Free Society

Brady Campaign — Irrelevence

© 2014 Earl L. Haehl: Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

 

The Brady Campaign talks about requiring universal background checks. This will require online sales and gun show sales to be subject to background checks. This ignores the fact that all dealers are required, as condition of licensure, to conduct background checks. The question is whether the Campaign is grasping at straws or is just generally irrelevent.

First, of the 2.1 blocked sales, these were generally people who were not aware that they were prohibited persons. The fact that they were going through the process indicates that there may be a number of prohibitions that screen individuals who are otherwise law abiding citizens. Note that Mark Kelly, a “gun safety activist” was denied a sale on an AR because his actions indicated he was not, in fact the end recipient of the weapon—he could have been prosecuted for a false statement on his 4473.

Second, all federal law is governed by the Constitution of the United States. The authority of the Gun Control Act of 1968, as Amended, is the Commerce Clause. Dealers are licensed because they deal in “Commerce among the States.” While the preamble of the Act references “Public Safety” there is no (nul, zip, nada) grant of power to Congress in this area.

And, despite the people, such as my wife, who believe there are inherent powers, this was a deliberate omission because the “framers” assumed that public safety was one of those general governmental functions the States would perform. Further, the anti-federalists pushed through an amendment which stated “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, before the late Nineteenth Century, when Congress discovered the Commerce Clause as a means to enact criminal penalties, there was a general belief that the safety of the population was a function of the States which have independent sovereign powers as opposed to delegated powers. (No, the Fourteenth Amendment did not repeal the Tenth, and the Tenth Amendment does supersede both the Commerce Clause and the Supremacy Clause.)

Now to the nitty-gritty. My wife sold a shotgun to an individual in another state through Gunbroker.com. We shipped through a dealer to the buyer’s dealer. The transaction was handled through the normal process. I have purchased weapons from companies that deal on the internet—in those instances the weapon was sent to my dealer and I filled out the 4473 and my dealer ran the background check. In other words, the Brady Campaign has been disingenuous in this claim.

At gunshows, dealers use the 4473 process. But individuals will sometimes bring items they want to trade or sell. There is no jurisdiction to regulate these sales at the federal level. The Peoples Democratic Republic of California does regulate all transfers, but that is at a State level. I have had to go through background checks for most of my purchases—no, money under the table will not substitute and there are ATF agents at most shows. If someone is dealing commercially without a license, then the ATF needs to make a case and prosecute.

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Education, Free Society, Trivia, Uncategorized

Presidents’ Day – Things to think about

© 2014 Earl L. Haehl: Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

By the only clearly objective test our greatest president was William Howard Taft. (also Greatest Chief Justice, Greatest Secretary of War, Greatest Solicitor General….)

The only good politician is one who has been dead at least a generation.

The sure way to get a second term is to have a conflict going at the time of the election.A

Hamilton wanted a system of a Presidency for life or good behavior with a much looser standard for impeachment.

There was talk of impeaching George Washington over his pardon of persons involved in the Whiskey Insurrection of 1794. There was also talk of impeaching Jefferson for the Louisiana Purchase.

The election of 1840 was won by name recognition of William Henry Harrison over Martin Van Buren. Harrison was a war hero from the War of 1812 and earlier. Van Buren, father of the political machine was President of the United States.

Harrison gave the longest inaugural address, caught pneumonia and died 31 days later without having time to do substantial damage to the Republic.

Between 1837 and 1861, no President served more than a single term.

Only three Presidents have been elected directly from the Senate. They are Warren Harding, John F. Kennedy and Barack Obama.

Theodore Roosevelt was the first vice-president succeeding to the presidency to be elected in his own right.

Neither of the two world class intellectual Presidents went to high school. Jefferson learned what was necessary to running a Plantation at home and had some work at the College of William and Mary. Theodore Roosevelt had tutors and was published in scientific journals before entering Harvard.

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Citizenship, Education, Free Society, Media, Writing and diction

Piers Morgan Redux

© 2014 Earl L. Haehl: Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

We still hear rants from Piers Morgan on how America ought to be. A comparison seems appropriate, though in a sense it is rather embarrassing to compare him with Alistair Cooke.

 

Alistair Cooke came to the States on Commonwealth fund scholarship to study. Among other things he happened to be hired as a film critic and had a Letter from England program on NBC in the thirties and is noted for his coverage of the Abdication of Edward VIII. Reporting from America after WWII, he developed the Letter from America which lasted 58 years.

 

Cooke was a journalist and scholar. He studied the United States before speaking and he did not shoot his mouth off on subjects he did not understand. While in the States he was employed as a journalist for the Guardian, one of Britain’s more reputable papers and he wrote extensively. He oversaw the research and writing of Alistair Cooke’s America. And he understood what he was writing about. No ranting, just objective reporting.

 

On the other hand, we have Piers Morgan. Piers, a product of state schools and the Harlow College (roughly equivalent to a Juco or Vo-Tech in the US), has a career in tabloid newspapers and celebrity television. Prior to taking over for Larry King, he was fired as editor of The Mirror for publishing dubious photographs. He had been a “presenter” rather than a correspondent for BBC.

 

His role as a “host” is not that of a journalist. Larry King made no pretensions that the show was anything but entertainment. Unlike his predecessor, Morgan lines up guests who disagree with him for a session of hectoring and rants, bypassing rational discourse. He does not attempt to learn or to educate himself on America. His assumption is that celebrity trumps research and education.

 

In fact he is woefully ignorant, not only of American constitutional history but British as well. Our Declaration of Independence cites the 1689 Bill of Rights. Our second amendment guarantees all citizens the same right to keep and bear arms as the 1689 Bill grants Protestants. Unfortunately for our cousins across the pond there is a waiver of the Bill of Rights in time of war—ever notice that the UK has been in a state of war most of the time since. He looks at what are essentially “black swan” events which are not subject to real analysis since there origins appear to be random and comes to a definite solution that does not work—it has not worked in Britain, a far more violent society than the US, and it has not worked anywhere.

 

The British finally, about 1775, ordered the colonists in Massachusetts Bay to surrender their weaponry. On the night of 18 April 1775 they marched a column of 800 or so grenadiers and marines out of Boston to arrest two “traitors” at Lexington and seize munitions at Concord. In the morning they stood facing a small group of armed colonists on the green—while they were facing this group, John Hancock and Sam Adams slipped out of the Rev John Emerson’s residence and headed south unnoticed by the Redcoats. Shots were fired and the colonists retreated. At Concord they found the cache of munitions empty and a larger force (growing by the minute). As the British forces (I should say English because the term UK is a sop that does not recognize where the power is) started to retreat the colonists kept firing and picking up more Enfield muskets along the way. There was a war.

 

When, in the ratification process, the anti-federalist faction demanded a Bill of Rights that included the right of the people to keep and bear arms. The Assize of 1181 and the 1689 Bill of Rights were precedent to the US Bill of Rights. The fact that the UK Parliament has gutted Magna Carta and the Bill of Rights as the people have adopted a stance of European serfdom, is not something one gets in a technical trade school.

 

Piers asks about the AR-15. In the 19th Century case of Dred Scott v. Sanford, the court remarked that if blacks were given citizenship, they would have the right to “musket and cannon,” the military weaponry of the day. This is, of course, what lawyers refer to as dicta which has less legal standing than the arguments in the decision. Dicta is most of what we get out of Supreme Court cases since judges want to leave employment opportunities for attorneys and judges. Prior to Heller, most second amendment cases (with the exception of Cruikshank which was overturned by Congress) have more dicta than decision. US v Miller, for instance, was decided as an excise case with dicta that there was no regulatory power and that the weapon in question was of no military utility.

 

A “host” with a liberal arts background would probably realize that there are arguments from various perspectives on the question. And the purpose of the interview should be to broaden the discussion, not browbeat the interviewee with the pretense that authority comes from a BBC accent. And yet there may be hope—in an interview with Ann Coulter, Piers did admit that his visceral reaction to pro-second amendment guests may have been counter to his cause.

 

We shall see.

 

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Citizenship, Free Society, Writing and diction

Treason?

© 2014 Earl L. Haehl: Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

Politicians, prosecutors and pundits throw the term treason around like they understand it without going to the source. (Note the three sets of alliteration in the first eight words.) I went back to my scripture on the matter—The Constitution of the United States.

Article III, Section 3 reads as follows:

1:  Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.  No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

2:  The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

Since 1946, the United States have not been in a state of declared war. Therefore there is no “adhering to their Enemies, giving them Aid and Comfort.” Otherwise the current Secretary of State could be charged with treason for carrying messages from the North Vietnamese delegation to the committee in the House of Representatives led by Ron Dellums in 1973.

In the matter of current affairs, Edward Snowden could be charged with violation of official secrets legislation, but not treason. Note that the Rosenbergs received the death sentence under the Espionage Act of 1917, but could not be charged with treason because there was no state of war with the Soviet Union. Jonathan Pollard, a civilian analyst, was convicted in 1987 of selling secrets to Israel and sentenced to life imprisonment. He is the only person sentence to life for selling secrets to an ally.

Also, Maj Nidal Hassan, an Army psychiatrist, was charged with murder under the Uniform Code of Military Justice and convicted. In court statements, Major Nidal claimed that he was at war with the United States. Had treason been charged, he could have been convicted of treason, the elements being there. Instead, the Administration, the Attorney General and Secretary of Defense chose to characterise the attack as workplace violence.

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Citizenship, Economy, Free Society

We fought a war for these freedoms

© 2014 Earl L. Haehl: Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

In 1743, Sam Adams and James Otis, Jr, were admitted to the degree of Master of Arts with Honours by Harvard College. These two gentlemen were both allies and rivals over the next few years and the intellectual fathers of the American Revolution in Massachusetts Bay colony.

James Otis, Jr, was appointed advocate general of the vice admiralty court in Boston where he was an advocate enforcing the onerous Acts of Trade of 1751. As the residents of Massachusetts Bay sought extra-legal relief (Messrs John Hancock and Sam Adams being involved in such activity) Parliament came up with the use of “General Warrants” which allowed the Kings officers to search what they chose, when they chose and where they chose without specifics.

In 1761, partly because Gov Bernard appointed Thomas Hutchinson rather than James Otis, Sr, as Chief Justice, the younger Otis resigned his position as advocate general and took up the cause of the merchants of Massachusetts Bay. He did this pro bono or without fee.

His five hour argument in February of 1761, included the following:

A man’s house is his castle; and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege. Custom-house officers may enter our houses when they please; we are commanded to permit their entry. Their menial servants may enter, may break locks, bars, and everything in their way; and whether they break through malice or revenge, no man, no court may inquire.

Does this sound familiar? Does the justification of NSA surveillance by such “defenders of our freedom” as Rep Peter King (R-NY) ring familiar?

James Otis, Jr, had begun his argument with the following.

I was desired by one of the court to look into the (law) books, and consider the question now before them concerning Writs of Assistance. I have accordingly considered it, and now appear not only in obedience to your order, but likewise in behalf of the inhabitants of this town, who have presented another petition, and out of regard to the liberties of the subject. And I take this opportunity to declare that whether under a fee or not (for in such a cause as this I despise a fee) I will to my dying day oppose, with all the powers and faculties God has given me, all such instruments of slavery on the one hand and villainy on the other, as this Writ of Assistance is.

John Adams, Sam’s more conciliatory cousin who had doubts about independence characterized this as the first act of resistance. It was the first action in an intellectual war of small actions which culminated in the shots fired at Lexington Green on 19 April 1775.

The court, presided over by the corrupt Thomas Hutchinson, rejected the argument. But the speech was amplified and published over the years. In December of 1773 Hutchinson was to be the recipient of a shipment of tea that would be forfeit to his warehouse on 17 December of that year. James Otis, Jr’s classmate Sam organized a costume party (it took place on Beethoven’s third birthday) that result in the tea being tossed into the harbor so it could not be unloaded.

Through the assistance of the anti-federalist movement which in the newly free and independent Commonwealth of Massachusetts included Sam Adams and the sister of James Otis, Jr, Mercy Otis Warren, ten amendments restricting governmental powers were adopted and ratified. These included the Fourth Amendment which reads:

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.

After “9/11” supposedly changed “our democracy forever” the United States passed the USAPATRIOT Act which greatly expanded the powers of the US Department of Justice, the NSA (LBJ’s Secret Police) and government in general—we now have a Transportation Security Administration and Department of Homeland Security with seemingly unlimited powers. (I could posit that the events of 11 September 2001 did not substantially change the risk level for the United States but only the fear level.)

This legislation is not “the law of the land” in that it is passed, not pursuant to the powers granted in the body of the Constitution and contrary to the limits on federal power bluntly stated in the fourth article amending that Constitution. In other words, the argument is that an emergency grants extraordinary powers to ignore the basics of governing in a free society. In the 1688 Bill of Rights, the British Parliament objected to standing armies in time of peace—and since 1688 every monarch has assured military adventurism as a means to keeping standing armies. In 1798 John Adams wanted emergency powers because he had a gotten into a shooting conflict with France—his successor refused to enforce those powers. Since 1914 the United States has been in conflict with one or more foes—only twice, 1917 and 1941, have there been formal declarations of war although Bill Fulbright posited that the Gulf of Tonkin Resolution might be so considered.

The advantage to the powers that be of “emergencies” is that the electorate, with a dire threat from the outside, is willing to forgo freedoms in the belief that such willingness will diminish the threat. Ergo, since Muslim extremists were capable of flying a couple planes into buildings we are under threat—although we currently have no enemies with industrial capabilities, having reached a rapprochement with Red China and having caused the downfall of the Soviet Union through a massive spending war. However, we have a “Global War on Terror” as a result of G.W. Bush acting like John Adams on steroids and Barack Obama not being Thomas Jefferson in any sense.

Going back to the Fourth Amendment, James Otis, Jr, began a revolution of thought. As the kernel of the idea grew, it was added to and built up pressure. By April of 1775, the American Revolution was over—what lay ahead was a War for Independence. Yes, for these ideas and freedoms we went to war, not to give power over to a government that took crises as a rationale for going back to a time before it all happened and back to a government that made Leviathan look like a gila monster.

 

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Citizenship, Free Society, Trivia

Death of Parties

© 2013 Earl L. Haehl Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

I read of the death of the Republican Party. I have read this many times about both parties. Ross Perot was going to replace both. Political parties come and go and evolve.

A number of Federalists in New York affiliated themselves with the Tammany Hall wing of the Democratic-Republicans sponsoring Aaron Burr in 1804 as their gubernatorial candidate against against Morgan Lewis of the Clintonian (or anti-federalist) Wing. Burr’s program included his support of the secession of the Northern States (New York and New England) to form a confederation more favorable to Britain than to France. Federalists from Massachusetts actually supported Burr for Governor of New York because of his willingness to sign a bill of secession. There were those who feared the Louisiana Purchase would give Jefferson too much power. The Federalists had no candidate so two Democratic-Republican Candidates went head to head.

In steps Alexander Hamilton who wants absolutely nothing of secession because it would be bad for commerce. Hamilton disliked Jefferson and loathed George Clinton politically because they opposed the ratification of the Constitution. He also happened to despise Aaron Burr as a rival in New York Banking. An off-handed insult by Hamilton was perceived by Burr to have given the victory of Lewis and was the “proximate cause” of the oldest sports rivalry in the Ivy League. (Dueling: Princeton 1 – Columbia 0) While some credit the duel as the end of the Federalists, the party had become a northeastern parochial party after 1800.

The Democratic-Republicans, on the other hand were experiencing a similar breakdown. Morgan Lewis, while having some moderate support, was the last of the anti-federalist crowd. A supporter, DeWitt Clinton (George’s nephew who inspired a future governor to build canals) shifted to Tammany to run for Governor and even ran as a Federalist for President in 1812 to oppose Madison’s War.

TRIVIA WATCH

George Clinton was the longest serving governor in American history. He was the first vice-president elected on a party ticket rather than as runnerup for President. He served as vice-president for both Jefferson and Madison. His greatest accomplishment was in chairing the Ratification Convention in New York where New York’s entry into the compact was made contingent on the Bill of Rights. Some scholars believe he was the author of the Anti-federalist Papers attributed to Cato, but others say the authorship is still in doubt—fortunately dueling has been outlawed.

Speaking of dueling: Aaron Burr was the grandson of Jonathan Edwards and a well educated banker. He was involved in a plot to form an empire in Spanish Territory—That had to wait for Pres James Polk who was a cousin to Bishop Leonidas Polk who married a Granddaughter of Jonathan Edwards. The Burr family formed the Manhattan Company (not to be confused with the Manhattan Project) to transport water in Manhattan Island—it also had authority to issue notes and hold deposit. It remains in existence as JP Morgan Chase and owns Alexander Hamilton’s pistols.

DeWitt Clinton had a steam engine named for him. He is best know for the Erie Canal—in opposition campaign literature it was called, “Clinton’s big ditch.”

Modern Republicans are divided and ripping in several directions, but there will always be dissension. The great political philosopher of the 19th Century, Finley Peter Dunne, speaking in the persona of Mr Dooley, said, “if ye’re in a room where a man in one corner is shouting miscreant and in the other corner is one shouting thraitor, you know its only two loyal demmycrats trying to reunite the party.”

Remember: tags are invitations to research.

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Citizenship, Free Society

(Non-existent) Gun Show Loophole

(c) 2013 Earl L. Haehl Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

The dreaded “Gun Show Loophole” must be closed. One problem with that strategy—the GSL does not exist.

The 1934 National Firearms Act did not prohibit or regulate weapons. Read the government briefs in the Miller case. The Act was for revenue and falls under the excise power of Congress. Further, the sawed off shotgun in question was of no military utility and therefore the Second Amendment does not come into play.  If this does not comport to your perception of reality, take it up with FDR’s Solicitor General.

The 1968 Gun Control Act, while it mentions public safety, is grounded in the Commerce Power of Congress. As such dealers operating in the area of “Commerce with foreign Nations, and among the several States” are subject to regulation. This is the concept which has accompanied the progressive takeover—that is stretching the Commerce Clause to fit the occasion. In the New Deal this was the justification for the second National Recovery Act—it was (improperly) upheld by a chastised Supreme Court after the first act was (properly) struck down. Dealers, weapons and prohibited actions are defined, with the prohibitions limited at first to constitutionally disabled individuals. It has been modified upon occasion and some of the modifications are questionable though they have not been challenged.

Gun shows are not mentioned by the act. Individual transfers that do not involve crossing state lines are neither prohibited nor regulated. That means that I can sell one of my World War I bolt actions to a friend or trade for one of his/her single action cowboy pistols without paperwork. The same would apply for any legal weapon under the Act—this includes semi-automatic weapons of the Stoner and Kalashnikov platforms. At gun shows patrons often bring weapons to sell or trade. Often they “trade up” to weapons from dealers. And they sometimes will get a better price or better trade from another patron. Believe or not, people have been trading and exchanging weapons for longer than I have been alive and I have been so trading for about half a century. I have purchased weapons from both dealers and other patrons. The transactions between patrons of a gun show are no different than transactions between individuals outside the gun show venue.

Now there are individuals who are, in fact, unlicensed dealers who use the gun shows as distribution venues. They will not get tables but will have two or three “personal” items on them as well as letting the patrons know where to contact them. There are also, at major gun shows, ATF agents supposedly looking for violations—they are not as easy to spot as they were in the old days when there were standards for professional attire. The two groups know who each other are and dance the dance. The bureau needs to do the job and nail the unlawful dealers, many of whom are probably their informants.

The use of gun shows by these people is not the fault of the law. The 68 Act follows the Constitution in not regulating private sales. These actual dealers are violating the law and need to be prosecuted. That is pure and simple—to the extent of it.

A law that mandates universal checks is unwise because it is unenforceable and because it sets up a registry. A registry is the mechanism for confiscation the next time public opinion may get manipulated. I mention the UK, Australia and California as examples of where this has happened. In Canada, fortunately, the long gun registry was an expensive joke that was made unenforceable through non-cooperation—I would expect that in this country abetted by juries that nullify the law.

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