Supplement To Plaintiff Objection To Motion To Dismiss

United States District Court for the Eastern District of Arkansas, Northern Division

Don Hamrick, pro se (Private Attorney General) (Non-State Actor) 5860 Wilburn Road Wilburn, AR 72179 PLAINTIFF v.

) ) ) )18 U.S.C. § 1964(c) ) 42 U.S.C. § 1983; § 1985; § 1986; § 1988 ) )

) United Nations, et al c/o Ban Ki-Moon, Secretary General 405 E 42nd Street New York, NY 10017 DEFENDANTS

) Jury Trial Demanded )Damages Sought: )$14.4 million from United States Defendants )$14.4 million from United Nations )

Civil RICO Act Complaint No. 1:06-cv-0044

SUPPLEMENT TO PLAINTIFF’S OBJECTION TO MOTION TO DISMISS My original filing of this case on September 11, 2006 consisted of Volume 1, the complaint; Volume 2, the evidence; Volume 3, more evidence; and the Addendum. Judicial Notice must be taken on the gap of subject matter between Volume 3 and the Addendum. It was my original intention on September 11, 2006 to file Volume 4 adding the United Nations to the complaint as though originally filed on September 11, 2006. Volume 4 fills the gap of missing subject matter between Volume 3 and the Addendum in order to more fully comply with the exceptions to the FOREIGN SOVEREIGN IMMUNITIES ACT codified in 28 U.S.C. § 1605, GENERAL EXCEPTIONS TO THE JURISDICTIONAL IMMUNITY OF A FOREIGN STATE .

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T ABLE OF C ONTENTS M Plaintiff’s Books Submitted asEvidentiary Exhibits for Trial . . . . . . . . . . . . . . . . . . . . . . . . . 7 M § 6.28 The Types of Foreign StateActivity to Which RICO Applies . . . . . . . . . . . . . . . . . . . 9 M § — Agencies of the United States as RICO Defendants . . . . . . . . . . . . . . . . . . . . 10 M § 6.30 — Individual Federal Officials as RICO Defendants . . . . . . . . . . . . . . . . . . . . . . . . 10 M 46 U.S.C. § 2103. SUPERINTENDENCE OF THE MERCHANT MARINE . . . . . . . . . . . . . . . . . . . 11 M 46 U.S.C. § 2101. GENERAL DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 M How the Judiciary Stole the Right to Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 M 28 U.S.C. § 1605. GENERAL EXCEPTIONS TO THE JURISDICTIONAL IMMUNITY OF A FOREIGN STATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51

M U.N. Charter - Chapter I - Purposes and Principles . . . . . . . . . . . . . . . . . . . . . . . . . . 55 M Andrew S. Gold REGULATORY TAKINGS AND ORIGINAL INTENT : THE DIRECT , PHYSICAL TAKINGS THESIS "GOES TOO FAR ," 49 Am. U.L. Rev. 181, (October, 1999) . . . . . . . . 55

M U.N. Charter - Chapter VI Pacific Settlement of Disputes . . . . . . . . . . . . . . . . . . . . . . . . . . 57 M Rules of Procedure of theInter-American Commission on Human Rights . . . . . . . . . . . . . . 57 M Defense Counsel Mislead the Court on Judicial Immunity . . . . . . . . . . . . . . . . . . . . . . . . . 58 M 18 U.S.C. § 1001. STATEMENTS OR ENTRIES GENERALLY . . . . . . . . . . . . . . . . . . . . . . . . . . 59 M LEGAL ETHICSTAKING

THE

HARD KNOCKS

OF

JUDICIAL IM M UNITY . . . . . . . . . . . . . 60

M Dixianne Hawks v. County of Butte, et al. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 INTRODUCTION TO THE ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 THE RATIONALITY OF JUDICIAL IMMUNITY . . . . . . . . . . . . . . . . . . . . . . . . 64 1. JUDICIAL IMMUNITY PREVENTS DEMOCRATIC CHANGE . . . . . . . . . 64 2. JUDICIAL IMMUNITY UNDERMINES JUDICIAL CREDIBILITY . . . . . . . 65 3. JUDICIAL IMMUNITY VIOLATES TWO AMERICAN REVOLUTIONS . . 65 CONCLUSION OF THIS PART . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66 II - THE HISTORICAL BASIS FOR JUDICIAL IMMUNITY . . . . . . . . . . . . . . . . . . . . 66 WE ARE THREE WORLDS AWAY FROM ANCIENT ENGLISH LAW. . . . . 69 III - JUDICIAL IMMUNITY VIOLATES THE CONSTITUTION . . . . . . . . . . . . . . . . . 70 THE JOURNEY BACK TO JUDICIAL CONSTITUTIONALITY . . . . . . . . . . . . . . . . . 72 M Daniel Walfish, MAKING LAW YERS RESPONSIBLE FOR TH E TRUTH : THE INFLUENCE OF MARVIN FRANKEL 'S PROPOSAL FOR REFORM ING THE ADVERSARY SYSTEM , 35 Seton Hall L. Rev. 613 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 M POPULAR CONSTITUTIONALISM -V -JUDICIAL REVIEW (SUPREMACY ) . . . . . . . . . . . . . . . 78

M U.S. Senate’s Document No. 103-6, THE CONSTITUTION OF THE UNITED STATES OF AMERICA : ANALYSIS AND INTERPRETATION : ANNOTATIONS OF CASES DECIDED BY THE SUPREM E COURT OF THE UNITED STATES TO JUNE 20, 1992, . . . . . . . . . . . . . . 79 M Convention on the Prevention and Punishment of the Crime of Genocide, New York, 9 December 1948 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

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M David B. Kopel, Paul Gallant & Joanne D. Eisen, FIREARMS POSSESSION BY “NON -STATE ACTORS ”: THE QUESTION OF SOVEREIGNTY , TEXAS REVIEW OF LAW & POLITICS , Vol. 8, No. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 M Frederick Douglass. [1857] (1985). "THE SIGNIFICANCE OF EMANCIPATION IN THE WEST INDIES ." Speech, Canandaigua, New York, August 3, 1857; collected in pamphlet by author. In THE FREDERICK DOUGLASS PAPERS . SERIES ONE : SPEECHES , DEBATES , AND INTERVIEW S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 M Lindsay Moir, THE LAW OF INTERNAL ARMED CONFLICT , CAMBRIDGE UNIVERSITY PRESS , Cambridge, UK, and New York, NY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

M Social Norming The Second Amendment Reinstating a Constitutional Norm as a Social Norm Through Social Norms Marketing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 The Dilemma for the Right of Citizen’s Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 National Open-Carry Handgun as a Deterrent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 Open-Carry Handgun Supported by 9th & 13th Amendments . . . . . . . . . . . . . . . . . . 95 The Meaning of “Bear Arms” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Pointing The Way! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 Eric M. Axler’s, The Power of the Preamble and the Ninth Amendment: The Restoration of the People’s Unenumerated Rights, (24 Seton Hall Legis. J. 431 (2000)): . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 Mark C. Niles’s Ninth Amendment Adjudication: An Alternative to Substantive Due Process Analysis of Personal Autonomy Rights, (48 UCLA L. Rev. 85, October, 2000, . . . . . . . . . . . . . . . . . . . . . . 100 In 1946 Senator Claude Pepper of Florida, entered into the Extension of Remarks of the Congressional Record, The Public Responsibilities of an Educated Citizen, . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106 The Social Norms View of the Second Amendment . . . . . . . . . . . . . . . . . . . . . . . . 108 The Limits of Social Norms 74 Chicago-Kent L. Rev. 1537 (2000) Jeffrey J. Rachlinski . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Social Norms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110 The Fifth Circuit Court of Appeals Blows the Whistle On Sister Courts’ Second Amendment Deceptions . . . . . . . . . . . . . . . . . . . 112 A Nation of Lies Governed by Liars Leads to Deception and Corruption as a Social Norm . . . . . . . . . . . 112 Social Norms Marketing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Assumptions of Social Norms Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 A Deadly Example of a Bad Law Arising From a Misperception: The Jessica Lynne Carpenter, Merced, California Story . . . . . . . . . . . . . . . 116 Grandmother of Slain Children Protests Trigger Locks and Mandatory Gun Storage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118 18 U.S.C. § 1091. Genocide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Social Norming the Second Amendment is Common Sense . . . . . . . . . . . . . . . . . . 122 The Evolution of Social Norms: A Perspective From the Legal Academy by Robert C. Ellickson . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Self-Motivated Leaders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 4

Norm Entreprenuers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Opinion Leaders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 The Process of Norm Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125 The Proving Grounds! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Guillermina Jasso’s Rule Finding About Rule Making: Comparison Processes and The Making of Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 The Enforcement of Norms: Group Cohesion and Meta-Norms by Christine Horne . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 130 M Social Norming Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132

M Social Issues Marketing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 132 M CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 M APPENDIX 1: Brannon P. Denning, and Glenn H. Reynolds, TELLING MILLER ’S TALE : A REPLY TO DAVID YASSKY , 2002 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134

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PLAINTIFF’S BOOKS SUBMITTED AS EVIDENTIARY EXHIBITS FOR TRIAL

U.S. Senate’s Document No. 103-6, THE CONSTITUTION OF THE UNITED STATES OF AMERICA : ANALYSIS AND INTERPRETATION : ANNOTATIONS OF CA SES DECIDED BY TH E SUPREME COURT OF THE UNITED STATES TO JUNE 20, 1992, pub. U.S. Government Printing Office, Washington, DC., 1996. Lindsay Moir, THE LAW OF INTERNAL ARMED CON FLICT , Cambridge University Press, Cambridge, UK, and New York, NY Military Sealift Command, SMALL ARM S TRAINING & QUALIFICA TIO N GUIDE (adapted from COMSC Instruction 3121.9 “The Standard Operanting Manual” (SOM), Freehold, New Jersey (Government publication, Not dated). Stephen P. Halbrook, THAT EVERY MAN BE ARM ED : THE EVOLUTION OF A CONSTITUTIONAL RIGHT , The Independent Institute, Oakland, California, 2nd Ed., 1994. David B. Kopel, Stephen P. Halbrook, Ph.D., Alan Korwin, SUPREME COURT GUN CASES : TWO CENTURIES OF GUN RIGH TS REVEALED , Phoenix, Arizona, Bloomfield Press, 1st Ed., 2004. David E. Young (Ed.), THE ORIGIN OF THE SECOND AMENDMEN : A DOCUMENTA RY HISTORY nd OF THE BILL OF RIGH TS 1787-1792. Golden Oak Books, Ontonagon, Michigan, 2 Ed., 1995.

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Upon returning home from a 2 month voyage as a merchant seaman I received in the mail the 2006 CUMULATIVE SUPPLEMENT to CIVIL RICO PRACTICE MANUAL , 2nd Ed. by Paul. A. Batista, pub. Aspen Publishers which is the principle reason for this supplement to my Objection to Motion to Dismiss. From that book I cite:

§ 6.28 The Types of Foreign State Activity to Which RICO Applies If in fact foreign governments and their agencies can be exposed to civil racketeering liability, what types of claims must a private United States party, as plaintiff, advance in order to avoid the general principle of the [Foreign Sovereignty Immunity Act] FSIA barring American litigation against foreign countries? Stated differently, which exceptions to the FSIA are most readily available to the RICO plaintiff? As the Southway decision stresses, the primary exception will, in most cases, be the “commercial activity” exception. Under the FSIA, “a foreign state shall not be immune from the jurisdiction of the courts of the United States . . . in any case . . . in which the action is based . . . upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” 28 U.S.C. § 1605(a)(2). This clearly stated statutory language has proven elusive to apply, in RICO cases as well as in other types of litigation, and courts in the United States have long demonstrated a tendency to insulate foreign countries and their agencies from litigation in this nation. See generally Republic of Argentina v. Weltover, 504 U.S. 607, 112 S.Ct. 2160, 119 L.Ed. 2d 394 (1992). In Southway, however, the normally conservative Tenth Circuit — whih has historically been barren territory for RICO claims — construed the “commercial activity” exception broadly enough to allow the plaintiffs’ racketeering claims to proceed. As the Southway opinion explained, the FSIA itself defines commercial activity as “either a regular course of commercial conduct or a particular commercial transaction or act. The commercial character of an activity shall be determined by reference to the nature of the course of conduct or particular transaction or act, rather than by reference to its purpose.” 28 U.S.C. § 1603(d). Distinguishing between the “nature” of an act and the “purpose” of the same act can, of course, be an endless Jesuitical exercise. In Republic of Argentina, supra, the Supreme Court, as recently as 1992, attempted to delineate the difference: [W]hen a foreign government acts, not as regulator of a market, but in the manner of a private player within it, the foreign sovereign’s actions are “commercial” within the meaning of the FSIA. . . . [B]ecause the [FSIA] provides that the commercial character of a act is to be determined by reference to its “nature” rather than its “purpose,” 28 U.S.C. § 1603(d), the question is not whether the foreign government is acting with a profit motive or instead with the aim of fulfilling uniquely sovereign objectives. Rather, the issue is whether the particular actions that the foreign state performs (whatever the motives behind them) are the type of actions by which a private party engages in “trade and traffic and commerce.” Republic of Argentina, 504 U.S. at 614, 11 S.Ct. 2160; emphasis in original.

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§ — Agencies of the United States as RICO Defendants Decisions such as Southways and Adler raise the question of whether agencies of the United States are subject to civil RICO actions, since, as Nigeria argued in Southway, if the United States and its agencies are immune from civil actions, foreign actions and their agencies should enjoy the same immunity. Consistency may well be a virtue in many aspects of life, but not always in the law. In fact, the United States and its agencies have been granted immunity from racketeering claims in several decisions, but, as Southway demonstrates, foreign nations had their agencies have not been similarly protected. In Berger v. Pierce, 933 F.2d 393 (6th Cir. 1991) — which, like the Tenth, has been highly conservative in its treatment of civil racketeering issues — held that a federal agency is not subject to any civil RICO liability: Section 1962 states a requirement of “racketeering activity” as a predicate for a civil RICO action. Section 1961(1), in turn defines “racketeering activity,” which requires that the defenant be, variously, “chargeable,” indictable,” or “punishable” for violations of specific state and federal criminal provisions. The assertion that the [federal agency] was engaged in a RICO conspiracy under section 1962(d) was patently defective as a matter of law, since it is self-evident that a federal agency is not subject to state or [federal] criminal prosecution. Berger, 933 F.2d at 397. § 6.30 — Individual Federal Officials as RICO Defendants The automatic immunity accorded to federal agencis from RICO liability does not extend automatically to individual federal officials. While federal officials may qualify for the absolute or limited immunity available to them in all types of federal civil litigation, they do not receive the same underlying protection that federal agencies receive in the RICO context. This distinction was made clear in Mcneily v. United States, 6 F.3d 343, 350 (5th Cir. 1993), in which the fifth Circuit held that the Federal Deposit Insurance Corporaton (FDIC), “as a federal agency, is not chargeable, indictable or punishable for violations of state and federal criminal provisions.” Id. In contrast, as McNeily stressed, individual FDIC officials could face RICO liability, since individual federal officials can violate RICO’s predicate acts. Id. See also Brown v. Nationsbank Corp., 188 F.3d 579, 587 (5th Cir. 1999) (“McNeily doesnot support the grant of qualified immunity to FBI agents”).

I have a First Amendment right to petition the Government for redress of grievances to and aright to challenge and overturn case law and to set precedent proving that the holding the United States Government in accountable for racketeering activities under the RICO Act is a Ninth Amendment right and a Tenth Amendment power as one of the balance of power mechanisms the United States Constitution provide. I find that holding the United States Government exempt from RICO liability at the least violates the Tenth Amendment. 10

The U.S. Department of Homeland Security as general superintendence over the merchant marine under TITLE 46 - SHIPPING Subtitle II - Vessels and Seamen Part A - General Provisions CHAPTER 21 - GENERAL 46 U.S.C. § 2103. SUPERINTENDENCE OF THE MERCHANT MARINE The Secretary has general superintendence over the merchant marine of the United States and of merchant marine personnel insofar as the enforcement of this subtitle is concerned and insofar as those vessels and personnel are not subject, under other law, to the supervision of another official of the United States Government. In the interests of marine safety and seamen's welfare, the Secretary shall enforce this subtitle and shall carry out correctly and uniformly administer this subtitle. The Secretary may prescribe regulations to carry out the provisions of this subtitle.

TITLE 46 - SHIPPING Subtitle II - Vessels and Seamen Part A - General Provisions CHAPTER 21 - GENERAL 46 U.S.C. § 2101. GENERAL DEFINITIONS (34) ''Secretary'', except in part H, means the head of the department in which the Coast Guard is operating.

Judicial Notice must be taken on the fact that the U.S. Coast Guard is operating under the U.S. Department of Homeland Security. Therefore, the U.S. Department of Homeland security has general superintendence over the merchant marine of the United States and of merchant marine personnel. In other words the U.S. Department of Homeland Security has general supervision over me, the Plaintiff, as a U.S. merchant seaman. The United States has waived statutorily waived sovereign immunity in this case under 46 C.F.R. § 1.01-3 Judicial Review and 46 C.F.R. § 1.03-15 General, I find that neither of these regulations explicitly exempts the RICO Act from judicial review of any final agency acts of the U.S. Coast Guard.

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HOW THE JUDICIARY STOLE THE RIGHT TO PETITION John E. Wolfgram*1 31 U. West L.a. L. Rev. 257 (Summer 2000) John E. Wolfgram, B.A. Degree ( University of Wisconsin ), J.D. Degree (Southwestern University 1977) Wolfgram founded the Constituional Defender Association in 1989 to advance Petition Clause Principles. Its name derives from the observation that the practical value of a Constitution depends on the effective enforcement of constitutional rights and limits against government, by the people. The Petition Clause is the People’s Right to redress government violations of the Constitution. It is The Constitution’s Defense system against governm ent usurpation and oppression. More about the author and his legal philosophy can be obtained on line at www.constitution.org. There, look up his name under “Confirmed Abuses.”

INTRODUCTION The right (of petition) embraces dissent, and “would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen.” “[D]eprivation of it would at once be felt by every freeman as a degradation.2 This writer accepts the political wisdom and practical truth of the above quotation from a case that he presented and lost to the Court of Appeals. This Article examines the mechanisms by which the government has undermined and stolen the Right of Petition presently, and prospectively. To be sure, it has “practically denied” the Right of Petition. The theme suggests a practical implication. It is not that government has accomplished the “impossible” of practically denying the right, but rather that the “spirit of liberty” has almost “wholly disappeared and the people have become servile and debased.” But “fitness” to exercise the rights of freemen is never determined by the many who have become servile, but by the few who refuse, at any cost, to surrender their rights to government.

1

Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4 th 43, 51 (1997), cert. denied, 522 U.S. 937 (1997) (citing Story, COMMENTARIES ON THE CONSTITUTION 707 (1833)); see also Cooley, CONSTITUTIONAL LIMITATIONS : PROTECTIONS TO PERSONAL LIBERTY 728 (8 th ed. 1927) (quoting Lieber, LIBERTY AND SELF GOVERNMENT 124(2d ed. 1859)). 2

Chief Justice Burger proposed that “Congress should develop an administrative or quasi-judicial remedy against the governm ent itself to afford compensation and restitution for persons whose fourth amendment rights been violated.” 403 US at 422. His error is in thinking such a system should originate in Congress, or be limited to fourth amendment rights. U.S. v. Lee, 106 U.S. 196 (1882), recognized a right similar to that in Bivens, arising out of the Due Process and Just Compensation Clauses. Justice Harlan’s concurring opinion in Bivins is that a direct action should lie for violation of any Constitutional Right. The question is not “judicial vs congressional power to create such a system.” The first amendment says “Congress shall make no law abridging ... the right of the people ... to petition government for a redress of grievances.” Thus, Congress does not have the power to abridge the right to sue government for redress . But it can create alternatives that people are induced to use, so long as it does not abridge the basic right to sue for redress. The judiciary can not legislate, but the “Petition Clause” problem is not a legislative problem, but pre-emption of common law remedies by judicially created “sovereign immunity.” Thus, the end the Chief Justice urged, is not up to Congress, nor directly up to the judiciary. Rather, it is for the judiciary to free the people from “sovereign immunity.” Only by renouncing that assumption can it free the common law to develop remedies for rights violations. Then Congress can develop alternatives that the people freely choose over the Right to sue in the courts. 12

It is for those very important few, lawyers, ordinary citizens and patriots, who carry the Nation’s full burden of liberty on their shoulders, for whom this Article is written. Forward: The Supreme Court has addressed the Petition Clause in many contexts, but four central aspects of it have been completely ignored. Those central aspects tell the story of how the Judiciary stole the most important parts of the First Amendment Petition Clause: The right of the individual to enforce his rights against government and its agents. The First Aspect is the right to sue government for redress. Instead of such a right, “sovereign immunity” is the rule, and government can only be sued according to its consent. Immunity abridges the right to redress grievances with government. This aspect demonstrates that sovereign immunity is unconstitutional and irrational. The reason: The right to petition government for redress and governmental immunity from redress, are direct contradictions. The former is our First Amendment. The latter is the progressive result of Supreme Court decisions. The Second Aspect is the inconsistency of personal and official immunities with the Petition Clause. Immunity “law” evolved from the Court attempting to navigate between that contradiction, on the one hand, and exposing that its immunity jurisprudence has rendered the Constitution all but unenforceable by the people against their government, on the other. That made the law so unnecessarily complex, compound and convoluted that only the rich can afford the attorneys necessary to protect constitutional rights or prosecute rights violators. That is a two-class society in the making because only the rich can obtain justice under the law. If there is to be personal or official immunity then there must be alternatives consistent with the Petition Clause. Both Chief Justice Burger and Justice Harlan proposed alternatives in their respective opinions in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).3 Both the Court, and Congress, has ignored their call. The Third Aspect is judicial persecution of persons for “criminal exercise” of the Right to Petition. Because the significance of the Petition Clause is so judicially downplayed, United States Attorneys frequently charge protected activity as crimes. Defense lawyers and public defenders are not trained to spot or effectively defend against such abuses. The result is putting thousands of “Political Prisoners” in jail for “criminal exercise” of Petition Clause Rights. The Right to Petition is necessarily obnoxious to government’s will. After all, a petition for redress is a complaint that government violated rights and a demand that it stop, and to compensate the complainant for damages. It should not surprise anyone that government does not want the people doing that effectively. In America, a person who petitions government over grievances of constitutional rights violations that government does not want to hear, can go to prison for felonies like obstruction of justice, bank or mail fraud, or making “false claims.” In the United States today there are thousands of people in federal prisons for acts and intents that were merely an exercise of a Petition Rights that is obnoxious when government (because of immunity) is stone deaf to petitions to redress grievances. It has whole systems of laws to politically persecute those who press their grievances “too far.” But the common law history of the Right demonstrates that “too far” is in most cases, a part of the Right of Petition. The Fourth Aspect is the way the judiciary itself treats the Right of Petition when exercised in the courts. The Court has worked out stringent tests to protect First Amendment Rights 3

Justice Brennan believed “sovereignty was surrendered in the Plan of the Convention.” see Edelman v. Jordan, 415 U.S. 651 (1974). see Art. I, Sections 9 and 10 for some specific “surrenders” by both federal and states at the Convention. The ninth and tenth amendments imply absence of federal immunity. The Due Process and just compensation clauses implies accountability by government for its wrongs. But for those who still doubt, The Petition Clause is the specific “surrender” of governmental immunity from the people. 13

requiring government meet standards of “compelling state interest”; “clear and present danger”, and striking laws for “vagueness” and “over breadth” that fail the tests. Yet, in petitioning before government’s very own courts, the rules are vague, ambiguous, overly broad and judges determine such petitions arbitrarily and without care for the merits by dismissals which are by “law” with prejudice, as if on the merits. Appellate courts simply refuse to address major constitutional issues in unpublished opinions that decide cases without addressing the merits. The Court refuses to hear any of the four aspects raised in this article. The combined effect of these four arrogances to the Right to Petition leaves the people without effective means to communicate with government through process of law. The Court has often acknowledged that the alternative to judicial process is force. Therefore, in so abridging the right of the people to obtain just redress through the compulsory process of law, the judiciary is setting the people up for violence against government by refusing to hear their cries for justice. That is our government wagging a war of oppression against its own people.

I. THE HISTORY OF JUDICIAL ARROGANCE TO FOUR CENTRAL ASPECTS OF THE PETITION CLAUSE A) ASPECT ONE: THE RIGHT OF PETITION FOR REDRESS vs. SOVEREIGN IMMUNITY Almost from the beginning of our Nation, the Court assumed away a major significance of the Petition Clause, holding that as a sovereign nation, the United States is immune from suit, without addressing the affect of the Constitution generally4 or of the Petition Clause specifically, on that “sovereign immunity.” In 1793, barely two years after the adoption of the Bill of Rights, Chief Justice Jay first announced the rule giving way to “sovereign immunity” in obiter dictum .5 He noted that the issue was affected by the difference between a republic and a personal sovereign and saw no reason why a state may not be sued. But he doubted a suit would lie against the United States because “there is no power which the courts can call to their aid” to enforce a judgment. So began America’s journey into judicial tyranny. It is based on an irrational fear that if the courts ordered government to redress its wrongs arising under the Constitution, the government could refuse and make the judiciary seem weak. Judicial cowardice is not a very good reason to refuse to support the Constitution. Among other things, it assumes that the legislative and executive branches, when faced with a judicial determination that government owes compensation to redress grievances arising under the Constitution, would refuse to support the First Amendment Petition Clause and Fifth Amendment Due Process Clause rather than to raise the taxes necessary to fill an order arising under the Judiciary’s Article III jurisdiction. So, instead of standing tall for the Constitution and its enforceability against the government, our very first Supreme Court announced the “Rule of Unaccountability” of government to the people. That rule is this: “Because the Judiciary cannot enforce its order against the government requiring it to be fair and just under the Constitution, the judiciary will not require it to be.”

4

Chisholm v. Georgia, 2 U.S. ( 2 Dall.) 419(1793).

5

Cohens v. Virginia, 19 U.S. ( 6 Wheat.) 264 (1821). 14

That is hardly a rule upon which to found a great nation, but it is the rule upon which the relationship between the American Government and its citizens is founded. It is a rule of cowardice under an assumption that government is will basically rule by brute force. But more than anything, it is a self fulfilling prophesy. It lays the foundations for eventual federal arrogance to state and individual rights. In Cohens v. Virginia,6 Chief Justice Marshall avoided Justice Jay’s weakness by simply asserting “the universally received opinion is that no suit can be commenced or prosecuted against the United States.” Later, In United States v. Clarke,7 he declared that because the United States is not “suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it.”8

6

United States v. Clarke, 33 U.S. ( 8 Pet.) 436 (1834).

7

The Court repeated the doctrine of sovereign immunity in at least a dozen cases in the nineteenth and early twentieth century, but it has never analyzed the constitutionality of the doctrine. The tenth amendment states that the powers not delegated to the United States are reserved. Where is the power of “sovereign immunity” delegated? If it is not fairly within the four corners of the Constitution, it is not a federal power; a fortiori, when it is also expressly prohibited to the United States by the Petition Clause. Some cases that assumed sovereign immunity without justifying it are: United States v. McLemore, 45 U.S. ( 4 How.) 286 ( 1846); Hill v. United States, 50 U.S. ( 9 How.) 386, 389 (1850); De Groot v. United States, 72 U.S. ( 5 Wall.) 419, 431 (1867); United States v. Eckford , 73 U.S. ( 6 Wall.) 484, 488 (1868); The Siren, 74 U.S. ( 7 Wall.) 152, 154 (1869); Nichols v. United States, 74 U.S. ( 7 Wall.) 122, 126 (1869); The Davis, 77 U.S. ( 10 Wall.) 15, 20 (1870); Carr v. United States, 98 U.S. 433, 437-39 (1879); Gibbons v. United States, 75 U.S. ( 8 Wall.) 269, 275 (1869); United Statess v. Lee, 106 U.S. 196 (1882); Peabody v. United States, 231 U.S. 530, 539 (1913); Koekuk & Hamilton Bridge Co. v. United States, 260 U.S. 125, 127 (1922). In Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907), Justice Holmes stated the reason for sovereign immunity is because “there can be no legal right as against the authority that makes the law on which the right depends.” His explanation begs both the tenth amendm ent and Petition Clause questions, and portrays government power as not bound by any law, not even its own. Again, government is portrayed as a “Brut of Force” that trounces its own people without accountability for the wrongs it does. Such is a shocking statement by a man of his intellect, for it is obvious that the ultimate recourse against the authority that makes law but disregards rights, is revolution ... and then to institute a new government that is not so impertinent to the basis of power. That is exactly what our forebears did in 1776. Notwithstanding government’s objection to such an interpretation, that right of rebellion is embodied in the Common Law behind the Petition Clause. 8

The United States v. Lee, 106 U.S. 196 (1882). George Lee was the son of the Southern General from Virginia, Robert E. Lee. Before the Civil War, then Col. Robert E. Lee worked for Abraham Lincoln and held an estate in 1100 acres on the banks of the Potomac over looking Washington D.C. Before the War the property was known as “Arlington Estates.” But during the war, tens of thousands of dead soldiers from both North and South, were brought into Washington with no place to bury them. One popular story is that General Sherman inquired of who owned the property to purchase it for a cemetery. But upon learning that it belonged to Lee, he commandeered it, and today, 400 acres of it are best known as “Arlington National Cemetery”. The story behind U.S. v. Lee is even more interesting. Arlington Estates was visible from the White House. In advance of the War Abraham Lincoln asked his Chief of Staff Col. Robert E. Lee, to Command the Army of the Potomac. Lee took leave back to Virginia to consider the offer. Two weeks later he returned and told Lincoln that his loyalties were with his Home State of Virginia. He left an embittered President behind. Lincoln knew that Lee was his best military strategist and history records the magnitude of his loss as Lee beat back Lincoln’s armies time after time. So the story goes, Lincoln, looking across the Potomac to Lee’s estate conceived a plan to hurt Lee and help finance the war effort at the same time. He would lay a war tax on property and require landowners to pay the tax personally to the tax collector, and not by agent. Southerners who owned land in the North 15

There can see from the trail of cases a common design to ignore the Petition Clause and the “Petition of Right” that it necessarily implies, without addressing it, but without specifically denying it either. In that sense, if the Petition Clause of the First Amendment does not mean that the People have a right to petition for just redress from government under the law that even Congress cannot abridge, what does it mean? Yet, over the first half of the Nineteenth Century, judicial arrogance to the single most important right of justice against government became our “common law”, the express declarations and implications of the Constitution as it is written to the contrary, notwithstanding. The United States v. Lee:9 It wasn’t until 1882 that the “Right of Petition” was discussed at all in the sovereign immunity context. In U.S. v. Lee, Justice Miller held that under the Due Process and Just Compensation clauses government agents could be sued for unlawful takings, as a matter of right. At 27 L. Ed. 176, he “concedes” that sovereign immunity is “the established law of this country, and of this Court at the present day.” Then he discusses the English “Right to Petition.” He observes that it is uncertain whether the King “was not suable in his own courts and in his kingly character” but after the Right was established, it “was practiced and observed in the administration of justice in England (and) has been as effective in securing the rights of suitors against the Crown, in all cases appropriate to judicial proceedings, as that which the law affords in legal controversies between the subjects of the King among themselves.” Notice the strange effect. Justice Miller determined that the “Right of Petition” is a part of the common law that we would normally inherit from England absent anything to the contrary in our Constitution. But he doesn’t treat it like that at all. What he does is to assume away our Petition Clause without so much as a curtsy to it:

wouldn’t be able to pay the tax, and would lose the property. Eventually the Court determined that it violated due process to refuse to accept a tax paid by an agent. But Robert E. Lee never offered to pay the tax at all. After the war, Lee lost his civil rights, but under U.S. Const. art. III, § 3, the forfeiture is limited to during the General’s lifetime. When Lee died, his son sought to regain title to Arlington Estates which included by then, two post Civil War military forts and Arlington National Cemetery. His theory was based in the common law of contract. If one to whom performance is due, refuses tender, or announces in advance that tender will be refused, the law treats it as if performance has been made. Thus, even though his father never offered to pay the tax, George Lee could treat it as paid. Because the United States had “sovereign immunity” Lee sued the generals in whose name the property was being held for the United States, to eject them. The case went to a Virginia jury to determine whether General Lee’s performance had been prevented by the tax collector’s announcement that it would not accept payment by an agent. The Virginia Jury, generally sympathetic to the Robert E. Lee family, found that performance had been prevented, and that the prevention was, according to previous Supreme Court Decision, unlawful. Therefore the issue must be treated as if the tax had been paid. That meant that the title that transferred the property to the generals was void and Lee’s son came into title upon Lee’s death. George Lee owned the property and could eject government officers. On certiorari to the Court, the United States interpleaded saying that it was the real party in interest, that it was a necessary party; that it had Sovereign Immunity, and that immunity extended to the generals as agents of the United States. Justice Miller’s treatment of the “Necessary Party” argum ent is most interesting. Citing from other cases, principally from Chief Justice Marshall in Osborn v. Bank of U.S ., 22 U.S. ( 9 W heat.) 738 (1824) he concluded: “Where the State is concerned, the State should be made a party, if it can be done. That it cannot be done (because of immunity) is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the State, in all respects as if the State were a party to the record.” 9

See 27 L. Ed. at 176. 16

There is in this country, however, no such thing as the petition of right, as there is no such thing as a kingly head to the Nation, nor of any of the states which compose it. There is vested in no officer or body the authority to consent that the State shall be sued, except in the law making power, which may give such consent on the terms that it may choose to impose.10 (emphasis added). Justice Miller’s statement is absolutely false. If the Framers, noticing the English “Petition of Right”, wrote it into the First Amendment as they wrote other “common law” rights into it, then it is our right too. No act of Congress is necessary to give it effect. In fact, the First Amendment precludes Congress from making any law “abridging” it. That is the strongest argument possible for a Right to sue government directly: It is written into our Constitution and may not be abridged even by Congress. The issue is The People’s Right to hold government to Constitutional restraint. If they cannot hold it to account for such violations, then either the Constitution is not the supreme law, or the supreme law does not bind government. The supreme law of the land must be as binding on government when government doesn’t like it as it is on citizens whether they like it or not. If either the people or government do not like certain constitutional clauses the remedy is to amend the Constitution, not “interpret” it contrary to its express and contextual meanings. The Constitution contains its own terms for amendment, and “judicial fiat” is not among them. The Defense of Sovereign Immunity: The fallacies of sovereign immunity are best seen through its defense in the Lee dissent. It has only two basic propositions. The first is that the United States is a “sovereign”, and as such, cannot be sued without its consent. The Second is a parade of horribles, if the Sovereign is subject to suit. The first argument: “The United States is Sovereign and cannot be sued”. That maxim (immunity from suit) is not limited to a monarchy, but is of equal force in a republic. In the one, as in the other, it is essential to the common defense and general welfare, that the Sovereign should not, without his consent, be dispossessed by judicial process, of forts, arsenals, military posts and ships of war necessary to guard the national existence against insurrection and invasion; of custom houses and revenue cutters, employed in the collection of revenues; or of light-houses and light-ships established for the security of commerce with foreign Nations and among different parts of the country.11

10

Id. at 183.

11

The reasons identified in Scheuer v. Rhodes, 416 U.S. 232 at 240 for official immunity are more illusory than real. While fear of personal liability may tend to intimidate officials, most officials are or can be covered by insurance or indemnity agreements. The idea that such fears would injure government performance is the same argument as “Doctors must be immune from negligence actions or otherwise hospitals will be intimidated from providing medical services.” The question is whether the complexity of rules carved out to immunize government officials become so burdensome so as to chill the people from seeking just redress for grievances with government. As that happens, government loses contact with accountability for the wrongs of its agents, and with that, all motives to become more fair, more kind and more gentle with its people. In Owen, 445 U.S. at 629, n. 6, the Court notes that “Ironically, the publication of the libelous documents was caused by City Counselor’s assurance that ‘the City does have immunity in this area.” Thus, immunity creates its own Constitutional violations and neither the Judiciary nor Congress have any idea how extensive that problem is. Likewise, when the Court makes immunity policy, it has no scientific support for its finding that “fear of potential liability for doing his official duty” really impairs any public interest. In fact, one can come to the opposite conclusion: That exposure to liability for wrongs in office selects for more honest and diligent officials who know that the best defense to intimidation from potential liability for doing one’s job under the Constitution, is to understand and support the Constitution in the performance of that job. 17

This argument contains Two Major Fallacies: The First Fallacy: Where does this idea that government is immune from suit come from? The History of the Right to Sue Government dates to 1215 A.D. and the signing of the Magna Carta . How in that light, is “sovereign immunity from suit” a “maxim?” And even if it were such in England, what would make it a “maxim” in post revolutionary America? Put more closely to the point raised by the dissent, who determines what is essential to the common defense and general welfare? To be sure, government through the Congress, and even through the executive, has a role. But the People, in framing the Constitution, had first choice of the values to be enshrined. If they determined it is government’s duty to redress their grievances for rights violations, it is not for government to re-evaluate that decision, but to carry it into effect. That is the Petition Clause command which “Congress shall make no law abridging.” The first fallacy in defense of sovereign immunity then, is a “boot strap” argument. By assuming that sovereign immunity is a “maxim”, the Dissent begs the question at issue. The Second Fallacy:The argument ignores the government’s right of condemnation. Where petition rights would dispose of government of essentials, government has a right to condemn what it needs, but it must pay a just compensation for it. Thus the parade of horribles the Dissent sets out has nothing to do with loss of necessary facilities by judicial process. What they want to protect is government’s “right” to take property without just compensation : Theft. That is today the people’s grievance with government: When it comes to the people’s rights, the official disposition is the same as that of organized crime: “Take what you want, and don’t pay for it unless you get caught and then stonewall the aggrieved into oppression.” The real substantive Petition Clause vs. Sovereign Immunity issue: What sovereign immunity allows government to wrongfully injure its citizens, their liberty and property, without just compensation? It is not injury to rights that is in issue. Rather, it is just compensation for such injury that is in issue: Government wants the right to be a crook. The idea of government taking what ever it wants by force and oppression is the basic barbarian notion rejected by our Constitution, but resurrected by judicial interpretation. “Immunity” is “justified” by the very ancient (pre Magna Carta ) “common law” of England, where the King took what he wanted and wasted the property and lives of those who resisted. As to the “parade of horribles” objection, Justice Miller observed: In this connection, many cases of imaginary evils have been suggested, if the contrary doctrine should prevail. Among these are seizure of vessels of war, invasions of forts and arsenals of the United States. Hypothetical cases of great evils may be suggested by the particularly fruitful imagination in regard to almost every law upon which depends the rights of the individual or of the government, and if the existence of laws is to depend upon their capacity to withstand such criticism, the whole fabric of law must fail . United States v. Lee allowed suit against the “Sovereign’s” officers. But Courts since have given great weight “to the particularly fruitful imagination in regard to almost every law upon which depends the rights of the individual or of government.”12

12

The International Covenant on Civil and Political Rights was adopted by the United Nations on 12/16/66, and signed by the United States on October 5, 1977. The Senate by resolution of 4/2/92, gave its advice and consent to ratification, subject to Reservations, Understandings and Declarations. Instrument of Ratification, signed by President George Bush, 6/1/92. There, Art. III, § .3 declares: “That the United States declares that it accepts the competence of the Human Rights Committee to receive and consider 18

Sovereign Immunity Violates International Law: As shown, sovereign immunity finds no support in our history. It was not in our common law before the Constitution; it is actually prohibited by the Constitution, and its assumption is a living contradiction to the very idea of limited government designed into the Constitution. Sovereign immunity is inconsistent with government accountability for injuries caused in violation of its own law. Beyond arguments arising out of history and the clear language of the Petition Clause itself, the future prospects of governments remaining unaccountable to their own citizens for the injuries they cause in violation rights, is not very persuasive either. On that point, The Universal Declaration, Art. 8, states the essence of our Petition Clause, as to all governments: Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by constitution or by law. Notice the words “right to an effective remedy .” What is an “effective remedy” for rights violations if it is not the right to sue government for just redress under law? That is a founding treaty of the United States with the United Nations forbidding our government from exercising immunity from its citizens for its violations of Constitutional Rights. Notice here, for later consideration, that the right to an effective remedy, is a substantive right . The International Covenant 13 Article II, §§ 2 and 3 declares: 2. Where not already provided for by existing legislative or other measures, each State party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.14 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding the violation has been committed by persons acting in an official capacity . (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other

communications under Art. 41 in which a State Party clam s that another State Party is not fulfilling its obligations under the Covenant.” 13

In the present context, the emphasized clauses obligate the United States Judiciary to free the Constitution’s Petition Clause to do its work by undoing the assumption of sovereign immunity. The Covenant is presented for both its binding force as “Supreme Law of the Land”, and also for its persuasive force in reason, to help understand the nature of our own Petition Clause, that it is a law of reason freely chosen by our founders: If we now choose it freely as a basis for the organization of free nations, why should we presume that it was less compelling when our Founding Fathers brought the Thirteen Colonies together under one Constitution? 14

The International Covenant’s preamble states the purpose of effective judicial remedies notwithstanding the violation is committed by persons acting in official capacity, as follows: “Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights , as well as his economic, social and cultural rights.” A condition necessary for enjoyment of rights, is com pulsory process of law to protect those rights; and to obtain just redress for their violation. 19

competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;15 Effective Rights is the Hallmark of Civilization : The argument that the Right of Petition includes the right of use the compulsory process of law against government to redress grievances with it does not depend on any particular idea of the common law or of history. The most important argument of all is that of the Petition Clause as it is written and in its context. What else can be meant by those words then that government is accountable under the law for the wrongs that it does to the people. That is a fundamental concept of civilization, as we know it. Any barbarian state can say its people have rights and point to a “bill of rights.” But “rights” don’t mean a thing unless enforceable: People enforce rights, either with bombs and guns, or in a civilized world, through effective compulsory process of law; to wit: The Judicial Remedy. Sovereign immunity is the judicial theft of the people’s right to a civilized relationship between themselves, individually, and their government. It should be seen for what it is. Concluding Aspect 1: Thus began the myth of governmental sovereignty from the people. Today, the logic flows: Since the United States can only be sued by and through its consent, suits against it can be brought only as prescribed by Congress.16 Only Congress can waive immunity. Its officers have no power to waive it.17 Even when allowed, suits can be brought only in designated courts.18 Congress may grant immunity to corporations.19 And on it goes: Government is immune, by its own declaration, to violate rights with impunity. What are Rights if Government is immune to violate them? What is a “Right” without the effective right to redress for its violation? Rights means Accountability of Government directly to their own people for violations of their own people’s rights. That is the public policy of the United States, by treaty;20 and by Constitution. Today, we have treaty obligations to expand judicial remedy to include rights violations “committed by persons acting in official capacity” and requiring effective remedies for violations of domestic law. But we are harnessed with a judiciary that insists on immunity from the people based in the bygone philosophy of “The Divine Right of Kings.” Per Justice Jay, the “reason” America adopted that medieval judicial philosophy is his lack of the courage of constitutional conviction. A few years later, Justice Marshall designed judicial supremacy over the Constitution

15

Lonergan v. United States, 303 U.S. 33 (1938).

16

United States v. New York Rayon Co. 329 U.S. 654 (1947).

17

United States v. Shaw, 309 U.S. 495 (1940).

18

Brady v. Roosevelt S.S. Co., 317 U.S. 575 (1943).

19

The Universal Declaration of Human Rights, Gen. Assem. Res. 217, A(III), 10 Dec. 1948, is a cornerstone human rights treaty of the United States with the United Nations. It’s Preamble sets out the important role that government accountability to its own people plays in international peace: “Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,” 20

The case that is credited with founding Judicial Supremacy is Marbury v. Madison, 5 U.S. ( 1 Cranch) 137 (1803), by Chief Justice Marshall. Actually, it founded the judicial policy of “Judicial Review” and that is not quite the same thing as “Judicial Supremacy” where in addition to supremacy over the other branches, the judiciary assumes supremacy over the Constitution itself. In all probability, Chief Justice Marshall would be absolutely astounded at the judicial philosophy he is credited with founding. 20

so that it now means whatever The Court says that it means21 . Between them, they found a novel way to avoid the “messy business” of amending the Constitution. We can call that “Constitutional Amendment by Judicial Fiat.” It is not legal, and in effect, it undermines the entire reason for having a constitution at all. That is just cause for grievance with our “Justice System..” The problem: How to capture the government’s attention?

B) ASPECT TWO: JUDICIALLY CREATED PERSONAL & OFFICIAL IMMUNITY Initially, the Petition Clause protects the Right to Petition Government for redress; not necessarily its officers. Hence, while Government may not abridge the right to Petition it for redress, it plausibly may immunize its officials from personally being sued, providing it leaves an unabridged remedy against government for the official’s conduct in government’s name.22 Nothing so epitomizes the danger of abridging the Petition Clause, vis a vis personal immunities, more than Congress’ 1988 amendment of the Tort Claims Act. In 1971 Chief Justice Burger wrote, in his dissent in Bivens:23 “The venerable doctrine of respondeat superior (A master is liable for his agent’s acts) in our tort law provides an entirely appropriate conceptual basis for this remedy” (directly against government).24 The Tort Law, 28 U.S.C. 2674, allowed: “The United States shall be liable, ... in the same manner and to the same extent as a private individual under like circumstances...” In 1988 Congress amended it to reflect judicial immunities: ... The United States shall be entitled to assert any defense based upon judicial or legislative immunity which otherwise would be 21

At least the Petition Clause does not forbid it. There are other clauses that might forbid it. For example, the nobility clause and due process clauses; and at some point, the equal protection clause. We should not forget that the class of “government officials” is the “ruling class.” It is doubtful the Constitution allows special privileges and immunities on the basis of that class distinction alone. 22

Bivens, 403 U.S. at 422.

23

The Chief Justice was referring to the Tort Claims Act as a remedies model for violations of the Constitution by government officials. The Tort Claims Act does not cover Constitutional Torts, as such. 24

The problem is not that we arenot able to trust Congress to determine how much abridgment is too much. Rather, Congress has never examined the issue in the light of the specific “public policy” written into the Petition Clause, because the judiciary has hidden that policy. There are reasonable market place alternatives to the public policy reasons for most immunity. i.e. government defends and insures or indemnifies its non-immune officers in most cases now, so what is the purpose of immunity? see Scheuer,416 U.S. at 240. ( Chief Justice Burger identified the two “mutually dependent rationales” on which the doctrine of official immunity rested.) They are the injustice of subjecting an officer to liability where he is required by his position to exercise discretion, and the danger that such liability would deter his willingness to execute his offices with the decisiveness and judgment required for the public good. Government indemnification, like insurance, lifts most, if not all of the burden from personal liability. But as to the basic argument, what is the difference between the discretion exercised by a public servant and a medical doctor such that the former is immune, even for intentional constitutional torts (Judges, Prosecutors) but a medical doctor in life and death decisions, is liable for a negligent twitch of a finger? 21

available to the employee whose act or omission gave rise to the claim. The 1988 amendment anticipates future abridgments including by Congress; but Congress didn’t conceive of agent immunity until the judiciary made immunity a part of daily life. Given the judicial teaching, that is not surprising, but lest we forget, it is the First Amendment Congress is abridging.25 The Tort Claims Act is itself, a response by Congress to Court Created Sovereign Immunity, to relieve the harshness of the judicial doctrine. Now Congress endorses it. Immunity Centralizes Power: The purpose of “Separation of Powers” was to protect the people from a unified “kingly sovereign.” But as the judiciary granted special immunities to the other branches, it co-opted their independence and centralized power in the Judiciary. In effect, the judiciary is uniting the “sovereign branches” against the people:26 First came absolute immunity to the President.27 Then, almost immediately, was absolute immunity to Judges, state and federal;28 Then to the President’s officers for discretionary acts.29

25

A Judicially created immunity is a complete abridgment of the right to redress. To the victim of immunized conduct, all of government, local, state, federal; and all of its branches, are aligned against him, saying in effect, “You must accept the violation and injury, without recourse.” In a real sense, the Supreme Court has assumed the role of “king of kings” dispensing immunity to the lessor kings according to its pleasure. 26

State v. Johnson, 71 U.S. 475 (1867); Nixon v. Fitzgerald 457 U.S. 731 (1982).

27

Bradley v. Fisher, 80 U.S. ( 13 Wall.) 335 (1872); Pierson v. Ray, 386 U.S. 547 (1967); Stump v. Sparkman, 435 U.S. 349 (1978),; Mireles v. Waco, 502 U.S. 9 (1991). Bradley v. Fisher is the seminal case on judicial immunity. It sets the stage for unlimited personal immunities. Bradley is based on two false premises. One is that we inherited the British Common Law on that subject. That was handsomely refuted by Justice Black in Bridges v. State, 314 U.S. 252, 260 (1941). The other was that judicial immunity WAS the British Common Law. In fact, Chief Justice Lord Denman stated that law in Kendillon v. Maltby, 174 Eng. Rep. 562, 566 (N.P. 1842) as follows: “I have no doubt on my mind, that a m agistrate, be he the highest judge in the land, is answerable in damages for slanderous language, either not relevant to the cause before him or uttered after the cause is at an end; but for words uttered in the course of his duty, no magistrate is answerable, either civilly or criminally, unless express malice and absence of reasonable or probable cause be established. “ Today, constitution based commonwealth countries have no judicial immunity for violation of Constitutional Rights. see THE DIGEST OF BRITISH, COMMONW EALTH AND EUROPEAN CASES,, Note 3641, “No Liability for acts done in Judicial Capacity -- Unless Interference with Rights or Freedoms Under Constitution”. 28

Suggested in Harlow v. Fitzgerald, 457 U.S. 800, 812-13 (1982); qualified immunity to Attorney General, Mitchell v. Forsyth, 472 U.S. 511 (1985); Absolute immunity to Prosecutors; Imbler v. Pachtman, 424 U.S. 409 ( 1976). 29

Hans v. Louisiana, 134 U.S. 1 (1890); Edelman v. Jordan, 415 U.S. 651 (1974). The prevailing eleventh am endm ent doctrine was that it did not prohibit suits against the States arising under federal question jurisdiction, nor suits against a State by its own citizens. Cohens v. Virginia, 19 U.S. ( 6 Wheat.) 264 (1821). It was not until after the Civil War that the Court found that the eleventh amendment barred suits of citizens against their own Government as the prelude to Hans v. Louisiana. Then in Edelman v. Jordan, in 1974, Justice Rhenquist married the eleventh amendment to the State Sovereignty doctrine. We should remember that it is abridgm ent of the Right to Petition one’s own Government that the Petition Clause forbids. The eleventh amendment specifically does not abridge the right to petition one’s own state government in federal court for redress. The Court amended both the first and eleventh amendments by one simple act of judicial fiat, and by that judicial act, changed the “legal” relationship between government and 22

Then to the States; vis a vis a reinterpretation of the Eleventh Amendment to provide the states with immunity from their own rights conscious citizens.30 Then qualified immunity to government agents.31 With all immunities and “good faith extensions” of it, the law is so convoluted and contradictory that no one knows what the “law” is.32 That creates arbitrary power in all government officials. They not only have court created immunity, but they live a myth of extended unaccountability far beyond where even the Court ever dreamed it would go. Notice: This takes the Effective Right to Petition away from the people and centralizes it in the federal government. Having bridged “Separation of Powers” to unite all of the federal government against the governed, it now co-opts the states by bribing them with a shield from their own citizens while amending the Tort Claims Act to take advantage of ever broadening judicial and legislative immunity. Should you be worried about this trend?

governed. 30

O’Connor v. Donaldson, 422 U.S. 563 (1975) ([s]uperintendent of Schools); Wood v. Strickland, 420 U.S. 308 (1975) ([s]choolboard members); Scheuer v. Rhodes, 416 U.S. 232 (1974) (state executive officers for discretionary acts). 31

A few examples from 42 U.S.C.A. 1983 demonstrates the point: “Qualified immunity covers liability for claims brought against police officers under both Section 1983, and common law.” Capone v. Marinelli, 868 F.2d 102 ( 3d Cir. 1989); Police officers have absolute immunity for perjury at probable cause hearing. White v. Frank, 680 F. Supp. 629 ( S.D.N.Y. 1988). Officers have qualified immunity for use of deadly force, where at time of incident, law is unsettled. Hamm v. Powell, 874 F.2d 766 ( 11 th Cir. 1989). Once issue of qualified immunity is injected into civil rights case, “plaintiff has burden of demonstrating that defendants violated some ‘clearly established’ constitutional right,” Olzinski v. Maciona, 714 F. Supp. 401 ( E.D. Wis. 1989); For qualified immunity, the officer must demonstrate good faith belief and reasonable grounds for his actions, and that they were within course of official conduct. But where a citizen’s right is clearly established, the officer may be immune if he neither knew, nor should have known of the legal standard due to extraordinary circumstances. Alexander v. Alexander, 706 F.2d 751 (6 th Cir. 1983). Qualified immunity applies if either the officer didn’t know and shouldn’t have known his acts would violate rights, or where he acted “without malicious intention” to violate rights. Allen v. Dorsey, 463 F. Supp. 44 (E.D. Pa. 1978). Executive officials as a rule, enjoy qualified good-faith immunity. Coleman v. Frantz, 754 F.2d 719 ( 7 th Cir. 1985). Then there is a whole different line of immunity, for “discretionary acts.” “A limited immunity from personal liability for unconstitutional conduct may be applied to many classes of public officials who are required to exercise discretion the course of their responsibilities.” Atcherson v. Siebenmann , 605 F.2d 1058 (8 th Cir. 1979); ‘Acts which are discretionary in nature by a public official do clothe him with a governmental immunity of a limited nature.’ Dewell v. Lawson, 489 F.2d 877 ( 10 th Cir. 1974) Immunity is extended to private parties performing government contracts; Devargus v. Mason & Hanger-Silas Mason Co,. 844 F.2d 714 (10 th Cir. 1988), cert. demied, 498 U.S. 1074 (1991). Absolute prosecutorial immunity is extended to cover qualified immunity of a sheriff who holds a prisoner for 18 days without hearing on the grounds that he informed the prosecutor to arrange time for appearance, but the prosecutor didn’t act. Coleman v. Frantz, 754 F.2d 719 ( 7 th Cir. 1985). 32

Immunity is Based on a Dangerous Myth: That unredressed grievances just go away. They don’t. They fester, and spread as rumor to become common knowledge of government’s injustice, to gradually rot the moral fiber of the Nation. The only protection Government has from the people, is to provide effective redress of just grievance. That is the teaching of the Magna Carta, the first amendment Petition Clause, The Universal Declaration of Human Rights and The International Covenant on Civil and Political Rights. It is extremely dangerous to believe those principles do not apply to The United States of America in the Twenty-First Century. 23

This is “Big Government” uniting at all levels against its own people, creating the suspicion and fear that are the conditions for war and terrorism which then justifies more power to chill, punish and intimidate the restlessness it is causing. Such is government, somersaulting out of control, into worse and worse relations to its own people.33 Yes, you should be worried. Immunity has its own Momentum: Given sovereign immunity and stare decisis,34 arguments to extend immunity are much more persuasive than those to curtail it.35 Such is the result of government’s organization to refine itself to do better what it is supposed to do. Unfortunately, under the doctrine of sovereign immunity, the primary thing government is “supposed to do” is protect itself from accountability to the people for violating there Constitutional Rights. Eventually, the Court recognized Congress’ power to “abrogate” state immunity for violation of Civil Rights; Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)36 and the Commerce Clause; Pennsylvania v. Union Gas Co. 491 U.S. 1 (1989). But the “doctrine” of abrogation is a token to pacify Congress and conceal the true fact that Congress has no practical control over immunity at all. The law is so complex that immunity exists, as a practical matter whenever a judge wants it to; and he is not accountable for deprivation of rights to redress, or any constitutional rights. He has absolute immunity too. As the reader no doubt knows: “Power corrupts and absolute power corrupts absolutely.” Immunity is the absoluteness of any limited power, which corrupts absolutely. This Difference of Orientation: Absent a showdown between sovereign immunity and the Petition Clause, abridgments are increasing because government, from individual agents, up through its organizational levels have organized to defend themselves from accountability based on the “Kings Sovereignty” as a foundational concept in government to governed relations. This is a pervasive orientation away from the Constitution and human rights, and toward not just “big government” but “sovereign big government” where unaccountability to those injured in the “Sovereign’s” name is a national way of life.37

33

In the early nineteenth century beginnings of our “sovereign immunity” tradition, stare decisis impelled Courts to turn to British Common Law for authority and guidance, because there was very little else. 34

U.S. v. Lee, 27 L. Ed. at 184. ( Lee, J., dissenting) (attributes Lee’s success to overcoming these factors: “These principles appear to us to be axioms of public law, which would need no reference to authorities in their support, were it not for the exceeding importance and interest of the case, the great ability with which it has been argued, and the difference of opinion that has been manifested as to application of the precedents.”) 35

Neither the fourteenth amendm ent, nor § 5 authorizes Congress to contravene the express purposes of the Amendment, which is to extend protection of U.S. Constitutional Rights to all the People from State Abridgment: Creation of State Immunity, whether by the Court, or Congress, contradicts the face and substance of the fourteenth amendment, not to mention what it does to the Petition Clause. 36

The philosophy that government may unlawfully injure some citizens for the greater good of the people, the nation, its government or of the “proletariat” are all variations of the same discredited philosophy that “The ends justify the means.” Given that governments will unlawfully injure some citizens, as a necessary incident to governing, the only rational alternative to “The Ends Justify the Means” is an effective system of just redress for Constitutional violations arising out of the governing process. fifth amendm ent just compensation for taking private property for public use doesn’t require culpability. Why should unlawful taking of liberty be less redressed? 37

U.S. Const. Art. VI, Cl. 3: “The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the 24

And if you think that is a national problem, consider that the United States is by far the World’s greatest power; it is not accountable to its own people for its abuses of power, and that abuse of power flows freely into international circles. Given that reality, there is not a nation in the world that should not fear us in the same way that a reasonable person fears a child with a gun. We, as a nation, are capable of, and as a People, conditioned to the arbitrary and unreasonable use of force by government, against its own citizens, and against any nation that stands in the way of the corrupt flows of power from our government into the private sector. Direct enforceability of the Constitution is the difference between personal loyalty to temporal government vs. loyalty to constitutional principles. Temporal loyalty to government becomes loyalty to every corruption officials undertake in government’s name. That is a powerful difference. Of that the difference the Constitution itself requires by oath, “to support this Constitution”38 and not to support its officers who may fail or refuse to support it.39 The Right to a Judicial Remedy is the right to enter an adversarial system. Such systems are supposed to tend toward “excellence.” But there is a huge disparity in this system. The people are not organized to defend against government’s coercive claims to “immunity”, but government is organized to take every advantage, systematically, of opportunities to extend it’s agents’ immunity. They are agents of the sovereign and entitled to immunity and to all of the highly skilled lawyers necessary to secure their “rights” against a legally disarmed citizenry. Under the premises, it is no longer an “adversarial system” but a system that has defeated the “Separation of Powers”; co-opted the states; and is now redesigned and manned by a “new nobility” of a “unified sovereign” to promote and protect “government sovereignty” from the people. That is another name for “government unaccountability to the governed”, at every level of government, all of the time. Put another way, with an effective Petition Clause the Nation has 260 million citizen policemen to insure that officials do not sell the Constitution to the highest bidder or to personal desire. Immunity disables the Constitution’s “citizen policemen.” What is left is government accountable only to itself and to the free wheeling interests of the wealthy. That is a dictatorship in waiting ... for a Hitler, a Stalin; a Pol Pot; or maybe a more charismatic dictator who promises what the wealthy and corporate interests want, and then delivers those interests to infamy. But America will first find tyranny more diversified. It is called “Judicial Tyranny.” It is plain common sense that people are “corruptible” in the absence of effective controls over the means by which they satisfy human desires. That is the principle: “Power corrupts, and absolute power corrupts absolutely.” If Lord Acton’s Dictum is not “absolutely true”; it is so nearly true that it warns against insulating government power from accountability. Judges have “power” within the

several States, shall be bound by Oath of Affirmation, to support this Constitution;” 38

One of the more profound descriptions of the duty to support the Constitution notwithstanding that other officers may fail to do so was made by Judge Liddle in, Wuebker v. James (Bowles), 58 N.Y.S. 2d 671 (1944). On what the Oath requires of a Judge, his Opinion is one of only two cited in the US Code Annotated; Art. VI, § 3, U.S.C.A. “Under the Constitutional requirement that all ... judicial officers of the several states shall take an oath to support the Constitution, the Constitution, alone, as it is written, is the sole test, and the support of an act of Congress or any law promulgated by any other federal official or any court decision, is not required.” That is the USCA quotation. His statement goes on in Wuebker : “ Only the Constitution and laws made in pursuance (not in violation thereof) are declared to be the supreme law of the land. Decisions of the Court are not included as any part of the supreme law of the land. That court may support the Constitution, as its oath requires, or it may fail to do so, but it cannot change it. Under Article 6, only the Constitution and the laws m ade pursuant to it are binding on this [c]ourt.” 39

Stump v. Sparkman, 435 U.S. 349 (1978). 25

meaning of Lord Action’s Dictum. Immunity for abuse of power puts such a degree of “absoluteness” into its use and abuse, that if judicial corruption is not the dominant characteristic of our judicial system, it is so rampant within it that the system cannot be trusted by anyone, at any time. Justice goes to the highest bidder, and all bids are kept secret from the people, and even from the participants. If it isn’t that way, it looks that way and no one can reasonably determine that it is not that way in any given case. This is not just because “power corrupts the just”, but as the judicial system becomes more the locus of arbitrary power it tends to draw more of those who seek that environment. The Judiciary is a dynamic system of people who adapt to their environment according to principles of human nature. Change the environment to become a safe haven for corruption, as Bradley v. Fisher changed the judiciary after 1872, and “Judicial substance” changes to reflect its new clientele. Its new clientele depend on immunity to wield arbitrary power. Where once it drew men of iron character and the will to do justice, today the system actively selects in favor of would be politicians who lack the courage to state their convictions, if any they have. They are rewarded with judgeships as “political plums” for political favors traded behind closed doors. The judiciary creates the kind of judges it wants: In Stump v. Sparkman,40 the Court held that constitutional standards are not enforceable against judges, even where the violations are in excess of jurisdiction and corrupt or malicious. Over the 135 years since the Civil War, the Court has redesigned the judiciary and indeed, all of government, to protect and promote corruption in office. If Judges are not corrupt when they became judges, the system offers an irresistible occasion to become corrupt because it gives them the power to violate the rights of the people who our Supreme Court has ruled, shall have no effective recourse against them. As official immunity causes endemic corruption, the stepping stones for a new, modern day Hitler in the United States is through 20,000 insulated judges protecting themselves and all of government from accountability to the people they injure in violation Constitutional Rights. They are insulated from all accountability, except one. That is accountability to their “superiors.” Who are their “superiors?” They are government officials who hold the same arbitrary power over the judges that the judges hold over us. And they also hold arbitrary power to dispense government favors to private parties and to other nations; favors we pay for, and favors that can get us into war; war without accountability by those who make war, to anyone. Is this just cause for a rights conscious people to distrust their “justice system?”

C) ASPECT THREE POLITICAL PERSECUTION FOR EXERCISING PETITION RIGHTS The Right of Petition in History: In order to understand why government takes such a dim view of the Petition Clause we must realize its historical context. About eight hundred years ago King John of England and his upper class nobility had a running dispute with the lower nobility, the barons. The barons had the loyalty of most of the common people and that gave them an advantage at the “ballot box” that consisted of mostly swords and bows and arrows. The people siding with the barons gave them the military power to strongly suggest to King John that it would be in his interests to negotiate a bargain on June 15, in the year 1215 AD at Runningmead. The Great King bowed to the will of a People angered at

40

Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4 th,43, 50 - 51 9 (1997), cert. denied, 522 U.S. 937

(1997). 26

his incursions against common decency. King John agreed to the terms of what is now the cornerstone of both British and American Constitutional Law: The Magna Carta . There is something very important about that date. Since 1215 there has not been a “sovereign” head of state, or “kingly sovereign” in our common law. Examine Chapter 61 of the Magna Carta.You will see why a “common law of sovereign immunity” wherein the king can’t be sued without his consent, is utterly false dogma. Our judicial doctrines of sovereign and official immunity depend on that false dogma. Our Supreme Court’s concepts of “sovereign immunity” depend on the idea that we had a “sovereign” in our English Common Law that was not accountable to the people for his wrongs to them. The fact is that there is no such sovereign as the Supreme Court has systematically created in America, for almost 800 years back into our English Common Law. Very few cases describe the origins of the right of Petition. One such case was brought (and lost) by this writer.41 The California Appeals Court describes the origin as follows: A. The Common or Natural Law Origin of the Right to Petition. The Right to petition for redress of grievances is the right to complain about and to the government. The Magna Carta, chapter 61, purported to grant the right. Now it is viewed as a “natural” right.42 [It] was confirmed by parliamentary resolution in 1669 as an inherent right43 and was lodged in the Bill of Rights of 1689.44 ‘… it is the right of the subjects to petition the king…[and] all commitments and prosecutions for such petitioning are illegal’.45 The right embraces dissent, and ‘would seem unnecessary to be expressly provided for in a republican government, since it results from the very nature and structure of its institutions. It is impossible that it could be practically denied until the spirit of liberty had wholly disappeared and the people had become so servile and debased as to be unfit to exercise any of the privileges of freemen.’46 ‘[D]eprivation of it would at once be felt by every freeman as a degradation. The right of petitioning

41

See Paterson, Liberty of Press, Speech & Public Worship: Right to Petition Parliament 30 (1980).

42

See Corwin, Constitution of the United States 1914 (2d ed. 1964).

43

See []1 W. & M. sess. 2, ch. 2 [3 Stats at Large 417]

44

San Filippo v. Bongiovanni 30 F.3d 424, 443 n. 23; (3 rd Cir. 1994); 1 Blackstone, Commentaries

*143. 45

See Story, Commentaries on the Constitution 707 (1833); see also 1 Cooley, Constitutional Limitations: Protections to Personal Liberty 728 (8 th ed. 1927) (quoting Lieber, Liberty and Self Government 124 (2d ed. 1859). 46

The Court of Appeals cites a footnote at this point suggesting that “The ‘right to petition’ is distinct from the petition of right,’ permitting claims against the Crown. see generally Clode, PETITION OF RIGHT (1887); Wade & Bradley, CONSTITUTIONAL LAW 684 (1965); Chitty, PREROGATIVES OF THE CROWN 340 (1820). This writer disagrees. While one can conceptually distinguish between them, what we are looking at is the legal and cultural evolution of a single right that differs somewhat upon its uses. That conceptual distinction breaks down in post Revolution and Constitution Am erica. Here, we never had a “kingly sovereign” by which to distinguish petitioning government from petitioning the Crown. Thus, the first amendment “Right to Petition Government for a Redress of Grievances” recognizes only the end product of that evolution, as it applies in America. The emphasis is on the right to petition “government”, period. 27

is indeed a necessary consequence of the right of free speech and deliberation, -- a simple, primitive, and natural right.’47 Understand the significance of those origins: There was war between the royal government and the people and our ancestors were on the verge of tearing the royal government down and replacing it with one of their own choosing. The king was deeply troubled by the prospects of the heavy hand of the executioner’s axe, so he had to promise to be good. But the Magna Carta is not just a document of promises. It embodies the tradition of limited tolerance for government that eventually inspired the Revolution of 1776 and framed the concepts of limited government that were written into our Constitution in 1789. It is that “Common Law Tradition” that is ultimately important because it reminds would be false “sovereigns” that if they get too oppressive, the people can and will tear unconstitutional government down and replace it again, with one that conforms to the Constitution. That act of tearing government down when it becomes unresponsive to the people’s need for justice, and replacing it with a more accountable government, is itself an exercise of the “Right of Petition” when government oppressively abridges its otherwise free exercise.48 That is what is meant by the declarations of Commons in 1669 and 1689, that the right of petition is a natural or inherent right. Our Declaration of Independence was an exercise of that inherent right, declaring to the world the refusals of the King to hear the petitions for redress by the Colonies, and the consequences thereof: Rebellion. Of particular significance here is the means by which the Magna Carta declared that its limitations on government power and respect for rights was to be enforced. That is the common law foundation of our Petition Clause. It is Chapter 61 of the Magna Carta. It is worth examining in detail to get the full flavor of what the Right of Petition really means in the ongoing dialogue between government and governed.49 The Magna Carta, Chapter 61. Since, moreover, for God and the amendment of our kingdom and for the better allaying of the quarrel that has arisen between us and our barons, we have granted all these concessions, desirous that they should enjoy them in complete and firm endurance forever, we give and grant them the underwritten security, namely the barons choose five and twenty barons from the kingdom, whomever they will, who will be bound with all of their might, to observe and hold, and cause to be observed, the peace and liberties we have granted and confirmed to them by this our

47

As you read Chapter 61 of the Magna Carta, infra, observe that it claims the right of petition to include tearing the government down, then after redress is obtained resubmitting to the king’s authority. In a nation without a “kingly sovereign” the equivalent is tearing the government down and replacing it with one conformable to the Constitution. That is the common law implication of the first amendment right, as it applies to a constitutional nation. If any further proof that it includes replacing unconstitutional government by force if necessary, observe that the Second Amendment requires the people keep the instruments by which they can effectively do exactly that. 48

The Magna Carta was originally written in Latin. There are many translations of it and the wording may vary depending upon the translation referred to. 49

The rest of Chapter 61 guarantees that the King and his heirs shall never interfere with the Petitioning Process or punish or intimidate anyone for assisting the barons to coerce just redress from the government. 28

present Charter, so that if we … or any one of our officers shall in anything be at fault towards anyone, or shall have broken any one of the articles of this peace or of this security, and the offence be notified to four barons of the foresaid five and twenty, the said four barons shall repair to us and, laying the transgression before us, petition to have the transgression redressed without delay. And if we have not corrected the transgression […] within forty days, reckoning from the time that it has been intimated to us […] the four barons aforesaid shall refer the matter to the rest of the five and twenty barons, and those five and twenty barons shall together with the community of the whole realm disdain and distress us in all possible ways, namely by seizing our castles, lands, possessions and in any other way they can until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; and when redress has been obtained, they shall resume their old relations toward us. And let whoever in the country desires it, swear to obey the orders of the said five and twenty barons for the execution of all the aforesaid matters, and along with them, to molest us to the utmost of his power; and we publicly and freely grant leave to everyone who wishes to swear, and we shall never forbid anyone to swear. All those, moreover, in the land who of themselves and of their own accord are unwilling to swear to the twenty five to help them in constraining and molesting us, we shall by our command compel the same to swear to the effect foresaid. …50 The development of our common law understanding of the Right of Petition began, but didn’t end with the Magna Carta . Over the next 450 years it became the cornerstone upon which the House of Commons built its relationship with the King. Then in 1669, Commons resolved with authority that every commoner in England had “the inherent right to prepare and present petitions” to Commons “in case of grievance” and for Commons to receive the same and judge its fitness. Twenty years later, after the “Glorious Revolution” Chapter 5 of the “Bill of Rights” of 1689 declared the Right of the Subjects to Petition the King directly, and “all commitments and prosecutions for such petitioning to be illegal.”51 That is our “common law.” It explains why our Supreme Court said of it: The right to sue and defend in the courts is the alternative of force. In an organized society, it is the right conservative of all other rights, and lies at the foundation of orderly government.52 That is what the Right of Petition is. It is the right conservative of all others. It is designed to bring government to account under the law of the land, or by force if necessary, for the violation of other rights. It is so powerful that its free use will prevent the hostilities of war between government and governed and the mere promise to respect it can restore peace to warring factions because it is the instrument of justice under law, as between government and governed. It is intended to subject government to the compulsory process of law when government does not want

50

See Constitution of the United States of America, Analysis and Interpretation 1188 (1992); see generally 12 Encyclopedia of the Social Sciences 98 (1934). 51

Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148 (1907).

52

Chapter 5 of the English Bill of Rights of 1689 outlawed criminal prosecutions for petitioning. 29

to fairly redress the grievance. It is so important that “law” without it, is “law without justice”, and that is another name for oppression. Abridgment of the Right of Petition is advance notice of government’s intent to relentlessly oppress its people. We in America, whose right of petition is so abridged and burdened by government created immunities from redress and accountability, are on notice of government’s intent to progressively and relentlessly oppress us into tyranny. Understand something: “Government’s intent to oppress” is not an intention agreed to by officials meeting in secret and designing a program of oppression. Such a “secret conspiracy” is not what we are talking about. What we are talking about is the natural and inevitable result of increasing abridgment of petition rights, whether protected by a constitution or not. That’s what it means to be a “natural” or “unalienable right.” Abridgment of the right to complain to the oppressor about his oppression is necessarily unnatural and progressively oppressive and that lays the seeds of rebellion and the foundations for terrorism. But there is something uniquely threatening about oppressing the unalienable right of petition because it is the “right conservative of all others.” The reason government abridges it is to allow its officers to violate all other rights with impunity and unaccountability. When government does that, there is only one just and proper response: To throw off such government by any means necessary. That is the bottom line of the “unalienable right of petition for redress.” The Scope of the Right: It is important to understand what the full scope of the right entails. The right to petition government for redress of grievances includes recourse to force and violence against the government when it abridges the free exercise of that right. Read the Magna Carta, Chapter 61 again. If the formal process for exercising the right is abridged, it describes in detail what the unredressed aggrieved can do. He may harass and molest the government in every way to get justice, save only that he not molest the physical persons of the King or His Family. What does this mean? It means that the legal or constitutional “Right of Petition” includes the people’s natural right of rebellion against oppression when government so abridges the established processes for petitioning it for just redress. In a real sense, the Right of Petition is like the right of self-defense. Where a person is justly aggrieved, government has in effect previously assaulted him or his rights. By petitioning for redress, he is exercising his right of self-defense against that onslaught. When government fails or refuses to justly redress, the conditions of assault and aggrievement continue and the individual is entitled by that right, to take greater and greater measures to obtain justice from his government oppressor, as his means of self defense against government oppression. Violence in response to oppression is a natural expression of the Right of Petition when its non-violent expression is abridged. Just as the common law countenances the violence necessary to defend oneself, so too it authorizes violence against government necessary to get its attention, when it abridges the non violent avenues of seeking just redress for its wrongs. Just as government has a primary duty to provide police and military protection for the people, government has a primary duty to justly redress the people’s grievances against it. That is a non-delegable duty that goes to the very essence of government functions. Who will tolerate a government that systematically levies injustice upon the people? The duty to redress grievances justly is the duty to provide systems of justice for the people. Police or military powers without domestic justice between government and governed is tyranny. Who needs a government that is organized to impose tyranny with its police and military powers? It is the province of the Petition Clause to impose justice on an unjust government.

30

A “people’s right” that powerful can cause fear in government that it will be “abused” to interfere with the governing processes. No doubt, it can be abused and it is intended to always keep government conscious of its limitations. Governments should want to prevent conditions where the people can lawfully molest and harass it. There are only two ways to prevent people from molesting and harassing government, and government should always be conscious of them. The first is to render the right so accessible and just that the people find no need to coerce government to redress grievances with it. This is not just common sense for America, but it is common sense for every government, both as to the relations of government to governed, and as to the relations among nations. The right to just redress of grievances is the right to both justice, and the appearance of it. Terrorism, both international and domestic, all have two things in common. Whoever is behind it believes that he has unredressed grievances with the government at which the terrorism is directed. And he is able to convince others that his perception is correct. The only way to solve this problem is to change both the reality and perception from that of injustice to one of justice, at every level of government, from the local community all the way to the United Nations. The only way to do that is with open and fluid systems by which all grievances with government, real or imagined, can freely be addressed and justly redressed. The only way to do that is when every government in all of its functions, is accountable to the governed in every way that it may create grievances with them, and that means that no government functionary can have immunity from just redress of grievances with it. The second is what we are experiencing. That is government progressively narrowing and abridging the right to petition while at the same time criminalizing the inevitable alternative avenues of petitioning that the people develop. That is oppression. Forbidding that oppression is exactly what our English common law imparted to the Right of Petition in 1689.53 Those are the alternatives: Systematic justice, or increasing oppression. It is that simple: The people either have a just relationship with government, or they suffer oppression. Initially, the government oppresses petitioning for redress by policies of sovereign and official immunity for it and its officers. What those policies mean is that the people cannot obtain redress as a matter of right against the government entities that are “immunized.” Today in America, such policies outright deny just redress in most cases. Where redress is theoretically allowed, immunity causes such increased complexity in the petitioning process that it generally frustrates petitioners seeking justice against government through the systems that are supposed to deliver justice under law. It is NOT that the judicial system is over burdened with petitions for redress. Rather, the law respecting just redress in both federal and state courts is so complex and convoluted with special privileges and immunities that government lawyers know that in most cases they can litigate petitioners into submission without ever getting to the merits or before a jury. What does that do? That prevents settlement out of court in even the most righteous petitions for redress because government lawyers know that they can beat the aggrieved unjustly in court. Government actually depends on judicial oppression to cover up its violations of constitutional rights. The judicial system, with its own “law making power” creating immunity and deciding how to apply what it creates, has redesigned itself for systematic oppression of Petition

53

For example, it limits the contingency fee chargeable under the tort claims act and it limits the dollar amount attorneys m ay charge for Veteran’s petitions. The effect of these limitations is not to literally limit fees. Rather it limits and frustrates the claims for redress that can be economically m ade. 31

Rights. That reality annuls the “Separation of Powers” doctrine in every important sense. “Separation of Powers” is now: “All of government organized against just redress to the people.” The increased complexity of “redress law” further causes increased need for lawyers and raises litigation costs immensely. The resulting high cost of petitioning for redress creates class divisions along lines of wealth where only the wealthy can effectively petition government for redress. That in turn gives wealth a capricious voice in shaping government and law not available or even apparent to common people. But the resulting oppression is apparent to them. These things combine to so increase the costs of petitioning so as to cause more people to turn to alternative forms to “harass and molest the government” into tending to the emerging judicial crisis. As might be expected, government does not take the people trying to “harass and molest it” lightly. Criminalizing the Right of Petition: Government passes and enforces laws limiting the “legal” assistance the people can get in petitioning for redress. For example, it may limit attorney fees that can be charged for petitioning in some kinds of cases. That limits the claims that can be economically pursued.54 That protects government from accountability for rights violations that can’t be economically vindicated. That causes petty bureaucrats to become little tyrants unaccountable for petty dereliction and abuses to the people in government’s name. It passes and enforces attorney licensing laws that broadly prohibit “practicing law” by nonattorneys. These laws abridge the right to petition in two separate ways: First, licensed attorneys are generally inadequate and prohibitively expensive for most abridged petitioning processes. They are controlled by their license and can not prosecute petitions effectively where government through its courts tells them that they should not. They are limited in the assistance they can give clients to the government approved means of petitioning. As government progressively abridges the petitioning process, licensed attorneys more and more become apologists for the abridgments. As we have seen, the actual common law right of petition contemplates that when government abridges effective petitioning processes, the people may go over, around or through the abridgments in any way necessary. In that way, licensing attorneys aids and abets government abridgments of the First Amendment Right by preventing effective counsel to the people as to what their common law rights are against government oppression. In effect, licensed lawyers tell the people that there are no alternatives to government oppression. That makes them the government’s “Judas Goats” leading the people into ever deepening wells of oppression from which there is less and less recourse to violence. Second, licensing lawyers unlawfully burdens the right to petition. Hiring a non-lawyer to help you petition government for redress is protected assembly to petition, and choosing the person to speak for you in the petitioning process is the very heart of freedom of speech. How dare the government license and control the people who you may choose to speak for you to government? In effect, such an assembly now becomes a “Criminal Exercise

54

The author considers this expression (“criminal exercise of [f]irst [a]mendment [r]ights”) to be a contradiction in terms. Yet, it accurately describes government’s efforts to chill the people from effectively seeking redress of grievances with it. 32

of First Amendment Rights”55 by non-lawyer participants “practicing law to speak for you, without a license.” Next, it becomes “Conspiracy to obstruct justice.” One can hardly find words to express the intellectual garbage involved in selling the idea that government can license the persons you choose to speak for you to government about your grievances with government. The ONLY license necessary, is the “license” you give by your selection of those you authorize to speak for you. All licensing of persons to whom you may give that authority is necessarily a multiple abridgment of the First Amendment. As the people’s frustration increases with their licensed spokesmen and what they are allowed to say to government, they turn to further extremes. They might create their own courts (“Common Law Courts”) and record “common law liens” against government and its officers. This too is protected activity where government has previously so abridged the Right of Petition so as render it ineffective. But now government uses other kinds of laws to criminalize this conduct. For example, participating in a common law court may be conspiracy to obstruct government agents. Filing a lien against an I.R.S. or other government agency is treated as “filing a false claim” or “obstruction of justice” or “interfering in the administration of justice.” Sending a notice of lien by mail is prosecuted as “mail fraud”, and associating to exercise these Petition Rights becomes “aiding and abetting” or “conspiracy to commit” those “crimes.” Those are abuses of legal process and malicious prosecutions to oppress the right of petition for which government prosecutors have absolute immunity. The problem is that licensed attorneys don’t know how to deal with government oppression because it is not taught in government approved law schools. Attorneys are programmed to believe that government acts in good faith execution and enforcement of the law; and they are afraid to deviate from that government created belief system that they are licensed to follow. The punishment for attorneys deviating from their licensed program is professional blacklisting.56 55

The author is a “blacklisted attorney.” Part of the story of his blacklisting can be reviewed on the Internet at “Constitution.org” under “confirmed abuses”, and find John W olfgram . Another part of that blacklisting is recorded in Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4 th 43 (1997), cert. denied, 522 U.S. 937 (1997). What should be noted in that case is that he is being blacklisted under California’s Vexatious Litigant Statutes for having lost five cases against immunized government in seven years. see generally Wolfgram v. Wells Fargo, 53 Cal. App. 4 th at 47: “… Wolfgram filed at least five unsuccessful suits against judges and other officials alleging misdeeds… ” In other words, Wolfgram Petitioned Government for Redress of Grievances with Government, and lost at least five petitons when he tried to penetrate government immunities. Now he is blacklisted from such petitioning. But what he learned in the process are the foundations for this article, and a book that is introduced under “prelude” at the above web site. In point, “Justice” Morrison, who wrote the opinion, was so impressed by the intellectual quality of the brief that he wanted to show his own intellectual prowess in his opinion. When the opinion issued, it was “Not for Publication.” But because of the intellectual quality of the opinion, mostly borrowed from Wolfgram and his attorney Kurt Simmons, Wolfgram was able to force publication of that part of the opinion that addresses the Petition Clause issues under the California Rules for Appeals. Then he took the case to the California Supreme Court and certiorari was denied. Then to the Court where cert. was again denied. Of five cases raising Petition Clause issues that Wolfgram has taken to the Court (all cert. denied .) W olfgram v. W ells Fargo is the only published opinion, and the only reason that it is published is because the judge was badgered into writing the History of the Petition Clause into an opinion that was intended “Not for Publication.” The rest of the opinion still is “Not for Publication”. 56

Attorney Licensing Undermines Effective Assistance of Counsel in Cases of “Criminal Exercise of Rights.” W hile the issue is somewhat different, the Court examined the relevant text and meaning of the sixth amendment right to assistance of counsel in Faretta v. California, 422 U.S. 818, 820 (1975). “In all criminal prosecutions, the accused shall enjoy the right … to be informed of the nature and cause of the accusation; … and to have the Assistance of Counsel for HIS defense .” (emphasis added) That is what the sixth am endm ent says. The purpose of the right to counsel is for the Accused’s 33

The result is that people charged with “criminal exercise of rights” are harnessed with “ineffective assistance of government licensed counsel” who lead them, like Judas Goats leading sheep through a “legal system” redesigned to convict and punish those who oppose government oppression according to the culture of our common law. This not only renders assistance of counsel ineffective, but it is reminiscent of British Star Chamber Practices.57 Today, these kinds of cases are proliferating throughout the Nation. The Montana Freemen cases where the “Freemen” were charged and convicted of substantive crimes like bank and mail fraud are cases in point, and there were untold scores of similar prosecutions in their wake. In point, these were really Petition Clause cases where the government oppressively refused to allow the real facts and the First Amendment Law to go to the jury. The Montana Freemen and many others were convicted of the “Criminal Exercise of First Amendment Rights.”58 What is the Solution to Criminalizing the Exercise of Petition Clause Rights? The common law specifically forbidding criminal prosecution of persons for petitioning government for redress developed out of Britain’s “Glorious Revolution” of 1689. Thereafter, the English Parliament made it unlawful to prosecute people for petitioning government for redress. But simply outlawing such persecutions does not solve the problem when government and its officers are immunized for such misconduct. Our First Amendment says that “Congress shall make no law abridging…” Would it make any difference if it also added that the executive “shall enforce no law abridging…?” It is extremely

Defense, not just defenses that counsel finds expedient for government. “ … An unwanted counsel ‘represents’ the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution.” Id . at 821. W hile the Faratta issue was the right to defend one’s self, that right necessarily includes the right, when you have counsel, that counsel assist you in YOUR DEFENSE. The Court, in that vein, observed that an attorney is an assistant, and no matter how expert, an assistant is still an assistant. Then at page 821 the Court described the only court in our legal history to force counsel on unwilling clients: The British Star Chamber. The Court described the impermissible thing the Star Chamber did by forcing counsel on the accused in footnotes 17 & 18. That impermissible thing now seen as characteristic of “Star Chamber practice” was to make sure that no defense the King didn’t want made was made. The Court described what happened to counsel in Star Chamber practice who presented a defense the King didn’t want to hear. His fate was as bad as that of his “client”. Thus, the Sixth Amendment Issue is not merely the right to counsel, but as it says on its face, it is the right to expert assistance in investigating and presenting the defendant’s very own defense . Licensed attorneys can’t present the defendant’s own defense against “political crimes” because “the king” doesn’t want that, and the king controls the lawyers through their licenses. Such attorney licensing is in effect, the foundation for a modern day transition to “star chamber” courts and the legal practices necessary to sustain political persecution. 57

A case of “Criminal exercise of First Amendment Rights” just came down as this article was being written, form the Ninth Circuit Court of Appeals. In USA v. Fleming, (Ninth Cir. No. 99-10324, June 7, 2000) ___Fed 3 rd ___, Fleming reacted to Federal Judge Coyle’s abridgments of his petition right by filing a lien against Judge Coyle for $10,000,000. He was charged and convicted of obstruction of justice under 18 U.S.C. 1503. The issue of his First Amendment Petition Clause rights was not raised on appeal. Fleming asserted such a common law right, but his Federal Defender Attorney “conceded in his brief to this court that no such right exists.” (2 nd page of Opinion.) 58

U.S. Const., art. II: Presidential Oath. 34

doubtful since the Executive is already sworn, “to the best of my Ability, preserve, protect and defend the Constitution of the United States.”59 That includes the First Amendment. How can anyone prevent the executive from enforcing constitutionally corrupt laws corruptly, if he is already free from the consequences of violating his oath? All government prosecutors and judges are absolutely immune from accountability for malicious prosecution. So they are not accountable to the people whose constitutional rights they violate. If they are not accountable to the people they wrongfully injure, who, pray tell, are they accountable to? The power to be unaccountable for corruption in office must be nullified. Today in America, the language of the First Amendment notwithstanding, persecution for exercise of Constitutional Rights is a substantial portion of all federal criminal convictions. To find a solution one must first understand the problem. Abridgment of Petition Rights does not authorize unreasonable attacks on the government. But under the common law guidance of the Magna Carta, it does justify reasonable attacks on government authority like establishing common law courts and filing liens against government and its officers that have no greater effect then harassing government, when procedural and substantive petition rights are abridged or rendered ineffective. Whether or not it “authorizes” violence against government depends upon how oppressive government becomes. The problem is that even reasonable harassment attacks against government spiral out control because government has immense power and little or no accountability for its use or abuse, and, would you believe, it has no sense of humor; and no humility, at all. So, for example, some people are frustrated with governmental unaccountability and prefer to live in isolation from government. From that Petition Clause response and government’s lack of a sense of humor, we got “Ruby Ridge”, and a young mother shot dead while holding her baby, by a government sniper with a high powered sniper rifle. And government’s best excuse: We didn’t mean to shoot her or her baby. We only meant to kill her husband who was within a couple of feet of her and the baby, and who was not then endangering us. So for another example, there are people whose frustration with lack of government protection and redress problems leads them to isolate themselves in more or less self-sufficient communities. Again, government’s refusal to believe that sane and decent people could reasonably want to isolate themselves from unconstitutional government interference in their lives, gave us the flames and mass killings of Waco, and the federal organized cover-up that includes persecuting the victims for defending themselves against armed aggression. It should not be concluded that only government lacks a sense of humor in these matters. It seems that a former candidate for same United States Army “Delta” team that it appears more and more certain staged a military assault upon the Branch Dividian Compound, took the matter personally and waged an “eye for an eye” campaign against government. That gave us Oklahoma City and the bombing deaths of more innocent men, women and children. That too has an aftermath which includes unreasonably increased government security for itself, and as Y2K demonstrated, for the Nation. That increased security not only erodes Petition Clause Rights, but it increases tension between government and governed. Instead of the 59

The question for the jury in each case is whether the proposed application of law abridges a reasonable exercise of Petition Clause rights under the face of the first amendment, the evidence and argument. If it does, they must acquit. If it does not, then they determine the case according to the other issues presented. While no one case informs Congress on what policy to adopt, many such cases where the jury refuses to convict, does send such a message. This process of the jury applying the first ato the case guides both Congress and the Executive in determining the temper of the people on the Petition Clause issue. 35

government trying to solve the Petition Clause problem by making petitioning for redress more effective, it tries to increase its security from accountability by an organized attack on the Second Amendment disguised as a “war on crime” against “potential criminals” with guns. Do we need to be reminded that the Hallmark of government oppression is that we are all “potential criminals?” We become actual criminals by mere resistance to oppression. This article does not try to excuse or justify any of these attacks. It merely points out that the “logic of war” is already upon us and it is a major part of the problem. That logic makes more “Wacos” and “Oklahoma Cities” all the more likely, and it does something worse. Government is organized to control anything that it believes may injure it. The aftermath of Waco is wide spread exposure to criticism. Government does not admit any wrong at Waco, but it admits that it suffered wide spread criticism. It will do little to prevent more “Wacos”, but it will do much to prevent the wide spread criticism. What it will do is act to contain freedom of information to the people, upon which widely spread criticism depends. What will that do to those who already believe government can not be trusted? Perhaps it will convince them all the more that the only recourse to government corruption is armed rebellion in the style the world has come to know as “terrorism.” That is the style of rebellion the Nation felt at Oklahoma City. It can be worse: Much worse as greater and greater means of mass destruction and mass killing are being designed privately or escape from both foreign and domestic government control. The world is developing markets for the instruments of mass terrorism … and we are the target. The solution is to release our Petition Clause to do its work, then to export it to every nation in the world: “Made in America”. At this point the reader is reminded that the common law purpose and logic of the Petition Clause is to prevent this kind of cycle, to reduce government to governed tensions, and even to bring peace among warring factions, with its mere promise. We, the People, and the Nation and its government, all of us: We need that promise. Solving the Problem: If you understand the nature of the problem; that it is caused by governmental arrogance to the Right of Petition, then you also understand that the solution is to release the Right of Petition to do its work in bringing the government under our Constitution. Then we have to teach other nations to do the same, by our example. How can we do that? It is one thing to say “Release the Petition Clause to do its work”, but without a concrete plan, the statement is so much rhetoric. What can be done? The immediate problem is that government is increasing the stakes by persecuting people for “criminal exercise of First Amendment Rights” in violation of the common law right established in 1689 in Article 5 of the British Bill of Rights. That spiral has to be stopped in a way that is meaningful to both government and governed. There are legitimate applications of the kind of laws (conspiracy, aiding and abetting, obstruction, interference with government, bank and mail fraud, etc.) that also entrap legitimate exercise of Petition Clause rights. These laws chill and punish the most important political expression there is: Political dissent to government oppression. But there is no practical way to throw all of those statutes or applications out as unconstitutional, even though they chill the First Amendment and are in that application, overly broad and vague. The normal mechanism for testing these applications is to wait until the legal theories that demonstrate abridgment of First Amendment rights develop, and then for the courts to address the issues in terms of “vagueness and over breadth” of laws chilling First Amendment rights. One major problem here is that there are so many laws that can be applied to abridge Petition Clause rights. Normally, it takes years, even decades to develop the legal theories necessary to overturn a very 36

limited number of similar statutes; and during all of that time; the government resists development of such theories and persecutes those who develop them. Presently, there are a large number of laws that are applied to persecute the exercise of petition rights. By the time the legal theories are developed and applied, the pressures for violence will have increased dramatically, and government will have adopted new and even more oppressive measures to contain the increased pressures for violence. Moreover, all of that assumes that the courts are trustworthy as to this issue, and a major theme of this article is that they are not. The judiciary is a part of government and government does not want to see an effective Petition Clause because that nullifies arbitrary power at all levels. Effective petition rights create problems for all of government by requiring direct accountability of government officials to the people they injure. As demonstrated in Part I, supra, the judicial theft of the First Amendment Petition of Right is a fact the judiciary has effectively concealed for over 200 years. Why should anyone believe that the judges would change that concealment and denial policy now? There is a collateral problem. The longer it takes to show that government will honor the Petition Clause and make it effective, the more skeptical more people become and doubt that it ever will. That increases the pressures for modern rebellion (terrorism) to organize. Of course, government will develop its own counter measures, and that will inevitably stimulate a more vigorous response by those who fear tyranny. That is the “Logic for War.” The way out of the cycle is to effectuate the right of petition so that persons accused of “Criminal exercise of Petition Rights can have the evidence and the First Amendment submitted to the jury. Paired with such an instruction is opening up the federal defender system so that the accused may select any counsel, as a matter of right, that is willing to work for him at the same price as conflict counsel. The reason is that the federal defender system is closed to competition and the result is to institutionalize ineffective assistance of counsel at public expense. Compulsory State Bars should be abolished as state organized First Amendment abridgments. Voluntary associations competing to raise standards would replace them. On the one hand, this combination would chill government from bringing Petition Clause cases. On the other, it would begin the mending process as juries feed back the information Congress needs to determine proper Petition Clause non abridgment policy.60 Such jury instruction and freeing lawyers to compete for effective public defense can be accomplished by an executive order, or by legislation. It need only declare that in any criminal prosecution, on request, a verbatim First Amendment jury instruction must be given and all evidence relevant to that issue be presented to the jury. It also should require that an accused otherwise entitled to counsel at public expense may select any willing counsel and no federal official may discriminate against any freely chosen counsel on the basis that such counsel is not a member of any State Bar Association. This does not solve the immunity vs. Petition Clause problem. It is a stopgap measure to prevent persecution for exercising First Amendment rights under color of criminal prosecution, and it begins to unwind the tension and increase dialogue between government and governed. There are other things that need be done to restore the Petition Clause, and through it, our Constitution to a state of political health. Some of these are discussed under Aspect Four.

60

See Constitution of the United States, Analysis and Interpretation 1188 (1992); see also De Jonge v. Oregon, 209 U.S. 253, 264-65 (1937); Herndon v. Lowry , 301 U.S. 242 (1937). 37

D) ASPECT FOUR: THE JUDICIAL CONTEMPT FOR PETITIONING TO REDRESS GRIEVANCES WITH GOVERNMENT IN FEDERAL COURT We have discussed three central aspects of the Petition Clause that are never addressed by the judiciary. Those aspects are: 1.The Petition Clause vs. Sovereign Immunity Issue. 2.The Petition Clause vs. Personal and Official Immunities Issue. 3.The persecution of persons for “Criminal Exercise of Petition Clause Rights.” The Fourth Aspect is intimately related to the first three because it inquires into why the judiciary refuses to address constitutional issues of major importance, generally, and specifically why it refuses to address the first three aspects of the Petition Clause. In point, there is no more serious constitutional issue then whether judicially created sovereign and official immunity violates the Petition Clause. Is there any jurisprudential thinker who does not immediately know that the United States under the doctrine of sovereign immunity is an entirely different nation than the United States with an effective Right of Petition? How do we account for the line of Supreme Court cases that established sovereign immunity while consistently refusing to address that issue in the Petition Clause context? It is not as if the Court totally ignores the Petition Clause. It just ignores the three central aspects of it mentioned above. For example: The right to petition has expanded. It no longer is confined to demands for “a redress of grievances” in any accurate meaning of these words, but comprehends demands for an exercise by government of its powers in furtherance of the interests and prosperity of the petitioners and of their views on politically contentious matters.61 “The right extends to the ‘approach of citizens or groups of them to administrative agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the third branch of Government. Certainly the right to petition extends to all departments of the Government. The right of access to the courts is indeed but one aspect of the right of petition.”62 There is no doubt that the Judiciary recognizes that the Right to Access the Courts is a First Amendment Petition Clause Right. If it recognizes that, does it also recognize that the business conducted before the courts once accessed, is also a Petition Clause Right? A few cases have addressed that issue in a non-governmental context. One such line of U.S. Supreme Court cases arises out of federal antitrust law. The issue: When can the filing of a lawsuit lead to antitrust liability?

61

Id. at 1188-89; California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972).; see also NAACP v. Cliborne Hardware Co., 458 U.S. 886, 913-15 (1982). 62

Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60 (1993). 38

In Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc .63 the Court refined the “Noerr-Pennington” antitrust immunity doctrine and the “sham exception” to it. “Sham” suits enjoy no constitutional immunity. They are to a Right to Petition like pornography is to the freedom of the press. Real Estate Investors clarified earlier cases and set out a two-part test for “shamness.” First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits. Once that is established, the court can examine the litigant’s subjective motivation to see if it conceals an attempt to interfere directly with the business relationships of a competitor through governmental process, as opposed to interfering by reason of the outcome of that process. That is essentially the “malice” or wrongful subjective motive part of the two part test. But notice: Professional Real Estate Investors is not a “Petition to Government” to redress grievances with it. It is a suit between private parties to determine which party will get the government power to compel the other to obey the law. This line of cases deals with lawsuits as a procedural due process issue. That is, the issue is access to the courts as a right to use them as neutral arbitrators to resolve disputes between private parties. As a “Petition Clause” function, it does not necessarily have its common law roots in the Magna Carta. It is important to notice the difference in these functions. The judiciary performs two separate Petition Clause functions. The first is providing a neutral dispute resolution forum for suites among private parties. That function incidentally but necessarily includes providing the same forum to resolve disputes between government and governed. Why? Because the Petition Clause is couched in terms of “Congress shall make no law abridging….” Establishing separate compulsory avenues for petitioning government for redress like exhaustion of administrative remedies or through “star chamber” process necessarily abridges the right to petition government and is unconstitutional.64 The second is to provide a “neutral forum” by which private persons can obtain access to the compulsory processes of law to use against government to compel it to obey the law, or to redress injuries suffered by government action in violation of the law. Notice that both the first and second functions are met by the same due process of law consideration: Unabridged access to the courts. The Courts call this “unabridged access” a Petition Clause right, but it is really a due process right that is all the more binding on the government when it concerns substantive Petition Clause rights. It is in this second function that we run into substantive Petition Clause issues that find their roots in the Magna Carta. These are the issues that deal with substantive grievances with government’s conduct in its governing affairs. In this sense, petitioning through the courts is only

63

The Author believes that compulsory adm inistrative procedures for non-contractual grievances, violates the Petition Clause. There is something inherently coercive that abridges the right to petition when adm inistrative procedures are required. But the government may offer them and induce people to exercise them with such advantages as fair standards, speedy resolution, right to raise constitutional issues, simplicity of petition, low cost and so on. People may be induced to waive constitutional rights. But the problem emerges when government can force you to exercise administrative remedies instead of inducing you. In that case they use abridgment of petition rights as a whip, and there is no inducement for government to make such procedures fair with just redress. 64

Notice that this is the principle violated by Chief Justice Jay in Chisholm v. Georgia, 2 U.S. ( 2 Dall.) 419, 478 (1793). That case began the United States on the journey of “sovereign immunity” which is translated as “immunity from accountability to the people.” see supra page 4. 39

one of many petitioning methods. For example, a picket at a courthouse protesting a particular judge, is both protected speech and petition. Likewise with lobbying the legislature or filing complaints with the executive regarding the executive conduct of governing. But while there are many methods of petitioning for redress with government, up to and including assembly to riot or to use force against it, only one method can use the law to subject the government to the law and to the redress consequences of violating it.65 That is to petition the government for redress through the courts. That is the right of the citizen to use the compulsory process of the law to compel the government, just like any other party, to answer and to be accountable for its wrongs to the citizen, under the law. There is something very important to notice about this particular process. Its effectiveness in administering justice relies on the fairness of the law as between government and governed. Presumably, law that is fair as between private parties will also be fair as between government and governed. The reason? In making law as between private parties generally, the lawmaker seeks justice for the people, generally without bias. But if the lawmaker makes special laws for government, as a part of government, he has a bias for the governing function, and that function is necessarily to regulate the liberties of the people. Thus, the important function of substantive Petition Clause activity through the courts (obtaining justice between government and governed) depends on the regularity of both the compulsory processes of law and substantive law that is to be applied to determine what, if any redress against government, the citizen is entitled to.66 So, for example, the right to sue the government in court is a due process right that applies to all grievances among parties, including grievances with government, albeit, the latter has a substantive Petition Clause status. In substantive Petition Clause cases, the right to that due process regularity is also a Petition Clause right because Congress may not abridge access to the courts for substantive Petition Clause purposes with special procedural requirements. But that Due Process right, even “raised” to Petition Clause status, is meaningless unless by that process you can subject the government to the common law,67 as opposed to special laws designed to protect government from being compelled to redress grievances. 65

Notice the common law observation of Justice M iller in U.S. v. Lee, 27 L. E.d. 176. He “concedes” that sovereign immunity is “the established law of this country, and of this Court at the present day.” Then he discusses the English “Right to Petition.” He observes that it is uncertain whether the King “was not suable in his own courts and in his kingly character” but after the Right was established, it “was practiced and observed in the administration of justice in England (and) has been as effective in securing the rights of suitors against the Crown, in all cases appropriate to judicial proceedings, as that which the law affords in legal controversies between the subjects of the King among themselves.” Not withstanding that Justice Miller ignored our Petition Clause, that does describe our Com mon Law Right to Petition Government for Redress under our Petition Clause. 66

As used here, “common law” has a peculiar meaning that the author believes is also part of the meaning of that term as used in the seventh amendment. It means “the law that is common to and binding on all of the people.” It is in contradistinction to law specially designed for government, especially for government protection from the people under the “common law.” Notice that all seeking redress for any grievance that you have with government falls under the Petition Clause, and as to that, Congress shall make no law abridging. The necessary result is the right to petition for redress of grievances with governm ent through the courts under the law that is common to the people without abridgment for government’s benefit. 67

U.S. Const. art. I, § 1, is conclusive of the issue. “All legislative Powers herein granted shall be vested in a Congress of the United States, … .” “Shall be vested” is mandatory. The Supreme Court is not a part of Congress. Therefore no legislative powers by any name shall vest in it. Likewise, with the Executive Branch. 40

So, for example, what good does it do to have a due process right protected by the Petition Clause to bring suits against government to redress grievances, if government is protected from accountability for the grievance by substantive laws of immunity? It is those substantive “laws” that violate the substance of the Petition Clause. The point here is that government immunity is the major substantive mechanism by which Petition Clause rights are undermined and gutted. There are other laws specially protective of government that undermine or gut substantive Petition Clause rights, but the immunity “laws” are by so far the greatest offenders that none of the others, like “tort claims” and “exhaustion of administrative remedies” acts need be examined for the purposes of this article.

II. THE DUEL MEANING OF THE PETITION CLAUSE: PROCEDURAL vs. SUBSTANTIVE The Petition Clause has two separate meanings. A procedural meaning, (The right to petition government for redress through all the means amiable to that end including judicial) and a substantive meaning. (Substantive redress shall not be abridged merely because government or its officers are defendants. It is “The right to substantively just redress.” ) How do you know it has two separate meanings? The First Amendment prohibits both procedural and substantive abridgments on its face. What more can be said than “Congress shall make no law abridging…” unless it be added, “and the Judiciary shall make no law at all.”68 Now, understanding this duel meaning: We are ready to examine the mechanics of how the judiciary systematically refuses to treat substantive Petition Clause suits with the dignity to which they are entitled under the “Common Law.” That is both as common to our people, and as derived through our legal heritage from the original understanding of the Magna Carta . Distinguish between procedural due process and a substantive Petition Clause Right, albeit, the procedural right is raised to a First Amendment status. The substantive right is for instance: “The government build a road across my land without paying a just compensation.” That is a Fifth Amendment violation. You have a due process right to sue the government on your claim in court. Doing that is a Petition Clause right, but to this point, it is all process. What about the right to have the claim heard on the merits? That is also a due process right. What about the right to have the claim decided by a jury? That also is a procedural right protected by the Seventh Amendment. What about the right to have the claim justly redressed? That is a substantive Petition Right. But what does that mean? In this case it means the right to make claim for and receive Fifth Amendment Just Compensation for government’s condemnation of a right of way across your property. In other words the substance of the Petition Clause right is the right to compel government to obey the Fifth Amendment Just Compensation Clause. Notice how the substantive right can be usurped. Suppose you sue the state highway commission in federal court for violation of your Fifth Amendment right to just compensation, under 42 U.S.C. 1983. You are exercising the procedure of Petitioning for Redress. The highway commission moves to dismiss on the basis that it is a state agency constructing a state road and it has “State Sovereign Immunity” under the Eleventh Amendment. The suit is dismissed. What

68

The Eleventh Amendment states: “The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another state, or by Citizens or Subjects of any Foreign State.” On its face, it does not apply to suits by citizens against their own state. 41

happened? The substantive doctrine of state immunity cut off the substantive Petition Clause right. You had your procedural right to petition for redress. The judge can’t doubt that you are making a Fifth (Fourteenth) Amendment claim under 42 U.S.C. 1983 pursuant to the Petition Clause, but substantive redress is barred. Why? You have two substantive constitutional rights to just compensation for the easement: The First and Fifth Amendments. Immunity of your own state government isn’t even mentioned in the Constitution.69 How then does state immunity bar redress for constitutional violation? In effect, the judiciary allows a procedural due process right to exercise your Petition Clause Rights through the judicial system, and it calls that the “Right of Petition” through judicial process. But it ignores the substantive nature of the Right that demands just redress be accorded. Let’s get this concept straight. Our common law Right of Petition can be stated in different words to convey the same meaning. Observe again, the words of The International Covenant on Civil and Political Rights, Article II, § 3, as it conveys the Right of Petition. 3. Each State Party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding the violation has been committed by persons acting in an official capacity . (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; Subsection (a) means: “No government immunity.” Subsection (b) goes on to ensure “effective remedy” by requiring states to “develop the possibilities of judicial remedy” which, by way of sub paragraph (a) is an “effective judicial remedy.” Would it make any difference if our Petition Clause used the same words, that the people shall have “effective judicial remedies” for the violation of constitutional rights? Did we miss something along the way? When the Framers adopted the Bill of Rights, could they possibly have intended “a bill of unenforceable rights”, or did they intend all along that “rights are enforceable through judicial remedies that are effective?” You know without being told that there was no misunderstanding. The Framers did not intend to sell the American People a “bill of rights” in name only. They intended the Rights they enshrined into our Constitution to be enforced by the people, individually, against the government. They did that in these words: “Congress shall make no law abridging the right to petition government for a redress of grievances” and combined it with Article III, § 2, “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution.” Tell me: Does a Petition to Redress a violation of an enumerated Right by say, a federal judge, or federal prosecutor, or an FBI agent, or all of them in concert, “arise under this Constitution?” If it does, what law may be made to contravene just redress?

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In Mireles v. Waco, 502 U.S. 9 (1991) Judge Waco ordered his bailiff to find Attorney Mireles and he “ordered” his bailiff to “use excessive force” to bring Mireles before the court. The bailiff located, assaulted and battered Attorney Mireles, then brought him before Judge Waco. Mireles sued Judge Waco, all the way to the Supreme Court. That Honorable Court held that Judge Waco had judicial immunity from accountability to Mireles for his absurd “order” that violated Mireles’ Constitutional Rights. 42

There is only one answer: “None.” In both law and logic, it is that simple. Only Congress can make law, and nothing can contravene a legal right but another law. And as to the right to petition government for redress under law, Congress shall make no law abridging. Notice that using different words but of the same meaning, our Petition Clause and the common law from which it came, has been extended to the most important clauses of the most important Treaties influencing the entire civilized world. Under it, prospectively, the peoples of the world shall be entitled to an “effective remedy” for violation of rights. But not so once you enter the courts of the “Leader of the Free World.” Petition Clause Rights have no substantive value here. That is, you can petition for redress of grievances with government as a heightened due process right, but once in court, there is no effective right to justice. In America, the “Land of the Free” you cannot sue the “Sovereign” without his consent. And his “consent” is couched in governmental and official immunities and special procedures and limitations which are applied by judges whose role is to protect government from accountability, and they are absolutely immune for the most outrageous violations of rights.70 Our procedural judicial remedy is designed to be substantively ineffective. Understand: We are not saying that the law is substantively hollow. We are saying, that just as government immunity is not the law, but a systematic judicial practice that nullifies substantive rights, that, and other judicial practice hollows out the substantive law. While judicially created immunity is practiced openly, many of the ways in which courts allow access but deny substantive redress in cases do not come under established immunity practice, but are just plain outright corrupt, and there is no other way to fairly describe it. One state Supreme Court has recognized that the right to sue government is at the heart of the First Amendment. The California Supreme Court led by Chief Justice Rose Bird addressed this highly volatile issue in City of Long Beach v. Bozak, 71 saying: The right of petition is of parallel importance to the right of free speech and the other overlapping cognate rights contained in the First Amendment and in equivalent provisions of the California Constitution. Although it has seldom been independently analyzed, it does contain an inherent meaning and scope distinct from the right of free speech. It is essential to protect the ability of those who perceive themselves to be aggrieved by the activities of governmental authorities to seek redress through all the channels of government. A tort action against a municipality is but one of the available means of seeking redress. (emph. added) There is an important point to those words that is implicit in the Right to Petition. It is as important that wrongly perceived grievances be redressed with adequate explanation, as it is for real grievances to receive just redress. This is just common sense: If we are not to beg the question by assuming that all grievances are imaginary, then the process of obtaining redress must be designed to effectively sort them out;

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31 F.3d 527, 535 ( 7 th Cir. 1994). Judgment vacated and cause remanded by U.S. Supreme Court in 459 U.S. 1095 ( 1983). Judgment reiterated under both State and Federal Constitutions by California Supreme Court in 33 Ca.l. 3d 727 (1983). 71

Both actual fairness and its appearance are an issue to avoid class-based conflict. The Judicial System is biased in favor of government, wealth, and large corporate structure. For the purpose of avoiding class war, a “judicial roll of the dice” would be more effective than systematic injustice based on government bias against a class. 43

to redress imagined grievance with a reasonable explanation and to redress substantial grievances with just redress. That is a maxim of jurisprudence: Justice must not only be done, but appear to be done. While it is clear that the California Court recognizes a substantive value to the Right of Petition, its emphasis is on the process by which redress is sought or made available. The opinion protects the Petition Right to bring the suit, regardless of whether it wins or loses. It only seems to imply that the process must be “Effective.” That implication relies on an assumption that the judiciary will do justice and that it doesn’t take a heightened standard of substantive consideration to get the judiciary to do justice to the case. That is, “Justice” is “Justice” and that is what the judiciary delivers. Therefore, no specially heightened standard is required. Ignores Systematic Bias: This assumption turns out to be utter nonsense in all cases except one: That one case is where the Petition Clause guarantees admission to a process in which the dice, in both appearance and fact, can’t be loaded against justice or substantive redress. It ignores the fact that the judiciary is part of government and judges are biased for their paymaster which demands by custom and practice, their obedience to government’s will over justice. The opposite of that assumption is declared very clearly in the Petition Clause’s common law ancestor, Chapter 61 of the Magna Carta. It proclaims the substantive Petition Right to just redress. While it is concerned with a “right of access” to the barons, the main concern is for timely (40 days) administration of substantive justice by granting appropriate redress. Thus Chapter 61 commands on that score: … And if we have not corrected the transgression […] within forty days, reckoning from the time that it has been intimated to us […] the four barons aforesaid shall refer the matter to the rest of the five and twenty barons, and those five and twenty barons shall together with the community of the whole realm disdain and distress us in all possible ways, namely by seizing our castles, lands, possessions and in any other way they can until redress has been obtained as they deem fit, saving harmless our own person, and the persons of our queen and children; … The Magna Carta’s focus is almost entirely substantive: “And if we have not corrected the transgression within forty days,” a state of moderate to severe war exists where the governed may lawfully ravage the government, and that continues “until redress has been obtained as they deem fit.” It could hardly be more powerfully stated that substantive redress is the issue, and process is only the lubricant to obtain substantive justice. Understand what that emphasis on substantive redress does to judicial bias. The command is, “Just Redress or War.” The reason for injustice is not relevant. If the grievance is brought to the barons, thereafter, “your fault, my fault, nobody’s fault” it doesn’t matter. The Substantive Right is “Justice or War.” That is what keeps the barons, now the judges, honest. Where the people have effective recourse to judicial prejudice and self-dealing, judicial bias ceases to be a problem. Today, with immunity in place, the Right of Petition is mostly process and little or no substance, and all effective alternatives to petitioning through systems designed to be ineffective, is illegal. Thus, not only does the petitioner have to deal with substantive immunity, but with unbridled judicial bias in a judiciary insulated against accountability for violation of rights. In effect, under the existing judicial “law”, you have a right to petition, but no right to justice, and no Court of Appeals has ever admitted the issue, or examined the conceptual difference. Let’s examine it to understand it better. If the right to sue is the alternative to force, then the right to sue government is the alternative to rebellion or terrorism. If that is true, one aspect of the Right of Petition is access to the compulsory process of law to use against government as the civilized alternative to rebellion and

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terrorism. If judiciary is to serve that purpose, it must both fairly apply, and appear to fairly apply the law as between government and governed or the “civilized alternative” will be rejected. What is the Substance of the Petition Clause? If the Courts treat the Right of Petition as mere procedure, what is its substance? The answer is simple and direct. The substance of the Right of Petition is: “Unconditionally effective enforcement of the rest of the Bill of Rights and Limitations on Government, and just redress for their violation.” The reason the answer is so simple and direct is because the alternative is lawful rebellion, terrorism and ultimately, civil war. That is the teaching of our Common Law. Underlying that teaching is a repetitive reality that the people learn and learn again. Allow judges to be biased for government and they will be prejudiced against redressing the people’s grievances. And government will abuse power more and more because of that bias. Allow government to decide when and if it will give just redress, and it will decide to give less and less justice. The result is simple logic: Less justice means more oppression. Compound, complex, convoluted, vague and ambiguous “law” protects government from accountability. That environment maximizes judges’ ability to pick and choose the “law” or interpretation of it, which is most pleasing to their bias for government. Add to that “absolute judicial immunity” for exercising pro government anti redress bias, and pardon us if we observe that you have got to be stupid; or desperate; to pray for justice from that system. The only rational alternative to progressive oppression is a policy of “no excuses.” It is a primary duty of government to provide an effective system of just redress of grievances. Just like its duty to provide an effective military defense, there is no excuse for failure to provide justice as between government and governed. That is America’s Common Law culture.

III. THE JUDICIARY IS ORGANIZED TO AVOID SUBSTANTIVE REDRESS OF CONSTITUTIONAL GRIEVANCES AND REASONABLE EXPLANATION OF UNREDRESSABILITY

The Court said in Chambers, 207 U.S. at 148: “The right to sue and defend in the courts is the alternative of force .” That it is an alternative to force; there is no doubt. But if the judicial function merely replaces trial by combat with another arbitrary process for deciding winners, it can be done a lot cheaper and more fairly, with a roll of dice.72 While our judiciary has evolved some characteristics of justice, its redesign accents its barbarian origins as “The Sovereign’s” tool to control His subjects. That, instead of the unbiased administration of justice, has become the primary judicial function. Note the conflict between the

72 The Constitution precludes a “Personal Sovereign.” What remains, is simply “government.” Governmental sovereignty over the people contradicts the very notion of a Constitution and Rights. The effect of the judiciary’s service to a sovereign not only violates a maxim of its trust: “No one shall serve two masters, for he shall love the one and despise the other”, but because the design precludes a “sovereign”, re-creating government as “sovereign” creates the status of “Kings” and puts the judicial creator at the head of the kingdom it created.

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two functions.73 That conflict involves some basic judicial intrusions into the Constitution that totally nullify the judicial function to administer justice under the law. Examine some of them: 1. The Judiciary interprets the Constitution, and only its interpretation counts. The Judiciary is a branch of government. Thus, in disputes between government and governed over the meaning of the constitution, only government’s version counts . Is that “fairness?” That is the official state philosophy of “Judicial Supremacy” in action, and it is hardly “fair.”74 Under that philosophy, government gets to be the only and final interpreter of the Constitution by which it regulates the people. How convenient for government. How unfortunate for the People. 2. Government has sovereign immunity; most of its agents have qualified immunity; and its prosecutors and judges have absolute immunity even for malicious prosecution and cover ups of civil rights violations by non-immune persons. What does that do to the idea of justice? 3. The First Amendment doesn’t exactly mean what it says by “Congress shall make no law abridging...” Instead, Congress can make laws abridging, providing they meet judicial tests of “state interest, narrowly drawn”, and all of the immunities the judiciary has created. 4. While we have personal freedom of speech within parameters, the only freedom we have to select our own spokes persons in the most important forums affecting our rights, the court’s of law, is by government licensed attorneys duly propagandized into the dogma of judicial supremacy. Government has propagandized and licensed the people’s Petition Clause spokesmen into believing that the Constitution means what the judicial branch of government says that it means; and they lead us into submission to endless bureaucratic and judicial control. 5. Article I, which vests all legislative power in Congress, doesn’t quite mean what it says either. The Judiciary can veto Congress and it can affirmatively write its own law as it did in the “immunities acts” which are judicial enactments that actually amend the Constitution, not just a little bit, but to the very foundations of the relationship between government and governed. These Judicial Amendments redefine and annul the very concept of “Justice under Law.” 6. As to the Second Amendment, well the people should forget about keeping arms just in case our own government gets too far out of line. Since government is sole interpreter of the Constitution, it interprets that interpretation out of existence, and possession of arms becomes a common nuisance to be abated in every way bureaucrats can conceive. 7. The troublesome Fourth Amendment: The only time people need security against government is if they are crooks. So, in that “constitutional” spirit, government protects crooks by

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“Judicial Supremacy” is the official legal philosophy of the United States. It’s origins are credited to Chief Justice John Marshal in his opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Actually, that founded the judicial policy of “Judicial Review.” That is not quite the same thing as “Judicial Supremacy” where in addition to supremacy over the other branches, the judiciary assumes supremacy over the Constitution itself. In all probability, Chief Justice Marshall would be absolutely astounded at the judicial philosophy he is credited with founding. While there are alternatives to Judicial Supremacy, it is taught in America as if there are none, and attorneys just learn to accept it as an inherent part of law practice. The alternative to Judicial Supremacy that is built into the Constitution, is the right to trial by jury where the jury determines the law as well as the fact. We still have the right, but it has been watered down so that the jury’s real function is instructed away by the courts. That function is the commonsense of a group of lay persons interposed between the accused and his accuser. The point is, Constitutional (and all “legal”) issues should be submitted to the Jury for their commonsense interposition. That is the constitutional balancing force against government having a monopoly on legal interpretation. It is practical that on any constitutional issue, the Nation has two separate lines of thought going all the time, as to what the real law is. One is the Supreme Court’s interpretation as government’s official spokesperson of what the Constitution means. The other is the version that emanates from a case by case evaluation by juries. That is the enforceable version. The push and pull between these two versions is the life of the “living constitution.” Everyday, the confluence of these two separate interpretations is the bargain struck between government and governed on what the Constitution really means. 46

excluding evidence obtained in violation of their rights. As to the rest of the people, government is protected by immunity, and not being crooks, honest people have no need for privacy anyway. 8. By the way, government can take liberty interests without any compensation, if it can find a “rational state interest”; and it has plenty of those. 9. Property interests are more protected. We are entitled to “just compensation” if government “takes” our property for public use. So what it does instead, supported and authorized in advance by judicial “interpretations” of “taking,” is to outlaw broad ranging uses of property though zoning; environmental and endangered species protection acts; and regulations of every sort, all for esteemed “public benefits” but avoiding the necessity of a “just compensation.” Understand what such takings of property rights do. It is not that environmental and endangered species protection and zoning, are not worthy causes to spend tax dollars on. But that is not what the government does. Instead it coerces these “public benefits” from property owners, one individual at a time, without paying for it. That is, the cost of these collectively huge benefits is born by individuals, not by taxpayer/voters vis a vis government. And by and large, it is the judiciary that makes the rules by which these huge transfers of latent wealth occur. And on it goes. Nothing to be alarmed about. Government could do all of these things with constitutional amendments: “So, judicial amendments to the Constitution are just matters of procedure!” and subjective rationalization justifying abandonment of principle, rolls on. The point is not merely that the Judiciary usurped powers not delegated to it; but it has become so involved in and biased toward controlling the people for government, that it cannot fairly administer justice. The judiciary is no longer fit to perform its primary judicial function. Where does that leave our Nation? The primary right of the People to control their own destiny through self government has been usurped; not boldly as by an invader, but surreptitiously by the branch of our own government that we trusted most. The people never got to decide the most important issues relevant to the kind of government they want for themselves and for their children. Oh, to be sure, they vote for “representatives” but the fact is that the judiciary has so totally undermined the concept of limited government and unalienable rights that those running for office actually think that “Rights are the privileges government tolerates at any particular time” and “libertarians” think government should tolerate more “rights.” In other words, today’s politicians and legal/constitutional/political scholars have not the foggiest idea of what the Constitution means, independently of what The Court says that it means. They rely on the Court to determine what “rights” are, and what their own job as our Representatives is supposed to be. In a real sense, the Court dictates the entire political atmosphere to the people and their politicians. Most people who think about it, especially telawyers, actually believe that it is the right of the Court to be the “sole and finale arbitrator of Constitutional meaning and design.” They can’t conceive that it could be any other way, let alone can they get a picture of what the Supreme Court is doing to fundamental concept of individual rights and constitutional limitations on governmental power. Others see the arbitrary power wielded by the Court, but think of it as if we are governed by nine wise and noble legal scholars. That is, in effect, the “Rule by Philosopher Kings” that Plato seemed to favor. But, aside from the observation that if we are to be governed by “benevolent philosopher kings” then it should be openly so and pursuant to an amended Constitution that authorizes “Philosopher King Supremacy” over it, and over the other branches.

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But the analogy fails in another respect. We are governed by the Court, as an institution, and far from the individual justices being “philosopher kings” they are “servants” of that institution and its rules; particularly of the rule of stare decisis and their own precedents . To the Court, stare decisis means more than simply following precedent. Of course, the Court has the power to over turn its prior decisions. Sometimes, as in National League of Cities v. Usery, 426 U.S. 833 (1976) and Garcia v. San Antionio Metro. Transit Auth., 469 U.S. 528 (1985), (concerning Tenth Amendment Limits on the federal regulation Congress can subject states to under the Commerce Power) the same Court reverses its previous 5-4 decision by another 5-4 decision accomplished by one justice switching sides. That hardly reflects a “philosopher king” kind of leadership. But more to the point, when it comes to national policy like sovereign immunity, the Court has a much greater problem: How can it reverse itself without undermining its own basis of political power? How can it say to the People, “Look, we made a mistake these past 200 years and never exactly noticed what the Petition Clause did to sovereign immunity, and, well, to be frank, we rewrote the Constitution the wrong way. Now we want to rewrite it the right way.” It’s not only, “Who’s going to trust them this time”, but why should we let the Court rewrite the Constitution again, when in the face of its admission, it never should have rewritten it the first time? Look, we are not talking about just any “mistake.” We are talking about a “mistake” that ignores the very foundation of democratic control over government. That “mistake” annuls the very purpose of having a constitution (to limit government by holding it to account for its violations) and it is a “mistake” that benefits the party in error. In common law, that kind of “mistake” is not a mistake, but constructive fraud. Even if the Court didn’t know that it didn’t have Constitutional authority to make such a policy. But even if it didn’t know about the Petition Clause, such usurpation for its own benefit is still “constructive fraud.” What’s moreover, who will believe that the Court didn’t know those things. That is to say, if the Court ever admits that Sovereign and court created official immunity is not constitutional, it opens a “Pandora’s Box.” The Court has never faced the kind of scrutiny that sometimes occurs to the political branches. But suddenly, there would be questions about how it could have made such a “mistake”; and then, “was it a mistake?” Then, if not a mistake, what is it for a branch of government to consciously undermine the People’s interests in the enforceability of what is after all, their Constitution? Some, perhaps many, will call it “treason.” But that brings up a new concept. The Justices actions are largely dictated by the institution in which they find themselves confined. If it is “treason” it is not a personal kind of treason, but something that is more like “institutional treason.” That is a concept that we legal philosophers don’t quite know what to do with. It is “out there.” It has some meaning, but as a concept that can help explain the perverse directions that Constitutional Democracies might take that lead 180 degrees away from what you’d expect under their Constitution, it requires a lot of exploration and analysis. As a concept of moral and legal judgment, it is almost useless. We do not begin to understand the psychological and sociological pressures and dynamics of legal institutions at that level of government. If it is “treason”, then we will have to deal with such additional concepts as “involuntary treason”, or “treason” under coercion and undue influence by the entire governmental structure of the nation against which the treason occurs.

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IV. CONCLUSION The Purpose of this Law Review Article is not to tell you, the reader, “the way that the law is.” At best, it can provide only a snapshot of a small piece of it, central to the law though it may be. The philosophy of law is much too young to know enough to tell you anything but small snapshots and rough outlines of legal theory, and the science of law has not yet been born. There is so much to be done in the philosophy of law that one’s lifetime is hardly time enough to start. Its future holds all of the excitement of a new science, undreamed of before. Its limits are so bound to human destiny that we shape today, by the understanding that we give, or fail to give to its substance, the themes of human civilization, as it will exist forever, or as it may fail to exist beyond 21st Century. The purpose of this Law Review Article is to start the next generation of legal philosophers thinking about what the law is, and why it is, and where it will take mankind, so that they can begin the journey that I only dream of. That journey is into the realm of law as a science for future civilizations to set mankind free, to redesign and reconstruct his government as a vehicle to take him to the heights of freedom and dignity that his God, and his soul for adventure, made him to seek. The Right of Petition is the right to substantive justice between government and governed. Upon that Right rests our hopes for freedom and dignity in the twenty-first century. Freedom and dignity thrive in Justice. They cannot survive without it.

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TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE PART IV - JURISDICTION AND VENUE CHAPTER 97 - JURISDICTIONAL IMMUNITIES OF FOREIGN STATES 28 U.S.C. § 1605. GENERA L EXCEPTIONS TO THE JURISDICTIONAL IMMUNITY OF A FOREIGN STATE (a) A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case -

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þ (1) in which the foreign state has waived its immunity either explicitly or by implication, notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver;

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þ (2) in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States; (3) in which rights in property taken in violation of international law are in issue and that property or any property exchanged for such property is present in the United States in connection with a commercial activity carried on in the United States by the foreign state; or that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States;

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þ (4) in which rights in property in the United States acquired by succession or gift or rights in immovable property situated in the United States are in issue;

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þ (5) not otherwise encompassed in paragraph (2) above, in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment; except this paragraph shall not apply to (A) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function regardless of whether the discretion be abused, or (B) any claim arising out of malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights;

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þ (6) in which the action is brought, either to enforce an agreement made by the foreign state with or for the benefit of a private party to submit to arbitration all or any differences which have arisen or which may arise between the parties with respect to a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration under the laws of the United States, or to confirm an award made pursuant to such an agreement to arbitrate, if

Ó þ (A) the arbitration takes place or is intended to take place in the United States,

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Ô þ (B) the agreement or award is or may be governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards, (C) the underlying claim, save for the agreement to arbitrate, could have been brought in a United States court under this section or section 1607, or (D) paragraph (1) of this subsection is otherwise applicable; or (7) not otherwise covered by paragraph (2), in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency, except that the court shall decline to hear a claim under this paragraph (A) if the foreign state was not designated as a state sponsor of terrorism under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. App. 2405(j)) or section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371) at the time the act occurred, unless later so designated as a result of such act; and (B) even if the foreign state is or was so designated, if (i) the act occurred in the foreign state against which the claim has been brought and the claimant has not afforded the foreign state a reasonable opportunity to arbitrate the claim in accordance with accepted international rules of arbitration; or (ii) neither the claimant nor the victim was a national of the United States (as that term is defined in section 101(a)(22) of the Immigration and Nationality Act) when the act upon which the claim is based occurred. (b) A foreign state shall not be immune from the jurisdiction of the courts of the United States in any case in which a suit in admiralty is brought to enforce a maritime lien against a vessel or cargo of the foreign state, which maritime lien is based upon a commercial activity of the foreign state: Provided, That (1) notice of the suit is given by delivery of a copy of the summons and of the complaint to the person, or his agent, having possession of the vessel or cargo against which the maritime lien is asserted; and if the vessel or cargo is arrested pursuant to process obtained on behalf of the party bringing the suit, the service of process of arrest shall be deemed to constitute valid delivery of such notice, but the party bringing the suit shall be liable for any damages sustained by the foreign state as a result of the arrest if the party bringing the suit had actual or constructive knowledge that the vessel or cargo of a foreign state was involved; and (2) notice to the foreign state of the commencement of suit as provided in section 1608 of this title is initiated within ten days either of the delivery of notice as provided in paragraph (1) of this subsection or, in the case of a party who was unaware that the vessel or cargo of a foreign state was involved, of the date such party determined the existence of the foreign state's interest. (c) Whenever notice is delivered under subsection (b)(1), the suit to enforce a maritime lien shall thereafter proceed and shall be heard and determined according to the principles of law and rules of practice of suits in rem whenever it appears 52

that, had the vessel been privately owned and possessed, a suit in rem might have been maintained. A decree against the foreign state may include costs of the suit and, if the decree is for a money judgment, interest as ordered by the court, except that the court may not award judgment against the foreign state in an amount greater than the value of the vessel or cargo upon which the maritime lien arose. Such value shall be determined as of the time notice is served under subsection (b)(1). Decrees shall be subject to appeal and revision as provided in other cases of admiralty and maritime jurisdiction. Nothing shall preclude the plaintiff in any proper case from seeking relief in personam in the same action brought to enforce a maritime lien as provided in this section. (d) A foreign state shall not be immune from the jurisdiction of the courts of the United States in any action brought to foreclose a preferred mortgage, as defined in the Ship Mortgage Act, 1920 (46 U.S.C. 911 and following). Such action shall be brought, heard, and determined in accordance with the provisions of that Act and in accordance with the principles of law and rules of practice of suits in rem, whenever it appears that had the vessel been privately owned and possessed a suit in rem might have been maintained. (e) For purposes of paragraph (7) of subsection (a) (1) the terms ''torture'' and ''extrajudicial killing'' have the meaning given those terms in section 3 of the Torture Victim Protection Act of 1991; (2) the term ''hostage taking'' has the meaning given that term in Article 1 of the International Convention Against the Taking of Hostages; and (3) the term ''aircraft sabotage'' has the meaning given that term in Article 1 of the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation. (f) No action shall be maintained under subsection (a)(7) unless the action is commenced not later than 10 years after the date on which the cause of action arose. All principles of equitable tolling, including the period during which the foreign state was immune from suit, shall apply in calculating this limitation period. (g) Limitation on Discovery. (1) In general. (A) Subject to paragraph (2), if an action is filed that would otherwise be barred by section 1604, but for subsection (a)(7), the court, upon request of the Attorney General, shall stay any request, demand, or order for discovery on the United States that the Attorney General certifies would significantly interfere with a criminal investigation or prosecution, or a national security operation, related to the incident that gave rise to the cause of action, until such time as the Attorney General advises the court that such request, demand, or order will no longer so interfere. (B) A stay under this paragraph shall be in effect during the 12-month period beginning on the date on which the court issues the order to stay discovery. The court shall renew the order to stay discovery for additional 12-month periods upon motion by the United States if the Attorney General certifies that discovery would significantly interfere with a criminal investigation or prosecution, or a national security operation, related to the incident that gave rise to the cause of action.

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(2) Sunset. (A) Subject to subparagraph (B), no stay shall be granted or continued in effect under paragraph (1) after the date that is 10 years after the date on which the incident that gave rise to the cause of action occurred. (B) After the period referred to in subparagraph (A), the court, upon request of the Attorney General, may stay any request, demand, or order for discovery on the United States that the court finds a substantial likelihood would (i) create a serious threat of death or serious bodily injury to any person; (ii) adversely affect the ability of the United States to work in cooperation with foreign and international law enforcement agencies in investigating violations of United States law; or (iii) obstruct the criminal case related to the incident that gave rise to the cause of action or undermine the potential for a conviction in such case.

Õ

þ (3) Evaluation of evidence. The court's evaluation of any request for a stay under this subsection filed by the Attorney General shall be conducted ex parte and in camera.

Ö

þ (4) Bar on motions to dismiss. A stay of discovery under this subsection shall constitute a bar to the granting of a motion to dismiss under rules 12(b)(6) [failure to state a claim upon which relief can be granted] and 56 of the Federal Rules of Civil Procedure. (5) Construction. Nothing in this subsection shall prevent the United States from seeking protective orders or asserting privileges ordinarily available to the United States.

Whether or not the United Nations Î explicitly or by implication waives sovereign immunity or it is the basis of this cause of action against the United Nations that the U.S. District Court has jurisdiction in this matter because the United Nations’ PROGRAMME

OF

ACTION

TO

PREVENT , COMBAT AND ERADICATE TH E ILLICIT TRADE IN SMALL ARMS AND LIGH T WEAPONS IN ALL ITS ASPECTS (UN Document A/CONF.192/15), as an Agency of 192 member states has Ï a chilling or prohibitive effect on the firearms industry not only as a global commercial activity but also as a commercial activity within the United States. This chilling or prohibitive effect extends to the Ð-Ò Takings Clause of the Fifth Amendment and to [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, of the Fourth Amendment. By pursuing a global gun control agenda under the above PROGRAMME United Nations as breached the U.N. Charter:

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OF

ACTION the

U.N. CHARTER - CHAPTER I - PURPOSES

AND

PRINCIPLES

Article 2: The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. 7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter; but this principle shall not prejudice the application of enforcement measures under Chapter VII. Citing the conclusion in Andrew S. Gold REGULATORY TAKINGS AND ORIGINAL INTENT : THE DIRECT , PHYSICAL TAKINGS THESIS "GOES TOO FAR ," 49 Am. U.L. Rev. 181, (October, 1999) The text of the Takings Clause is ambiguous because the original understanding of the word "property" is uncertain. In all likelihood, there was no consensus by the Founders as to what "property" meant. If one accepts the meaning of "property" as understood by its author, James Madison, the Takings Clause would apply to regulatory takings in addition to physical takings. One must remember, however, that the Constitution was ratified by the states. Unfortunately, the historical record for the Fifth Amendment Takings Clause is limited. There is enough material for a party on either side of the regulatory takings debate to muster an argument for his or her position. But there is nothing remotely sufficient to prove the Takings Clause originally was intended to cover only "direct, physical takings." The strongest evidence that the Takings Clause is limited to direct, physical takings is the fact that many colonies had a practice of uncompensated regulation that directly took private property rights. The import of this evidence is curtailed by the fact that the colonies did not have takings clauses that regulated the legislature and thus, no strictures on colonial regulation comparable to the Fifth Amendment Takings Clause. Although it is reasonable to question whether such a significant change in just compensation protection - limiting the legislature and requiring compensation for regulatory takings - could have been ratified absent any debate, this is easily explained by the fact that the Takings Clause originally did not apply to the states. Moreover, many states were no longer as trusting of the legislature as they had been during colonial times. The strongest evidence that the Takings Clause originally was intended to cover regulatory takings are the Framers' strong leanings in favor of protection for property rights, James Madison's post-ratification statements, and the just compensation philosophy contained in the writings of Blackstone, Locke, and Grotius. Although Madison's statements do not carry the same weight as pre-ratification commentary, they should carry some weight because of Madison's role in drafting the Takings Clause and the fact that he published the Property essay so shortly after ratification. Madison's view supports the jurisprudential position taken by Grotius and Blackstone and clearly extends the Takings Clause to non-physical takings.

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Essentially, there is a split between the colonial protection of property rights in practice and the Framers' philosophy and rhetoric.372 Moreover, neither colonial practice nor Founding Era philosophy was entirely clear.373 In such circumstances, it is appropriate to extend the protection of property as far as the text reasonably allows: neither the police power nor the power of eminent domain are enumerated in the Constitution. The best argument against a broadly enforced Takings Clause is the likelihood that the states would not have ratified a clause that would cover state regulatory takings.374 But this is an argument against incorporation under the Fourteenth Amendment, an issue resolved long ago.375 Absent that caution, there is no reason to read the Fifth Amendment Takings Clause narrowly if its text reasonably encompasses regulatory takings any more than the First Amendment should be limited to political speech when its text reasonably covers others forms of expression. Even if regulatory takings were not extended to the states - a limitation that might approach the original intent in terms of federalism - the Fifth Amendment would still cover regulatory takings by the federal government. The constitutional text is clear enough to require something substantive - it is not so ambiguous so as to raise questions on whether courts may interpret the Takings Clause at all.376 Accordingly, the judicial system is well within the original intent framework in granting compensation for regulatory takings. It is quite possible, but far from clear, that the original understanding of the Takings Clause included regulatory takings. Original intent may raise questions regarding

372

See D AVID S CH U L TZ , P O L ITICAL T H E O RY AN D L EG AL H ISTORY : C O NFLICTING D EPICTIO NS O F P RO PERTY IN TH E A M E RIC AN P O LITICAL F O U N DIN G , 37 Am. J. Legal Hist. 464, at 491 (1993), (discussing implications of a split between Founding Era rhetoric and colonial practices for property rights). Schultz argues the correct way to see the influence of the political philosophies during the Founding Era is to observe the Jacksonians who matured under its influence. See id. at 494. 373

See F. McDonald, N OVUS O RDO S ECLORUM : T HE I NTELLECTU AL O RIG INS OF TH E C O N STITU TIO N 3-4, at 4 (1985) (noting that the delegates at the Constitutional Convention had different understandings of words such as property and liberty). 374

See Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1181-82 (1991), (writing that no state ratifying conventions had offered any just compensation restriction). 375

See Chicago B. & Q.R. Co. v. Chicago, 166 U.S. 226, 234-35 (1897) (holding the Fifth Amendment Takings Clause was incorporated against the states under the Fourteenth Amendment). 376

During his nomination hearings, Judge Robert Bork posed the originalist problem created by the vagueness of the Ninth Amendment: I do not think you can use the Ninth Amendment unless you know something of what it means. For example if you have an amendm ent that says "Congress shall m ake no" and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it. N O M INATIO N O F R OBERT H. B O RK TO BE A SS O CIATE J US TICE O F TH E S UPREM E C O URT O F TH E U N ITED S TATES : H EARINGS B EFORE TH E S ENATE J UDICIARY C O M M ., 100th Cong. 249 (1987) (statement of Robert Bork). The uncertainty of the extent of the Takings Clause does not raise the issue arguably raised by the Ninth Amendment, however, because we do "know something of what it means." The uncertainty of the Takings Clause is the extent to which it should be enforced. 56

the current incarnation of regulatory takings law,377 but it hardly resolves the question of whether regulatory takings deserve compensation generally. One thing is clear: the direct, physical takings interpretation "goes too far" with a sparse historical record.

Ó -Ô

The Court must take Mandatory Judicial Notice on the fact that I have pending a Complaint

of Human Rights Violations against the United States and against the United Nations as Petition No. 1142-06 with the INTER -AMERICAN COMMISSION ON HUMAN RIGH TS in Washington, DC. They oversee the INTER -AMERICAN COURT OF HUMAN RIGH TS in Costa Rica, which may hold proceedings in the United States if they so determine it to be necessary and proper. U.N. CHARTER - CHAPTER VI PACIFIC SETTLEMENT

OF

DISPUTES

Article 33 1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice. 2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

RULES OF PROCEDURE OF THE INTER -AMERICAN COMMISSION ON HUMAN RIGHTS TITLE II - PROCEDURE CHAPTER I - GENERAL PROVISIONS Article 23. Presentation of Petitions Any person or group of persons or nongovernmental entity legally recognized in one or more of the Member States of the OAS may submit petitions to the Commission, on their own behalf or on behalf of third persons, concerning alleged violations of a human right recognized in, as the case may be, the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, the Additional Protocol in the Area of Economic, Social and Cultural Rights, the Protocol to Abolish the Death Penalty, the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on Forced Disappearance of Persons, and/or the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women, in 377

The evidence of the original intent, whatever it was with respect to regulatory takings, does not speak anywhere of lost value as the indicator of the existence of the taking. See Joseph L. Sax, T AK IN G S AN D TH E P O LICE P O W ER , 74 Yale L.J. 36, at 54-56 (1964), (arguing the diminution of value theory conflicts with the early natural law theorists' understanding of just compensation). If the original understanding does extend to regulatory takings, then a strict enforcement of the text would require compensation for destruction of even the smallest vested right of usage if the right did not constitute a nuisance. This is, however, an issue that is appropriate for another article. 57

accordance with their respective provisions, the Statute of the Commission, and these Rules of Procedure. The petitioner may designate an attorney or other person to represent him or her before the Commission, either in the petition itself or in another writing.

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Defense Counsel filed their Motion to Dismiss, ther Memorandum ibn Support of Motion

to Dismiss, and their Supplemental Motion to Dismiss. On January 31, 2007 in reply to my email to the U.S. Attorney’s Office, Little Rock, inquiring about whether or not the cause proceeded to the discovery phase in regard to the Court’s INITIAL SCHEDULING ORDER dated January 29, 2007, the U.S. Attorney’s Office stated: Mr. Hamrick: This will respond to your email messages of January 30th. This is case is not yet in the discovery phase. The defendants filed a motion to dismiss on 1-19-07. The defendants will request the court to stay discovery and any further activity in the case pending a ruling on the motion to dismiss. Kim Squires Supervisory Legal Assistant U.S. Attorney’s Office/[Eastern District of Arkansas] 425 W. Capitol, Suite 500 Little rock, AR 72201

The Court must take Judicial Notice on the above information tends to beg the question on whether the Court’s INITIAL SCHEDULING ORDER does, in fact and law, marks the beginning of the discovery phase and by implication signals the Plaintiff to commence depositions and discovery activities under Part V of the Federal Rules of Civil Procedures on the premise that the Court neglected to Deny the Motion of Dismiss for the Docket Report.

DEFENSE COUNSEL MISLEAD THE COURT ON JUDICIAL IMMUNITY Judicial Notice must be taken on Defense Counsel’s use of Mireles v. Waco, 502 U.S. 9 (1991) in the MEMORANDUM IN SUPPORT OF MOTION TO DISMISS on page 7 (line 3): The Court should sua sponte dimiss all claims against U.S. District Judges Huvelle and Walton because they have absolute immunity from suit. Mireles v. Waco, 502 U.S. 9 (1991). The correct and complete case law citation is: Mireles v. Waco, 502 U.S. 9 (1991) Held: “Judicial immunity is an immunity from suit, not just from ultimate assessment of damages, and it can be overcome only if a judge’s actions are

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nonjudicial or were taken in the complete absence of all jurisdiction.” I have no recourse against Defense Counsel’s numerous acts of misleading the Court, lying to Court, or other ethical offenses. I find 28 U.S.C. § 1001(b) unconstitutional because it encourages unethical behavior by Defense Counsel which consequence is repugnant to the balance of power under the Tenth Amendment. TITLE 18 - CRIMES AND CRIMINAL PROCEDURE PART I - CRIMES CHAPTER 47 - FRAUD AND FALSE STATEMENTS 18 U.S.C. § 1001. STATEMENTS

OR

ENTRIES GENERALLY

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully (1) falsifies, conceals, or covers up by any trick, scheme, or device a material fact; (2) makes any materially false, fictitious, or fraudulent statement or representation; or (3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title or imprisoned not more than 5 years, or both. (b) Subsection (a) does not apply to a party to a judicial proceeding, or that party's counsel, for statements, representations, writings or documents submitted by such party or counsel to a judge or magistrate in that proceeding. As a pro se civil plaintiff I also find the combination of 18 U.S.C. § 1001(b) absolute immunity for federal judges, and qualified immunity for federal employees as violating the First Amendment’s right to petition the Government for redress of grievances, the balance of power under the Tenth Amendment, and my unenumerated Ninth and Fourteenth Amendment rights to substantial due process in a judicial system that is supposed to be more concerned for justice than covering their Article III behavior.

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LEGAL ETHICS TAKING THE HARD KNOCKS OF JUDICIAL IMMUNITY (March 30, 1992) Jeremy M. Miller To many, the ascension of a lawyer to the bench is tantamount to the ascension of a human to heaven. For many, a lawyer becoming a judge is analogous to becoming an archangel. In fact, in many ways it is similar. Angels, I have heard, are virtually immortal... and analogously judges, at least federal judges, are blessed with life-time tenure. It may not be the best paying job-- but it pays better than being a law professor, has more than all of the benefits of tenure and demands a great amount of respect. Despite all of these fine benefits, life-tenure may not be such a good idea-- particularly as it regards abusive, politicized or otherwise inept federal judges. State judges, fortunately, are not usually so blessed. But federal judges, alas, they are another story. Probably all judges should enjoy the bench for a set term... then return to the private sector. However, that utopia is not our system at present... Instead, the purpose of today's column is to set out the parameters of judicial immunity. In a remarkably terse, readable and comprehensive opinion the United States Supreme Court set out the ins and outs of judicial immunity. See Mireles v. Waco, 91 Daily Journal D.A.R. 12908 (October 21, 1991). In this case, the Honorable Raymond Mireles, a California Superior Court judge apparently had had quite enough of defense attorneys failing to appear on time for their cases in his court. Were such true, the judge could hardly be blamed. Los Angeles County public defender Howard Waco, in fact, was not present as he should have been. Then the plot develops rather nicely. According to Waco's tort complaint, Judge Mireles ordered that he be abducted by officers from another courtroom, using excessive force and abusive language. If Mr. Waco's story is true one would think he would have a civil remedy. However, the U.S. Supreme Court did not see it that way. Regardless of how improper a judge's conduct may be, if he is functioning as a judge, he is absolutely immune from civil suit. The high court did not break new ground with their statement of the law. In a 1978 case, an Indiana state judge, at her mother's request and with jurisdiction, ordered the sterilization of a mildly retarded 15 year old girl-- without the girl's knowledge. Upon later marrying and discovering her sterility, the then woman sued the judge. The high court found the judge to be absolutely immune. See Stump v. Sparkman, 435 U.S. 349 (1978). The court noted that even if the judicial action was in error, even were it malicious and even were the action performed in “excess of his authority”, there would nevertheless be immunity. The next basic query is, when, if ever, is a judge's conduct not immune from suit? Part of the answer was set out in Forrester v. White, 484 U.S. 219 (1988). Here a state judge from Illinois had wrongfully terminated a probation officer. The high court, in allowing §1983 tort damages, held that the judge's conduct was “ministerial”-- not judicial. Thus he did not enjoy immunity. Moreover, when a court, as part of its function, enforces certain rules, then it, again, is not acting in a judicial capacity and is thus susceptible to civil suit. So held, Supreme Court of Virginia v. Consumers Union, 466 U.S. 719 (1980). In this case the Virginia Supreme Court had refused to allow attorney advertizing, despite the fact that the U.S. Supreme Court had held such to be First Amendment protected commercial speech. Therefore, declaratory and injunctive relief was proper for preventing the punishment of First Amendment protected attorney advertizing. Analogously, injunctive relief and the awarding of attorney fees was proper against a judge who was jailing 60

arrestees who could not post bail-- even though the offenses, themselves, were not jailable. See Pulliam v. Allen, 466 U.S. 522 (1984). Most fundamentally, judges are not immune from prosecution for crimes committed while performing their ministerial duties. In Ex Parte Virginia, 100 U.S. 339 (1879) a judge was indicted for failing to include African-Americans as jurors. The function of choosing jurors was there held to be ministerial. In synthesizing the present law, Mireles indicated that judges are not immune when the action is nonjudicial (“ministerial”), when the judge lacks all jurisdiction, when the judge commits a crime and when the action against the judge is for prospective injunctive relief. The only problem with the court's synthesis is, were Public Defender Waco to be telling the truth, then Judge Mireles committed a criminal battery against him which was ministerial-- not judicial in nature. The alleged battery had nothing to do with the adjudication of a particular case. Mireles correctly summarizes the law but glaringly misapplies the facts: the unchallenged facts indicate the judge to have been acting in an enforcement/ministerial capacity (see Supreme Court of Virginia v. Consumers Union, supra) and the allegation implied that a crime (battery) was committed with no relation to the adjudication of a particular case-- thus the action was, again, ministerial (see Ex Parte Virginia, supra). Although it is obvious that judges must enjoy a broad immunity-- otherwise the system will grind to a halt-- nevertheless when there is an accusation of extreme misconduct, as here, particularly when such is not with regard to a pre-trial or trial proceeding (the “judicial” functions), then the plaintiff deserves to have his case heard on the merits. Justices Stevens, Kennedy and Scalia dissented and have to be saluted for not simply “looking out for number 1". [The author wishes to acknowledge the research assistance of Yolanda Lizarraga, who aided in the preparation of this article.]

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APPELLANT’S BRIEF Dixianne Hawks v. County of Butte, et al. Ninth Circuit, Case No. 95-16714, December 11, l995 (USDC Eastern District of California, Civil Case No. 93-82 WBS) Appeal from Dismissal by Judge William B. Shubb: - Excerpted INTRODUCTION TO THE ISSUE The facts underlying this appeal are easy to understand. It is the “law” of “judicial immunity” to violate the Constitution that is complex and incomprehensible; it is a false body of law that begins with a contradiction: 1. Judges are immune from redress to those they injure in violation of constitutional rights under color of office. 2. “Congress shall make no law . . . abridging the right of the People ... to petition government for a redress of Grievances.” 3. The “Coup de Grace” emasculating the Petition Clause is found in 28 USC 2674, in the l988 amendments. “Personal” immunities created by the judiciary now completely immunize the government from accountability to those its immunized officers injure in violation of constitutional rights. Today, most government officers who have direct contact with the People can find an immunity to hide behind. What happened to the Petition Clause? If it speaks true, wherefrom comes immunity to violate the Constitution? We are told the judges created it; but under Article I, only Congress can make law; under Article IV, only the Constitution and law made pursuant to it, not in derogation of it, are the Supreme Law of the Land; and under Article VI, all judges are sworn to support “This Constitution.” The contradictions rage on. Judges contend the authority is implied in a constitutional doctrine that is also implied, called the “Separation of Powers.” Judicial Immunity, they say, comes not from law, but from its own constitutional separation from the Legislature. It cannot make law breaching that separation. That is the basis of immunity. The problem with that rationalization is not only that its premise is twice removed from the Constitution, so that we can’t find it except by blind faith in our judiciary, but immunity to violate Constitutional Rights also has nothing to do with separation of powers. The issue is accountability to the People for violating their rights, not accountability to another branch. A constitution that “implies” a right for judges to violate it with impunity is not a constitution at all, but a license to violate rights under color of judicial fiat. Another weakness of that argument is that the judiciary also created immunities for the rest of government. That violates the same separation principle said to justify it, in four ways: First, its extensions of immunity to other branches are not merely making rules for itself, but making laws that apply to all of government. That invades the legislative function. Second, those laws also apply to the People, denying them redress for constitutional wrongs under “law” designed by judges. That also invades the legislative function, albeit beyond the legislative power.

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Third, by setting the terms and conditions under which government, in all branches, is immune to violate rights, it achieves the opposite of separation: It consolidates and organizes government against the People’s exercise of rights. For example, judges created immunities over 120 years, then in 1988 Congress insulated government by amending 28 USC 2674, thereby consolidating two branches of government. Then the executive branch defends government before the courts, thereby consolidating all three branches against the People. Fourth, another “separation principle” also violated is Tenth Amendment States’ Rights. The Federal Judiciary has not just created immunity for itself and for federal officers, but, disguised as constitutional doctrine, it has created immunity for state officers as well. This not only unites the federal branches against the People, it also unites them with state and local governments, all against the People’s civil rights. What begins to appear is that the judges, by grant of immunity to themselves and to select government officials at all levels, have completely redesigned our Constitution. As we shall see herein, this redesign goes far beyond simple civil immunity. It renders the People incapable of enforcing any rights against anyone judges want to protect, for any reason, or for no reason. Unenforceable rights are not rights at all. The effect of these immunities over time is to create an elite ruling class, bound not by the general law nor to our Constitution, but bound only by personal loyalty to government. That is a New Nobility, and it emerged this way: As the separation fallacy became apparent, the judiciary created another rationale that had been brewing for a hundred years to justify the same end. As nations are sovereign from each other, the judges ruled, governments are sovereign from their own People. Since it is sovereign, government can decide if, when, and how to waive its sovereignty and subject itself to the Petition Clause, within whatever limits it wants. If it wants not, the Petition Clause is not. That is the argument of “sovereign immunity.” Stripped of its mystique, it is “The Divine Right of Kings,” a barbarian doctrine that died at the Convention and was buried under the Petition Clause until resurrected under the doctrine of stare decisis and “ancient common law,” and pulled past the Revolution and through the Constitution. For an example, see Edelman v Jordan, 415 US 651, where the Court amended both the Petition Clause and the Eleventh Amendment based on the ancient English doctrine of the Divine Right of Kings. Again, the People are subjugated to the whims of kings by another name, without right of redress through compulsory process of law. Law, inaccessible to the People to redress grievances with government, is not law, but tyranny. The new civilized relationship of government to governed -- won in war, written in blood, and sealed into our Constitution -- was lost, one “judicial interpretation” at a time. The awesome forces it was designed to protect us from, are unchained. That is judicial immunity and from where it came. There is no justification for it in a nation tending to be civilized. It is not lawful under our Constitution, nor is it rational to our democratic institutions. Yet, today judicially created immunities have become the dominant force of government, organized against the People.

THE RATIONALITY OF JUDICIAL IMMUNITY Reason imposes limits on the justifications for judicial concepts of immunity. We address three separate considerations: 1. JUDICIAL IMMUNITY PREVENTS DEMOCRATIC CHANGE

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First, moral or legal concepts are not born in full bloom. They emerge, are examined and refined, and take on a gloss defining the limits of application in various contexts. Ideas in law or ethics are like ideas in science: only a few are really basic and the rest give way to competing ideas that make more sense in the changing world that measures their worth. An interesting thing about ideas: wrong ideas imposed by law prevent development of better ideas necessary to evolving culture. So, for example, wrong ideas of governmental immunity carried into an age of constitutional democracy stagnate development of democratic relationships and prevent the new institutions necessary to the changing times. When dogmatic institutions are enforced beyond their time, pressure builds for democratic replacements, without which civil strife and war fill the void. An example of judicial support of a coercive institution beyond its time was Scott v Sanford, 60 US 393 (1857). The moral foundations of slavery had already crumbled, but seven Justices found the institution was written into our Constitution, and thrust the Nation into civil war. As we will see, judicial immunity, which comes from the same intellectual era as Dred Scott, prevents development of ideas and institutions for government accountability to the People under the Constitution for its wrongs to them. It is an anti-democratic institution in a democratic age. 2. JUDICIAL IMMUNITY UNDERMINES JUDICIAL CREDIBILITY Second is the context of intellectual evolution in which ideas are examined. The moral, legal and scientific world into which ideas are born changes over time. Judicial ideas, developed when governments ruled through alliances with the Church and under authority of the “Divine Right of Kings,” are not in the same moral, legal or scientific world in which they originated. The result is, justifications that once seemed irrefutable are now obviously false or irrational. So, for example, once it was acceptable to argue “Judicial Immunity is justified by Divine Right of Kings because the King appointed the Judge who acts in the King’s place.” But today, such arguments are absurd and, to reasonable minds, they are arguments against immunity, not for it. In context, judicial concepts must keep pace with the intellectual and theoretical basis of culture to be meaningfully understood by the People. Justifications of privileges and immunities not otherwise allowed to anyone, from common law doctrines of the Divine Right of Kings to a People who reject both Divine Right and Kings, undermine judicial credibility. The Principle: If the Judiciary is not reasonable in terms the People understand, it is seen as an irrational dogmatic belief system the People will progressively reject. 3. JUDICIAL IMMUNITY VIOLATES TWO AMERICAN REVOLUTIONS Third are the Revolutionary Changes in accepted legal theory. America has had two revolutions separating it from the British. The first was the Revolution of 1776. It freed the Nation from British Rule. Thereafter, the law of England had no legal force in America. We set up our own laws and institutions and were free to accept or reject any basis for law, until the next revolution, only fourteen years later. We sometimes fail to appreciate the significance of adopting the Constitution. Unlike any other in history, it revolutionized the relationship between the government and the governed into one now accepted as the basis for governmental legitimacy around the world. British Common Law inconsistent with our Constitution is legally incompetent, regardless of the supporting justifications for it. There could be no more complete a break in the legal bonds of two nations than a war to separate them, and a constitution from which to go their separate ways. There is no more compelling a legal reason to adopt English Common Law, than the ancient law of Rome or of Greece. 65

Neither the fact (if it is a fact) that Judicial Immunity was found in English Common Law, nor that judicially created rules of stare decisis allow courts to refer to Common Law, allows let alone compels us to adopt particular bodies of that law. Ultimately, it is consistency with the Constitution, both in process and substance, not a rule purporting to authorize adoption, that determines whether rules of antiquity can become the law in these United States. “Laws” inconsistent with the Constitution are not the law of the United States. For government to coercively insist that it is, is to court civil war. In this age of science, it is only a matter of time until the People see it and call it for what it is: Open Rebellion by Government Against the Constitution. CONCLUSION OF THIS PART Reason places constitutional limits on judicial doctrine. When examined, immunity is an irrational policy of government coercively taking rights and property, without due process; it is a systemic injustice by government upon the governed. The evaluation herein undertakes a three-step process: First, to define the doctrine to see exactly what [] is barred from redress. Second, what is the historic justification for immunity and what does it mean to Americans of the twenty-first century? If the doctrine is not justified by today’s standards of reason, it is exposed as a holdover from legal theory long past its time. Third, is the immunity [] applied Constitutional? Each of these issues will now be examined in turn. ... II - THE HISTORICAL BASIS FOR JUDICIAL IMMUNITY Judge Shubb based his dismissal on Mullis v Bankruptcy Court, 828 F2d 1385. The Judicial Immunity holdings of Mullis are, in turn, based in Stump v Sparkman, 435 US 349 (1978); and Bradley v Fisher, 80 US (13 Wall) 335 (1872). The history of Judicial Immunity in the United States begins with Bradley, a lawyer who in 1867 defended John Suratt on the charge of murdering President Lincoln and obtained a hung jury. Fisher was the trial judge. During a recess, Bradley confronted Judge Fisher in an allegedly rude and insulting manner, accusing him of insulting and demeaning Bradley from the beginning of trial. After trial, Judge Fisher disbarred Bradley from practice in his court because of the aforesaid. Bradley sued Fisher. (Note: The verbal conduct Fisher punished Bradley for would be protected speech today. (Court was in recess.) See Bridges v California, 314 US 252 (1941); and In Re Hallinan, 71 C2d 1179. Under the Mullis standard, the recessed court would not have subject matter jurisdiction over Bradley’s speech under Bridges, and therefore, Judicial Immunity would not attach today.) A reading of Bradley demonstrates that issues of Constitutional rights either didn’t arise, or weren’t addressed. The issue that is the foundation of Judicial Immunity begins at 80 US 649: “For it is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequence to himself.” CHECK THE PREMISE: Is the same not true of at least every professional person, without the conclusion of immunity following? You hire an attorney so that, in exercising his professional 66

competence, he will do so according to his own good judgment; but if he fails to meet the standard, he is liable. Is the same not true of a doctor, an engineer, an electrician, and so on? Next, Bradley says: “Liability to answer to everyone who might feel himself aggrieved by the action of the judge would be inconsistent with the possession of this freedom and would destroy that independence without which no judiciary can be either respectable or useful.” CHECK THE PREMISE: “Subject to liability for violation of Constitutional Rights” is not “liability to answer everyone who might feel himself aggrieved by the action of the judge.” There are many reasonable differences, i.e. the grievance must be of constitutional significance; it must be well enough founded to survive summary judgment; it must be of a “known” constitutional right. Moreover, while, in a sense, everyone is accountable under the law for just grievances of others against him, there are tools to weed out the just from the unjust. So, for example, in California, a medically injured person needs a written opinion of professional negligence before suing. Justice Field would have us believe that judges would be terrified of their financial liability. But, the point of fact is that, absent punitive damages, tradition and the “Tort Claims Act” have established that, if an official is sued, the Attorney General Appears for him and the government indemnifies him. In other words, the “terrifying financial implications” of judicial liability are simply false; unlike doctors or lawyers, judges would not even carry the burden of insurance. With respect to the impairment of judicial function, the day of judicial mystique is past. A People whose basic lifestyle is based upon science must question the foundations of judicial decisions; and more and more the respectability and usefulness of the judiciary depends upon the soundness of judicial principle and reasoning, not immunity from accountability. Conversely, today, in the “heyday of immunity,” the judiciary is at its lowest ebb of respectability. Next, Justice Field cites an unnamed “distinguished English Judge” from Taaffe v Downes, 3 Moore P.C. 41, n., to wit: “The principle therefore, which exempts judges of courts of superior or general authority from liability in a civil action for acts done by them in the exercise of their judicial functions, obtains in all countries where there is any well ordered system of jurisprudence. It has been the settled doctrine of the English Courts for many centuries and has never been denied, that we are aware of, in the courts of this country. “It has, as Chancellor Kent observes, ‘a deep root in the common law.’” Bradley v Fisher, 80 US at 649. CHECK THE PREMISE: It is not true. What was, in fact, happening was that the Commonwealth was developing a more civilized law as they came to recognize the “Unalienable Rights” of man that gave birth to the United States. The major premise of Bradley was factually incorrect when made. English common law had grown to permit judicial liability claims. In Kendillon v Maltby, 174 Eng. Rep. 562,566 (N.P. 1842) (see the Excerpts), Chief Justice Lord Denman stated the law in l842: “I have no doubt on my mind, that a magistrate, be he the highest judge in the land, is answerable in damages for slanderous language, either not relevant to the cause before him or uttered after the cause is at an end; but for words uttered in the course of 67

his duty, no magistrate is answerable, either civilly or criminally, unless express malice and the absence of reasonable or probable cause be established.” Kendillion is a suit for slander by a policeman against a judge for statements from the bench. Under First Amendment standards, without judicial immunity, but according the judge the same immunities due every American, both the same Rule of Law, and the same result, would obtain. That is, the officer would be treated as a public figure for which rules of “conscious disregard of truth” or malice would apply. It is noteworthy that the reason Lord Denman finds a duty of the judge to speak his opinion, is basically the same “public interest” upon which Americans are privileged under the First Amendment. Next, note, in context with Lord Denman’s statement of English law in 1842, re malice, what Justice Field quotes in l872: “Nor can this exemption of the judges from civil liability be affected by the motives with which their judicial acts are performed. The purity of their motives cannot in this way be the subject of judicial inquiry. This was adjudged in the case of Floyd and Barker, reported by Coke, in 1608, (12 Coke 25) where it was laid down that the judges of the realm could not be drawn in question for any supposed corruption impeaching the verity of their records, except before the King himself ....” That ancient England in 1608 had developed systems of immunities to insulate its nobility from accountability to those they wrongly injured does not highly recommend that system to Post Revolutionary America; it merely threatens to recreate the causes of the Revolution. Realizing that the right to petition government for redress of grievances underlies all other rights, including speech and press, the United States Supreme Court in Bridges v California, 314 US at 263-264, made short work of the argument that such ancient doctrines of “common law” have any impact on our law: “For, the argument runs, the power of judges to punish by contempt out of court publications tending to obstruct the orderly and fair administration of justice in a pending case was deeply rooted in English common law at the time the Constitution was adopted. That this historical contention is dubious has been persuasively argued elsewhere. (Cites Omitted, but see Kendillion supra) In any event, it not detain us, for to assume that English common law in this field became ours is to deny the generally accepted historical belief that ‘one of the objects of the Revolution was to get rid of the English common law on liberty of speech, and of the press in the United States.’ 9 Publications American Sociological Society 67,76.” WHO IS OUR KING: Notice that Justice Field does not quote Coke as saying Judges are not accountable for malice. Rather, the exception to question motives of judges was “Before the King, himself.” How do you transpose that to America? Is the Constitution not clear on who is “King” in our constitutional democracy? It is so clearly the right of the jury to determine the motives of judges, that unless it be so, our own history has taught us, there be no accountability of government at all. In the evolution of “well ordered systems of jurisprudence” the limiting function of constitutions creates systems different in kind from those that pre-existed. When Bradley refers to 68

“any well ordered system of jurisprudence,” there simply was not the time in world history necessary to compare to constitutionally based systems; AND BRADLEY ITSELF prevented development of concepts of judicial accountability in America and in countries that looked to us for leadership in developing such concepts. Does the Bradley rationale still obtain after Commonwealth Countries had time to develop the Constitutional Limits of Government which America had begun in l789? Modern cases suggest that it does not. But, of primary importance is the effect the Bradley doctrine has had in stagnating the development of constitutional law throughout the world. WE ARE THREE WORLDS AWAY FROM ANCIENT ENGLISH LAW. To be sure, the Revolution and Constitution each created such legal change so as to separate us legally from England, as if into separate worlds. But today a third worldwide development in law is occurring, even as we address this issue. The United States is not an island, or even a continent. It is a leader, perhaps THE ONLY leader, of the civilized world. As that leader, it set treaties into motion by which nations become more civilized with respect to each other, and in respect to their own People. Today the United States is bound by Treaties, entered in good faith with the United Nations, requiring that it provide effective remedies and redress for violations of Constitutional Rights, “notwithstanding that the violation has been committed by persons acting in an official capacity” and to “develop the possibilities of judicial remedy.” See The International Covenant on Civil and Political Rights; U.N. Gen. Assem. Res. 2200 A(XXI) of 16 Dec. l966; Ratified by the U.S. Senate in June l992. See Article 2. See also the Universal Declaration of Human Rights, U.N. Gen. Assem. Res. 217-A(III) of 10Dec48; Art. 8. It states: “Everyone has the right to an EFFECTIVE REMEDY by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” [emphasis added] It is long overdue for the Supreme Court to revisit Bradley in light of the impact of Constitutions on the evolution of “well ordered systems of jurisprudence.” Bradley was eighty years out- of-date when it was written. Its teachings are now two centuries past their prime and cannot survive in a world of limited government and constitutional rights. The Treaties mentioned are the “handwriting on the wall” before the entire world: “Judicial Immunity” is an embarrassing, and dying institution. Plaintiff draws the Court’s Attention to Three Points: First, Plaintiff does not contend that there is no “judicial immunity.” She contends that, under the Constitution, it is the same for judges as for everyone else. As we understand the Constitution today, privileges from liability for speech are so substantial that much of the judicial immunity doctrine is redundant, unnecessary, and unconstitutional. Second, Kendillion should be examined in conjunction with Note 3641 from The Digest of Annotated British, Commonwealth and European Cases which states: “No Liability for acts done in Judicial Capacity -- UNLESS interference with rights or freedoms under Constitution -- Award of Damages.” Common law countries now award damages when judges violate constitutional rights. Note 3641 is in the Excerpts. When examined together, we see that constitutions develop clear lines of demarcation between what is and what is not “duty.” By adopting such guidelines, judges know both the limits of authority and of duty. Those limits today are generally well settled constitutional doctrines that achieve much of the purpose of judicially created immunities and simplify constitutional law immensely.

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As for judicial liability, existing doctrines that apply to everyone equally, incidentally benefit judges specially. For example, if a judge is not sure whether a particular right exists or an interest is protected, he can ask for more argument, certify questions, and take reasonable steps to protect interests. Constitutional Rights have never been interpreted to imply strict liability to those who violate them without fault. They would not be now. Third, treaties with the U.N. require the U.S. to provide effective remedies for violations of rights, “notwithstanding that the violation has been committed by persons acting in an official capacity” and to “develop the possibilities of judicial remedy.” See The International Covenant on Civil and Political Rights; U.N. Gen. Assem. Res. 2200 A(XXI) of 16 Dec. l966; Article 2 and Universal Declaration of Human Rights, U.N. Gen. Assem. Res. 217 A(III) of 10 Dec 48; Art. 8) But whether this court agrees with the above or not, the fact is, as we shall see in Part III, judicial immunity violates the Constitution. As such, it is a “nullum pactum.”

III - JUDICIAL IMMUNITY VIOLATES THE CONSTITUTION Is a suit against judges for violating constitutional rights a Petition to Government for Redress of Grievances within the meaning of the Petition Clause of the First Amendment? The affirmative answer seems self-evident. It is self- evident. But, given its prominent position in the Constitution, few cases have addressed the issue, especially in the context of distinguishing, as we do here, “the right to sue,” on the one hand, from The Right to Sue Government for Redress of its Constitutional Wrongs, on the other. The Supreme Court has declared, “Certainly the right to petition extends to all departments of the Government. The right of access to the courts is but one aspect of the right of petition.” California Transport v Trucking Unlimited, 404 US 508, 510 (1972). The California Supreme Court, based on an analysis of U.S. Supreme Court holdings, found that: “The authorities make it clear that the right of petition protects attempts to obtain redress through the institution of judicial proceedings as well as through importuning executive officials and the Legislature. It is equally apparent that the right encompasses the act of filing a lawsuit solely to obtain monetary compensation for individualized wrongs, as well as filing suit to draw attention to issues of broader public interest or political significance. As the Supreme Court declared in Mine Workers v Illinois Bar Assn., supra, 318 US 217, 223, ‘The First Amendment does not protect speech and assembly only to the extent it can be characterized as political.’ (see also Thomas v Collins, supra, 323 US 516, 531) Hence, the act of filing suit against a governmental entity represents an exercise of the right of petition and thus invokes constitutional protection.” City of Long Beach v Bozek, 31 Cal.3d 527, at 533-534 (1982). The court went on at page 535 to address the issue: “The right of petition is of parallel importance to the right of free speech and the other overlapping, cognate rights contained in the First Amendment and in equivalent provisions of the California Constitution. Although it has seldom been independently analyzed, it does contain an inherent meaning and scope distinct from the right of free speech. It is essential to protect the ability of those who perceive themselves to be aggrieved by the activities of governmental authorities to seek redress through all the channels of government. A tort action against a municipality is but one of the available means of seeking redress.” City of Long Beach v Bozek, 31 Cal.3d 527, at 535. In U.S. v Hylton the Fifth Circuit held that filing a complaint against federal officers with state agencies is a petition for redress protected by the Petition Clause, at 710 F2d 1111:

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“As the U.S. Supreme Court has held, the right to petition for redress of grievances is ‘among the most precious of the liberties safeguarded in the bill of rights’. (Cites) Inseparable from the guaranteed rights entrenched in the First Amendment, the right to petition for redress of grievances occupies a ‘preferred place’ in our system of representative government and enjoys a ‘sanctity and a sanction not permitting dubious intrusions.’ Thomas v Collins, 323 US 516; 65 S.Ct 315, 322. Indeed, ‘It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guarantee with the rights of the people peaceably to assemble and to petition for redress of grievances.’ Id. at 323.” It seems to reason that if the filing is protected, then surely the object of the protected right -- of obtaining a due process guaranteed fair hearing of the grievance and redress thereon -- is the very essence of the Petition Clause. In fact, the characteristic which distinguishes petitioning through courts from other forms of petition is the access to compulsory process of law, wherein the parties are equal before the law. Without ultimate recourse to that compulsory process, there is no reason for government to listen to grievances at all, let alone to redress them fairly. It is therefore axiomatic that, underlying all civil relations between government and the governed is the right of the governed to compel government’s obedience to law through the compulsory process of the law. If that is not so, we can end this discussion now, for you will say that our only rights to redress are really gifts of government, and we will not accept your substitution of “gifts” for rights, for then we will threaten war. And you will not accept our threat of war as a substitute for the real thing; and that war will come about, even though neither of us wants it. Those are the battle lines for civil war. Now, let us talk peace based on the mutual respect each has due. The Government and the Governed are Partners. We go nowhere without each other. Is not that lesson of history so complete that it need never be tested again? Now, therefore: Given judicial, quasi-judicial, prosecutorial, and limited immunities that apply to major portions of federal and state government functionaries, as determined by courts over the last 123 years; and, Given the l988 amendments to 28 USC 2674 that “the United States shall be entitled to assert any defense based upon judicial or legislative immunity which would otherwise be available to the employee of the United States whose act or omission gave rise to the claim (for redress of grievances)”; and, Given that such immunity applies to violations of Constitutional Rights; Then, is there any question but that Congress and the Judiciary have combined to make “law ... abridging ... the right of the people ... to petition the Government for a redress of grievances,” in direct violation of the Petition Clause? When judges conspire to maintain a policy to deprive persons of “life, liberty, or property, without due process of law” under a claim of right due to IFP status, do we really have any dispute as to whether that violates the Fifth Amendment? When the judiciary creates an institution to deprive injured persons of redress based upon twists in the meaning of “jurisdiction,” and when it creates case law (with roots in “Floyd and Barker, reported by Coke, in 1608, (12 Coke 25)”) to deprive injured persons of remedies for violating Our Constitution, why is that not an institution of involuntary servitude prohibited by the 71

Thirteenth Amendment? The Supreme Court in Yick Wo v Hopkins, 118 US 356, 370 (1886) found that: “Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. ... But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the commonwealth “may be a government of laws and not of men.” For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.” Here, the Supreme Court declared that the essence of slavery is the holding of any material right essential to the enjoyment of life at the mere will of another. How much worse a betrayal of the human spirit that such rights be lost at the whim of the judicial branch of one’s own government to whom he turns for protection of those rights! This is not a dispute. There is not a Judge in this Circuit who does not KNOW that Judicial Immunity, without question, violates Our Constitution. The problem is that your judicial ancestors rebelled against Our Constitution, and now you don’t know how to get back to a state of judicial constitutionality. THE JOURNEY BACK TO JUDICIAL CONSTITUTIONALITY Justice Brennan faced this question, thirteen years ago in Briscoe v Lahue, 460 US 325, at 346 in his dissent. It is short enough to be quoted in the entirety: “Justice Marshall’s Dissenting opinion, post, presents an eloquent argument that Congress, in enacting Section 1983, did not intend to create any absolute immunity from civil liability for ‘government officials involved in the judicial process ...’ (post, 346-347) Whatever the correctness of his historical argument, I fear that this court has already crossed that bridge in Pierson v Ray, 386 US 547, and Imbler v Pachtman, 424 US 409. “I entirely agree with Justice Marshall, however, that the policies of section 1983 and of common-law witness immunity, as they apply to witnesses who are police officers, do not justify any absolute immunity for perjurious testimony. I therefore dissent for the reasons stated in Part IV of Justice Marshall’s Opinion.” (In Part IV, Justice Marshall argues that absolute police immunity for perjury is not a compelling, or even rational state policy.) We, the People, must live with and under the policy decisions of our government, whether it be the judicial, executive or legislative branch. But, whether right or wrong in some remote esoteric sense we cannot understand, the Constitution entrusts such policy-making into the hands of the Legislature. If the Judiciary is effectively to balance that policy-making power, it cannot do so by legislation disguised as “case law” in usurpation of power reserved to Congress; it must instead relinquish that illegitimate power back to the People, through the jury trial process. 72

Just as the majority policy made in Briscoe v Lahue has given us the likes of Mark Fuhrman to police our streets and testify falsely with impunity, the judicial policy to cover-up the constitutional violations of “Brothers of the Robe” has created and maintains a “good ol’ boy” network of Mark Fuhrmans within its own ranks. The problem is that “Mark Fuhrman” is US. Judges Garcia, Wiggins, Canby and Schroeder are US. To “weed them out” in a system that corrupts is to replace them with US, and then we too will become corrupt in that system. The only solution is to fix the system. It is broken, and it needs fixing desperately. How to Fix It: The problem is unaccountability to those it injures in violation of Constitutional Rights. The solution is accountability to those it injures in violation of Constitutional Rights. The idea of accountability to those you injure is that the injured party, through the process of law seeking redress, polices the system. Immunity blocks that policing of their government by the People. It is written that the longest journey begins with but one step in the right direction. When, as Brennan, Marshall and Blackmun found in l982, we “fear that the Court has already crossed that bridge,” if it is a bridge in the wrong direction and you cannot go back, then you must, at least, not continue on to cross more bridges in the same wrong direction. All is not lost. The Nation’s future can still be enriched by the lessons learned, and a price too horrible to contemplate can still be avoided. Each case of Judicial Immunity presents to each judge a moral decision: “Shall I obey my oath and support the Constitution? Or, shall I ignore my oath in support of the more temporal interests that surround us all?” In this case, there are three choices: 1. You can violate your oath and advance anti- constitutional forces by extending the doctrine of Mullis v US Bankruptcy Court to cover the facts and pleading of this case, and deny the right to a trial by jury to determine any constitutional violations, notwithstanding that damages are not sought. 2. You can expressly limit the Mullis Doctrine to its facts, bring this case under Pulliam v Allen “with a twist,” allowing this suit to go forward as pleaded, and begin to question the whole concept of “Judicially Created Immunities.” That will give the Judiciary the notice necessary to adjust to, and adopt, its own rules of accountability, designed to prevent the need for people to sue judges for violations of Constitutional Rights. 3. For those whose courage and integrity are of the heart of the lion, you can refuse to honor the disgraceful doctrine in any form. From you, Appellant seeks the right to amend her complaint to seek damages as a jury may find “just and proper.” This Court should also consider the long-range national interests of the Judiciary in a world progressively tending toward democracy. On the one hand, it can fight to stagnate the inevitable, but then it will be confronted with the “future shock” of a People refusing to listen to Government as the Judiciary has obstructed the processes by which Government must listen to the People. Alternatively, it can and should prepare itself for inevitable democratic changes and, in its own embrace of those changes, assist and guide them in coming into being. The Judiciary will become “democratized.” The question is whether it will embrace, assist, and guide that process. In this case, what it should do, whether by way of Points Two or Three

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above, is to deny any judicial immunity at this stage and to allow all questions of defense to go to the jury. The Principle: The policy of judicial immunity is wrong and that wrong principle was created by the Judiciary. It is a maxim of jurisprudence: “No one may benefit from their own wrong.” “Democratizing the Judiciary” means in this case: “Let the Jury decide the constitutional credibility of the defense.” If they reject it, let that be your guide, for the Constitution is theirs no less than yours. If they accept it, the Mullis doctrine is vindicated and extended in this case, without the need for government coercion. In either case, government and governed shall have given each his due recognition, and have crossed a bridge into a new democratic partnership in judicial democracy under a Constitution that embraces interpretation by the governed, no less than by those who are chosen to govern. The Jury is the Great Equalizer of disputes between government and governed. Let it do its work.

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Citing the introduction to Daniel Walfish, MAKING LAW YERS RESPONSIBLE

FOR THE

TRUTH : THE INFLUENCE OF MARVIN FRANKEL 'S PROPOSAL FOR REFORMING THE ADVERSARY

SYSTEM , 35 Seton Hall L. Rev. 613 (2005) On December 16, 1974, Judge Marvin Frankel told an audience of the Association of the Bar of the City of New York that "our adversary system rates truth too low among the values that institutions of justice are meant to serve." 1 The judge had become frustrated with the "trickery and obfuscation" 2 that he had witnessed during his nine years on the United States District Court for the Southern District of New York. He suggested that the adversary ideal should be modified to make truth "the paramount objective." 3 To implement this suggestion, Frankel proposed tentative amendments to the American Bar Association's (ABA) Code of Professional Responsibility. Frankel's amendments4 would have required a lawyer to (1) disclose all relevant evidence and prospective witnesses, even when the lawyer does not intend to offer that evidence and those witnesses; (2) prevent or report any untrue statement by a client or witness, or [*614] any omission of material fact, that makes other statements misleading;5 and (3) at trial, examine witnesses "with a purpose and design to elicit the whole truth, including particularly supplementary and qualifying matters that render evidence already given more accurate, intelligible, or fair than it otherwise would be."6 Frankel was not the first person to address the tension between a lawyer's duty to the client and to the court.7 Nonetheless, his views became such an important reference point in modern debate over the adversary system that in 1996, the article version of his speech was ranked the seventy-sixth most cited law review article of all time.8 Marvin Frankel, who died on March 3, 2002, 9 came to

1

T H E S EARCH FOR T RUTH : A N U M PIREAL V IEW , 123 U. Pa. L. Rev. 1031, 1032 (1975) (31st Annual Benjamin N. Cardozo Lecture, Ass'n of the Bar of the City of New York, Dec. 16, 1974) [hereinafter T H E S EARCH FOR T RUTH ]. 2

Id. at 1059.

3

Id. at 1055.

4

See the Appendix for the full text of Frankel's proposal.

5

. Frankel borrowed this language from the Securities and Exchange Commission's Rule 10b-5, 17 C.F.R. 240.10b-5 (1974), which is quoted in the Appendix of this Article, infra note 272. 6

T H E S EARCH

FOR

T RUTH , supra note 1, at 1057-58.

7

For an overview of the pre-Frankel debates, see 2 G EOFFREY C. H AZARD , J R . & W . W ILLIAM H O DES , T H E L AW OF L AW YERIN G , pt. III, at p. 26-6 (3d ed. 2001); A. Kenneth Pye, T H E R O LE OF C O UNSEL IN TH E S UPPRES SIO N O F T RUTH , 1978 Duke L.J. 921, 922-23. 8

Fred R. Shapiro, TH E M OST -C ITED L AW R EVIEW A RTICLES R EVISITED , 71 Chi-Kent L. Rev. 751, 767 (1996). The ranking may actually underestim ate the number of citations to Frankel's ideas because some authors may have cited only Partisan Justice, the 1980 book Frankel published that includes some of the sam e ideas as T H E S EARCH FOR T RUTH . See id. at 762. On the other hand, Shapiro's study is not a perfect measure of intellectual influence: "An article might summarize a particular idea or issue effectively so that it 75

epitomize concern with the value of truth in the legal system and was for a time the country's most prominent critic of the adversary system.10 This Article explores the influence of Frankel's proposals both on discourse about the legal system as well as on actual legal practice. In the academy, as Part I of this Article will show, Frankel's specific proposals never gained wide acceptance. The most heated debate concerning the duty of candor11 has involved the question of whether [*615] a criminal defense lawyer has a duty to disclose a client's perjury or other wrongdoing.12 Frankel's proposals were far more radical than the already controversial requirement that a lawyer should inform the court of his client's wrongdoing, and his proposals were overshadowed by discussion of that more conservative proposal.13 Frankel, however, succeeded in one respect. His specific proposals were meant to be tentative;14 his larger purpose was to inspire the legal profession to talk more about the value of truth in an adversary system and about ways to promote that value. In this he succeeded, at least in the academy. He was less successful in producing change in adversarial practice. As Part II will show, even though Frankel was a member of the commission that drafted the American Bar Association's 1983 Model Rules of Professional Conduct, and early drafts of the Rules essentially reflected his position, his views were gradually washed out of successive drafts until, with minor exceptions, the final version contained no trace of them.15 Part III will demonstrate, however, that a disclosure requirement similar to that proposed by Frankel landed in the Rules of Professional Conduct that New Jersey

becomes a convenient or reflexive cite long after it has ceased to influence scholars or even to be read." Id. at 754. 9

Steven Greenhouse, Marvin Frankel, Federal Judge and Pioneer of Sentencing Guidelines, Dies at 81, N.Y. Times, Mar. 5, 2002, at C15. 10

See, e.g., 2 Hazard & Hodes, supra note 7, 29.22, at p. 29-39 ("The m ost unqualified defense of truth as the paramount goal is associated with Judge Marvin Frankel."). 11

This Article uses "duty of candor" to refer to the lawyer's duty of candor to the court with respect to facts. It would also be possible to study the lawyer's duty of candor to the court with respect to the law. See, e.g., Nathan M. Crystal, L IM ITATIO N S O N Z EALOUS R EPRES EN TATIO N IN AN A DVERSARIAL S YSTEM , 32 Wake Forest L. Rev. 671, 724-26 (1997); Monroe H. Freedman, A RG UING TH E L AW IN AN A DVERSARY S YSTEM , 16 Ga. L. Rev. 833 (1982); Angela Gilmore, S ELF -IN FLIC TED W O U N DS : T H E D UTY TO D ISC LOSE D AM AG ING L EGAL A UTHO RITY , 43 Clev. St. L. Rev. 303 (1995); Geoffrey C. Hazard, Jr., A RG UING TH E L AW : T H E A DVOCATE 'S D U TY AN D O PPORTUNITY , 16 Ga. L. Rev. 821 (1982). However, this duty is not as closely connected with the truth-seeking function of a trial. See, e.g., John H. Langbein, T H E G ERM A N A D VAN TAG E IN C IVIL P ROCEDURE , 52 U. Chi. L. Rev. 823, 824 (1985) (noting that what distinguishes the Continental system from the American adversary system is the lawyer's role in fact-gathering, not in developing legal theories). For the sake of putting reasonable boundaries on the scope of this Article, therefore, I will discuss only the duty of candor to the court with respect to facts. 12

See discussion infra Part I.A.

13

See discussion infra Part I.C.

14

T H E S EARCH

15

See infra Part II.

FOR

T RUTH , supra note 1, at 1031.

76

adopted in 1984.16 Until now, New Jersey's extraordinary rule has not been literally enforced. Nonetheless, the New Jersey Supreme Court and New Jersey's disciplinary bodies appear to have become increasingly interested in recent years in using the rule to remind lawyers about the importance of candor. In a case decided in June 2004, the New Jersey Supreme Court presented its most extensive discussion of the rule to date and, for the first time ever, cited the very Frankel proposal that appears to be the rule's ancestor.17 Thirty years after the publication of Frankel's article, this development raises the possibility that attorneys practicing in New Jersey will be held to a noticeably higher standard [*616] of candor than attorneys practicing in other jurisdictions. The final section of this Article draws lessons from the experience of New Jersey and concludes that Frankel-type reforms are unlikely to succeed without pervasive changes in the attitudes and habits of the legal profession.18 Frankel's ideas appear also to be at least partly responsible for another development, but it is one beyond the scope of this Article. In 1993, the Federal Rules of Civil Procedure (FRCP) were amended to allow district courts to opt in to a regime requiring pretrial disclosure of all material that each party plans to use in support of its own claims and defenses.19 In 2000, the FRCP were amended again to make that regime mandatory.20 These amendments are traceable to the ideas expressed in two law review articles written by Wayne Brazil and William Schwarzer respectively,21 who were both clearly influenced by Frankel.22 While these amendments to the FRCP help to reduce the adversarial character of civil discovery, they do not actually make lawyers responsible for the truth. The amended rules merely require that a party disclose what the adversary would ultimately learn anyway - namely, how the party intends to support its own claims and defenses. The rule does not impose, as Frankel's proposals would have, an affirmative obligation to disclose unfavorable material. 23 Because these discovery

16

N.J. R ULES

17

See In re Seelig, 180 N.J. 234, 850 A.2d 477 (2004).

18

See infra pp. 51-54.

19

See Fed. R. Civ. P. 26(a)(1) (1993) (amended 2000).

20

See Fed. R. Civ. P. 26(a)(1).

OF

P RO F 'L C ONDU CT R. 3.3(a)(5) (1984).

21

The Advisory Committee's notes to the 1993 amendments to the FRCP specifically state that "the concepts of im posing a duty of disclosure were set forth in" Wayne Brazil, T H E A DVERSARY C H ARACTER O F C IVIL D ISCOVERY : A C RITIQ UE AN D P RO POSALS FOR C H ANG E , 31 Vand. L. Rev. 1348 (1978) and William Schwarzer, T H E F EDERAL R ULES , TH E A DVERSARY P ROCESS , AN D D ISCOVERY R EFORM , 50 U. Pitt. L. Rev. 703, 721-23 (1989). See also Griffin B. Bell et al., A U TO M ATIC D IS CLO S U RE IN D ISCOVERY - T H E R USH T O R EFORM , 27 Ga. L. Rev. 1, 15-17 (1992). Brazil eventually became a member of the Advisory Committee that proposed the 1993 rule. Id. at 17. 22

Brazil's entire article, supra note 21, is framed as a response to Frankel, and Schwarzer's article was also influenced by Frankel's ideas. See Schwarzer, supra note 21, at 722 & n.58. 23

Arizona and Nevada do impose such an obligation, but a lawyer in these states only needs to make unfavorable disclosures to opposing counsel; there is no affirmative duty of candor with respect to the court. Arizona requires attorneys to disclose "the names and addresses of all persons whom the party believes may 77

rules do not impose such a duty, and the subject of pretrial disclosure has been extensively treated elsewhere,24 n24 this Article does not specifically discuss this topic. Of course, discovery battles are a major aspect of the adversary character of civil lawsuits, but the discussion in this Article is limited to ethics standards.

POPULAR CONSTITUTIONALISM -V JUDICIAL REVIEW (SUPREMACY) It is my contention that the U.S. Judicial is has stolen the Ninth Amendment right and the Tenth Amendment power to say what the Constitution means. I further find that this theft has been unconstitutional exonerated by 18 U.S.C. § 1001(b). The basis for my contention rests partly in the conclusion in Eric M. Axler, THE POW ER

OF THE

PREAMBLE

AND THE

NINTH AMENDMENT :

THE

RESTORATION OF THE PEOPLE 'S UNENUMERATED RIGH TS , 24 Seton Hall Legis. J. 431, 2000: The Constitution's express grant of some rights to the people does not mean that the citizens relinquished all other "unenumerated" rights, the formation of which evolved over hundreds of years. Though scholars have suggested that the Preamble and the Ninth Amendment kept these unenumerated rights alive, acceptance of this idea has been slow. Consequently, in ethereal areas such as the right of privacy, courts have resorted to explaining that the right to a zone of privacy exists as a penumbra of the Bill of Rights.145 This confusion in recognizing such an inalienable right as the right of privacy could be greatly reduced by giving more importance to the clear words of the Ninth Amendment and the Preamble.

have knowledge or information relevant to the ... action, and the nature of the knowledge or information each such individual is believed to possess." Ariz. R. Civ. P. 26.1(a)(4). Arizona also requires attorneys to produce "[a] list of the documents ... known by a party to exist whether or not in the party's possession, custody or control and which that party believes m ay be relevant to the subject matter of the action." Ariz. R. Civ. P. 26.1(a)(9). Nevada requires attorneys in pretrial discovery to "exchange written lists of persons ... believed to have knowledge of any facts relevant to the allegations of any pleading filed by any party to the action ... ." Nev. R. Civ. P. 16.1(b)(5) (emphasis added). 24

See, e.g., Charles W . Sorenson, Jr., D ISC LO SU RE U NDER F EDERAL R ULE O F C IVIL P RO CEDU RE 26(A ) - "M UCH A DO A BOUT N O T H IN G ?', 46 Hastings L.J. 679 (1995); Bell et al., supra note 21. 145

See U.S. 479 (1965). In reaching the finding that a zone of privacy exists, the Court invalidated a state statute that forbade the use of contraceptive devices even for married couples. See id. That zone of privacy, ruled the Court, was created by the First, Fourth, Fifth, and Ninth Amendments, and their penumbras, as such a right is essential for the implementation of the explicit protections. See id. The Court expanded this zone so as to also encompass non-married people in Eisenstadt v. Baird, 405 U.S. 438 (1972). The Court subsequently divided the privacy interests into two categories: (1) the interest in not having personal matters disclosed; and (2) the interest in autonomy concerning the making of certain decisions. See Whalen v. Roe, 429 U.S. 589, 599 (1977). The right of privacy, however, is not absolute, and courts may balance the right against countervailing state interests. See id. at 602. 78

Congressman Rodino believes that the Preamble is the "heart, soul, and spirit of the Constitution."146 Perhaps more leaders will one day stress the importance of the Preamble as they interpret the meaning of the Constitution. While the Supreme Court in Jacobson v. Massachusetts147 may have determined that the Preamble does not itself grant rights, it nevertheless seems reasonable that the Preamble might still play some part in judicial decisions as courts continue to interpret a document written over 200 years ago.

I also find that the United Nations, the United States and the several States are complicit in the thievery of the ultimate sovereignty belonging to the People of the States and the United States. I further find that evolution of gun control laws of the several States and of the United States have taken this nation down a deluded primrose path of a promised land of peace and security through gun control toward a gun-free world. Citing the U.S. Senate’s Document No. 103-6, THE CONSTITUTION OF THE UNITED STATES OF AMERICA : ANALYSIS AND INTERPRETATION : ANNOTATIONS OF

CASES DECIDED BY THE SUPREM E COURT OF THE UNITED STATES TO JUNE 20, 1992, pub. U.S.

Government Printing Office, Washington, DC., 1996, the PURPOSE AND EFFECT OF THE PREAM BLE on page 53: Although the preamble is not a source of power for any department of the Federal Government,1 the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution.2 ‘‘Its true office,’’ wrote Joseph Story in his COMMENTARIES , ‘‘is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, ‘to provide for the common defense.’ No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but 146

See Interview by Brian C. Padgett with Congressman Peter W. Rodino Jr., Professor of Law, Seton Hall University School of Law, in Newark, NJ (Nov. 10, 1998) (on record with the Seton Hall Legislative Journal). Congressman Rodino, expanding on his past law review article and published speeches, explained in an interview that, while understanding that the Preamble lacked the force of law, it nevertheless reminds leaders who "we" as a "people" hope to be. See id. W ith that in mind, Rodino elaborated that it is possible to "secure the blessings of liberty to ourselves and our posterity." See id. Indeed, Congressm en Rodino has commented that the language of the Preamble played a major role in the underlying policies of the Civil Rights Act of 1964, the drafting of which he witnessed. See id.; see also 133 C O N G . R EC . H7559 (daily ed. September 17, 1987) (statement of Rep. Rodino). 147

1

197 U.S. 11 (1905).

Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).

2

E.g., the Court has read the preamble as bearing witness to the fact that the Constitution emanated from the people and was not the act of sovereign and independent States, McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 403 (1819) Chisholm v. Georgia, 2 Dall. (2 U.S.) 419, 471 (1793); Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304, 324 (1816), and that it was made for, and is binding only in, the United States of America. Downes v. Bidwell, 182 U.S. 244, 251 (1901); In re Ross, 140 U.S. 453, 464 (1891). 79

is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?’’3

I also find that the United Nations, the United States, and the several States are belligerently ignoring the lethal consequences of the global gun control move to the extent that they are all complicit in genocide as prohibited by Article 3(e) in the international CONVENTION

ON THE

PREVENTION AND PUNISH MENT OF THE CRIME OF GENOCIDE , New York, 9 December 1948. I further find that Congress subverted the complicit provision of the Genocide Convention and in its stead used Incitement Offense in 18 U.S.C. § 1091(b) as a bait and switch methodology of codifying international law as an unconstitutional means of immunizing congressional officials in legislating gun control laws that providing incremental stepping stones to genocide and executive government officials for advocating and campaigning for gun control laws that lead to the same end. Confirming my findings I cite the introduction & conclusion of David B. Kopel, Paul Gallant & Joanne D. Eisen, FIREARMS POSSESSION

BY

“NON -STATE ACTORS ”: THE QUESTION

OF

SOVEREIGNTY , TEXAS REVIEW OF LAW & POLITICS , Vol. 8, No. 2: I. INTRODUCTION At United Nations conferences and in other international fora, many diplomats and NGOs have called for prohibiting or severely limiting firearms possession by “non-state actors.” Use of the phrase “non-state actors,” however, reveals a profound misunderstanding of the nature of sovereignty. While the phrase implies that sovereignty belongs to the government, sovereignty properly belongs to the people and is merely delegated by them to the government. In this article, we examine the connection between arms possession and sovereignty and we detail the horrible violations of human rights that have so often resulted from the prohibition of guns to “non-state actors.” From ancient Athens to modern Zimbabwe, weapons bans for “non-state actors” have often led to human rights abuses by illegitimate governments; these abuses are perpetrated against the legitimate sovereigns: the people of the nation. When Confucius was asked what would be the first step if a government sought his advice, he answered that “[i]t would certainly be to rectify the names. . . . If the names are not correct, language is without an object.”1 The modern push for civilian gun prohibition—for banning gun ownership by “non-state actors”—is based on the faulty premise that “the government” is equivalent to “the state.” To the contrary, as the Declaration of Independence

3

1 J. Story, C O M M ENTARIES O N TH E C O NS TITUTIO N O F TH E U N ITED S TATES (Boston: 1833), 462. For a lengthy exegesis of the preamble phrase by phrase, see M. Adler & W. Gorman, T H E A M E RIC AN T ES TAM E NT (New York: 1975), 63–118. 1

Confucius, T H E A NALECTS

OF

C O N FU C IU S 13:3, at 60 (Simon Leys trans., W .W. Norton 1997). 80

teaches, it is a self-evident truth that governments are created by the people of a state, in order to protect the human rights of the people.2 As sovereigns, the people have the authority to change the government when they determine that the government is no longer fulfilling its function of protecting the people’s rights. The people are the only true and legitimate rulers of a state, and the government is only their instrument and servant. To the extent that a government is not founded on the consent of the governed, it is illegitimate. As a United States federal district court put it, “the people, not the government, possess the sovereignty.”3 At the 2001 United Nations Small Arms Conference, Iran took the lead in promoting a ban on weapons supplies to “non-state actors.”4 The “non-state actors” clause would require vendors “to supply small arms and light weapons only to governments, or to entities duly authorized by government.”5 The clause would make it illegal, for example, to supply weapons to the Kurds or religious minorities in Iran, even if Iranian persecution or genocide drove them to forcible resistance. The clause would have made it illegal for the United States to supply arms to the oppressed Kurds and Shia of Iraq before the Saddam Hussein regime was toppled. Had the “non-state actors” provision been in effect in 1776, the transfer of firearms to the American patriots would have been prohibited. Had the clause been in effect during World War II, the transfer of Liberator pistols to the French Resistance, and to many other resistance groups, would have been illegal. At the U.N. Conference, the United States delegation stood firm against the “non-state actors” clause, rejecting compromise efforts to revise the language or to insert it into the preamble of the Program of Action.6 Although Canada pushed hard, the U.S. would not relent. U.S. Under-Secretary of State John Bolton pointed out that the proposal “would preclude assistance to an oppressed non-state group defending itself from a genocidal government.”7

2

T H E D ECLARATIO N

O F I ND EPENDEN CE

para. 2 (U.S. 1776).

3

Mandel v. Mitchell, 325 F. Supp. 620, 629 (E.D.N.Y. 1971), rev’d sub nom . on other grounds, Kleindienst v. Mandel, 408 U.S. 753 (1972). 4

See C ONVENING O F A N INTERNATIO NAL C O NFERENC E O N T H E I LLICIT A RMS T RADE I N A LL I TS A SPECTS : R EPO RT O F TH E S ECRETARY -G ENERAL , U.N. GAOR, 54th Sess., Prov. Agenda Item 76(f), at 12–13, U.N. Doc. A/54/260 (1999); D RAFT REPORT O F TH E U N ITED N ATIONS C O NFERENC E ON TH E I LLICIT T RAD E IN S M ALL A RM S AN D L IGH T W EAPO N S IN A LL I TS A SPECTS , U N ITED N ATIONS C O NFERENC E ON TH E I LLICIT T RAD E IN S M ALL A RM S AN D L IGH T W EAPO N S IN A LL I TS A SPECTS , at 2, U.N. Doc. A/CONF.192/L.6 (2001). 5

Draft Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light W eapons in All Its Aspects, U.N. Conference on the Illicit Trade in Small Arms and Light W eapons in All Its Aspects, at 5, U.N. Doc. A/CONF.192/L.5 (2001), available at http://www.smallarmssurvey.org/source_documents/UN%20Documents/UN%202001%20 Conference/A_CONF.192_L.5.pdf, revised by A/CONF. 192/L.5/Rev.1 (2001). 6

See Press Release, S TATEM ENT

BY

J O H N R. B O LTO N , U N ITED S TATES U ND ER -S ECRETARY

OF

S TATE

FOR A RMS C ONTROL AND INTERNATIO NAL S ECURITY A FFAIRS , TO TH E P LENARY S ESSIO N O F TH E U.N. C O NFERENCE O N TH E I LLICIT

T RAD E IN S M ALL A RM S http://www.un.int/usa/01_104.htm. 7

AN D

L IGH T W EAPO N S

Id. 81

IN

A LL I T S A S P EC T S (July 9, 2001), available at

U.N. Deputy Secretary-General Louise Frechette (of Canada) explained that in some parts of the world, an AK-47 could be obtained for $15 or a bag of grain.8 Small-arms “proliferation erodes the authority of legitimate but weak governments,” she complained.9 U.S. delegate Faith Whittlesey replied that the U.N. “non-state actors” provision “freezes the last coup. It favors established governments, while taking away rights from individuals. It does not recognize any value higher than peace, such as liberty.”10 According to the United Nations, any government with a U.N. delegation is a “legitimate” government. This U.N. standard conflicts with the Declaration of Independence’s standard that the only legitimate governments are those “deriving their just powers from the consent of the governed.”11 Mao Zedong once observed that “[p]olitical power grows out of the barrel of a gun.”12 American Federalist Noah Webster would have agreed. Arguing in 1787 for adoption of the proposed American Constitution, Webster urged Americans not to worry that the new federal government could become a military dictatorship, for “[b]efore a standing army can rule, the people must be disarmed.”13 Not all governments that have disarmed the people have become dictatorships, but

8

Stephen Romei, World Bears Burden of America’s Right to Arms, T H E W EEK EN D A USTRALIAN , July 14, 2001, at 13. 9

Andrew Parker & Richard Wolffe, UN Efforts to Curb Small Firearms Resisted by Bush Administration, F IN . T IM ES (U.K.), July 10, 2001, at 12 (quoting Ms. Frechette). 10

David Kopel, U.N. Gives Tyranny a Hand, N AT ’ L R EV . O N LIN E , at http://www. nationalreview.com/kopel/kopel080601.shtml (Aug. 6, 2001). In a letter to the New York Times, answering a Times editorial criticizing the United States for not allowing the conference to be used as a tool to disarm civilians, Whittlesey elaborated: The highest priority of freedom-loving people is liberty, even more than peace. The small arms you demonize often protect men, wom en and children from tyranny, brutality and even the genocide too frequently perpetrated by governments and police forces. The world’s numerous dictators would be delighted to stem the flow of small arms to indigenous freedom fighters and civilians alike to minimize any resistance. .... The right of individual self-defense in the face of criminal intimidation and government aggression is a deeply held belief of the American people dating back to 1776, when sm all arms in the hands of private individuals were the means used to secure liberty and independence. Faith Whittlesey, Letter to the Editor, Small Arms in a Big Brutal World, N.Y. T IM ES , July 13, 2001, at A20 (responding to Editorial, An American Retreat on Small Arms, N.Y. T IM ES , July 11, 2001, at A16). 11

T H E D ECLARATIO N

O F I ND EPENDEN CE

para. 2 (U.S. 1776).

12

Mao Tse-Tung, Problems of War and Strategy (Nov. 6, 1938), in 2 S ELEC TED W ORKS 224 (Foreign Languages Press 1961–1965) (“Every Communist must grasp the truth, ‘Political power grows out of the barrel of a gun.’”). 13

Noah Webster, A N E XAM INATIO N INTO TH E L EADING P RINC IPLES O F TH E F EDERAL C O NSTITUTIO N 43

(1787). 82

dictatorship is rarely present without an attempt by the government to obtain a monopoly of arms. Let us study some examples. VII. CONCLUSION Like Saudi Arabia’s global funding and promotion of Wahabist indoctrination and concomitant intolerance of all other religions,362 the United Nations’ disarmament campaign springs from a sincere belief that some restrictions on civil liberties are in the best interests of the people being restricted. The Wahabis do not trust the world’s people to make religious choices, and the disarmament lobby does not trust the world’s people to make choices about owning a firearm. The result of the Wahabbi campaign and the disarmament campaign is widespread murder by governments and by terrorist groups, and the suppression of human rights. The explicit principle that sovereignty inheres in the people, not in the government, is at least as old as the great Confucian philosopher Mencius. In contrast to the Legalist philosophers popular in the imperial palaces, Mencius considered the people more important than the state. Mencius wrote: “Heaven sees as the people see; Heaven hears as the people hear.”363 Accordingly, the dissatisfaction of the people could remove the mandate of Heaven from a ruler, and place it on another ruler. The Encyclopædia Britannica notes that Mencius believed that revolution in severe cases is not only justifiable, but is a moral imperative.364 The American political philosopher Theodore Schroeder explained that removing tyranny is not illegitimate rebellion. Rather, tyrannical “government is in rebellion against the people.”365 In the years leading up to the American Revolution, Patriots and Tories alike began to use the term “Body of the People” to mean “a majority of the people,” and eventually, “the united will of the people.” Legitimate sovereignty, Americans said, flowed not from “the Crown,” but from the “Body of the People.” Locating sovereignty in the People, and not in the Crown, meant locating the power to enforce the law in the People as well. Removing arms from “non-state actors” is too often a formula for removing the sovereignty of the people, placing them at the mercy of whoever happens to be running the government. Some of these governments may be benign, but many are not. The Thirty Tyrants of Athens were not benign, nor is Robert Mugabe, nor are the many other dictatorships whose illegitimate power would be strongly enhanced by prohibition of firearms for “non-state actors.” The people are the only legitimate sovereigns of a nation. An international agenda for the protection of human rights

362

See Michael A. Ledeen, T H E W AR A G AINS T TH E T ERROR M ASTERS : W H Y IT H APPENED . W H ERE W E A RE N O W . H O W W E ’ LL W IN . 33–35, 197–200, 207 (2002) (“The Wahhabi Poison has penetrated very deeply into the body of [Saudi Arabia].” Id. at 207.); I S LAM IC F UNDAM ENTALISM 225 (Abdel Salam Sidahmed & Anoushiravan Ehteshami eds., 1996); Louis Alexander Olivier De Corancez, H ISTO RY OF TH E W AH ABIS (Eric Tabet trans., 1995). 363

M ENCIUS 66 (W.A.C.H. Dobson trans., Oxford U. Press 1963)

364

Mencius, in 8 E N CY . B RITANNICA 3 (15th ed. 1998) (“When a ruler no longer practices benevolence . . . and righteousness . . . , the mandate of Heaven . . . has been withdrawn, and he should be removed.”). 365

Theodore Schroeder, F REE S PEECH

FOR

R ADICALS 105 (1969) (1916). 83

should work to ensure the widespread ownership of firearms by the lawful rulers of a state (that is, the people) while seeking to deprive the real “non-state actors” (that is, the dictatorships) of their monopoly of force.

Citing Frederick Douglass. [1857] (1985). "THE SIGNIFICANCE

OF

EMANCIPATION

IN THE

WEST INDIES ." Speech, Canandaigua, New York, August 3, 1857; collected in pamphlet by author. In THE FREDERICK DOUGLASS PAPERS . SERIES ONE : SPEECHES , DEBATES , AND INTERVIEW S . Volume 3: 1855-63. Edited by John W. Blassingame. New Haven: Yale University Press, p. 204: “Let me give you a word of the philosophy of reform. The whole history of the progress of human liberty shows that all concessions yet made to her august claims, have been born of earnest struggle. The conflict has been exciting, agitating, all-absorbing, and for the time being, putting all other tumults to silence. It must do this or it does nothing. If there is no struggle there is no progress. Those who profess to favor freedom and yet depreciate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightening. They want the ocean without the awful roar of its many waters.” “This struggle may be a moral one, or it may be a physical one, and it may be both moral and physical, but it must be a struggle. Power concedes nothing without a demand. It never did and it never will. Find out just what any people will quietly submit to and you have found out the exact measure of injustice and wrong which will be imposed upon them, and these will continue till they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by the endurance of those whom they oppress. In the light of these ideas, Negroes will be hunted at the North, and held and flogged at the South so long as they submit to those devilish outrages, and make no resistance, either moral or physical. Men may not get all they pay for in this world; but they must certainly pay for all they get. If we ever get free from the oppressions and wrongs heaped upon us, we must pay for their removal. We must do this by labor, by suffering, by sacrifice, and if needs be, by our lives and the lives of others.”

Applying Frederick Douglass’ words “these will continue till they are resisted with either words or blows, or with both” to the international law of internal armed conflict one ought to begin to see a clearer picture on just how close that threshold of civil unrest or civil war the United States as at. Citing the Summary and Conclusions from Lindsay Moir, THE LAW

OF INTERNAL

ARMED

CONFLICT , CAMBRIDGE UNIVERSITY PRESS , Cambridge, UK, and New York, NY (footnotes from original): Laws protecting civilians during internal armed conflict have been in place for fifty years, and now comprise both conventional and customary humanitarian law, along with international human rights protection. The conventional law is contained in Article 3 common to the Geneva Conventions of 1949 and Additional Protocol II of 1977, with common Article 3 being the first internationally agreed provision on internal conflict. It sets out minimum obligation for the protection of those taking no part in hostilities which are equally binding upon States and 84

insurgents. The provisions of common Article 3 have come t be considered as ‘elementary considerations of humanity’, applicable in all armed conflicts, be they either internal or international in character,215 and as a result, common Article 3 can be regarded as a customary international legal norm, binding even upon those States not party to the Geneva Conventions. Nevertheless, it is not adhered to sufficiently in practice. Despite its presence in the Conventions and its status as customary law, breaches continually occur. When faced with internal difficulties, States tend to disregard the provisions of common Article 3, often denying that the situation is an armed conflict at all. Article 3 may assert that its application has no effect on the legal status of the parties to the conflict, but States fear the opposite, and to an extent they are right to do so – the insurgents must receive some measure of legal personality to the extent that they gain rights and obligations under the Article. States are furthermore not inclined to apply the Article immediately, as it may impair their ability to crush rebellion swiftly. Equally, insurgents are unlikely to feel any compulsion to comply with common Article 3 where the government disregards its obligations.216 Where internal conflict continues for a substantial period, however, States do tend to accept some form of regulation. This may not necessarily entail the application of common Article 3 per se,217 being more likely instead to involve the acceptance of some vague set of ‘humanitarian principles’ or ICRC initiatives. The situation is therefore better than may have been feared, but the protection afforded by common Article 3 was nevertheless considered to be inadequate in any event. As a result, Additional Protocol II was adopted in 1977 to develop supplement Article 3.218 Again binding on both governments and insurgents, it sets out many of Article 3's provisions in more detail, extending the protection afforded to civilians, detainees and medical personnel. Unfortunately, given the reasons behind its adoption, it regulates only the most extreme internal conflicts, leaving the majority regulated by common Article 3 as before. It I accordingly doubtful that many of its provisions beyond those also contained in common Article 3 have customary status. Accepted by fewer States than the Geneva Conventions,219 instances of the Protocol’s application have been rare indeed.220 In addition to conventional international law, it has recently been affirmed by the International Criminal Tribunal for the former Yugoslavia that a substantial body

215

Nicaragua Case at paragraph 218

216

Insurgents may nevertheless accept the application of humanitarian law in order to gain international credibility, as the FLN did during the Algerian conflict: see above at pp. 68-74. Of course, such acceptance of the law does not necessarily equate to its application in practice. 217

Although, of course, explicit references to the Geneva Conventions and common Article 3 are not unheard of (e.g. the Nigerian Government during the Biafran struggle: see above at pp. 79-83). 218

But without superseding it, common Article 3 retaining its independent legal existence. See above at pp. 100-103. 219

Although only slightly fewer than Additional Protocol I. In April 2001 there were 189 States party to the Geneva conventions, 158 to Additional Protocol I, and 150 to Additional Protocol II (ICRC figures). 220

El Salvador and the Philippines are still the only examples where both government and insurgent parties to a non-international armed conflict have accepted its application. See above at p. 131. 85

of customary law exists to regulate internal armed conflict, and that breaches of the laws of war (either conventional or customary) during internal armed conflict result in individual criminal liability. The customary rules principally protect civilians and civilian property from direct attack and from unnecessary harm; but also contain some rules on methods and means of warfare, in particular a prohibition on the use of chemical weapons and perfidious means of warfare. There is also a degree of protection for certain other objects, for example cultural property.221 The protection of civilians during internal armed conflict is not, however, limited to humanitarian law. Although primarily designed for peacetime, human rights continue to be relevant in such situations. In fact, much of th humanitarian law applicable to internal conflict mirrors human rights provisions, requiring humane treatment at all times and protecting the right to life, freedom from torture, rights of due process, etc. There are problems, however, with the application of human rights to internal armed conflict. First, human rights law binds only States in current international law. Insurgents are required to respect human rights only to the extent that they coincide with their humanitarian obligations. Secondly, the possibility also exists for governments to derogate from several human rights obligations in times of national emergency, including internal armed conflict, although any such derogation must not be contrary to the State’s other obligations under international law. Thus, during internal armed conflict it is unlawful to derogate from human rights which also have a place in common Article 3 or Additional Protocol II. In addition, certain other human rights obligations are always non-derogable. Human rights law therefore offers a valuable alternative avenue for the protection of many humanitarian obligations. The above constitutes a fairly extensive corpus of law, undoubtedly capable of offering civilians adequate protection were it to be applied. Further development or codification of the laws of internal armed conflict is not required so much as a wider acceptance and more effective implementation of the existing law. Traditionally, two options were thought to exist in this regard – either to persuade more States to accept humanitarian law in advance, or else to improve the methods of enforcement. As regards the first method, there is already largely universal acceptance of the Geneva Conventions of 1949 (and thus of common Article 3). Those States typically affected by internal armed conflict are developing nations, but those same States, having obtained the inclusion of wars of national liberation in Additional Protocol I as international conflicts, have consistently avoided ratification of Protocol II. Nevertheless, while there are still significantly fewer States party to Additional Protocol II than to the Geneva Conventions, there are almost the same number as States party to Additional Protocol I. Efforts at wider ratification of Protocol II could still be made, but acceptances of humanitarian law often amount to little more than lip service and are of little importance unlss the law is applied in practice. The answer must therefore lie in more enforcement of the law. While the enforcement mechanisms of human rights are more developed that those of humanitarian law, sevel problems exist as regards their application in armed conflict. As outlined above, they are available only against States, so that breaches by insurgents can be addressed only through humanitarian law. In addition, much of the supervision machinery is optional, relying on the consent of the State

221

See Tadiƒ (Jurisdiction) 35 ILM 32 (1996) and chapter 4 above. 86

concerned, and s making sanctions against the perpetrators a limited possibility.222 Human rights mechanisms can nonetheless prove valuable in the protection of civilians during internal armed conflict, and even to enforce humanitarian law where it happens to coincide with international human rights obligations.223 The effective enforcement of humanitarian law itself is vital, however. Ten years ago tis did not seem to be a viable option – the international community was simply unwilling to take the necessary steps. States had shown little inclination towards accepting their obligation under common Article 1 of the Geneva Conventions to ensure that their provisions were applied by the other High Contracting Parties, and although collective measures were occasionally taken under the umbrella of the UN in the context of ensuring humanitarian relief,224 this tended to occur without addressing the question of enforcing humanitarian law and human rights. Any such steps had been virtually non-existent since Nuremberg. The creation by the United Nations Security Council of International Criminal Tribunals to deal with violations of international law committed in Rwanda and the former Yugoslavia has nevertheless demonstrated that enforcement action is possible, and the pronouncements of those Tribunals have great effect on the development of international law. The actual administering of justice will, however, be rendered impossible unless and until the international community accepts its obligation to arrest those indicted and deliver them to the Tribunals. Despite the relatively widespread fears expressed during the formative stages of the International Criminal Tribunals,225 both have had a degree of success to date, and demonstrate that international justice is indeed possible, although many of the main offenders remain at large in the former Yugoslavia. Nevertheless, the signs are hopeful tat the international community is beginning to face up to its responsibilities as regards the permanent International Criminal Court, the proceedings in the United Kingdom against Senator Pinochet and NATO action against Serbia in the context of the Kosovo crisis can be seen as part of this process. It can only be hoped that Sates will reflect this shift in attitude in a more concrete fashion, by actually taking the steps necessary to administer international justice, rather than providing mere lip service to the concept. In this respect, the final decade of the twentiet century may well represent a true turning point in international law.

I find it preferable that the United States Government avoid a future ‘Internal Armed Conflict’ over the gun control agenda by taking the other path as described in the U.S. Senate’s Document No. 103-6, THE CONSTITUTION

OF THE

UNITED STATES

OF

AMERICA : ANALYSIS

AND

INTERPRETATION : ANNOTATIONS OF CASES DECIDED BY THE SUPREM E COURT OF THE UNITED STATES

222

This is perhaps particularly true of United Nations supervision. The European system, as already discussed, would appear to be more effective. 223

Or, in some circumstances, even to enforce humanitarian law directly.

224

As taken in Somalia, Rwanda, Iraq and Bosnia-Herzegovina.

225

See, for example, the rather pessimistic views of Judge Richard Goldstone, then Chief Prosecutor, in Fisk, “Bosnia Judge Condemns W est’. 87

TO

JUNE 20, 1992, pub. U.S. Government Printing Office, Washington, DC., 1996, the PURPOSE

AND

EFFECT OF THE PREAMBLE on page 53: . . . But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?’’3

I further find that the best way to avoid internal armed conflict is

3

1 J. Story, C O M M ENTARIES O N TH E C O NS TITUTIO N O F TH E U N ITED S TATES (Boston: 1833), 462. For a lengthy exegesis of the preamble phrase by phrase, see M. Adler & W. Gorman, T H E A M E RIC AN T ES TAM E NT (New York: 1975), 63–118. 88

Social Norming The Second Amendment Reinstating a Constitutional Norm as a Social Norm Through Social Norms Marketing

Second Edition

Don Hamrick U.S. Merchant Seaman 5860 Wilburn Road Wilburn, AR 72179 ki5ss@ yahoo.com July 23, 2002

© 2002 Don Hamrick

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Social Norming The Second Amendment Reinstating a Constitutional Norm as a Social Norm Through Social Norms Marketing by Don Hamrick U.S. Merchant Seaman July 23, 2002 © 2002 Don Hamrick

In the formation of such a government, it is not only the right, but the indispensable duty of every citizen to examine the principles of it, to compare them with the principles of other governments, with a constant eye to our particular situation and circumstances, and thus endeavor to foresee the future operations of our own system, and its effects upon human happiness. Noah Webster, An Examination Into The Leading Principles of the Federal Constitution: “A Citizen of America” Philadelphia, October 17, 1787 4

In this paper, as a citizen, I examine the principles of our government, first examining the legal aspects, then applying social psychology concepts of social norms for a fresh look at the gun control debate. In the scheme of life certain things are constant while other things are fleeting variables. The U.S. Constitution in this equation is meant to be the constant, a static factor of life and law. The Second Amendment was originally intended to preserve unlicensed, open-carry handgun (and rifle), to preserve one’s own life, limb, property, liberty, the community, the state, and the nation by deterrence and armed force when necessary, without unjust retaliation by the state or the federal government with maliciously retaliatory prosecutions. There is nearly nothing left for the U.S. Congress to criminalize in regards to our Second Amendment rights to gun ownership and usage. The only other fallacious law to enact is total gun prohibition, a path taken by England and Australia resulting in devastating jumps in murder, home invasions, and other violent crimes. I suggest a different path. I call for a return to our originally intended Second Amendment path that every law-abiding citizen be armed for his personal security, the defense of others, his community, his state (cf. the security of a free state clause of the Second Amendment) and for the security of the nation. Restoring personal security enhances national security. That premise is undeniable! I propose taking the Social Norms Marketing approach to the Second Amendment, laying the foundation for others to nurture and develop to effect that restoration. With the recent 68 year campaign to restrict our Second Amendment rights, from the National Firearms Act of 1934 to the present, effecting to the extent that nearly everything a citizen could lawfully and morally do with a firearm has been criminalized and through this criminalization of a constitutional right we are now seeing its fatal impact, not only on effecting victim

4

The Library of America, The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification: Part One: September 1787 to February 1788; pp. 129-131.

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disarmament, but also on weakening national security in the wake of the September 11, 2001 terrorist attacks. Aaron Zelman, Executive Director, Jews for the Preservation of Firearms Ownership has posted an open letter to President George W. Bush and key members of the Bush Administration titled, A Dangerous Gap in U.S. Homeland Security, dated February 8, 2002 at their Web site.5 An excerpt from that letter quantifies the basis for social norming the Second Amendment: There are not enough FBI agents, National Guardsmen, or police to cover every corner of America. No number of surveillance cameras or checkpoints can do that job (although they may help turn the U.S. into a police state in the vain attempt to achieve "security". Spending $61.8 million on increased FBI surveillance capabilities, or $157.6 million to enhance that agency's computer systems, as your new budget proposes to do, can't protect Americans today, next week, or next month, and may never protect us all. But there are 285 million Americans who are on hand now, in every big-city neighborhood, small town, and rural crossroads. Some 80 million of them already own firearms, and millions are prepared to bring their own weapons and ammunition -- at no cost to the U.S. taxpayers -- to defend their homeland.” And to defend themselves personally against the common criminal, I will add. In Nicholas J. Johnson’s Beyond the Second Amendment: An Individual Right to Arms Viewed Through the Ninth Amendment, 24 Rutgers L.J. 1, 25 (1992), under “Personal Security as a Fundamental Interest” he states: A predominant reason to protect a right to self-defense and personal security is that such an interest may be a prerequisite to exercising and enjoying those rights that are explicitly enumerated. The dead probably have very little use for the First, Fourth and Fifth Amendments. Writings that have contributed to our political and constitutional tradition confirm the idea that individual security and self-defense are basic and natural human concerns. American colonists viewed self-defense not just as a right but as an obligation. Don B. Kates, Jr., Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 229-30 (1983) offers the following quotation from a 1747 Philadelphia sermon in support: He that suffers his life to be taken from him by one that hath no authority for that purpose, when he might preserve it by defense, incurs the Guilt of self murder since God hath enjoined him to seek the continuance of his life, and Nature itself teaches every creature to defend himself.... Unlicensed national open-carry handgun is a “Constitutional Norm” and it was once a social norm. How did our nation advance itself from the social norm of national unlicensed open-carry to that of licensed state-issued concealed-carry, and continues toward a total ban on firearms, transforming a right into a privilege? Unlicensed “restricted to state boundaries” open-carry is the law in Virginia, Nevada, and Maine. But what of unrestricted, or minimally restricted, national open-carry?

5

http://www.jpfo.org/alert20020208.htm

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In Jeffrey R. Snyder’s Fighting Back: Crime, Self, and the Right to Carry a Handgun6 he states: There appears to have been no general statutory restrictions on the ability of citizens to carry arms in the American colonies (excluding, of course, the attempts of the English to disarm the colonists immediately preceding the American Revolution). Nor can one find any examples of general statutory restrictions of, or prohibitions against, the carrying of arms, either openly or concealed, in the early American states. That absence of restrictions corresponds perfectly to the historical fact that our forebears understood that they had an individual right to possess and carry arms for defense, subject to the common law restriction, noted by Sir William Blackstone, that one could not carry such arms as were apt to terrify the people or make an affray of the peace. Restrictions on the concealed-carry of weapons first appeared in the South in the years preceding the Civil War; Kentucky’s were the first in 1813. Few persons had revolvers in those days, and the most feared of concealed weapons was the Bowie knife, not the handgun. By 1850 most Southern states, and Indiana, had prohibited the concealed-carry of weapons, including firearms. At the time the restrictions were enacted, then, people were generally free to carry firearms openly. Honest men engaged in lawful behavior had no reason to take pains to hide their weapons, for weapons were a part of everyday life. In a society in which open-carry was the norm, the natural presumption was that one was unarmed if his weapon was not in plain sight. In that context, concealment was regarded as an act of deception, an ignoble act designed to gain unfair or surprise advantage over others. Open-carry placed men in a position of equality with respect to one another by giving all fair warning whether any was armed. Since those who carried concealed weapons sought a deadly, unfair advantage, criminal or malicious intent was effectively presumed.7

The Dilemma for the Right of Citizen’s Arrest If carrying a concealed weapon was once presumed to be an act of criminal deception for the pursuit of criminal activity then why have we advanced to presume a license to carry concealed is any more trustworthy? Is licensed concealed carry a legalized form of entrapment against the criminal? With legal open-carry came duties to preserve the peace. The duty to behave within established social norms. The right and duty to make a citizen’s arrest came with it the responsibility to be knowledgeable and proficient in how and when to make a citizen’s arrest. In all instances the possession of a handgun was a prerequisite in making a citizen’s arrest. Laws restricting or prohibiting citizens from keeping and bearing arms in public, either concealed or openly worn, nullifies this right of citizen’s arrest in the pragmatic sense. Citing Corpus Jurus Secundum: Who May Arrest in General8 (case citations omitted)

6

Snyder, Jeffrey R., Fighting Back: Crime, Self, and the Right to Carry a Handgun. Cato Institute, Policy Analysis No. 284, October 22, 1997. Quoting from section, The “Ignoble Act” of Carrying Concealed Weapons. (Footnotes omitted) 7

Emphasis mine. Hereafter, all bolded and bolded-underlined text are my em phasis.

8

6A C.J.S. § 11.

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Generally, statutes contain provisions authorizing certain persons to arrest without a warrant one who commits a crime or offense and setting out the conditions under which such authority may be exercised. Where the prescribed conditions are not present, such persons may not make arrest; the arresting authority should not be vested by inference. Peace officers and private persons may arrest one for a felony or a misdemeanor under the specified circumstances. Citing Corpus Jurus Secundum: Arrest by Private Persons9 (case citations omitted) In many instances a private person has the same right to arrest as a peace officer, even though there is time to obtain a warrant, and to take the person so arrested before a magistrate to be dealt with according to the law; and the right may be one conferred by statute. Such an arrest, also referred to as a citizen’s arrest, is as binding as an arrest by a police officer. It may be valid even though the citizen does not physically confront the defendant, as where a citizen directs a police officer to make the arrest and then observes the officer doing so. A citizen’s arrest or attempted arrest can create a dangerous situation, and one who attempts it does so at his peril. While a private person making an arrest is acting for and on behalf of the sovereignty and is subject to the inhibitions of the constitutional provisions against unlawful searches and seizures, it has been held that the fact that a private person makes an arrest does not make the person an agent of the state and would not be a basis for prosecuting the private person under a statute which creates liability for subjecting, under color of state law, any person to deprivation of rights, privileges or immunities secured by the constitution and laws. Corpus Jurus Secundum footnoted the “and one who attempts it does so at his

peril”phrase with the following: Insane person: A private person acts at his own peril in arresting an alleged lunatic without a warrant. Employer’s liability: In making an arrest, employee does not act for his employer, and hence employer is not liable for arrest. Justification of arrest: In an action against a private person for making an arrest, he is prima facie a trespasser and must justify by affirmative pleading and proof. Since exercising one’s right to make a citizen’s arrest is wrought with such peril to one’s physical and legal state shouldn’t we have our Second Amendment right to keep and bear arms reinstated to the extent of national open carry, physically protecting ourselves, and be educated and trained to legally protect ourselves as well? And shouldn’t the government support this legal backing to insure that its citizens do not go around arresting everyone in society for every insignificant infraction of social sensibilities?

9

6A C.J.S. § 12.

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National Open-Carry Handgun as a Deterrent In John R. Lott, Jr.’s and William M. Landes’ Multiple Victim Public Shootings, Bombings, and Right-to-Carry Concealed Handgun Laws: Contrasting Private and Public Law Enforcement 10 their conclusion states: The results of this paper support the hypothesis that concealed handgun or shall issue laws reduce the number of multiple victim public shootings. Attackers are deterred and the number of people injured or killed per attack is also reduced, thus for the first time providing evidence that the harm from crimes that still occur can be mitigated. The results are robust with respect to different specifications of the dependent variable, different specifications of the handgun law variable, and the inclusion of additional law variables (e.g., mandatory waiting periods and enhanced penalties for using a gun in the commission of a crime). Not only does the passage of a shall issue law have a significant impact on multiple shootings but it is the only law related variable that appears to have a significant impact. Other law enforcement efforts from the arrest rate for murder to the death penalty to waiting periods and background checks are not systematically related to multiple shootings. We also find that shall issue laws deter both the number of multiple shootings and the amount of harm per shooting. Finally, because the presence of citizens with concealed handguns may be able to stop attacks before the police are able to arrive, our data also allows us to provide the first evidence on the reduction in severity of those crimes that still take place. I extrapolate from the above conclusion that if gun laws were repealed legalizing unlicensed national open-carry handgun that we will see a further reduction in the number of multiple victim public shootings exponentially, and even a reduction of single-victim murders, assaults and other violent crime. The Senate Subcommittee on the Constitution held a hearing on The Right to Keep and Bear Arms, U.S. Senate, 97th Congress, February 1982. In the Preface Senator Orrin G. Hatch said: If gun laws in fact worked, the sponsors of this type of legislation should have no difficulty drawing upon long lists of examples of crime rates reduced by such legislation. That they cannot do so after a century and a half of trying — that they must sweep under the rug the southern attempts at gun control in the 1870-1910 period, the northeastern attempts in the 1920-1939 period, the attempts at both Federal and State levels in 1965-1976 — establishes the repeated, complete and inevitable failure of gun laws to control serious crime.”

Open-Carry Handgun Supported by 9th & 13th Amendments A gun-free society is anti-social by nature. It allows the criminal element to easily prey upon the innocent. Gun control laws do nothing more than aid and abet the criminal element in the pursuit of criminal activity. In Marbury v. Madison 5 U.S. 137, 174 (1803), “It cannot be presumed that any clause in the constitution is intended to be without effect.” the rights of personal security, personal self-defense and even actions in defense of others are part of the unenumerated rights of the Ninth Amendment. The authority to exercise these rights are guaranteed by the

10

Lott, John R., Jr. and William M. Landes, Multiple Victim Public Shootings, Bombings, and Rightto-Carry Concealed Handgun Laws: Contrasting Private and Public Law Enforcement John M. Olin Law & Economics Working Paper No. 73 (2d Series),The Law School, The University of Chicago. pp. 20-21.

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involuntary servitude clause of the Thirteenth Amendment. Criminals and terrorists alike place their victims in a state of involuntary servitude in the commission of crimes and terrorist acts, regardless of how brief in time that may be. The means for U.S. citizens to exercise and enforce these rights are guaranteed by the right to keep and bear arms clause of the Second Amendment. On May 17, 2001 Attorney General John Ashcroft stated his legal opinion that “the text and the original intent of the Second Amendment clearly protects the right of individuals to keep and bear firearms.” On October 07, 2001 Jon Dougherty WorldNetDaily.com reported in his, Gun Rights Compared to Civil Rights: Groups Demand Ashcroft Enforce 2nd Amendment in States, reported: In what observers are calling a novel approach against gun control, two groups have launched a petition drive to force the Department of Justice to enforce gun rights with the same zeal it enforced civil rights in the 1950s and 1960s. The groups – Citizens of America and KeepAndBearArms.com – say they would like to see Attorney General John Ashcroft back his earlier voiced support for the Second Amendment with action. “Mr. Ashcroft says the right to bear arms is an individual right,” says Brian Puckett, head of COA, “and we’re saying if that’s so, then he should be enforcing that right in states where our right to keep and bear arms is being denied, in the same way the federal government enforced civil-rights laws in the ’50s and ’60s. “Denial of rights is costing lives, 11 not simply forcing people to drink from separate water fountains or go to segregated schools, and we want action, not more words,” he added. “On many occasions the U.S. Justice Department has sent teams of lawyers to force states, municipalities, agencies and officials to obey civil-rights statutes, resulting in laws being overturned and in legal actions against individuals,” said a statement published on the KABA website. Officials from both groups say they are targeting California first because it is the nation’s most populous state and has some of the most authoritarian gun-control laws on the books. “A big concern is that people will think this only applies to California – it doesn’t,” David Codrea, co-founder of COA, told WorldNetDaily. “If we’re successful, precedent will be set for the entire nation, or a Supreme Court case will be initiated, so it’s important for people from every state to know they have a stake in the outcome.” On October 16, 2001 Ashcroft’s legal opinion was confirmed by the Fifth Circuit Court of Appeals ruling in United States vs. Emerson12 that the Second Amendment’s right to keep and bear arms is an individual right. The Court’s jurisdiction covers Texas, Louisiana, and Mississippi. The Emerson case has been appealed to the U.S. Supreme Court and the Court may affirm the Second Amendment is an individual right. The court held:

11

18 U.S.C. § 242 Denial of Rights Under Color of Law.

12

www.ca5.uscourts.gov/opinions/pub/99/99-10331-cr0.htm

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The Meaning of “Bear Arms” We conclude that the phrase “bear arms” refers generally to the carrying or wearing of arms. It is certainly proper to use the phrase in reference to the carrying or wearing of arms by a soldier or militiaman; thus, the context in which “bear arms” appears may indicate that it refers to a military situation, e.g. the conscientious objector clauses cited by amici supporting the government. However, amici's argument that “bear arms" was exclusively, or even usually, used to only refer to the carrying or wearing of arms by a soldier or militiaman must be rejected. The appearance of “bear Arms” in the Second Amendment accords fully with the plain meaning of the subject of the substantive guarantee, “the people,” and offers no support for the proposition that the Second Amendment applies only during periods of actual military service or only to those who are members of a select militia. Finally, our view of “bear arms” as used in the Second Amendment appears to be the same as that expressed in the dissenting opinion of Justice Ginsburg (joined by the Chief Justice and Justices Scalia and Souter) in Muscarello v. United States, 118 S.Ct. 1911, 1921 (1998); viz: Surely a most familiar meaning [of carrying a firearm] is, as the Constitution's Second Amendment (“keep and bear Arms”) (emphasis added) and Black's Law Dictionary, at 214, indicate: “wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person. So. Where do we go from here?

Pointing The Way! Congress has the power to protect the citizen in the exercise of rights conferred by the Constitution. Ex parte Yarbrough, Ga. 1884, 4 S.Ct. 152, 110 U.S. 651, 28 L.Ed. 274. See also, Logan v. U.S., Tex. 1892, 12 S.Ct. 617, 144 U.S. 263, 36 L.Ed. 429; Baldwin v. Franks, Cal. 1887, 7 S. Ct. 656, 120 U.S. 678, 30 L.Ed. 766; U.S. v. Waddell, Ark. 1884, 5 S.Ct. 35, 11 U.S. 76, 28 L.Ed. 673; U.S. v. Lackey, D.C. Ky, 1900, 99 F. 952, reversed on other grounds 107 F. 114, 53 L.R.A. 660, certiorari denied 21 S.Ct. 925, 181 U.S. 621, 45 L.Ed. 1032. Congress has power by appropriate direct legislation to guard against the invasion of and protect a citizen’s fundamental rights, whether those rights be threatened or ignored by unfriendly or insufficient state legislation, by state judicial construction, or by state executive inaction, U.S. v. Hall, C.C.Ala. 1871, 3 Chicago Leg.N. 260; 26 Fed.Cas.No. 15,282. The above points of law and legal opinion point to the restoration of national open-carry handgun as both a constitutional norm and a social norm. Brannon P. Denning, in his law review Gun Shy: the Second Amendment as an “Underenforced Constitutional Norm”, (21 Harv. J.L. & Pub. Pol’y 719, Summer 1998) discusses Lawrence Gene Sager’s Fair Measure: The Legal Status of Underenforced Constitutional Norms,(91 Harv. L. Rev. 1212 (1978)). Denning’s introduction says: Twenty years ago, Professor Lawrence Sager wrote an influential article addressing the legal status of constitutional provisions that are not given the full range of interpretation by the Supreme Court, primarily due to what Sager termed “institutional” concerns. Sager was trying to combat the “modern convention” that

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treated “the legal scope of a constitutional norm as inevitably coterminous with the scope of its federal judicial enforcement.” Professor Sager argued that such norms were “valid to their conceptual limits,” and that other actors in our constitutional scheme, like Congress and the President, also had a responsibility to ensure that those norms were enforced. . . . Sager contended that the adoption of his analysis would result in “the perception that government officials have a legal obligation to obey an underenforced constitutional norm 13 which extends beyond its interpretation by the federal judiciary to the full dimensions of the concept which the norm embodies.” Officials would then be encouraged to “fashion their own conceptions of these norms and measure their conduct by reference to these conceptions.” “At a minimum,” for Sager, this would mean officials would have an obligation to use their “best efforts’ to avoid unconstitutional conduct.” Sager’s thesis envisioned a positive role for the courts, including the Supreme Court, and entailed only minimal limitations on the power of judicial review. In attempting to enforce constitutional norms fully, if Congress passed a law which trammeled other constitutional values, courts would be justified in overturning the offending measure. Similarly, should Congress read a constitutional norm broader than has the Supreme Court, and the more limited interpretation is “firmly rooted in analytical rather than institutional perceptions,” judicial intervention would be warranted as well. Sager cites as examples of warranted intervention when the norm is “fully enforced by the Court” and when the enactment “cannot be justified by any analytically defensible conception of the relevant constitutional concept.” But, Sager argued, when refusing to enforce a constitutional norm on institutional, as opposed to analytical grounds, the courts should refrain from commenting upon the scope of such provision. Sager also endorsed state courts’ enforcement of underenforced constitutional norms, and criticized the Supreme Court for overturning cases in which state courts have broadly enforced provisions of the Constitution. If an underenforced constitutional norm is valid to its conceptual boundaries, the decision of the state court can be understood as the enforcement of the unenforced margin of a constitutional norm, that is, as the assumption of an important constitutional role that the federal courts perceive themselves constrained to avoid because of institutional concerns. On this basis, state court decisions that voluntarily extend the application of such norms should be left intact. Sager continued, “Unless competing constitutional concerns are at stake, there would seem to be no occasion for an abiding federal judicial role in policing state courts against overly generous interpretations of federal constitutional values.” Sager concluded that “we should not allow the prominence of the federal judiciary’s part in the enforcement of the Constitution to obscure the importance of other governmental officials and bodies in that process.” He characterized the federal courts as “relatively powerless” against the “scattered erosion” of our “constitutional values.” His vision, ultimately, was one of “shared responsibility for the safeguarding of constitutional values.” To that end, Professor Sager “encouraged close scholarly and judicial attention to the principles which govern or ought to govern the collaboration.”

13

National open-carry handgun (sidearm) is a constitutional norm.

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In Eric M. Axler’s, The Power of the Preamble and the Ninth Amendment: the Restoration of the People’s Unenumerated Rights, (24 Seton Hall Legis. J. 431 (2000)): Because the Ninth Amendment seemingly refers to unenumerated rights, commentators have urged courts to base their findings of rights on that “forgotten” amendment, rather than try to stretch the meaning of the other amendments to fit the desired right. Courts, by contrast, have been strikingly reluctant to fully embrace the Ninth Amendment as a source of protected rights. The words of the Ninth Amendment, however, are quite simple: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The Supreme Court’s interpretation of this amendment has varied enormously throughout its history. While the Amendment began as an important condition to the states’ ratification of the Constitution, it subsequently went unnoticed by the Supreme Court for 174 years. . . . Although only sparingly utilized by courts to find particular rights since the enactment of the Bill of Rights in 1791, the Ninth Amendment expressly secures, and encompasses, all of the rights alluded to by the framers and ratifiers of the Constitution. Considering that the framers intended to give effect to every constitutional clause, any argument suggesting that the Ninth Amendment was merely an observation, and nothing else, appears to run contrary to established jurisprudence. Furthermore, the rights embodied in the Ninth Amendment should be recognized because of the manner in which the states ratified the Constitution. That is, the ratification process was similar to a negotiation to enter into a contract, with the promise of a bill of rights serving as the parties’ consideration. The proponents of a bill of rights, as a guarantee of the rights and liberties of the people, would not have been content with only the abbreviated list of rights included in the first eight amendments. Indeed, only a selected few of the many rights that the state ratification conventions proposed were actually incorporated into the bill of rights. So as to “compensate” the critics of the Constitution, without whom the Constitution would likely have not been ratified, the framers of the bill of rights inserted the Ninth Amendment.

To discover the spirit of the Constitution, it is of the first importance to attend to the principal ends and designs it has in view. These are expressed in the following words, viz, “We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution.”14 If the end of the government is to be learned from these words, which are clearly designed to declare it, it is obvious it has in view every object which is embraced by any government. The preservation of internal peace — the due administration of

14

Brutus, Essay XII, in The Anti-Federalist Papers and the Constitutional Convention Debates, 300 (Ralph Ketcham ed., 1986). Although “Brutus” (pseudonym of, it is believed, Judge Robert Yates of New York) wrote this reflection as part of an essay to urge those at the ratification conventions to reject the proposed Constitution, the quotation nevertheless is a good description of the value given to the Preamble by the framers. See also The Library of America, The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification. Part Two: January to August 1788. “Brutus” XII, On the Power of the Supreme Court: Nothing Can Stand Before It. p. 173

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justice — and to provide for the defence of the community, seems to include all the objects of government; but if they do not, they are certainly comprehended in the words, “to provide for the general welfare.”15

Mark C. Niles’s Ninth Amendment Adjudication: An Alternative to Substantive Due Process Analysis of Personal Autonomy Rights, (48 UCLA L. Rev. 85, October, 2000, p. 123-135) he: argues that the Ninth Amendment, now a subject of significant legal scholarship, should also play a meaningful role in constitutional adjudication. It demonstrates that the development of an active Ninth Amendment jurisprudence is not only possible as a theoretical matter but is essential to the development of an effective and responsive body of law governing issues of privacy and personal autonomy. Ninth Amendment adjudication would fill a critical void in our personal autonomy jurisprudence by providing courts with a more appropriate and effective means of resolving some of the major individual rights disputes of this century.” A Ninth Amendment Adjudicative Mechanism The interpretation of the Ninth Amendment detailed above suggests that a specific kind of mechanism would be most effective for adjudicating Ninth Amendment claims. Like claims alleging violations of the Fourteenth Amendment’s Equal Protection Clause, the central focus of Ninth Amendment adjudication should be the impact of the underlying government action and the motivation for it. Just as in equal protection analysis, government action based on an invalid motive - in the case of the Ninth Amendment, any motive that is not based on protecting or enhancing the public welfare - should be struck down. Pursuant to Ninth Amendment adjudication, the question would not be whether a distinction made by a governmental action was based on a classification considered inherently suspect because of the unavoidable inference of unconstitutional racial or gender animus or prejudice that the classification suggests. Rather, in Ninth Amendment adjudication, the question will be whether government action that places a significant burden on the expression of personal autonomy or freedom is motivated by an unconstitutional interest in controlling private action or private choices. Like classifications based on race, government action that imposes substantial restrictions on private activities raises the presumption that the action is motivated not by a legitimate public interest, but by an illegitimate objective to regulate activity not within the proper scope of governmental power. Accordingly, an appropriate mechanism for Ninth Amendment adjudication would resemble that used to resolve equal protection claims. First, the court would make an initial determination at a postpleading/prediscovery motion stage as to whether the government action giving rise to the challenge is the kind of activity that the Ninth Amendment protects. If the court concludes that it is not, the case would be dismissed at that stage. If, however, the court concludes restriction of the activity would impose on the personal autonomy of the individual or group of individuals

15

The Library of America, The Debate on the Constitution: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification. Part Two: January to August 1788. “Brutus” XII, On the Power of the Supreme Court: Nothing Can Stand Before It. p. 173

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involved, the case would move on to the second stage, during which the reviewing court would subject the governmental action to a heightened scrutiny similar to that applied in equal protection cases. To survive this review, governmental action that restricts personal autonomy, like an action that classifies on the basis of gender, must serve an important and legitimate government interest, and must be substantially related to achievement of the legitimate objective. This mechanism arises from the core principle of the Ninth Amendment that not all government action is legitimate, and that when the government seeks to restrict the expression of personal freedom, absent an appropriate justification based on the protection of public welfare, it is illegitimate and unconstitutional. Pursuant to this proposed mechanism, reviewing courts will be obliged to determine exactly when government action that seeks to regulate private activity is legitimate. This analysis involves a determination of how private that activity really is, and it must address both the extent of the government regulation involved and the motivation for the action. The more private the activity involved, the less justified the government is in regulating it. To justify regulation, the government must show that there are sufficient public consequences of the activity that justify government regulation. It is important to note once again that the references to private and public that are relevant to this Ninth Amendment analysis conceive of private acts as those that pose no threat of harm to other individuals or to the public welfare, while public acts are those that pose a threat to either or both. This simplistic delineation of the public/private distinction is chosen, in part, because it is mandated by the understanding of the nature of personal liberty and legitimate government action in the Lockean framework. The concept of rights retained by the people upon which this Ninth Amendment interpretation is based flows from Locke’s notion that legitimate government action focused on only those aspects of individual action that posed a threat to others or the community as a whole. Those private acts that did not pose such a threat were not the subject of legitimate government regulation. So, to the extent that the terms public and private are used in the discussion of the Ninth Amendment adjudicative mechanism in the remainder of this Article, they should be viewed as conveying the distinction between acts that pose a potential public threat and acts that do not. The question of the legitimacy of government regulation pursuant to the Ninth Amendment is the same as the question Professor Kirstie McClure conceptualized as central to the determination of legitimacy in Locke’s political theory. What a Ninth Amendment adjudication must do is “distinguish between arbitrary interferences with the[] propriety [of individual citizens on the one hand] and reasonable regulation for the public good [on the other].” When a challenged government regulation is found not to be a reasonable regulation for the public good, but merely an arbitrary interference with individual autonomy, it will be invalid under the Ninth Amendment. A. Stage One: Gatekeeping At the initial stage of a claim based on the Ninth Amendment, instead of asserting that a federal or state law or government action violates a fundamental right protected by the Fifth or Fourteenth Amendment’s due process clauses, an individual would file a complaint alleging that the government action constitutes an illegitimate intrusion into her personal freedom by restricting or precluding an

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essentially private activity or interfering with a private choice. The complaint would identify the specific activity or activities involved and the way in which the government action either restricted or precluded them. The complaint would not argue that the plaintiff had a specific positive right to engage in the activities in question. It would allege instead that regardless of the importance or fundamentality of the activities, the activities were private, or involved the expression of the personal autonomy of the plaintiff, and that they were therefore protected from government regulation by the Ninth Amendment. In response to the plaintiff’s complaint, the government defendant could seek to terminate the case by filing a motion to dismiss the claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (or a state court analog), arguing that even if the factual allegations made by the plaintiff were true, the claim would still fail to state a claim upon which relief could be granted. To make this argument, the government would contend that the activities identified in the complaint were not the kinds of activities that are protected by the Ninth Amendment because they are essentially public rather than essentially private. The reviewing court, either sua sponte or in response to a government motion, would make the initial determination, as a matter of law, as to whether the relevant activity was sufficiently private (or non-publicly threatening) to fall within the protection of the Ninth Amendment. This type of determination is appropriate for a court at the motion to dismiss stage. The dismissal option would allow the court to determine whether the plaintiff had identified a plausible instance of illegitimate government intervention before extensive resources were expended balancing the extent of the harm suffered against the government interests served. Under this proposed adjudication mechanism, if the reviewing court concludes that the activity is not substantially private - that its character is primarily public in nature the court would properly dismiss the case on the grounds that the plaintiff had failed to state a claim upon which relief could be granted under law. This early stage determination would have the benefit of quickly disposing of frivolous assertions of Ninth Amendment rights, of identifying valid constitutional claims that simply are not Ninth Amendment claims, and saving the courts and the government the time and expense of excessive discovery and protracted litigation. Only if the reviewing court concluded that the activity involved was substantially private in character would the case move on to the next stage - the application of a heightened level of scrutiny to the government’s action and motivations. At the initial stage, the court would not provide an in depth evaluation of the extent of the public consequences of the action. It would merely determine whether the activity involved in the claim was basically private or basically public. A judicial determination of whether a certain activity was public or private could pose serious challenges for courts just as it does for philosophers and other theorists. But this unavoidable difficulty does not justify rejection of this adjudicative model. Indeed, such judicial determinations are commonplace in the evaluation of many claims. And, given the character of the privacy right protected by the Ninth Amendment, the overriding question would be a comparatively simple one: Does the action pose a threat of harm to another individual or to the public welfare? As the Supreme Court has demonstrated, it is capable of addressing the issue of the potential public impact of an arguably private activity. In Stanley v. Georgia (394 U.S. 557 (1969)) for example, the Supreme Court reviewed a challenge to a

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Georgia criminal prosecution for the possession of obscene materials. The challenging party argued that the state obscenity law “insofar as it punishes mere private possession of obscene matter, violates the First Amendment.” 16 The Court agreed, holding that “the mere private possession of obscene matter cannot constitutionally be made a crime.” 17 Although the lower court had relied on the Supreme Court’s decision in Roth v. United States (354 U.S. 476 (1957)) which held that obscenity was not protected by the First Amendment, the Court distinguished this case by noting that Roth dealt with the distribution of “objectionable material or with some form of public distribution or dissemination.” In its opinion, the Court addressed the extent of the right to privacy that citizens enjoyed in their homes. After noting the importance of receiving information, regardless of its “social worth,” the Court noted the right “takes on an added dimension” in a case involving protection for the mere possession of obscene material: “For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.” The Court based its holding on its understanding of how the Constitution limits the authority of government to invade the privacy of its citizens and the consequent rights that citizens enjoy in order to protect this privacy. . . . In Stanley, the Court identified two crucial aspects of a reasoned definition of privacy. First, and most obvious, the Court held that actions that occur in an individual’s home and that do not involve contact with the rest of the community are private and deserve a different treatment than conduct that occurs outside the home. But, second, and perhaps more important, particularly in regard to Ninth Amendment adjudication, the Court notes that the real invasion that resulted from the government’s action in Stanley - the real violation of the First Amendment and “our whole constitutional heritage” - was the attempt by the state to invade the mind of one of its citizens. Worse even than the invasion of the appellant’s home in this case, according to the Court, was the attempt to legislate his personal preferences, beliefs, and morality. The decision stands for the proposition that the sphere of privacy that legitimate government action cannot invade includes both one’s home and one’s personal beliefs and values. As strong as the Court’s holding was in Stanley that the government action constituted an undue invasion of privacy, the majority was not unmindful of the types of complications that arise when an activity in our complex and interconnected society is identified as private. In response to arguments from Georgia that “exposure to obscene materials may lead to deviant sexual behavior or crimes of sexual violence,” the Court noted that there is “little empirical basis for” such an assertion, but noted that even if such a connection could be drawn, it would not justify the extent of the intrusion involved in Stanley, particularly in light of other mechanisms that serve to discourage the expression of personal beliefs in a manner that will threaten the society as a whole. We believe that in the context of private consumption of ideas and information we should adhere to the view that “among free men, the deterrents ordinarily to be applied to prevent crime are education and punishment for violations of the law....”

16

17

Stanley v. Georgia (394 U.S. 557 (1969)) at 559 Id.

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Given the present state of knowledge, the State may no more prohibit mere possession of obscene matter on the ground that it may lead to antisocial conduct than it may prohibit possession of chemistry books on the ground that they may lead to the manufacture of homemade spirits. Just as in Stanley, the identification of what is sufficiently private to garner Ninth Amendment protection will be complicated by arguments concerning the potential public impact of essentially private conduct. One of the key aspects of this proposed Ninth Amendment adjudicative mechanism is that it takes these possible arguments seriously and factors them into its analysis. The point of this mechanism is not to identify some actions as purely private and mandate that courts protect them from any kind of state regulation, but rather to identify those activities that are substantially or primarily private and to require a government that seeks to regulate such activities to justify regulation based on the public impact of the action. The Stanley Court’s analysis of the private and public sphere, and of the illegitimacy of government action that invades the former, demonstrates at least some of the activities that would be appropriately considered to be essentially private by a court reviewing a Ninth Amendment claim. Actions involving only one person that occur in the privacy of one’s residence would be considered private under this analysis, partially because of the location of the action and partially because of the complete absence of reasonable threat of harm to another. Although slightly more controversial, it can be demonstrated that actions involving apparently consenting adults within a private residence would also be considered private, again both because of location and the lack of threat of some unwanted, and consequently harmful, intrusion. And the act of forming and expressing one’s personal preferences and beliefs - the defining characteristic of personal autonomy - would also be properly considered private in nature. The discussion of privacy in Stanley provides two important keys to the development of an effective Ninth Amendment jurisprudence: (1) It demonstrates that courts can (and do) make distinctions between public and private activity, and (2) it provides a basic indication of how a reasoned distinction between the public and the private can be made. Though Stanley and similar cases are insufficient to conclusively resolve the difficulties in determining at exactly what point the public/private line should be drawn in every case, this realization is not fatal to the development of this jurisprudence. The point of the Ninth Amendment mechanism is not to mandate resolutions of disputes over the legitimacy of government regulation of private acts, but rather to place those disputes at the forefront of adjudication and to tip the current balance inherent in judicial evaluation of personal autonomy claims away from the governmental entities and in favor of individuals. As the remainder of this Article demonstrates, the difficulties inherent in identifying which actions can be reasonably considered to be primarily public will rest with the governmental entity as it seeks to justify its regulation of the activity in the second stage of the Ninth Amendment adjudication mechanism. Pursuant to this mechanism, the government will only be allowed to regulate activity when it can provide a convincing demonstration that the activity has some kind of significant impact on the public welfare. If the government cannot make such a showing, its regulation will be properly invalidated as violating the Ninth Amendment. B. Stage Two: Heightened Scrutiny for Privacy-Invasive Government Action

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Pursuant to the second stage of this proposed mechanism, if a court concluded that the regulated act is essentially private, a government could not successfully respond to the plaintiff’s claim by noting that there is a public consequence, or consequences, arising from the activity in question. This argument would be insufficient, on its own, to justify the regulation. If the government seeks to legitimately regulate the activity in question, it must demonstrate that the public impact of the act is substantial enough, and the public interest in regulating it compelling enough, to justify the extent of the privacy invasion involved. In the second stage of this Ninth Amendment analysis, the government would be obliged to demonstrate why its regulation of the activity is legitimate. To do this it must identify the public interest that is served by the regulation or preclusion, and show that the specific regulation is substantially related to that public interest. Similar to the “fit” analysis applied by courts in cases involving classifications based on sex under the Equal Protection Clause, the government would be required to demonstrate that the interest it seeks to protect is a valid interest - in this case a public welfare interest - and that the challenged regulation is narrowly tailored to achieve that permissible goal. This Ninth Amendment fit analysis will treat as inherently suspect any governmental action that invades the privacy of individuals. The mere fact that the government has instituted a regulation of private activity supports the assumption that the government’s motivation is nonpublic in nature, and therefore invalid.18 Consequently, as in the case of suspect racial and gender classification, the government would be required to show that the means it has chosen to meet its express objective is the one that poses the least reasonable threat to the constitutional rights of the citizens involved and is reasonably related to a valid government interest. This mechanism serves to protect the personal autonomy of citizens, and to identify circumstances in which the professed motivation for a regulation is actually a pretense obscuring some kind of unconstitutional purpose.19 Under this analysis,

18

John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 34 (1980) at 145-46. In discussing the role that “suspect classification” analysis plays in uncovering the real motivation behind legislative action, Ely notes that: The goal the classification in issue is likely to fit most closely, obviously, is the goal the legislators actually had in mind. If it can be directly identified and is one that is unconstitutional, all well and good: the classification is unconstitutional. But even if such a confident dem onstration of motivation proves impossible, a classification that in fact was unconstitutionally m otivated will nonetheless - thanks to the indirect pressure exerted by the suspect-classification doctrine - find itself in serious constitutional difficulty....The “special scrutiny” that is afforded suspect classifications...insists that the classification in issue fit the goal invoked in its defense more closely than any alternative classification would. There is only one goal the classification is likely to fit that closely, however, and that is the goal the legislators actually had in mind. If that goal cannot be invoked because it is unconstitutional, the classification will fall. Thus, functionally, special scrutiny, in particular its demand for an essentially perfect fit, turns out to be a way of “flushing out” unconstitutional motivation, one that lacks the proof problems of a more direct inquiry.... 19

Id. at 138. The reason that the fit analysis is applied to equal protection determinations is that otherwise ostensibly permissible classifications made by legislatures are appropriately invalidated if the motivation for the classification is impermissible - “that the very same governmental action can be constitutional or unconstitutional depending on why it was undertaken.” Id. at 137; see also Gomillion v. Lightfoot, 364 U.S. 339, 347 (1960) (“”Acts generally lawful may become unlawful when done to accomplish an unlawful end....’” (quoting United States v. Reading Co., 226 U.S. 324, 357 (1912))). As Ely noted in

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the government’s proffered justification for its action could fail on two separate grounds. First, if the interest that the government seeks to protect is insufficiently public, it will not be justified in regulating private activity based on that interest. Second, if there is a legitimate government interest that can be identified, but the regulation in question is not substantially related to promoting that interest, the government would be obliged to find some other, less privacy-intrusive, manner to promote that objective. This fit analysis will require that the government regulate activities only in appropriate circumstances, and seeks to assure that the specific regulations actually arise out of, and reasonably serve, appropriate governmental interests. What is specifically precluded by this part of the mechanism are any governmental interests that do not serve to protect the public good. Pursuant to this analysis, the government cannot impose a community-defined code of morality regulating the private lives of its citizens unless the regulation ostensibly protects the public welfare.20 As shown above, the rights referred to in the Ninth Amendment as being retained by the people are rights to personal self-determination and autonomy. The central core of these retained rights, what Locke referred to as the right to make “private judgment,” is the right to govern one’s life without the imposition of an external, and necessarily alien, belief structure, at least to the extent that these personal moral choices pose no threat to others. Even though it cannot be disputed (at least not under the constitutional or Lockean frameworks) that governments may impose a concept of public morality on its citizens in the course of its regulation of public activity, governments have no legitimate authority to impose a majority-defined concept of personal or private morality on individuals in a way that substantially impacts their private lives. Ninth Amendment adjudication would invalidate any such governmental attempt. In 1946 Senator Claude Pepper of Florida, entered into the Extension of Remarks of the Congressional Record, The Public Responsibilities of an Educated Citizen, a speech delivered by Angus McKenzie Laird, associate professor of political science at the University of Florida, to the graduating class of the summer session of the University of Florida on August 27, 1943.21 The following excerpts from this speech are still appropriate today, and especially so to this application:

1980, this point is by no means uncontroversial, and he also acknowledged the difficulty of finding a single motivation for a legislative act. But he argues that: The considerations that make motivation relevant argue not for the discovery of the “sole” motivation (is there ever just one?) or even the “dominant” motivation (whatever that might mean), but rather for asking whether an unconstitutional motivation appears materially to have influenced the choice: if one did, the procedure was illegitimate - “due process of lawm aking” was denied - and its product should be invalidated. 20

Peter M. Cicchino, Reason and the Rule of Law: Should Bare Assertions of “Public M orality” Qualify as Legitimate Government Interests for the Purposes of Equal Protection Review?, 87 Geo. L.J. 139, 173 (1998) at 142. While it is entirely appropriate, and indeed unavoidable, that legitimate government interests reflect judgments about what is good for the political community and for individual citizens, for equal protection analysis, the only value judgments that qualify as legitimate government interests are those that are observably connected to the public welfare. A bare assertion of public morality, divorced from any empirical effect on the public welfare, cannot constitute a legitimate government interest. 21

Senate, Senator Claude Pepper of Florida, The Public Responsibilities of an Educated Citizen, Congressional Record, Extension of Remarks, 79 th Congress, 2 nd Session (August 1, 1946, legislative day of Monday, July 29), pages A4750-A4753

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Twenty-three centuries ago, the philosopher Plato, an unfriendly critic, held that in a democracy the people did not recognize that their duties were equal to their rights. By insistence upon their rights, and by neglecting their duties, they paved the way for the overthrow of democracy and the establishment of tyranny. One need not accept Plato’s views as to the inevitability of this process from democracy to tyranny, in order to agree that we must meet our duties and responsibilities as well as enjoy our rights and liberties if our democratic society is to survive. This great truth has been recognized in a number of constitutions of national states. The French Constitution of 1793 not only contained the famous “Declaration of the rights of Man,” but had a list of the duties of man as well. The most recent Constitution of the Soviet Union not only has a bill of rights but has a bill of duties as well. Our constitutional forefathers were fully cognizant of the truth that every right implied a duty. However, our Constitution was based upon somewhat different principles from those of the French Constitution of 1793 and the Russian Constitution of 1935. Our Bill of Rights was added, not in order that the people might know their rights, but that the Government might not infringe upon them. It was assumed that the people would know their duties as they knew their rights. Yet, I fear this has not always been realized, and unfortunately “duty” appears almost to have become an outworn term. One should not be surprised if in the next edition of Webster, he finds after the definition of the word “archaic.” In almost all the textbooks on civics and political science, and in all the texts in social science without exception, which you have used in high school and college, you will find at least one chapter on our rights, but never one on our duties. Some of our citizens have been so impressed with their rights in recent years that they are having difficulty—at the country’s expense—in recognizing that they also have duties. . . . an educated citizen has the responsibility to obey and respect the law. I do not mean that you should take a “pollyanna” view of the law, that all laws are good and fair and just and [blindly?] should obey all of them at all times and under all circumstances. Some laws are unfair, some are unwise, some are impractical; others are in conflict, and still others, while considered fair and equitable at one time, have become archaic and inapplicable to modern conditions. The professor closed his speech with: I dare say that the proudest title a person may have in our day is that of an American citizen. Some of you will bear that title to foreign lands; others of you will remain at home. Let us remember that the prestige of this title is not based upon military strength, though that is great; it will be based upon the example we have furnished to the world of a 130,000,000 people, representing all the races of mankind, where all share more equitably in the opportunities and responsibilities of a great society than men have ever shared before. It was of this greatness and of this day that Walt Whitman was thinking when he wrote about a century ago:

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Sail, sail thy best, ship of Democracy Of value is thy freight, ‘tis not the Present only, The Past is also stored in thee. Thou holdest not the venture of thyself alone, not of the Western Continent alone, With thee Time voyages in trust, the antecedent nations sink or swim with thee. Theirs, theirs as much as thine, the destination-port triumphant. (“Thou Mother with Thy Equal Brood”—Leaves of Grass.) As a American merchant seaman Walt Whitman’s poem above strikes resonant with me. If only Mr. Whitman had used Republic instead of Democracy his poem would have rang faithfully truer for freedom. When a nation endeavors to disarm its citizens through a campaign of gun control laws, as in the United Kingdom and Australia examples, domestic tranquility is traumatized, the common defense is compromised, the general welfare is degraded, and liberty is no longer secured. Allowing United States citizens to exercise their Second Amendment rights to the full conceptual limits22 of national open-carry of a handgun, as we once had, will have the attributes of establishing Justice, insuring domestic tranquility, providing for the common defense, promoting the general welfare, and securing the blessings of liberty to ourselves and our posterity (words of the Preamble to the United States Constitution).23 The Second Amendment is a function of the Preamble. There is also a preamble to the Bill of Rights!24 The first paragraph reads: The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

The Social Norms View of the Second Amendment Will life in America really be one of anarchy as gun control advocates claim if law-abiding citizens had their Second Amendment rights at full conceptual limits restored? Or, will it be life as normal, governed by The Limits of Social Norms25 with reduced rates of crime and greater rates of social civilities, as in the proverbial slogan, an armed society is a polite society? Will the government revise tort and liability laws favoring the full conceptual limit of Second Amendment rights as a social norm?

22

See Denning, Brannon P., Gun Shy: the Second Amendment as an “Underenforced Constitutional Norm, 21 Harv.J.L. & Pub. Pol’y 719, (Summer 1998). Discusses Lawrence Gene Sager’s Fair Measure: The Legal Status of Underenforced Consitutional Norms, 91 Harv. L. Rev. 1212 (1978). 23

See Axler’s, Eric M., The Power of the Preamble and the Ninth Amendment: the Restoration of the People’s Unenumerated Rights, 24 Seton Hall Legis. J. 431 (2000) 2 4

N a tio na l A rch ive s a n d www.nara.gov/exhall/charters/billrights/preamble.html 25

R e c o rd s

A d m in istra tio n;

Rachlinski, Jeffrey J., The Limits of Social Norms, Chicago-Kent L.Review, Vol 74:1537-1567;

(2000)

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Excerpts From

The Limits of Social Norms

26

74 Chicago-Kent L. Rev. 1537 (2000) Jeffrey J. Rachlinski 27 No society can function if it cannot constrain the self-serving behavior of its members. Societies that cannot control socially destructive behavior collapse into dysfunction; they become dangerously crime-ridden,28 as in some of America’s inner cities, or completely anarchic, as in parts of the Balkans and central Africa. Clear rules enforced by legal sanctions deter a great deal of socially destructive conduct, but social norms enforced by informal sanctions might create even more powerful constraints. If so, then gaining control over dysfunctional societies might depend more upon using or manipulating social norms than upon enforcing the law. Decades of research conducted by social psychologists on social norms, however, suggests three important obstacles to the use of social norms: First, antisocial norms, once established, are hard to dislodge;29 second, even if people adhere to positive social norms, determining when they are triggered is difficult; third, subtle aspects of situations can induce antisocial conduct, seemingly even against social norms.30 Here I supplant the definition of social norm to mean the acceptance of an openly armed society in accordance with the Second Amendment being a positive social norm, and the definition of antisocial norm to mean an anti-gun society opposing the Second Amendment. Most legal scholarship addressing the control of antisocial behavior addresses formal sanctions rather than social norms. This is not surprising; formal sanctions are more familiar to lawyers and punishing undesirable antisocial conduct is the most straightforward means of maintaining social order. Formal sanctions almost certainly provide a critical degree of control over antisocial conduct, but they are costly, both to society and to the individual being punished. Incarceration, in particular, can produce unintended costs to individuals, especially in communities in which the rate of incarceration is high. Partly in response to the staggering costs of incarceration, some legal scholars argue that informal social norms provide a better means of controlling antisocial conduct. This observation builds upon a growing body of legal 26

Footnotes omitted.

27

Professor of Law, Cornell Law School. Ph.D., Psychology, Stanford University, 1994; J.D., Stanford University, 1993; B.A., The Johns Hopkins University, 1988; M.A., Psychology, The Johns Hopkins University, 1988. 28

United Kingdom and Australia serve as pristine examples of when a nation disarms its citizens with complete bans on firearms that nation soon becomes crime ridden. Proof that an armed society is a positive social norm. 29

The anti-gun culture as a social norm is anti-social in nature. It allows the criminal element of society free reign in criminal activity against the law-abiding as they are less likely to face an armed citizen. 30

The handgun, in reality, is a tool for self-defense. An inanimate object, it can do nothing under its own existence. The anti-gun culture view the handgun as an animate object capable of psychologically inducing anti-social behavior in its owner to commit crimes with the handgun. Anti-social behavior becomes a social norm.

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scholarship concerning social norms. This new “law and social norms” scholarship adopts a more subtle approach to social behavior than identifying situations that should trigger formal rewards and sanctions. It accounts for the prominence of group membership and social approval as sources of rewards and punishments. This new field has developed several positive and normative implications of social norms. On the positive side, the scholarship asserts that groups develop and enforce norms of conduct apart from formal legal sanctions. Perhaps more significantly, this scholarship might hold valuable normative lessons for policymakers interested in reducing crime as an alternative to incarceration. The law and social norms scholarship identifies two ways in which reformers can take advantage of the power of social norms. First, changes in law can influence social norms. For example, passing a law against smoking in public places had a dramatic effect on smokers, not because of the formal penalty for public smoking (which is hardly ever imposed) but because it empowered nonsmokers to levy social sanctions on smokers. Changes in law might also inspire changes in preferences. Scholars refer to this as the “expressive” function of law. Second, subtle and inexpensive changes in a social setting can signal different social norms. . . .31 The interaction between law and social norms arguably identifies ways to reduce crime that are less expensive and more humane than traditional approaches. A change in law that does not need to be enforced, or is only minimally enforced, is not costly to society or to the individuals who are deterred from breaking the law by a new social taboo. . . . The social psychological research, in fact provides some systematic support for the theories proposed by the social norms scholars. Social psychologiests have conducted numerous empirical studies which support two basic tenets of the law and social norms scholars: (1) that groups develop and impose norms on their members, and (2) that the apparent behavior of others can alter the social meaning of a situation in ways that profoundly affect behavior. Social Norms Social norms operate independently from formal law. Laws commonly track social norms; murder, burglary, and many crimes are both illegal and socially inappropriate. Sometimes, however, social norms and law conflict. In such instances, norms frequently influence behavior more than the law. . . . An inconsistency between law and social norms makes enforcing formal laws against antisocial conduct difficult. Absent some power to manipulate social norms, these observations have only limited value for reformers. Identification of divergences between law and norms might indicate haw best to allocate an enforcement budget, but this is a relatively weak implication. Scholars have argued, however, that the law interacts with social norms to influence behavior in two productive ways: First, laws can direct or strengthen existing social norms; and second, social policies can change the social meaning of a behavior.

31

An armed society in the United States was once a social norm with its own informal rewards and punishments. Law can and must be changed to facilitate the restoration of this social norm and once restored, support it.

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Law has an expressive function that can motivate a change in social norms. Attaching a criminal penalty to conduct can inspire social condemnation. Criminalizing undesirable conduct to support a social norm con embolden people to levy informal sanctions against a violator and signal potential violators that their conduct will draw a severe social sanction. Ordinary citizens might begin to feel entitled to be free from the costs of undesirable condujct that violators inflict on them. Consequently, even in the absence of enforcement, the mere act of criminalizing conduct can reduce its prevalence. For example, as Robert Cooter has observed, even though laws against smoking in public are almost never enforced, compliance is widespread. Cooter suggests that labeling the behavior as a crime will heighten potential violators’ fear ofr social sanction, and might also encourage a real increase in social sanctions against violators. Along a similar line, laws and policies can take advantage of social norms to change the meaning of social behaviors in ways that discourage antisocial conduct. ... Using the law to influence social norms raises the prospects of having a big effect at little cost. Creating a law against smoking in public and not enforcing it is practically a costless means of eliminating the problem of exposure to second-hand smoke. Reforms directed at changing social norms might also prove much more effective and have fewer unwanted side effects than enforcing formal penalties.

No amount of deceptive legal arguments attempting to prove the fallacious intent of gun control laws preventing the free exercise of armed self-defense will some how reduce crime. But, in reality such laws only increase murder rates and other violent crime rates. What will reverse the tide of gun control is Social Norms Marketing! Instead of the heretofore futile effort of the National Rifle Association, Gun Owners of America, Second Amendment Foundation, KeepAndBearArms.com, Jews for the Preservation of Firearms Owners, and other pro-Second Amendment groups lobbying Congress for the restoration of our gun rights, they “ought” to take the gun rights message that the Second Amendment is not only a constitutional norm but it is also a positive social norm to the people at large. They should pool their financial resources and take the Social Norms Marketing approach. They would ultimately still accomplish their goal as the public at large will then be standing in line at their Senators’ and Congressmen’s doors, sending letters, and emails for the restoration of their gun rights. An effective use of their cost-benefit analysis in anyone’s ledger. “Social norms marketing is an innovative way to educate people about the healthy behaviors practiced by a majority of the public for the purpose of improving overall health status.”— www.mostofus.org. The process of social norms marketing is based on social norms theory.32 I would rephrase that statement to read: “Social norms marketing is an innovative way to educate people about the healthy behaviors practiced by a majority of the public for the purpose of improving overall personal security status.”

32

www.unco.edu/stuact/modelprogram/Social%20Norms.html

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Social norms are people’s beliefs about the attitudes and behaviors that are normal, acceptable, or even expected in a particular social context. In many situations, people’s perception of these norms will greatly influence their behavior.33 When people misperceive the norms of their group — that is, when they inaccurately think an attitude or behavior is more (or less) common than is actually the case — they may chose to engage in behaviors that are in sync with those false norms.34 Such is the case with gun control. Misperceptions infect all of society, even the courts.

The Fifth Circuit Court of Appeals Blows the Whistle On Sister Courts’ Second Amendment Deceptions We conclude that [United States v.] Miller does not support the government’s35 collective rights or sophisticated collective rights approach to the Second Amendment. Indeed, to the extent that Miller sheds light on the matter it cuts against the government’s position. Nor does the government cite any other authority binding on this panel which mandates acceptance of its position in this respect. However, we do not proceed on the assumption that Miller actually accepted an individual rights, as opposed to a collective or sophisticated collective rights, interpretation of the Second Amendment. Thus, Miller itself does not resolve that issue.. . . We turn, therefore, to an analysis of history and wording of the Second Amendment for guidance. In undertaking this analysis, we are mindful that almost all of our sister circuits have rejected any individual rights view of the Second Amendment. However, it respectfully appears to us that all or almost all of these opinions seem to have done so either on the erroneous assumption that Miller resolved that issue or without sufficient articulated examination of the history and text of the Second Amendment.” 36

A Nation of Lies Governed by Liars Leads to Deception and Corruption as a Social Norm This appears to be the case with society in the United States. The transition from a national unlicensed open-carry handgun representative of an honest society (the old social norm) to licensed concealed-carry, representative of a deceptive society (the current social norm), is an example of how a minority’s misperception of behavior in others (gun owners) has led to enactment of laws supporting this misperception. The misperception in this case is the Second Amendment’s right to keep and bear arms, that gun possession is a fretful danger to society. This misperception is based on a psychological fear of guns by the insecure. And what has occurred because of that fear is a transference of that fear from the insecure minority to all of society through legislation. Now that fear is in sync with all of society. The fear of guns has emerged as a social norm. Most lawful gun owners do not publicly defend their rights for fear of ridicule and harassment from society and

33

www.edc.org/hec/socialnorms/ (last update: January 30, 2002)

34

Id.

35

Clinton/Reno era.

36

United States v. Emerson, Fifth Circuit Court of Appeals, No. 99-10331

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from law enforcement. For the survival of the innocent this must change. A new social norm, or more accurately, reinstating an old social norm is demanded.

Social Norms Marketing Social norms marketing is currently, and has been for recent years, used to address binge drinking by college students. Health & Human Development Programs, funded by the U.S. Department of Health and Human Services, Public Health Service, and the National Institutes of Health, are: . . .undertaking a five-year evaluation of the effectiveness of a campaign called ‘Just the Facts’ aimed at reducing high risk, binge drinking by college students. This type of prevention program — commonly known as a ‘social norms marketing campaign’ — tries to change students’ perceptions of campus norms. ‘Just the Facts’ has been pilot-tested on several campuses but this will be the first time it has been scientifically evaluated.37 One method frequently used to correct misperceptions is “social marketing,” a method of using mass marketing techniques to disseminate information. When colleges conduct marketing campaigns to correct misperceptions of social norms, these campaigns are referred to as “social norms marketing” campaigns.38 For many years, health and safety professionals have used the threat of harm and related consequences in an effort to reduce high-risk behaviors such as high-risk drinking, and impaired driving practices. This strategy has had a limited impact on harmful behavior. . . . Social Norms Marketing [is] one of the fastest growing and most effective methods for reducing high-risk behaviors and promoting positive social change. Currently, the Social Norms Marketing approach is being adopted by community coalitions to reduce high school alcohol and tobacco use, by states to promote traffic safety and by colleges to address high risk alcohol use, [binge drinking,] coercive behaviors and other health issues.39 Social norms marketing is the application of marketing ideas to society in order to change or modify behaviors. In The Social Norms Approach, Alan D. Berkowitz states that the social norms theory can also be extended to situations in which individuals refrain from confronting the problem behavior of others because they believe the behavior is accepted by their peer group.40 Social norms theory assumes that much of our behavior is influenced by how members of our social groups behave, and that our beliefs about what others do are often incorrect.41

37

http://notes.edc.org/HHD/products.nsf/projects/01-7365

38

Id.

39

Virginia Department of Alcoholic Beverage Control, Social Norms Marketing Training 2001, D e ce m b e r 4 -5 , 2 0 0 1 , S h e ra to n R ic h m o n d W e st H otel, R ich m on d, V irgin ia , www.abc.state.va.us/Education/socialnorm01/ sn2001.htm. 40

www.sa.ua.edu/wrc/social_norms.htm

41

Perkins, HW and Alan D. Berkowitz, Perceiving the Community Norms of Alcohol Use Among Students: Some Research Implications for Campus Alcohol Education Programming. International Journal of the Addictions, 21(9/10):961-976. This is the original study providing data for student misperceptions of

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The social norms approach was first suggested by H. Wesley Perkins and [Alan D. Berkowitz]42 in an analysis of student drinking behavior. In this study we determined that students regularly overestimated the extent to which their peers were supportive of permissive drinking behaviors, and found that this overestimation predicted how much individuals drank. We recommended that prevention efforts focus on providing students with accurate information on peer drinking attitudes and behavior as a means of promoting non-use and less risk. This represented a radical departure from traditional intervention strategies that focus on abuse and on identification, intervention and treatment strategies for abusers. Traditional approaches that focus solely on the problems of alcohol and other drug use and its negative consequences draw attention to extreme behavior and foster the misperception that campus drinking is more excessive than is actually the case. In contrast, interventions based on social norms theory focus on the healthy attitudes and behavior of the majority and use information about healthy norms to guide interventions with abusers.43 The prevalence of alcohol-related misperceptions has been confirmed in over thirty published studies. Misperceptions are held by all members of campus communities, including undergraduate and graduate students, faculty and staff, students and student leaders, and have been documented in statewide sample of young adults both in college and not in college, and among middle and highschool students.44 Misperceptions have been documented for groups such as fraternity members, and athletes, and have been found to differ by gender, with women usually misperceiving more than men.45 Making a parallel extrapolation of the above account, misperceptions are similarly made regarding firearms and the Second Amendment.

Assumptions of Social Norms Theory 46 As noted, social norms theory predicts that persons behave or inhibit behavior in an attempt to conform to a perceived norm. This phenomenon of “pluralistic ignorance” can cause an individual to act in ways that are inconsistent with her or his true beliefs and values (Miller & McFarland, 1991). In other words, gun owners (and non-gun owners advocating Second Amendment gun rights who would jump at the chance to own a handgun if the laws weren’t so hostile to gun owners) act with pluralistic ignorance in ways that are inconsistent with their true beliefs and

attitudes towards alcohol, along with a discussion of the effects of these pisperceptions. 42

Id.

43

Berkowitz, Alan D., The Social Norms Approach: Theory, Research and Annotated Bibliography, June 2000, revised August 2001. In “Type of Misperceptions” section. 44

Ib. In “Studies Documenting Misperceptions” section.

45

Ib.

46

Berkowitz, Alan D., Applications of Social Norms Theory to Other Health and Social Justice Issues January, 2001

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values. Even the National Rifle Association is afflicted with this malady by continuously compromising on gun control legislation. Misperceptions of a norm discourage the expression of opinions and behaviors that are falsely thought to be non-conforming, creating a negative cycle in which unhealthy behavior is expressed and healthy behavior is inhibited.47 Misperception of a constitutional norm, the national open-carry handgun, that was once a social norm, has led to the silencing of gun owners and the rise in verboseness of gun control advocates, where creating the negative cycle of unhealthy behavior (criminal activity) is expressed and healthy behavior (armed self-defense) is inhibited. It also allows abusers or perpetrators of problem behaviors to deny or justify their actions due to the (mis)perception that their behavior is normative (Baer, Stacy & Larimer, 1991; Pollard, et al, 2000). This cycle can be broken or reversed by providing individuals with correct information about the actual norm. All individuals who misperceive the norm contribute to the climate that allows problem behavior to occur, whether or not they engage in the behavior. Perkins (1997) coined the term “carriers of the misperception” to describe these individuals. The assumptions of social norms theory are presented in Table 1.48 This is the answer to any Second Amendment advocate who questions why the majority of gun owners do not take on a publicly active or activist role in defense of their rights. These inactive gun owners are carriers of misperception.

Table 1: Assumptions of Social Norms Theory 49 Assumptions of Social Norms Theory

Second Amendment Adaptation

1. Actions are often based on misinformation about or misperceptions of others’ attitudes and/or behavior.

Law-abiding citizens possessing or carrying a gun are misperceived as doing so with criminal intent.

2. When misperceptions are defined or perceived as real, they have real consequences.

Gun owners are harassed by law enforcement and businesses, gun-free zones, etc. Vulnerable to crime.

3. Individuals passively accept misperceptions rather than actively intervene to change them, hiding from others their true perceptions, feelings or beliefs.

Gun owners forced to leave guns at home in order to avoid social, legal harassment.

4. The effects of misperceptions are selfperpetuating, because they discourage the expression of opinions and actions that are falsely believed to be non-conforming, while encouraging problem behaviors that are falsely believed to be normative.

Gun prohibitions in urban areas encourages rise in murder and other violent crimes. Drug dealing, drive-by shootings, aggravated assaults, home-invasions, etc., become the social norm when belief of armed self defense is suppressed.

47

Id.

48

Id.

49

Ib. (Left side of table). The right half of table is my adaptation for Second Amendm ent rights.

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Assumptions of Social Norms Theory

Second Amendment Adaptation

5. Appropriate information about the actual norm will encourage individuals to express those beliefs that are consistent with the true, healthier norm, and inhibit problem behaviors that are inconsistent with it.

Hence, the need for a Social Norms Marketing campaign to restore the Second Amendment’s national open-carry handgun as a positive social norm.

6. Individuals who do not personally engage in the problematic behavior may contribute to the problem by the way in which they talk about the behavior. Misperceptions thus function to strengthen beliefs and values that the “carriers of the misperception” do not themselves hold and contribute to the climate that encourages problem behavior.

“What can one person do?” Individual gun owners become hesitant or reluctant to publicly express their pro-Gun Rights views for fear of ridicule or harassment by gun control advocates and law enforcement. Thereby they become carriers of the misperception.

7. For a norm to be perpetuated it is not necessary for the majority to believe it, but only for the majority to believe that the majority believes it.

The misperception that if everyone had guns blood will fill the streets is perpetuated.

A Deadly Example of a Bad Law Arising From a Misperception: The Jessica Lynne Carpenter, Merced, California Story The main stream media’s latent bias and irresponsible disregard for truth did not widely report this story. This is a testimonial to the inalienable right to keep and bear arms for basic human survival, the right to life itself for the innocent. This story is about the misperception that responsible children of age and maturity and lovingly responsible parents both cannot be trusted to keep and bear their arms for the purpose of personal security in a responsible, lawful manner. That the firearms must be kept locked away, inaccessible to those, young and old and all ages in between when they are most needed in the instantaneous moment when life is in peril against an attacking criminal. Quoting from The Libertarian press release:50

Shouldn’t we repeal the gun laws . . . if it’ll save a single child? Jessica Lynne Carpenter is 14 years old. She knows how to shoot; her father taught her. And there were adequate firearms to deal with the crisis that arose in the Carpenter home in Merced, Calif. – a San Joaquin Valley farming community 130 miles southeast of San Francisco – when 27-year-old Jonathon David Bruce came calling on Wednesday morning, Aug. 23. There was just one problem. Under the new “safe storage” laws being enacted in California and elsewhere, parents can be held criminally liable unless they lock up their guns when their children are home alone . . . so that’s just what law-abiding parents John and Tephanie Carpenter had done.

50

www.thelibertarian.net/2000/vs000924.htm. The Libertarian. Syndicated Essays by Vin Suprynowicz. From Mountain Media. For Immediate Release Dated September 24, 2000.

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Some of Jessica’s siblings – Anna, 13; Vanessa, 11; Ashley, 9; and John William, 7 – were still in their bedrooms when Bruce broke into the farmhouse shortly after 9 a.m. Bruce, who was armed with a pitchfork – but to whom police remain unable to attribute any motive51 – had apparently cut the phone lines. So when he forced his way into the house and began stabbing the younger children in their beds, Jessica’s attempts to dial 9-1-1 didn’t do much good. Next, the sensible girl ran for where the family guns were stored. But they were locked up tight. “When the 14-year-old girl ran to a nearby house to escape the pitchfork-wielding man attacking her siblings,” writes Kimi Yoshino of the Fresno Bee, “she didn’t ask her neighbor to call 9-1-1. She begged him to grab his rifle and ‘take care of this guy.’” He didn’t. Jessica ended up on the phone. By the time Merced County sheriff’s deputies arrived at the home, 7-year-old John William and 9-year-old Ashley Danielle were dead. Ashley had apparently hung onto her assailant’s leg long enough for her older sisters to escape. Thirteen-yearold Anna was wounded but survived. Once the deputies arrived, Bruce rushed them with his bloody pitchfork. So they shot him dead. They shot him more than a dozen times. With their guns. Get it? The following Friday, the children’s great-uncle, the Rev. John Hilton, told reporters: “If only (Jessica) had a gun available to her, she could have stopped the whole thing. If she had been properly armed, she could have stopped him in his tracks.” Maybe John William and Ashley would still be alive, Jessica’s Uncle said. “Unfortunately, 17 states now have these so-called safe storage laws,” replies Yale Law School Senior Research Scholar Dr. John Lott – author of the book “More Guns, Less Crime.” “The problem is, you see no decrease in either juvenile accidental gun deaths or suicides when such laws are enacted, but you de see an increase in crime rates.” Such laws are based on the notion that young children often “find daddy’s gun” and accidentally shoot each other. But in fact only five American children under the age of 10 died of accidents involving handguns in 1997, Lott reports. “People get the impression that kids under 10 are killing each other. In fact this is very rare: three or four per year.” The typical shooter in an accidental child gun death is a male in his late teens or 20s, who, statistically, is probably a drug addict or an alcoholic and has already been charged with multiple crimes, Lott reports. “These are the data that correlate. Are these the kind of people who are going to obey one more law?” So why doesn’t the national press report what happens when a victim disarmament (“gun control”) law costs the lives of innocent children in a place like Merced?

51

A possible motive would later be revealed by the Grandmother of the slain children attributing drug use, devil worship, and a fetish for horror movies by John Carpenter (unrelated to the family), “and one [John Carpenter movie] he especially liked, that we have learned depicts a killing done with a pitchfork.”

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“In the school shooting in Pearl, Miss.,” Dr. Lot replies, “the assistant principal had formerly carried a gun to school. When the 1995 (“Gun-Free School Zones”) law passed, he took to locking his gun in his car and parking it at least a guarter-mile away from the school, in order to obey the law. When that shooting incident started he ran to his car, unlocked it, got his gun, ran back, disarmed the shooter and held him on the ground for five minutes until the police arrived. “There were more than 700 newspaper stories catalogued on that incident. Only 19 mentioned the assistant principal in any way, and only nine mentioned that he had a gun.” “The press covers only the bad side of gun use, and only the potential benefits of victim disarmament laws – never their costs. “Basically all the current federal proposals fall into this category – trigger locks, waiting periods,” Lott said. “There’s not one academic study that shows any reduction in crime from measures like these. But there are good studies that show the opposite. Even with short waiting periods, crime goes up. You have women being stalked, and they can’t go quickly and get a gun due to the waiting periods, so they get assaulted or they get killed.” The United States has among the world’s lowest “hot” burglary rates – burglaries committed while people are in the building – at 13 percent, compared to “gunfree” Britain’s rate, which is now up to 59 percent, Lott repports. “If you survey burglars, American burglars spend at least twice as long casing a joint before they break in. . . . The number one reason they give for taking so much time is: They’re afraid of getting shot.” The way Jonathon David Bruce, of Merced, Calif., might once have been afraid of getting shot . . . before 17 states enacted laws requiring American parents to leave their kids disarmed while they’re away from home.

The above news story is from a dispassionate, impersonal, objective view of a reporter. If that isn’t enough to persuade you that innocent law-abiding citizens have a right to immediate access to personal firearms in defense of life and liberty then perhaps the following account from the grandmother of those slain children will strike terror in your hearts – the terror of gun control laws.

Grandmother of Slain Children Protests Trigger Locks and Mandatory Gun Storage 52 Mary Carpenter April 20, 2001 North Carolina General Assembly To Whom It May Concern, To my understanding you are debating the passage of laws requiring trigger locks and mandatory storage of guns. I am a second generation resident of the State of California, a mother and a grieving grandmother. I wish to express to you how trigger locks and mandatory storage laws in the State of California affected my family. I hope my testimony may save someone in your state from sharing the pain 52

www.aardvarknews.com/carpenter.htm

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we must now endure for the remainder of our lives. No law you can pass will keep the irresponsible from shooting accidents or a felon from stealing a gun. I am enclosing a portion of a letter I wrote to my own state legislators concerning the constant progression of laws restricting our guns in my state. Depending on whether or not you truly care, you may or may not recognize my name. I am the paternal grandmother of the two children who were brutally murdered inside their rural Merced California home on August 23, 2000 by a stranger with a pitchfork. Instead of suing gun manufacturers, I am of the opinion it is our lawmakers who need to be sued. It was you who created the laws that kept my grandchildren from being able to dcefend themselves with any weapon greater than their bare hands. All of my son’s children had been trained in the use of firearms but were unable to get to their Dad’s weapon because of California State Law. You, who have CCW permits or armed bodyguards, or both expect me to face a society gone mad because of drug-altered brains and lax laws on the perpetrators of crime? You had no room in your prisons for the killer of my grandchildren though his wife had reported to the police in Mojave California in June of 1997 that he had forced her and their infant son into his car (kidnapping) while living in southern California? At that time she also reported how she had managed to escape from him in Mojave after he held a gun to her head (assault with a deadly weapon) threatening to kill her and their one-month-old child? Though more recently she had given to the Dos Palos California Police Dept. the tape from her message minder threatening to kill her present husband? Though he had assaulted a police officer while resisting arrest for drug charges? Though he had violated his parole by not appearing at his hearing and they had a warrant out for his arrest? Though they knew where he lived, and also his mother and grandmother, yet failed to pick him up? Will you then find room for my son in your prisons should his fourteen-year-old daughter have access to his gun while she is babysitting her siblings? There is a growing list, in my area alone, of people (mostly women) who might still be alive had they not been in a state where the use of a gun was prohibited. Juli Sund, Carole Sund, Selvina Pelosso, Joie Armstrong, Ashley and John William Carpenter to name a few. Lawmakers talk big about a woman’s right to choose yet don’t allow me the very basic right to choose to defend myself? If teachers were allowed to carry a concealed weapon to school you would see the school shootings disappear. The same is true with the citizen on the street. The reason is, these killers are cowards. You can tell by their choice of victims. They operate best where they know there are no guns. Look at your child tonight and imagine him or her with their eyes jabbed out, their skulls splintered, their brains pierced, and their spines broken with the heavy tines of a spading fork. In defending her sistes to the death with the only weapon you allowed her, Ashley had 138 puncture wounds. Twenty-nine of them were on the right side of her face, five on the back of her head, and thirty-seven to her chest and lower neck. (Obviously he was trying to behead her.) She was nine years old. While committing no crime greater than sleeping in his parents bed, in his own house, John William, 7-years-old, was stabbed 46 times, with most of them in the chest, neck, and head. Depending on the condition of your heart, you may or may not feel a small measure of the pain my family and I must endure for the remainder of our lives.

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Now, imagine all the gun laws you can dream up and honestly admit whether or not they would have stopped such a mad dog as this. This man was a total stranger to the family, and other than a trace of marijuana, was not on drugs at the time. However, by the testimony of his wife and girlfriend, he was a drug user who became frightening whenever he used them. All your imagined gun laws will do is insure someone’s children will die again. Take a drive downtown and see for yourself all the drug addled brains. You may declare gun free zones, but you cannot declare killer free zones. This tragedy has made me realize I am not even safe in my locked home, my barn, or my backyard. I dare you to request the autopsy reports of John William & Ashley Danielle Carpenter done on August 28, 2000 from Sheriff Tom Sawyer of the Merced County Sheriff’s Dept. Also ask him for the police interview with the killer’s wife and girlfriend telling about his drug use and devil worship. Ask Detective Parsley about his fetish for horror movies produced by a John Carpenter, (no relation to us), and one he especially liked, that we have learned depicts a killing done with a pitchfork. His last employment was as a telemarketer in Merced. If you have an honest bone in your body your will see this country is in desperate need of a change of heart not the gun laws that have been in place for over two hunderd years. All the gun laws you can imagine cannot change the heart of a killer and you know it. Until man’s heart is change we will be like sheep led to the slaughter without our weapons of defense. May you stand before God and man as my two precious grandchildren’s killer if you pass any more gun legislation that will make me a felon should I own a handgun or any other gun for that matter. Sincerely, Mary Carpenter

The Carpenter’s neighbor didn’t intervene to stop the massacre because, in part, of fear of California law, federal gun laws, and the antagonistic media hype against gun owners all serve to perpetuate the misperceptions of gun ownership as America’s new leper colonies. The nature of man is that all things conceived range from the threateningly criminal to the promisingly philanthropic. The trouble in today’s society and its government is much of what comes out of Congress, the state legislatures, the mainstream media, and the liberal pundits are threateningly criminal in their bias, if not treasonous, utterances against the Second Amendment, lawful gun ownership and its usage. Can anyone deny the logic that when a nation’s laws attain a state of affairs that its lawabiding citizens are being murdered because of their obedience to those laws? Is this the intent of gun control laws? To have gun owners and their families killed off? My God! That’s . . . GENOCIDE! The Jews for the Preservation of Firearms Ownership have published two books worth reading.53 These two books point out that the path our country is presently taking with gun control has only disaster in its future. These facts must not be ignored. In addition to these

53

Simkin, Jay, Aaron Zelman, and Alan M. Rice, Lethal Laws: “Gun Control” is the Key to Genocide: Documentary Proof: Enforcement of “Gun Control” Laws Clears the Way for Governments to Commit Genocide and Jay Simkin & Aaron Zelman, “Gun Control” Gateway to Tyranny: The Nazi Weapons Law, 18 March 1938: Original German Text and Translation, with an Analysis that Shows U.S. “Gun Control” Laws Have Nazi Roots. Jews for the Preservations of Firearms Ownership, Inc., Milwaukee, Wisconsin.

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references the United States Code already has provisions to reverse the trend of gun control in place. The United States legally recognizes genocide as unlawful. 18 U.S.C. § 1091. Genocide (a) Basic Offense. - Whoever, whether in time of peace or in time of war, in a circumstance described in subsection (d) and with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as such: (1) kills members of that group; (2) causes serious bodily injury to members of that group; (3) causes the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques; (4) subjects the group to conditions of life that are intended to cause the physical destruction of the group in whole or in part; (5) imposes measures intended to prevent births within the group; or (6) transfers by force children of the group to another group; or attempts to do so, shall be punished as provided in subsection (b).

(d) Required Circumstance for Offenses. - The circumstance referred to in subsections (a) and (c) is that (1) the offense is committed within the United States; or (2) the alleged offender is a national of the United States (as defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)). Gun owners are a group. Gun control laws are federal and state sponsored mechanisms for genocide. 18 U.S.C. § 1091.(a)(1): Gun control laws kill members of that group. 18 U.S.C. § 1091.(a)(2): Gun control laws cause bodily injury to members of that group. 18 U.S.C. § 1091.(a)(3): Gun control laws induce permanent state of fear for being defenseless. 18 U.S.C. § 1091.(a)(4): Gun control laws were the catalyst for Waco & Ruby Ridge. 18 U.S.C. § 1091.(a)(5): American Medical Association advocates gun control laws. 18 U.S.C. § 1091.(a)(6): Social Services take disparagingly microscope view of gun owners homes. Yet where it is proven that genocide cannot occur in a nation where its citizens are lawfully armed but only occurs in nations where full gun control exists, gun confiscation soon followed does genocide eventually occur. For the United States to recognize genocide as a crime against humanity and yet actively pursue the very path that leads to genocide, incrementally increasing the number of gun control laws is a schizoidism of law. A Conflict of Law. Are the citizens of this nation growing more dissatisfied with their federal and state governments over these injustices? I believe they are. Is the predominant opinion that the federal and state governments are aiding and abetting the criminal slaughter of gun owners and their families through its gun control laws? I say yes. Before the brave hearted in this country resort to

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armed insurrection I suggest “Social Norming the Second Amendment” before all Hell breaks loose.

Social Norming the Second Amendment is Common Sense If the National Rifle Association truly desires to shed its reputation as Schizophrenic54 then I suggest the NRA form a coalition with GOA, SAF, JPFO, KABA, other pro-Second Amendment groups, and public policy organizations in law and social psychology fields, and adopt the Social Norms Marketing method for the restoration of unlicensed national open-carry handgun, restoring a constitutional norm to its rightful place as a social norm. In other words, set off a media campaign blitz of public service announcements educating the public on the restoration of the old social norm of open-carry handgun. Send a delegation to The Fifth Annual National Conference on the Social Norms Model, July 10-12, 2002 in Philadelphia, Pennsylvania. The conference is organized by The Bacchus and Gamma Peer Education Network55 in conjunction with The National Social Norms Resource 56 Center and is generously co-sponsored this year by The Pennsylvania Liquor Control Board.57 58 Are we to be a nation of lies governed by liars? Or, will the truth set us free? Let us turn the tide on the verboseness of gun grabbers. Let us become ourselves verbose for the truth in armed personal security as a social norm. Let us embrace Social Norms Marketing to set the record straight and correct the misperceptions perpetuated by the liars at large. Excerpts From

The Evolution of Social Norms: A Perspective From the Legal Academy

59

by Robert C. Ellickson The Supply Side of the Market for Norms: Change Agents . . . Cass Sunstein has devised the notion of a “norm entrepreneur,” a phrase that many legal scholars have since embraced. Both actors and enforcers may supply new norms. Actors participate on the supply side when they adopt new patterns of behavior. . . . Enforcers serve as suppliers when they react in new ways to the behavior of actors. Those on the deman side of the market for norms then react to these stimuli. (Id. at 40. From section, The Supply Side of the Market for Norms: Change Agents.) I refer to an actor or enforcer who is relatively early in suppling a new norm as a change agent. According to the rational-actor perspective, a change agent offers

54

http://thenewamerican.com/tna/2000/06-05-2000/vo16no12_nra.htm

55

http://www.bacchusgamma.org

56

http://socialnorm.org

57

http://www.lcb.state.pa.us

58

http://socialnorm.org/home.html

59

Ellickson, Robert C., “The Evolution of Social Norms: A Perspective From the Legal Academy,” in Social Norms, eds. Michael Hechter and Karl-Dieter Opp. New York, Russel Sage Foundation, 2001, 35-75, citing material from pages 40-45.

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new norms because he anticipates that over time he will receive a flow of benefits that will outweigh (in present-value terms) the various costs he will incur while acting in that role. A change agent moves earlier than others because his expected net benefits from acting in that role are unusually large. This may be so either because his expected costs are lower or his expected benefits greater, or both. (Id. at 41.) Change agents tend to have attributes that make them relatively low-cost suppliers of new norms. In general, they posses superior technical intelligence, social intelligence, and leadership skills. These attributes reduce the opportunity costs they incur when they work for norm reform. . . . (Id.) Apart from costs and benefits, change agents tend to have relatively low discount rates and long time horizons. The stigma and other personal costs of attempting to change a norm generally are incurred early, whereas the esteem and tangible benefits generally are reaped late. The more futureoriented a person is, the more rational it is to pursue social reform.60 (Id. at 42.) As a merchant seaman, I have been corresponding with the U.S. Coast Guard to address the necessity and feasibility of arming merchant seamen while ashore under the jurisdiction of U.S. Law and not under the jurisdiction of Maritime Law, to augment port security plans for our nation’s seaports and harbors, thus fulfilling the “common defense” as stipulated in the United States Constitution. Because I was insistent on this new approach to national security and taking a dramatic literary approach to convey the fear citizens live with everyday of their lives of being murdered by the criminal element of society because the citizens do not have immediate possession and access to personal firearms to defend their lives and liberty the Coast Guard misperceived my communication as a direct personal threat against the Coast Guard officer I had been corresponding with. That caused this Coast Guard officer to exercise poor judgement by initiating a criminal investigation via the Navy Criminal Investigation Service (NCIS). I happened to be aboard a U.S. government contracted U.S. merchant vessel anchored off the coast of Lithuania. This Coast Guard’s action occurred on the eve of the vessel’s scheduled departure for a 10-day exercise at sea causing me to miss the ship and the company to foot the bill for a 12-day hotel stay for a 2-hour interview with the two special agents of the NCIS. My goal is not only to encourage the government to implement constitutional measures for the common defense by relying of the citizen-sailors of the nation but also to restore constitutional norms of the Second Amendment as social norms. As noted in Ellickson’s passage above, I incurred an unwarranted criminal investigation, which is Ellickson’s noted “stigma and other personal costs of attempting to change a norm generally are incurred early.” This is characterized in my case as a citizen exercising his First Amendment right to petition the government for redress of grievances, and the government not only ignores the petition but retaliates against the citizen for being a persistent nuisance. The government only pays attention when it is taken to court. The Coast Guard’s error of judgement opened the door for me to continue my effort to effect Second Amendment legal and social norms change by taking the case to the U.S. District Court for the District of Columbia for an application for Writ of Mandamus and to recover damages for defamation. These two cases are: Don Hamrick, U.S. Merchant Seaman v. President George W. Bush, et al. U.S. District Court for the District of Columbia, Civil Action No. 1435ESH, July 18, 2002 (Writ of Mandamus)

60

Emphasis mine.

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Don Hamrick, U.S. Merchant Seaman v. Admiral Collins, Commandant, U.S. Coast Guard, et al. U.S. District Court for the District of Columbia, Civil Action No. 1434ESH, July 18, 2002 (Damages) In an effort to clarify the dynamics of norm change, I distinguish between three subcategories of change agents: self-motivated leaders, norm entrepreneurs, and opinion leaders. Although all three types respond relatively early to a shift in costbenefit opportunities, they lead for different reasons. (Id. at 42.) Self-Motivated Leaders Self-motivated leaders move early to change a norm because, owing to their special endowments and talents, they anticipate receiving unusually high levels of net tangible benefit from challenging the existing norm.61 Indeed, these net tangible benefits are sufficiently large62 to motivate them to favor change even in the absence of potential esteem rewards. (Id.) Self-motivated leaders commonly spark changes in the network norms that facilitate communication and coordination. (Id.) When a new norm suddenly becomes manifestly advantageous for a group, many self-motivated individuals with unexceptional leadership abilities may supply it simultaneously.63 When this happens, historians will have difficulty attributing the new norm to particular change agents. For instance, dueling fast became extinct in the South once the Civil War had shattered the social networks of the southern aristocracy. Although anti-dueling societies had been active in the South before the war esteem rewards apparently were not needed to motivate the rejection of dueling after Appomattox. (Id. at 43-44.) The same change can be predicted with today’s drive-by shootings, multiple-victim public shootings in schools, fast food restaurants, home invasions in “safe-storage” gun control states and with many other anti-self defense laws imposed as the current social norms. Norm Entreprenuers . . . Norm entrepreneurs are specialists who campaign to change particular norms, whereas opinion leaders are generalists. (Id. at 44.) What special traits distinguish a successful norm entrepreneur? First, a norm entrepreneur tends to possess a relatively high level of technical knowledge relevant to the norms within his specialty. This knowledge enables the entrepreneur to respond early to a change in cost-benefit conditions. . . . Second, a norm entrepreneur is likely to be cognizant that there are appreciative experts (often, close associates in a social sub-group) who are likely immediately to esteem the norm entrepreneur for trying to change the social norm practiced at issue. In other words, a norm entrepreneur faces unusually favorable conditions on the demand side of the norms market. (Id.)

61

Anti-gun society

62

Reduction in the murder rates and other violent crime rates.

63

Build it! They will come! - quoting from a baseball movie

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Opinion Leaders Unlike the self-motivated leader and the norm entrepreneur, the opinion leader is not at the forefront of norm change but instead is located one position back from the front. An opinion leader evaluates the initiatives of these other change agents (the true catalysts) and then decides which of their causes to endorse. Opinion leaders therefore play a pivotal role in determining whether change agents succeed in triggering a cascade toward a new norm. (Id. at 45.) A successful opinion leader tends to have two exceptional characteristics. The first is an usually high level of social intelligence, which helps the opinion leader anticipate better than most which social innovations will end up attracting bandwagon support. An adept opinion leader, for example, may be aware that many people have been disguising their true opinions about the merits of current norms. (Id.) I might correctly assess that I have educated myself with years of leisure time self-study in the original intent of the United States Constitution. And with this new awareness in how things were meant to be and seeing how our federal government is taking us down the thornbush path to a totalitarian, militaristic police-state I began to voice my opinions in any available arena. For several years one of those arenas was the Internet discussion board of Arkansas Representative Asa Hutchinson. I can safely allege that Rep. Asa Hutchinson never paid attention to my “Gun Rights Restoration” messages. His example exemplifies the allegation that the “Government doesn’t listen to its citizens pleas for freedom as it continues to restrict and steal more of our freedoms in the name of security. I am serving as an opinion leader with this paper. The current self-motivated leaders and norm entreprenuers (Second Amendment scholars and gun rights organizations) are admirably but erroneously attempting to introduce reciprocal concealed-carry license for all fifty states. From a legislative focus in would be far easier to simply repeal gun laws that restrict the right to keep and bear arms, allowing both interstate and intrastate travel with unlicensed open-carry handgun for personal security. The Process of Norm Change Either sort of exogenus shock — a shift in internal cost-benefit conditions64 or an alteration of group membership65 — can spur a group to change its informal rules. However, it is not groups, as such, that act but, rather, individuals. As previously discussed, individuals possess different attributes that incline them to play specialized roles in the process of norm change. (Id. 51) I am one individual, “possessing different attributes that incline them to play a specialized role in the process of norm change.” As a merchant seaman I objected rather harshly to a gun control provision in Senator Hollings’ Senate bill, S.1214, The Port and Maritime Security Act of 2001. It provides in Section 7(c)(4) restrictions on carrying firearms. This, in addition to an unsettling speech by the Commandant of the U.S. Coast Guard at the Heritage Foundation66

64

The bombing of the World Trade Centers, the Pentagon, the downing of United Flight 93 in Pennsylvania. 65

Removal of current pro-Second Amendment leaders refusing to address the national open-carry without a license. 66

www.uscg.mil/Commandant/Speeches/Heritage/%20Foundation%HLS%20121701.htm

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prompted me to write letters to Senator Hollings, the Commandant and other government officials and pro-Second Amendment organizations about my concerns on the infringements of our right to keep and bear arms under the Second Amendment. On February 14, 2002, in advocating my pro-Second Amendment position, I submitted an application to the U.S. Coast Guard for a national open/concealed carry handgun endorsement on my merchant seaman’s I.D. card, supplying ample legal, social-psychology influence on social norms, religious and political arguments supporting the application. The application possessed a dual-purpose function: (1) to set a precedence for the defense of our nation’s seaports by the simple measure of arming U.S. merchant seaman with their Second Amendment rights to keep and bear arms when they are ashore, whether for liberty from a ship, or on vacation between ships, and (2) establishing the emergence of a new (or reestablishing an old) social norm of national open-carry handgun for all law-abiding citizens. I have not as yet learned of the outcome of this application. My comments on S. 1214 were: “This is another example of a thoughtless, knee-jerk reactionary and fallacious show of legislative force with no regard to the Second Amendment nor to the Bill of Rights. This effort will backfire, as all attempts at gun control always fail in reducing crime but in fact increases murder and other violent crimes, because the government doesn’t trust law-abiding citizens, as in the case of this Senate bill, law abiding (maritime) licensed and unlicensed merchant seamen to lawfully carry concealed weapons for their Constitutional right to armed personal security in a lawful manner when ashore for liberty, vacation, or in transit to and from their dispatched ships for employment. Nor is their any regard for the beneficial effect of added national security of our seaports that such a policy would provide. Section 2 of the bill, Congressional Findings, errs because Congress failed to find any Constitutional right of maritime personnel to assist in law enforcement activities under the once traditional service of the Posse Comitatus (cf. security of a free state in the Second Amendment). The Senate bill provides for the ever increasing roll of the federal and state governments in expanding the police powers of government while making no provisions, and sometimes criminalizing whole sections of society, as in the case of Section 7(c)(4), merchant seamen, their lawful right and duty to act as part of the Posse Comitatus as mentioned in pages 11-13 of this citizen paper. My advice to Congress: “Get us off the slippery slope of gun control. Otherwise, you will unwittingly, or maybe it is your intention to, transform a free republic into a strict dictatorial, totalitarian police-state with a soldier-like police force in every part of the Commerce Clause of the United States Constitution.” The Senate passed S. 1214 with its gun control provision. Again, another example of the employees (elected officials) telling the boss (citizens) how things are or will be. Restoring the right to openly carry a handgun for personal security will be an uphill struggle. But the long term reward of a safer society, in my personal opinion, is worth the effort. I challenge the academic community and the government to test my proposal. . . .According to the new norms scholars, in the paradigm case an upstart norm starts slowly, gains momentum, and culminates in a triumphant rush. Various authors refer to a tipping point being passed, an equilibrium changing not gradually but in punctuated fashion, or a cascade being triggered. (Id.)

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The literature on cascades suggests why people follow leaders. Works in this genre distinguish between two relevant phenomena: informational cascades and reputational cascades. According to the foundational article, “An informational cascade occurs when it is optimal for an individual, having observed the actions of those ahead of him, to follow the behavior of the preceding individual without regard to his own information.” One goes along with the crowd on the ground that the crowd is probably right. (Id.) The anti-gun, anti-self-defense crowd is in the wrong. Those of us who have been intimidated by this politically loud-mouthed crowd have, indeed, have gone along with crowd even though we know the crowd is wrong. We place our lives, our liberties, our security as a society and a nation in these misguided anti-Second Amendment crowds. I have elected to publicly oppose these crowds and redirect public opinion in order to establish Second Amendment norms in social norms.

The Proving Grounds! Since unlicensed “restricted to state boundaries” open-carry is the law in Virginia, Nevada, and Maine67 these states provide the prime locations (the urban, the suburban, and the rural) to initiate this new social norm, not as a trial basis, but for its permanency. Utilizing the Social Norms Marketing approach the initial phase would be to educate the public on the law of unlicensed opencarry handgun in public service announcements while laying down the foundation for expected behavioral norms. Once law-abiding citizens (individuals) feel comfortable with their knowledge of the law and what is expected of them in their behavior as they go about society with a sidearm they are more likely to muster up their courage and experimentally try this new behavior. When more citizens observe that law and order is still maintained, and blood is not running in the streets, that society is still polite and normal then the predicted cascade will occur empirically proving that an armed society is a polite society. . . . A person joins a reputational cascade, by contrast, to avoid the social disapproval that may be visited on those who are out of step (Kuran 1998; Kuran Sunstein 1999, 685-87). One goes along with the crowd to be with the crowd, even if one knows that the crowd is wrong. (Id. at 51-52.) This is true for the anti-gun crowd as they are enforcing the current anti-gun social norm. The purpose of initiating a Second Amendment social norm is to correct the wrong-headed antigun crowd and restore true personal security for society. In this new social norm of open-carry handgun those who are reluctant to adopt the new social norm will risk disapproval, informal sanctions, as one who advocates anti-social behavior and as being soft on crime. Politicians are extremely fearful of being tagged as soft on crime and will dutifully support open-carry handgun laws with its associated social norm as the being “tough on crime” thesis gains popularity. The speed of norm evolution is determined by the rates at which the members of the group acquire the technical and social knowledge necessary to appreciate that a new norm is more utilitarian than the old one. The entire process may proceed briskly. (Id. at 52)

67

Snyder, Jeffrey R., Fighting Back: Crime, Self, and the Right to Carry a Handgun. Cato Institute, Policy Analysis No. 284, October 22, 1997. Quoting from section, The “Ignoble Act” of Carrying Concealed Weapons. (Footnotes omitted)

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In Guillermina Jasso’s Rule Finding About Rule Making: Comparison Processes and The Making of Rules68 under the section, Studying the Making of Rules: First Principles,’ Basic Premises, he offers four candidates for basic forces governing human behavior:69

! ! ! !

to know the causes of things, leads to rule finding. to judge the goodness of things, leads to rule making. to be perfect, leads to both rule making and rule unmaking. to be free, leads to the unmaking of rules.

. . . All four candidate forces have been ascribed to humans as fundamental aspects of human nature. All four refer to properties ascribed to God. All four refer to things that play prominent parts in the discourse between humans and deities, both in what deities say they do for humans and in what humans pray for. All four appear not only in what humans pray for but also in what they renounce in the spirit of sacrifice. As both Émile Durkheim and Max Weber understood, the deepest aspects of human nature manifest themselves in religious phenomena, and thus the sociology of religion may play a prominent part in the methodology for unmasking the basic forces. Finally, note that it may someday be seen that the basic forces governing human nature are more than four perhaps, at the other extreme, only one, the others being manifestations of a single more basic force. (Id. at 350-51.) Finally, the multifactor view poses special empirical challenges, for the operation of two factors may lead to opposite effects, and hence isolating the two effects becomes the prime empirical objective. It may at first appear that one prediction is rejected, but in fact it may be that one of the two effects is stronger than the other. For example, suppose that mechanism A predicts that y is an increasing function of x. The empirical finding that y is an increasing function of x does not constitute, in a multifactor world, evidence that mechanism B is not operating; rather, the finding would be consistent with the operation of both mechanisms such that the effect of mechanism A is stronger than, or “dominates,” mechanism B. The converse would also be true. This is one of the reasons why the more fruitful a theory the easier it is to test. (Id. at 351.) Translated to the current proposal: Mechanism A, gun control laws effect on human nature, predicts that y, obedience to gun control laws by law-abiding citizens, is an increasing function of x, being murdered by the criminal element of society. Mechanism B, federal law protecting national right to open-carry handgun by law-abiding citizens, predicts that y, obedience to the new federal open-carry law, is a decreasing function of x, being murdered by the criminal element of society. Sounds plausible to me! My unscientific prediction is that a national open-carry handgun society will be proven to be a positive social norm, even amongst the verbose minority of naysayers.

68

Jasso, Guillermina, “Rule Finding About Rule Making: Comparison Processes and The Making of Rules,” in Social Norms, eds. Michael Hechter and Karl-Dieter Opp. New York, Russel Sage Foundation, 2001, 348-393, citing material from pages 350-351. 69

Id. at 351. Citing from section “Rule Making and the Basic Forces.”

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Mentioned at the start of this paper Aaron Zelman’s open letter to President Bush and his administration70 offers recommendations for homeland security that provides the basis for the rules of a new (or more aptly, an old) social norm. These recommendations are: Explicitly recognize and encourage Americans' unlimited right to self-defense and defense of their own communities.

! Encourage citizens to be aware of their rights and responsibilities, particularly their second-amendment rights.

! Immediately instruct the ATF, FBI, and any other federal enforcement agencies to cease prosecuting non-violent Americans for technical violations of firearms laws or regulations.

! Permit and encourage Americans to bear arms on federal lands and in federal buildings.

! Considering that courts have repeatedly declared that government law enforcement has no obligation to protect any individual, encourage states to enable citizens to defend themselves or their communities.

! Encourage those with military or police experience to share their expertise with fellow citizens in the form of firearm-training courses and other defense skills. Aaron Zellman’s recommendations will help provide the backing of government support and enforcement of Second Amendment norms as explained in the following: Excerpt from

The Enforcement of Norms: Group Cohesion and Meta-Norms

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by Christine Horne

Many scholars argue that group cohesion contributes to social order — that norms are more effective in tight-knit communities. One explanation for this correlation suggests that it can be attributed to higher rates of sanctioning in solidary groups. Criminoligists, for example, emphasize the role of community integration in controlling deviant behavior. They argue that when a community disintegrates, it “ceases to function effectively as a means of social control . . . . Resistance . . . to delinquent and criminal behavior is low, and such behavior is tolerated.” Studies show that in cohesive communities, people express greater willingness to impose sanctions against those who engage in deviant behavior. At least some research, then, suggests that one reason for higher levels of order in cohesive groups is that deviance is more likely to be punished in such groups.

70

Supra note 2.

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Horne, Christine, The Enforcement of Norms: Group Cohesion and Meta-Norms, Social Psychology Quarterly, Vol. 64, No. 3, September 2001. A Journal of the American Sociological Association.

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Conclusion If American society is “disintegrating,” without Second Amendment norms, even in the hiatus of post September 11, 2001’s unifying patriotism, the factional perpetual liberal-conservative struggle over gun control agendas is or will be the cause of the deteriorating cohesiveness of the American dream, to live free in a republic, but yet to insure one’s own safety with personal possession of firearms is surely approaching death’s door. The law-abiding citizen’s resistance to delinquent and criminal behavior from others in society, and from those in state and federal government service, both elected and bureaucratic types, having been and continues to be incessantly attacked by a trickling avalanche of gun control laws is not dissimilar to terminal cancer. Sometime after the September 11 terrorist attacks I watched a CNN female anchor as she interviewed someone about United Flight 93 crashing in a Pennsylvania field, questioning whether the male passengers storming the cockpit to regain control of the plane from the terrorists were actually vigilantees. There, in full view of millions of viewers, perpetuating their haunting bias, a blatant act of ignorance to citizens’ inalienable human rights to save there own lives and the lives of countless others not on that plane. This is just another instance of CNN reinforcing their reputation as being the “Communist News Network.” This pervasive anti-gun, anti-self-defense attitude has a killing effect on certain rights and innocent lives, i.e., the right to make a citizen’s arrest, the right to be part of a legal posse comitatus, the right to organize and participate in lawful unorganized militia activities as social events at state and county fairs, and gun shows, where society can learn and practice their Second and Ninth Amendment rights. Any direct defensive action, through informal sanctions, or overt self-defense on the part of the victim is often meet by the law, the courts, the media, and reinforced by society, with the ever oppressive “you cannot take the law into your own hands.” Yet, were does the law come from, but from the citizens. It comes from the citizens electing their state and federal senators and representatives to make the laws they want and need. It comes from citizen’s serving on jury duty to render judgement not only on the accused but also on the law itself. Where is the check and balance mechanism when judges deny jurors their right to determine the constitutionality of particular laws, and in its stead, tell the jurors what the law is? Jury nullification is a hotly contested issue. Where is the check and balance mechanism when all three branches of government coordinate in a cooperative manner to pass unconstitutional legislation? This is synonymous to employees telling the boss how things are to be or not to be, invoking their personal prejudice against the Second Amendment into the law, thus turning the U.S. Constitution upside down. These injustices serve in part for the disintegration of American society. Citizen’s have no incentive to enforcing Second Amendment social norms through informal sanctions, or even to exercise their right to make a citizen’s arrest for fear of retaliation from neighbors, the ACLU, the law, the media, and even the accused. The costs are simply just too high. Can we not yet establish the allegation of governmental tyranny that our right to petition the Government for a redress of grievances provides in the First Amendment? The law must be reformed in these debilitating areas, fortifying the citizen’s rights and duties of citizenship, minimizing or eliminating the risks of enforcing social norms. An open-carry handgun law, backed by government enforcement, will provide individual U.S. citizens a unifying national identity, spanning race, gender, and religion, which will reinvigorate a sense of community in both the local and national sense. We have been terrorized and oppressively governed preventing us from exercising our Second Amendment rights through lies and fear for too long. We have had our constitutional rights pick-pocketed from us for so long that we cannot even recognize the conditions of involuntary servitude to government and criminals that we are actually in. If we have been for decades, as some will say, perhaps with impenetrable legitimacy, in a state of national emergency shouldn’t We, the People be a part of our nation’s defense? Why should government claim a monopoly on self-defense with arms? The military is perpetually developing

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more advanced lethal weapons, even high-tech ammunition that can kill the enemy hidden behind buildings for its soldiers while the government continues restricting citizens’ rights from owning or using even the simplest of handguns. All checks and balances separating tyranny from freedom are dismantled. Tyranny has banished freedom from our Second Amendment. Let’s go back to the old social norm, the U.S. Constitutional norm of national open-carry handgun without that tyrannical license in accordance with the Second, Ninth, Tenth, and Thirteenth Amendments to our U.S. Constitution. Let us live free and be safe, as safe as we can make it for ourselves, and for each other because the government has failed us in this matter.

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Social Norming Resources 72 National Social Norms Resource Center Social Science Research Institute 148 N. 3 rd Street DeKalb, IL 60115 (815) 753-9745 www.socialnorm.org

Alcohol and Other Drug Education Project Hobart and William Smith Colleges Geneva, NY 14456 (315) 781-3000 www.hws.edu/ACA/depts/alcohol/index.html Monitoring the Future Institute for Social Research University of Michigan 426 Thompson Street Ann Arbor, MI 48104 (734) 764-8354 www.monitoringthefuture.org

Social Norms Marketing Research Project Education Developm ent Center, Inc. 55 Chapel Street Newton, MA 02458 (617) 969-1060 Fax (617) 928-1537 Email socialnorms@ edc.org www.edc.org/hec/socialnorms

Social Issues Marketing 73 Social Marketing Network www.hc-sc.gc.ca/hppb/socialmarketing

www.uiowa.edu/~commstud/resources

Social Marketing Resources www.social-marketing.com

Health Risk Communication Principles and Practices www.atsdr.cdc.gov/HEC/primer.html

Social Marketing Strategies for College Campus www.edc.org/hec/pubs/soc-marketing-strat.html

The CDCs Health Communication Research Page www.cdc.gov/od/oc/hcomm

Social Norms and Social Marketing (H ig her E ducation C en ter Development Center) www.edc.org/hec/socialnorms

The American Com munication Association’s Research/Studies Center www.uark.edu/~aca/acastudiescenter.html

Ed u c a tion

Journal of Health Communication www.aed.org/JHealthCom

The National Communication Association’s (NCA) Publication page www.natcom.org/pubs/default.htm

The Interactive Health Communication Science Panel (publications, research, resources, etc.) www.health.gov/scipich

John Hopkins Center for Com munication Programs (Behavior Change Communication) www.jhuccp.org/behavior/index.stm

UI’s Communication Dept’s Resource page (different communication sectors; has good health/social section)

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www.saddonline.com/links.htm

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www.psaresearch.com/bibsocial_websites.html

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Respectfully submitted.

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

CERTIFICATE OF SERVICE On February 7, 2007, I hereby certify that I delivered the above by Priority Mail to the U.S. Attorney H.E. Bud Cummins c/o Richard Pence, Civil Chief, in Little Rock, Arkansas.

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

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TELLING MILLER’S TALE: A REPLY TO DAVID YASSKY BRANNON P. DENNING* AND GLENN H. REYNOLDS** I INTRODUCTION 1

Only in recent years have those opposed to the individual rights interpretation of the Second Amendment, which one of us dubbed the “Standard Model,” come forth with theories attempting to harmonize text, history, and structure to show that the Amendment is the Constitution’s version of Oakland—that there is no “there” there. Earlier “theories” had tended to be merely makeweight arguments whose implications were never probed in depth by their proponents.2 A recent article by Professor David Yassky suggests that there is a segment of legal academia that dissents from the Standard Model and has started to generate alternatives to the Standard Model.3 In this brief essay, we critique that part of Yassky’s theory dismissing United States v. Miller4 as providing the basis for an individual rights interpretation of the Second Amendment. In his provocative response to the Standard Model, Yassky argues that, if the dramatic changes to our constitutional regime since the time of the Amendment’s drafting are taken into account, the Standard Model proves inadequate.5 One question that Yassky addresses is why the Supreme Court has continued to underenforce the Amendment, treating it as a “constitutional pariah, barred from associating with other ‘high caste’ civil liberties that [the Court] has labored to protect”6 in the years since the so-called Constitutional Revolution of 1937. Yassky provides this answer: The Supreme Court of the late 1930s and 1940s saw [civil liberties like freedom of speech] as both ameliorating dangers of the new administrative state, while also being rooted in key New Deal themes [such as Roosevelt’s famous “Four Freedoms”]; ac-

Copyright © 2002 by Brannon P. Denning and Glenn H. Reynolds This article is also available at http://www.law.duke.edu/journals/65LCPDenning. * Assistant Professor of Law, Southern Illinois University, Carbondale. ** Professor of Law, University of Tennessee, Knoxville. 1. An obvious exception to this general statement is the work of David Williams. See infra note 13. 2. See infra note 14 (discussing the work of Dennis Henigan). 3. David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 MICH. L. REV. 588 (2000). 4. 307 U.S. 174 (1939). 5. Yassky, supra note 3, at 518-610, 629-44. 6. Brannon P. Denning, The Second Amendment as an Underenforced Constitutional Norm, 21 HARV. J.L. & PUB. POL’Y 719, 791 (1998).

Electronic copy of this paper is available at: http://ssrn.com/abstract=960812

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LAW AND CONTEMPORARY PROBLEMS

[Vol. 65: No. 2

cordingly it revitalized the First Amendment. The court could not, however, envision 7 a similar role for the right to keep and bear arms.

This, Yassky argues, is key to understanding what he terms “the failure of the courts” to enforce the Amendment and accounts for its virtual repeal at all levels of the federal judiciary.8 Indicative of this failure is the United States Supreme Court’s only case this century squarely addressing the Second Amendment, United States v. Miller.9 Yassky, however, devotes only a few pages to Miller, a decision he defends only with the observation that the opinion “says very little.”10 What he does say is that “the Miller opinion . . . plainly rule[s] out” what he terms “the revisionists’ Libertarian Approach” to the Second Amendment.11 Yassky’s reading of Miller is mistaken. When the decision is read closely and the arguments available (and not available) to the Court are taken into account, the decision is best understood as leaving open the opportunity for courts to adopt the Standard Model reading of the Second Amendment. What Miller plainly does not do is deny that an individual’s right to keep and bear arms is protected by the Second Amendment—the holding ascribed to it by most federal courts since 1939.12 Yassky’s error on this subject requires correction. At the outset, we admit that we are focusing on a small part of Yassky’s argument, but we think that this focus on Miller is justifiable on several grounds. First, any subsequent Supreme Court interpretation of the Second Amendment will have to take Miller into account. It is Miller, after all, that lower courts have cited to maintain that the Second Amendment did not create an individual right to keep and bear arms. If Yassky is correct and the Standard Model or “Libertarian Approach” finds no support there, then that would likely end the

7. Yassky, supra note 3, at 663. 8. Id. at 665. 9. 307 U.S. 174 (1939). 10. Yassky, supra note 3, at 665 (“We are nearly at the end of this Article, and I have said very little about the Supreme Court’s opinion in Miller. The reason is that the opinion itself says very little.”). 11. Id. at 666. The revisionists to whom Yassky refers are those scholars who subscribe to the “Standard Model” and so think that the Second Amendment protects some individual right to keep and bear arms. See id. at 590-91 & nn.3-10 (describing the revisionist approach and identifying legal scholars who have adopted or defended it). Yassky defines the “Libertarian Approach” as follows: [I]t sees the right to keep and bear arms as akin to the First Amendment rights of free speech and conscience—a fundamental aspect of individual autonomy the infringement of which is per se tyrannical. . . . [A]t its core is the . . . interest in self-defense. The notion is that a government that forces its citizens to remain defenseless against bullies and predators is no better than a government that itself subjects its citizens to unreasonable searches and seizures. Id. at 615 (footnotes omitted). 12. See, e.g., Brannon P. Denning, Can the Simple Cite Be Trusted?: Lower Court Interpretations of United States v. Miller and the Second Amendment, 26 CUMB. L. REV. 961, 981-98 (1996) (citing and discussing examples of lower court decisions holding that the Second Amendment did not guarantee an th individual right). But see United States v. Emerson, 270 F.3d 203, 260 (5 Cir. 2001) (concluding that the Second Amendment does not guarantee an individual right). In the interest of full disclosure, one of us (Reynolds) signed an amicus brief supporting the appellee in the Emerson case; the other (Denning) wrote, pro bono, an amicus brief in support of the appellee making arguments about Miller similar to those made in this article. Professor Yassky also participated as amicus curiae in the Emerson case, authoring a brief supporting the United States.

Electronic copy of this paper is available at: http://ssrn.com/abstract=960812

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matter for courts. They would have no need to resort to Yassky’s elaborate arguments that dramatic shifts in military posture, begun in the nineteenth century and completed in the twentieth, from state militia to a federally controlled, professional military apparatus constitute a temporally extended “constitutional moment” that has drained the Second Amendment of enforceable content.13 On the other hand, if, as we argue, Miller does not close the door on the enforcement of the Second Amendment, then that, too, is important. While a Supreme Court endorsement of the Standard Model does not settle the scope of the right, it does move the debate beyond the point at which it is presently stalled: the question whether it guarantees any individual right at all.14 A judicial victory for the Standard Model would also be a rebuke to lower courts that have consistently over-read Miller.15 Recognizing an individual right would then, of necessity, move the debate to questions about the scope of the right: the legitimacy of the government’s interest in controlling individual possession of certain types of weapons, the reasonableness of particular gun control proposals, the availability of less restrictive alternatives, and the like. All are questions that form the warp and woof of ordinary constitutional law.16 That we are 13. Yassky, supra note 3, at 667. [T]he most important reason courts have read Miller the way they have is because they sense the importance of the changes in constitutional structure that I have tried to examine in this Article. . . . The Founders designed the Constitution in the belief that state militias were preferable to a federal army; after the Civil War, this belief could no longer serve as a fundamental constitutional premise. . . . The purpose of the Second Amendment had been to fortify the Militia Clauses; now that these provisions were a dead letter, the Second Amendment was adrift. Id. Yassky’s theoretical construct, as he acknowledges, draws on Bruce Ackerman’s theory of constitutional change. See 1 BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1992); 2 BRUCE ACKERMAN, WE THE PEOPLE: TRANSFORMATIONS (1998). The consequences of these constitutional changes, especially the decline of the citizen-soldier’s role in a state militia, on judicial enforcement of the Second Amendment are reminiscent of David Williams’s arguments. See David C. Williams, Civic Republicanism and the Citizen Militia: The Terrifying Second Amendment, 101 YALE L.J. 551 (1991). 14. Yassky acknowledges the “collective rights” argument—the argument that the Second Amendment protects only the right of an unspecified, aggregate “people” to engage in armed defense of the state, or that the right merely guarantees states the right to maintain an armed militia—only to dismiss it as a “red herring,” though he does concede that some courts have incorrectly employed that argument to deny individuals standing to raise Second Amendment claims. See Yassky, supra note 3, at 613-14 & n. 106. That argument is hardly one of the Standard Modelers’ own making. If the collective rights argument is a straw man, it was one erected with loving care by those like Dennis Henigan (whom Yassky elsewhere cites approvingly) and certain federal courts, as a makeweight or way to forestall debate on more important questions, such as the scope of the Second Amendment right. See Dennis A. Henigan, Arms, Anarchy and the Second Amendment, 26 VAL. U. L. REV. 107, 119 (1991) (“The purpose of the [Second] Amendment was to affirm the people’s right to keep and bear arms as a state militia, against the possibility of the federal government’s hostility, or apathy, toward the militia.”); but see Glenn Harlan Reynolds & Don B. Kates, The Second Amendment and States’ Rights: A Thought Experiment, 36 WM. & MARY L. REV. 1737 (1995) (describing possible unintended consequences of adopting such an interpretation). 15. See infra notes 52–53; see also Denning, supra note 12, at 981-98 (discussing lower court cases interpreting the Second Amendment). 16. See Dan Polsby, Treating the Second Amendment Like Ordinary Constitutional Law, REASON, Mar. 1996, at 32, 33. For the legal profession, constitutional text, history, precedent and matters of expediency are all important, and no one provision of the Constitution is to be seized upon without due recognition of its context in the Constitution as a whole, and for the strands of doctrine that the

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still mired in questions of the Second Amendment’s applicability to individuals suggests how primitive our Second Amendment “jurisprudence” is. No one seriously makes arguments to the courts, for example, that the First Amendment protects a “collective right” to the free exchange of political ideas and was never intended to cover the myriad forms of individual expressive activity that find protection in the Supreme Court’s decisions.17 II THE SUPREME COURT’S HOLDING IN UNITED STATES V. MILLER United States v. Miller arose as a result of an appeal taken by the United States Government to the Supreme Court following the dismissal of an indictment against two Arkansas men accused of possessing a sawed-off shotgun in violation of the National Firearms Act of 1934.18 The U.S. District Court for the Western District of Arkansas had quashed the indictment, finding that the National Firearms Act “offend[ed] the inhibition of the Second Amendment to the Constitution.”19 The government appealed directly to the United States Supreme Court. The government was the only party that filed a brief with the Court and was the sole party appearing at oral argument. The Supreme Court reversed the District Court, but in doing so, it avoided any sweeping statements regarding the scope of the Second Amendment. It simply held that [i]n the absence of any evidence tending to show that possession or use of a [sawed-off shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use 20 could contribute to the common defense.

Implicit in the holding is that if the defendants had made such a showing, the Court might have struck down the provision in question. Moreover, there seemed no question that the defendants as individuals were competent to raise the Second Amendment as a defense. If a collective or states’ rights view were adopted, the Court could have reversed the District Court on the ground that the individual defendants—who were quite obviously not “states,” and who apparently were not members of any formal or informal “well regulated militia”—

Supreme Court has elaborated over the years to translate the words of the document into the actions of the government. . . . This is a game in which the Second Amendment has never really played. Id. 17. Or at least courts have not bought into them. Even “commercial speech,” which arguably has very little to do with facilitating civic discussions among citizens, now receives First Amendment protection that is virtually indistinguishable from that afforded purely “political” speech. E.g., Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 564-68 (2001) (concluding that state restrictions on tobacco advertising violate the First Amendment). 18. Miller, 307 U.S. at 174 (citing 48 Stat. 1236, § 6 (1934)). 19. United States v. Miller, 26 F. Supp. 1002, 1003 (W.D. Ark. 1939), rev’d, 307 U.S. 174 (1939). 20. Miller, 307 U.S. at 178.

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did not have standing to invoke the Second Amendment’s protections.21 That it did not question the defendants’ standing strongly suggests that the Court did not adopt a “states’ rights” or “collective rights” interpretation of the Second Amendment.22 While Justice McReynolds described the “obvious purpose” of the Second Amendment as assuring the continuing effectiveness of the militia,23 and wrote that the Amendment “must be interpreted and applied with that end in view,”24 he also noted that, at the time of the Framing, militias were made up of individuals—“all males physically capable of acting in concert for the common defense”25 who often supplied their own weapons.26 Militia members are, in Justice McReynolds’s words, “civilians primarily, soldiers on occasion.”27 More importantly, they are, as McReynolds recognized, individuals. Securing for individuals the right to keep and bear arms enabled them to serve as members of militias, thus providing the primary means of “assur[ing] the continuation and render[ing] possible the effectiveness of” militias.28 As Thomas Cooley noted, “[t]he alternative to a standing army is a ‘well-regulated militia’; but this cannot exist unless the people are trained to bearing arms.”29 III THE MILLER COURT AND THE GOVERNMENT’S ARGUMENT Further supporting the argument that the Miller Court implicitly adopted an individual rights interpretation of the Second Amendment is the fact that the Court rejected the collective rights argument made by the United States Government in its brief.30 The government claimed that “the very language of the Second Amendment discloses that this right has reference only to the keeping and bearing of arms by the people as members of the state militia or other similar military organiza21. E.g., Tenn. Elec. Power Co. v. Tenn. Valley Auth., 306 U.S. 118 (1939) (holding that an electric company could not challenge TVA because it lacked standing); Alabama Power Co. v. Ickes, 302 U.S. 464 (1938) (same). Yassky concedes that “Miller is . . . inconsistent with the strong version of the collective rights approach which turns the Second Amendment into a standing requirement. . . .” Yassky, supra note 3, at 667 n.328. 22. The Court’s rejection of a “states’ rights” view of the Second Amendment is confirmed by the Court’s rejection of such arguments made by the federal government in its brief, described below. See infra Part III. 23. Miller, 307 U.S. at 178. 24. Id. 25. Id. at 179. 26. Id. 27. Id. at 178-79. 28. Id. at 178. 29. 1 THOMAS M. COOLEY, CONSTITUTIONAL LIMITATIONS 729 (8th ed. 1927); see also William Van Alstyne, The Second Amendment and the Personal Right to Arms, 43 DUKE L.J. 1236, 1244 (1994) (writing that the Second Amendment “expressly embraces” the right to keep and bear arms and “erects the very scaffolding of a free state upon that guarantee”; “[t]he militia to be well-regulated is a militia to be drawn from . . . people with a right to keep and bear arms . . . rather than from some other source (i.e., from people without rights to keep and bear arms)”). 30. Brief of the United States at 4-5, United States v. Miller, 307 U.S. 174 (1939) (No. 696).

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tion provided for by law.”31 The government further argued that the Second Amendment “gave sanction only to the arming of the people as a body to defend their rights against tyrannical and unprincipled rulers” and “did not permit the keeping of arms for purposes of private defense.”32 The reference to a “well regulated militia” that precedes the Second Amendment, it maintained, “indicates that the right to keep and bear arms is not one which may be utilized for private purposes but only one which exists where the arms are borne in the militia or some other military organization provided for by law and intended for the protection of the state.”33 The Court made no direct mention of these arguments in its opinion;34 instead, it partially adopted another of the government’s arguments. Assuming arguendo that the Second Amendment protects an individual right to keep and bear arms, the government argued, the only arms protected were those suitable to military purposes, as opposed to weapons—like sawed-off shotguns—that “constitute the arsenal of the ‘public enemy’ and the ‘gangster’” and that the National Firearms Act was intended to regulate.35 Even here the Court handed the government only half a loaf. The Miller Court said merely that it was presented with no evidence of, and could not take judicial notice of, a sawed-off shotgun’s military utility.36 It is true that “[t]he Court [in Miller] did not . . . attempt to define, or otherwise construe, the substantive right protected by the Second Amendment.”37 It is also true, however, that Miller could be read to have adopted the Standard Model: (1) by not reversing the lower court’s decision on the ground that the defendants lacked standing; and (2) by rejecting the government’s arguments that the Second Amendment protected only a collective right.38 IV PROFESSOR YASSKY’S ARGUMENTS FOR A NARROW READING OF MILLER In his article, Yassky states that “the Miller opinion does plainly rule out the revisionists’ Libertarian Approach.”39 Despite the certitude with which he 31. Id. 32. Id. at 12. The Government’s assertion that a purpose of the Second Amendment was to enable “the People” to rise up against a tyrannical federal government would no doubt surprise those like Dennis Henigan and Michael Bellesiles, who have excoriated such claims as, at best, irresponsible. E.g., Michael A. Bellesiles, Suicide Pact: New Readings of the Second Amendment, 16 CONST. COMMENT. 247 (1999); Henigan, supra note 11. 33. Brief of the United States at 15, Miller (No. 696). 34. It is possible that Justice McReynolds’ reference to the universal membership of Framing-era militias and the private ownership of arms by militia members was an indirect rebuttal of the Government’s arguments that the protections of the Second Amendment should only extend to the militia collectively. Miller, 307 U.S. at 179-82. 35. Brief of the United States at 18, 20, Miller (No. 696). 36. Miller, 307 U.S. at 178. 37. Printz v. United States, 521 U.S. 898, 938 n.1 (1997) (Thomas, J., concurring). 38. Miller, 307 U.S. at 178 (holding only that the Court was presented with no evidence of, and could not take judicial notice of, sawed-off shotgun’s military utility). 39. Yassky, supra note 3, at 666.

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makes this claim, the evidence he posits in support of it is meager, and his arguments belie an unfamiliarity with those put forth by the government in Miller. First, he claims that “revisionists read Miller as holding merely that certain weapons are beyond the reach of Second Amendment protection”40 based on certain language, such as the Court’s refusal to take judicial notice of a sawedoff shotgun’s military utility.41 This is a problem, he argues, because the National Firearms Act also regulated machine guns, which, he claims, “were standard-issue military equipment in 1939, as they are today.”42 Yassky explains that, “if we read Miller as resting on the premise that short-barreled shotguns are not ‘military equipment,’ the National Firearms Act’s regulation of machine guns is presumably unconstitutional.”43 Even allowing for the fact that “judges are supposed to limit themselves to the case at hand,” he is incredulous at the possibility that “the Court would have upheld one part of the statute by formulating a rule that immediately and obviously invalidates another part of the very same statute without even alluding to the tension.”44 His conclusion is flawed for several reasons. First, the government itself proffered the “military utility” argument.45 If the government failed to note the tension Yassky sees, then why should it bother the Court? Second, Yassky’s conclusion is based on the erroneous premise that Miller was indeed establishing a rule, or that, if it did, that that rule “immediately and obviously”46 invalidated anything. Recall that the Court said only that it could not take “judicial notice” of the fact that the shotgun was part of standard military equipment or somehow militarily useful.47 The Court’s statement was simply an acknowledgment of the fact that it had seen no conclusive evidence one way or the other.

40. Id. 41. Miller, 307 U.S. at 178. 42. Yassky, supra note 3, at 666. Actually, it is incorrect to say that machine guns were “standardissue” military equipment in 1939. The standard-issue infantry weapon in the United States Army at that time would have been the M-1 Garand semi-automatic rifle adopted for use by the United States Army in 1936, and by the United States Marine Corps in 1940. See Background Information on the United States Rifle Caliber .30 M1, available at http://www.wwa.com/~dvelleux/m1rifle.html (last visited Dec. 20, 2001). The M1A1 Thompson submachine gun was not ordered by the U.S. Army in large numbers until 1941. See http://www.rt66.com/~korteng/SmallArms/thompson.htm (last visited Dec. 20, 2001). 43. Yassky, supra note 3, at 666. 44. Id. Under Yassky’s logic, subsequent decisions of the Supreme Court, in which the Second Amendment is mentioned among other individual rights in the Bill of Rights, would suggest that the Court, too, subscribes to the Standard Model. If it did not, why would it continue to list the right to keep and bear arms with other rights all acknowledge to be “individual”? See David B. Kopel, The Supreme Court’s Thirty-five Other Second Amendment Cases: What the Supreme Court Has Said About the Second Amendment, 18 ST. LOUIS U. PUB. L. REV. 99 (1999). For Yassky’s response, see David Yassky, The Sound of Silence: The Supreme Court and the Second Amendment, 18 ST. LOUIS U. PUB. L. REV. 189 (1999). 45. See supra note 35 and accompanying text (describing the government’s argument that the Second Amendment protected only weapons with military utility, as opposed to those that “constitute[d] the arsenal of the ‘public enemy’ and the ‘gangster’”). Brief of the United States at 20, Miller (No. 696). 46. Yassky, supra note 3, at 666. 47. Miller, 307 U.S. at 178.

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And how could it have? The government was the only party who appeared before the Court at oral argument, and the only party who filed a brief in the case. Assuming that the Court did intend to set a threshold requirement of military utility for Second Amendment protection, as many state courts had under analogous state constitutional provisions,48 it does not follow that the government’s regulation of machine guns under the National Firearms Act would be prima facie unconstitutional. Instead, it might merely mean that, in modern Supreme Court parlance, government regulation of such weapons must survive strict scrutiny—the regulations must serve a compelling governmental interest and be narrowly tailored to serve that interest. Of course, since strict scrutiny has been described as “‘strict’ in theory but fatal in fact,”49 its application to legislation regulating private gun ownership could presage a more libertarian reading of the Second Amendment by courts—that is, an interpretation of the Amendment that is more hostile to some forms of gun control. We cannot know what the Court would have done had sufficient evidence been presented. The Court framed its decision only in terms of information that it did not have. But it did not hold, as the government urged,50 that the Second Amendment did not protect an individual right. At the very least, Miller suggests that the Court was open to such arguments and that weapons with military utility could find protection under the Second Amendment, with the burden shifting to the government to demonstrate why its regulation of such weapons is necessary and reasonable. Yassky further argues that a “revisionist reading of Miller has the perverse result that the deadlier a firearm is, the more likely it is to receive constitutional protection—because the military . . . prefers weapons that are as efficient and effective at killing as possible.”51 This argument echoes the favored reductio ad absurdum of courts and anti-Standard Model scholars alike: that an individual rights reading of the Second Amendment would compel judicial protection for individual possession of nuclear weapons.52 Yassky quotes from a sixty-year-old First Circuit opinion, Cases v. United States, which speculated that Miller, taken to its logical conclusion, would require protection for individual possession of “distinctly military arms, such as machine guns, trench mortars, anti-tank or anti-aircraft guns. . . .”53 The point, however, is a non sequitur. Recognizing the 48. E.g., Glenn H. Reynolds, The Right to Keep and Bear Arms Under the Tennessee Constitution: A Case Study in Civic Republican Thought, 61 TENN. L. REV. 647 (1994). 49. Gerald Gunther, The Supreme Court, 1971 Term—Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 HARV. L. REV. 1, 8 (1972); but see Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 (1995) (“we wish to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in fact’”) (citation omitted) (internal quotation marks omitted). 50. Brief of the United States at 4-5, Miller (No. 696). 51. Yassky, supra note 3, at 666. 52. The clearest judicial expression of this fear can be found in United States v. Warin, 530 F.2d 103 (6th Cir. 1976), where the court editorialized that any interpretation of the Second Amendment that placed significant restrictions on the power of Congress to regulate the private possession of weapons “is completely irrational in this time of nuclear weapons.” Warin, 530 F.2d at 106. 53. Yassky, supra note 3, at 666 (quoting Cases v. United States, 131 F.2d 916, 922 (1st Cir. 1942) (internal quotation marks omitted)).

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existence of an individual right under the Second Amendment and the articulation of the right’s scope are separate issues. It does not follow from the former that a court would be obliged to countenance any individual’s possession of any sort of weapon, any more than the right to free speech protects offers to bribe government officials.54 Finally, Yassky states that, if the crux of Miller is the “link between the regulated weapon and militia service,” then the Second Amendment cannot “truly [be] about a personal right to arm oneself,” because a sawed-off shotgun “is quite useful for self-defense—it is, in fact, a terrifying weapon—and under the Libertarian Approach, denying access to such a weapon would certainly infringe upon a Second Amendment interest.”55 First, to the extent that he suggests that those endorsing a Libertarian Approach—what we term the Standard Model—oppose any and all forms of gun control, Yassky’s argument is a red herring. That is not how he initially described the Libertarian Approach in his article56 and is not the position of Standard Modelers, whose views on the scope of permissible regulation of private ownership of firearms vary widely, but who generally accept a degree of regulation as legitimate.57 Moreover, it suggests

Incidently, it is Cases, decided in 1942, and not Miller, that is the real source of many of the sweeping propositions for which other federal courts have misleadingly cited Miller. See Denning, supra note 12 at 981-84, 989-98 (discussing Cases and its popularity with other lower courts); Denning, supra note 6, at 744-48 (same). In Cases, the First Circuit rejected a Second Amendment challenge and upheld the conviction of a defendant, a convicted felon, for possession of a firearm in violation of federal law. Cases, 131 F.2d at 917-18. In doing so, the First Circuit refused to follow Miller to the extent that the case could be read to restrict governmental regulation of any weapon for which “a reasonable relationship to the preservation or efficiency of a well-regulated militia” could be demonstrated. Id. at 922. Such a reading, coupled with the realities of modern warfare in which all weapons had potential military utility, the court argued, would mean that “the federal government would be empowered only to regulate the possession or use of [antique or obsolete] weapons. . . .” Id. This, the court concluded, “is in effect to hold that the limitation of the Second Amendment is absolute.” Id. Rather than leave such questions for resolution by the Supreme Court, the Cases court upheld the conviction, despite the fact that the weapon that the defendant was convicted of possessing had military utility, since there “was no evidence that the appellant was or ever had been a member of any military organization or that his use of the weapon under the circumstances disclosed was in preparation for a military career,” and assumed the defendant was “in possession of . . . the firearm and ammunition simply on a frolic of his own . . . without any thought or intention of contributing to the efficiency of the well-regulated militia. . . .” Id. at 923. Cases thus introduced a “state of mind” requirement that has proved popular with subsequent courts, which have found it a convenient method for disposing of Second Amendment claims. E.g., United States v. Wright, 117 F.3d 1265, 1272 (11th Cir. 1997); United States v. Rybar, 103 F.3d 273, 286 (3rd Cir. 1996); Love v. Pepersack, 47 F.3d 120, 124 (4th Cir. 1995); United States v. Hale, 978 F.2d 1016, 1019-20 (8th Cir. 1992). Even when claimants have attempted to present evidence of membership in an unorganized militia, or otherwise attempted to meet the Cases intent requirement, courts have dismissed such evidence out of hand. E.g., Rybar, 103 F.3d at 286. 54. E.g., Glenn Harlan Reynolds, A Critical Guide to the Second Amendment, 62 TENN. L. REV. 461, 478-80, 499-504 (1995) (describing limits on weapons permitted by the Second Amendment). 55. Yassky, supra note 3, at 666-67 (footnote omitted). 56. See supra note 11 and accompanying text. 57. Compare Stephen P. Halbrook, What the Framers Intended: A Linguistic Analysis of the Right to “Bear Arms,” 49 LAW & CONTEMP. PROBS. 151, 162 (1986) (concluding that “[i]t is inconceivable that [the Framers of the Second Amendment] would have tolerated the suggestion that a free person has no right to bear arms without the permission of a state authority, much less the federal government. . . .”) with Don B. Kates, Jr., The Second Amendment: A Dialogue, 49 LAW & CONTEMP. PROBS.

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that accepting the Standard Model requires elevating the personal right of selfdefense over all other competing societal claims. Early state court decisions interpreting state constitutional provisions rejected the idea that these views were mutually exclusive. These decisions allowed individuals to carry certain weapons for self-defense including those useful for military service, like revolvers, while banning certain weapons like derringers, stilettos, and Bowie Knives that could be concealed;58 they also, for the most part, upheld bans outlawing the public carrying of concealed weapons.59 In his article, Yassky creates a false dichotomy. The Second Amendment has to guarantee either a personal right of self-defense or a right bound up with obligations to perform, at least part time, military service for “collective” selfdefense. He ignores a third possibility that Don Kates has explored: that the Framer’s vision for the universal militia—a collection of citizen-soldiers coming to the defense of each other, or the state, against invasion or usurpation—was merely the widely acknowledged right—obligation, even—of personal self-defense, against criminals for instance, writ large.60 V CONCLUSION Despite a spirited effort to rehabilitate Miller’s treatment at the hands of the lower federal courts, Yassky falls short. His reading of Miller is not persuasive. Moreover, his account fails to take into consideration the arguments that were not adopted by the Court in rendering the Miller decision. From the prospective of gun control proponents, Miller is, at best, agnostic on the question of the Second Amendment’s guarantee of an individual right. When, however, the decision is read in context, recognizing that the government was the only side

142, 145-46 (1986) (“[I]t should be clear that reasonable gun controls are no more foreclosed by the second amendment than is reasonable regulation of speech by the first amendment.”). 58. E.g., Aymette v. State, 21 Tenn. 154, 158-59 (1842) (upholding statute prohibiting the wearing of concealed knives; stating that the arms protected by the Tennessee Constitution “are such as are usually employed in civilized warfare, and that constitute the ordinary military equipment. . . . They need not [secure] the use of those weapons that are usually employed in private broils, and which are efficient only in the hands of the robber and the assassin.”). But see Andrews v. State, 50 Tenn. 165, 187-88 (1871) (striking down statute prohibiting carrying of “pocket pistols,” whether concealed or not). It is worth noting that Miller specifically cited Aymette in support of its distinction between weapons with military utility and those without. Miller, 307 U.S. at 178. 59. See David B. Kopel, The Second Amendment in the Nineteenth Century, 1998 B.Y.U. L. REV. 1359, 1432-33 (“The majority of state courts in the nineteenth century upheld restrictions on the carrying of concealed weapons. Courts affirmed the rights of citizens to carry firearms openly for protection but held that concealed carry could be regulated, or even banned, by the legislature.”) (footnote omitted). 60. Don B. Kates, Jr., The Second Amendment and the Ideology of Self-Protection, 9 CONST. COMMENT. 87 passim (1992). Yassky fails to mention that the members of the Reconstruction Congress had no problem finding in the Second Amendment a right to keep and bear arms solely for selfdefense—one unconnected with any military service. E.g., AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 257-67 (1998) (discussing Second Amendment rights as viewed by the Framers of the Fourteenth Amendment); STEPHEN P. HALBROOK, FREEDMEN, THE FOURTEENTH AMENDMENT, AND THE RIGHT TO BEAR ARMS 1866-1876 (1998).

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arguing the case and that many of its main arguments were apparently rejected, or at least not adopted, by the Court, the decision begins to look more hospitable to a Standard Model reading. What is clear from reading Miller is that what Yassky perceives as a “failure of the courts” is not a failure to recognize a constitutional moment, but rather a failure at a more basic level: the failure to read Miller carefully and apply it as they would any other somewhat vague Supreme Court decision. Instead, lower court judges have invoked the Supreme Court’s recognized authority to “declare what the law is” to silence judicial dialogue; implicit in their opinions is the feeling that the Second Amendment ought not to exist. Yassky may be correct that judges had a hard time finding a place for the right after the New Deal,61 or that a fundamental alteration in national defense policy made it difficult to account for the reference to a “militia” being “necessary for the security of a free state,”62 but that is no warrant for a continued attempt to read the Second Amendment out of the Bill of Rights. Or even out of Miller.

61. Yassky, supra note 3, at 663. 62. Id. at 598-610, 629-44.