“Take It Down”??


The Battle Flag of the Army of Northern Virginia

The Battle Flag of the Army of Northern Virginia

I have been giving a lot of thought to the issues raised by the flying of the so-called “Confederate Flag” — which, of course, ISN’T the “Confederate Flag” at all — see my previous blog post on that subject:

https://freelegaladvice.wordpress.com/2015/06/19/that-is-not-the-confederate-flag-flying-in-south-carolina/

The shooting at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, and the flying of the Battle Flag of the Army of Northern Virginia on the grounds of the South Carolina state house, have motivated a wide-ranging re-evaluation of how the United States deals with the issue of racial hatred and discrimination.

Rebel Battle Flag on grounds of South Carolina State HousejpgThere are now calls for the removal of the Rebel Battle Flag from the state house grounds in Columbia, South Carolina, and the South Carolina legislature has agreed to debate the issue.

The Citadel Confederate Naval JackThe governing board of The Citadel, a military academy in Charleston, voted to remove the Confederate Naval Jack from the school’s chapel. One of the Emanuel shooting victims was a graduate of The Citadel.

Virginia’s governor has ordered the removal of “the Confederate Flag” from all of his state’s license plates (thereby joining the chorus of people incorrectly identifying the battle flag, which appears as an optional design on some Virginia license plates). Politicians in several other states, including Maryland, North Carolina and Tennessee have vowed to do the same with their states’ license plates.

Mississippi State FlagMississippi’s Republican speaker of the house issued a statement calling for the removal of the Confederate battle cross from the Mississippi state flag (at least he knows what the symbol actually is).

Alabama Confederate MemorialAlabama Governor Robert Bentley ordered the removal of the Confederate battle flag (he got it right, too) and three other flags from the grounds of the state Capitol in Montgomery, where they stood in front of a memorial honoring Civil War soldiers. The other three flags? The three versions of the actual Confederate flag.

Jefferson Davis Statue Capitol Rotunda Frankfurt KentuckyAnd it’s not just the flags and symbols of the Confederacy that are drawing fire. The president of the Kentucky state senate said in an interview that a statue of Jefferson Davis, President of the Confederacy, should be removed from the Capitol rotunda in Frankfurt, Kentucky.

Nathan Bedford Forrest Bust in Tennessee State HouseIn Tennessee, politicians of both parties have also said that a bust of Confederate General Nathan Bedford Forrest, who was an early leader of the Ku Klux Klan, should be moved out of the state house.

Lake Calhoun MinnesotaIn Minnesota, not exactly a hotbed of confederate fervor, activists have demanded that a lake named after John C. Calhoun be renamed because Calhoun, though both a US Senator and American Vice President, was from South Carolina and a supporter of slavery.

South Carolina State Senator Paul ThurmondEven South Carolina State Senator Paul Thurmond, son of US Senator Strom Thurmond, who ran for president in 1948 as a segregationist, announced that he would vote to remove the battle flag from the state house grounds, saying that he is “not proud of this heritage”.

Walmart Sears eBay & Amazon LogosPrivate companies are also weighing in … Walmart, Sears, eBay and Amazon have all announced that they will no longer sell confederate themed items.

The Baltimore Sun LogoIn Maryland this past Monday, the Baltimore Sun opined in an editorial, “For a state to endorse a symbol of the defenders of slavery by putting the Confederate flag on representations of government speech is unconscionable.”

It therefore appears that supporters of slavery — and the symbols of that support — are under unrelenting pressure which is going to result in the permanent removal of both from public display. I personally support the banishment from public places of all versions of the Confederate flags (albeit, as mentioned in my earlier blog post, I also support the right of private persons to display Confederate symbols on their private property).

Shortly after being transferred to the Sixth Naval District in Charleston in January 1969, I encountered what I thought at best an odd circumstance — the Charleston Naval Base, bowing to political pressure from the state of South Carolina, was to be closed for a holiday on the birthday of Jefferson Davis, but all personnel were to work on Abraham Lincoln’s birthday, then a national holiday. I wrote a letter to the editor of the Charleston News & Courier, suggesting that it was time for South Carolina to rejoin the union. I signed it “James T. Reilly, LTJG, US Navy”, which earned me a visit with my boss, the Sixth Naval District commander (a rear admiral), who allowed as how I had the right to express my opinion, but asked me to please sign any future letters with my name only, omitting my military rank.

However, and this is the point of this blog post, if we are going to vanquish memorials to rebellious supporters of slavery and their symbols of oppression, the measures described above are manifestly inadequate. To do this job right, we will also have to vanquish from the public forum memorials to ALL rebellious supporters of slavery and slave owners, starting with …

George Washington… George Washington (the “Father of our Country”) …

Thomas Jefferson… Thomas Jefferson (the primary author of the Declaration of Independence) …

James Madison… James Madison (the primary author of the Constitution) …

Patrick Henry… Patrick Henry (he of “Give Me Liberty or Give Me Death” fame) …

John Hancock… John Hancock (whose signature is the most prominent on the Declaration of Independence) …

Benjamin Franklin… Benjamin Franklin (who owned slaves for 40 years before finally becoming an abolitionist in 1785) …

Founding Fathers… and many other Founding Fathers who were also slave owners.

The Constitution of the United States, adopted in 1787, authorized the continuation of slavery in the country and counted slaves as “three-fifths of a person”. And so, to truly eliminate all vestiges of rebellious supporters of slavery …

Washington Monument… it is down with the Washington Monument …

Jefferson Memorial… demolish the Jefferson Memorial …

Benjamin Franklin Memorial… and the Benjamin Franklin Memorial …

Mount Rushmore… blast Washington and Jefferson off of Mount Rushmore …

Currency & Coinage Washington Jefferson & Franklin… remove Washington, Jefferson and Franklin from our currency …

American Flag Betsy Ross & George Washington… and get rid of the Stars & Stripes, which waved over slavery for nearly a century.

Not doing so may be seen as a particularly disingenuous form of hypocrisy.

______________________________________________

FLA 68

“Civil Disobedience” in Utah


.

CIVIL DISOBEDIENCE IN UTAH

in response to the federal government’s shutdown of national parks, San Juan County in Utah has threatened to take over the national parks within its borders:

http://www.npr.org/blogs/thetwo-way/2013/10/09/231086726/county-in-utah-threatens-takeover-of-national-park-areas?utm_medium=Email&utm_campaign=20131013&utm_source=mostemailed

NPR: Utah County Threatens Takeover of National Parks

http://www.npr.org/blogs/thetwo-way/2013/10/09/231086726/county-in-utah-threatens-takeover-of-national-park-areas?utm_medium=Email&utm_campaign=20131013&utm_source=mostemailed

The NPR article opens with the following:

“San Juan County has become the fifth county in Utah to declare a state of emergency in response to the closure of National Park areas.

“But the San Juan County Commission has also decided to storm National Park Service barricades, take control of some parks, and reopen them to the public.

“‘This is civil disobedience,’ says Phil Lyman, a CPA and county commissioner from Monticello, Utah, in the southeastern corner of the state. ‘What’s happening to us is wrong.'”

San Juan County plans to use sheriff’s deputies, search and rescue volunteers, firefighters, EMTs, portable toilets, garbage trucks and three mobile command centers in its operation of the national parks.

Yes, this would be an act of civil disobedience … and I applaud it!  This is exactly what government should do in an emergency — step in and fix the problem.  Unfortunately, the bloated, arrogant, over-weening federal government doesn’t give a damn about the hardships that its “shutdown” has created for local communities. 

So, those local communities have to take it upon themselves to do what’s best for their people.  More power to ’em!

.

ARIZONA AGREEMENT

The state of Arizona has Reached an agreement with the federal government to re-open the Grand Canyon:

Grand Canyon Train Station 1981

Grand Canyon Train Station 1981

http://news.yahoo.com/grand-canyon-opens-state-fed-natl-parks-deal-194332701.html

Grand Canyon

Grand Canyon

.

THE FEDERAL GOVERNMENT & OTHER STATES

The federal government has also announced its willingness to cooperate with other states that want to reopen national parks:

http://www.usatoday.com/story/news/politics/2013/10/10/canyon-rushmore-shutdown-national-parks-interior/2962499/

Note the two caveats to this agreement, however:

“Interior Secretary Sally Jewell told state officials that she would consider agreements with governors who are willing to fully fund National Park Service personnel to reopen the 401 parks nationwide that have been closed since Oct. 1.”

And:

Blake Androff, an Interior Department spokesman, stressed that the state’s payments would be viewed as donations and would not be reimbursed unless Congress passed legislation to do so.”

In other words, we’re willing to let you do our job — a job that we can’t or won’t do, as long as you pay for it and don’t expect us to reimburse you.  What a shameful disgrace.

Puts me in mind on one of Thomas Jefferson‘s comments on government:

“I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical.”  See Note below.

It seems likely that Jefferson would approve of San Juan County’s plans to exercise some civil disobedience and “a little rebellion”.

_____________________________

Note:  The Jefferson quote is from a letter written by him from Paris on January 30, 1787, to James Madison.  The full text of the letter is available on the “Archiving Early America” website here:

http://www.earlyamerica.com/review/summer/letter.html

_____________________________

Grand Canyon Photos © 2013 Jim Reilly

Trashing the Constitution in New York City


.

Perhaps the single most dangerous politician on the national scene these days is New York City Mayor Michael Bloomberg.  He is dangerous in part because he appears to be a megalomaniacal would-be dictator and in part because he is a billionaire who is willing to spend considerable sums of his own money to achieve his blatantly unconstitutional political aims.

Whatever rationality Bloomberg may once have brought to political discourse has rapidly dissolved with his recent series of assaults on personal freedom and liberty in New York and across the country.  Hizzoner “I Know What’s Best For You” is well-known for his attempts to dictate to his subjects when where and how much they can eat (transfats), smoke (cigarettes) and even drink (sodas).  See, for example:

http://www.refusetoregain.com/2012/06/mayor-bloombergs-war-vs-the-freedom-to-eat-whatever.html

And now, Bloomberg has now gone off the statist edge of the political platform, declaring:

“I do think there are certain times we should infringe on your freedom.”

Bloomberg Infringe on Your Freedom

Bloomberg’s irrational and unconstitutional claim has been reported and discussed on any number of websites, such as:

Hotair.com:

http://hotair.com/archives/2013/03/25/mike-bloomberg-i-do-think-there-are-certain-times-we-should-infringe-on-your-freedom/

The NRA Institute for Legislative Action:

http://www.nraila.org/news-issues/articles/2013/3/outrage-of-the-week-bloomberg.aspx

PoliticalOutcast.com:

http://politicaloutcast.com/2013/03/mayor-michael-bloomberg-government-infringe-freedom-piers-morgan/

To all of which, I say, NO, there aren’t certain times when you should infringe on our freedoms.

Here are some thoughts for you Michael:

“[It is] the people, to whom all authority belongs.” —Thomas Jefferson to Spencer Roane, 1821.

“… all power is inherent in the people … it is their right and duty to be at all times armed ….” –Thomas Jefferson to John Cartwright, 1824.

“But of all things, they least think of subjecting themselves to the will of one man.” –Thomas Jefferson to Francis W. Gilmer, 1816.

“Governments are instituted among men, deriving their just powers from the consent of the governed.” –Thomas Jefferson: Declaration of Independence, 1776.

“What country can preserve its liberties if its rulers are not warned from time to time that their people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to facts, pardon and pacify them.” –Thomas Jefferson to William Stephens Smith, 1787.

“The spirit of resistance to government is so valuable on certain occasions, that I wish it to be always kept alive. It will often be exercised when wrong, but better so than not to be exercised at all. I like a little rebellion now and then. It is like a storm in the atmosphere.” –Thomas Jefferson to Abigail Adams, 1787.

“Most codes extend their definitions of treason to acts not really against one’s country. They do not distinguish between acts against the government, and acts against the oppressions of the government. The latter are virtues, yet have furnished more victims to the executioner than the former, because real treasons are rare; oppressions frequent. The unsuccessful strugglers against tyranny have been the chief martyrs of treason laws in all countries.” –Thomas Jefferson: Report on Spanish Convention, 1792.

“I hold it that a little rebellion, now and then, is a good thing, and as necessary in the political world as storms are in the physical. Unsuccessful rebellions, indeed, generally establish the encroachments on the rights of the people, which have produced them. An observation of this truth should render honest republican governors so mild in their punishment of rebellions, as not to discourage them too much. It is medicine necessary for the sound health of government.” –Thomas Jefferson to James Madison, 1787.

The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.” –Thomas Jefferson to William Stephens Smith, 1787.

Thomas Jefferson — remember him, Michael?  You couldn’t carry his slop jar.

More on the 2nd Amendment & Gun Control


 

My December 29th post “What Now for the 2nd Amendment and Gun Control?” …

https://freelegaladvice.wordpress.com/2012/12/29/what-now-for-the-second-amendment-gun-control/

… motivated a lengthy and somewhat contentious email conversation among my West Point classmates.  There are several aspects of that conversation which I will address in my blog over the next few days, starting with some perceptive and pertinent comments and questions by Terry Atkinson.

First, Terry commented:  The logic behind the belief that the 2d amendment’s protection of an individual’s right to own arms is limitless eludes me. If one truly believes that, as Jim states fairly unequivocally in his blog discussion, then it must follow that ‘arms’ such as M109 howitzers  enjoy the same protection as handguns or semiautomatic weapons. It seems to me, however, that the logic would also cover such weapons as nuclear weapons and, let’s say, B-1 bomber delivery systems. If, indeed, you all belief that, it seems to me that your logic fails the common sense test.  I can’t imagine any country that allows its citizens unfettered access to say nukes, thousand pound bombs, napalm canisters, sarin gas canisters, cobra gunships with flechette rockets, or any number of mass-killing weapons would last.

Actually, my “strict construction” view of the 2nd Amendment does not envision a “limitless” right to own weapons.  In fact, a strict construction reading of the amendment’s language makes clear that it does not apply to modern warfare weapons such as howitzers, nukes and bombers.

A thorough analysis of the 2nd Amendment requires a thorough review and understanding of the amendment’s language and what that language meant at the time it was ratified.  To be a “strict constructionist”, one must strictly construe the entirety of the particular constitutional provision being discussed.  Therefore, to respond to Terry’s first point, it is primarily necessary to understand what the term “to keep and bear arms” meant when the 2nd Amendment was ratified in 1791.

First and most important, what did the word “arms” mean at that time?  Historical commentary and arguments both for and against the adoption of this amendment make it clear that by “arms”, the author of the Bill of Rights (James Madison), and those who voted to ratify it, meant weapons that were neither designed for military use nor typically put to such use.  By “arms”, the amendment was intended to refer to personal weapons, such as pistols, rifles and shotguns.  It clearly was not intended to refer to military-style, 18th century artillery pieces and, by analogy, cannot now be thought to refer to the 21st century successors to such military weapons.

The phrase “to keep and bear” arms confirms this interpretation.  To “keep … arms”, of course, means nothing more than to be able to have them in one’s possession.  At the writing of the 2nd Amendment, “to bear” meant “to carry”.  Although that term is now somewhat archaic, it clearly refers to weapons which an individual could carry with him on his person.

Thus, the phrase “to keep and bear arms” meant (and means) that the government cannot infringe “the right of the people to have and carry personal weapons such as pistols, rifles and shotguns”.

This would currently exclude from constitutional protection such weapons as fighter aircraft, naval ships and weapons, artillery pieces, napalm, nukes & other bombs, as well as even such lesser weapons as 50 caliber machine guns, shoulder mounted rocket launchers, flamethrowers, hand grenades and most other military-style weapons.

The US Supreme Court holding in District of Columbia v. Heller, 554 U.S. 570 (2008), reached the same conclusions.  The court in Heller said that the previous Supreme Court decision United States v. Miller, 307 U.S. 174 (1939), did not “limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes”.  The court went on to find support for this conclusion in what it called the “historical tradition” of prohibiting the carrying of  “dangerous and unusual” weapons.

Terry’s second comment:  If you don’t believe that nukes and these other weapons enjoy the protection of the 2d amendment, then it seems to me you are recognizing a limitation to the amendment — a limitation that does not appear to be written into the ‘strict constructionist’s’ reading of the amendment. Logic then suggests that there ARE limits to the constitutional right based on ‘reasonableness’ or current conditions or changing societal mores or something. If true, it seems to me the issue is no longer whether the 2d amendment prevents the government from restricting arms ownership but rather a question of where the line of reasonableness is drawn. This, IMO, is an entirely different argument and one that I can understand.

As should be clear from my preceding comments, I do not believe that nukes and other military weapons are protected by the 2nd Amendment.  I disagree, however, with Terry’s conclusion that this implies a “limitation” on the 2nd Amendment’s protections.  Rather, my “strict construction” interpretation of that amendment is that such weapons were not then and were never intended to be covered by the 2nd Amendment.  A true “strict construction” of the amendment still leads to the conclusion that the government cannot infringe on “the right of the people to keep and bear arms”, within the original meaning of that language.  This reading has nothing to do with “reasonableness”, current conditions or changing societal mores.

Nevertheless, the end result is, with respect to military style weaponry, the same and it appears that Terry & I agree that the government can constitutionally restrict individual access to, or possession and use of, such weapons.

Terry’s third point was in the form of a question, and a very good one, at that:  Where in the 2nd amendment or constitution for that matter does it state that the rights stated therein do not cover persons who have committed crimes or are diagnosed with mental illnesses? My “strict interpretation” of the Constitution tells me that anyone can own a weapon whether they have a criminal past or not. Isn’t that right?

Answering this question requires further analysis — initially, what governmental action would “infringe” on the individual’s right to bear arms?  Or, in simpler terms, what did (does) the word “infringe” mean?

The oldest definition I can find is from Webster’s Dictionary of 1828, which likely reflects fairly closely what the word meant in 1791:

1.     To break, as contracts; to violate, either positively by contravention, or negatively by non-fulfillment or neglect of performance. A prince or a private person infringes an agreement or covenant by neglecting to perform its conditions, as well as by doing what is stipulated not to be done.
2.     To break; to violate; to transgress; to neglect to fulfill or obey; as, to infringe a law.

With this meaning of “infringe”, a “strict construction” interpretation of the 2nd Amendment would be that the government cannot “break or violate” (or perhaps “deny”, as in “neglect to fulfill”) “the right of the people to have and carry personal weapons such as pistols, rifles and shotguns”.

What the 2nd Amendment itself does not address, however, and what must then be considered both in terms of the contemporaneous understanding of what the amendment meant and what it must be understood to mean now is whether or not, and if so, how a particular person can lose his constitutional rights, including his “right to keep and bear arms”.

Although neither the Bill of Rights nor the Constitution proper address that possibility, there are constitutional provisions which provide guidance in this regard.  Article I, section 8,  and Article III, section 3, empower Congress to define certain federal crimes and to establish the punishment to be imposed for violations thereof.  Article III, section 2, and Article IV, section 2, acknowledge that the states have the authority to define crimes and punishments.  Furthermore, it is clear that all of the Founding Fathers of this country, and probably the vast majority of the populace, recognized that the government could revoke even the “inalienable rights” of the people by fining, imprisoning or, in extreme cases, executing those who violated the laws of the country or the states.

Clearly, the right to “life, liberty and the pursuit of happiness” could be forfeited by those who committed crimes.  There is neither any logical reason nor any historical interpretation by which it could be concluded that the 2nd Amendment “right to keep and bear arms” was somehow exempted from forfeiture as a result of a sufficiently serious criminal conviction.  Nor is there any logical reason to conclude that this right cannot now be forfeited for the same reason.

Thus, as a general proposition, a person who has committed a sufficiently serious (felony) crime no longer has a right to keep and bear arms to be infringed.  And governmental restriction of that person’s access to firearms or other weapons would not violate the 2nd Amendment.

I do have personal reservations about the constitutionality of the extensions of this concept being enacted by some states, including denial of access to firearms based on misdemeanor criminal convictions, such as domestic violence.  That, however, is really a subject for a separate discussion at another time.

With respect to the remainder of Terry’s question in this regard, the issue of denying 2nd Amendment rights to people suffering from mental illnesses is constitutionally troublesome.  There is nothing in the Constitution by which it can be inferred that either the federal or state governments have lawful authority to revoke the rights of a person due to mental illness.

Nevertheless, it was common practice in the 1700s and early 1800s for local government to confine the mentally ill to either jails or poorhouses.  Since the Constitution does not otherwise address the issue, it must be understood in the context of the times.  The implication of this historical perspective, of course, is that the mentally ill could, on that basis alone, lose some or all of their “rights”.  Presumably, Madison and those who ratified the Constitution and the Bill of Rights, were aware of this common practice and had it in mind when formulating and ratifying those documents.

Therefore, a strict construction of the 2nd Amendment would also require that it be understood in that context.  Which means that the mentally ill, like convicted felons, can be thought of as not having any 2nd Amendment right to be infringed by governmental action.

There are, of course, other issues with respect to the 2nd Amendment, such as whether or not licensing requirements and concealed carry restrictions are constitutional or whether it is constitutionally permissible to restrict the carrying of weapons into certain places (such as public buildings).  And there is the question of whether gun control is a meaningful and effective way of dealing with the problem to begin with.  I will address some of these issues in future blog posts.

__________________________________________

The full 157 page opinion of the Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008), is available here:

http://www.supremecourt.gov/opinions/07pdf/07-290.pdf

The Supreme Court decision in United States v. Miller, 307 U.S. 174 (1939), is available here:

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0307_0174_ZO.html

The 1st Amendment — Dialog on Religion & Government


My recent posts here regarding Randy DeSoto’s The Conservative Voice columns were an outgrowth of an ongoing conversation among a group of West Point graduates regarding 2008 presidential election issues. John Sloan, Class of 1955, a frequent contributor to this discussion, provided a lengthy and thoughtful comment on my post on the role of religion in government, to which I will respond here.

Continue reading