“Lies the Government Told You”


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I just finished listening to the audio book, “Lies the Government Told You” by former New Jersey Superior Court Judge Andrew P. Napolitano and highly recommend it.  In fact, this is a book that every American should read (or listen to the audio version of).  In it, Judge Napolitano discusses the many ways in which the US federal government has deceived and continues to deceive the American People as it arrogates unto itself more and more power, diminishing in the process both individual liberties and the power of the states.

Judge Napolitano concludes his compelling discourse with a bold and detailed statement of what We The People must do to rectify this situation and reverse the federal government’s ongoing and increasing power grab.  To whet your appetite, I am going to quote the concluding paragraphs of the book in full:

We will need a major political transformation in this country to rid ourselves of persons in government who kill, lie, cheat, and steal in our names. We will need to recognize some painful truths.

First, we must acknowledge that through the actions of the government we have lost much of the freedom that we once all thought was guaranteed by the Constitution, our laws, and our values. The lost freedoms have been cataloged in this book and need not be restated here. In sum, they are the loss of the primacy of the individual’s inalienable rights and the concept that government is limited in its powers. We have lost the diffusion of power between the states and the federal government. We have lost a federal government that stays within the confines of the Constitution.

Second, we must recognize that we do not have a two-party system in this country; we have one party, the Big Government Party. There is a Republican version that assaults our civil liberties and loves deficits and war, and a Democratic version that assaults our commercial liberties and loves wealth transfers and taxes.

Third, we must acknowledge that there is a fire in the bellies of millions of young people who reject both wretched visions of the Big Government Party. These millions of young folks need either to form a Liberty Party or to build on the libertarian base in the Republican Party by banishing Big Government conservatives, neocons, and so-called social conservatives who want to use government to tell others how to live their lives back to the Democratic Party from whence they came.

Then we need a political fever that consumes the careers of all in government who voted for the Patriot Act, the illegal wars in Iraq and Afghanistan, the TARP and stimulus programs, the federal takeover of education, spying on Americans without warrants, and all other unconstitutional monstrosities that have tethered lovers of liberty to Washington, D.C.

We should abolish the federal income tax, prohibit eminent domain, impose term congressional limits, make Congress part-time, return the power to elect senators to State legislatures, abolish the Federal Reserve system, and prosecute for malfeasance any member of Congress who cannot articulate where the Constitution authorizes whatever he or she is voting for or who has voted for any law that he has or she has not certified under oath that he or she read and fully understands. And we must reject the nice smiles and easy ways and seductive promises of anyone in government who lies to us.

The Big Government Party crowd is obviously not afraid of lying or being caught in a lie. Its members do not fear their own lawlessness or our loss of freedom. They only fear the loss of their own power. So let’s use that fear against them. Jefferson understood and articulated this best when he wrote: “When the people fear the government, there is tyranny. When the government fears the people, there is liberty.”

If we fear our own government, if we accept its deceptions, its lies to us, if we take no action to redress them, our freedoms are doomed.

___________________________________

For Judge Napolitano’s personal website, see here:

http://www.judgenap.com/

For Judge Napolitano’s biography, see here:

http://www.judgenap.com/bio/

The “Lies the Government Told You” page of the judge’s website is here:

http://www.judgenap.com/books/lies-the-government-told-you/

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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

What now for the Second Amendment & Gun Control?


 

In the aftermath of the Sandy Hook Elementary School murders in Newtown, CT, there has once again been an outcry for increased restrictions on individual access to firearms in the United States.

As I have said before …

https://freelegaladvice.wordpress.com/2008/06/26/supremes-uphold-individual-handgun-ownership-right/

… when it comes to the Second Amendment (as well as the rest of the Constitution), I am a strict constructionist.  The Second Amendment says that the “… the right of the People to keep and bear Arms, shall not be infringed.”  See Notes 1 & 2 below.

To me, in the absence of an amendment to the Constitution modifying its terms, the Second Amendment means that the government (federal directly and state/local through the Due Process Clause of the 14th Amendment) has no authority to “infringe” (per Merriam-Webster online Dictionary:  “to encroach upon in a way that violates law or the rights of another”) on the right of individuals to keep and bear arms.  Period.  Not handguns.  Not rifles.  Not shotguns.

Not even “assault weapons”, regarding which, by the way, there really is no such thing.  When the federal government passed the so-called “Assault Weapons Ban” in 1994, Congress had to make up a definition of what constituted an “assault weapon” within the meaning of the law.  See Note 3 below.

And, as just one example of how virtually meaningless that definition was, the law defined any semiautomatic rifle with a pistol grip and a bayonet mount as an “assault weapon”, but excluded from the definition a semiautomatic rifle with just a pistol grip.  Go figure.

Now, you might be tempted to say (and I would agree) that any fully automatic weapon should be considered an “assault weapon”.  But, you should also be aware that fully automatic weapons have been heavily regulated, controlled and restricted since 1934 (think Prohibition era gangsters).  Never mind that there is nothing in the Second Amendment which can be interpreted to mean that the federal government has lawful authority to infringe on the right of individuals to “keep and bear” even fully automatic “arms”.  The average law-abiding citizen simply cannot legally obtain, much less “keep and bear”, fully automatic weapons.

What then, you ask, of semi-automatic weapons (like the Bushmaster .223 rifle used by the Newtown nutball) — aren’t they “assault weapons”?  Some people would say so.  However, a “semi-automatic” weapon is one which fires only one round each time the trigger is pulled, but reloads the next round automatically.  Well, guess how revolvers work — when you pull the trigger, the cylinder rotates and reloads the next round automatically, then fires;  when you pull the trigger again, the cylinder rotates and reloads the next round automatically — “semi-automatic”, by definition.

In fact, virtually every modern handgun is “semi-automatic”.  Are they all “assault weapons”?  I submit not.

So, any “assault weapons” ban that might be enacted going forward will have the same problem that the 1994 ban (which was largely ineffective in accomplishing its presumed objective and therefore allowed to expire in 2004) had — how to define the weapons being “banned”.  See Note 4 below.

And what about high capacity magazines?  Doesn’t the fact that a semi-automatic weapon can be loaded with a 30 shot magazine make it an “assault weapon” worthy of being banished?  Not really.

An accomplished gunman utilizing a weapon like the Bushmaster can aim and effectively fire 30 rounds in perhaps 15 seconds.  So, let’s say 30 shot magazines are banned and the maximum allowed is just 10 rounds.  Okay.  This same accomplished gunman can eject an empty magazine and load a new one in 5 seconds, less if he’s really good at it.  So, to fire the same 30 rounds will take 3 magazines, having to reload twice in the process.  Thus, the total time to fire 30 rounds will be 15 seconds to aim and fire plus 10 seconds to reload the two magazines.  Total 25 seconds.  Would this have any meaningful effect on the likely outcome of a shooting incident like Sandy Hook?  Not very likely.

So, what should be done to increase gun control in the US?

I submit, contrary to the hue and cry currently being raised by some, nothing.

The belief that increased restrictions on private ownership of guns will reduce gun violence in the United States is, essentially, wishful thinking.  Connecticut has some of the most restrictive gun control state laws in the country.  The guns used by the Sandy Hook lunatic were legally obtained and owned by his mother.

I have read many claims that we need gun control laws like those in effect in most European countries, where the homicide rates are (generally) lower than that in the US.  However, the single worst civilian mass shooting in history occurred in a country with some of the most restrictive gun ownership laws and regulations in the world.  On July 22, 2011, another demented individual attacked a summer camp on a Norwegian island, killed 69 people and wounded 110 (55 of them seriously).  See Note 5 below.

Norway’s homicide rate prior to that event was .6 per 100,00 population (compared to the US rate of 4.2).  And yet … and yet …  See Note 6 below.

A far better way to reduce the homicide rate in the US would be to end the “insane war on drugs”.

Apparently, we as a society learned absolutely NOTHING from the lessons of the failed policies of Prohibition.  According to the US Department of Justice, Bureau of Justice Statistics, nearly 20% of all violent crimes are committed by drug addicts to obtain money for drugs.  Legalize and regulate all drugs and you eliminate most of these violent crimes (and perhaps as many as 50% of all property crimes, as well).  See note 7 below.

Each year in the US, roughly 30,000 people die in firearms-related incidents.  More than half of these are suicides and perhaps 5% accidents.  Of the roughly 40% that are homicides (12,000 or so each year), more than 1000 are committed in “drug wars” (usually between rival drug sellers in “turf wars” over drug sales territories).  Eliminate the “insane war on drugs” and you eliminate drug wars and their associated homicides.  See Notes 8 & 9 below.

And, while I agree with the NRA that posting an armed guard in every school would discourage individuals from choosing schools as targets for their murderous rampages (when was the last time we had a mass murder in a government building, courtroom or airport with armed guards and security checkpoints?), I do not favor this approach for both economic (excessive costs) and personal liberty reasons.  See note 10 below.

We should not be teaching our children to live in fear.  And, as horrific as were the events in Sandy Hook, the occasional occurrence of such events is one of the prices we pay … and must pay … to live in a truly free society.

_______________________________

Note 1:  The full text of the Second Amendment is:  “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  The introductory clause, in my view, is not a restriction or limitation on the right protected by the amendment, but rather is the explanation for that right.

Note 2:  Anyone who thinks that modern circumstances have obviated the necessity of individual gun ownership to protect a “free state”, need only read One Second After by William Forstchen, described here:

http://www.onesecondafter.com/

And, if you think his book is science fiction and farfetched, see the Wikpedia article on EMP:

http://en.wikipedia.org/wiki/Electromagnetic_pulse

And this Heritage Foundation article about Congressional hearings on the subject:

http://blog.heritage.org/2012/09/11/congressional-hearing-raise-emp-awareness-now/

Note 3:  For a good discussion of “assault weapons” and the 1994 ban, see:

http://www.washingtonpost.com/blogs/wonkblog/wp/2012/12/17/everything-you-need-to-know-about-banning-assault-weapons-in-one-post/

Note in particular this comment:  “Did the law have an effect on crime or gun violence? While gun violence did fall in the 1990s, this was likely due to other factors. Here’s the UPenn study again: “We cannot clearly credit the ban with any of the nation’s recent drop in gun violence. And, indeed, there has been no discernible reduction in the lethality and injuriousness of gun violence.”

Note 4:  For another, radically different, view of why gun violence (and crime in general) fell during the 1990’s, read the book Freakonomics: A Rogue Economist Explores the Hidden Side of Everything by Steven Levitt and Stephen J. Dubner.  In chapter 4 of this book, the authors make a compelling argument that the single most important factor in the drop in crime was the Supreme Court decision in Roe v. Wade and the legalization of abortion in the US.  This is a subject worthy of a more extensive discussion, which I will consider for a future post here.

In the meanwhile, see:

http://www.freakonomics.com/blog/

and:

http://en.wikipedia.org/wiki/Freakonomics

Note 5:  Regarding the mass murder in Norway, see this Wikipedia article:

http://en.wikipedia.org/wiki/2011_Norway_attacks

Note 6:  I recently received an email from a West Point classmate who made the claim that the homicide rate in the US is “more than double every other Western County”.  He did not clarify his definition of “Western country”, but unless you limit “Western countries” to North America north of the US-Mexican border, he is just wrong.  For a full list of the world homicide rates by country, see:

http://en.wikipedia.org/wiki/List_of_countries_by_intentional_homicide_rate

There you will see that not only is our murder rate not “double every other Western country”, it is not even the highest in North America (not even second highest, actually, as both Mexico at 16.9 per 100,000 population and Bermuda at 12.3 have higher murder rates than the US at 4.2).

I also think Caribbean, Central and South American countries would be considered “Western”.  All 21 countries in the Caribbean have murder rates equal to (one country — Martinique) or greater than that of the US.  Eight Caribbean countries have murder rates five times or more than that of the US.  Jamaica’s murder rate (52.2) is more than 12 times that of the US.

All seven Central American countries have murder rates higher than that of the US.  Honduras has a murder rate of 96.6, 23 times that of the US.

Eleven of the 13 South American countries have murder rates higher than that of the US (Venezuela topping that list at 45.1)

Even in Europe (often cited as an exemplar for gun control which should be followed by the US), there are 8 countries which have higher murder rates than the US.  Only Western and Southern Europe have murder rates consistently lower than ours and not even all of those are as small as half that of the US.

Oddly, one of those (Switzerland at 0.7) has one of the highest per capita gun ownership rates in the world (4th behind the US, Serbia and Yemen).  For per capita gun ownership worldwide, see:

http://en.wikipedia.org/wiki/Number_of_guns_per_capita_by_country

Compare that list to the national murder rates and you will see that there is virtually no correlation between the two.  In fact, see this interesting article from the Harvard Journal of Law & Public Policy which posits that there is actually more of a negative correlation:

http://www.law.harvard.edu/students/orgs/jlpp/Vol30_No2_KatesMauseronline.pdf

One startling example noted in this study:  Luxembourg, which has such complete gun control that “handguns are totally banned and ownership of any kind of gun is minimal” has a murder rate (9.01) more than double that of the US.

Note 7:  For the US Department of Justice, Bureau of Justice Statistics, article on “Drugs and Crime Facts”, see:

http://bjs.ojp.usdoj.gov/content/dcf/duc.cfm

Note 8:  For a good article on “drug war” homicides, see:

http://narcosphere.narconews.com/notebook/bill-conroy/2012/03/drug-war-related-homicides-us-average-least-1100-year

Note 9:  For the Libertarian Party’s discussion on why we should end the “insane war on drugs”, see:

http://www.lp.org/news/press-releases/libertarian-party-40-years-is-enough-end-the-drug-war

Note 10:  “They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”  —- Benjamin Franklin, Memoirs of the life and writings of Benjamin Franklin (1818).

Point-Counterpoint with Randy DeSoto


I have received an email from Randy DeSoto regarding his column on the California gay marriage case, to which I respond here:

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Will California Gay Marriages be Legal in Other States?


A straight-forward reading of Article IV, Section 1, of the U.S. Constitution, would seem to indicate that the anwer to this question is an unequivocal yes.

It isn’t.

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