25 April 2010

Building a case

This post was originally presented at The Jacksonian Party.

The following is an opinion piece of The Jacksonian Party.

When the 13 Colonies sought to break with Great Britain they did so in a fashion that was quite unique: they utilized a bill of particulars in which Great Britain was not performing her sovereign tasks for her citizens in the Colonies or, even worse, was abusing powers of the State against the Colonies.  While the first portion of the Declaration of Independence  is well known as a succinct restatement of the rights of man as an individual and the duties man has to make government to suit his needs, the latter and more lengthy portion is a piece-by-piece description of what Great Britain was doing to her colonies that was out of order with what citizens expected from their government under the various Charters and Laws of Great Britain.

This portion of the Declaration doesn't sing to us as it is a plain and blunt statement of conditions and I will pick it up midway through the second paragraph:

But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.--Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.
He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies:
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Each of those items is a transgression between the existing State and its citizens in the Colonies, and the Founders in writing the Declaration were giving a bill of particulars against the State to say exactly what the transgressions were.  These were not only violations of British Law but, in a number of cases, a violation of the Law of Nations that underpins all Nation States and the usurpation of that by any State is a movement of citizens from subjects of the law to mere objects of the State.  Not only was the State acting without regards to the law, it was acting in a lawless manner outside any known form of civilized obedience the State must demonstrate towards its people to be legitimate to them.  When that happens you have Tyranny and in this case it is headed up by a Tyrant.

This is an explicit exposition of what the British government had done, or not done in many circumstances, to warrant being called a Tyrant and worthy of being divorced from the people so that an accountable government could be stood up.  By taking up this path of the lawful requirements of the State to its people, the Founders created a unique document and understanding of just how to go about calling a National government to task when it ignores its duties.

Today there are rumblings of this sort coming from the States within the United States, calling to task the Federal government for what it is or is not doing in some areas that are primal to the rights of the individual States and the people to remain free with liberty:

1)  Gun laws -  This has been an ongoing concern of those wishing to disarm the populace and centralize all power into the Federal government.  When the Federal government had a high amount of trust after WWII, this notion could gain some traction, but when our trust in government declines we see a direct effect in support of more restrictive gun laws.  This from Gallup Poll of 08 APR 2009 that tracks the post-WWII period on this question:

gallup graph gun control

Likewise Pew Research also examined this phenomena on 30 APR 2009, and saw the steady, long-term decline in support for gun control and restrictions on gun ownership from 1993 to present.  Amendment II to the Constitution supports the right of the people to keep and bear arms, and to form up voluntary militia to support themselves and their States.  This is considered one of the prime rights of the individual and is granted by the Law of Nature as a positive liberty (of self-defense) and by the Law of Nations as the positive liberty of protecting one's property.  It is a basic and fundamental human right and when infringed upon by any government it is an attempt to shift the power of the people of a Nation to be free from their hands and into the hands of their government.  Yet it is an inalienable right bestowed upon us by being creatures of Nature and as a positive bulwark against Tyranny for the protection of self and property.

Here I will take a paragraph from my Signposts article to describe this movement:

The expression of the fundamental and inalienable Rights of Man gains expression outside of direct politics but is having an effect.  It is along a pathway I talked about and have talked about in many areas: the ethical and responsible self-arming of citizens for the protection of themselves and society.  This has been written about in the San Diego Reader by Rosa Jurjevics, 15 JUL 2009 (H/t: Instapundit), which examines the Open Carry movement as seen in San Diego.  It is interesting that one of the last States in the Continental US to be the 'Wild West' still has those laws on the books, and folks at Calguns and California Open Carry are now putting their civil rights forward and protecting them in the harshest Progressive State in the Union.  While small this, too, is slowly permeating into the culture from its majority position after decades of authoritarian responses by government to civil firearms ownership.  Southern Maryland Shooters are helping to organize an Open Holster Day in Baltimore on 01 AUG 2009 to show that those who are responsible shooters are your friends and neighbors. The NRA is also running USA Carry for Open and Concealed Carry site to help bring social awareness to how important this civil right is in our communities across the Nation.

States vary on concealed carry laws from highly restrictive (NY, IL) to unrestricted (AK, AZ) to open carry freely (VA, NV).  The shift has been to move away from restrictions over the last decade and to a greater understanding that being armed is a civil right and that when practiced by citizens in a civil fashion it is a threat to no one.

Amendment II is incorporated into the States via Amendment XIV, so that States must, likewise, recognize the basic civil right of arms for the citizenry.  Thus when any State moves to the equivalent of complete exclusion of firearms to its citizens it is brought to task under not only Amendment II but Amendment XIV, as this as an explicitly protected right of the citizens of a State.  This includes the District of Columbia and the Heller decision is a first to strike down all-encompassing gun bans done at a local level.


2)  The Right of the State to Self-Defense via its Citizens.  The BATFE (Bureau of Alcohol, Tobacco, Firearms and Explosives) was given a role in the checking of handgun purchases for criminal background at the National level.  And yet that is a purely State concern, where States are the prime determiner of what civil rights are allowed to convicted felons after conviction and having time served.  That is the work of the National government to tell the States what they must do with regards to those who have committed crimes or are mentally incapacitated with regards to firearms ownership.  And yet we also recognize that if an ex-con is trapped in a situation where he or she is threatened and they can gain access to a firearm for self-defense, then no court in the land will convict them as their basic civil right that is inalienable to them, the right of defending oneself, is paramount to all people.  Thus a law made without exceptions allowed can be nullified by a jury per trial, and this can indicated a class of individuals who may have actually returned to the bosom of society, recanted their ways and are trustworthy with carrying arms in their own defense.  If a trial by jury can remove such a right, why cannot an appeal to a jury get it re-instated?  Blanket laws from the Federal government are made to be 'One Size Fits All' but also comes with the caveat with such clothing 'Fits None Well'.  States are better suited to determining the safety of their citizens than the Federal government is as the States have local concerns, society and societal conditions which may obviate a general rule set down by the Federal government for a matter which has traditionally rested with the States.

This generalized rule system has now gotten push-back from a number of States which are pushing forward their own gun laws for firearms made inside their State for sale to its Citizens in the State.  Unlike other commerce this one is part of the State's sovereignty guaranteed in the US Constitution:

Article I, Section 10, paragraph iii:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.


Article IV, Section 4:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

For the State to have the Sovereign Right to create an army or other forces accountable to it during times of war, invasion or in imminent Danger is one that is primal to the States.  The Federal government was not seen as a power structure to make all States give up their rights, but as a brokerage system between equals in federation with each other so that none were discriminated against by the whole of the Nation.  This is often referred to as a 'dormant right' of the States as it is not operational during any other time than those given.  Any law that undermines such rights is against what the States agreed to explicitly in the Constitution in the above areas.  The the right and accountability of bearing arms rests upon the individual and the State is to ensure that it is not infringed by the Federal government as that would jeopardize the State's implicit sovereignty of self-protection.

Montana started this with their new law challenging the Federal system.  Other States are joining or looking to join Montana in this: Tennessee, Utah, Wyoming, Idaho.

With this these States go right up against the ever expanding interpretation of the 'interstate commerce clause' of the US Contitution:

Article I, Section 8, paragraph iii:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

Foreign States are mentioned, along with the Indian Tribes that were seen as sovereign entities, and thus they define that the States, too, are seen as sovereign entities so that the clause is one that addresses the same class of commerce as done between sovereign States.  If commerce between the several States was meant to be treated differently than commerce between sovereign States, then it would have been treated differently in the US Constitution.  And yet the expansion of this clause has intruded on commerce within Indian tribes and within States, thus can intrusion into foreign Nations be far behind?

An interesting part of the Heller decision comes from one of the amicus briefs presented by the Dept. of Justice on pp. 28-29 and I will bold parts of interest:

3. Congress Has Authority To Regulate The Manufacture, Sale, And Flow Of Firearms In Commerce

Licensing requirements such as those contained in the GCA (see p. 3, supra) generally do not present the same Second Amendment concerns as a direct prohibition on the possession of firearms by individuals. The Amendment’s text and history suggest that the Framers were more concerned with securing the right of individuals to “keep and bear Arms” than with limiting the government’s ability to regulate the manufacture or sale of such arms. Government restrictions on the importation and interstate transportation of firearms, see p. 3, supra, are even further afield from the Framers’ concerns. In addition, as in the context of other individual rights, regulation of firearm-related commercial activities may present distinct constitutional considerations. See, e.g., New York v. Burger, 482 U.S. 691 (1987) (recognizing exception to Fourth Amendment warrant requirement for administrative searches of certain business premises); Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n, 447 U.S. 557 (1980) (holding that commercial speech is entitled to reduced protection under the First Amendment). Accordingly, there is no basis here for questioning the constitutionality of the GCA’s licensing provisions or federal limits on importation or transport of firearms. In any event, this case, which involves private possession, provides no opportunity for the Court to expound on the different principles that might govern efforts to regulate the commercial trade in firearms.

Note this is a carefully worded paragraph that utilizes the Amendment II right, and not referencing other rights that States hold.  Even with that the 'distinct constitutional considerations' given the history of the Framers unconcern with interstate commerce of firearms would also demonstrate a lack of concern with intrastate commerce as being outside of their concerns as it is never mentioned in the Constitution.  It is rare to see a DoJ brief that lends support to the States for commerce not only between them but within them which directly goes against such concepts as presented in the Raich decision.  While DoJ does uphold the Gun Control Act throughout, the concept that the States are sovereign and could very well do as they please with firearms undercuts that reasoning instead of bolstering it.  Not only the Heller decision and the opinions for it, but a few of the amicus briefs offer a venue for the States (separately) to move away from government control of intra-state firearms production and sales.


3)  Health care.  I have written on this topic numerous times.  Suffice it to say that for the first time in US history to be born inside the US requires a commercial transaction to get health care insurance or be fined.  To be born is to be fined.

Yet we are born, free.

Very strange how we have survived from 1776 to 2010 without that bit of purchasing forced on us as citizens.

There are 36 States looking to pass Health Care Freedom acts including Virginia, Idaho which have already done so.

The imposition of mandatory purchases or punishment of a product from birth is something far outside of any 'right' and is the decision of an authoritarian State upon citizens it no longer perceives as citizens or even subjects.


4) Immigration.  Arizona has passed as of 23 APR 2010 an immigration law giving its law enforcement personnel the ability to inquire into the citizenship status of individuals to enforce Federal immigration laws.  Each State has the expectation to equal application and protection under the law and that the Federal government will not shirk its duties.  This is not a call to 'immigration reform' but a call for the US government to do its damned job.

It is also an implicit statement of State sovereignty under the Constitution.  This starts as an Article IV, Section 4 call but has, implicit in it the abrogation of Federal duties in law enforcement for the Nation via armed criminal gangs that are moving into Arizona and other States.  This is the 'wake-up call' as the next step is an Article I, Section 10, para iii call which would be a 'no confidence' measure to the US government.  No State does these things lightly as they are part start to create a bill of particulars by the States against the Federal government.

It is building a case against the Federal government, piecemeal: a bit on individual rights, a bit on intrastate commerce, a bit on authoritarianism forcing commercial trade or penalizing citizens from birth, and a call to enforce the border.  If the government says that it can't figure out how many illegals there are in the country and can't do its job protecting the Nation as a whole, then what faith can the citizens have with it in something like health care?  Or firearms?

We expect National government to uphold the Nation as a whole, not in its parts, and when it can't do that job it does begin to break apart at the seams.  The more intrusive and less capable government becomes, the more it reaches for power on the basis of authority willingly vested in it.  When the willing no longer vest their trust in that common project, then no power can restore it, save for government to go back to what it must do, and shed these things that have lost it trust in all regards across the board.

For the people and the States are building a case against the US government.

A very civil case, yes, as we are a very civil people.

But a case nonetheless.

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