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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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, Preparedness

21 August 1863 – The cost of non-resistance

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

Today is August 21, 2013. 150 years ago, Major William “Bloody Bill” Anderson led his raiders into Lawrence, Kansas, and committed murder and mayhem on the civilian population although the killing was limited, for the most part, to males of military age—remembering that in 1863, young en as young as twelve were found in the military service of both the United States of America and the Confederate States of America.

About 10 am, William Clark Quantrill, Anderson’s “commander,” arrived in town, ate breakfast, gave orders to spare a hotel where he had once resided, and left. This was an irregular band or conglomeration of bands of raiders and command structure was sometimes confusing, but Bill Anderson had loose command.

What had happened in Lawrence that I find disturbing is that armed resistance was rare and sporadic. A Colonel Bullene and two of his sons were on leave. When raiders rode up to the Bullene residence, they were greeted with gunfire and decided to go elsewhere. There was a farmer named Levi Gates who grabbed his muzzle loader and went hunting and got two or three raiders before being cut down.

Three weeks before the raid the New England contingent among the city fathers had decided that the militia weapons would be “safer” in a central armory than in homes—anyone who thinks this bit of information did not get back to Quantrill and company needs a reality check.

It is not that the city did not know about the possibility of a raid. On 21 May 1856, the Sheriff of Douglas County, Samuel Jones, sacked the city to destroy free state and abolitionist newspapers and the Free State Hotel. However, the lessons of vigilance fade in time.

A personal note: My family were of the New England Puritan culture. When I went to a candlelight vigil some years back, there was a reading of names which included a number of Palmers and Griswolds—not ancestors but probably related.

In September of 1863, the Confederate Congress amended the Partisan Ranger Act to apply only to those partisan units operating also as regular cavalry. Neither Quantrill nor Anderson survived the war but a remnant of Anderson’s men in Western Missouri reconstituted themselves as the James-Younger gang.

On February 13, 1866, a group of about a dozen former members of Anderson’s outfit—including Frank James and Coleman Younger—robbed the Clay County Savings Association. This was the first daytime bank robbery during peacetime and netted $60,000 according to the robberies page of angelfire.com. For the next ten years, the James-Younger gang was unstoppable in Missouri.

On September 7, 1876, the gang ventured into “Yankee” territory again. This time it was Northfield, Minnesota. This time, however, there was armed resistance. Townspeople grabbed weapons and the gunstore handed out new Winchesters. Frank and Jesse James managed to escape through the Dakota territory and got back to Missouri—the armed response and ensuing manhunt resulted in death or incarceration of most of their confederates. The total take was $26.70 because they took the word of the acting cashier that there was a time lock on the safe.

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Citizenship

Michael Bloomberg — gun criminal?

(c) 2012 Earl L. Haehl Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

Mayor Michael Bloomberg presides over one of the largest municipal corporations in the United States and feels this gives him a say in the national scene. He has a gigantic police department and an ego to go with his position. He cannot, however, veto the laws of the United States or of the state of New York. Basically what he can do is use his platform to argue for whatever ideas he espouses and bully a compliant council. Other than that he has less executive power than Matt Mead—someone whose name relatively few people recognize because he is Governor of Wyoming, a state with a mere fraction of the population of NYC.

The term municipal corporation has an important meaning here. Municipal corporations are subdivisions of states with limited powers granted by statute or power. In fact, a portion of New York City is beyond the jurisdiction of the Mayor. The Mayor has also sent private detectives to conduct sting operations outside the state as well as the city of New York.

In USA Today Mr Bloomberg wrote:

Obama should direct the Justice Department to step up its prosecution of gun criminals who try to buy guns. In 2009, 71,000 people who had been convicted of gun crimes tried to buy guns by lying on their background checks. Yet the federal government prosecuted only 77 of those cases. That’s one-tenth of 1%. These are gun criminals trying to buy guns illegally — and the federal government is letting them walk.

The question I have is whether Mr Bloomberg would support the prosecution of his investigators who lied on 4473s in order to make straw purchases—a felony since 1968. And should not all participants in such an enterprise—including Michael Bloomberg—be prosecuted?

 

 

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Citizenship, Free Society

Piers Morgan – the Brit does not understand

(c) 2012 Earl L. Haehl Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

Piers Morgan, a CNN host whose previous experience was as a BBC presenter, has called for the government to seize “assault weapons” and made pious remarks about civilized countries. On September 12, 1814, Brigadier General William Stricker’s brigade of Maryland Militia stopped General Robert Ross’s “unbeatable” regular force on the road from North Point to Baltimore. That action, plus the failure of a naval bombardment to dislodge Fort McHenry with heavy guns and Congreve rockets effectively ended any necessity for Americans to take suggestions or demands from Brits.

Morgan, not real knowledgeable of American history, stated on national television that the second amendment was about muskets, not assault weapons. He has obviously not read my article on the Well-Regulated Militia https://loboviejo.com/2012/03/09/well-regulated…-of-definition/. Nor does he realize that the anti-federalists were addressing the nature of government rather than the technology of weaponry. The nature of government had not changed since Aristotle’s treaty nor has it changed since 1791.

Any argument is going to have to be settled on American terms by Americans. And draconian measures are not going to work any better than they did in 1775 when the governor of Massachusetts Bay sent regular troops to seize arms.  A statist foreign outlook is not appropriate or welcome in that debate.

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Citizenship, Free Society

Compromise – a slippery slope?

(c) 2012 Earl L. Haehl Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

“Remember,” my wife said, “that this nation is built on compromise.” To a large extent that is true—we would not have the Department of Defense were it not for compromises made after World War II. We would not have the USAPATRIOT Act, the Transportation Security Administration or the Department of Homeland Security without honorable legislators compromising their principles and their Constitution.

The Department of Defense was supposed to give Congress and the administration a handle on spending—it also creates a Secretary who can resolve disputes between the military (Army and Air Force departments) and naval (the department of the Navy was left intact) forces in time of war. The only time this really was a problem was when planning the route for the invasion of Japan in 1944 when Roosevelt had the problem of mediating between the Nimitz plan (through China) and the Macarthur plan (through the Philippines). The Nimitz plan made more strategic sense, but Macarthur threatened to resign and accept the Republican nomination to run against FDR. The President folded quickly. So after the War, George Catlett Marshall worked at developing a unified defense establishment—he intended to reduce duplication and make procurement more economical, and, by the way, eliminate the Marines.

The Marines are still here—to have a UDF you really need to start without strong traditions. Three of the five largest air forces in the world are in DOD. In 1960 there was a big push for a single belt buckle across services—see above The Marines are still here. I have no idea how many extraneous layers of bureaucracy exist in that five-sided building, but I do know we fought World War II with a lot fewer General Officers and you did not have the requirement of a flag in every nuclear armed B-52. So an audit of function as well as budget—conducted by former enlisted personnel rather than officers might be a guide. Compromises generally enlarge agencies.

What else happened was that the venue for compromise was moved to an Executive Branch “superdepartment” in which the arguments about budget are “fully explored, discussed and winnowed” before being presented to Congress in the executive budget proposal. Back before Hoover, Congress did not receive a unified budget proposal—departments competed for the attention of a Congress that took its responsibility for thrift seriously and would decide whether the Army needed ten new tanks more than the Navy needed a new cruiser. Now the Department of Defense has already vetted the request and anything less than full funding of two littorals, twenty tanks, and 150 drones is unacceptable. And congressional compromise is limit to whose district will benefit.

The Transportation Security Administration is an example of a party agenda forcing a “compromise.” The Democrats told Bush the airport security program was DOA unless it included a federal jobs program. The Administration folded. Ten years out there is scant evidence that the quality of personnel has improved—further, the prohibition on unionization has been lifted and TSA employees are now in the fold. Compromises lead to further compromises. See Understanding Gradualism and the Dialectic (https://loboviejo.com/2012/07/19/understanding-…-the-dialectic/).

Back in 1998, at the request of President Clinton, Gary Hart and Warren Rudman co-chaired a Commission on 21st Century Security. The report, issued in 2001, layed out a proposal for a homeland security program at the federal level. The constitutional authority for such an endeavor is found in Article X of Amendment which reads, “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.” Through a series of compromises agreed upon by the three branches of government and not seriously challenged by the states as a unified body the Commerce Clause has become sort of a general grant of powers to the Federal Government. The European model for internal security is extremely centralized—note that no western European nation encompasses six time zones (Maine to Hawaii).

The Bush administration wanted an Office of Homeland Security within the White House, a sign that the problem involved coordination between current agencies while Congressional Democrats wanted a Department. The difference is that an Office may be abolished when it is no longer necessary—a Department becomes a permanent fixture and seeks, on its own, to expand by developing its own constituency in the Congress and the press. A Department becomes a default budget item whereas an Office may be in the third or fourth tier of priority.

The result of compromise in order to achieve the Bush agenda on other matters was the Department of Homeland Security.

So where does this leave us. We are faced with a situation where there will be compromises required for the government to operate over the next four years. We need only look at Europe which is devolving to see the consequence of continued spending without the means to spend. We have a “running scared” Republican establishment thinking about the next election and what is needed to “make a comeback” and a “smugly confident” Democratic establishment that knows the way to win elections is to identify constituencies and “deliver the goods” so that the votes and the contributions come in. There is no political advantage to cutting spending—the key is to pretend to be “investing in America.” All compromises will be made in this context.

In the area of individual liberties, they have been compromised away in pursuit of the Security state. Either Ben Franklin or Richard Jackson wrote; “Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.” In other words there is something that should never be compromised—lest it never be regained.

As an example only, I am going to look at the issue of gun control because it is so much a matter of where the statists have worked through gradualism and compromise to get where they are currently.

Do you know that the National Firearms Act of 1934 had nothing to do with gun prohibition and was only passed as a revenue measure under the excise power of the United States? Who said that? The US Justice Department, in appealing the acquittal of Jack Miller for failing to pay a transfer fee on a five dollar shotgun that had its barrel shortened. Never mind that there was no case in controversy as Mr Miller could not be served—having disappeared into the anonymity of poverty that was most of the rural south in the 30s. Never mind the prohibition on double jeopardy. The government did not argue the fear of “gangster weapons” that dominated the congressional debates. This was a valid exercise of the excise power to raise revenue—and anyway a “sawed-off” shotgun is not a weapon of military utility. The Court made the finding of fact that such weapon had no military utility and therefore it was not a Second Amendment question.

Do you know that the 1968 gun control act was passed by compromises protecting the US firearms industry? Further, it limited prohibition of possession and transfer to individuals whose civil rights in general are infringed—it does not have a prohibition on the mentally ill but rather “(4) has been adjudicated as a mental defective or has been committed to any mental institution…” The major US manufacturers bought off.

Do you know that the McClure-Volkmer Firearms Owners Protection Act of 1986 was only passed because of a compromise prohibiting the manufacture and transfer of machine guns in the civilian market after 19 May 1986? The NRA went along with the compromise.

Recall that the anti-federalist movement, once the inevitability of ratification became apparent, made the Bill of Rights a condition precedent to participation in the Compact. There can be no compromise on that portion of the Constitution.

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Citizenship

Goodbye federalism

(c) 2012 Earl L. Haehl Permission is given to use this article in whole as long as credit is given. Book rights are reserved.

As I have been re-reading Madison’s notes as edited by Solberg I have picked up on some details that the 23 year old college senior (slow learner) missed. In fact, I would recommend a re-read of a lot of stuff as an adult—you’d be amazed at what holds up and what does not.

But I digress—as most of my friends and relative note…often. Reading Madison’s notes on the federal convention reveals a lot. Many of the debates are still unsettled from day one. What are we as a nation. Do we have a general, national government or a federal republic? I can argue it both ways as my old hero Harold Fatzer did on occasion when he was chosen (by rotation) to write a majority opinion against which he had voted—his majority was solid and well thought out but his dissent was masterful, logical and chiding of the majority. I can write a legal paper on the textual federalism of the Constitution. I fervently support a federal republic and believe the national government has done more to destroy than protect.

I am writing this about the fact and not the law. The Constitution of the United States is regarded as antiquated. Franklin D Roosevelt wrote to Samuel B. Hill, Chairman of the House Ways and Means Committee on July 6, 1935, stating, “I hope your committee will not permit doubts as to constitutionality, however reasonable, to block the suggested legislation.” I did not find a quote for his reference to the Constitution as a “quaint 18th century document,” but the sentiment fits with his attitude toward Congress and the Supreme Court. And I would posit that most in elective office agree.

What Hamilton and a number of people at the Convention preferred was a national government—some went as far as to propose the elimination of states. At that point even Madison was in favor of a stronger central government than he was after persuasion by Jefferson during ratification. The argument was that the states were a roadblock to a strong (read militarily powerful) nation. And of course the states were a hindrance to commerce—actually California does not recognize the commerce clause when it comes to firearms and the Ninth Circuit says fine.

If I end up interspersing current events with this it is that the same forces are at work today and this is about where we are. There is no provision in the Constitution for a national police force. The federal government has 150,000 “law enforcement” personnel which essentially constitute a standing army within our borders while the natural defense of society—the militia of the people—is further infringed. George Mason who drafted the Virginia Declaration of Rights wrote in Section 13: “That a well-regulated militia, or composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.” The Department of Homeland Security has become a power unto itself and has voided much of what is left of federalism. Does this bother the electorate—hint, the candidates are both believers in national government. As Clinton and Bush gave up their defense of their gubernatorial powers when they arrived at the juncture of New York and Pennsylvania Avenues, so too will Romney if elected.

The arguments ranged back and forth on the merits of democratic election versus a republic. And at the Convention, there was a compromise. We are told today by those who wish a more powerful and intrusive government that compromise is not a bad thing. The Senate was to be selected by the legislatures of the states as a bone to the republicans. The fear was that a complete democracy would endanger the rights of all. As the growth of democracy gained power in the 19th Century, the Progressives manipulated the Populists into assenting to their power grab and the 17th Amendment was adopted in 1913 leaving the Senate of the United States unaccountable to those states they represent.

The situation we are in now—a national, central and unaccountable government—is not a failure of democracy but rather the natural consequence of democracy. It arises out of a public school system which has, as its primary mission, the indoctrination of the population in the current political system. This sets them up to accept the demagoguery they became acquainted with in school. Unfortunately the progressives have control of education regardless of who holds the government through the NEA and AFT.

The document remains but the reality is different. The courts and Congress cannot control the Executive because they do not have the will. This is not a new phenomenon of the Clinton-Bush-Obama years. Andrew Jackson once said, “Mr Marshall has made his decision, now let him enforce it.”

More quotes:

“I took the Canal Zone and let Congress debate about me.” Theodore Roosevelt whose 1912 campaign made suggestions about the need to revise the Constitution to give the central government more power.

““The President is at liberty, both in law and conscience, to be as big a man as he can. His capacity will set the limit; and if Congress be overborne by him, it will be no fault of the makers of the Constitution, – it will be from no lack of constitutional powers on its part, but only because the President has the nation behind him, and the Congress has not.” Woodrow Wilson who believed there was a “transcendent constitution” that superseded the dead written document.

So we are here with a national rather than a federal government that Republicans and Democrats alike are comfortable with.

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