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The smallest minority on earth is the individual. Those who deny individual rights cannot claim to be defenders of minorities. - Ayn Rand Liberty is an inherently offensive lifestyle. Living in a free society guarantees that each one of us will see our most cherished principles and beliefs questioned and in some cases mocked. That psychic discomfort is the price we pay for basic civic peace. It's worth it. It's a pragmatic principle. Defend everyone else's rights, because if you don't there is no one to defend yours. - MaxedOutMama I don't just want gun rights... I want individual liberty, a culture of self-reliance....I want the whole bloody thing. Kim du Toit
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. . . and so are you  Wahabism Delenda Est      Hey, FEC!  BITE ME! I'm a Member of the McCain-Feingold INSURRECTION!    "Jeez, Kevin... calling you an asshole would be a huge understatement, wouldn't it?" -Jack Cluth, The People's Republic of Seabrook (Coming from you, Jack, it's an honor.)  email: gunrightsAT comcastDOTnet INVITATION: If you have never shot a firearm, regardless of your position on the right to arms, and if you live near or visit the Tucson, AZ metropolitan area, I invite you to go shooting for a day. I will provide the arms, ammunition, targets, safety equipment, range fees and instruction. All you have to do is show up. 6 Takers To Date DO YOU LIVE SOMEWHERE ELSE and want to try shooting? Click HERE  Proud Gun-blogging member of the Pajamahadeen since May, 2003!
Debates: "The Commentary" A OLD discussion on gun control between me and an Irishman living in London Start here. UPDATED! Now with archive! Post #1 by Alex, a Guest A multi-post discussion hosted here at TSM My short exchange with Professor Saul Cornell of the Second Amendment Research Center Best Posts: The "Rights" Discussion: What is a "Right?" What is a "Right"? Revisited, Part I Part II Rights, Morality, Idealism & Pragmatism, Part I Part II Part III Part IV The United Federation of Planets Is the Government Responsible for Your Protection? Part I & Part II 1975 in Washington, D.C. vs. 2004 in Canton, Ohio Go Ahead, Rely on the Government for Your Protection The Other Side Liberal vs. Conservative: Both are Necessary The Mystery of Government The Blog that Ate Poughkeepsie Updated and restated as: Of Laws and Sausages Militias A Mistake a Free People Get to Make Only Once The George Orwell Daycare Center This is NOT What I Wanted to Read TRUST The Lying "News" Media, Pt. II Say WHAT? Bias? What Bias? Agenda? What Agenda? The Church of the MSM and the New Reformation Let's See if I Can "Germinate an Intelligent Thought" Here The ACLU Hasn't Changed its Tune They Never EVER Stop It is Not the Business of Government Five Reasons Why It ISN'T They Keep Making Better Fools Five Month Investigation, 10 Tracer Rounds, Two Felony Convictions That Sumbitch Ain't been BORN! On Guillotines and Gibbets England Slides Further Towards Bondage Pressing the "RESET" Button Freedom's Just Another Word for Nothin' Left To Lose A Terrible Resolve The Courts Will Not Save Us Trilogy: The Road to Hell is Paved with Good Intentions "Game Over, Man. Game Over." An Important Question And the denouement: Hudson Was Wrong The Dangerous Victims Trilogy: "(I)t's most important that all potential victims be as dangerous as they can" Violence and the Social Contract Governments, Criminals, and Dangerous Victims In the same vein: Those Without Swords Can Still Die Upon Them The True Believers Trilogy: True Believers March of the Lemmings Reasonable People Also in the same vein: Tough History Coming The Culture Trilogy Culture Hubris Weltanschauung And its follow-on: In Re: Culture Technical Dissertations Why Ballistic Fingerprinting Doesn't (And Won't) Work Spin, Spin, Spin Speaking of Teddy Kennedy... This is the Kind of Thing That REALLY IRRITATES ME Questions from the Audience?
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PROTESTWARRIOR Some people who are taking the fight to the Left. And some GREAT T-shirts, too. DAILY READS I need a longer day! Day by Day InstaPundit Lileks' The Bleat Mostly Cajun View from the Porch Of Arms and the Law TFS Magnum Ravenwood's Universe Irons in the Fire Say Uncle The Adventures of Roberta X TRUE EXCELLENCE American Digest The Belmont Club Boobs, Injuries, and Dr. Pepper The Volokh Conspiracy Michael Yon Varifrank Eject!Eject!Eject! Eternity Road Oleg Volk ON INDEFINITE HIATUS USS Clueless The Safety Valve Ipse Dixit The Lopsided Poopdeck Acidman (RIP) Skywritings Publicola D.C. Thorton Kim du Toit Personal Effects Smoke on the Water OTHER GUN/RIGHTS BLOGS Airborne Combat Engineer AlphaPatriot Alphecca American Dinosaur A Day in the Life of an Ambulance Driver The Anarchangel Mrs. Anarchangel The Anti-Idiotarian Rottweiler Argghhh! The Bitch Girls Boots and Sabers The Breda Fallacy Gun Nuts Media Carnaby Fudge Clayton Cramer Cogito Ergo Geek Countertop Chronicles Cowboy Blob Critical Mastiff Cryptic Subterranean Found: One Troll FreedomSight From the Heartland Fun Turns to Tragedy!!! The Geek with a .45 Gunwatch Heartless Libertarian Hecate's Crossroad Hell in a Handbasket Individ Justin Buist's Blog The LawDog Files Lead and Gold Les Jones Live from the (upper) Texas Gulf Coast Mad Ogre The Michael Bane Blog Moral Flexibility Mr. Completely Murdoc Online The Munchkin Wrangler Ninth Stage No Looking Backwards No Quarters Oscar Poppa Outrageous Malfunction Pass the ammo Posse Incitatus Random Nuclear Strikes Reasonablenut Resistance is Futile! Sandcastles and Cubicles SlagleRock's Slaughterhouse Snowflakes in Hell Surly Curmudgeon Texican Tattler The Ten Ring South Park Pundit Triggerfinger The View From North Central Idaho Vox The War on Guns Weck Up To Thees! Wince and Nod Xavier Thoughts .45 Caliber Justice BLOGGERS I'VE MET A Keyboard and a .45  
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Sunday, March 28, 2004 The Road to Hell is Paved with Good Intentions A recent 5th Circuit Court of Appeals decision has hit the radar of those of us concerned over the ever-expanding powers of government in (to us) obvious violation of the Constitutional protections written in to limit that power. I first ran across this latest slip down the slippery slope over at Say Uncle, but the Geek with a .45 and John Donovan have also weighed in. What all three of these bloggers have commented on was this news story from New Orleans, home of the 5th Circuit Court. Court Opens Door To Searches Without WarrantsOur reaction to this story is understandable, I think. We're supposed to trust Capt. Defillo's word that "the power won't be abused" though he says "(t)here are checks and balances to make sure the criminal justice system works in an effective manor." (I think the word "manor" might be a highly appropriate freudian slip.) Yes, we're supposed to trust our overlords who just removed one of those "checks and balances" - checks and balances that aren't there to ensure the criminal justice system works effectively, but there to ensure that the rights of the individual are protected against government abuse. And these words come from a spokesman for a police department with a serious record of corruption. This is not encouraging. I've just begun reading Professor Randy Barnett's latest book, Restoring the Lost Constitution, which opens with the following: Growing up, I was like most Americans in my reverence for the Constitution. Not until college was the first seed of doubt planted in the form of an essay by a nineteenth-century abolitionist and radical named Lysander Spooner. In his best-known work, No Treason: The Constitution of No Authority (1870), Spooner argued that the Constitution of the United States was illegitimate because it was not and could never have been consented to by the people on whom it is imposed. Although as an undergraduate I found Spooner's argument unanswerable (and I must admit so it remained until I was in my forties), the problem was largely theoretical. My mind may have doubted, but my faith remained.Now, bear in mind IANAL (I Am Not A Lawyer), but I've read a LOT of case law over the last ten years or so in my study of the legal history of the right to arms and other rights of the individual, and I've found precisely what Prof. Barnett describes here - a slow but steady erosion of the power-limiting restrictions of the Constitution until the Constitution really doesn't mean anything any longer as far as a restriction on government power. Just two weeks ago my opinion was validated by Justice Antonin Scalia, who said during a speech in New Orleans: It is literally true that the U.S. Supreme Court has entirely liberated itself from the text of the Constitution.Knowing what I know about the accuracy of the press, I decided that I should once again go straight to the source, and read the decision to determine for myself just how bad it was. The case is U.S. v. Gould, and the decision was published last Wednesday. It was an en banc re-hearing by fifteen justices, including justices Garwood and DeMoss, who found in U.S. v. Emerson that the Second Amendment protected a right of the individual - the first rollback of any kind regarding judicial protection of the right to arms in any Federal court since 1939. The basics of the case are relatively simple: Louisiana deputy sheriffs, having received on October 17,2000, a telephone warning that Gould, known to be a convicted felon with a reputation for violence, was planning to kill two local judges, went that same evening to the approximately 14 x 16 foot trailer where Gould lived to talk to him, not then intending to arrest him. The officers, who had neither a search nor an arrest warrant, were admitted by another resident of the trailer, Dennis Cabral, who said Gould was asleep in his bedroom. The officers entered and proceeded down the hall towards the bedroom Cabral had indicated. The bedroom door was open, but the officers did not see Gould, and they then conducted a brief protective sweep for him, looking under the bed and opening the door to each of the two bedroom closets, in one of which they saw in plain view, but did not then seize, three rifles. They promptly then ran outside and later found Gould hiding in the woods. In subsequent questioning Gould stated he was keeping the rifles for their owner, a female acquaintance. Gould was then arrested, executed a consent to search, and the rifles were then seized.Straightforward, no? The cops caught a known violent felon with some guns who had threatened to kill some judges. Score one for the good guys, right? Letting this guy go would have, once again, proven that the courts are "soft on crime," but they did the right thing and now this asshole is behind bars where he ought to be. Right? The decision goes on some 32 pages, citing case after case of precedent before concluding: We hold that a protective sweep as authorized by Buie (Maryland v. Buie (1990)) need not always be incident to an arrest. The district court erred in holding otherwise. Applying the standards and limitations articulated in Buie and the general reasonableness criteria of the Fourth Amendment, we conclude that the protective sweep here was valid. The district court’s suppression order is accordingly REVERSED.This was not a unanimous decision, obviously. No, it was 11-4. There are 30 pages of dissent, and Justice DeMoss's (who was joined by Justice Smith) is the most eloquent and detailed. It starts at page 44 of the opinion, and I strongly recommend that everyone interested in individual right read the whole thing to see the mechanism of incrementalism thoughtfully dissected. Excerpts: This case presents the difficult issues of: (1) whether the protective sweep exception defined by the Supreme Court in Maryland v. Buie, 494 U.S. 325 (1990), is limited to situations involving the execution of an arrest warrant as we held in United States v. Wilson, 36 F.3d 1298 (5th Cir. 1994); and if not (2) whether the search in this case was reasonable. In addressing these two issues, I think the majority makes three significant errors. First, the majority’s starting point in its Fourth Amendment analysis concerning a warrantless search of a home is faulty and therefore the majority does not fully account for the lack of consent in this case. Second, the majority’s reliance on the so-called "clearly" legitimate "knock and talk" police investigatory tactic is misplaced and therefore the majority’s holding leads to an end-run around the Fourth Amendment’s protections. Third, the majority has misconstrued the holding of the Supreme Court in Buie. I will address these three errors in order.Justice DeMoss goes on for a while documenting his position in detail. On to error number two: In satisfying its first requirement of this newly created exception to the protections afforded by the Fourth Amendment, i.e., that the officers were legally present in the mobile home, the majority relies on the "knock and talk" police investigatory tactic mentioned in United States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001). The majority refers to this practice as being "clearly... recognized as legitimate." The "knock and talk" tactic is hardly well-established law. The Fifth Circuit case establishing the concept of "knock and talk" merely states that "[t]his investigative tactic is not inherently unreasonable." Jones, 239 F.3d at 720.Again, justice DeMoss goes on to make his case eloquently. Finally, error number three: We decided to review en banc the Gould case to determine: (1) whether the rule established in Wilson that a protective sweep of a home was limited to an arrest situation, as defined by the Supreme Court in Buie, was correct; and (2) if the protective sweep exception to the search warrant requirement is not limited as Wilson and Buie indicate, whether the warrantless search of Gould's bedroom was reasonable.So, once again we have an example of what 9th Circuit Justice Alex Kozinski described in his dissent to the decision not to rehear Silveira v. Lockyer: Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that "speech, or . . . the press" also means the Internet...and that "persons, houses, papers, and effects" also means public telephone booths....When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases - or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.They're obviously able to do the same thing with prior case law, as well. But here's the kicker in the dissent that really got my attention: Finally, in my view this case should have never been prosecuted in federal court. The original criminal conduct which precipitated the arrest was strictly local in nature: one Louisiana resident (Forehand) reported to the sheriff of one Louisiana parish (and not to the FBI, the DEA, the ATF, or the U.S. Marshall Service) that another Louisiana resident (Gould) had made oral threats to kill two Louisiana judges (not federal judges) and some other Louisiana residents (not residents of another state) apparently because of a proceeding of some sort in a Louisiana court (not a federal court) relating to a state law claim (not a federal question). If the admonitions in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000) about drawing a line between local and national interests have any meaning at all, then this criminal investigation would have undoubtedly fallen on the local side of the line. All of the law enforcement actors in this case were state officers.It has been a continuous theme on this blog that I believe that, through a slow but steady incrementalist approach, we have been stripped of the rights we as individuals are supposed to have under the Constitution as it was originally framed. This is the "slippery slope" argument, perhaps now the "road to hell" argument, and it is not limited to just the right to arms. Decisions like this one are but larger blips on a radar screen that is completely fuzzy with the chaff of earlier, less alarming but prerequisite decisions. We've had over 200 years of case law to fold, twist, spindle and mutilate to get where we are today. I cannot put it more plainly - our freedoms are disappearing, and they are doing so through the conscious and unconscious machinations of all three branches of government, and in the majority with "good intention" on the part of the lawmakers and the judges who interpret those laws. Justice Brandeis also said in Olmstead, Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.We are frogs in the pot, but the mechanism that turns up the heat is human nature - the desire for immediate safety and security, without regard to future effect. In this case, a known violent felon was found to be in possession of firearms after he allegedly threatened to kill. He's off the street, we're all safer. But we're all less free than we were on March 23. In University of Texas Law professor Sanford Levinson's Yale Law Journal article The Embarrassing Second Amendment he wrote: One would, of course, like to believe that the state, whether at the local or national level, presents no threat to important political values, including liberty. But our propensity to believe that this is the case may be little more than a sign of how truly different we are from our radical forbearers. I do not want to argue that the state is necessarily tyrannical; I am not an anarchist. But it seems foolhardy to assume that the armed state will necessarily be benevolent. The American political tradition is, for good or ill, based in large measure on a healthy mistrust of the state. The development of widespread suffrage and greater majoritarianism in our polity is itself no sure protection, at least within republican theory. The republican theory is predicated on the stark contrast between mere democracy, where people are motivated by selfish personal interest, and a republic, where civic virtue, both in common citizen and leadership, tames selfishness on behalf of the common good.Yes, our Constitution was written by men with an inherent distrust of the State, and it was written as a mechanism to limit the power of the State in favor of the rights of individuals, but that mechanism has failed. As Professor Barnett puts it in the introduction to Restoring the Lost Constitution: Had judges done their job, this book would not need to be written. Since adoption of the Constitution, courts have eliminated clause after clause that interfered with the exercise of government power.Captain Marlon Defillo of the NOPD tells us not to worry, the new police power to search without a warrant won't be misused. Trust us, we're from the government, and we're here to help you. If you haven't done anything wrong, you have nothing to fear. It's for your safety and security that we take another bit of your rights away. You're not responsible enough for them, anyway. Let me conclude with another bit from Judge Kozinski's dissent in Silveira: The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed - where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.The courts long ago lost their "courage to oppose" if they ever really generally recognized their responsibility to. They've been aiding and abetting the expansion of government power at the expense of the Constitution since shortly after ratification, and if they can eventually no longer find anyone to enforce their decrees, it might be because of decisions like the 5th Circuit's Gould finding of last week. We are, as time goes on, less and less a free people, and we are less free because we allow our government to expand its power. We're too busy living our lives, and we're too human in our desire to be safe and secure. Freedom is dangerous. Freedom is risky. And freedom must be paid for, either through "eternal vigilance," as Jefferson warned, or through conflict, as Robert Heinlein wrote in his novel Starship Troopers, As to liberty, the heroes who signed the great document pledged themselves to buy liberty with their lives. Liberty is never unalienable; it must be redeemed regularly with the blood of patriots or it always vanishes. Of all the so-called natural human rights that have ever been invented, liberty is the least likely to be cheap and is never free of cost.We've abandoned our vigilance. Our islands of liberty are constantly shrinking in the ever-rising sea of governmental powers. In Prof. Barnett's book there is supposedly a way to restore our "presumption of liberty" without armed conflict. I hope there is. Because without a way to reverse this trend peacefully, the only choices left to us are submission or armed revolt. I don't know yet if we've proceeded down the slope to the point of no return, and I don't think we can know until we get that empty feeling in the pits of our stomachs that free-fall induces. But by then, the road to hell will have reached its destination. | | |
