policy positions on federal government officials through the “Private Attorney General Doctrine” as a civil plaintiff with a RICO Act case for the Second Amendment, to compel the Executive and the Legislative branches of the Federal Government to take certain actions. It is the right of the American People to petition the Judicial branch under the First Amendment and it is the powers reserved to the people under the Tenth Amendment that gives me 42

the authority to demand Mandamus Relief through the Judicial Branch to compel certain actions from the Executive and Legislative Branches upon complaint and allegation of any justiciable violations of the six promises of Government under the Preamble to the U.S. Constitution. So, in effect it is not the Judicial Branch that would be compelling action from the Executive and Legislative Branches of the Federal Government. It is I, a civil plaintiff acting as a Private Attorney General under the RICO Act that would be compelling governmental action in complaince with the U.S. Constitution with the Judicial Branch serving to confirm the legality and justiciability of my complaint, claims, and demands for relief, In my interpretation of constitutional law the Separation of Powers are not violated but exercised under the proper construction of the U.S. Constitution. Mr. Barghaan’s statement, “Indeed, ‘[s]tated in its simplest terms, the separation of powers doctrine prohibits each branch of the government from ‘intrud[ing] upon the central prerogatives of another.’ ” would mean that there are no checks or balance in our Guaranteed Republican form of Government. The Legislative Branch in coluson with the Executive Branch could transform our nation into a communist country or a militaristic authoritarian or totalitarian regime and the Judicial Branch would be powerless to stop it. Nor would the American people have the Tenth Amendment power to rise up in defense of our Republican Form of Government under the Constitutional Right of Self Defense under the Second Amendment’s militia clause and under the Law of Nations and under the Law of Internal Armed Conflict when Mr. Barghaan’s view on the Separation of Powers are taken to their extreme.

10. E XCERPT FROM THE D RED S COTT C ASE IN 1856 The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [60 U.S. 393, 417] regulations which they considered to be necessary for their 43

own safety. It would give to persons of the negro race, who were recognised 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.

11. E XCERPT FROM L INCOLN’S E MANCIPATION P ROCLAMATION OF 1863 "That on the 1st day of January, A.D. 1863, 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.

12. E XPOSING A SSISTANT U.S. A TTORNEY D ENNIS B ARGHAAN’S F RAUD, M ISCONDUCT & H YPOCRISY O N S EPARATION OF P OWERS Indeed, Mr. Barghaan boasts about the Separation of Powers Doctrine but yet violates that very doctrine with his Motion to Dismiss. Mr. Barghaan describes the differences of opinions on the proper interpretation of the Second Amendment between the federal courts themselves and between the federal courts and the U.S. Department of Justice in his Motion to Dismiss. The policy and position of the U.S. Department of Justice relating to the Second Amendment is that, “The Second Amendment secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias.” See MEMORANDUM OPINION

FOR THE

ATTORNEY GENERAL ,

WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT , August 24, 2004.1 The conclusion from that memorandum states: 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-collective-right views. The text of the Amendment's operative clause, setting out

1

Available Online at http://www.usdoj.gov/olc/secondamendment2.htm 44

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. If the policy of the U.S. Department of Justice on the Second Amendment is that it secures an individual right and I am pursuing a Second Amendment right then why did Mr. Barghaan file his Motion to Dismiss supporting the U.S. District Court for the District of Columbia’s opinion in Seegars v. Ashcroft? From Mr. Barghaan’s Motion to Dismiss:

Nor does plaintiff’s resort to the Second Amendment provide him with any assistance. As this Court recently held, “[o]ne of the leading constitutional debates centers around the scope of the Second Amendment and whether its purpose is to protect the sanctity of state militias or to provide a fundamental right to individuals.”2 Seegars v. Ashcroft, 297 F. Supp. 2d 201, 218 (D.D.C. 2004) (Walton, J.), rev’d in part on other grounds by Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1187 (2006). To be sure, the United States’ present position on the scope of the Second Amendment, articulated through, inter alia, a recent opinion authored by the Department of Justice’s Office of Legal Counsel, is that this constitutional provision “more broadly protects the rights of individuals . . . to possess and bear their own firearms, subject to reasonable restrictions.” Silveria v. Lockyer, 312 F.3d 1052, 1065 (9 th Cir. 2002), cited in Seegars, 297 F. Supp.2d at 218 n.15. But notwithstanding this position, the attorney’s duty of candor to the tribunal, see D.C. RULE OF PROFESSIONA L CONDUCT 3.3; Va. RULE OF PROFESSIONAL CONDUCT 3.3, requires undersigned counsel to note that this Court has already reached a conclusion contrary to the Justice Department’s position on this score. More specifically, in Seegars, this Court held “that the Second Amendment does not confer an individual a right to possess firearms.” Seegars, 297 F. Supp. 2d at 235. And this conclusion destroys any purported assistance plaintiff have derived from the Second Amendment in any of his mandamus claims – including that which seeks to compel the Merchant Mariner endorsement. But even if this Court had accepted the notion that the Second Amendment confers an individual right concerning firearms possession, it would not lead to the conclusion that the Coast Guard was required to endorse plaintiff’s Merchant Mariner document in the fashion he desires. Initially, as District Judge Huvelle cogently recognized during plaintiff’s last litigative effort on this score, the mere fact that only one court has ever explicitly concluded that the Second Amendment confers an individual right, see United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), compels the conclusion that a government agency did not owe plaintiff a clear duty to the

2

My emphasis 45

endorsement. Indeed, the mere existence of a legal debate on these issues renders mandamus relief particularly inappropriate. In addition, as several courts have noted, the Bill of Rights – including the Second Amendment – represents a charter of negative liberties, defining not what the government must affirmatively accomplish, but rather, what it cannot execute of its own volition. See, e.g., DeShaney v. Winnebago County, 489 U.S. 189, 194-95 (1989); Walker v. Rowe, 791 F.2d 507, 510 (7 Cir. 1986). Accordingly, even if the Second Amendment bore some application to the instant scenario, it would only prevent the government from taking certain action against plaintiff, not require that the government take affirmative action in his favor. Finally, even the Fifth Circuit in Emerson held that the Second Amendment’s protection of individual rights was not limitless, and was subject to “restrictions for particular cases that are reasonable and not inconsistent with the right of Americans generally to individually keep and bear their private arms as historically understood in this country.” Emerson, 270 F.3d at 261. There can be little doubt that the Coast Guard did not owe plaintiff a “clear duty” – as that term is narrowly defined by the operative jurisprudence – to a “National Open Carry Handgun” endorsement, even with an interpretation of the Second Amendment that recognizes individual rights to keep and bear arms.

Mr. Barghaan damned himself to the allegation of fraudulent use of case law when he used Deshaney v. Winnebago County and Walker v. Rowe out of context. Those two cases more accurately vindicate my case for the Second Amendment right to openly keep and bear arms in intrastate and interstate travel because in those two cases the court effectively ruled that the individual has to right to protection by the State. DeShaney is a landmark case regarding a child’s constitutional right to safety. The Supreme Court rejected Joshua DeShaney’s substantive due process claim against social service officials for their failure to protect him from severe abuse by his father. See Lawrence G. Albrech, Human Rights Paradigms for Remedying Governmental Child Abuse, 40 Washburn Law Journal 447 (2001).

13. D ISSENTING O PINIONS OF J USTICES B RENNAN, M ARSHAL, AND B LACKMUN IN D ES HANEY V INDICATES M Y C ASE FOR S ECOND A MENDMENT R IGHTS: JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, dissenting. "The most that can be said of the state functionaries in this case," the Court today concludes, "is that they stood by and did nothing when suspicious circumstances dictated a more active role for them." Ante this page. Because I believe that this description of respondents' conduct tells only part of the story and that, accordingly, the Constitution itself "dictated a more active role" for respondents in the circumstances presented here, I cannot agree that respondents had no constitutional duty to help Joshua DeShaney.

46

It may well be, as the Court decides, ante, at 194-197, that the Due Process Clause as construed by our prior cases creates no general right to basic governmental services. That, [489 U.S. 189, 204] however, is not the question presented here; indeed, that question was not raised in the complaint, urged on appeal, presented in the petition for certiorari, or addressed in the briefs on the merits. No one, in short, has asked the Court to proclaim that, as a general matter, the Constitution safeguards positive as well as negative liberties. This is more than a quibble over dicta; it is a point about perspective, having substantive ramifications. In a constitutional setting that distinguishes sharply between action and inaction, one's characterization of the misconduct alleged under 1983 may effectively decide the case. Thus, by leading off with a discussion (and rejection) of the idea that the Constitution imposes on the States an affirmative duty to take basic care of their citizens, the Court foreshadows - perhaps even preordains - its conclusion that no duty existed even on the specific facts before us. This initial discussion establishes the baseline from which the Court assesses the DeShaneys' claim that, when a State has - "by word and by deed," ante, at 197 - announced an intention to protect a certain class of citizens and has before it facts that would trigger that protection under the applicable state law, the Constitution imposes upon the State an affirmative duty of protection. The Court's baseline is the absence of positive rights in the Constitution and a concomitant suspicion of any claim that seems to depend on such rights. From this perspective, the DeShaneys' claim is first and foremost about inaction (the failure, here, of respondents to take steps to protect Joshua), and only tangentially about action (the establishment of a state program specifically designed to help children like Joshua). And from this perspective, holding these Wisconsin officials liable - where the only difference between this case and one involving a general claim to protective services is Wisconsin's establishment and operation of a program to protect children - would seem to punish an effort that we should seek to promote. [489 U.S. 189, 205] I would begin from the opposite direction. I would focus first on the action that Wisconsin has taken with respect to Joshua and children like him, rather than on the actions that the State failed to take. Such a method is not new to this Court. Both Estelle v. Gamble, 429 U.S. 97 (1976), and Youngberg v. Romeo, 457 U.S. 307 (1982), began by emphasizing that the States had confined J. W. Gamble to prison and Nicholas Romeo to a psychiatric hospital. This initial action rendered these people helpless to help themselves or to seek help from persons unconnected to the government. See Estelle, supra, at 104 ("[I]t is but just that the public be required to care for the prisoner, who cannot by reason of the deprivation of his liberty, care for himself"); Youngberg, supra, at 317 ("When a person is institutionalized - and wholly dependent on the State - it is conceded by petitioners that a duty to provide certain services and care does exist"). Cases from the lower courts also recognize that a State's actions can be decisive in assessing the constitutional significance of subsequent inaction. For these purposes, moreover, actual physical restraint is not the only state action that has been considered relevant. See, e. g., White v. Rochford, 592 F.2d 381 (CA7 1979) (police officers violated due process when, after arresting the guardian of three young children, they abandoned the children on a busy stretch of highway at night). Because of the Court's initial fixation on the general principle that the Constitution does not establish positive rights, it is unable to appreciate our recognition in Estelle and Youngberg that this principle does not hold true in all circumstances. Thus, in 47

the Court's view, Youngberg can be explained (and dismissed) in the following way: "In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf - through incarceration, institutionalization, or other similar restraint of personal liberty - which is the `deprivation of liberty' triggering the protections of the Due Process [489 U.S. 189, 206] Clause, not its failure to act to protect his liberty interests against harms inflicted by other means." Ante, at 200. This restatement of Youngberg's holding should come as a surprise when one recalls our explicit observation in that case that Romeo did not challenge his commitment to the hospital, but instead "argue[d] that he ha[d] a constitutionally protected liberty interest in safety, freedom of movement, and training within the institution; and that petitioners infringed these rights by failing to provide constitutionally required conditions of confinement." 457 U.S., at 315 (emphasis added). I do not mean to suggest that "the State's affirmative act of restraining the individual's freedom to act on his own behalf," ante, at 200, was irrelevant in Youngberg; rather, I emphasize that this conduct would have led to no injury, and consequently no cause of action under 1983, unless the State then had failed to take steps to protect Romeo from himself and from others. In addition, the Court's exclusive attention to state-imposed restraints of "the individual's freedom to act on his own behalf," ante, at 200, suggests that it was the State that rendered Romeo unable to care for himself, whereas in fact - with an I. Q. of between 8 and 10, and the mental capacity of an 18-month-old child, 457 U.S., at 309 - he had been quite incapable of taking care of himself long before the State stepped into his life. Thus, the fact of hospitalization was critical in Youngberg not because it rendered Romeo helpless to help himself, but because it separated him from other sources of aid that, we held, the State was obligated to replace. Unlike the Court, therefore, I am unable to see in Youngberg a neat and decisive divide between action and inaction. Moreover, to the Court, the only fact that seems to count as an "affirmative act of restraining the individual's freedom to act on his own behalf" is direct physical control. Ante, at 200 (listing only "incarceration, institutionalization, [and] other similar restraint of personal liberty" in describing relevant "affirmative acts"). I would not, however, give Youngberg [489 U.S. 189, 207] and Estelle such a stingy scope. I would recognize, as the Court apparently cannot, that "the State's knowledge of [an] individual's predicament [and] its expressions of intent to help him" can amount to a "limitation . . . on his freedom to act on his own behalf" or to obtain help from others. Ante, at 200. Thus, I would read Youngberg and Estelle to stand for the much more generous proposition that, if a State cuts off private sources of aid and then refuses aid itself, it cannot wash its hands of the harm that results from its inaction. Youngberg and Estelle are not alone in sounding this theme. In striking down a filing fee as applied to divorce cases brought by indigents, see Boddie v. Connecticut, 401 U.S. 371 (1971), and in deciding that a local government could not entirely foreclose the opportunity to speak in a public forum, see, e. g., Schneider v. State, 308 U.S. 147 (1939); Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939); United States v. Grace, 461 U.S. 171 (1983), we have acknowledged that a State's actions such as the monopolization of a particular path of relief - may impose upon the State certain positive duties. Similarly, Shelley v. Kraemer, 334 U.S. 1 (1948), and Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), suggest that a State may be found complicit in an injury even if it did not create the situation that caused the harm. Arising as they do from constitutional contexts different from the one involved here, cases like Boddie and Burton are instructive rather than decisive in the case before 48

us. But they set a tone equally well established in precedent as, and contradictory to, the one the Court sets by situating the DeShaneys' complaint within the class of cases epitomized by the Court's decision in Harris v. McRae, 448 U.S. 297 (1980). The cases that I have cited tell us that Goldberg v. Kelly, 397 U.S. 254 (1970) (recognizing entitlement to welfare under state law), can stand side by side with Dandridge v. Williams, 397 U.S. 471, 484 (1970) (implicitly rejecting idea that welfare is a fundamental right), and that Goss v. [489 U.S. 189, 208] Lopez, 419 U.S. 565, 573 (1975) (entitlement to public education under state law), is perfectly consistent with San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 29 -39 (1973) (no fundamental right to education). To put the point more directly, these cases signal that a State's prior actions may be decisive in analyzing the constitutional significance of its inaction. I thus would locate the DeShaneys' claims within the framework of cases like Youngberg and Estelle, and more generally, Boddie and Schneider, by considering the actions that Wisconsin took with respect to Joshua. Wisconsin has established a child-welfare system specifically designed to help children like Joshua. Wisconsin law places upon the local departments of social services such as respondent (DSS or Department) a duty to investigate reported instances of child abuse. See Wis. Stat. 48.981(3) (1987-1988). While other governmental bodies and private persons are largely responsible for the reporting of possible cases of child abuse, see 48.981(2), Wisconsin law channels all such reports to the local departments of social services for evaluation and, if necessary, further action. 48.981(3). Even when it is the sheriff's office or police department that receives a report of suspected child abuse, that report is referred to local social services departments for action, see 48.981(3)(a); the only exception to this occurs when the reporter fears for the child's immediate safety. 48.981(3)(b). In this way, Wisconsin law invites - indeed, directs - citizens and other governmental entities to depend on local departments of social services such as respondent to protect children from abuse. The specific facts before us bear out this view of Wisconsin's system of protecting children. Each time someone voiced a suspicion that Joshua was being abused, that information was relayed to the Department for investigation and possible action. When Randy DeShaney's second wife told the police that he had "`hit the boy causing marks and [was] a prime case for child abuse,'" the police referred her [489 U.S. 189, 209] complaint to DSS. Ante, at 192. When, on three separate occasions, emergency room personnel noticed suspicious injuries on Joshua's body, they went to DSS with this information. Ante, at 192-193. When neighbors informed the police that they had seen or heard Joshua's father or his father's lover beating or otherwise abusing Joshua, the police brought these reports to the attention of DSS. App. 144-145. And when respondent Kemmeter, through these reports and through her own observations in the course of nearly 20 visits to the DeShaney home, id., at 104, compiled growing evidence that Joshua was being abused, that information stayed within the Department - chronicled by the social worker in detail that seems almost eerie in light of her failure to act upon it. (As to the extent of the social worker's involvement in, and knowledge of, Joshua's predicament, her reaction to the news of Joshua's last and most devastating injuries is illuminating: "`I just knew the phone would ring some day and Joshua would be dead.'" 812 F.2d 298, 300 (CA7 1987).) Even more telling than these examples is the Department's control over the decision whether to take steps to protect a particular child from suspected abuse. While many different people contributed information and advice to this decision, it was up to the people at DSS to make the ultimate decision (subject to the approval of the local 49

government's corporation counsel) whether to disturb the family's current arrangements. App. 41, 58. When Joshua first appeared at a local hospital with injuries signaling physical abuse, for example, it was DSS that made the decision to take him into temporary custody for the purpose of studying his situation - and it was DSS, acting in conjunction with the corporation counsel, that returned him to his father. Ante, at 192. Unfortunately for Joshua DeShaney, the buck effectively stopped with the Department. In these circumstances, a private citizen, or even a person working in a government agency other than DSS, would doubtless feel that her job was done as soon as she had reported [489 U.S. 189, 210] her suspicions of child abuse to DSS. Through its child-welfare program, in other words, the State of Wisconsin has relieved ordinary citizens and governmental bodies other than the Department of any sense of obligation to do anything more than report their suspicions of child abuse to DSS. If DSS ignores or dismisses these suspicions, no one will step in to fill the gap. Wisconsin's child-protection program thus effectively confined Joshua DeShaney within the walls of Randy DeShaney's violent home until such time as DSS took action to remove him. Conceivably, then, children like Joshua are made worse off by the existence of this program when the persons and entities charged with carrying it out fail to do their jobs. It simply belies reality, therefore, to contend that the State "stood by and did nothing" with respect to Joshua. Ante, at 203. Through its child-protection program, the State actively intervened in Joshua's life and, by virtue of this intervention, acquired ever more certain knowledge that Joshua was in grave danger. These circumstances, in my view, plant this case solidly within the tradition of cases like Youngberg and Estelle. It will be meager comfort to Joshua and his mother to know that, if the State had "selectively den[ied] its protective services" to them because they were "disfavored minorities," ante, at 197, n. 3, their 1983 suit might have stood on sturdier ground. Because of the posture of this case, we do not know why respondents did not take steps to protect Joshua; the Court, however, tells us that their reason is irrelevant so long as their inaction was not the product of invidious discrimination. Presumably, then, if respondents decided not to help Joshua because his name began with a "J," or because he was born in the spring, or because they did not care enough about him even to formulate an intent to discriminate against him based on an arbitrary reason, respondents would not be liable to the DeShaneys because they were not the ones who dealt the blows that destroyed Joshua's life. [489 U.S. 189, 211] I do not suggest that such irrationality was at work in this case; I emphasize only that we do not know whether or not it was. I would allow Joshua and his mother the opportunity to show that respondents' failure to help him arose, not out of the sound exercise of professional judgment that we recognized in Youngberg as sufficient to preclude liability, see 457 U.S., at 322 -323, but from the kind of arbitrariness that we have in the past condemned. See, e. g., Daniels v. Williams, 474 U.S. 327, 331 (1986) (purpose of Due Process Clause was "to secure the individual from the arbitrary exercise of the powers of government" (citations omitted)); West Coast Hotel Co. v. Parrish, 300 U.S. 379, 399 (1937) (to sustain state action, the Court need only decide that it is not "arbitrary or capricious"); Euclid v. Ambler Realty Co., 272 U.S. 365, 389 (1926) (state action invalid where it "passes the bounds of reason and assumes the character of a merely arbitrary fiat," quoting Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 204 (1912)).

50

Youngberg's deference to a decisionmaker's professional judgment ensures that once a caseworker has decided, on the basis of her professional training and experience, that one course of protection is preferable for a given child, or even that no special protection is required, she will not be found liable for the harm that follows. (In this way, Youngberg's vision of substantive due process serves a purpose similar to that served by adherence to procedural norms, namely, requiring that a state actor stop and think before she acts in a way that may lead to a loss of liberty.) Moreover, that the Due Process Clause is not violated by merely negligent conduct, see Daniels, supra, and Davidson v. Cannon, 474 U.S. 344 (1986), means that a social worker who simply makes a mistake of judgment under what are admittedly complex and difficult conditions will not find herself liable in damages under 1983. As the Court today reminds us, "the Due Process Clause of the Fourteenth Amendment was intended to prevent government [489 U.S. 189, 212] `from abusing [its] power, or employing it as an instrument of oppression.'" Ante, at 196, quoting Davidson, supra, U.S., at 348. My disagreement with the Court arises from its failure to see that inaction can be every bit as abusive of power as action, that oppression can result when a State undertakes a vital duty and then ignores it. Today's opinion construes the Due Process Clause to permit a State to displace private sources of protection and then, at the critical moment, to shrug its shoulders and turn away from the harm that it has promised to try to prevent. Because I cannot agree that our Constitution is indifferent to such indifference, I respectfully dissent. JUSTICE BLACKMUN, dissenting. Today, the Court purports to be the dispassionate oracle of the law, unmoved by "natural sympathy." Ante, at 202. But, in this pretense, the Court itself retreats into a sterile formalism which prevents it from recognizing either the facts of the case before it or the legal norms that should apply to those facts. As JUSTICE BRENNAN demonstrates, the facts here involve not mere passivity, but active state intervention in the life of Joshua DeShaney - intervention that triggered a fundamental duty to aid the boy once the State learned of the severe danger to which he was exposed. The Court fails to recognize this duty because it attempts to draw a sharp and rigid line between action and inaction. But such formalistic reasoning has no place in the interpretation of the broad and stirring Clauses of the Fourteenth Amendment. Indeed, I submit that these Clauses were designed, at least in part, to undo the formalistic legal reasoning that infected antebellum jurisprudence, which the late Professor Robert Cover analyzed so effectively in his significant work entitled Justice Accused (1975). Like the antebellum judges who denied relief to fugitive slaves, see id., at 119-121, the Court today claims that its decision, however harsh, is compelled by existing legal doctrine. On the contrary, the question presented by this case [489 U.S. 189, 213] is an open one, and our Fourteenth Amendment precedents may be read more broadly or narrowly depending upon how one chooses to read them. Faced with the choice, I would adopt a "sympathetic" reading, one which comports with dictates of fundamental justice and recognizes that compassion need not be exiled from the province of judging. Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) ("We will make mistakes if we go forward, but doing nothing can be the worst mistake. What is required of us is moral ambition. Until our composite sketch becomes a true portrait of humanity we must live with our uncertainty; we will grope, we will struggle, and our compassion may be our only guide and comfort").

51

Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father, and abandoned by respondents who placed him in a dangerous predicament and who knew or learned what was going on, and yet did essentially nothing except, as the Court revealingly observes, ante, at 193, "dutifully recorded these incidents in [their] files." It is a sad commentary upon American life, and constitutional principles - so full of late of patriotic fervor and proud proclamations about "liberty and justice for all" - that this child, Joshua DeShaney, now is assigned to live out the remainder of his life profoundly retarded. Joshua and his mother, as petitioners here, deserve - but now are denied by this Court - the opportunity to have the facts of their case considered in the light of the constitutional protection that 42 U.S.C. 1983 is meant to provide. [489 U.S. 189, 214]

14. W ILSON V. S TATE, 33 A RK. 557 (1878) (B UT TO 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). WILSON v. STATE OF ARKANSAS. [Syllabus] 1. CRIMINAL PLEADING: Indictment, when should negative exceptions in a statute. When there is an exception in the enacting clause of a statute, it must be negatived in the indictment, but when a statute contains provisos and exceptions in distinct clauses it is not necessary to state that the defendant does not come within the exceptions, or to negative the proviso it contains. 2. EVIDENCE: Declarations of prisoner. Res gestae. The statements of a defendant of his intended use of a pistol at the time he borrowed it of the witness, and a like statement when he exhibited it to another witness, were admissible in evidence as part of the res gestae. 3. CRIMINAL LAW: Carrying weapons: Constitutional right to bear arms. The Legislature may to some extent regulate the mode and occasion of wearing war arms, but to prohibit the citizen from wearing or carrying a war arm except upon his own premises or when on a journey, or when acting as or in aid of an officer, is an unwarranted restriction upon his constitutional right to keep and bear arms. APPEAL from Arkansas Circuit Court. Hon. J. A. WILLIAMS, Circuit Judge. [Opinion] ENGLISH, C. J.:

52

Chancy Wilson was indicted in the Circuit Court of Arkansas county, at March term, 1878, as follows: "The grand jury, etc., etc., accuse Chancy Wilson of the crime of carrying side arms, committed as follows, to-wit: The said Chancy Wilson in the county aforesaid, on or about the 14th day of February 1878, did then and there unlawfully carry a pistol as a weapon, contrary to the statute in such case made and provided, and against the peace and dignity of the State," etc. The defendant demurred to the indictment, the court overruled the demurrer, he was tried and convicted, a new trial was refused him, and he took a bill of exceptions and appealed. I. It is submitted for appellant that the indictment is bad, because it does not negative the exceptions contained in the proviso of the act under which it was preferred. Acts of 1874-5 p. 155. When there is an exception in the enacting clause of a statute it must be negatived; but when a statute contains provisos and exceptions in distinct clauses, it is not necessary to state in the indictment that the defendant does not come within the exceptions, or to negative the proviso it contains. Britton v. State, 10 Ark., 301; Matthews v. State, Ib. 485; Shaver v. State, Ib. 259; Rone v. State, 18 Ib. 113; 1 Wharton Cr. L. (6 Ed.) p. 378. The enacting clause of the statute makes it a misdemeanor, punishable by fine, for any person to wear or carry as a weapon, any pistol, dirk, butcher or bowie knife, sword or spear in a cane, brass or metal knucks, or razor. In a proviso, exceptions are made in favor of persons on their own premises, or travelling through the country on a journey with baggage, officers of the law engaged in the discharge of official duties, or persons summoned by an officer to assist in the execution of process, or a private person authorized to execute process. It is sufficient for the indictment to charge the offense prohibited by the enacting clause of the statute, and if the accused is within any of the exceptions mentioned in the proviso, it is matter of defense. It follows that the court below did not err in overruling the demurrer to the indictment. II. It was proven on the trial that appellant borrowed of witness, Bowers, a large army size six shooter, a revolving pistol, 44 caliber, eight inches in the barrel, such as is commonly used in warfare, stating at the time he borrowed it, that he was going over to Pearman's to shoot wild hogs. On the next day he went to Pearman's, stated to him the purpose of his visit, and while conversing with him, before going into dinner, pulled the pistol out of his boot, cocked it a few times to see if it would revolve, and then put it around under his coat, and went in to dinner. The court excluded from the jury the statement made by the appellant to Bowers, when he borrowed the pistol from him, as to the use he intended to make of it, and a like statement made by appellant at Pearman's where he took the pistol from his boot in his presence, etc. These declarations were admissible as part of the res gestae. Pitman v. State, 22 Ark., 357. III. 53

The appellant, among other instructions, asked the court to charge the jury that if they believed from the evidence, that the pistol carried by him was an army size pistol, such as are commonly used in warfare, they should acquit; which was refused by the court. In Fife v. State, 31 Ark., 455, on review of authorities, we held that the Legislature might constitutionally prohibit the carrying of such pistols and other arms easily concealed about the person, as are used in quarrels, brawls and fights between maddened individuals, but that the Constitution guaranteed to the citizens the right to keep and bear arms for defense, etc. And it was indicated in the opinion that the Legislature might, in the exercise of the police power of the State, regulate the mode of wearing war arms, and no doubt the occasions of wearing such arms may be to some extent regulated. Thus it has been made an offense to wear a pistol, etc., concealed (Gantt's Dig., sec. 1517) and this may well apply to the character of the pistol used as a war arm. So hunting with a gun with intent to kill game, or shootings for amusement, on the Sabbath, are made offenses. Gantt's Dig., sec. 162. No doubt in time of peace, persons might be prohibited from wearing war arms to places of public worship, or elections, etc. Andrews v. State, 3 Heiskel, 182. But to 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. The judgment is reversed and the cause remanded for a new trial.

If Mr. Barghaan was truly honest with the attorney’s duty of candor to the tribunal as he claims above then he should have disclosed the fact there is a dissenting opinion by Circuit Judge Sentelle in the Seegars case. That dissenting opinion is included herein:

15. JUDGE S ENTELLE’S D ISSENTING O PINION IN S EEGARS V. G ONZALES, 396 F.3D 1248 (D.C. C IR. 2005), CERT. DENIED, 126 S. C T. 1187 (2006): SENTELLE, Circuit Judge, dissenting: While I commend the balanced tone and thoroughness of the majority opinion, I find that after examining the authorities discussed therein, I reach a different conclusion. As the court relates, plaintiffs seek to challenge the provisions of the District of Columbia’s Criminal Code limiting the possession of pistols, as violative of their Second Amendment rights to keep and bear arms. The District Court held that they had no standing. Today this court has affirmed. 54

I would find standing based on the authority of cases cited by the majority. The record offers essentially undisputed evidence of the appellants’ intent to engage in gunrelated conduct prohibited by the challenged Code provisions, but for the existence of those provisions. Appellants adequately allege and argue that this conduct is protected by the Second Amendment to the United States Constitution. The Supreme Court has said, as the majority quotes: 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. Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (citing Doe v. Bolton, 410 U.S. 179, 188 (1973)) (internal quotation marks omitted). The majority’s further analysis of United Farm Workers is directly on point: In United Farm Workers, a union challenged provisions of a state statute that made it an unfair labor practice, punishable with criminal penalties, to encourage consumer boycotts of agricultural products by the use of “dishonest, untruthful and deceptive publicity.” 442 U.S. at 301. The state argued that the criminal penalty provision had not yet been applied and might never be applied to unfair labor practices. Id. at 302. The Court found standing, saying that “the State has not disavowed any intention of invoking the criminal penalty provision against unions that commit unfair labor practices,” id., and that the union’s fear of prosecution was not “imaginary or wholly speculative,” id. Thus United Farm Workers appeared to find a threat of prosecution credible on the basis that plaintiffs’ intended behavior is covered by the statute and the law is generally enforced. Maj. Op. at 7. As appellants allege a similarly realistic fear of prosecution, I would hold United Farm Workers controlling, and conclude that appellants have standing to bring the Second Amendment challenge. As the majority notes, a long line of cases upholds preenforcement review of First Amendment challenges to criminal statutes by plaintiffs with bases for standing no different than that asserted by appellants herein for their Second Amendment challenge. For example, in Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988), plaintiffs brought a suit challenging the constitutionality of a newly enacted Virginia statute criminalizing the display for commercial purposes of visual or written material that “depicts sexually explicit nudity, sexual conduct, or pseudo-masochistic abuse which is harmful to juveniles.” Va. Code § 18.2-391(a) (Supp. 1987). The Commonwealth of Virginia argued that plaintiffs lacked standing, because they had not yet been prosecuted under the Act. The Supreme Court, in discussing the standing question, declared itself “not troubled by the pre-enforcement nature of this suit.” American Booksellers, 484 U.S. at 393. Because “the state ha[d] not suggested that the . . . law will not be enforced,” and the Court saw no reason to assume that it would not be, the Court found standing, “conclud[ing] that plaintiffs have alleged an actual and well-founded fear that the law will be enforced against them.” Id. I see no distinction between that case and this. As the Supreme Court further noted in American Booksellers, the danger of the statute before it could “be realized even without an actual prosecution.” Id. Needless to say, the harm lay in self-censorship–that is, the curtailing of an otherwise constitutional activity because of an allegedly unconstitutional criminal statute. The only difference between that harm and the harm alleged in this case is that there it was to First 55

Amendment interests, here to Second. I know of no hierarchy of Bill of Rights protections that dictates different standing analysis. I acknowledge, as the majority notes, that a case from this circuit, Navegar, Inc. v. United States, 103 F.3d 994 (D.C. Cir. 1997), is in tension with “cases upholding preenforcement review of First Amendment challenges to criminal statutes.” Maj. Op. at 10. In Navegar, plaintiff-appellants sought declaratory judgment striking down as unconstitutional provisions of the Violent Crime Control and Law Enforcement Act of 1994, which outlawed firearm products manufactured by appellants, some by name, and others by description. While we found standing to challenge the regulation of the named products, we held there was no standing as to the products outlawed only by description. See Navegar, 103 F.3d at 1001. The Navegar court found the threat of prosecution under the provisions outlawing products by description insufficiently imminent to support standing on the record before it. Those latter provisions outlawed firearms in language so general that the court found “it impossible to foretell precisely how these provisions may be applied.” Id. Further, the Navegar court found insufficient evidence of the government’s intent to enforce the “generic portions of the Act” against the specific parties before it. Id. While I acknowledge that the majority is correct that Navegar can be read as controlling the case before us and barring standing, I think it is distinguishable. The allegedly constitutionally protected conduct in the record before us is clearly defined and clearly unlawful under a statute that the District apparently enforces regularly, and under which there is certainly no doubt that plaintiffs reasonably apprehend enforcement. I would therefore find the line of cases represented by American Booksellers, rather than Navegar, controlling. For the reasons set forth above, I respectfully dissent.

16. IS THE U.S. D EPARTMENT OF J USTICE A DHERING TO THEIR M ISSION S TATMENT’S “F AIR AND IMPARTIAL A DMINISTRATION OF J USTICE FOR ALL A MERICANS? I T HINK N OT! If ensuring fair and impartial administration of justice for all Americans is part of the U.S. Department of Justice’s Mission Statement and if the Justice Department’s policy that the Second Amendment “secures a right of individuals generally, not a right of States or a right restricted to persons serving in militias” and if Mr. Barghaan truly believes in the Separation of Powers Doctrine as he so stipulated in his Motion to Dismiss then he should have complied with his employer’s policy on the Second Amendment and filed a Motion of Nolo Contendre. Nope! Instead, he subscribes and caters to the U.S. District Court for the District of Columbia’s collectivist’s view on the Second Amendment allowing the Judicial Branch to dictate what the Executive Branch is to file in its Court. That’s not exactly Separation of Powers now is it! The problem of whether or not a government official (i.e., an Assistant U.S. Attorney) should govern his judgments and activities more closely in line with constitutional limits rather that 56

institutional limits is covered by the inclusion in its entirety of Brannon P. Denning GUN SHY : THE SECOND AMENDMENT AS AN “UNDERENFORCED CONSTITUTIONAL NORM ” Harvard Journal of Law & Public Policy, 21 Harv. J.L. & Pub. Pol’y 719 (Summer, 1998) beginning on page 329 in my Civil RICO Act Complaint. Mr. Barghaan committed a fraud upon the U.S. District Court for the District of Columbia by using only part of a paragraph from Capt. J. P. Brusseau’s letter, dated April 19, 2002, as supporting evidence for Motion to Dismiss.

I am impressed with your scholarship 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. 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.3 My decision, after considering all the material you have submitted, is that it would not be in the best interest of marine safety or security4 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.

Mr. Barghaan knew that the omitted portion of that paragraph would be the Achilles heel to any defence the U.S. Government fabricate. Indeed! The entire case hinges upon the single determining factor on whether or not Capt. Brusseau had discretion or whether he had the compelling ministerial duty mandated by his Oath of Office to approve my application for the Second Amendment endorsement for National Open Carry Handgun because open carry in interstate travel is the undeniable constitutional norm. I hereby use that paragraph above in its entirety as evidence supporting my allegation that Capt. Brusseau DID NOT, in fact and law, have the discretion to deny my application for the National Open Carry Handgun endorsement for two reasons: (1) my application for the National Open Carry Handgun was based upon the Second, Fifth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments; and (2) Capt. Brusseau’s Oath of Office to support and defend the U.S. Constitution precluded any discretion when my application is based on the Constitution

3

Emphasis is mine.

4

Emphasis is mine. 57

I have ample evidence in my Civil RICO Act Complaint to show that firearms possession by those possessing Merchant Mariners Documents would, in fact and law, be in the best interest of marine safety or security. And I have a First Amendment right to petition and a Fourteenth Amendment right to substantial and procedural due process to prove this at trial unless the Court believes, as Mr. Barghaan appears to believe, that I have no such rights.

17. M. E LIZABETH M AGILL, B EYOND P OWERS AND B RANCHES IN S EPARATION OF P OWERS L AW, U NIVERSITY OF V IRGINIA S CHOOL OF L AW, P UBLIC L AW AND L EGAL T HEORY R ESEARCH P APERS S ERIES, W ORKING P APER N O. 01-10. D ECEMBER 2001: Part I of this Article presents and criticizes the two central features of current separation of powers thinking. The burden of this Part is that these ideas fail so completely that they should be abandoned, making room for a reconceptualization of separation of powers law that forgoes reliance on the familiar, but unhelpful, guides of three powers and three branches. Part II starts the reconstruction effort. The criticisms offered here diagnose particular failings of current doctrine and suggest the more promising paths that doctrine should pursue.

Part II: Beyond Powers and Branches Conventional approaches to separation of powers aspire to identify and separate three different powers in three different branches and to assure that some appropriate level of authority is maintained among the three branches. As Part I argued, both parts of that effort fail: The functions are difficult to distinguish and seem destined to blend together at the margins, and maintaining some appropriate allocation of authority among branches is a fruitless enterprise, in part because the inquiry itself is incoherent--branches are not bodies with unitary interests, but are made up of diverse entities and individuals with varying concerns that do not simply correspond to branch affiliation. Without an understanding of how functions could be kept separate, or how branches could be kept balanced, conventional approaches have difficulty getting off the ground. We should see that enterprise for what it is, a failure, and abandon it. That failure does not mean there are no helpful ways to think about the distribution of government authority within a separation of powers system. To be sure, reconstruction of separation of powers law will be difficult. Identifying the precise contours of that doctrine is beyond the scope of this Article. We cannot start that effort, however, without understanding exactly where current law goes wrong and in that sense this Article contributes to that effort. But the criticisms offered here do more than clear the way for a reconceptualization of separation of powers law; they assist in that effort. Taking seriously some of the failings of current law not only reveals that we are asking the wrong questions, it helps identify the right ones. Reconstructing separation of powers law must begin by recalling its aims. Most broadly, those aims are to fragment the exercise of government authority and guarantee that fragmentation. A more fine-grained appreciation of these objectives understands the effort to disperse power as having two distinct aspects. One is the diffusion of government authority among a number of decisionmakers in order to

58

assure that no single decisionmaker (or institution) exercises all that authority.117 The point is familiar: we do not want one, or even a few, actors to control all government authority because such an arrangement increases the risk that state power will be abused in some unquestionably awful way. What is important on this understanding is that a large enough range of decisionmakers share in the exercise of government authority. It does not much matter what we call the power those decisionmakers exercise; it just matters that government authority is diffused among them. The effort to divide power and assure that it remains so divided also has another, more ambitious and complicated, component: matching the exercise of certain types of government authority with specific types of government decisionmakers.118118 This aspect of the effort to fragment government authority is best illustrated by the widely held intuition that individualized disputes should be adjudged by decisionmakers who have a duty to be impartial and, at the federal level at least, are insulated from direct electoral politics. For this sort of effort to fragment power, the type of government power matters quite a bit because certain categories of government authority can be appropriately exercised only by corresponding decisionmakers. Orthodox approaches to separation of powers seek to satisfy both these aims through the mechanisms analyzed in Part I. They aspire to identify and separate the three functions into three institutions and assure some balance among those institutions. In theory at least, adhering to the conventional approach would mean that power would generally be diffused among three government institutions and that diffusion would occur in a specific way: Three different powers would be exercised by three corresponding branches. Of course, this Article has argued that we cannot tell the difference between the powers in contested cases and that there is no such thing as a branch in the sense assumed by conventional approaches. This might sound like bad news, but it is not because that critique offers important lessons for both parts of the fragmentation effort. *** The most important lesson is that, if one is interested in assuring that government authority is fragmented in a general way, the failure of the conventional approaches need not be lamented. It is true, we cannot identify the differences between the three powers and cannot speak coherently of balanced branches. But we do not need to succeed with that effort in order to achieve fragmented government authority. In the process of noticing that there is no such thing as three essential powers exercised by three undifferentiated entities called branches, we also should have noticed that, in fact, the exercise of government authority is highly fragmented–it is just not according to the three-powers-in-three-branches formula. Rather, we have a much more complicated form of fragmentation in the political system that has evolved. In that system, government authority is dispersed among a group larger than the usual suspects of the three branches. State power is diffused among an enormous, and diverse, array of decisionmakers who populate what we call the branches. Within Congress, a House committee chair; a ranking member of a Senate committee; the Deputy Whip in the Senate or the Majority Leader in the House. Within the executive, an agency administrator; the Director of the Office of Management and Budget; a

117

Martin H. Redish, THE CONSTITUTION AS POLITICAL STRUCTURE (1995) at 102-08; M. Elizabeth Magill, THE REAL SEPARATION IN SEPARATION OF POWERS LAW, 86 VA. L. REV. 1127, at 229 (2000) 118

See, e.g., David P. Currie, THE DISTRIBUTION OF POWERS AFTER BOWSHER, 1986 Sup. Ct. Rev. at 21-37 59

United States Attorney. Within the judiciary, a magistrate; a bankruptcy judge; a District Court judge; appellate judges. Each of these decisionmakers plays some important role in the exercise of state power. If diffused government authority is what we are after, we have it, in spades. This kind of fragmentation is complicated, even chaotic, but it is also our assurance against threatening concentrations of government power. These many and varied government actors can be counted on to protect their slice of decisionmaking authority and in that way they will naturally work against concentrations of government authority.119119 That government decisionmakers will protect their turf may be intuitive, but that intuition is bolstered by the fact that these actors have diverse incentives, making the risk that a critical mass of them will collude together to concentrate power (and hence be in a position to abuse that authority) quite slim. These government decisionmakers operate under different selection and tenure rules and thus have distinct constituencies (electoral or otherwise), are located within institutions and subinstitutions with separate internal organization and norms, and have varied ways of making policy decisions. The factors that push and pull those decisionmakers in different directions are about as multifarious as can be imagined. It is this kind of variation among multiple decisionmakers that supplies the kind of political culture that we have. This political culture surely has its drawbacks. It is far from cohesive; within its confines, it is even difficult to translate an overwhelming electoral mandate into dramatic policy change.120 But it also has advantages: it offers many points of entry into the policymaking process and many types of decisionmakers with varied incentives resulting from their distinct constituencies, institutional location, and ways of doing business. Whatever its normative merits, however, this system exhibits the trait sought by the conventional approaches: within it, government authority is fragmented. That we operate in a system where government authority is highly fragmented, and is likely to remain so, has significant implications for separation of powers doctrine. It means that a piece of that doctrine is just concerned with the wrong thing. When courts or commentators stress the importance of keeping the exercise of government functions in distinct branches, or assert that one branch will be aggrandized by an arrangement, one fear driving these claims is that the failure to separate functions or prevent aggrandizement will lead to a dangerous concentration of government power in one branch of government.121 At a doctrinal level, this concern about concentration

119

See James Q. Wilson, BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT, at 179-95 202-05 (1989) (key to agency officer’s success is location of external constituencies wherever they may be found, including key committees and members in Congress, other parts of the executive, or important interest groups) 120

See Bruce Ackerman, THE NEW SEPARATION OF POWERS, 113 Harv. L.rev. 633, 642-48 (2000). See also David R. Mayhew, DIVIDED WE GOVERN: PARTY CONTROL, LAWMAKING, AND INVESTIGATIONS, 1946-1990 (1991) (arguing that there is little measurable difference in significant legislative output and frequency of Congressional investigations based on unified or divided government). 121

See Martin H. Redish, THE CONSTITUTION AS POLITICAL STRUCTURE (1995) at 102-08; Steven G. Calabresi & Saikrishna B. Prakash, THE PRESIDENT’S POWER TO EXECUTE THE LAWS, 104 Yale l.J. at 559-65 (1994); David P. Currie, T HE D ISTRIBUTION OF POWERS AFTER BOWSHER, 1986 Sup. Ct. Rev. at 19; 4Abner S. Greene, CHECKS AND BALANCES IN AN ERA OF PRESIDENTIAL LAW MAKING, 61 U. Chi. L. Rev. 123, 165 (1994); Gary Lawson, THE RISE AND RISE OF THE ADMINISTRATIVE STATE, 107 Harv. L. Rev. at 1248-49 (1994); M. Elizabeth Magill, THE REAL SEPARATION IN SEPARATION OF POWERS LAW, 86 Va. L. Rev. at 1183-84 (2000); Thomas W. Merrill, THE 60

of state authority arises in numerous contexts: courts and commentators debate whether administrative agencies represent an impermissible combination of government functions,122 whether the line-item veto strengthened the executive,123 whether the legislative veto aggrandized the Congress,124 or whether the executive has, as the result of changes over time, become “the most dangerous branch” such that Congress should be permitted to take action to counteract that phenomenon.125 Each of these debates is, in part, about whether a particular branch of government has or will accumulate excessive power. But once we recognize that government power can be, and is, diffused within a branch, that fragmentation of state power need not (indeed cannot be comprehensibly understood to) be among branches, the concern that an arrangement concentrates power in a branch becomes anachronistic. Whatever else the line-item veto or the legislative veto would do--and perhaps there are separate reasons to be concerned about them--they would barely make a dent in the extensive fragmentation of government authority that exists. With or without those devices, government authority would remain diffused, widely so, among varied decisionmakers. Whether state authority is fragmented at exactly the right level is a distinct and difficult question. Some claim that government authority is far too fragmented in our system.126 But trying to maintain the ideal level of diffusion of state power would be a futile exercise. If the arguments contained in Part I.B. are correct, it would not be possible to design a doctrine that guaranteed just the right level of dispersal of government authority. That enterprise would flounder in much the same way that the effort to balance the branches flounders: we would have to articulate an ideal level of fragmented power, identify the amount of fragmentation at any point in time, and predict whether an arrangement would threaten to undermine the appropriate level. To be sure, it is not incoherent to talk about achieving fragmentation of state power in the same way that it is incoherent to talk about maintaining a balance among

CONSTITUTIONAL PRINCIPLE OF SEPARATION OF POWERS, 1991 Sup. Ct. Rev. at 229. 122

See David P. Currie, THE DISTRIBUTION OF POWERS AFTER BOWSHER, 1986 Sup. Ct. Rev. at 19-20; Gary Lawson, THE RISE AND RISE OF THE ADMINISTRATIVE STATE, 107 Harv. L. Rev. at 1237-41 (1994); 123

Clinton v. City of New York, 524 U.S. 417, 451-52 (Kennedy, J., concurring); H. Jefferson Powell & Jed Rubenfeld, LAYING IT ON THE LINE: A DIALOGUE ON LINE ITEM VETOES AND SEPARATION OF POWERS, 47 DUKE L.J. 1171, at 1196 (1998)(line-item veto strengthens the executive); Neal E. Devins, IN SEARCH OF THE LOST CHORD: REFLECTIONS ON THE 1996 ITEM VETO ACT, 47 CASE W. RES. L. REV. 1605, 1624-25 (1997) (line-item veto does not unduly strengthen the executive). 124

A. Michael Froomkin, THE IMPERIAL PRESIDENCY’S NEW VESTMENTS, 88 NW. U. L.REV. at 1368 (1994) (legislative veto aggrandizes Congress); Abner S. Greene, CHECKS AND BALANCES IN AN ERA OF PRESIDENTIAL LAW MAKING, 61 U. Chi. L. Rev. at 158-62 (1994); 125

William N. Eskridge, Jr. and John Frerejohn, THE ARTICLE I, SECTION 7 GAME, 80 Geo. L.j. at 533 (1992) (power shift to the executive); Martin S. Flaherty, THE MOST DANGEROUS BRANCH, 105 Yale L.J. 1725 (1996) (same). But see Steven G. Calabresi, SOME NORMATIVE ARGUMENTS FOR THE UNITARY EXECUTIVE, 48 Ark. L. Rev. at 31-3 (1995) (reviewing arguments that executive is now relatively weakened compared to other branches). 126

Such claims are the centerpiece of arguments against separation of powers systems. See, e.g., Giovanni Sartori, COMPARATIVE CONSTITUTIONAL ENGINEERING 86-91 (1993); SEPARATION OF POWERS–DOES IT STILL WORK? (Robert A. Goldwin and Art Kaufman, eds., 1986); Bruce Ackerman, THE NEW SEPARATION OF POWERS, 113 HARV. L.REV. 633, 642-48 (2000). 61

branches.127 Even so, the other difficulties would prevent such an effort from being successful. Despite the impossibility of designing a doctrine that perfectly polices the extent of the fragmentation of government authority, we should not miss the significance of the insight that we operate in a system where state power is widely distributed, albeit not only on the three-branch metric. Government authority is dispersed among many decisionmakers, and, given their varied incentives, the likelihood of that authority being consolidated in just a few hands is very small. Completely assessing or controlling the extent of that fragmentation is probably impossible. Nonetheless, the amount and character of that diffusion of state power should be more than sufficient to put to rest concerns about dangerous concentrations of power. Saying anything more precise than that is difficult. But saying that is quite important. *** The lesson for the more finely-tuned aspect of the fragmentation effort is more modest. That aspect aspires to something more than generic diffusion of state power among varied decisionmakers; state power must be dispersed in a particular way–certain types of power must be matched with certain types of decisionmakers.128 There are complicated, not always stated, reasons for these matches. Beliefs about the correspondence between a power and a decisionmaker are based on intuitions about the suitability of types of decisionmakers (a single person, rather than a collegial body, must decide this sort of question)129 or normative convictions, such as what liberal democracy requires (a multi-member, broadly representative, elected body must make this kind of decision).130 In pursuit of this type of fragmentation, conventional approaches to separation of powers seek to identify the three government functions and make certain that they are exercised by the corresponding institution. But we cannot possibly assure the right union between power and branch because, as Part I argued, we cannot tell the difference between the powers in contested cases and we should not think of institutions as if they were monolithic entities. That does not mean there are no useful ways to think about what types of

127

See supra notes 110-116 and accompanying text.

128

David P. Currie, THE DISTRIBUTION OF POWERS AFTER BOWSHER, 1986 Sup. Ct. Rev. at 21-23, 31-32, 37.

129

Allocating government authority based on institutional competence is classically associated with the legal process school. See William N. Eskridge and Philip P. Frickey, AN HISTORICAL AND CRITICAL INTRODUCTION TO THE LEGAL PROCESS, at pp. lx-lxi, xci-xcvi in Henry M. Hart, Jr. and Albert M. Sacks, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (Eskridge & Frickey, eds. 1994). For an example of a separation of powers commentator who draws on that tradition, see David P. Currie, THE DISTRIBUTION OF POWERS AFTER BOWSHER, 1986 Sup. Ct. Rev. at 31 (executive power vested in President, inter alia, because of “the need to concentrate executive power in the hands of a single person”). 130

See David P. Currie, THE DISTRIBUTION OF POWERS AFTER BOWSHER, 1986 SUP. CT. REV. , at 22 (legislative power vested in the Congress because “it was important to give some substantial role in lawmaking to a body directly elected by the people” and “the value of having legislative decisions made by a collective body in which various interests were represented”); Gary Lawson, THE RISE AND RISE OF THE ADMINISTRATIVE STATE, 107 Harv. L. Rev. at 1239 (“Congress must make whatever policy decisions are sufficiently important to the statutoryscheme at issue so that Congress must make them.”). See also Martin S. Flaherty, THE MOST DANGEROUS BRANCH, 105 Yale L.J. at 1738-42 (disputes over the unitary executive can be understood as disputes about the value of accountability versus the value of balance among the branches of government). 62

decisionmakers should exercise different kinds of government authority. It will just make us see that effort in a new light. Matching the exercise of certain types of power with corresponding decisionmakers is, to say the least, an ambitious undertaking. Assertions that some actors are most capable of, or normatively required to, exercise particular state powers entail a host of difficult, and vexing, questions. At the broadest level, those questions include: Which policy judgments must the legislature make and which can be left to those who implement the law?131 What sorts of decisions should, or should not, be made by decisionmakers who enjoy the independence afforded federal judges?132 Is the President best suited to have expansive powers over foreign affairs and military action?133 133 Answers to those questions depend on normative convictions that are contested and empirical assessments that are complicated. But it is these sorts of questions--albeit sometimes in less elevated form, as in whether administrative agencies can adjudicate controversies or whether an Independent Counsel is permissible--that lurk in the background of disputes about the proper allocation of government authority. Those questions will obviously remain contested for years to come. That these questions are vexing does not mean that they should not be asked. But current separation of powers doctrine asks them in the wrong way. The critique offered here identifies a particular failing of the questions we ask in our effort to assure the appropriate assignment of government authority and simultaneously suggests the more promising questions that we should pursue. The basic failing is a mismatch between the nature of the distribution of government authority and the doctrine that purports to evaluate that distribution. Our system operates, not at the level of powers or branches, but at the more particular level of government decisionmaker. State power is dispersed among a large, and diverse, set of government decisionmakers; what they do cannot neatly be sorted into three categories or power, nor can their branch affiliation be considered the determinative factor in how they will make their decisions. But current doctrine operates as if there were essential powers called legislative, executive, and judicial power that can be appropriately matched with branches called the legislative, executive, and judicial branches. Those inquiries, as Part I argued, are fruitless. But the point goes beyond that: for a doctrine that seeks to assure a suitable assignment of government authority among varied actors, that abstract and lofty level is off track. The categories do not meaningfully describe the powers exercised, nor does the doctrine ask questions that help predict how government authority will be exercised. In other words, the doctrine should descend from its perch and focus on the fact that is government actors, not powers and branches, that matter.

131

This is the question at the heart of debates over the appropriateness and wisdom of Congressional delegation of policy questions to administrative agencies. The prime modern work, which characterizes Congressional delegation as abdication of the most serious sort, is Theodore J. Lowi, THE END OF LIBERALISM (1969). 132

Questions about the independence and role of the federal courts arise in many contexts, most prominently the debate over the advisability and proper scope of judicial review. The familiar classics of this debate include Alexander Bickel, THE LEAST D ANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962) and John Hart Ely, DEMOCRACY AND DISTRUST (1980). 133

Again, this is the question at the center of many long-standing disputes. See John Hart Ely, WAR AND RESPONSIBILITY (1993); Peter M. Shane and Harold H. Bruff, SEPARATION OF POWERS LAW 585-854 (1996). 63

Before we can determine how state power should be distributed among varied government decisionmakers, we first need to know how those decisionmakers have or will exercise authority. To do that, we need to understand how officials do or will exercise their authority; this requires a different analysis than the powers-and-branches approach that current doctrine contemplates. Under the structure of current doctrine, the debate about the legislative veto focused on whether a subset of the Congress was given the power to legislate.134 Discussion of the permissibility of the line-item veto centered, in part, on whether it gave the executive the power to legislate.135 The disputes about the Independent Counsel and the U.S. Sentencing Commission followed a slightly different pattern: they focused, not on a characterization of the type of power exercised, but instead on whether those arrangements undermined the exercise of the relevant branch’s function.136 But analyzing any of these questions by characterizing the power exercised and discerning whether it is in the right branch, or even asking whether, as in the case of the Independent Counsel or the Sentencing Commission, the arrangement interfered with the branch’s exercise of its function, is the wrong way to think about them. These questions send us looking in the wrong direction — trying to define the meaning of executive power, or to identify a core function of a branch and judge whether it is threatened. Those inquiries do nothing to help us determine how state authority is likely to be exercised. To do that, we need to focus on the incentives of government actors. And that focus must be, not at the level of a branch of government, but at a less elevated level, one that is meaningful to those government actors. Such analysis would work much closer to the ground — investigating the relevant decisionmakers, the context in which they act, the process by which they will reach their decisions, and the constraints on their actions. To see how such a doctrine might look, consider the question of the permissibility of the mix of powers that many administrative agencies exercise. Within the framework of conventional approaches, there are two competing questions to ask. For some, that debate should center on whether such agencies exercise solely the power assigned to the branch in which they sit, executive power, or whether they also impermissibly exercise judicial power (owing to their authority to adjudicate controversies) and legislative power (because of the broad discretion they have to formulate the law).137 For those skeptical of such functional niceties, the question should be whether the mix of powers those agencies exercise serves to undermine the core functions of the

134

INS v. Chadha, 462 U.S. 919 (1983).

135

See Clinton v. City of New York, 524 U.S. 417, 451-52 (1998) (Kennedy, J., concurring); Powell & Jed Rubenfeld, LAYING IT ON THE LINE: A DIALOGUE ON LINE ITEM VETOES AND SEPARATION OF POWERS, 47 Duke L.J. 1171, at 1172-80. 136

Morrison v. Olson, 487 U.S. 654, 689-96 (1988); Mistretta v. United States, 488 U.S. 361, 382-97

(1989). 137

See e.g., CFTC v. Schor, 478 U.S. 833, 859-67 (1986) (Brennan, J., dissenting) (arguing that adjudication of state-law counter-claim by administrative tribunal is unconstitutional exercise of judicial power by non-Article III entity); Gary Lawson, THE RISE AND RISE OF THE ADMINISTRATIVE STATE, 107 Harv. L. Rev. at 1237-41; supra notes 10-22 and accompanying text. Cf. Morrison v. Olson, 487 U.S. 654, 705-10 (1988) (Scalia, J., dissenting) (arguing that prosecution is an executive function and therefore President must be able to fire at-will prosecutor exercising that power). 64

executive, legislative, or judicial branches.138 But both routes are off track. To evaluate whether an administrative agency should be permitted to exercise a range of powers, we first need to understand how the agency does or can be expected to exercise those powers. Labeling the powers or asking whether, in some broad-brush way, a branch is threatened by the arrangement, does not help us do that. Instead, we should seek to understand the incentives of the actors who will exercise that power in a pointed enough way that it helps us comprehend how those powers have will be exercised. Some legal observers pursue this kind of analysis, but far too few.139 A sufficiently grounded inquiry into officials’ incentives requires a contextual investigation of how state power will be exercised: understanding the organization of the agency; the process by which its actors will make decisions; and the constraints on its decisionmaking.140 At a minimum, the analysis must take account of the complicated web of subconstitutional law that governs what agencies do,141141 given

138

Independent agencies arguably threaten the integrity of each branch: the executive because of appointments arrangements that limit the President’s ability to fire at-will officials who head those agencies; the legislative because of the expansive discretion agencies’ can have to implement the law; and the judicial because of the adjudicatory functions some agencies are assigned. For examples of this undermine-the-branch reasoning in the context of administrative agencies, see CFTC v. Schor, 478 U.S. 833, 851 (1986) (upholding adjudication of state-law counter-claim by administrative tribunal, inter alia, because such adjudication did not “impermissibly threaten the institutional integrity of the Judicial Branch”); Peter L. Strauss, THE PLACE OF AGENCIES IN GOVERNMENT: SEPARATION OF POWERS AND THE FOURTH BRANCH, 84 Colum. L. Rev. 573 (1984) 139

Assessing the advisability of an allocation of state power can of course start with a close study of how that power has been exercised. In an influential study, Professors Bruff and Gellhorn did just that with the legislative veto. See Harold Bruff & Ernest Gellhorn, CONGRESSIONAL CONTROL OF ADMINISTRATIVE REGULATIONS: A STUDY OF LEGISLATIVE VETOES, 90 Harv. L. Rev. 1369 (1977). Likewise, Professor Martin’s arguments against the legislative veto are informed by an appreciation of the way those vetoes operated in practice. See David A. Martin, THE LEGISLATIVE VETO AND THE RESPONSIBLE EXERCISE OF CONGRESSIONAL POWER, 68 Va. L. Rev. 253, 267-93 (1982). When an arrangement is new and must be evaluated such empirical work is not possible. But one can still make judgments about how an official or entity might exercise government authority by trying to understand the key officials’ likely incentives. A few legal analysts evaluate the distribution of government authority based on the likely behavior of the officials who will exercise that authority. See, e.g., Steven G. Calabresi, SOME NORMATIVE ARGUMENTS FOR THE UNITARY EXECUTIVE, 48 Ark. L. Rev. 23, 34-35 (1995); Victoria Nourse, THE VERTICAL SEPARATION OF POWERS, 49 Duke L.J. 749 (1999). In my view, these efforts are grappling with the exactly the right questions, but they proceed at too lofty a level. Both works assume that the branch affiliation of a government actor is the key predictor of that actor’s behavior. See, e.g., Steven G. Calabresi, SOME NORMATIVE A RGUMENTS FOR THE UNITARY EXECUTIVE, 48 Ark. L. Rev. at 35 (1995); Victoria Nourse, THE VERTICAL SEPARATION OF POWERS, 49 Duke L. j. at 781-84 (1999) at 781-84. But predicting how a government official will act based mainly on his branch location is too crude an analysis. That said, these are undoubtedly steps in the right direction. Moreover, there are other models of the kind of analysis urged here–ones that examine officials’ behavior but do so at a more particular level. Professor Martin’s careful discussion of the effect of the legislative veto on agency-Congressional relationships, see Martin, supra, at 267-93, and Justice Scalia’s dissent in Morrison v. Olson — where he focused in a specific way on the likely incentives of the Independent Counsel — are both models of the type of analysis that will help our thinking about these matters, see 487 U.S. at 727-32. 140

William A. Niskanen, Jr., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT (1971); James Q. Wilson, BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT 202-05 (1989); Daryl J. Levinson, MAKING GOVERNMENT PAY: MARKETS, POLITICS, AND THE ALLOCATION OF CONSTITUTIONAL COSTS, 67 U. CHI. L.REV. 345 (2000) 141

Many general statutes constrain agency activities; the most prominent one is the the Administrative Procedure Act, see 5 U.S.C. §§ 551-706. Agencies are also constrained by other general instruments, such as executive orders that direct how agencies will conduct their business, as well as the specific statutes that 65

that such constraints importantly shape the way agency authority is exercised. This is not to suggest that understanding how government actors are likely to exercise authority will be easy. It will not be. But focusing the doctrine in this way will at least move it in the right direction. Compared to the enormity of the questions sometimes at stake in the effort to achieve the right match of government authority and government decisionmaker, the teaching of this Article is quite modest. It does not supply answers to the fundamental questions that underpin disputes about the proper allocation of government authority. There are no clean answers here about the great questions — the appropriate division of policymaking between the Congress and the executive, or the proper role of the judiciary in a representative democracy. Nor are there clear answers about the less elevated manifestations of those questions: Should administrative agencies be permitted to adjudicate disputes arising under the laws they administer? Is an Independent Counsel permissible? The reward for the effort is more incremental; the insight is that a reconstructed separation of powers doctrine must ask a different set of questions than it does now when it is seeking to match the exercise of classes of government authority with corresponding decisionmakers. Finally answering the fundamental questions may be far off, but we will not get any closer until we start asking questions that point us in the right direction.

create the agency and grant it the authority to act in specific areas. 66

18. BOOK REVIEW: P OPULAR? C ONSTITUTIONALISM? T HE P EOPLE T HEMSELVES: P OPULAR C ONSTITUTIONALISM AND J UDICIAL R EVIEW. By Larry D. Kramer. New York: Oxford University Press. 2004. Pp. xii, 363. $29.95 (cloth). Reviewed by •Larry Alexander (Warren Distinguished Professor, University of San Diego School of Law) and •Lawrence B. Solum (Professor of Law, University of San Diego School of Law) Moderation is a fatal thing . . . . Nothing succeeds like excess.1

I. INTRODUCTION: P OPULAR C ONSTITUTIONALISM Larry Kramer has written an awesome book, and we mean “awesome” in its original and now archaic sense. The People Themselves is a book with the capacity to inspire dread and make the blood run cold.2 Kramer takes the theory du jour, popular constitutionalism (or popular sovereignty), and pushes its central normative commitments to their limits. The People Themselves is a book that says “boo” to the ultimate constitutional authority of the courts and “hooray” to a populist tradition that empowers Presidents to act as “Tribunes of the People” and has even included constitutional interpretation by mob. Along the way, Kramer offers a rich and powerful interpretation of American constitutional history, exposing ideas that have long been submerged, and stimulating a fundamental reappraisal of the contemporary ascendancy of the United States Supreme Court as the ultimate and final expositor of constitutional meaning. This Review offers a critical assessment of The People Themselves. In Part II, we provide a brief recapitulation of the main themes of The People Themselves, tracing the story of popular constitutionalism from before the Revolution through the founding era to the present day. We then undertake in Part III a careful examination of Kramer’s central concept by answering the question, “What is popular constitutionalism?” From analytic reconstruction, we move to normative assessment in Part IV, which states the case in favor of judicial supremacy and against popular constitutionalism. In Part V, we conclude this Review with observations about the paradoxical nature of Kramer’s discussion of popular acceptance of judicial supremacy and an observation about the value of The People Themselves: Kramer’s book makes an important contribution to constitutional theory by pushing the idea of popular constitutionalism to its limits.

1

Oscar Wilde, A WOMAN OF NO IMPORTANCE act I, ll. 269–70, in TWO SOCIETY COMEDIES 11, 85 (Ian Small & Russell Jackson eds., W.W. Norton & Co. 1983) (1893). 2

See Merriam-Webster Online Dictionary, at http://www.m-w.com/cgi-bin/ dictionary?book= Dictionary&va=awe (last visited Feb. 13, 2005). 67

19. Matthew Adler, P OPULAR C ONSTITUTIONALISM AND THE RULE OF R ECOGNITION: W HOSE P RACTICES G ROUND U.S. L AW? University of Pennsylvania Law School, Public Law and Legal Theory Research Paper Series, Research Paper No.54, September 2004: CONCLUSION The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. This is a point of consensus for modern jurisprudents in the Anglo-American tradition: not just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group’s practices ground each legal system? In particular, which group’s practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the “recognitional community” (my term): the group such that its rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article has grappled with the tension between the positivist’s official- or judge-centered account of the recognitional community and the “popular constitutionalism” now so widely defended by constitutional scholars such as Larry Kramer, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I have termed this position “deep popular constitutionalism.” Indeed, it turns out – I have argued – that Dworkin’s account of law, in its ambition to generate associative duties for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement – to the debate between deep popular constitutionalists and deep official or judicial supremacists -- is to dissolve it by providing a group-relative account of law. In arguing for that account, I have shown that throughout U.S. history a plurality of groups, both official and citizen groups, have actively sought to advance conceptions of U.S. constitutional law. Further, I have argued that “law,” taken either as an explanatory construct or as a normative construct, is best specified along group-relative lines. Finally, I have explored the implications of the group-relative account for U.S. constitutional theory. This account may be wrong, even wrong-headed. But whatever the merits of the group-relative account of law, I hope this Article has accomplished one thing: to put the problem of the recognitional community on the agenda of constitutional theory. Analytical jurisprudence is not easy reading, and for those steeped in our constitutional history some of the literature may seem naïve in underplaying how contested fundamental questions of U.S. law have been.257 Still, this is a literature that constitutional scholars ignore at their peril. Works such as Hart’s The Concept of Law,258 Dworkin’s Law’s Empire,259 and Raz’s The Concept of a Legal System260 try to determine, with the greatest intensity and rigor, just what law is – in particular, just how the law governing some society connects to other facts about that society, or

68

about some subset within it. At some point, surely, that connection is one that the intellectually serious constitutionalist will need to try to understand.

20. T HE U.S. C OAST G UARD C OMMITTED F RAUD U PON THE U.S. G OVERNMENT R EGARDING THE M ERCHANT M ARINER’S D OCUMENT On February 20, 2003 the U.S. Coast Guard published in the Federal Register their Notice of Policy [USCG-2003-14500] titled MERCHANT MARINERS ’ DOC U M ENTS : FORMS

AND

PROCEDURES

FOR

RENEWALS AND ISSUANCES , (Notices, Volume 68, No. 34, page 8326): SUMMARY: The Coast Guard suspended renewing and issuing Merchant Mariners’ Documents (MMDs) using the previously issued form and has begun renewing and reissuing MMDs using a new form. The new MMD form is more tamper-resistant and facilitates verification of an MMD holder’s identity, citizenship, and qualifications to work aboard U.S.-flagged vessels. MMDs in the new form will enhance maritime security.

ensure that only eligible mariners receive MMDs, the Coast Guard will conduct a criminal-record review of mariners seeking renewal or re-issuance of a previously issued MMD, or issuance of an original MMD. The review may include verification of identities; criminal histories; and sobriety (as gauged from, among other sources, the National Drivers’ Register). This review will be consistent with applicable law and Coast Guard regulations set forth in Title 46, Code of Federal Regulations (46 CFR 12.02–4). Because of the importance of establishing positive proof of identity to facilitate the background investigation, it will be necessary for holders of, and applicants for, an MMD to be present at a Regional Examination Center (REC) to be fingerprinted.

DATES: The Coast Guard began renewing MMDs using the new form on February 3, 2003. FOR FURTHER INFORMATION CONTACT: If you have questions on this notice, call Mr. Donald J. Kerlin, Deputy Director, Coast Guard National Maritime Center (NMC), (202) 493–1006.

Mariners may encounter delays incident to the new processes’ going into practice and the delays may persist for some weeks. Holders and new applicants seeking re-issuance, renewal, and original issuance of their MMDs should inquire at their nearest REC, a list of which appears at 46 CFR 12.01–7, or contact Mr. Donald Kerlin at the National Maritime Center, 4200 Wilson Boulevard, Suite 630, Arlington, VA 22203–1804, (202) 493–1006.

SUPPLEMENTARY INFORMATION: Background MMDs both serve as identity cards for merchant mariners and provide information about the mariners’ professional qualifications. MMDs, in the previously issued form (CG–2838 [Rev. 7–94]), serve the second of these purposes well enough; however, they no longer serve the first with sufficient confidence. The Coast Guard is replacing them using a new form (CG–2838 [Rev 09/02]) that will be issued through a more secure process. The Coast Guard will make every effort to effect a smooth and easy transition from the previously issued form to the new form. The Coast Guard will begin issuing MMDs in the new form to new applicants as soon as possible.

Authority 46 U.S.C. 7301, 7302, 7303, 7304, 7305, 7503, 7505, and 49 CFR 1.46. Dated: February 13, 2003. Kevin J. Eldridge, Rear Admiral, Coast Guard, AssistantCommandant for Governmental and Public Affairs.

The Coast Guard also is considering whether to allow mariners to replace their previously issued MMDs with new MMDs on an accelerated basis, i.e.,’ at an earlier date than current expiration date. To

[FR Doc. 03–4145 Filed 2–19–03; 8:45 am] BILLING CODE 4910–15–P

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21. Citing Shelly Parker, et al v. District of Columbia, DC Circuit, No. 04-7041 (filed July 14, 2005, still pending) Appellant’s “S ECOND M OTION TO ISSUE B RIEFING S CHEDULE AND S ET O RAL A RGUMENT ON THE M ERITS,” pp. 6-7: A. Administrative Exhaustion Is Not Required In Purely Constitutional Cases. While regulatory bodies are expert at interpreting regulatory language, they lack expertisein interpreting the Constitution. Such is the province of the federal courts. It is black-letter law that administrative exhaustion is not required in constitutional cases. “When federal claims are premised on [§ 1983] -- as they are here -- we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 472-73 (1974). Thus, “exhaustion of state judicial and administrative remedies is not a prerequisite to a section 1983 federal court action alleging constitutional violations.” Silverman v. Barry, 727 F.2d 1121, 1123 n.3 (D.C. Cir. 1984) (citing Patsy v. Bd. of Regents, 457 U.S. 496, 516 (1982)); see also Mathews v. Diaz, 426 U.S. 67, 76-77 (1976); Weinberger v. Salfi, 422 U.S. 749, 765-66 (1975); Gibson v. Berryhill, 411 U.S. 564, 574 (1973); Carter v. Stanton, 405 U.S. 669 (1972) (per curiam); Houghton v. Shafer, 392 U.S. 639 (1968) (per curiam); Damico v. California, 389 U.S. 416 (1967) (per curiam); McNeese v. Board of Education, 373 U.S. 668, 671 (1963). The question before the Court is whether the District’s decision to prohibit law-abiding citizens from keeping working firearms in their homes violates the Second Amendment. There is no genuine dispute about the existence of that prohibition, nor is their any dispute about the zeal or consistency with which the District prosecutes violations of the prohibition. Accordingly, the question in this case is a pure question of constitutional law, and there is nothing whatever about the administrative process that would sharpen that issue. B. Futile Acts Are Not Required To Sustain Standing. Closely related to the non-exhaustion doctrine in constitutional cases is the law’s strong disdain for requiring futile acts to sustain standing. See, e.g. Int’l Brotherhood of Teamsters v. United States, 431 U.S. 324, 365-66 (1977) (minority job applicants need not test a “whites only” sign before filing a Title VII claim). Rejecting an exhaustion requirement in a constitutional challenge to a portion of the Social Security Act, the Supreme Court explained: Exhaustion is generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review. Plainly these purposes have been served once the Secretary has satisfied himself that the only issue is the constitutionality of a statutory requirement, a matter which is beyond his jurisdiction to determine, and that the claim is neither otherwise invalid nor cognizable under a different section of the Act. Weinberger, 422 U.S. at 765 (citation omitted). The Supreme Court’s decision in Houghton v. Shafer, supra, presents a typical, and particularly instructive example of this principle. In that case, an inmate challenged the constitutionality of prison rules forbidding him from possessing certain legal 70

materials. The Third Circuit affirmed dismissal of the inmate’s section 1983 action for lack of administrative exhaustion. The Supreme Court reversed: As we understand the submission of the Attorney General of Pennsylvania in this Court, the rules of the prison were validly and correctly applied to petitioner; these rules are further said to be strictly enforced throughout the entire correctional system in Pennsylvania. In light of this it seems likely that to require petitioner to appeal to the Deputy Commissioner of Correction, the Commissioner, or to the Attorney General would be to demand a futile act. In any event, resort to these remedies is unnecessary in light of our decisions in Monroe; McNeese; and Damico [holding no administrative exhaustion is required in section 1983 cases]. Houghton, 392 U.S. at 640 (citations omitted).

22. Must I Be Arrested by the Feds in Order to Have My Case Taken Seriously? I do not have to caught and prosecuted by the State Police or federal agents for violating 18 U.S.C. § 926A by driving interstate openly wearing a handgun as a sidearm for the intended purpose of providing for my own safety and security to have standing in a federal court. 18 U.S.C. § 926A. Interstate Transportation of Firearms (Crimes) 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.”

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23. C ONGRESS O WES THE A MERICAN P EOPLE A “C LEAR D UTY” TO R EPEAL F EDERAL S TATUTES THAT E XCESSIVELY B URDENS, INFRINGE, OR P ROHIBITS THE P RACTICAL E XERCISE OF S ECOND A MENDMENT R IGHTS As the two volumes of evidence proves beyone doubt I fervently exhausted the legislative approach without success because no member in Congress will listen to an individual advocating the constitutional norm of national open carry handgun under the Bill of Rights and under the Thirteenth and Fourteenth Amendments. And for Mr. Barghaan to even suggest such a remedy as a preclusion to mandamus relief is evidence of a belligerent contempt for the constitutional provisions for the restoration of the balance of power under the Tenth Amendment of the Bill of Rights let his display of contempt for the U.S. Department of Justice’s Mission Statement “to ensure fair and impartial administration of justice for all Americans.” Mr. Barghaan again displays an inability to distinguish delusion from reality by refusing to accept the fact that the creation of the U.S. Department of Homeland Security, the moving of the U.S. Coast Guard from the DOT to the DHS and the fact that the Department of Homeland Security gained general superintendence of the U.S. Merchant Marine as “Extraordinary Circumstances” for mandamus relief resulting from the extra security duties placed upon U.S. civilian seafarers not only through the legislative process but also through the regulatory process without extra compensation or recognition of affected constitutional rights under the Second Ninth, and Tenth Amendments, and under the Common Defence clause of the Preamble to the U.S. Constitution. These circumstance have Fifth Amendment implications for just cause of action for the federal court to resolve. Mandamus relief is clearly indicated and clearly visible to anyone without bias or prejudice affecting their perception of reality.

24. A S TO M Y RICO A CT C ASE The DC Circuit maliciously killed my RICO Act claims on the claim that I did not demonstrate the federal government waived its sovereign immunity. Well, let me demonstrate that waiver now. 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.

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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. The DC Circuit (No. 04-5316) erroneously made the following clams about my RICO case but surprisingly modified the District Court order to read as dismissed without prejudice. The DC Circuit’s Order reads as follow (citations omitted): As to appellant’s claims pursuant to the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962, appellant has not demonstrated the federal government waived its sovereign immunity. In addition, the claims for damages against the judicial defendants are barred by judicial immunity, see Cleavinger v. Saxner, 474 U.S. 193, 199 (1985), and the claims for declaratory judgment against those defendants are meritless. To the extent appellant is bringing claims under criminal statutes, those statutes do not provide for a private right of action. With respect to appellant’s claims brought pursuant to 42 U.S.C. § 1988; the Federal Tort Claims Act, 28 U.S.C. § 1346(b); and the First, Fourth, Fifth, Sixth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments, appellant’s complaint does not comport with Fed. R. Civ. P. 8(a), which requires a plaintiff to include “a short and plain statement of the claim showing that the plaintiff is entitled to relief.” With the exception of his Second Amendment claim, appellant has not preserved for appeal any other claims. To the extent summary affirmance is granted because appellant’s claims do not comply with Fed. R. Civ. P. 8(a), the district court order is modified to dismiss those claims without prejudice. Even though the DC Circuit’s Order is VOID FOR [WRONG VENUE] under 28 U.S.C. § 1402(a)(1) I must still refute the claims made by the DC Circuit. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that there is no set of facts that plaintiff could prove which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 46, 78 S. Ct. 99, 102 (1957); Fed. R. Civ. P. 12(b)(6). I can prove my case! Further, pro se complaints must be liberally construed and should not be held to the same high standard as formal complaints filed by attorneys. Estelle v. Gamble, 429 U.S. 97, 105, 97 S. Ct. 285, 291 (1976); Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595 (1972); Ferranti v. Moran, 618 F.2d 888, 889 (1st Cir. 1980) . Hence I should not be held so tightly to Fed. R. Civ. P. 8(a). To do so would be to hold me to the high standards of an attorney. It is under this more lenient standard that plaintiff’s complaint should be read. The Supreme Court has held that judges can be held liable for damages in suits where actions which are 73

administrative in nature are challenged. See Forrester v. White, 484 U.S. 219, 224-225 (1988). The Court in Forrester refused to attach judicial immunity to a judge’s decision to fire a court employee, because the act was not judicial in nature. The Court held that truly judicial acts must be distinguished from the administrative, legislative or executive functions that judges may occasionally be assigned to perform. According to the Court, it is the nature of the function performed -- adjudication -- rather than the identity of the actor who performed it -- a judge -- that determines whether absolute immunity attaches to the act. Any time an action taken by a judge is not an adjudication between parties, it is less likely that the act [will be found to be] a judicial one. Cameron v. Seitz, 38 F.3d 264, 271 (6th Cir. 1994). The claims I make in my complaint against Judges Reggie B. Walton and Ellen Segal Huvelle are administrative in nature and those judges do not have immunity from suit from those administrative actions and my claims, contrary to the DC Circuits proclamations, do have merit. These facts were clearly evident in the record on appeal to the DC Circuit. It is clear that the DC Circuit ignored those facts and used boilerplate case law in blatant contradiction to the facts on record in order to protect the Judge Reggie B. Walton of the lower court from civil damages. This is an obstruction of justice and a conspiracy to obstruct justice which are predicate acts under the RICO Act. Because the DC Circuit modified the District Court Order removing the prejudice from the dismissal I am free to file my RICO Act claims in the U.S. District Court for the Eastern District of Arkansas, Northern Division.

25. D AMNING E VIDENCE OF A C ONSPIRACY TO O BSTRUCT J USTICE AND E VIDENCE OF R ACKETEERING AN U NLAWFUL AND AN U NCONSTITUTIONAL P ROTECTION S CHEME O VER THE S ECOND A MENDMENT It is widely known that U.S. District Court and most of the Circuit Court judges have a disdain for the individual rights view of the Second Amendment. This fact is clearly evidenced an supported by Judge Ellen Segal Huvelle and Judge Reggie B. Walton of the U.S. District Court for the District of Columbia and the DC Circuit Court judges who presided over my several cases. I use their disdain and their memorandum opinions as evidence of racketeering activities over the Second Amendment. Mr. Barghaan used a very limited portion of Judge Ellen Segal Huvelle’s 2002 Memorandum Opinion in his Motion to Dismiss (p. 5): 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, the very

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existence and intensity of that controversy make mandamus relief a decidedly inappropriate vehicle for fulfilling petitioner’s demands. .... 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. Mr. Barghaan used the very limited portion of Judge Huvelle’s Memorandum Opinion because he knew that if he used even the slightest bit larger portion his Motion to Dismiss would crumble. On that score I present the more complete Second Amendment portion of Judge Huvelle’s Memorandum Opinion here: 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. 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. 75

“. . . 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? Ohh Please! Don’t insult my intelligence!

26. T HE O RIGIN OF THE T HIRTEENTH AND F OURTEENTH A MENDMENTS A RE B ASED ON THE INFAMOUS S LAVERY C ASE OF D RED S COTT V. S ANDFORD, 60 U.S. (H OW.) 393, 416-417, (1856). The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [60 U.S. 393, 417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised 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. It is impossible, it would seem, to believe that the great men of the slaveholding States, who took so large a share in framing the Constitution of the United States, and exercised so much influence in procuring its adoption, could have been so forgetful or regardless of their own safety and the safety of those who trusted and confided in them. Dred Scott v. Sandford, 60 U.S. (How.) 393, 416-417, (1856).

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The Dred Scott case brings us to Judge Huvelle’s remark, “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).” Excerpt from Emerson: A. Introduction and Overview of Second Amendment Models The district court held that the Second Amendment recognizes the right of individual citizens to own and possess firearms, and declared that section 922(g)(8) was unconstitutional on its face because it requires that a citizen be disarmed merely because of being subject to a "boilerplate [domestic relations injunctive] order with no particularized findings." Emerson, 46 F.Supp.2d at 611. The government opines that stare decisis requires us to reverse the district court's embrace of the individual rights model. Amici for the government argue that even if binding precedent does not require reversal, the flaws in the district court's Second Amendment analysis do. In the last few decades, courts and commentators have offered what may fairly be characterized as three different basic interpretations of the Second Amendment. The first is that the Second Amendment does not apply to individuals; rather, it merely recognizes the right of a state to arm its militia.(9) This "states' rights" or "collective rights" interpretation of the Second Amendment has been embraced by several of our sister circuits.(10) The government commended the states' rights view of the Second Amendment to the district court, urging that the Second Amendment does not apply to individual citizens. Proponents of the next model admit that the Second Amendment recognizes some limited species of individual right. However, this supposedly "individual" right to bear arms can only be exercised by members of a functioning, organized state militia who bear the arms while and as a part of actively participating in the organized militia's activities. The "individual" right to keep arms only applies to members of such a militia, and then only if the federal and state governments fail to provide the firearms necessary for such militia service. At present, virtually the only such organized and actively functioning militia is the National Guard, and this has been the case for many years. Currently, the federal government provides the necessary implements of warfare, including firearms, to the National Guard, and this likewise has long been the case. Thus, under this model, the Second Amendment poses no obstacle to the wholesale disarmament of the American people. A number of our sister circuits have accepted this model, sometimes referred to by commentators as the sophisticated collective rights model.11 On appeal the government has abandoned the states' rights model and now advocates the sophisticated collective rights model. The third model is simply that the Second Amendment recognizes the right of individuals to keep and bear arms. This is the view advanced by Emerson and

11

(1st Cir. 1942) Cases v. United States, 131 F.2d 916, 923; (3d Cir. 1996) United States v. Rybar, 103 F.3d 273, 286; (8th Cir. 1992) United States v. Hale, 978 F.2d 1016; (10th Cir. 1977) United States v. Oakes, 564 F.2d 384; (11th Cir. 1997) United States v. Wright, 117 F.3d 1265;

For further discussion of the sophisticated collective rights model, see Robert J. Cottrol & Raymond T. Diamond, The Fifth Auxiliary Right, 104 Yale L. J. 995, 1003-1004 (1995) and Nelson Lund, The Ends of Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders, 4 Tex. Rev. L. & Pol. 157, 184-86 (1999). 77

adopted by the district court. None of our sister circuits has subscribed to this model, known by commentators as the individual rights model or the standard model. The individual rights view has enjoyed considerable academic endorsement, especially in the last two decades.12 Since the Fifth Circuit used the word “wholesale” above, “. . . Thus, under this model, the Second Amendment poses no obstacle to the wholesale disarmament of the American people. . . .” and Judge Huvelle used the same word in here Memorandum Opinion in 2002, “. . . 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.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. . . .” it begs the question about whether there are too many federal and state gun controls laws. Even if every federal and state gun control law were each, in and of themselves, a act of reasonableness, the question is yet to be presented in a federal court on whether or not the aggregate effect of those federal and state gun controls rises to the level of unreasonableness and therefore achieving a state of unconstitutional conditions where the Second Amendment has effectively been nullified. Since Emerson, in 2001, the U.S. Department of Justice adopted the individual rights view after conducting their own investigation and research and issued their Memorandum Opinion to the Attorney General, John Ashcroft internally on August 24, 2004 so as not to influence the Presidential Election in November 2004. That Memorandum Opinion was no released to the public until midDecember. Interesting fact here is that Mr. Barghaan put my RICO Act case in the U.S. District Court fo DC on the Fast Track to dismissal with his timely Motion to Dismiss. Judge Reggie B. Walton

12

See Scott Bursor, TOWARD A FUNCTIONAL FRAMEWORK FOR INTERPRETING THE SECOND AMENDMENT, 74 Texas L. Rev. 1125 (1996); Robert J. Cottrol & Raymond T. Diamond, THE FIFTH AUXILIARY RIGHT, 104 Yale L. J. 995 (1995); Robert Dowlut, THE RIGHT TO ARMS: DOES THE CONSTITUTION OR THE PREDILECTION OF JUDGES REIGN?, 36 Okla. L. Rev. 65 (1983); Stephen P. Halbrook, THE RIGHT OF THE PEOPLE OR THE POWER OF THE STATE: BEARING ARMS, ARMING MILITIAS, AND THE SECOND AMENDMENT, 26 Val. U. L. Rev. 131 (1991); Stephen P. Halbrook, WHAT THE FRAMERS INTENDED: A LINGUISTIC ANALYSIS OF THE RIGHT TO “BEAR ARMS”, 49 Law & Contemp. Probs. 151 (1986); Don B. Kates, Jr., THE SECOND AMENDMENT AND THE IDEOLOGY OF SELF-PROTECTION, 9 Const. Comm. 87 (1992); Don B. Kates, Jr., HANDGUN PROHIBITION AND THE ORIGINAL MEANING OF THE SECOND AMENDMENT, 82 Mich. L. Rev. 204 (1983); Sanford Levinson, THE EMBARRASSING SECOND AMENDMENT, 99 Yale L. J. 637 (1989); Nelson Lund, THE ENDS OF SECOND AMENDMENT JURISPRUDENCE: FIREARMS DISABILITIES AND DOMESTIC VIOLENCE RESTRAINING ORDERS, 4 Tex. Rev. L. & Pol. 157 (1999); Nelson Lund, THE PAST AND FUTURE OF THE INDIVIDUAL'S RIGHT TO ARMS, 31 Ga. L. Rev. 1 (1996); Glenn H. Reynolds, A CRITICAL GUIDE TO THE SECOND AMENDMENT, 62 Tenn. L. Rev. 461 (1995); Robert E. Shalhope, THE IDEOLOGICAL ORIGINS OF THE SECOND AMENDMENT, 69 J. Am. Hist. 599 (1982); William Van Alstyne, THE SECOND AMENDMENT AND THE PERSONAL RIGHT TO ARMS, 43 Duke L. J. 1236 (1994); Eugene Volokh, THE COMMONPLACE SECOND AMENDMENT, 73 N.Y.U. L. Rev. 793 (1998).

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dismissed my case on August 16, just 8 days before the internal release of the Justice Department’s Memorandum Opinion. Was this a coincidence? Or, was their a conspiracy to withhold the Memorandum Opinion as evidence from my case. I note from Mr. Barghaan’s latest Motion to Dismiss (August 4, 2006) that he was pointedly candid with the Court to state that that the Court reach Nor does plaintiff’s resort to the Second Amendment provide him with any assistance. As this Court recently held, “[o]ne of the leading constitutional debates centers around the scope of the Second Amendment and whether its purpose is to protect the sanctity of state militias or to provide a fundamental right to individuals.” Seegars v. Ashcroft, 297 F. Supp. 2d 201, 218 (D.D.C. 2004) (Walton, J.), rev’d in part on other grounds by Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir. 2005), cert. denied, 126 S. Ct. 1187 (2006). To be sure, the United States’ present position on the scope of the Second Amendment, articulated through, inter alia, a recent opinion authored by the Department of Justice’s Office of Legal Counsel, is that this constitutional provision “more broadly protects the rights of individuals . . . to possess and bear their own firearms, subject to reasonable restrictions.” Silveria v. Lockyer, 312 F.3d 1052, 1065 (9 th Cir. 2002), cited in Seegars, 297 F. Supp.2d at 218 n.15. But notwithstanding this position, the attorney’s duty of candor to the tribunal, see D.C. RULE OF PROFESSIONAL CONDUCT 3.3; VA. RULE OF PROFESSIONAL CONDUCT 3.3, requires undersigned counsel to note that this Court has already reached a conclusion contrary to the Justice Department’s position on this score. More specifically, in Seegars, this Court held “that the Second Amendment does not confer an individual a right to possess firearms.” Seegars, 297 F. Supp. 2d at 235. [DDC 2004] And this conclusion destroys any purported assistance plaintiff have derived from the Second Amendment in any of his mandamus claims – including that which seeks to compel the Merchant Mariner endorsement. Well then, since the District Court’s opinion in Seegars that “the Second Amendment does not confer an individual right to possess a firearms” Then it stands to reason that both Emerson and the August 24, 2004 Memorandum Opinion of the U.S. Department of Justice support my case for Second Amendment rights as an individual right. And since that makes my case, “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;” and a case . . . “of admiralty and maritime Jurisdiction;” as the “scope” of the Second Amendment would extend to U.S. seafarers aboard U.S. ships transiting pirate waters where attacks, boardings, an murders of ships crew have occurred and where U.S. seafarers face the same dangers of attack and threat of being murdered while ashore in the United States and traveling intrastate and interstate makes for one of many subject matters for jurisdiction about “Controversies to which the United States shall be a Party” then I have achieved standing to sue the U.S. Government for damages under the RICO Act.13

13

Quoting excerpts from Article III of the U.S. Constitution 79

The final “controversy to which the United States shall be a Party” is whether or not the federal courts that do not subscribe to the individual rights view is using a political ideology and not the constitutional rule of law in their case law opinions. I have clearly demonstrated that the Motions to Dismiss and Court opinions dismissing my several cases are rife with an anti-Second Amendment political ideology. My case has the potential to settle controversy on the scope meaning of Second Amendment and to prove that Article III federal courts have imposed a judicial tyranny over the American people to the extent that a modern day version of slavery has been reestablished by the U.S. Government as defined by Dred Scott and noted in Emerson.

27. F EDERAL P REEMPTION of State Gun Control Laws is not entirely fanciful as Judge Huvelle Maliciously Claims As to Judge Huvelle’s remark “. . . it is entirely fanciful to suggest that its [Thirteenth Amendment] prohibition of involuntary servitude somehow unambiguously requires the overturning of a whole variety of gun control legislation,”she ignores the fact that federal preemption of State laws is found in the U.S. Constitution, Article VI, Clause 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.” and delegated to federal agencies’ Rulemaking Process which includes the U.S. Coast Guard. Citing from J. Norman Heath, EXPOSING THE SECOND AMENDMENT : FEDERAL PREEMPTION OF STATE MILITIA LEGISLATION , 79 U. Det. Mercy L. Rev.39 (2001): “Professor Laurence H. Tribe identifies in Supreme Court jurisprudence three modes of federal preemption exercisable14 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

14

Federal Preemption is also exercisable by federal agencies and by the U.S. Coast Guard as was done by the Federal Communications Commission for amateur radio with PRB-1. 80

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 “occupying the field”) preemption - which, it is worth stressing, may fall into any of the three categories set forth above.” 15 The Plaintiff alleges that there is ample evidence proving that state and federal gun control laws and federal regulations since the National Firearms Act of 1933, in their accumulative effect, have served to defeat the common defence against violent crimes in society hereby takes action to promote the common defence with this MOTION FOR NEGOTIATED RULEMAKING .

15

Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW § 6-28, at 1176-77 (3d ed.2000) 81

28. US A TTORNEY M ANUAL (USAM) ON C OMPROMISING AND C LOSING TITLE 4 CIVIL 4-3 COMPROMISING AND CLOSING USAM 4-3.100 Authority of the Attorney General The Attorney General has the inherent authority to . . . abandon the defense of any action insofar as it involves the United States of America, or any of its agencies, or any of its agents who are parties in their official capacities. See Confiscation Cases, 7 Wall. 454, 458 (1868) (action brought by an informer with expectation of financial gain); Conner v. Cornell, 32 F.2d 581, 585-6 (8th Cir.), cert. denied, 280 U.S. 583 (1929) (dismissal of suit on behalf of restricted Indian wards of the United States); Mars v. McDougal, 40 F.2d 247, 249 (10th Cir.), cert. denied, 282 U.S. 850 (1930); 22 Op. Att'y Gen. 491, 494; 38 Op. Att'y Gen. 124, 126; see United States v. Throckmorton, 98 U.S. 61, 70 (1878); United States v. Newport News Shipbuilding & Dry Dock Co., 571 F.2d 1283 (4th Cir.), cert. denied, 439 U.S. 875 (1978). This authority may be exercised at any time during the course of litigation. The Attorney General also has the inherent authority to compromise any action insofar as it involves the United States of America, its agencies, or any of its agents who are parties in their official capacities. See Halbach v. Markham, 106 F. Supp. 475, 479-480 (D.N.J. 1952), aff'd, 207 F.2d 503 (3rd Cir. 1953), cert. denied, 347 U.S. 933 (1954); 38 Op. Att'y Gen. 124, 126. This authority is not dependent upon any express statutory provision. See 38 Op. Att'y Gen. 98, 99. To the contrary, it exists to the extent that it is not expressly limited by statute. See Swift & Co. v. United States, 276 U.S. 311, 331-2 (1928). Note the additional authority delegated to the Attorney General by the second paragraph of section 5 within Executive Order 6166.

TITLE 4 CIVIL 4-3 COMPROMISING AND CLOSING 4-3.140 Exceptions to the Redelegation of the Attorney General's Authority By virtue of section 1 of Directive 14-95 and notwithstanding the redelegations of authority to compromise cases, file suits, counterclaims, and cross-claims, or to take any other action necessary to protect the interests of the United States discussed above, such authority may not be exercised, and the matter must be submitted to the Assistant Attorney General for the Civil Division, when: For any reason, the proposed action, as a practical matter, will control or adversely influence the disposition of other claims totaling more than the respective amounts designated; Because a novel question of law or a question of policy is presented, or for any other reason, the proposed action should, in the opinion of the officer or employee concerned, receive the personal attention of the Assistant Attorney General; The agency or agencies involved are opposed to the proposed action (the views of an agency must be solicited with respect to any significant proposed action if it is a party, if it has asked to be consulted with respect to any such proposed action, or if such proposed action in a case would adversely affect any of its policies);

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The United States Attorney involved is opposed to the proposed action and requests that the decision be submitted to the Assistant Attorney General for decision, or The case is on appeal, except as determined by the Director of the Appellate Staff. See Civil Division Directive No. 14-95, 28 CFR Part 0.

TITLE 4 CIVIL 4-3 COMPROMISING AND CLOSING USAM 4-3.200 Bases for the Compromising or Closing of Claims Involving the United States A United States Attorney should compromise or close a claim (the term "claim" is used in its broadest sense to include, for example, a claim that arises out of a judgment entered for or against the United States) pursuant to the authority described in USAM 4-3.120 only when one or more of the following bases for such action are present: F. The United States Attorney believes that compromising or closing a claim of the United States is necessary to prevent injustice (see 38 Op. Att'y Gen. 98 (1934); 38 Op. Att'y Gen. 94 (1933)); H. The United States Attorney believes that it is less costly to compromise a claim against the United States than to undertake further legal action in defense against the claim;or I. The United States Attorney believes that a compromise of a claim against the United States is substantially more favorable than the verdict or judgment that would probably result from further litigation.

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29. T ITLE 28 C ODE OF F EDERAL R EGULATION Subpart Y—Authority to Compromise and Close Civil Claims and Responsibility for Judgments, Fines Penalties, and Forfeitures 28 C.F.R. § 0.160 Offers That May Be Accepted by Assistant Attorneys General. 28 C.F.R. § 0.160(c) Any proposed settlement, regardless of amount or circumstances, must be referred to the Deputy Attorney General or the Associate Attorney General, as appropriate:

(3) When the proposed settlement converts into a mandatory duty the otherwise discretionary authority of a department or agency to promulgate, revise, or rescind regulations;

(1) When, for any reason, the compromise of a particular claim would, as a practical matter, control or adversely influence the disposition of other claims and the compromise of all the claims taken together would exceed the authority delegated by paragraph (a) of this section; or

(4) When the proposed settlement commits a department or agency to expend funds that Congress has not appropriated and that have not been budgeted for the action in question, or commits a department or agency to seek particular appropriation or budget authorization; or

(2) When the Assistant Attorney General concerned is of the opinion that because of a question of law or policy presented, or because of opposition to the proposed settlement by a department or agency involved, or for any other reason, the proposed settlement should receive the personal attention of the Deputy Attorney General or the Associate Attorney General, as appropriate;

(5) When the proposed settlement otherwise limits the discretion of a department or agency to make policy or managerial decisions committed to the department or agency by Congress or by the Constitution. [Order No. 1958–95, 60 FR 15674, Mar. 27, 1995]

28 C.F.R. § 0.161 Acceptance of certain offers by the Deputy Attorney General or Associate Attorney General, as appropriate. (a) In all cases in which the acceptance of a proposed offer in compromise would exceed the authority delegated by § 0.160, the Assistant Attorney General concerned shall, when he is of the opinion that the proposed offer should be accepted, transmit his recommendation to that effect to the Deputy Attorney General or the Associate Attorney

General, as appropriate. (b) The Deputy Attorney General or the Associate Attorney General, as appropriate, is authorized to exercise the settlement authority of the Attorney General as to all claims asserted by or against the United States.

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30. TITLE 33 CODE OF FEDERAL REGULATIONS COAST GUARD REGULATIONS FOR NEGOTIATED RULEMAKING 33 C.F.R. § 1.05–60

Plaintiff’s Comments

Negotiated Rulemaking (a) The Coast Guard may establish a negotiated rulemaking committee under the Negotiated Rulemaking Act of 1990 and the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2) when it is in the public interest.

(b) Generally, the Coast Guard will consider negotiated rulemaking when: (1). There is a need for a rule;

The need exists because the U.S. Congress in their legislative responsibilities, the Department of Homeland Security, the U.S. Cost Guard, and the BATFE failed to acknowledge, legislate or regulate the Second Amendment rights of U.S. seafarers in intrastate and interstate travel.

(2). There are a limited number of representatives for identifiable parties affected by the rule;

The Negotiated Rulemaking will be between the Plaintiff and the Defendants. Representatives from the Seafarers International Union may elect to be a party to the Negotiated Rulemaking on the Plaintiff’s behalf. Representatives from other seafaring unions my elect to be present.

(3). There is a reasonable chance that balanced representation can be reached in the negotiated rulemaking committee and that the committee members will negotiate in good faith;

The Plaintiff suggests that representatives from theOffice of the President; U.S. Senate’s Legislative Counsel (2 U.S.C. 271); U.S. House of Representatives’ Legislative Counsel (2 U.S.C. § 281); U.S. House of Representatives’ Office of the Law Revision Counsel (2 U.S.C. § 285); U.S. House Subcommittee on the Coast Guard and Maritime Transportation; U.S. Department of Homeland Security; U.S. Department of Justice; U.S. Coast Guard Marine Safety and Security Council; National Governors Association; National Association of Counties; National Rifle Association; Jews for the Preservation of Firearms Ownership; Second Amendment Sisters; Second Amendment Foundation; Gunowers of America; and the Seafarers International Union and other seafaring labor unions.

(4). There is a likelihood of a committee consensus in a fixed time period;

The Plaintiff concurs that their will be a consensus in a fixed time period.

(5). The negotiated rulemaking process will not unreasonably delay the rule;

The Plaintiff concurs that there will be no unreasonable delay of the rule (or rules).

(6). The Coast Guard has resources to do negotiated rulemaking; and

The Plaintiff concurs that the Coast Guard has resources to do negotiated rulemaking.

(7). The Coast Guard can use the consensus of the committee in formulating the NPRM and final rule.

The Plaintiff concurs that the Coast Guard can use the consensus of the committee in formulating the NPRM and final rule.

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31. S PECIAL P ROCEDURES UNDER R ULE 16(C)(9) F EDERAL R ULES OF C IVIL P ROCEDURE 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: # # # # # # # # # # # # # # # # #

Office of the President U.S. Senate’s Legislative Counsel (2 U.S.C. 271), U.S. House of Representatives’ Legislative Counsel (2 U.S.C. § 281), U.S. House of Representatives’ Office of the Law Revision Counsel (2 U.S.C. § 285). U.S. House Subcommittee on the Coast Guard and Maritime Transportation U.S. Department of Homeland Security U.S. Department of Transportation U.S. Department of Justice U.S. Coast Guard Marine Safety and Security Council National Governors Association National Association of Counties National Rifle Association Jews for the Preservation of Firearms Ownership Second Amendment Sisters Second Amendment Foundation Gunowners of America Seafarers International Union and other seafaring labor unions.

32. N EGOTIATED R ULEMAKING W ITH THE U.S. G OVERNMENT U NDER THE U NITED S TATES C ODE 5 U.S.C. § 569. Encouraging Negotiated Rulemaking (a) The President shall designate an agency or designate or establish an interagency 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. 5 U.S.C. § 566. Conduct of Committee Activity (a) Duties of Committee. - Each negotiated rulemaking committee established under this subchapter shall consider the matter proposed by the agency for consideration and shall attempt to reach a consensus concerning a proposed rule with respect to such matter and any other matter the committee determines is relevant to the proposed rule. (b) Representatives of Agency on Committee. - The person or persons representing the agency on a negotiated rulemaking committee shall participate in the deliberations and activities of the committee with the same rights and responsibilities as other members of the committee, and shall be authorized to fully represent the agency in the discussions and negotiations of the committee. (c) Selecting Facilitator. - Notwithstanding section 10(e) of the Federal Advisory Committee Act, an agency may nominate either a person from 86

the Federal Government or a person from outside the Federal Government to serve as a facilitator for the negotiations of the committee, subject to the approval of the committee by consensus. If the committee does not approve the nominee of the agency for facilitator, the agency shall submit a substitute nomination. If a committee does not approve any nominee of the agency for facilitator, the committee shall select by consensus a person to serve as facilitator. A person designated to represent the agency in substantive issues may not serve as facilitator or otherwise chair the committee. (d) Duties of Facilitator. A facilitator approved or selected by a negotiated rulemaking committee shall (1) chair the meetings of the committee in an impartial manner; (2) impartially assist the members of the committee in conducting discussions and negotiations; and (3) manage the keeping of minutes and records as required under section 10(b) and (c) of the Federal Advisory Committee Act, except that any personal notes and materials of the facilitator or of the members of a committee shall not be subject to section 552 of this title. (e) Committee Procedures. A negotiated rulemaking committee established under this subchapter may adopt procedures for the operation of the committee. No provision of section 553 of this title shall apply to the procedures of a negotiated rulemaking committee. (f) Report of Committee. If a committee reaches a consensus on a proposed rule, at the conclusion of negotiations the committee shall transmit to the agency that established the committee a report containing the proposed rule. If the committee does not reach a consensus on a proposed rule, the committee may transmit to the agency a report specifying any areas in which the committee reached a consensus. The committee may include in a report any other information, recommendations, or materials that the committee considers appropriate. Any committee member may include as an addendum to the report additional information, recommendations, or materials. (g) Records of Committee. In addition to the report required by subsection (f), a committee shall submit to the agency the records required under section 10(b) and (c) of the Federal Advisory Committee Act.

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33. F EDERAL A DVISORY C OMMITTEE A CT 5 U.S.C. Appendix - FEDERAL ADVISO RY COMMITTEE ACT § 2. Findings and Purpose (a) The Congress finds that there are numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government and that they are frequently a useful and beneficial means of furnishing expert advice, ideas, and diverse opinions to the Federal Government. (b) The Congress further finds and declares that (1) the need for many existing advisory committees has not been adequately reviewed; (2) new advisory committees should be established only when they are determined to be essential and their number should be kept to the minimum necessary; (3) advisory committees should be terminated when they are no longer carrying out the purposes for which they were established; (4) standards and uniform procedures should govern the establishment, operation, administration, and duration of advisory committees; (5) the Congress and the public should be kept informed with respect to the number, purpose, membership, activities, and cost of advisory committees; and (6) the function of advisory committees should be advisory only, and that all matters under their consideration should be determined, in accordance with law, by the official, agency, or officer involved.

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34. U.S. C ONSTITUTION, A RTICLE VI, C LAUSE 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 or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

35. The Heritage Foundation’s Backgrounder, No. 1379, dated June 22, 2000, P IRACY IN A SIA: A G ROWING B ARRIER TO M ARITIME T RADE, by Dana R. Dillon (footnotes omitted) reports: Maritime piracy is back on the foreign policy radar screen. Reported attacks against commercial ships have tripled over the past decade, increasing last year alone by 40 percent. Nearly two-thirds of the attacks in 1999 occurred in Asia, with 113 of the 285 reported cases taking place in Indonesia’s waters and ports. The risk of attack is increasing with 90 percent of the world’s trade moving via ship and 45 percent of all shipping moving through the pirate-infested waters of Asia. Clearly piracy is becoming an increasing threat to global trade. The United States is the world’s largest trading nation, and although the dollar amount of losses due to piracy is difficult to assess, America’s reliance on trade makes any attack on ships in foreign waters or ports, especially those of its trading partners, a maritime concern. Both the U.S. Department of State and the U.S. Coast Guard consider maritime piracy a problem that merits U.S. participation in regional seminars on the issue. Although today’s pirates target their victims in ways that may limit a direct U.S. response, several steps can be taken to help protect maritime trade and to assist other nations in improving their ability to combat piracy and reduce the threat. . . . Today, acts of maritime piracy range from the classic boarding and hijacking of a merchant vessel on the highseas to the more common act of stealing from the ship while it is anchored. In fact, 72 percent of all attacks on merchant vessels are committed while the ship is berthed or anchored in port, and most of the attacks on vessels at sea occur in a country’s territorial waters. The targets of an attack are usually the contents of the ship’s stores and safe and the valuables of its crew. Stealing a ship or its primary cargo on the high seas represents only a small portion of the reported crimes. Nevertheless, almost all reported acts of piracy involved armed intruders who threaten and often injure, kidnap, or kill members of the crew. . . .”

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36. International Maritime Organization, “P IRACY AND A RMED R OBBERY A GAINST S HIPS: G UIDANCE TO S HIPOWNERS AND S HIP O PERATORS, S HIPMASTERS AND C REWS ON P REVENTING AND S UPPRESSING A CTS OF P IRACY AND A RMED R OBBERY A GAINST S HIPS, Maritime Safety Committee’s Circular, MSC/Circ. 623/Rev.2, dated 20 June 2001 With the threat of armed pirates boarding a ship and killing its crew it would seem to be the sensible thing to arm the crew when berthed, anchored, or transiting pirate waters. But, the International Maritime Organization, in their Maritime Safety Committee’s Circular, MSC/Circ. 623/Rev.2, dated 20 June 2001, 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”states in page 8, paragraphs 44 and 45: “44. The carrying and use of firearms for personal protection or protection of a ship is strongly discouraged. 45. 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 jurisdiction, killing a national my have unforeseen consequences even for a person who believes he has acted in self defence.”

The IMO/MSC exhibits faulty logic in stating “Carriage of arms on board ship may encourage attackers to carry firearms” implying that pirates normally board ships without firearms in order to steal goods, injure, kidnap, and kill members of the crew. The IMO/MSC further insults mariners implying that mariners do not have the aptitudes to possess and use firearms as requiring special training that mariner’s are incapable of comprehending when the reality of the mariner’s work environment requires special training to operate deck machinery far more complicate than firearms. This suggests ulterior motives and hidden agendas where Safety of Life at Sea (SOLAS) is not the priority. This anti-gun agenda is reflected in the Asian Co-operation Conference on Combating Piracy & Armed Robbery Against Ships, held in Tokyo, 4-5 October 2001. I cite passages from “Preservation of Life: An Owners Perspective” by Capt. Duncan M. Telfer, General Manager, Fleet, The China Navigation Co. Ltd., Swire Group, Chairman of the Nautical Institute in Hong Kong: “It is the seafarers who are placed in harms way and risk injury and life as a result of a lack of law and order in many countries, coastal waters and sea-lanes. It is hoped that the members of this group will have the Authority, resources and endeavor to take action to place law and order where it is required. The seafarer must have the knowledge and

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confidence that they are being protected to enable them to operate our national fleets in a safe and hindrance free environment. ... Piracy attacks hit a 10-year high last year; 72 seafarers were killed compared to 3 in 1999. On top of the 72 reported deaths, another 99 people were injured, up from 24 in 1999. 26 seafarers are reported to be missing. The IMB states that “unless some positive action is taken we are on course for a dramatic increase in this crime.” The following quote is taken from a recent International Chamber of Commerce IMB Shipping course: “Modern Day Piracy, of whatever form, is a violent, bloody, ruthless practice and is made the more fearsome by the knowledge on the part of the victims that they are on their own and absolutely defenceless and that no help is waiting just around the corner.” ... Merchant seafarers are not military trained. As such they do not have the necessary practical or theoretical skills to handle firearms. No do they have the psychological testing for such responsibilities or preparedness for the results of such. ... The best onboard protection is passive. Such as extra lookouts in known pirate areas, searchlights, fire hoses rigged, stated alarm procedures and the ability to report immediately to a responsible authority who can provide an effective and rapid response. Our own company ISM procedure manuals state that: “Once pirates or terrorists have boarded the vessel and gained access to the accommodation or engine room, no effort should be made to obstruct them. The safety of personnel must not be placed at risk.” Here we have a Hong Kong captain telling us that piracy is a violent, bloody, ruthless practice leaving 72 seafarers dead and 99 others injured in the year 2000. Yet he insults seafarers as not having the necessary practical or theoretical skills to handle firearms. He suggests that seafarers rely on the mercy of pirates when there is not sane reason for such reliance. This risk of seafarers getting killed far outweighs the remote possibility passive survival. This brings up the question of constitutionality of treaties and international conventions. When a treaty or international convention possessing provisions that are repugnant to the United States Constitution, is that treaty still the Supreme law of the land? If so, isn’t this in effect, an unconstitutional act of repealing a provision in the United States Constitution? The U.S. Coast Guard can, should, and must address this concern at the IMO’s Maritime Security Conference in December 2002.

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In Time magazine online article dated August 18, 1997, Vol. 150, No. 7, titled “A Plage of Pirates: Modern Buccaneers With Machine Guns Instead of Cutlasses are Once Again the Scourge of the Oceans” by Helen Gibson/London noted:16 Civilian cargo ships make soft targets for pirates who have upgraded their weapons while their victims have gradually been disarmed. “In the old days, pirates carried cutlasses, but you did too,” says McDowall.17 “Now we are forbidden to carry weapons on board.” Pirates are also gaining confidence because they so often get away with it. When Blackbeard terrorized the North Carolina coast of the U.S. in the early 1700s navies were powerful and justice summary. Blackbeard’s career ended when his head was sliced off by a Royal Naval broadsword. These days, concerns over sovereignty and territorial waters foster caution. Laments Ellen18, “There is no law enforcement at sea by anyone – today’s navies are reluctant to intervene in the act of piracy.” As the United States is currently in a state of war against terrorism and piracy the Department of Transportation has the authority to instruct the U.S. Coast Guard to formulate a set of instruction for the Merchant Marine on “Standing Rules of Engagement” similar to the U.S. Army’s rules19 but modified for the civilian maritime environment of our seaports and for interstate travel. This is required as it is common sense, especially in view when combined with the ten year high in piracy on the high seas: “Some seaworkers’ unions are pressuring governments to do something about the rising threat of modern piracy. This was reported in a recent newspaper article in the Observer. Despite most Shipowners and Unions’ wishes against arms on board some crews are now carrying weapons for defence purposes. The British union Numast for instance, is opposed to arming crews since this increases the potential for violence. Whether the number of ships carrying arms will increase remains to be seen. Prospects for a decrease in piracy incidents remain uncertain, however, and as long as governments fail to act decisively these kinds of defence measures will most probably increase.20

16

www.time.com/time/magazine/1997/int/970818/high_seas.a_plague_of_p.html

17

Captain Allan McDowall, British tanker master.

18

Eric Ellen, Executive Director of International Maritime Bureau’s Commercial Crime Services

19

http://call.amry.milk/products/newsltrs/96_6/roeappa1.htm

See also, http://call.amry.milk/products/newsltrs/96_6/roeappb1.htm 20

www.tortuga.myweb.nl/archive/modern/2k2repa.htm (footnotes omitted) 92

In an International Action Network on Small Arms (IANSA) article, “Crews Take Up Guns to Fight Pirates” by Nick Patos Walsh, he reports:21 “The pirates carry weapons ranging from kitchen knives to AK47 rifles. Last year, 21 people were shot dead in raids from the Mediterranean to Malaysia. “Sea-workers’ unions have launched a campaign to force the Government to take the threat of piracy more seriously. A record seven British ships were attacked by pirates last year and another 15 attacked were managed or controlled by UK firms, according to the International Maritime Bureau (IMB). “Crews need more protection,” said Andrew Linington, of sea-worker’s union, Numast. “Owners have resisted moves towards greater security. Seafarers should not have to defend themselves against AK47s.” The Commandant of the U.S. Coast Guard, then Admiral James M. Loy gave a speech at the Propeller Club of the United States in Washington, DC on October 31, 2001. In that speech he asks: “How do we prevent another attack? Of course, the question that concerns us this afternoon is more specific. How do we meet the enormous challenge of providing maritime security against terrorism and other potential threats to the marine transportation system?” ... “Threats to our security at home are growing, and they will continue to grow in this new century. Separately and collectively they pose dangers to our borders, our economy, our environment, and our safety. All of them have a distinct maritime dimension. “They can be conveyed towards our shores in ways that can’t always de countered by traditional naval forces. . .” The new Commandant, Admiral T. H. Collins, issued an ALCOAST22 directive detailing the direction he wants the Coast Guard to take. “The Commandant’s Direction is a document promulgated by the Commandant to outline the strategic short term objectives of our service. It is normally published at the beginning of a Commandant’s 4 year term and at the midpoint. On day one, I want to share with you my areas of emphasis for our Coast Guard. That Direction follows.” “To ensure the high level of performance America expects and deserves, we will . . . build robust maritime homeland security strategies, capabilities and competencies.”

21

www.ianso.org/news/2002/feb2002/guns_pirates10202.htm

22

ALCOAST 269/02, COMDTNOTE 1000, ® 312323Z MAY 02, FM COMDT COGARD WASHDC 93

37. CORPUS JURIS SECUNDUM: VOLUME 87: TREATIES II. Construction and Operation 87 C.J.S. § 6. Generally Generally, questions as to the construction, and operation of treaties viewed as contracts between independent nations are questions for the political departments of the contracting powers and not for the courts. Accordingly, respect is ordinarily due the reasonable views of the Executive Branch concerning the meaning of an international treaty. Nevertheless, since treaties in their effect on private rights are in the nature of legislative acts, and are binding on the courts, it is often necessary where such rights are involved for the courts to construe treaties. In such cases, the courts have the power, and the duty, to construe the treaty, and they have the power to determine whether a treaty is applicable to the case under consideration, and the duty to apply it if found applicable. Thus, a treaty, no less than a statute, may confer judicial power. III. DURATION , MODIFICATION , SUSPENSION , AND TERM INATION 87 C.J.S. § 10. Generally — Effect of abrogation. In the absence o a showing that a treaty provision violates the Federal Constitution, the courts may not abrogate or annul a treaty provision. However, where one party to a treaty abrogates it, the other party is relieved from all obligation under it. 87 C.J.S. § 11. Modification or amendment In the absence of a showing that a treaty provision violates the Federal Constitution, courts may not alter, amend or add to any treaty by inserting any clause since to do so would constitute an usurpation of power and would not be an exercise of judicial function. 87 C.J.S. § 12. Manner of termination — Termination by constitutional amendment or by Congress In the United States Congress may abrogate by a formal act or resolution directly abrogating the treaty, or by legislation which by necessary implication results in abrogation. The intent of Congress, however, must be clear. Moreover, a treaty may be abrogated by the adoption of an amendment to the Federal Constitution and the enactment of a federal statute giving operative effect to such amendment which is in conflict with such treaty provisions. 87 C.J.S. § 12. Manner of termination — Effect of War. Treaties may be of such a nature as to their object and import that war will put an end to them, war does not, always or necessarily dissolve or terminate treaties between the contending powers. The question whether the stipulations of a treaty are annulled by war depends on their intrinsic character, and provisions compatible with a state of hostilities, unless expressly terminated, survive, and those which are incompatible fall.23

23

The anti-gun provisions of Paragraphs 45 and 46 M.C./Circ. 623 Rev.3 dated 29 May 2002 have been voided by the war on terror and piracy on the high seas. Seafarers have the inalienable right to defend their lives at sea, meeting force with force with equal or superior firepower (lite infantry weapons and fully automatic weapons). 94

38. IV. R ELATION T O, AND C ONFLICT W ITH, O THER L AWS 87 C.J.S. § 13. Generally Without express authority from Congress, or authority otherwise clearly indicated, the courts are bound to recognize treaties as lawfully made. However, the courts have the authority to declare the invalidity of a treaty in a proper case where the rights of citizens are involved. 87 C.J.S. § 14. Acts of Congress Treaties and acts of Congress, are placed on the sam footing and are of like obligation, so that neither having any inherent superiority over the other, either may supersede the other. Even so, neither treaties nor laws passed pursuant to them are free from the restraints of the United States Constitution, such as the Bill of Rights.24 87 C.J.S. § 15. State Constitutions and Statutes The provision of the Federal Constitution that this Constitution and the laws and treaties of the United States shall be the supreme law of the land, and binding on the judges in every state, anything in the constitution or laws of any state to the contrary notwithstanding, makes treaties superior to both the constitutions and laws of the several states, including the common law of a state, insofar as it is in conflict with the provisions of a treaty. Valid treaties areas binding within the territorial limits of the states as throughout the dominion of the United States. States must adhere to United States treaties and give them the same force and effect as any other federal law, since they are considered to be of equal dignity with acts of Congress, but not superior to the Federal Constitution.25 A treaty must be regarded as a part of the law of a state, as much as are the state’s own local laws and constitution, and is effective and binding on the state legislature.

39. T HE S ECOND A MENDMENT AS A C IVIL R IGHT IN THE U NITED S TATES A. CORPUS JURIS SECUNDUM: VOLUME 16A CONSTITUTIONAL LAW IX. Personal, Civil, and Political Rights and Freedoms Generally 16A C.J.S. § 444. Basic Rights. The entire social and political structure of the United States rests on the cornerstone that all men have certain basic rights which are inherent and inalienable, which exist notwithstanding there is no specific enumerations thereof in the state constitutions. Natural rights include the right of personal liberty, the right of personal security, and the right to acquire and enjoy property, each of which rights is discussed in detail infra §§ 472 et seq., 511, 506-510, respectively. 16A C.J.S. § 446. Bill of Rights in General A Bill of Rights contained in a constitution has been characterized as the supreme law of the land, and nothing else in the constitution can be construed as a limitation, restriction or modification of any such fundamental rights. A Bill of Rights guarantees the preservation of our natural rights.

24

United States v. Yian, 905 F. Supp160 (S.D.N.Y. 1995), aff’d, 134 f.3d 79 (2d Cir. 1998). Italics and underlining are my emphasis for the Second Amendment rights of U.S. seafarers. 25

My emphasis for the Second Amendment rights of U.S. seafarers. 95

The purpose of the Bill of rights is to protect the people against arbitrary and discriminatory use of political power. Broadly stated, the very purpose of the 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; and these fundamental rights may not be submitted to vote and do not depend on the outcome of an election. Also, the Bill of Rights is a remedy which protects the individual against invasion by the government, or any branch thereof, and which provides a barrier to secure the rights of minorities, and to protect the individual against the arbitrary exactions of majorities, executives, legislatures, courts, sheriffs, and prosecutors. The rights guaranteed by the Bill of Rights must be zealously guarded so that they may not be whittled away through minor seemingly innocuous intrusions. The constitutional guaranties negative any form of procedure which arbitrarily singles out any individuals or a class and permits them to be dealt with in a manner arbitrarily or unreasonably different from that in which others similarly situated are dealt with. In some states, the constitutional provisions safeguarding personal rights are substantially equivalent to the guaranties of the Fourteenth Amendment to the Federal Constitution. 16A C.J.S. § 511 Personal Security a. In General The right of personal security is one of the natural rights, and is guarded by various provisions of the state and federal constitutions, derived in part from the Magna Charta and other charters of English liberty, and reinforced by additional and more specific injunctions. The constitution does not require the sacrifice of personal security, and constitutional provisions for the security of the person are to be liberally construed. The guaranties included in the right of personal security are secured against abridgment by the states by the Fourteenth Amendment.26 The right of the people to be secure in their homes is a basic right guaranteed by a state constitution. No right is held more sacred, or is more carefully guarded, by common law, than the right of every individual to possession and control of his own person, free from all restraint or interference unless by the clear and unquestionable authority of the law. Each individual is entitled to be secure in his person, to be free from unjustified violation by others, and to be guarded by law against any unwarranted intrusion upon his tranquility. ... Rights included in personal security. The right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his reputation. It includes the right to exist, and the right to the enjoyment of life while existing, and it is invaded not only by a deprivation of life, but also by a deprivation of those things which are necessary to the enjoyment of life according to the nature, temperament, and lawful desires of the individual. Reputation. The right to the enjoyment of a good reputation is of ancient origin and necessary to human society, as discussed in C.J.S. Libel and Slander § 4, and is with the

26

Hague v. Committee for Industrial Organization, C.C.A.N.J., 101 F.2d 774, modified on other grounds 59 S.Ct. 954, 307 U.S. 496, 83 L.Ed. 1423. 96

constitutional guaranty of personal security; it is a fundamental right to be protected regardless of allegation of special or economic damage. 16A C.J.S. § 478 The Right to Travel The Right of interstate travel is a basic or fundamental right recognized andguaranteed by the constitution, which is virtually unqualified; it is basically a right to travel unrestricted by unreasonable government interference or regulation. . . . Travel, in the sense of a constitutional right to travel, means more than mere locomotion; it means migration with the intent to settle and abide. The right to travel includes the right to enter and abide in any state. Thus, whether a specific type of travel is a fundamental right and, therefore, within the right to travel, may depend on the intent which motivates the movement. The right of interstate travel must be seen as insuring new residents the same right to vital government benefits and privileges in the states to which they migrate as are enjoyed by other residents. Hence, the purpose of inhibiting migration by needy persons into a state is constitutionally impermissible, and all citizens must be free to travel throughout the United States uninhibited by statutes, rules, or regulations which unreasonably burden or restrict this movement. ... A state cannot condition the exercise of the right to travel on wealth, or on the voluntary relinquishment of constitutional rights. 16A C.J.S. § 480 Durational Residency Requirements to Right to Travel A proscribed “durational residency requirement” is a requirement that the traveler not only be a state resident but also that he maintain that status for a certain minimum period before qualifying for benefits; it is one which subjects a new resident to a substantial waiting period before he can apply for the benefit involved. Durational residency requirements inherently infringe on the exercise of the right to travel, and are prima facie invalid, to be countenanced only when they serve a compelling state interest. ... The determination of whether a residency requirement infringes the right to travel does not depend on what benefits other states choose to provide, and consideration must be given to whether the waiting period would deter migration and the extent to which the requirement serves to penalize the exercise of the right to travel. 16A C.J.S. § 482 Involuntary Servitude Under the Thirteenth Amendment to the Constitution of the United States, which provides that “neither slaveryor 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,” and similar provisions in some state constitutions, involuntary servitude, except as a punishment for crime, is abolished. The Amendment has as its aim the maintenance of a system of completely free and voluntary labor throughout the United States. The Amendment not only prohibits governmental action support slavery or involuntary servitude, but is an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States. Accordingly, there is no rule of law under which any person in this country will be forced to serve with his labor any other person whom he does not wish to serve.

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As used in the Amendment, “involuntary servitude” is the condition of one who is compelled by force, coercion, or imprisonment and against his will to labor for another whether or not he is paid, and includes “peonage.” While the leading purpose of the Thirteenth Amendment was to abolish slavery in the United States, and such was its primary effect, the Amendment is not limited to the abolition of slavery, but embraces, in addition, other forms of compulsory labor, akin to slavery, which tend to produce undesirable consequences; and the words “involuntary servitude,” as used in the Amendment, have a more comprehensive meaning than the word “slavery.” The purpose of the Thirteenth Amendment was not merely to abolish the physical cruelties of slavery, but also to eradicate the badges and incidents of slavery. Subject to the exceptions discussed infra §§ 483, 484, the Thirteenth Amendment to the federal Constitution extends to servitude in fact involuntary, no matter under what form or name such servitude may be disguised. All statutes, ordinances, and official actions which violate the constitutional prohibition against involuntary servitude are unconstitutional and void. The Amendment renders void all statutes or contracts providing for a state of peonage.

40. INTERNATIONAL T REATIES & C ONVENTIONS V IOLATING THE U.S. C ONSTITUTION & B ILL OF R IGHTS C IMO/STCW 1995 Amended Standards of Training, Certification and Watchkeeping Convention. C International Convention for the Safety of Life at Sea (SOLAS), 1974. C Paragraphs 44 and 45 of IMO/Maritime Safety Committee MSC/Circ. 623/Rev.3 dated 29 May 2002, PIRACY AND ARMED ROBBERY AGAINST SHIPS : GUIDA N C E TO SHIPOW NERS AND SHIP OPERATORS , SHIPMASTERS AND CREWS ON PREVENTING ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS

41. R EPEALING OR R EVISING F EDERAL G UN C ONTROL L AWS & R EGULATIONS: C 27 CFR § 178.38, Transportation of Firearms

42. 18 U.S.C. § 921 D EFINITIONS 18 U.S.C. § 921(a)(18) The term ''Secretary'' or ''Secretary of the Treasury'' means the Secretary of the Treasury or his delegate.

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43. 18 U.S.C. § 922 Unlawful Acts C 18 U.S.C. § 922(a)(3) It shall be unlawful for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any fire arm purchased or otherwise obtained by such person outside that State, except that this paragraph (A) shall not preclude any person who lawfully acquires a firearm by bequest or intestate succession in a State other than his State of residence from transporting the firearm into or receiving it in that State, if it is lawful for such person to purchase or possess such firearm in that State, (B) shall not apply to the transportation or receipt of a firearm obtained in conformity with subsection (b)(3) of this section, and (C) shall not apply to the transportation of any firearm acquired in any State prior to the effective date of this chapter; C 18 U.S.C. § 922(a)(4) It shall be unlawful for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, to transport in interstate or foreign commerce any destructive device, machinegun (as defined in section 5845 of the Internal Revenue Code of 1986), short-barreled shotgun, or short-barreled rifle, except as specifically authorized by the Secretary consistent with public safety and necessity; C 18 U.S.C. § 922(a)(5) It shall be unlawful for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides; except that this paragraph shall not apply to (A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes; C 18 U.S.C. § 922(a)(9) It shall be unlawful for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, who does not reside in any State to receive any firearms unless such receipt is for lawful sporting purposes. C 18 U.S.C. § 922(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver C 18 U.S.C. § 922(b)(1) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver any firearm or ammunition to any individual who the licensee knows or has reasonable cause to believe is less than eighteen years of age, and, if the firearm, or ammunition is other than a shotgun or rifle, or ammunition for a shotgun or rifle, to any individual who the licensee knows or has reasonable cause to believe is less than twenty-one years of age; C 18 U.S.C. § 922(b)(2) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver - any firearm to any person in any State where the purchase or possession by such person of such firearm would be in violation of any State law or any published ordinance applicable at the place of sale, delivery or other disposition, unless the licensee knows or has reasonable cause to believe that the purchase or possession would not be in violation of such State law or such published ordinance; C 18 U.S.C. § 922(b)(3) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver - any firearm to any person who the 99

licensee knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the licensee's place of business is located, except that this paragraph (A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee's place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States (and any licensed manufacturer, importer or dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States), and (B) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes; C 18 U.S.C. § 922(b)(4) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver - to any person any destructive device, machinegun (as defined in section 5845 of the Internal Revenue Code of 1986), short-barreled shotgun, or short-barreled rifle, except as specifically authorized by the Secretary consistent with public safety and necessity; and C 18 U.S.C. § 922(b)(5) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver -(5) any firearm or armor-piercing ammunition to any person unless the licensee notes in his records, required to be kept pursuant to section 923 of this chapter, the name, age, and place of residence of such person if the person is an individual, or the identity and principal and local places of business of such person if the person is a corporation or other business entity. C 18 U.S.C. § 922(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to transfer or possess a machinegun. C 18 U.S.C. § 922(o)(2)(A) This subsection does not apply with respect to a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof; or C 18 U.S.C. § 922(o)(2)(B) This subsection does not apply with respect to any lawful transfer or lawful possession of a machinegun that was lawfully possessed before the date this subsection takes effect. C 18 U.S.C. § 922(q)(1) The Congress finds and declares that (A) crime, particularly crime involving drugs and guns, is a pervasive, nationwide problem; (B) crime at the local level is exacerbated by the interstate movement of drugs, guns, and criminal gangs; (C) firearms and ammunition move easily in interstate commerce and have been found in increasing numbers in and around schools, as documented in numerous hearings in both the Committee on the Judiciary (FOOTNOTE 2) the House of Representatives and the Committee on the Judiciary of the Senate; (FOOTNOTE 2) So in original. Probably should be followed by ''of''. (D) in fact, even before the sale of a firearm, the gun, its component parts, ammunition, and the raw materials from which they are made have considerably moved in interstate commerce; (E) while criminals freely move from State to State, ordinary citizens and foreign visitors may fear to travel to or through certain parts of the country due to concern about violent crime and gun violence, and parents may decline to send their children to school for the same reason; 100

(F) the occurrence of violent crime in school zones has resulted in a decline in the quality of education in our country; (G) this decline in the quality of education has an adverse impact on interstate commerce and the foreign commerce of the United States; (H) States, localities, and school systems find it almost impossible to handle gun-related crime by themselves - even States, localities, and school systems that have made strong efforts to prevent, detect, and punish gun-related crime find their efforts unavailing due in part to the failure or inability of other States or localities to take strong measures; and (I) the Congress has the power, under the interstate commerce clause and other provisions of the Constitution, to enact measures to ensure the integrity and safety of the Nation's schools by enactment of this subsection. C 18 U.S.C. § 922(q)(2)(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone. (B) Subparagraph (A) does not apply to the possession of a firearm (i) on private property not part of school grounds; (ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license; (iii) that is (I) not loaded; and (II) in a locked container, or a locked firearms rack that is on a motor vehicle; (iv) by an individual for use in a program approved by a school in the school zone; (v) by an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual; (vi) by a law enforcement officer acting in his or her official capacity; or (vii) that is unloaded and is possessed by an individual while traversing school premises for the purpose of gaining access to public or private lands open to hunting, if the entry on school premises is authorized by school authorities. C 18 U.S.C. § 922(q)(3)(A) Except as provided in subparagraph (B), it shall be unlawful for any person, knowingly or with reckless disregard for the safety of another, to discharge or attempt to discharge a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the person knows is a school zone. (B) Subparagraph (A) does not apply to the discharge of a firearm (i) on private property not part of school grounds; (ii) as part of a program approved by a school in the school zone, by an individual who is participating in the program; (iii) by an individual in accordance with a contract entered into between a school in a school zone and the individual or an employer of the individual; or (iv) by a law enforcement officer acting in his or her official capacity. 101

C 18 U.S.C. § 922(q)(4) Nothing in this subsection shall be construed as preempting or preventing a State or local government from enacting a statute establishing gun free school zones as provided in this subsection. C 18 U.S.C. § 926A, Interstate Transportation of Firearms C 18 U.S.C. § 930

44. F EDERAL P REEMPTION OF S ELECTED S TATE G UN C ONTROL L AWS: Inspection of individual state laws will be necessary to determine their individual and collective impact upon the right to travel intrastate and interstate while armed with a handgun for the lawful purpose of personal safety and security. The inspection should not be limited to just the Titles listed below: C C C C C C C C C C C C C C C C C C C C C C C C C C

C C C C C C C C C C C C C C C C C C C C C C C C C

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

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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 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

Therefore, in defense of the American People’s rights generally and in defense of U.S. seamen’s rights specifically in regard to the Department of Homeland Security’s Proposed Rulemaking and in accordance with the MERCHANT MARINERS DOCUMENTS PILOT PROGRAM in Section 611 of the COAST GUARD AND MARITIME TRANSPORTATION ACT OF 2004 (Public Law No. 108-293), the implementing of a “National Open Carry Handgun” or a “National Open Carry Small Arms and Light Weapons” endorsement for the Merchant Mariner’s Document and or the Merchant Mariner’s Credential the Plaintiff files this Motion for Temporary Injunction so that the Court my grant the Plaintiff’s Motion for Negotiated Rulemaking as a condition of settlement.

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D EATH BY A THOUSAND C UTS by Larry Pratt, Gun Owners of America www.GunOwners.org April 2006 Anti-gunners, as with socialists in general, are very adept at taking only as much of our freedom and hard-earned money as they think they can get away with. If they find that they have overstepped, they will back off as much as is needed. When the coast is clear, and nobody is watching, they come back for what they had to leave on the table -- plus a little bit more.

embedded in a bill that hopefully will stop predatory lawsuits from being brought against the firearms industry for actions committed by criminals. The House could have told the Senate that their identical bill -- without the "lock up your safety" provision -- should be voted on by the Senators, but instead, the House capitulated to the anti-gun demands of the Senate.

The Left has typically been willing to play political hard ball and they are willing to confront their opponents with the attitude that "What is mine is mine, and what is yours is negotiable." Many gun owners, and conservatives generally, fail to admit that this is happening, and as a result, prefer to give in rather than be the target of the wild charges leftists make whenever someone disagrees with them.

The latest contribution to chipping away at the right of the people to keep and bear arms is under way in Executive Department. The Bureau of Alcohol, Tobacco, Firearms and Explosives (BATFE) is running out of control in a fashion not seen since the 1970's. One example was their effort to jail a gun collector on a charge that he had illegally converted his rifle to a machine gun. It turned out that the BATFE "expert" had not even looked inside the gun. Had he done so, he might have seen that one of the old parts in the gun was deteriorating and causing the multiple firing. Defects are not illegal under federal law. (By the way, the "expert" was probably a few shots from having the gun blow up in his hands and kill or maim him.)

As the founder and chairman of Gun Owners of America put it in his book, Confrontational Politics, "It takes Leftist Democrat legislators and confrontationally inadequate Republicans to pass socialist programs." (p.87) This process has been quietly underway in the last several years in spite of Republican control of the Congress and Presidency. House of Representatives Judiciary Committee chairman, Jim Sensenbrenner (R-WI), rammed through the Congress a renewal of a ban on (plastic) guns that do not exist. He was eager to work with Senator Kennedy in the Senate so it could be said that Democrats are not the only ones who ban guns. Sensenbrenner was so eager, that he did not even negotiate a quid pro quo. The Democrats won it all on this one; the Republicans got nothing.

Other bureaucratic redefinitions of the right to keep and bear arms is under way at the Department of Homeland Security (DHS). From the very beginning of its lamentable existence, the DHS has never had a moment's thought for involving the people in homeland security, even though the Constitution clearly provides for the militia to be used for that purpose (Article I Section 8). They have preferred to concentrate police power in Washington in the hands of government employees, not average citizens.

On another occasion, Senate Republicans agreed to the proposition that people should have their guns unavailable for self defense. That is what they did when they agreed to force retail dealers to include a gun lock of some kind with each handgun they sell. This was

It has been the DHS that has steadfastly thrown up as many obstacles as possible to keep pilots from being armed. As a result, only a small percentage of the 100,000 or so airline pilots have bothered to jump the high hurdles 104

for obtaining a license to carry a gun in their cockpits. Congress has twice passed legislation directing the bureaucrats to arm the pilots, but their "vicious compliance" has almost completely thwarted Congress' will. It should be added that the Congress has done little to hold the bureaucrats accountable, so it is business as usual.

The application of this amazing view at the Department of Homeland Security is to deny refugee status to minority groups in Burma who have been targeted for genocide. The immediate problem concerns 9,800 Karen refugees whose main crime, other than not being ethnic Burmese, is that many of them are Christians. To keep from being exterminated, some of them have taken up arms (as a "non-state actor!").

Lately a new affront to the Second Amendment's protection of the right of the people to keep and bear arms has been under way in the DHS. The Founders of our republic clearly viewed rights, including the Second Amendment, as universal rights which are inherent in all men. The Declaration of Independence even says that all men are "endowed by their Creator with certain unalienable rights."

The Department of State has given a green light to allowing the Karen refugees asylum status in the United States. The DHS refuses to issue a waiver (which is necessary under our PATRIOT and REAL ID Acts). The DHS anti-gunners are holding to the UN view of the "right of the government to keep and bear arms" rather than the Founders view that "all men are endowed by their Creator with certain unalienable rights."

It would be too lengthy to do so here, but an excellent collection of the Founders' statements on the universality of the rights, and the right to keep and bear arms in particular, can be found in a friend of the court brief by Michele L. Lombardo, et. al. (available at http://www.gunowners.org/fs0602.htm).

Now that the Karen freedom fighters have actually been designated a terrorist organization by the DHS, which means "the US government" to foreign governments, the neighboring rulers of Thailand are getting ready to scoop up these unwanted minorities (they are not Thai either) and throw them into Burma from the refugee camps along the border areas they have inhabited for some time.

The clear intent of the Constitution hasn't bothered the folks at DHS any more than has the law telling them to send the pilots packing, so to speak. They seem to have taken a liking to an idea popular at the UN instead. The UN has been attempting to impose a gun control treaty on the US. It would require registration of all guns, and the stated intention of the promoters of this treaty, on the record, is to keep guns out of all private hands (or "non-state actors" in UN-speak).

If that happens, and when the Karen run out of their limited supplies of ammunition, the genocide will begin. All of which could be prevented if the folks at DHS were told by the President (their boss) to issue the waiver, declassify the Karen as terrorists, and let these freedom fighters enter the US. Other countries would also be willing (and have been willing) to admit Karen refugees, but this is coming to an end if the US continues to label these victims of oppression as terrorists.

That means that if your government is trying to wipe you and the rest of your minority group out (for example, 800,000 Tutsis in Rwanda), it is wrong for you to take up arms because you are not the government.

Let's hope that the Department of Homeland Security's definition of self defense as terrorism will be changed -- and quickly.

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Respectfully submitted.

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

CERTIFICATE OF SERVICE On September 22, 2006, I, Don Hamrick, hereby certify that I delivered a copy of the above by U.S. Postal Service Priority Mail to the following recipients before a defense counsel has been assigned: M Alberto Gonzales, Attorney General U.S. Department of Justice 950 Pennsylvania Ave. NW; Washington, DC 20530-0001 M Michael Chertoff, Secretary Department of Homeland Security Washington, DC M R.Adm. Craig E. Bone, (for Adm. Thomas H. Collins) Commandant (G-P) U.S. Coast Guard 2100 Second St. Washington, DC 20593

Don Hamrick, Petitioner, Pro Se 5860 Wilburn Road Wilburn, Arkansas 72179 (501) 728-4235 [email protected]

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