Monday, November 06, 2017

What Loyalty Demands of Citizens and Soldiers

by Neil H. Buchanan

Another day, another mass shooting that -- despite the seemingly endless gun violence that this country needlessly endures -- has a high enough body count to (for now) constitute front-page news.

Barely anyone noticed any of the multiple shootings in the five weeks between the Las Vegas massacre and what was quickly labeled the Texas Church Shooting, but the body count in those killings totaled 29, which is three more than the current death toll in Sutherland Springs.

We already know that there will still not be a real political debate about guns, and the people who continue to enable this carnage will return to their usual talking points about it being "too soon" to discuss policy and that the real problem is mental health (or something else, as long as guns have nothing to do with it).

For now, therefore, it seems safe to assume that Donald Trump and the Republicans will continue to promote their paranoid, macho fantasies about how none of this would be a problem if everyone had a gun.  The rest of us are left to ponder the madness.

In this column, I will address the problem of gun violence indirectly by clarifying a point that I made last week in a column about the so-called insurrectionist view of the Second Amendment, a fringe theory holding that the reason The People need to be privately armed is to be able to rise up against a despotic government.  In so doing, I will also make a larger point about the importance of soldiers' and citizens' commitment to the rule of law.

Although I devoted last week's column to debunking the purported justifications for the insurrectionist view, I may have inadvertently reinforced a presumption that seems to support that view.  Specifically, I took as a starting point for my argument an insurrectionist claim that some large number of U.S. military personnel and citizens would join in a revolt against the government.

Whether or not I left the impression that I agreed with that assertion, I want to be clear here that I disagree strongly with any such claim.  I was, instead, trying to show how crazy the insurrectionist view is even if one assumes bad things about the loyalty of members of the U.S. military -- and, for that matter, of even most gun-owning American civilians.  I emphatically do not share those cynical and insulting views.

After the Las Vegas mass shooting, I wrote two columns in which I pointed out that the Second Amendment is a red herring in the U.S. gun debate.  Yes, any constitutional provision creates a line that separates valid from invalid policies, but the proposals on offer in the U.S. are all comfortably on the valid side of that line.  Being "in favor of the Second Amendment" is thus a meaningless statement in the context of choosing among such policies today.

My column last week was inspired (although that seems too positive a word) by the question of whether a citizens' uprising could ever bring a despotic government to heel.  As is common (even among right-wing icons like the late Justice Antonin Scalia), I all but laughed off the idea that do-it-yourself militias could stand up against the weaponry of the U.S. military.

The insurrectionist view has always been "out there," but the Oklahoma City bombing in 1995 seemed for awhile to have put the idea to rest.  Proving that one can never keep a bad idea down, however, some people on the fringes appear to believe that Scalia's confident assumption about the superiority of the U.S. military has a fatal flaw.

In this view, because our all-volunteer military draws disproportionately from people in the struggling areas of the country that are experiencing epidemic levels of opioid deaths and (supposedly as a result of such symptoms of economic stagnation) supported Donald Trump in the 2016 election, liberals like me should not be too sure that the military would take "my" side in a fight.

The idea, apparently, is that if a future Congress banned private ownership of guns, the military would mutiny before following orders to enforce such a law.  More immediately, I posited that this logic would also imply that such would-be mutineers might take Trump's side in an impeachment crisis.

Again, I absolutely do not believe that this would happen.  It is true that any reasonable person would worry about the possibility that white supremacists and other extremists have joined the military, if for no other reason than to take advantage of the federal government's top-notch military training.

But that possibility is hardly lost on the military itself.  As Stars & Stripes reported last month: "There have been longstanding concerns about right-wing extremists in the military, about such groups seeking to infiltrate the services to gain tactical knowledge and about troops' radicalization after they've joined."

A Pentagon spokesman reaffirmed the military's commitment to fight against such extremism: "Association or participation with hate or extremist groups of any kind violates the Department of Defense's core values of duty, integrity, ethics, honor, courage and loyalty. We take any and all allegations of misconduct very seriously."

This means that, although there are surely some guys sitting around somewhere feverishly talking about getting their buddies in the military to join in the fight against the Washington Establishment, there is no reason to think that they are doing anything other than fooling themselves.  What sounds plausible after nine or ten beers is not the basis for a revolution.

As I noted above, even non-military people who own guns have reason to feel slandered by any claim that they would take up arms against the U.S. Constitution.  Whether of not they disagree with people like me regarding the best way to respond to gun violence, it is several giant leaps from there to imagining that those people would be willing to take to the streets in violent support of Trump.

Yes, even a tiny number of crazies can cause real damage, and that is why we need to increase the efforts by law enforcement agencies to track and neutralize such domestic terrorism.  But he idea of a mass uprising of armed citizens and soldiers, all of whom are willing to ignore the law and shoot their fellow citizens and soldiers is (thankfully) in a completely different category.

I have noted in past columns that academics like me need to be aware of an occupational hazard known as "arguendo reasoning," which is the practice of saying, "Even if we take your claim as true for the sake of argument, you are still wrong."  For example, even if there were no climate change, I can prove that we should still reduce air pollution.  But that does not mean that climate change is not real.

The danger is that spending too much (or sometimes any) time acting as if a crazy assertion is true can reinforce that crazy idea in people's minds, making it seem as if everyone agrees with the for-the-sake-of-argument premise.

That might be what happened in my column last week.  I was so busy engaging with the crazy argument on its own terms that some reasonable readers might mistakenly have thought that I accept those terms.

In any event, it is worth emphasizing the comforting reality that the vast majority of Americans, those serving in the military and law enforcement as well as private citizens, are loyal to the rule of law.  Even those who support Trump politically -- and thus have put a man in the office of the president who disdains the rule of law -- would (with some worrying exceptions) be appalled by a Trumpian effort to refuse to leave office.

Again, tiny minorities of bad actors can do real harm.  Even so, we should be pleased to know that members of the Secret Service, the FBI, the military, police forces, and so on, take their oaths seriously.

Indeed, it is important to emphasize that we are not ultimately relying on people honoring their official oaths.  One of Trump's more troubling fascist-adjacent practices during his campaign rallies was to lead people in his audiences in oaths of loyalty to himself.  Similarly, Trump has demanded oaths of personal loyalty from people like former FBI Director James Comey (who refused, which is part of why he is now "former").

What ultimately will stop people from doing whatever Trump demands will be their commitment to the rule of law, whether or not they have taken an oath.  Those readers who are fans of "Game of Thrones" might recall an episode in which Lord Varys, an advisor to a series of brutal monarchs, is confronted for his seeming lack of loyalty, as he has moved from one ruler to another despite having pledged loyalty to each.

Varys responds by pointing out that it was those murderous despots who were disloyal, because they had started out by presenting themselves as worthy of Varys's admiration and commitment.  When they revealed themselves not to be committed to Varys's ultimate goal -- the good of the people -- he felt no compunction about breaking with each bloodthirsty pretender.

And that is what true patriots are made of.  I honestly do not know whether, say, a social scientist at the Department of Housing and Urban Development is first required to recite an oath.  If she is, then I suspect that the reciting of the oath does nothing to change her commitment to the job.  At most, it would provide a memorable moment which she can recall when she needs to make a difficult choice about following orders or following the law.

In the end, what the paranoid Trump loyalists have re-branded "the deep state" is nothing more than public servants who take the rule of law seriously.  To the complaint that these citizens are hindering Trump and the Republicans in Congress from doing what they want, the answer is: Oath or no oath, we are not here to serve you, but to serve the Constitution and the rule of law that it represents.

From military personnel to judges to Social Security administrators to police officers to private citizens, loyalty is owed to those who earn it by showing that they too believe in a "government of laws and not men."  So long as most people are still committed to ideals of republican democracy and not cults of personality, our challenges will not be existential.

34 comments:

John Barron said...

Mark Twain defined patriotism this way: "Loyalty to the country always. Loyalty to the government when it deserves it."

The only problem with the essay above is that we no longer have a "government of laws." "Our" Congresscritters don't work for us, so much as the people who bribe them. As Judge Posner has admitted in his recent novella, there is one justice system for the rich, and a vastly inferior one for the poor. The Ryan tax bill and budget is an open declaration of war on the huddled masses. And every one of my conversations is being listened to by the Deep State.

America has become a police-state, legally indistinguishable from Mahmoud Ahmadinejad’s Iran, Kim Jong-Un’s North Korea, and Robert Mugabe’s Zimbabwe. In regimes of this nature, and the absolute ruler or ruling oligarchy is immune from civil and criminal sanctions, often as a matter of law. Police-state constitutions consistently contain provisions guaranteeing equal justice and access to the courts, and countries routinely sign human rights treaties requiring that signatory States guarantee the fundamental human rights of their citizens—Iraq, Iran, Zimbabwe, and even North Korea ratified the International Covenant on Civil and Political Rights before the United States did—with no intention of enforcing them.

In police-states, agents of government routinely commit crimes with impunity, as the State maintains absolute and exclusive control over the ability to prosecute crimes. For example, torture was against the law in Saddam’s Iraq, Joseph T. Thai, Constitutionally Excluded Confessions: Applying America’s Lessons To a Democratic Iraq, 58 Okla. L. Rev. 37, 38-9 (2005), but that was of little comfort to the untold thousands of political prisoners his regime extinguished. Rebecca Weisser, The Big Black Book Of Horrors (Saddam), The Australian, Dec. 4, 2005. And the only people who have been punished for our litany of war crimes are the ones who exposed them. Some governments “make elaborate claims that citizens under their rule enjoy human rights,” … but “[e]ven if words look good on paper, the absence of structural safeguards against abuse of power means they can be taken away as easily as they are allowed.” Ronald Reagan, Speech (Proclamation of Human Rights Day), Dec. 10, 1987. Like our own.

Simply put, the vaunted "rule of law" no longer protects me. The contract is in material breach, and I owe no debt of loyalty to this government. And at this point, as one wag put it, even the oath has changed:

"I pledge allegiance to the flag of the Corporate States of America, and to the gross profit for which it stands. One nation, under fraud, a subsidiary, with liberty and justice for sale."

As the source of the harm is public officials, acting outside the scope of their lawful authority, violent revolution would not be an act of rebellion but rather, the discharge of our duty of support and defense of “the Constitution and laws of the United States of America against all enemies, foreign and domestic.” 8 C.F.R. § 337.1; see also, e.g., N.H. Const. art. 10; Thomas Jefferson, Notes on the State of Virginia 255 (1785) (Query 13). The public official who arrogates despotic power is as much of an enemy of the Constitution as the bomb-throwing Bedouin in bedsheets.

While I assume that you share my revulsion at even the thought of taking the life of another, the words of President Obama ring true: “To say that force is sometimes necessary … is a recognition of history.” Barack Obama, Speech (acceptance of Nobel Peace Prize; Oslo, Norway), Dec. 9, 2009, reprinted at, Obama’s Nobel Remarks, N.Y. Times, Dec. 11, 2009.

The 2Am was intended for times like these. See Silveira v. Lockyer, 328 F.3d 567, 568 (9th Cir. 2003) (Kozinski, J., dissenting from the denial of rehearing en banc). And although I am too old to plausibly take up arms, I acknowledge the Framers' wisdom in preserving that right. Remember, even one well-timed bullet can change the course of history.

Shag from Brookline said...

Neil's current Verdict column closes with this:

***

And there would be a crushing irony. The people who claim that the Second Amendment can be justified as protecting the right of the people to resist tyranny and despotism would be engaging in violent rebellion in defense of Donald Trump, the man who—arguably more than any other politician in US history—threatens to become a tyrannical despot. It would be funny if it was not so scary.

***

Do we know what Trump meant when he made reference to 2nd A people addressing a President Hillary Clinton who might take away their guns? Was it a threat? Was it encouragement os some sort to Trump's base if their votes for Trump were not enough to get him elected?

Consider someone in the White House or in the Trump cabinet concerned with potential action by President Trump involving precipitating a nuclear attack that could result in a nuclear holocaust triggered by Trump being piqued with an enemy or to distract attention from lawful investigations of his Administration and campaign that are underway, might that someone being of the view that such action would not only be immoral but so catastrophic for the America that that someone loves and relying upon John's concept of the "Framers' wisdom in preserving that [2nd A] right." expressed in John's closing paragraph. Was something like that going through the mind of John Wilkes Booth back when he assassinated Pres. Lincoln? The Heller (5-4, 2008) decision written by Scalia, based upon his view of originalism, does not provide such support under the 2nd A.

Neil's closing paragraph would be further ironic if non-Trump voters became concerned with Trump actually becoming a tyrannical despot.

Let me be clear, I do not believe in the "insurrectionist" view of the 2nd A. I also think Heller was wrong under either originalism or non-originalism.

John Barron said...

Shag: "I do not believe in the "insurrectionist" view of the 2nd A."

Madison did. Fed. #46. Without guns, there is no American Revolution.

Shag: "I also think Heller was wrong"

Who gives a shit? You lost 5-4. Trump will likely replace Ginsburg, Kennedy, and Thomas. And as the LC holds that the law is whatever the judges say it is, you have no standing to complain.

David Ricardo said...

Everyone has standing to state an opinion that a Supreme Court opinion was incorrectly decided.

And anyone can argue that an opinion was wrong and should be overturned which is what the opponents of Roe do every day or maybe someone should tell them they have no standing to complain. And unless I am mistaken Plessy is no longer the law of the land and I do not think that Thurgood Marshall was told he had no standng to complain.

Also if, under the Doctrine of Originialism those who claim the right to bear arms is unlimited will restrict that argument to those arms that existed in 1789 and those guns that Madison was familiar with then most of us will be happy to leave it at that.

Joe said...

"under the Doctrine of Originialism those who claim the right to bear arms is unlimited will restrict that argument to those arms that existed in 1789 and those guns that Madison was familiar with then most of us will be happy to leave it at that"

A bit ironic if they do that online.

Shag from Brookline said...

Here's how a 2nd A absolutist might read the 2nd A follower Heller (5-4, 2008) (although SCOTUS has not gone this far:

***

While a well regulated Militia may be necessary to the security of a free state and a poorly regulated ad hoc militia may become a mob, the right of the people, individually and/or collectively to keep and bear arms, for self-defense of persons and protection of their property and the property of others in any locale or venue in the United States of America, to prevent tyranny by the federal or any state or local government, without limit as to types of arms and quantities, shall not be infringed. “Arms,” “self-defense,” and “tyranny” shall be determined as that in effect at the time of a claim of an alleged infringement of such right.

***

Or perhaps this isn' enough for some 2nd A absolutists.

Sounds like John has become constipated in his rehab. Being a regular guy, I don't have that problem.

Apparently Justice Scalia was not influenced by John's claim of Madison's position on the "insurrectionists" view of the 2nd A in Heller.

John Barron said...

Shag (quote): “Arms,” “self-defense,” and “tyranny” shall be determined as that in effect at the time of a claim of an alleged infringement of such right."

I can work with that.

Blackstone observes that all Englishmen have a “natural right of resistance and self-preservation [which may lawfully be exercised] when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” 1 Blackstone, Commentaries at 144. Collectively, it is the right to revolution. N.H. Const. art. 10.

The paradigmatic definition of tyranny is given by John Locke:

AS usurpation is the exercise of power, which another hath a right to; so tyranny is the exercise of power beyond right, which no body can have a right to. …

Where-ever law ends, tyranny begins, if the law be transgressed to another's harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another."

John Locke, Second Treatise of Government §§ 199. 202 (1695). James Madison adds:

"The preservation of a free Government requires not merely, that the metes and bounds which separate each department of power be invariably maintained; but more especially that neither of them be suffered to overleap the great Barrier which defends the rights of the people. The Rulers who are guilty of such an encroachment, exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves."

James Madison, A Memorial and Remonstrance (address to the General Assembly of the Commonwealth Of Virginia), Jun. 20, 1785), as reprinted in 2 J. Madison, The Writings of James Madison (1783-1787) at 122-23.

From there, John Adams declares: "open, avowed resistance by arms, against usurpation and lawless violence, is not rebellion by the law of God or the land." John Adams, Novanglis No. 5, as reprinted in, John Adams and Jonathan Sewall, Novanglus and Massachusettensis 45 (1819) (1774). Concurrence among the Framers is unanimous. See
e.g., Mass. Const. Art. XXX; Thomas Jefferson, Letter (to Isaac Tiffany) (Apr. 4, 1791) at 1 ("Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law,' because law is often but the tyrant's will, and always so when it violates the rights of the law,' because law is often but the tyrant's will, and always so when it violates the rights of the individual").

Unlike Shag, the Framers were familiar with the classics. Cicero asserted that it was “morally right to kill” tyrants, as they are “monsters … in human form [who] should be cut off from … the common body of humanity.” 3 Marcus Tullius Cicero, De Officiis, 299 (T. Page and W. Rouse, ed., W. Miller, trans., 1921) (44 B.C.E.). Greek states, observes Xenophon, would “bestow great honour on him who kills a tyrant.” Xenophon, Hiero, A Dialogue on Royalty, as reprinted in Xenophon’s Minor Works 55 (J.S. Watson, trans., 1898) (ca. 370 B.C.E.). Christian theologians since Augustine have consistently held that “what is done unjustly, is done unlawfully.” St. Augustine, City of God, Book XIX, Ch. 21 (J. Healey trans. 1610) (ca. 415). Pope John Paul II adds that any violent result of a struggle against an oppressive government is morally attributable "to the aggressor whose action brought it about." Pope John Paul II, Evangelium Vitae, Sec. 55, Encyclical Letter on the Value and Inviolability of Human Life, Mar. 25, 1995.

Seems clear to me.

Shag: "Sounds like John has become constipated in his rehab"

Guess that when you get as old and senile as Shag, poopy jokes sound cool again.

Shag from Brookline said...
This comment has been removed by the author.
Shag from Brookline said...


Inspired by John Barron's listing with the classics that the Framers were familiar with, St. Augustine and other Christian theologians that followed as well as post-Framers John Paul II, I have this work-in-progress:

"HOLY TRINITY ORIGINALISM"

Here's the Abstract in graphic form:

FATHER
(Ed Meese)
!

!

!

! ——————-HOLY SPIRIT
(Randy Barnett)
!

!



SON
(Larry Solum)

I'm sort of an amateur at graphics styling, so this is a first draft.

Alas, John's reference to my "poopy jokes" suggests John's short term memory loss as he rehabs, as I had only responded to John's rapier wit displayed in his 4:57 PM comment: "Who gives a shit? You lost 5-4." Also, consider it was the very cool Framer James Madison who had referenced "well regulated" in his 2nd A. John, get on the john - or take a valium. You're bound to improve.

Shag from Brookline said...

As I read today's NYTimes Editorial "Mass Shootings Don’t Have to Be Inevitable," I thought of an earlier thread at this Blog when John Barron listed his classics that included Augustine and the "Austinians," where I teased John on whether these were the Texas "Austinians." In the Editorial, there are quotes of TX's Governor and Lieutenant Governor that might sound like our own John Barron's "Austinians."

***

And yet so many politicians continue to promote the wares of the gun industry. Two years ago, Gov. Greg Abbott of Texas tweeted “I’m embarrassed: Texas #2 in nation for new gun purchases, behind California. Let’s pick up the pace Texans. @NRA.” On Monday he said the problem was out of human hands.

“We have evil that occurs in this world,” Governor Abbott declared, as if from a pulpit, equating all manner of global terrorist attacks, including the murder of eight last week by a truck driver in Manhattan. When asked how the evil of gun violence can be overcome, he replied “you do that by working with God.” Texas’ attorney general, Ken Paxton, even envisioned “arming some of the parishioners or the congregation so that they can respond” if another massacre occurs.

***

John may be too young to remember the inspiration WW II song "Praise the Lord, and Pass the Ammunition, and We'll All Stay Free." And in John's repetitive listings of the religious classics, he omitted references to the Crusades.

John artfully dodged the draft by his own admission, preferring not to personally bear arms while other Americans did to fight tyranny. Now what might Framer James Madison think of John, or our current President with his bone spurs? Let's check the Federalist Papers.

John Barron said...

David: "Everyone has standing to state an opinion that a Supreme Court opinion was incorrectly decided."

But on what grounds? The LC position is that COTUS means whatever SCOTUS says it means. Full stop. Plessy was right because SCOTUS said so, and Brown was right because SCOTUS said so. Roma locuta est, causa finita est. "We are infallible because we are final." [Robert Jackson]

You can say--in your opinion--that Heller was bad policy, and that the 2Am is scarcely more than an anachronism, but the only way to amend COTUS is to pack the Court with your own slate of Platonic Guardians. You literally have no standard by which to judge.

John Barron said...

Shag: "John artfully dodged the draft by his own admission"

Huh? All I said was that I wasn't drafted. But even if I had emigrated to Canada for a time, what of it? Why should anyone knowingly become cannon fodder in a war of empire f/b/o our plutocrats?

Shag: "while other Americans did to fight tyranny [in Vietnam]."

ROTFLMAO! [Need a translation? Ask your grandkids.] You're not seriously going to try to defend the Vietnam War, are you, Shag? Let me break out the popcorn!

(Shag can't assail originalism on the merits, so he has to attack me ... but this move is beneath any self-respecting liberal. I'm not a Ted Nugent/Dick Cheney chicken-hawk, who never met a war he didn't admire from afar. I even opposed Afghanistan.)

But if you want to have at it, let's roll!


As for Texans, I lived there long enough to learn that a lot of those people are NUTZ! And if you are so unfamiliar with legal history as to not know who John Austin was, it is all on you, Shag. Google is your friend.

John Barron said...

Tragically, Shag has descended a little too far into his dotage. Once you pass 80, the faculties start failing....

The Founding Fathers of originalism included all of the Framers and the English jurists preceding them. "Men use a language calculated to express the idea they mean to convey." Oneale v. Thornton, 10 U.S. 53, 68 (1810) (per Marshall, C.J.). And when the words of a statute are unambiguous, "judicial inquiry is complete." Rubin v. United States, 449 U.S. 424, 430 (1981).

"Whenever there is some uncertainty about the meaning of a statute, it is prudent to examine its legislative history." Connecticut Nat. Bank v. Germain, 503 U.S. 249, 255 (1992) (Stevens, J., concurring). But originalism posits a disciplined and objective process by which this is done. You can't just take one Framer's quote out of context (as Shag did above); you have to consider the weight of the evidence. That is why we study the Annals, Elliot's, Farrand, the Federalist and the Anti-Fed responses, James Wilson's Lectures, and in some cases, even the Framers' correspondence. (Shag treats history as a Las Vegas buffet, where he only eats what he likes.)

In Heller, both Scalia and Breyer went full metal originalist, and in about 15% of their opinions, at least one of the Justices cite to the Federalist. While there are no true originalist judges, originalism is driving modern jurisprudence.

As for modern originalism, the intellectual heft was supplied more by men like Bork and Raoul Berger than political hacks like Meese. Solum and Barnett are making creditable contributions, but there are no patron saints. McGinnis, Pfander, Prakash, and Sachs all come to mind, but it is more of a collective chorus.

To me, the dispositive advantage of originalism is that it provides objective structure to judicial analysis. If the system is working as designed, you should achieve the same answer every time. And to do it right, you can't care who wins.

Yeah, we get it. Shag hates those icky gays-- er, I mean, guns. And I wouldn't be honest if I said that in my estimation, Greg Abbott wasn't totally bat-guano. But COTUS says what it says, and it is to be read in a principled way.

Shag from Brookline said...

So, Joh, your reference to "Austinians" was a mere typo?

As I recall, John, you said you dodged the draft. Check the Archives. Now it's possible you were outspoken back then about America's role in Vietnam. If so, good for you.

How am I attacking you? You mean through your own words? You seem to be of the view that SCOTUS is, and has been in the past, tyrannical with some of its decisions. I hope you are not intending to incite 2nd A absolutists to take action against that tyranny for that would confirm my opinion that you may believe in anarchy. The first comment in this thread was by John; it closed with:

"The 2Am was intended for times like these. See Silveira v. Lockyer, 328 F.3d 567, 568 (9th Cir. 2003) (Kozinski, J., dissenting from the denial of rehearing en banc). And although I am too old to plausibly take up arms, I acknowledge the Framers' wisdom in preserving that right. Remember, even one well-timed bullet can change the course of history."

John, you detailed in that comment, at length, the tyranny of "times like these." That's your opinion, to which you are entitled. While you claimed age disability for yourself to "take up arms," are you encouraging others to take action with your closing sentence? John, you are a TYRANNYSOREASS.

John Barron said...

Joe: "under the Doctrine of Originialism those who claim the right to bear arms is unlimited will restrict that argument to those arms that existed in 1789"

Got straw? Obviously, you have it in abundance.

It has long been an axiom of Anglo-American law that for every right, there must be a remedy, Ashby v. White [1703] 92 Eng.Rep. 126, 136 (K.B.), and to "take away all remedy for the enforcement of a right is to take away the right itself.” Poindexter v. Greenhow, 114 U.S. 270, 303 (1884). Revolutions kind-of need guns, and since cannons were in private hands during ours, one could make the argument that the RKBA includes Stinger missiles. IOW, reductio ad absurdum arguments cut both ways.

Shag from Brookline said...

John's sensitivities at 11:24 AM in response to my "HOLY TRINITY ORIGINALISM" graphic:

"As for modern originalism, the intellectual heft was supplied more by men like Bork and Raoul Berger than political hacks like Meese. Solum and Barnett are making creditable contributions, but there are no patron saints. McGinnis, Pfander, Prakash, and Sachs all come to mind, but it is more of a collective chorus. "

reminds me that The Originalism Blog (aka The Tower of Babble Originalism Blog), that frequently includes posts by/about some of John's list of "usual suspects," doesn't provide for comments. Perhaps it's because there is no uniform version of originalism that they agree upon. I recall back when I was a draftee post-Korea, pre-Vietnam on maneuvers in Central Louisiana (Operation Sagebrush?), we grunts got time off one night to go to the local township's downtown, with a grocery/gas station on one corner and Christian churches on the other three corners. One church was the !2th Baptist Church. I told a local that I was familiar with the Dudley Street Baptist Church and the Ruggles Street Baptist Church back in Boston but how come a 12th Baptist Church, why so many different versions? The local told me that when a Baptist preacher has issues, he starts a new Baptist Church. That's the history of originalism, which continues to evolve, with more than a tad of faith. So while all those Baptist Church versions may disagree with each other on various church matters, when any one is attacked by an outsider, all 12 Baptist Churches circle the wagons. And the various versions of originalism, including those that significantly clash with each other, circle the wagons when a non-originalist attacks the inconsistencies of the various versions of originalism.


Shag from Brookline said...

"Damnum Absque Injjuria!" The common law developed by Anglo-Saxon courts and brought to the Colonies and post-Revolution to the States and considered by SCOTUS resulted in SCOTUS' requirements of Standing, etc, presumably part of SCOTUS' tyranny claimed by John. What is the remedy for the right not to be subjected to tyranny? According to John [not the Biblical John], the 2nd A?

John Barron said...

Shag: "As I recall, John, you said you dodged the draft."

Check the record. The older you get, the more your faculties fail. "Dodging the draft" can be a simple as getting a high lottery number, but that is beside the point. How is your circumstantial ad hominem argument relevant to the discussion?

Shag: "You seem to be of the view that SCOTUS is, and has been in the past, tyrannical with some of its decisions."

With an abundance of record support, I might add. The definition of "tyranny" is not mine, but the unanimous view of Framers from Madison to Gerry. And if someone ran a sword through Harvie Wilkinson, Richard Posner would be my first defense witness (read his new novella). All wo/men have a “natural right of resistance and self-preservation [which may lawfully be exercised] when the sanctions of society and laws are found insufficient to restrain the violence of oppression.” 1 Blackstone, Commentaries at 144. Thomas Jefferson adds: "What country can preserve it's liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? let them take arms."

But you are a good little German, who agrees with Herr Himmler: "ordinary citizens don't need guns, as their having guns doesn't serve the state." While I would much rather fix the system than blow it up, "The history of the present King [John I of Roberts and his ignoble Court] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over [us]. To prove this, let Facts be submitted to a candid world." DoI, para. 2.

Exactly whatever happened to the Seventh Amendment jury trial, Shag? It "is the most transcendent privilege which any subject can enjoy, of wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals." 4 Blackstone, Commentaries at 379. It “is a fundamental law, made sacred by the Constitution, and cannot be legislated away." Vanhorne's Lessee v. Dorrance, 2 U.S. 304 (D.Pa. 1795) (Paterson, J, riding circuit). According to Framer (and, signatory to the DoI) Elbridge Gerry, its purpose was to “guard agst. corrupt Judges.” 2 Farrand, Records of the Federal Convention of 1787, 587 (1909). There is no contrary authority.

And what was the signal feature of a 7Am jury trial? CJ Jay explains:

"It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumable, that the court are the best judges of law. But still both objects are lawfully, within your power of decision."

"[D]epriving us in many cases, of the benefits of Trial by Jury" was a casus belli for the American Revolution. Haven't our robed masters done the same thing as King George did to the Colonists?

It is amazing how patient men can be when the other guy's ox is being gored. But I think this is a discussion we need to have, before actual blood is spilled. As JFK put it, those "who make peaceful revolution impossible will make violent revolution inevitable."

John Barron said...

Shag: "How am I attacking you?"

You quite obviously need a refresher course in basic logic: https://infidels.org/library/modern/mathew/logic.html

Shag from Brookline said...

Is John an "Anglophile Originalist"? What was that Revolution all about?

John Barron said...

Shag: "reminds me that The Originalism Blog (aka The Tower of Babble Originalism Blog), that frequently includes posts by/about some of John's list of "usual suspects," doesn't provide for comments."

Explain that foul to "Bugsy" Segall, who blocks knowledgeable opponents from his Twitter feed. :)

LawProfs tend to have a Boston Brahmin attitude about them: "Here's to dear old Boston, The home of the bean and the cod, Where Lowells speak only to Cabots, And Cabots speak only to God." They might not want to have to deal with the brain damage of policing the comments section. Some LC profs will correspond with me, and some originalists (e.g., Prakash) will not.

But let's start talking about originalism, shall we?


Shag: "The local told me that when a Baptist preacher has issues, he starts a new Baptist Church. That's the history of originalism, which continues to evolve, with more than a tad of faith."

Again, you are committing the fallacy of letting the perfect be the enemy of the good. There is ZERO faith in modern originalism, as it is a process. I have explained the process to you. We don't mind entertaining critiques, as the common goal is to develop the best process attainable.

Why do I advocate originalism? Because it takes excessive discretion out of the hands of the judiciary.

While an independent and competent judiciary is essential to any functioning society, as Gibbon observed in his magnum opus on the Roman Empire, “the discretion of the judge is the first engine of tyranny.” 4 E. Gibbon, The History of the Decline and Fall of the Roman Empire 153 (6th Am. Ed. 1830) (ca. 1780).

Whereas the Constitution furnished the prerequisites for an independent and competent judiciary, federal judges have been relentlessly rewriting it to reflect their preferences for two centuries, to the point where it has “design[ed] a Constitution for a country I [Justice Scalia] do not recognize.” Board of County Comm’rs. v. Umbehr, 518 U.S. 668, 711 (1996) (Scalia, J., dissenting). More to the point, our judiciary has written a constitution that no sentient human being would ever voluntarily consent to. It declares—with nary a whiff of subtlety—that our former Republic is a regime governed by a "judicial oligarchy," Robert H. Bork, Our Judicial Oligarchy, First Things 67 (Nov. 1996) at 21, brought about by what he accurately described as a "judicial coup d’ĂȘtat." Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges 13 (AEI Press, 2003). In short, if judges are free to refuse to apply the law when its objective application leads to results they personally detest, we no longer have “inalienable rights” but rather, a mere tenancy-at-will in our liberties.

That is constitutional Armageddon.

The Living Constitution CREATED that problem. It cannot solve it.

John Barron said...

Shag: "What is the remedy for the right not to be subjected to tyranny? According to John [not the Biblical John], the 2nd A?"

There were plenty of remedies in the Framers' COTUS, and that was my entire point. Our judges have disabled any and all mechanisms for curbing their abuses, and many of those we could use against the rich and powerful. Imagine a FCPA prosecution against Sheldon Adelson, and a mail fraud case against Donald Trump for Trump U.

Every other advanced nation on the planet has a mechanism for forcing the hand of the corrupt prosecutor.

John Barron said...

Shag: "What was that Revolution all about?"

“[W]hat [the people] understood when they ratified this Constitution was that they were affirming the rights of Englishmen.” Antonin Scalia, Constitutional Relevance of Foreign Court Decisions (C-SPAN television broadcast Jan. 13, 2005) at http://www.c-spanvideo.org/program/185122-1

Do you disagree and if so, on what evidentiary basis?

John Barron said...

Shag: "his 4:57 PM comment: "Who gives a shit?"

You have to be pretty damn senile to not recall that it was a way of saying "Who cares?" (I could have said "Who gives a flying fuck," which might have precipitated bad United Airlines jokes.)

Shag from Brookline said...

John's 9:45 AM comment included this:

"But if you want to have at it, let's roll!"

Like "Old Man River," John keeps rolling along. Or was there urban legend code in that message? John, you rely upon a Scalia quote, a man you challenged as a hypocrite. Scalia's "history" in Heller (5-4, 2008) has been well demonstrated to be inaccurate. The Devil attempting to quote Scriptures comes to mind.

And, John, your 11:57 AM cockamamie claim of "That is constitutional Armageddon. " is over the top even for you. Perhaps some of the "usual suspects" originalists you favor might agree with you via a H/T at The Originalism Blog..

As to "bad United Airlines jokes" that might have been precipitated if you had chosen a different vulgar phrase, with your double knee replacements, surely you would be unable to. But who cares?

\

John Barron said...

Shag: "John, you rely upon a Scalia quote"

I asked a simple question: "Do you disagree and if so, on what evidentiary basis?"

Shag: "Scalia's "history" in Heller (5-4, 2008) has been well demonstrated to be inaccurate"

One day, you might actually back up one of your claims. But then again, given the actuarial tables....

As has been shown already, the individual right has been traced to Blackstone, and is explicitly acknowledged in state constitutions. You will find them in natural law, as well ... but you choose willful ignorance.

Shag: "The Devil attempting to quote Scriptures"

Easy to do, and with devastating effect.

Shag: "That is constitutional Armageddon." is over the top even for you."

If anything, I am understating the case ... but that calls for a separate post.

John Barron said...

Shag: "That is constitutional Armageddon." is over the top even for you."

How so? This goes all the back to Coke, which you more likely snorted than read. The only rights you have are the ones you can enforce at need, and if a judge can slam the courthouse door in your face at will, what rights do you have? That's right: NONE.

Remember Dred Scott? Blyew? Are you really that senile, or did you not need to know these cases in your traffic law practice?

John Roberts has a gift for self-satire that even Stalin would envy:

"More than two hundred years after the American Revolution, much of the world remains subject to judicial systems that provide doubtful opportunities for challenging government action as contrary to law, or receiving a fair adjudication of criminal charges, or securing a fair remedy for wrongful injury, or protecting rights in property, or obtaining an impartial resolution of a commercial dispute."

Our dirtiest little secret is that in ‘Murrika, you get about as much justice as you can afford, and most Americans can’t pay the price of admission.

According to retired District Judge Nancy Gertner, judges are quite literally trained on “how you get rid of [pro se civil rights] cases.” Nancy Gertner (blog reply), Civil jury trials, summary judgment, employment cases and the Northern District of Georgia study–preliminary observations, Hercules and the Umpire (blog of Senior Judge Kopf of the District of Nebraska), Oct. 22, 2013 (copy on file). Judges, prosecutors, and the government hide behind an impenetrable redoubt of absolute immunity. Treaties such as the ICCPR are unenforceable in our courts (they are in every other court of consequence in the world), even though COTUS makes them the supreme Law of the Land. Especially in pro se civil rights cases, federal judges won't even bother reading your briefs. E.g., Richard G. Kopf, Top ten legal writing hints when the audience is a cranky federal trial judge, Hercules and the Umpire (blog), Jun. 20, 2013.

As Posner recently confIrmed, a poor man has exactly no chance of receIvIng a competent appellate revIew. And as appellate judges all over the country have publicly admitted, appellate courts have become de facto certiorari courts, wherein over 90% of federal appeals are decided in five minutes or less. See e.g., Alex Kozinski, Letter (to Judge Samuel A. Alito, Jr.), Jan. 16, 2004 at 5 (150 rulings made in a two-day session in the Ninth Circuit); Perfunctory Justice; Overloaded Federal Judges Increasingly Are Resorting to One-Word Rulings, Des Moines Register, Mar. 26, 1999, at 12 (fifty appeals decided in two hours in Eighth Circuit); William Graberson, Caseload Forcing Two-Level System for U.S. Appeals, N.Y. Times, Mar. 14, 1999 (Judge Posner admits that most “judges, myself included, are not nearly as careful in dealing with unpublished decisions''); Erickson v. Pardus (Tenth Circuit); see also, Sarah Ricks, The Perils of Unpublished Non-Precedential Federal Appellate Opinions: A Case Study of the Substantive Due Process State-Created Danger Doctrine in One Circuit, 81 Wash. L. Rev. 217, 269 (2006) (“THE COURT: At a conference of the Third Circuit, the Court of Appeals defended their unpublished opinions on the ground that they’re not well reasoned, they don’t give them much thought.”).

With that foundation laid, I ask: Does our bloody abortion of a judicial system provide all Americans adequate "opportunities for challenging government action as contrary to law, or receiving a fair adjudication of criminal charges, or securing a fair remedy for wrongful injury"?

In my view, our cruel joke of a judicial system falls so far short of the minimum that any reasonable citizen would find acceptable that we literally ARE in a constitutional crisis. Our government has failed to fulfill even its most basic guarantee.

Joe said...

Trump might have missed my point but with all that verbosity maybe it was found.

Shag from Brookline said...

Does it go back to the old Coke or perhaps the New Coke? Or to the Koch Bros.?

So the judicial system is a cruel joke? Is the Executive Branch also a cruel joke" Is the Legislative Branch also a cruel joke? Is the joke on We, the People? And what is that "most basic guarantee" that government has failed to fulfill? And was America ever great during John's lifetime?

John Barron said...

Shag: "So the judicial system is a cruel joke?"

Ask its victims. But let's play your game: Guns aren't a problem because they don"t affect me.


Shag: "And what is that "most basic guarantee" that government has failed to fulfill?"

Has your oxygen been cut off again?

The right to “equal justice under law,” explicitly acknowledged in both the first and final iterations of Magna Carta. As Justice Moody famously observed, "[t]he right to
sue and defend in the courts is the alternative of force … the right conservative of all other rights." Chambers v. Baltimore & Ohio R. Co., 207 U.S. 142, 148 (1907). But you have to be senile or have ADD to not know that already.

Citizen access to federal courts must be “adequate, effective, and meaningful,” Bounds v. Smith, 430 U.S. 817, 822 (1977). Courts "are bound to proceed to judgment, and to afford redress to suitors before them, in every case to which their jurisdiction extends," Hyde v. Stone, 61 U.S. 170, 176 (1857), as the existence of jurisdiction “creates an implication of duty to exercise it.” Mondou v. New York, N.H. & H. R. Co., 223 U.S. 1, 58 (1912). Federal judges are throwing cases out without cause, and that is a felony.


Shag: "Is the Legislative Branch also a cruel joke?"

Anyone here think it isn't?


Shag: "Is the Executive Branch also a cruel joke"

The current resident of 1600 Penn is one Donald John Trump. Need slides?


Shag: "And was America ever great during John's lifetime?"

We've been better. Things went tits-up when Reagan was elected.


Shag: "Does it go back to the old Coke"

Sir Edward.

Shag from Brookline said...

John's profile is filling in with his 7:48 PM Al Pacino screed. The post is on the problem with guns in America. John is an unabashed 2nd A gun nut, a strong believer in the "insurrectionist" view of the 2nd A. All three branches of the federal government are cruel jokes. Consider John's:

***

Shag: "And was America ever great during John's lifetime?"

We've been better. Things went tits-up when Reagan was elected.

***

So America has never been great during John's lifetime, at least for John. Misuse of guns arose early in Reagan's first term. Regan gave us Ed Meese, the Father of Holy Trinity Originalism, who John disparages. Reagan gave us tax cuts, followed by several tax increases to keep the government running. Reagan, with the help of a Democrat Congress, came up with the 1986 tax reform act. In the course of that bipartisan effort the Reagan Administration was surreptitiously engaging in what became known as Iran-Contra. Reagan, then younger than I am today, played the senility card. Oh, and who can forget "Just say 'NO' to drugs." For John did those tits sag as Reagan road off into the sunset to cut brush on his ranch?

I'm working on the inconsistencies, hypocrisies in preparing John's profile, which obviously is not one in courage with his draft dodging and obvious personal fear of guns, inciting others to take up his "insurrectionist" view of the 2nd A to provide equal justice for all. Here's an example:

***

Shag: "So the judicial system is a cruel joke?"

Ask its victims. But let's play your game: Guns aren't a problem because they don"t affect me.

***

My game? Guns are a problem because of 2nd A gun nuts like John. This post is about gun problems and the 2nd A. John supports the "insurrectionist" view of the 2nd A; I don't. And Heller (5-4, 2008) was wrong. Guns have infected America and affect the entire nation. John's solution is that guns will solve America's problems.

Today is a day to celebrate some return to democracy post-Trump. More John profiling later. But John doesn't do a bad Al Pacino. Let's see if I can download " ... And Justice for All." Meantime, John can continue with his Sir Edward Coke-sniffing.

John Barron said...

Shag: "I'm working on the inconsistencies, hypocrisies in preparing John's profile, which obviously is not one in courage with his draft dodging and obvious personal fear of guns"

Your senility prevents you from thinking rationally ... and the lack of oxygen to your brain seems to have rendered you incapable of processing facts.

Not being drafted ≠ draft dodging.
Not having interest in guns ≠ fear of guns.
Rational reading of COTUS ≠ being a "gun nut."

If I get to make up the facts, I can convict you of the assassination of JFK.


Shag: "Reagan, then younger than I am today, played the senility card."

Never mind that he died of Alzheimer's. (Facts matter to the rest of us.) But the real sin of the Nixon and Reagan gangs was in their conducting treasonous negotiations with North Vietnam and Iran.


Shag: "So America has never been great during John's lifetime"

I'm not one for abusing superlatives. The arc was strongly in the right direction during the '60s in particular and things were good enough for me, but they weren't close to being great for women and POC. America's "greatness" is measured by how we treat the least among us.

Back in the day, the equilibrium between labor and capital translated into relative prosperity for all. But the Reagan Revolution wrecked the country, and we are reaping its foul harvest.


Shag: "John's solution is that guns will solve America's problems."

Only a return to the rule of law will solve our problems. And while peaceful change is always preferable to the use of force, one despairs as to those prospects. People like Shag have their heads so far up their own asses that they can't see the obvious. If the only way back requires force, it does ... but that doesn't mean that I don't lament that prospect.


Shag: "All three branches of the federal government are cruel jokes."

At least wrt the courts, Shag has gone noseblind to injustice. Posner's indictment of the system should be a wake-up call for everyone in the Bar, but if it doesn't affect Shag, it's copacetic.

I went into law to fight injustice. I'm not sure why Shag did it.

The difference between us is that unlike Shag, I appreciate the timeless wisdom of the past. For instance, Plutarch warned us about the perils of Reaganomics. And can anyone reasonably cognizant of history dispute the brilliance of Jefferson: "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."

Let me give you a clue, you senile old fart: Kim Jong-un isn't giving up power any time soon. When people without guns go up against people with guns, you don't need slides to figure out who will lose. And the American Revolution is conclusive evidence that the Framers harbored an "insurrectionist" view.

Shag from Brookline said...

Hohn informs us:

"I went into law to fight injustice."

With his Al Pacino schtick? John stressed his C.P.A. and LLM in taxation crews in earlier threads puffing up his resume. It seems he has given up fighting injustice other than inciting others to take the 2nd A into their own hands as John is reluctant to do so himself. Does the word coward flow from draft dodging, fearing guns while inciting others to engage in the "insurrectionist" view of the 2nd A? Not necessarily, but I wouldn't rule it out; but clearly John is a gun nut.. John comes back to a Jefferson quote from time to time to support his "insurrectionist" view of the 2nd A. But keep in mind that Jefferson was not one of the Framers of the Constitution or of the bill of rights. And Madison, in coming up with the 2nd A language rejected the anti-federalist proposal closest to the "insurrectionist" view that John draws from the 2nd A. John closes his latest rant with:

"And the American Revolution is conclusive evidence that the Framers harbored an "insurrectionist" view."

This is not demonstrated in either the 1787 Constitution or the bill of rights that followed a couple of years later. There were a few, only a few, anti-federalists in the course of ratification of the 1787 Constitution who pushed for gun rights.

So perhaps I should more accurately refer to John as an "ANTI-FEDERALIST ORIGINALIST." The anti=federalists lost, get over it , John.

Another discrepancy is disclosed by John's:

" ... Plutarch warned us about the perils of Reaganomics."

Was it Plutarch who referenced, presciently, VOODOO ECONOMICS? What was the field of economics like in Plutarch's days? What economic models did Plutarch use with his abacus?

But I digress. Recall John's reference that during his lifetime, while America was not great, things were better with Reagan. Now, John crosses swords with the late St. Reagan. [Note: John never told us just how he crossed swords with Trump.]

It should be kept in mind that those who heed John and Jefferson's "Let them take arms." but fail are mere insurrectionists, criminals, or as Trump would say: 'LOSERS!" Maybe John is not personally prepared to heed Jefferson for fear of becoming a "LOSER." John, you're already there.

Shag from Brookline said...

Some might enjoy Bix Beiderbecke's prescient tribute to the VA elections yesterday:

https://www.youtube.com/watch?v=oW7YYt0F-K4