Wednesday, February 28, 2018

A gift for the Students of Marjory Stoneman Douglas High School and Diane Wolk-Rogers

Diane Wolk-Rogers was the Marjory Stoneman Douglas High School history teacher who questioned Dana Loesch at the CNN town meeting. Here is my response to Ms. Wolk-Rogers' question:

The constitution was written partially as a reaction to Shays' Rebellion in Massachusetts, which was a revolt by former members of the continental army who had served in the War for American Independence. Someone  like Ms. Loesch would like us to believe that these people would have fallen into the category of a well-regulated militia since they were well-trained having served in the Continental forces. Howver, the reaction to this rebellion was far from one of approbation, but was one of shock (see

The words "to ensure domestic tranquility" were placed in the preamble of the US Constitution in regard to Shays' Rebellion.  Additionally, the preamble mentions the common defence as one of the reasons for adopting the constitution. I should add that the text of the US Constitution can be scrutinised and no mention will be found for the concept of self-defence [1]. Two articles address the militia in the US Constitution, Articles I, Section 8, Clauses 15 & 16, which are called the militia clauses in Constitutional law. Clause 16 is the most important for this discussion as it gives Congress the power.

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, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
The fact that only congress has the power to arm the militia was what concerned the founders, not private guns. A search of the primary sources will show that the "pro-gun" side has a nasty habit of misquoting and taking the debate out of context. As one scholar said "wielding the scholar’s power of the ellipse several partisans of gun ownership have edited Henry’s remarks about how best to regulate the militia into an inflammatory half-truth “The great object is that every man be armed….Every one who is able may have a gun.” The NRA has blown this up into a poster-sized blurb embossed with Patrick Henry’s image." (Henry Meyer,  A PATRICK HENRY ESSAY (No. 5-98) THE POLITICAL LEGACY OF PATRICK HENRY).

Ms. Loesch misquoted George Mason. The entire quote concerns itself with the nature of the militia in the future when read in context  That is a highly important point since the concept of a universal militia died a quick death, if it ever really existed. This takes us to an important point, the founders envisioned a system similar to that of Switzerland where the bulk of the military is not professional, but part time. The only "professional" military in this system would be those in positions of administration and training. This comes from a long tradition of distrust of standing armies and professional militaries, which is something else that shows up when one reads the primary source material.(see also Schwoerer, Lois G. “No Standing Armies!” The Antiarmy Ideology in Seventeenth-Century England).

The bottom line and short form of this  is that a well-regulated militia is the one created in accordance with Articles I, Section 8, Clauses 16 of the US Constitution, not a private army [2]. Likewise, the US Constitution makes it clear that waging war against the US is treason (Article III, Section iii).

As for the current trend in ignoring the first clause in the Second Amendment, U.S. v. Miller, 307 U.S. 174 (1939), stated that:
With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.
Such forces being those created under the militia clauses. The Case of Marbury v Madison 5 U.S. 137 (1803), makes it clear that "It cannot be presumed that any clause in the constitution is intended to be without effect", which runs contrary to the current Jusrisprudence of DC v Heller and McDonald v Chicago. I suggest that your students read Justice William O Douglas, dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972).  Justice Douglas was on the court when Miller was decided and gives a gloss of that case.

In addition, Miller mentions Aymette v. State, 2 Humphreys (Tenn.) 154, 158. Aymette says the following:

To make this view of the case still more clear, we may remark, that the phrase, "bear arms," is used in the Kentucky constitution as well as in our own, and implies, as has already been suggested, their military use. The 28th section of our bill of rights provides, "that no citizen of this State shall be compelled to bear arms, provided he will pay in equivalent, to be ascertained by law." Here we know that the phrase has a military sense, and no other; and we must infer that it is used in the same sense in the 26th section, which secures to the citizen the right to bear arms. A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane. So that, with deference, we think the argument of the court in the case referred to, even upon the question it has debated, is defective and inconclusive.
While there is quite a bit of pseudohistory and poor law clogging up the atmosphere and causing sensible gun legislation, but I have much hope for your students working to change that.

[1] There is a rule of interpretation in law that if a statute is silent on a subject, one cannot assume that subject is addressed. So, a failure to specifically mention self-defence in the US Constitution leads to the presumption that the Second Amendment does not apply to that. I would also add that the doctrine of self-defence in common law is not a complete defence, but is a mitigation to the offence. Common law does not see deadly force as being a first option. See Richard Maxwell Brown's No Duty to Retreat: Violence and Values in American History and Society for a history of deadly force in US jurisprudence.

[2] Basic info on unorganised militia being:
The Sedentary, reserve, inactive, unorganised, general (or other term indicating INACTIVITY) Militia, has always been unorganized and untrained
Active Militias, that is THE organised, enrolled, embodied, active (or other term signifying active) Militia, can be supplemented if necessary by the ballot (selection by lot)–in other words drafted from the Unorganised militia draft pool.
The term “unorganized” did not begin to emerge until the 1830s and 1840s, when a massive wave of opposition destroyed the compulsory militia system. Nobody wanted to serve in the militia. State governors and legislators wanted to be able to accommodate this desire, but they were bound by the 1792 Uniform Militia Act, which stated that every white male aged 18-45 would be in the militia.
Militia service was so unpopular that Delaware abolished its militia system altogether in 1831. Massachusetts eliminated compulsory service in 1840, followed by Maine, Ohio, Vermont in 1844, Connecticut and New York in 1846, Missouri in 1847, and New Hampshire in 1851. Indiana classified its militia according to age in 1840, and exempted all but the young men from service. New Jersey withdrew the right to imprison a man for failure to pay a militia fine in 1844; Iowa did the same in 1846, Michigan in 1850, and California in 1856.” – Mahon, John K, The History of the Militia and the National Guard, p. 83
The term “unorganized militia” was kept in use in subsequent decades as a statutory “reminder” that the state could still obligate its citizens to perform military duty, should it ever want them to. Eventually, U.S. law in the early twentieth century picked up this same usage for the same reason: by creating the “unorganized militia,” the United States could guarantee usage of this manpower for military purposes, should the (remote) need ever arise.
The unorganised militia is addressed in the State Call up provisions for the militia (current national guard), not 10 USC 311.

Wednesday, February 21, 2018

Bump Stocks and the Florida Shooting



Ten and then, seven more.


That's the number of people killed in the most recent horrific, obscene shooting in our nation.  Horrific and obscene evidence of our national blood-pact with the National Rifle Association and the arms manufacturers for which the NRA is simply a sock-puppet.  No longer does the NRA actually represent hunters as it's primary demographic, but instead their primary demographic is an industry desperate to make more and more sales, desperate because manufacturers have seen flagging sales after the election of Donald Trump to the presidency.  Those sales have flagged because the NRA spent 8 years telling the nation, especially the rabid gun nuts, that President Obama was just about to unleash the ATF and FBI to come take their guns.

So, the NRA is seeking to prevent legal activity which closes loop-holes which would curtail straw-buying.  They may say otherwise, but make no mistake, the NRA is aware that the guns in Chicago, the most awful example of gang-related gun violence in the US, are bought outside the Chicago city limits by straw-buyers and transported into Chicago (a drive of a couple of miles) and sold.  They are aware that the best self-defense weapons aren't assault rifles, but instead shotguns (for power) or small(ish) handguns (for ease of carry).  Yet, the adamantly oppose any limitations on assault rifles, weapons designed to allow soldiers to assault enemy held positions by allowing for maximum sustained firepower for the longest period of time (outside carrying a light machine gun - an impracticality for soldiers rushing into an enemy held building).  They are aware these weapons are a mediocre choice for self-defense and a worse choice for hunting, but they are also aware that gun "lovers" want, even lust, for guns which look like military hardware.  They long for firearms which give them maximum firepower (available under current law), seemingly because those weapons help them feel tougher.  It helps them feel like we all often do walking out of a martial arts movie, that we can take on the world, like we're somehow that military-minded expert who can shoot down aircraft and black hat bad guys with our bad-ass weaponry.

And so, after seventeen more people died, our President, beholden to this same NRA and the gun manufacturers (who spent 20 million on his election), after an AR15 was again used to slaughter innocent people, 14 of them children, has advocated for....

banning bump stocks...a device used in the Las Vegas shooting, not the Florida shooting

Yep, our glorious leader, in reaction to yet more slaughter has advocated doing something about the shooting before the last shooting.  Something he could have advocated for months ago, in fact many people did advocate for months ago.  Interestingly, the NRA is fairly neutral on bump-stocks, perhaps because the gun manufacturers by and large aren't the manufacturers of bump-stocks?  Nah, couldn't be that.  Regardless, despite only moderate opposition from the NRA to regulation of bump-stocks, nothing was done by Congress or the President after the worst mass-shooting in US history.  They did nothing, nothing until yet another mass-shooting killed more children and then..

They took the safest, easiest action, to advocate for some sort of restriction on a device that modifies assault rifles so they can fire in a very nearly fully automatic mode (like many military assault rifles are able to do).  AND, they again called for arming teachers, and for investigating the mentally-ill.  As if the US has cornered the market on mental illness or the violently mentally-ill?   Is that yet more American Exceptionalism?  And if arming teachers is the answer, why do other countries not arm their teachers?  Why do they not need to do so?  These are two old saws from the NRA, say nothing can be done because it's just the mentally-ill, and say that more guns will solve things.  We have more guns here in the US than in any other country in the world, yet, somehow, we are not safer so it boggles the mind how even more guns wielded publicly will make us safer. 

A conservative friend of mine recently wrote that taking away weapons from terrorists will only cause them to find other and even worse, weapons.  Well, if true, then the argument to arm teachers is a terrible one, because and in fact as we have seen, if we arm teachers, those who would engage in mass shootings will only start wearing ballistic vests as the shooter in Texas did, or start bringing to bear ever more powerful assault weapons from vantage points difficult to stop (as the shooter in Las Vegas did), in order to avoid or mitigate the risk from "the good guy with the gun."  So NO, more guns will solve nothing at all.  It's ironic to hear this argument from a gun nut (as is my friend) considering it's the argument we have made about increasing the firepower of police as being no real solution to gun violence either.

No, the President again (and the GOP again), shows it cannot lead, will not lead, and in fact will oppose any leadership which addresses the underlying issues of gun violence in the US, especially some of the most easily constrained, mass shootings.  Nearly every mass shooting in the US has been perpetrated with either assault rifles and/or with weapons using very high capacity magazines (the Gabby Giffords shooting was done by a man using a pistol with a 30 round magazine, imagine a magazine which extends about a foot below the shooter's hands).  They nearly all also stopped either when their weapon ran out of ammunition causing them to reload, or their weapon jammed, read that again, when they needed to reload or could not keep firing - so they kept shooting until they immediately ran out of firepower.  These aren't facts in dispute.  The Sandy Hook shooter's weapon apparently jammed, Gabby Gifford's shooter's magazine ran dry, the shooter in Aurora Colorado either ran out or his weapon jammed (it's not clear).  We don't yet know what happened in Florida.  In Las Vegas the shooter brought dozens of weapons just to make sure he could keep shooting.  In NONE of these cases were the shooter's "stopped" in anything like a timely manner by "a good guy with a gun."  So, what does the President do in reaction to the Florida shooting, he doesn't advocate for limitations on these types of weapons, instead he advocated for strengthening laws which he criticized and set aside, in his 2nd act as President.

This is not leadership.  Addressing the current issue with a modest and obvious step from the last crisis isn't leadership,  it's cowardice, it's corruption and it is disgusting, and it is obscene and in the most powerful nation in the world, it is a national embarrassment.   It is a broken record to say it, and that's perhaps the saddest thing of all, but it is far beyond time for real leadership in the US on limiting firepower for civilians to what they actually need for self-defense, not in some fevered-dream of being attacked by Ali Baba and his 40 thieves, but in the 99.999999% of cases and what they need to hunt (assault weapons are terrible hunting weapons).  They do not need assault weapons and we do not need to keep watching the parade of hearses bearing the innocent young victims of our needless national obsession.

Tuesday, February 20, 2018

Saturday, February 17, 2018

Is it true what they say about Catherine the Great?

From the BBC:

Deputy Attorney General Rod Rosenstein said there was no allegation that any American was "a knowing participant in this illegal activity" nor was it alleged that the meddling altered the election outcome.

Three of the people named have also been accused of conspiracy to commit wire fraud and five have been accused of aggravated identity theft. Three companies have also been charged.
Amusingly, one of the allegations is "Promoted information that disparaged Hillary Clinton".

As if anyone needed the Russians for that one! The next quote sounds like duopoly sour grapes:
"They engaged in operations primarily to communicate derogatory information about Hillary Clinton, to denigrate other candidates such as Ted Cruz and Marco Rubio, and to support Bernie Sanders and then-candidate Donald Trump."
Bernie was supported by small donors: shitloads of them. He was pretty much outraising her until HER campaign pulled the dirty tricks. Remember how the primaries were called for Clinton before they had been held?

Who said "It may not be good for America, but it's damn good for CBS"? (Hint: not the Russians).

Somebody get these people a couple of the Class Action Lawsuit against the DNC and point them to

The Russians didn't have as much influence on the whole mess as did internal forces who are enjoying having everyone look everywhere besides where the real problems lie.

Friday, February 16, 2018

Marinus van der Lubbe is long dead.

It had to happen.
I have to point out there are things on my blog like:
Green Parties World Wide: Hey, it's nice to finally know what I am politically!
Sorry, but it wasn't the Russians that influenced my vote: look at the Duopoly for the real culprits.

Not to mention the Electoral College. Or is it true what they say about Catherine the Great?