sunset from behind the wire

sunset from behind the wire

Thursday, February 21, 2013

Inalienable Rights?

Third in a series on America, Americans and the future of the Bill of Rights.
At the close of the Constitutional Convention in 1787, Dr. James McHenry, a Maryland delegate, followed Benjamin Franklin from Independence Hall. He recorded a question asked by a lady, directed at Dr. Franklin. 
The lady asked, "Well Doctor, what have we got? A republic or a monarchy?" 
"A republic," replied Dr. Franklin, "if you can keep it."
Benjamin Franklin
There was only a dim hope on the part of the Founding Fathers that America would be able to cling to the rule of law and to the Constitution and the subsequent Bill of Rights. Despite politics that resulted in vast lies to the dispossessed American Indians and repudiation of legal treaties, treatment of Chinese that bordered on barbaric, ignoring the Freedom of Religion by sending the Second US Cavalry to Utah to destroy the Mormons in the years preceding the Civil War/War of Northern Aggression/War of the Rebellion (1857-58), and improper treatment of black people -- We kept it together. So far.
The Mormons ended up saving the US Army from starvation during the harsh winter of 1857. The Chinese in America proved to be far more resilient than the European Americans gave them credit for being. American Indians found oil on waste land, opened casinos and though there still remain problems, they've worked through many of them. Barack Obama, a negro, was elected to his second term as President of the United States and racism is clearly not the issue that it once was.
Why then is the Bill of Rights under pressure today?

The Right Against Unreasonable Search and Seizure (Fourth Amendment)
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
James Madison
The body of law regarding this right is vast and began immediately after its enactment. But the Washington State Legislature introduced an 'assault weapon' ban that included an annual inspection of the homes of people who already own 'assault weapons' to insure that they're being stored correctly. It was authored by State Senator Adam Kline (D-Seattle). Mr. Kline is an attorney.

Washington State's Constitution guarantees the right to bear arms as does the US Constitution/Bill of Rights. The Supreme Court of the State of Washington has ruled semi-automoatic, magazine fed weapons are Constitutionally protected firearms. Yet the legislation is making its way through system with no outrage by the liberal media. If it should pass, I expect that the Supreme Court would strike it down as unconstitutional, but that it's even being discussed is disquieting.

It would seem that harassment of people who own firearms legally would be perfectly fine with Washington State Senator Adam Kline. PJ Media suggested that there might be a different reaction by the mainstream press if Arizona legislators were suggesting that the homes of known homosexuals be searched to determine whether or not they held young boys as sex slaves.

The Right to Keep and Bear Arms (Second Amendment)

James Madison relied on the philosophical and political writings of Aristotle, Cicero, John Locke, and others when he crafted the Bill of Rights. English Common Law had a long standing common law right to keep and bear arms. 

It is a specifically enumerated right specifically protected by the US Constitution and many state constitutions such that people have a personal right to own arms for individual use, and a collective right to bear arms in a militia.
Similar legal wording to that used by Madison can be found in the Pennsylvania Constitution of 1776 and the English Bill of Rights 1689 which states "Subjects which are Protestants may have Arms for their Defence". 
The types of arms protected by law was not limited. For example, if Madison had intended to do so, he could have enumerated which weapons were and were not included in his vision for America: muskets, musketoons, rifles, blunderbuss', swords, sabers, daggers, axes, clubs, pistols, shotguns, pikes, etc.   But he didn't. He as others before him recognized that a free people have a right to protect themselves. It's not about owning a firearm for hunting or for any other purpose. It's about personal DEFENSE. 

Americans were to be given a personal decision in regard how best 
to protect themselves and their families - and would be held 
accountable under law for their conduct.

"All men dream, but not equally. Those who dream by night in the dusty recesses of their minds, wake in the day to find that it was vanity: but the dreamers of the day are dangerous men, for they may act on their dreams with open eyes, to make them possible." - T. E. Lawrence

Many in power in America today, Communists, socialists, progressives, leftists (pick your term) all view those who framed the Constitution and the Bill of Rights to be somehow  -  wrong, about everything. Such is the nature of of those philosophies which have failed to deliver over and over again, racking up hundreds of millions of dead in their failed efforts.  Contrary to their assertions, those visionary men who crafted American Law dreamed big when they decided to mold a Republic that would last. And it will last - we will last - so long as it is a Republic.

A Question of Reliability

Second in a series on America and Americans and the future of the Bill of Rights.

The first American Revolution was fought over the issue of taxation and representation along with a bellicose Britain who felt that anyone who stepped out of line was guilty of sedition and should be tried and shortly thereafter, hung (or shot). The Crown decided on the method.

The second American Revolution was fought over the issue of State's Rights. Though the war didn't involve slavery at its outset, President Lincoln made it an issue to keep Great Britain from supporting the Confederacy (the portion of the nation in rebellion). Freeing the slaves was a huge negative in the North and resulted in a protracted period of civil insurrection in New York and elsewhere. Factory workers felt that they would be replaced by less expensive negro labor if those slaves were made free.

If there is to be a third American Revolution, it will likely be fought over the the Bill of Rights, and various interpretations thereof. President Obama and the "progressive voices" in America would eliminate the Second Amendment through the 'death of a thousand cuts' rather than in a straight-up vote to repeal, which would not likely pass. And because of this, many Americans are left with the matter of conscience regarding keeping and bearing firearms. Are laws that clearly violate the US Constitution legal or do they represent tyranny? 

A third war scenario, should it ever come to pass, is not likely to follow any script that has been war gamed at NORTHCOM or at the Command and General Staff College. It's more likely begin slowly than quickly as individuals acting independently of each other push back against the Federal Government's efforts to repeal the Second Amendment to the Constitution in all but name. The states will never rise in rebellion, but a low grade civil resistance is possible. The negative impact on the economy would be significant. The government would move to crush this sort of public insurrection - violently. Imprisonment and the deaths of both patriots and government agents will follow. Martyrs are dangerous historically. Ham handed gaffs by BATFE in the past are very likely to be replayed by the Obama Administration and the intensity of feelings on the matter would likely increase in direct proportion to the efforts that the administration employs to stamp it out.
States such as New York, Connecticut and California pass draconian firearms legislation in the hopes of creating a utopian paradise, but the law is only effective to the extent that people obey the law and law enforcement is willing to execute the law.
Are the Police Reliable?
(Quis custodiet ipsos custodes?)

That's the first question a would-be despot should ask himself. Across America the police themselves often are those people who President Obama characterized as, "bitterly clinging to their God and guns". If you eliminate the county and local police, you're left with State Police, who are more likely to side with the county and local police than they are with FEDGOV. 

Is Federal law enforcement reliable enough to seize firearms from people whose only crime is owning a firearm of a type not on the list (maybe side-by-side shotguns are ok according to Vice President Biden)? There are groupings of individuals who enjoy the rush of power who I put in the same camp as Hitler's brown shirts or Serbian rape gangs who will do whatever for whoever if they're allowed to play. But they are in the minority. As a result of human conscience, Federal law enforcement is not all that reliable.

President Lincoln suspended habeus corpus during the Second Revolution (War of Northern Aggression/Civil War/War of the Rebellion) and President Obama could suspend the Posse Comitatus Act (18 U.S.C. § 1385). Contrary to popular belief, the act does not prohibit the US Military from enforcing federal laws on US soil.

Under the provisions of the Insurrection Act, President Obama could set the US Armed Forces on the American People legally. Technically, it would require Congress to approve such actions, but when has President Obama been bothered by technicalities?

Early in President Obama's first term in office, Secretary of Homeland Security Janet Napolitano, put out a nationwide alert to police departments to watch returning veterans closely because they might have the tendency to react poorly to President Obama's collectivist agenda.

How reliable is the US Military? Meaning, will they follow executive orders to kill and imprison Americans who have committed no crime beyond owning firearms in keeping with the Bill of Rights? The US military swears an oath to support and defend the Constitution against all enemies foreign and domestic. So do police officers.
(Wikipedia) All officers of the seven Uniformed services of the United States swear or affirm an oath of office upon commissioning. It differs slightly from that of the oath of enlistment that enlisted members recite when they enter the service. It is required by statute, the oath being prescribed by Section 3331, Title 5, United States Code. It is traditional for officers to recite the oath upon promotion but as long as the officer's service is continuous this is not actually required. One notable difference between the officer and enlisted oaths is that the oath taken by officers does not include any provision to obey orders; while enlisted personnel are bound by the Uniform Code of Military Justice to obey lawful orders, officers in the service of the United States are bound by this oath to disobey any order that violates the Constitution of the United States.
Unless 50 States agree to repeal the Second Amendment, it remains the law of the land and puts military officers in a tight place. 
Historical Note: In Germany on August 20, 1934, the cabinet decreed the "Law On The Allegiance of Civil Servants and Soldiers of the Armed Forces". (Gesetz über die Vereidigung der Beamten und der Soldaten der Wehrmacht), which superseded the original oaths. Prior to the decree, both members of the armed forces and civil servants had sworn loyalty to "the People and the Fatherland" (Volk und Vaterland); civil servants had additionally sworn to uphold the constitution and laws of Germany. 
The new law decreed that instead, both members of the armed forces and civil servants would swear loyalty to Adolf Hitler.
Tyranny and despotism require that people reject the rule of law and resort to the rule by man. In Germany, it was Hitler. In Soviet Russia, it was to the Communist Party and its leadership. In North Korea, it is to the current 'Dear Leader'.

Under present circumstances the US Military is NOT reliable if they are asked to violate the provisions of the US Constitution. Changes would have to be instituted to the oath of office and they would need to swear their loyalty to a person.

Part 3 (Continued)