Supreme Blunders

KIYOSHI HIRABAYASHI v. UNITED STATES

“On December 8, 1941, one day after the bombing of Pearl Harbor by a Japanese air force, Congress declared war against Japan. 55 Stat. 795, 50 U.S.C.A.Appendix, preceding section 1 note. On February 19, 1942, the President promulgated Executive Order No. 9066. 7 Federal Register 1407. The Order recited that 'the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (50 U.S.C.A. 104)'. By virtue of the authority vested [320 U.S. 81, 86]   in him as President and as Commander in Chief of the Army and Navy, the President purported to 'authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.' ”

It seems to me that this executive order exceeds federal authority both violating the rights of the States and the People.

“Beginning on March 24, 1942, the military commander issued a series of Civilian Exclusion Orders pursuant to the provisions of Public Proclamation No. 1. Each such order related to a specified area within the territory of his command. The order applicable to appellant was Civilian Exclusion Order No. 57 of May 10, 1942. 7 Federal Register 3725. It directed that from and after 12:00 noon, May 16, 1942, all persons of Japanese ancestry, both alien and non-alien, be excluded from a specified portion of Military Area No. 1 in Seattle, including appellant's place of residence, [320 U.S. 81, 89]   and it required a member of each family, and each individual living alone, affected by the order to report on May 11 or May 12 to a designated Civil Control Station in Seattle. Meanwhile the military commander had issued Public Proclamation No. 4 of March 27, 1942, which recited the necessity of providing for the orderly evacuation and resettlement of Japanese within the area, and prohibited all alien Japanese and all persons of Japanese ancestry from leaving the military area until future orders should permit.”

Here is the end result of delegating power to those not constitutionally endowed to exercise it.

“Appellant does not deny that he knowingly failed to obey the curfew order as charged in the second count of the indictment, or that the order was authorized by the terms of Executive Order No. 9066, or that the challenged Act of Congress purports to punish with criminal penalties disobedience of such an order. His contentions are only that Congress unconstitutionally delegated its legislative power to the military commander by authorizing him to impose the challenged regulation, and that, even if the regulation were in other respects lawfully authorized, the Fifth Amendment prohibits the discrimination made between citizens of Japanese descent and those of other ancestry.”

Here the appellant makes a very restrained protest to the criminalizing of his life, liberty, and property. He does not claim that congress violated his 9^th and 10^th Amendment rights which they did.

“Executive Order No. 9066, promulgated in time of war for the declared purpose of prosecuting the war by protecting national defense resources from sabotage and espionage, and the Act of March 21, 1942, ratifying and confirming the Executive Order, were each an exercise of the power to wage war conferred on the Congress and on the President, as Commander in Chief of the armed forces, by Articles I and II of the Constitution. See Ex parte Quirin, 317 U.S. 1, 25 , 26 S., 63 S.Ct. 2, 9, 10, 87 L.Ed. --. We have no occasion to consider whether the President, acting alone, could lawfully have made the curfew order in question, or have authorized others to make it. For the President's action has the support of the Act of Congress, and we are immediately concerned with the question whether it is within the constitutional power of the national government, through the joint action of Congress and the Executive, to impose this restriction as an emergency war measure. The exercise of that power here involves no question of martial law or trial by military tribunal. Cf. Ex parte Milligan, 4 Wall. 2; Ex parte Quirin, supra. Appellant has been [320 U.S. 81, 93]   tried and convicted in the civil courts and has been subjected to penalties prescribed by Congress for the acts committed.”

“The war power of the national government is 'the power to wage war successfully'. See Charles Evans Hughes, War Powers Under the Constitution, 42 A.B.A.Rep. 232, 238.”

Here the court is taking a Book to be a definitive interpretation of the constitution.

“It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war. Prize Cases, supra; Miller v. United States, 11 Wall. 268, 303, 314; Stewart v. Kahn, 11 Wall. 493, 506, 507; Selective Draft Law Cases (Arver v. United States), 245 U.S. 366 , 38 S.Ct. 159, L.R.A.1918C, 361, Ann.Cas.1918B, 856; McKinley v. United States, 249 U.S. 397 , 39 S.Ct. 324; United States v. Macintosh, 283 U.S. 605, 622 , 623 S., 51 S.Ct. 570, 574.”

At least here we see some court precedence.

ARVER v. U.S. is a case affirming the draft and involuntary military service its core assertion is “This however but challenges the existence of all power, for a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertion is in no substantial sense a power.” this contention give preference to government power over the rights of citizen where ever there might be in conflict. The case also contains this flippant dismissal of the 13^th amendment “Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.”.

MCKINLEY v. U.S. is a case affirming the right of congress to control during war time the activities in the areas surrounding a military base. In this case the activity is prostitution but the grant of power as always is not confined to the circumstances of this case. It cites no authority or rational other than the desirability of the outcome to justify federal military control over state lands and private actions.

 

U.S. v. MACINTOSH is a case dealing with an immigrants unwillingness to swear that he will fight in unjust wars. I think the court decided rightly on the question before it because it is within congress's power to provide for the requirements of naturalization but not because the government may enslave its people to fight for it. “For its very nature the war power, when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law ” This a rational position as the constitution recognizes the rights of the people and the powers of the states both should I believe limit the war powers of the federal government. “To the end that war may not result in defeat, freedom of speech may, by act of Congress, be curtailed or denied so that the morale of the people and the spirit of the army may not be broken by seditious utterances; freedom of the press curtailed to preserve our military plans and movements from the knowledge of the enemy; deserters and spies put to death without indictment or trial by jury; ships and supplies requisitioned; property of alien enemies, theretofore under the protection of the Constitution, seized without process and converted to the public use without compensation and without due process of law in the ordinary sense of that term; prices of food and other necessities of life fixed or regulated; railways taken over and operated by the government; and other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.” Here the court repudiates the limits set by the constitution. It ignores the strong example set by 5^th amendment's explicit exemption of “cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger” from the right to a Grand Jury. Since nothing in the constitution allows the government to act beyond its bounds in times of war those bounds should be inviolate. “No other conclusion is compatible with the well-nigh limitless extent of the war powers as above illustrated, which include, by necessary implication, the power, in the last extremity, to compel the armed service of any citizen in the land, without regard to his objections or his views in respect of the jutice or morality of the particular war or of war in general.” Limitless power of the government is anathema to our system of government and our rights as free people.

“Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it.”

The presumption here that if the government is granted the any sort of power of any sort of thing it may exercise that power by any means it pleases without any regard for any limitations placed on it or any right, privileges, or immunities of the people which it may violate.

“Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of warmaking, it is not for any court to sit in review of the wisdom of their action or substitute it judgment for theirs.”

Here the court demures from it place in our system of government. Leaving the citizens without any recourse for redress of the wrongs done to them.

“The challenged orders were defense measures for the avowed purpose of safeguarding the military area in question, at a time of threatened air raids and invasion by the Japanese forces, from the danger of sabotage and espionage.”

Here the court deems the lands of the states and the homes and property of the people a “military area” thereby stripping from it the rights it might have held under a more accurate and proper description. No military action had yet happened nor was any enemy present the mere threat of possible danger was sufficient to transfer the lands of sovereign States into the control of the military.

“The alternative which appellant insists must be accepted is for the military authorities to impose the curfew on all citizens within the military area, or on none. In a case of threatened danger requiring prompt action, it is a choice between inflicting obviously needless hardship on the many, or sitting passive and unresisting in the presence of the threat. We think that constitutional government, in time of war, is not so powerless and does not compel so hard a choice if those charged with the responsibility of our national defense have reasonable ground for believing that the threat is real.”

Here the court defends the capricious application of measures against a subset of citizens as defined by their ethnicity. It claims that it may violate the rights of some citizens to reduce the hardship on others.

The court then presents a parade of horrors seeking to establish citizens of japanese ancestry as a danger to the war effort.

“The restrictions, both practical and legal, affecting the privileges and opportunities afforded to persons of Japanese extraction residing in the United States, have been sources of irritation and may well have tended to increase their isolation, and in many instances their attachments to Japan and its institutions.”

Here discrimination and abuse is justified by the fact that they have been subjected to abuse and discrimination. While this could be a motivator it is tautology at its worst when applied as policy.

“Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war- making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.”

Here is a justification for the punishment and oppression of a group because of the potential actions of some of its members. This is an unacceptable violation of the right of US citizens. It punishes for acts that may or may not be committed as well as punishing those not involved with the crimes.

“Appellant does not deny that, given the danger, a curfew was an appropriate measure against sabotage. It is an obvious protection against the perpetration of sabotage most readily committed during the hours of darkness. If it was an appropriate exercise of the war power its validity is not impaired because it has restricted the citizen's liberty. ”

He may not but I believe that it is an action which exceeds the powers granted to the federal government and would require local or state action to implement. Again the court asserts that the powers of the government trump the rights of the citizens and the limits of the constitution.

“But appellant insists that the exercise of the power is inappropriate and unconstitutional because it discriminates against citizens of Japanese ancestry, in violation of the Fifth Amendment. The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. Detroit Bank v. United States, 317 U.S. 329, 337 , 338 S., 63 S.Ct. 297, 301, 87 L.Ed. --, and cases cited. Congress may hit at a particular danger where it is seen, without providing for others which are not so evident or so urgent. Keokee Consol. Coke Co. v. Taylor, 234 U.S. 224, 227 , 34 S.Ct. 856.”

“No person shall … be deprived of life, liberty, or property, without due process of law” that people were deprived of liberty the court does not deny. It uses Detroit Bank v. United States as justification for congress's ability to pass laws which do not afford equal protection. “Unlike the Fourteenth Amendment the Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress.” while this does justify congress's targeting of specific racial groups it doesn't justify the actions taken by congress. On a side note add an equal protection amendment to the constitution would seem to be worthwhile.

“Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection. Yick Wo v. Hopkins, 118 U.S. 356 , 6 S.Ct. 1064; Yu Cong Eng v. Trinidad, 271 U.S. 500 , 46 S.Ct. 619; Hill v. Texas, 316 U.S. 400 , 62 S.Ct. 1159. We may assume that these considerations would be controlling here were it not for the fact that the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas. Because racial discriminations are in most circumstances irrelevant and therefore prohibited, it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures for our national defense and for the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different category from others.”

Here the court recognizes the unacceptable nature of racial discrimination but justifies it as it justifies the violation of citizens rights namely the need of the government to act without limitations during war or emergencies or other times it feels it ought to.

“Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew.”

Here the court seems to think that there is some virtue or justification in the fact that there was a rational basis for the violation of the rights of citizens and the over reach of federal power. As if a power gain by the government in reasonable circumstances would not be use in unreasonable ones.

“What we have said also disposes of the contention that the curfew order involved an unlawful delegation by Congress of its legislative power. The mandate of the Constitution, Art. 1, 1, that all legislative power granted 'shall be vested in a Congress' has never been thought, even in the administration of civil affairs, to preclude Congress from resorting to the aid of executive or administrative officers in determining by findings whether the facts are such as to call for the application of previously adopted legislative standards or definitions of Congressional policy.”

This I think is a weak but correct argument that congress can delegate the exercise of its powers which I belief is allowed by the necessary and proper clause.

“The Constitution as a continuously operating charter of government does not demand the impossible or the impractical.”

It is demands and allowances are simple and should not be judged on the ease or difficulty with which the government must act to remain within them. That it is difficult to accomplish certain objectives within the powers and limits even to the government is not a grant for the government to act beyond those power and limitations because that would make achieving its goals easier. It the government can not accomplish its desires within the bounds of the constitution it must abide with its inability or change the constitution which binds it. Do to otherwise is to see ourselves or our follow citizens sent to the camps (TOYOSABURO KOREMATSU v. UNITED STATES).

Supreme Blunders

ROTH v. UNITED STATES

Here the supreme court is hearing constitutional objections to 18 U.S.C. 1461 and 311 of West's California Penal Code Ann on 1^rst amendment grounds. Both statues criminalize speech on obscenity grounds.

“The constitutionality of a criminal obscenity statute is the question in each of these cases. In Roth, the primary constitutional question is whether the federal obscenity statute 1 violates the provision of the First Amendment that "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." In Alberts, the primary constitutional question is whether the obscenity provisions of the California Penal Code 2 invade the freedoms of speech and press as they may be incorporated in [354 U.S. 476, 480]   the liberty protected from state action by the Due Process Clause of the Fourteenth Amendment.

Other constitutional questions are: whether these statutes violate due process, 3 because too vague to support conviction for crime; whether power to punish speech and press offensive to decency and morality is in the States alone, so that the federal obscenity statute violates the Ninth and Tenth Amendments (raised in Roth); and whether Congress, by enacting the federal obscenity statute, under the power delegated by Art. I, 8, cl. 7, to establish post offices and post roads, pre-empted the regulation of the subject matter (raised in Alberts).”

Justice Brennan outlines constitutional question facing the court.

“The dispositive question is whether obscenity is utterance within the area of protected speech and press. 8 Although this is the first time the question has been squarely presented to this Court, either under the First Amendment or under the Fourteenth Amendment, expressions found in numerous opinions indicate that this Court has always assumed that obscenity is not protected by the freedoms of speech and press. Ex parte Jackson, 96 U.S. 727, 736 -737; United States v. Chase, 135 U.S. 255, 261 ; Robertson v. Baldwin, 165 U.S. 275, 281 ; Public Clearing House v. Coyne, 194 U.S. 497, 508 ; Hoke v. United States, 227 U.S. 308, 322 ; Near v. Minnesota, 283 U.S. 697, 716 ; Chaplinsky v. New Hampshire, 315 U.S. 568, 571 -572; Hannegan v. Esquire, Inc., 327 U.S. 146, 158 ; Winters v. New York, 333 U.S. 507, 510 ; Beauharnais v. Illinois, 343 U.S. 250, 266 . 9   [354 U.S. 476, 482]”

Here the court seeks to establish precedent. In Ex parte Jackson states “In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people; but to refuse its facilities for the distribution of matter deemed injurious to the public morals.” but this statement is add odds with its strong endorsement of the 1^rst and 4^th Amendment rights. I believe that it logical rests on a continuation of the courts recognition of the right of each States to control speech and the press within its bounds and the necessity for Congress to have the power to prevent the mail service from abridging that right. I believe that the 14^th amendment removes the rights of States to control speech thus removing the avenue for any content based regulation of the mail.

United States v. Chase does state “We think that its purpose was to purge the mails of obscene and indecent matter as far as was consistent with the rights reserved to the people, and with a due regard to the security of private correspondence from examination.” and decides that a federal obscenity statue does not encompass letters.

Robertson v. Baldwin deals with criminal punishment and forced servitude for deserting sailor but does in it litany of exception to the rights granted by the constitution say “Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation”. The court attempts to create a doctrine where any historically permitted practices are by their historic nature judge not to be infringements upon the any rights granted by the constitution. “The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the "Bill of Rights," were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. ” This reasoning is devious and dangerous as it in effect prevents injunctions against historic abuses and wrongs. It could if the court was willing be used to justify black slavery as Africans were historically exempted from equal protection and historically owned and employed without their consent so logically the 13^th, 14^th, and 15^th amendments do not apply to them but rather merely recognize the rights of those historically in possession them.

Public Clearing House v. Coyne states in regard to laws preventing the dissemination among its citizens of information of a character calculated to debauch the public morality “The constitutionality of this law we believe has never been attacked.” but as we can see this is not the case. It also states “Many, if not most, of the matters presented to these departments require for their proper solution the judgment or discretion of the head of the department, and in many cases, notably those connected with the disposition of the public lands, the action of the department is accepted as final by the courts, and even when involving questions of law this action is attended by a strong presumption of its correctness.” in logical construction that severely limits all citizens rights petition for redress and to due process.

Hoke v. United States here the court states “Our dual form of government has its perplexities, state and nation having different spheres of jurisdiction, as we have said; but it must be kept in mind that we are one people; and the powers reserved to the states and those conferred on the nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral. This is the effect of the decisions; and surely, if the facility of interstate transportation can be taken away from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle or persons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to and the enslavement in prostitution and debauchery of women, and, more insistently, of girls.”. This seems to be a commerce power augment. This may in fact be legitimate justification for a prohibition on the interstate dissemination of obscenities, at least those transmitted as a part of commerce rather than mere speech. However this cases dismissal of the rights of citizens “It is said that it is the right and privilege of a person to move between states, and that such being the right, another cannot be made guilty of the crime of inducing or assisting or aiding in the exercise of it” is troubling when it could have made a distinction between the right to move between states and the right to induce another to excise their rights in furtherance of commercial interests. “Of course it will be said that womem are not articles of merchandise, but this does not affect the analogy of the cases; the substance of the congressional power is the same, only the manner of its exercise must be accommodated to the difference in its objects. It is misleading to say that men and women have rights. Their rights cannot fortify or sanction their wrongs;” This logic is troubling as it allows rights to be curtailed solely on the basis of that a law may make their excise illegal.

In Near v. Minnesota one violation of civil rights is used to justify another “No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops. 6 On similar grounds, the primary requirements of decency may be enforced against obscene publications. The security of the community life may be protected against incitements to acts of violence and the overthrow by force of orderly government. The constitutional guaranty of free speech does not 'protect a man from an injunction against uttering words that may have all the effect of frce (sic). Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 139 , 31 S. Ct. 492, 34 L. R. A. (N. S.)” Here the prohibitions on obscene speech begin to expanded beyond their conveyance through the mail. The court does correctly stand against the imposition of prior restraint and censorship at question in the case arising from a particularly oppressive law. “The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with offical misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.”

Chaplinsky v. New Hampshire “There are certain well-defined and narrowly limited classes of speech, the prevention [315 U.S. 568, 572]   and punishment of which has never been thought to raise any Constitutional problem. 3 These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words-those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. 4 It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Here the court defends a law which says 'No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name, nor make any noise or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent him from pursuing his lawful business or occupation.' and upholds a conviction on the basis of these words 'You are a God damned racketeer' and 'a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists'. That any government should have the authority to prohibit speech on basis of its annoying nature is to give it the power to control all speech of any form or content. The prohibition on the use of speech to prevent another from pursuing his lawful business or occupation seems to me to be the only reasonable part of this law as it is in infringement upon the rights of another. Though I am willing to concede that the use of speech as a means of abuse may be a legitimate offense.

Hannegan v. Esquire, Inc “But a requirement that literature or art conform to some norm prescribed by an official smacks of an ideology foreign to our system. The basic values implicit in the requirements of the Fourth condition can be served only by uncensored distribution of literature. From the multitude of competing offerings the public will pick and choose. What seems to one to be trash may have for others fleeting or even enduring values. But to withdraw the second-class rate from this publication today because its contents seemed to one official not good for the public would sanction withdrawal of the second- class rate tomorrow from another periodical whose social or economic views seemed harmful to another official. The validity of the obscenity laws is recognition that the mails may not be used to satisfy all tastes, no matter how perverted. But Congress has left the Postmaster General with no power to prescribed standards for the literature or the art which a mailable periodical disseminates.” not a strong endorsement of censorship.

Winters v. New York “We recognize the importance of the exercise of a state's police power to minimize all incentives to crime, particularly in the field of sanguinary or salacious publications with their stimulation of juvenile delinquency. Although we are dealing with an aspect of a free press in its relation to public morals, the principles of unrestricted distribution of publications admonish us of the particular importance of a maintenance of standards of certainty in the field of criminal prosecution for violation of statutory prohibitions against distribution. We do not accede to appellee's suggestion that the constitutional protection for a free press applies only to the exposition of ideas. The line between the informing and the entertaining is too elusive for the protection of that basic right. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine. Though we can see nothing of any possible value to society in these magazines, they are as much entitled to the protection of free speech as the best of literature. Cf. Hannegan v. Esquire, 327 U.S. 146 , 153, 158, 460, 462. They are equally subject to control if they are lewd, indecent, obscene or profane. Ex parte Jackson, 96 U.S. 727, 736 ; Chaplinsky v. State of New Hampshire, 315 U.S. 568 . [333 U.S. 507 , 511]” The court does correctly overturn a law criminalizing publications “made up of criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime” though it does so on the basis of vagueness rather than on the basis that they are protected speech.

Beauharnais v. Illinois “Libelous utterances not being within the area of constitutionally protected speech, it is unnecessary, either for us or for the State courts, to consider the issues behind the phrase "clear and present danger." Certainly no one would contend that obscene speech, for example, may be punished only upon a showing of such circumstances. Libel, as we have seen, is in the same class.” It is worth noting that the libel here is not false statements but rather statements without “good motives and for justifiable ends ”.

Here we see a progression in censorship from that which may be sent through the mail to that which may be sold or distributed to that which may be said or published. This is progressive intrusion in our freedom of speech is presented by the court as a consistent and stable recognition of the impermissibility of obscenity.

“In light of this history, it is apparent that the unconditional phrasing of the First Amendment was not intended to protect every utterance.”

How sadly devergent this is from United States v. Chase's “We recognize the value of the rule of construing statutes with reference to the evil they were designed to suppress as an important aid in ascertaining the meaning of language in them which is ambiguous and equally susceptible of conflicting constructions. But this Court has repeatedly held that this rule does not apply to instances which are not embraced in the language employed in the statute or implied from a fair interpretation of its context, even though they may involve the same mischief which the statute was designed to suppress.”

“The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”

How one can recognize this as the core of the right but then exclude some speech on the basis of the social changes it may cause is beyond me.

“The fundamental freedoms of speech and press have contributed greatly to the development and well-being of our free society and are indispensable to its continued growth. 22 Ceaseless vigilance is the watchword to prevent their erosion by Congress or by the States. The door barring federal and state intrusion into this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary to prevent encroachment upon more important interests. 23 It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.”

Here the court recognizes the danger evident in the progression of it own cases but is unwilling to extend protection to speech it find objectionable.

“Many decisions have recognized that these terms of obscenity statutes are not precise. 29 This Court, however, has consistently held that lack of precision is not itself offensive to the requirements of due process. ". . . [T]he Constitution does not require impossible standards"; all that is required is that the language "conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. . . ." United States v. Petrillo, 332 U.S. 1, 7 -8. These words, applied according to the proper standard for judging obscenity, already discussed, give adequate warning of the conduct proscribed and mark ". . . boundaries sufficiently distinct for judges and juries fairly to administer the law . . . . That there may be marginal cases in which it is difficult to determine the side of the line on [354 U.S. 476, 492]   which a particular fact situation falls is no sufficient reason to hold the language too ambiguous to define a criminal offense. . . ." Id.,”

United States v. Petrillo here the vagueness of this law is addressed “It shall be unlawful, by the use or express or implied threat of the use of force, violence, intimidation, or duress, or by the use or express or implied threat of the use of other means, to coerce, compel or constrain or attempt to coerce, compel, or constrain a licensee- '(1) to employ or agree to employ, in connection with the conduct of the broadcasting business of such licensee, any person or persons in excess of the number of employees needed by such licensee to perform actual services;”. I would argue while the number of employees needed is vague that it would not be vague to the licensee. And as the need is had by the licensee his opinion on the issue could be take as a finding fact in such cases. Though in general I think removing the “in excess” clause would have made a better law and that if it was congresses intent to allow for licensees to be forced by threats into hire employes up to the number needed to preform services then the law is too vague and should be invalidated on that basis.

Nothing in the ruling defines obscene content in a way in which a person may reliably predict the interpretation of that term. In fact the terms dependance on social values and norms is likely to increase the any uncertainty because of its transient nature and the variable values held be various segments of society. Allowing any discrimination based on content regardless of venue is a threat to free speech everywhere since any decision will be used as precedence even if the circumstances differ.

Noble Tyrants

It is taken as a point of faith by many that the presence of an armed population in third world countries leads to instability and increased violence. This is true in so far as the people living under tyrannical systems, which oppress them, may be inclined not to accept that tyranny if presented with the power to resist. This temporary increase in violence, if it occurs, is caused by the liberty that guns grant rather than the guns fueling crime or strife. It is the indeed the vilest of rationals that a people should remain oppressed for their own safety and good. This would be the rational of slave holders in this country if we had not purged that abomination from our country at gun point. Further more to subject the majority of a country's population to violence and predation in the name of social good is poor policy. How can it be just for men with machetes to use those weaker than themselves any way they see fit when there exists tools which can allow almost anyone to protect their body, rights, and homes?

Criminals and tyrants should fear to antagonize the populous and should respect the citizens' homes, villages, and cities as places where the danger of predation out weighs the gains. Through arms and a direct possession of rights, citizens will come to respect themselves and their fellow citizens. This will establish the stability and interpersonal consideration necessary for social and economic development. Governments can not be counted upon to create safety for their citizens especially when a monopoly of legal force makes the use of that force in the oppression of the citizens irresistible.

As it is impossible to prevent any person from employing violence against another. It is only fair that all people have a right to those weapon which best serve to equalize their ability for violence with everyone else's. It is dehumanizing to victims to know that no force within their reach is sufficient to protect them from those who might want to prey upon them. And it is emboldening and self-justifying to those who prey upon their fellow man to know that the resistance offered by their victim will be insufficient to threaten or stop them.

The people in the third world are oppressed both by those who wish them harm and by those who wish them good. Good intentions does not absolve one from the guilt of supporting and enabling oppression and predation. To stand in the way of your fellow man's liberation and to deny him even the chance to struggle to create a better life for himself and his people places one firmly in the ranks of this world's oppressors, jailers, and tyrants. That one can justify doing so as a virtue only places you with the most vile of oppressors.

A disparate distribution of power inevitable but also inherently unjust. Thus the rights, privileges, and immunities of each individual must be protected both through the efforts of the individual and the full weigh of social and governmental power. Allowing the rights of another to be infringed for any reason is the beginnings of tyranny and a road that leads to hubris and murder.

Supreme Blunders

Slaughterhouse Cases

This ruling is objectionable not because of the outcome itself. Which I find objectionable but which is likely pretty open to debate. The case itself is over a government mandated monopoly and whether that monopoly violates the rights granted by the constitution. The court rules that on the not on the basic that conducting business in a certain manner in a certain place is not a right granted by the constitution but on the basis that the constitution doesn't actual grant any rights.

The majority opinion begins with a historical narrative. This seems to be a common ploy when a judge wants to put forth an interpretation that is counter intuitive or counter to the meaning the law its self creates from an actual reading.

It leads up then to a presentation of the 13^th 14^th and 15^th Amendments as measures enacted to insure the rights of former slaves in those place not inclined to grant them any rights. It then launches in to the core of it argument the contention that there is a substantial difference between Citizen of a State and Citizen of the Untied States.

“We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs in error, speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States. The argument, however, in favor of the plaintiffs rests wholly on the assumption that the citizenship is the same, and the privileges and immunities guaranteed by the clause are the same.”

Here we see that by creating two distinct rights holding citizenships the rights of a single person may be divided between them those citizenships and some placed thereby outside the protection granted by the 14^th amendment.

“The language is, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." It is a little remarkable, if this clause was intended as a protection to the citizen of a State against the legislative power of his own State, that the word citizen of the State should be left out when it is so carefully used, and used in contradistinction to citizens of the United States in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and, with a purpose.”

Here the author ignore the function of the construction “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” as serving to guaranty not only citizenship in the United States but to prevent States from denying residents of a state or a portion there (such as a particular race) of of citizenship of that state. That it would be appealing for some states to do so is clearly supported by the authors own presentation. Also the author ignore the possibility that congress would wish to securer the rights of citizens on its own basis rather than those of the states. That this section limits the power of the states can hardly be argued in good faith.

“Of the privileges and immunities of the citizen of the United States, and of the privileges and immunities of the citizen of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.”

I think this is in and of itself a fair interpretation. Though one could argue that the amendment protects all privileges and immunities regardless of their source from state action.

“This definition of the privileges and immunities of citizens of the States is adopted in the main by this court in the recent case of Ward v. The State of Maryland, ^[n12] while it declines to undertake an authoritative definition beyond what was necessary to that decision. The description, when taken to include others not named, but which are of the same general character, embraces nearly every civil right for the establishment and protection of which organized government is instituted. They are, in the language of Judge Washington, those rights which are fundamental. Throughout his opinion, they are spoken of as rights belonging to the individual as a citizen of a State. They are so spoken of in the constitutional provision which he was construing. And they have always been held to be the class of rights which the State governments were created to establish and secure.”

Here he seeks to establish the rights grant to a citizen of a state.

“It would be the vainest show of learning to attempt to prove by citations of authority that, up to the adoption of the recent amendments, no claim or pretence was set up that those rights depended on the Federal government for their existence or protection beyond the very few express limitations which the Federal Constitution imposed upon the States -- such, for instance, as the prohibition against ex post facto laws, bills of attainder, and laws impairing the obligation of contracts. But, with the exception of these and a few other restrictions, the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitutional and legislative power of the States, and without that of the Federal government.”

Here he begins his attempt to exclude from the rights held by a citizen of the United States those rights held by citizen of a State.

“Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government?”

I believe that is indeed was the purpose and effect of the Amendment.

“And where it is declared that Congress Shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?”

From the Amendment itself: “5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”.

“All this and more must follow if the proposition of the [p78] plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever, in its discretion, any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when, in fact, it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people, the argument has a force that is irresistible in the absence of language which expresses such a purpose too clearly to admit of doubt.”

Here is a presentation of a parade of horrors used to justify ignoring the each of the 14^th Amendment on the basis of the obfuscation constructed by the author himself.

“We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.”

Here the author give to himself the ability to modify the effect of the Law based on the intentions of those who created it. This is an extremely dangerous and broad power allowing the courts to base judgments upon subjective and contradictory sources.

“Having shown that the privileges and immunities relied on in the argument are those which belong to citizens of the States as such, and that they are left to the State governments for security and protection, and not by this article placed under the special care of the Federal government, we may hold ourselves excused from defining the privileges [p79] and immunities of citizens of the United States which no State can abridge until some case involving those privileges may make it necessary to do so.”

Thus the author justifies the possible violation of the rights held by a citizen of the United States on the basis that those rights are held by that citizen on the basis of their citizenship of a States and thus can not be held on the basis of his citizenship of the United States. The author then list right which can not be considered to be based on citizenship of a State and places them under the protection of citizenship of the United States so as not to render the law and there by his argument pointlessly meaningless.

The charges that the law deprives the plaintiffs of property without due process of law and denies to them the equal protection of the law. Are quickly dismissed on the basis of the historical power of States. It is also contented that as the purpose of the amendment was to prevent gross injustice against blacks that its function is limit to that effect.

“But, however pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the State with powers for domestic and local government, including the regulation of civil rights the rights of person and of property was essential to the perfect working of our complex form of government, though they have thought proper to impose additional limitations on the States, and to confer additional power on that of the Nation.”

Here is his closing justification which repudiates public opinion and infers into the motives of the legislature. I think that the right to conduct bussiness in the manner in which the plaintiffs content is their right could have on its own been found not to be a right. But the refutation of the 14^th Amendment found in this decision is willfully misconstrued so as to satisfy the opinions of the author not the demands of the law.

Supreme Blunders

I am going to start a series on Supreme Court decision I disagree with. And first up is:

Wickard v. Filburn

This case is perhaps the worst single case decided by the court. It has allowed the monstrous expansion of federal power into all aspect of our lives.

“The Government's concern lest the Act be held to be a regulation of production or consumption rather than of marketing is attributable to a few dicta and decisions of this Court which might be understood to lay it down that activities such as 'production,' 'manufacturing,' and 'mining' are strictly 'local' and, except in special circumstances which are not present here, cannot be regulated under the commerce power because their effects upon interstate commerce are, as matter of law, only 'indirect.' Even today, when this power has been held to have great latitude, there is no decision of this Court that such activities may be regulated where no part of the product is intended for interstate commerce or intermingled with the subjects thereof. We believe that a review of the course of decision under the Commerce Clause will make plain, however, that questions of the power of Congress are not to be decided by reference to any formula which would give controlling force to nomenclature such as 'production' and 'indirect' and foreclose consideration of the actual effects of the activity in question upon interstate commerce.”

Here the court make a clear distinction between actual interstate commerce and local activities but states its intention to ignore that clear distinction.

“Not long after the decision of United States v. E. C. Knight Co., supra, Mr. Justice Holmes, in sustaining the exercise of national power over intrastate activity, stated for the Court that 'commerce among the states is not a technical legal conception, but a practical one, drawn from the course of business.' Swift & Co. v. United States, 196 U.S. 375, 398 , 25 S.Ct. 276, 280. It was soon demonstrated that the effects of many kinds of intrastate activity upon interstate commerce were such as to make them a proper subject of federal regulation. 22 In some cases sustaining the exercise of federal power over intrastate matters the term 'direct' [317 U.S. 111, 123]   was used for the purpose of stating, rather than of reaching, a result;23 in others it was treated as synonymous with 'substantial' or 'material;'24 and in others it was not used at all. 25 Of late its use has been abandoned in cases dealing with questions of federal power under the Commerce Clause."

Here is an attempt to justify the expansion of federal control by claiming that the meaning of a specific phrase not only doesn't mean its literal meaning but that it may be interpreted to mean anything convenient to the government.

“The Court's recognition of the relevance of the economic effects in the application of the Commerce Clause ex- [317 U.S. 111, 124]   emplified by this statement has made the mechanical application of legal formulas no longer feasible. Once an economic measure of the reach of the power granted to Congress in the Commerce Clause is accepted, questions of federal power cannot be decided simply by finding the activity in question to be 'production' nor can consideration of its economic effects be foreclosed by calling them 'indirect.' The present Chief Justice has said in summary of the present state of the law: 'The commerce power is not confined in its exercise to the regulation of commerce among the states. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the effective execution of the granted power to regulate interstate commerce. ... The power of Congress over interstate commerce is plenary and complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution . ... It follows that no form of state activity can constitutionally thwart the regulatory power granted by the commerce clause to Congress. Hence the reach of that power extends to those intrastate activities which in a substantial way interfere with or obstruct the exercise of the granted power.' United States v. Wrightwood Dairy Co., 315 U.S. 110, 119 , 62 S.Ct. 523, 526"

Here the effect of accepting the construction of the commerce clause where congress has the power the regulate those things which affect interstate commerce by virtue of the power to regulate interstate commerce is stated. Since the power as presented is without limit other than those imposed by the constitution it is in fact without limit since it is itself a circumvention of limitations imposed by the constitution

“But even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as 'direct' or 'indirect.'”

Here it is shown that the expanded commerce powers require only the most tenuous connection to actual interstate commerce. The court proceeds to make the connection between private wheat production and consumption and the interstate price of wheat.

It then contends with the allegation that the Agricultural Adjustment Act of 1938 deprived the appealee of property without due process of law and that the law is retroactive in effect. Here the court concludes that since the actual penalty is incurred and becomes due on threshing that a change in the liability created the 24 amendment is technically not retroactive even though its effect could easily be found so if it was held to the same reasoning as the commerce clause. It then rejects any fifth amendment claims on the basis that the government may regulate what it subsidizes further expanding federal regulatory control to any area which it decides to fund.

It is anathema to me that the government can use the limits placed on it as a means of circumventing those limits and granting itself unlimited power over the lives of its citizens.

Lesser Evils

There can be great difficulty in accepting the value of tolerating evil for the good of society. There are many ills which would require the imposition of greater ills to prevent. For example you could reduce the number of vehicular deaths by requiring a much higher level of skill and ability to acquire a license but that would adversely impact the freedom and livelihood many people. You could also remove children from their parents' homes to facilities designed to prevent any possible injury to the children but doing as a matter of course so would be too monstrous to be endured even though it would save lives.

The prohibition of drugs has created more and worse ills that it conceivably prevents. It has created strong financial incentives to engage in criminal activity. It has alienated those who need the protection of law enforcement the most from that that enforcement. It has created an industry operating outside the law allowing illegal actions such as theft, intimidation, bribery, and murder to become part of its normal means of operation. It deprives the government of taxes. It reduces the quality and safety of the goods leading to injury and death among users. It creates barriers to treatment of dependency and other conditions in users. It subjects even those who don't use to suspicion and intrusive testing. It costs billions for ineffective enforcement. It increases the price of the goods increasing the amount of effort legal or otherwise required to satisfy one's habit. It vastly increases the cost of health care by requiring permission and unnecessary additional expenditures to acquire appropriate treatments

The benefit claimed is reduced drug addiction and reduced negative consequences of addiction. It has not seemed to be a significant barrier to the acquisition of drugs by the upper class who can exploit legal means to acquire prescription analogs and receive lower penalties for violations. Nor has it created a barrier to lower class drug use, other than the increased price, since the poor are used as means of distribution. It is possible that the middle classes who have limited casual contact with illicit drugs and  are without the resource to game the system have experienced a reduced level of addiction.

This possible reduction of addiction levels may be reducing incidents of health problems, mental illness, and domestic abuse and other crimes. The reduction in health problems in those who abstain is balance by increased health problems in those using drugs or in those who seek more dangerous alternatives. A causative link between drug use and mental illness has not been established to my satisfaction and if it ever is it is balanced decreased availability of and increased difficulty in obtaining and maintaining treatment for those with mental illnesses. The reduction in domestic abuse may be real but potential gains are limited by the legal availability of alcohol. Any potential reduction in other crimes cause by addictions is balanced by the massive amount of crime necessary to support the habits of users as well as crimes by users to support their own habits.

But legalization is strongly opposed by some since it will have negative consequences. These consequences allows the proponents of prohibition to harp on the ills of legalization and demonize their opponents as the advocates of those ills without taking responsibility for the ills crated by prohibition. Also as with most government policies it is defended as sacrosanct by those who must enforce it and those who profit from the status quo.

This imposition and injustice is not lessened by that fact it has been long standing. Nor is it helped by the law's justification hat since interstate commerce can not be effectively regulated possession can be viewed as commerce and regulated instead. I find the justification that government should be allowed to act beyond its bounds because acting within them is to difficult or that its interests entitle it to greater control than is actually granted by the constitution to be reprehensible and possible treasonous.

Redacting a Failed Discusion

Here are my comments on Japete's blog which I am removing since I think the possibility of any actual discussion basically nil.

"Gun deaths per 100,000 is not equivalent to safety. It may be a statistic that can be used to evaluate safety but it includes many deaths such as suicides and anti-criminal shooting which either don't effect or increase safety for the average person.

Also comparisons between countries are pretty much useless unless you are able to norm for culture. Which is why the question asks about improvements within the same country reducing the influence of non-related cultural effects on the data.

The murder rate, which I think is better metric for safety, does not correlate well to each country's gun laws. Indeed within this country there is not a positive correlation between legal access to guns and the murder rate. In fact since major cities tend to have higher murder rates and stricter gun laws those two factors can be easily presented as having a strong positive correlation if as in the case many statistically driven arguments the data is chosen to support that finding"

"Alan are you saying that people belonging to racial or gender groups should be treated on that basis rather than their own specific character, actions, and circumstances? I think that treating people that way is dangerous and destructive morally and practically. I also think that everyone deserves to be able to advocate against the wrongs in their lives and that white men over 40 have as much right to do this as members of any other group. Though as you have made clear the majority of people care about their problems about as much as they do rape in prisons. I think that disdain for the dignity and suffering of anyone reduces for everyone the amount of compassion in our society.

Also I think that attacking the articles BoB S posted on the basis of their substance would be more effective than pointing out a dead link from 2000 and a curse word used by the hosts (not the author) of an article. Those seem to me to be the internet equivalent of a character attack."

"I have to say that the BJS graphs to make a strong case for background checks being effective in reducing the the number of homicides committed with hands. I think most pro-gun folk agree that a background check system that prevents people such as criminals or those adjudicated mentally ill or incompetent is something they support and are prepared to accept. Many would rather those people where not a part of our society but in lieu of that most are willing to have a mechanism that inhibits their acquisition of weapons as long as it does not place a burden on law abiding citizens or intrust the government with information about the legal actions of citizens.

I also think that many pro-gun people want much harsher criminal penalties for violations of our gun laws. I personal would support stricter jail terms and non-discretionary prosecution for criminal weapon possession by felons. I think jailing those who have proven that they will not abide by the conditions of their liberty would be more effective than measures that target non-criminals.

“I have provided facts to show that gun deaths take more lives than any other means in the U.S. “ I assume you mean “gun's are the implement used most often to murder people” since car related deaths out number gun related deaths.

I don't think that anyone is advocating no action by anyone on reducing deaths from guns. Many pro-gun activists are involved in gun safety instruction and awareness reducing accidental injuries and deaths from firearms. I believe that if you own guns you should instruct everyone you live with in proper gun safety and that many of the deaths related to found gun are the result of failure to do so. Many have made different proposals for reducing criminal actions and homicides. I think any benefit that comes from preventing the use of firearms in suicide would be balanced by the increase in suffering inflicted by other means and increased suicide attempts cause by increased feelings of helplessness in some people.

Also any defects in firearms which cause them to function improperly, especially a fault which would make a gun fire without the mechanical action of its trigger, are a very grave concern for everyone but one for which there is a remedy. Just as with unsafe cribs and cars if a gun is made in such a way that it doesn't function properly and causes injury the manufacturer incurs civil liability. That liability does not extend to misuse of the gun just as car manufacturers aren't liability for people who intentionally use them to kill or injury.

On the issue of reducing the number of who's deaths are related to gun use" 

"Let me try to explain some of the fear. The Brady campaign states that one of it's goals is “banning military-style assault weapons”. That category of weapons has the strongest constitutional protection under United States vs Miller and 10 USC chapter 13 – 311(a). If those weapons can be banned then very little prevents additional bans, most of these have either been proposed or enacted in other countries, such as military caliber firearms, semi-automatic firearms, large caliber firearms, firearms without safety features or F/F recognition, required barrel length, detachable magazines, internal magazines, and pretty much any feature of a firearm other than the most basic. And if the right to appropriate arms of those who may need those arms as part of their military service liability, males 17-45, is violated there is much less protection for those who want to choose which guns are appropriate for other less protected uses such as sport, hunting, or self-defense.

Also current Supreme Court interpretations are often overturned sometimes with external pressure such as Lincoln and Roosevelt placed on the court. The constitution can be changed and the powers it grants the government interpreted more broadly. While currently that isn’t a strong possibility, the fear is that if the idea that banning guns would prevent all firearm related deaths is allowed to stand uncontested then in the face of some cause célèbre people might be convinced to accept such changes. Thus our willingness to respond and engage with those holding or promoting such a belief." (not published)

"Would you support an recognition of those persons with 10 USC chapter 13 – 311(a) militia obligations as members of a government agency for the purposes of federal firearm law?

I think that if such a recognition was made it would protect the second amendment right of the militia to arms which is a right clearly and almost universally articulated by the Supreme Court. That could allow some legal and rational room to limit the types and forms of arms owned by those without militia obligations to those firearms strictly necessary for self-defense and those firearms used in approved activities."

"I believe 10 USC chapter 13 – 311 is originally from the Militia Act of 1903.

The law makes certain people members of the United States Militia which can be called upon “to execute the Laws of the Union, suppress Insurrections and repel Invasions ”. Congress is to “provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States “

Congress has broadly defined the scope of the militias members (males 17-45 and females in the National Guard) but has for the majority of the militia neglected to provide for their organizing, arming, and disciplining and has in fact barred the normal means though which the unorganized militia might arm itself.

As it stands now Militia members are required by Law to pay $200 Tax to the BATFE for a some guns appropriate for military use (unlike other agents of the government) but they are barred from doing so with machine guns by a refusal to accept such taxes by order of Congress. To top it off the Supreme Court precedence (Haynes v. United States) states that 4th Amendment protects those who fail to pay that Tax if compiling with the registration would incriminate the person obligate to register their weapon which is a crime to posses if they haven't paid the tax.

It seems to me to me that we are at a rather convoluted place legally at the monument. A large section of the population has a real if not immediate obligation to fight to protect this country and enforce its Laws. If they want to make themselves prepared to meet those obligations they must do so on their own because of the lack of congressional provision and in that attempt to they can come into conflict with laws designed to limit non-militia uses or types of weapons. I think that the organizing and disciplining of the militia is a grand opportunity that is being missed to do some good in our communities and build positive social bonds.

The have courts strongly supported the rights of the militia to military weapons. I think that there are strong possible challenges to any law the prohibits military weapons to citizens in the militia. And that the failure to consider the presence of the militia in US law can endanger any legislation that hasn’t provided for it. Only recently has the Supreme Court begun to support the right of citizens to arms for other uses such as self-defense. I support this expansion of rights because I think the right is a good right and that good rights tend to support each other against abuse and infringement.

Self organized groups that style themselves as militias are not the US militia their existence many be protected by freedom of association and they maybe comprised of member of the US militia but those organizations are not what the law refers to when it talks about the militia or militias."

 "United States v. Hale, 978 F.2d 1016 (8th Cir.1992) rejects 14^th Amendment incorporation of the 2^th Amendment limiting its function to merely a constraint on the federal government, does not take a view on if the right granted is individual or collective right, and only recognizes the 2th Amendment as relating to “preservation or efficiency of a militia”. It is in fact a the product of a long series of cases which have had their rational refuted by the Supreme Court.

Cases v. United States, 131 F.2d 916 (1st Cir.1942) states “The right to keep and bear arms is not a right conferred upon the people by the federal constitution. Whatever rights in this respect the people may have depend upon local legislation; the only function of the Second Amendment being to prevent the federal government and the federal government only from infringing that right “ and attempted to create precedence from United States v. Miller by contending that there was none.

U.S. v. Warin, 530 F.2d 103 (6th Cir.) states “the Second Amendment guarantees a collective rather than an individual right” and created the non-rights holding category of “sedentary militia” ex nihlo very much the reverse of the "sovereign people" category created in Scott v. Sandford.

Since the McDonald v. Chicago incorporation of the 2^nd Amendment under the Due Process clause of the 14^th Amendment and its and District of Columbia v. Heller's recognition of an individual right to own weapons for some purposes by the Supreme Court a court hearing a similar case now would have to consider those issues and would be force to rule on another basis.

Also US v. Hale doesn't not address the fact that laws upon which it ruled both require and prohibit registration a situation similar to the one present in District of Columbia v. Heller were the laws in question were found unconstitutional." (not published)