Glebewise: January 2013

Today, I want to underscore that aspect of public debate having to do with the just and civilized society, specifically civility and non-violence. I want my comments to be non-partisan and disinterested. I will certainly gauge my success here in this attempt on scores of fairmindedness and public service to my fellows.

When we honor one another in discourse we stop to truly hear what is offered. What I hear in my counterparts in the pro-gun rights sectors of society is not a unified party of concern. I dare say that the same is to be found in the anti-gun rights sectors of society. We all know that most of our fellows are not about to resign themselves to being pro or anti gun. That is well and good, as I see it. Most of us at least mind our own business (and indeed I do not seek to come between the shepherd and the predator wolf), and I believe that is a wise posture.

Also, for the most part the majority of us want the individual to succeed in lawful exercise of rights by persons who are not unbalanced, but balanced by the responsibilities that comes with exercise of a right.

Yes, and as to who is balance or not, we are dealing with a moving target for the person balanced on day one of dispute is imbalanced by day two, or three. Lock boxes for guns and separately locked and secured ammunition might serve to protect the errant spouse from his or her own resort to gun violence (this is so when the element of premeditation is supplied by going to retrieve the ammunition).

On the score of domestic relations, the gun lobby would speciously like it held that guns are "neutral.'' I think not, for if one spouse or "significant other" is armed and the other not, the one with the gun has what lay people call "leverage." Do they mean guns are an "equalizer"? That's problematic and sounds more like the O.K. Corral than the bedroom. I'd say that it's an insanity for the National Rifle Association to monitor the use of firearms in the context of both spousal abuse and spousal self-defense from abuse (and the NRA being sane would not deal with the craziness our police officer's have to deal with every night when called to a domestic abuse scene in which a firearm is wielded or the dead or dying lie upon the ground). How quickly do we as a society want to come between the spouses. We just bear the huge societal costs exacerbated by gun play, gun intimidation, gun violence, and self-defense by gun.

Each human freedom permits the division of society. Early on in the Republic, farmers in exercise of economic freedom did not want to pay the federal tax on whiskey during the first decade after ratification of the Constitution. In 1798, George Washington had to march out with troops to put down the Pennsylvania farmers who had committed acts of violence against revenue agents of the federal government. The Congress in its efforts to pay down the debt of the Revolutionary War ran smack dab into the very same anti-tax crowd types as intimidated British troops on Boston Commons in the run up to the Revolutionary War.

Obviously prior to the Whiskey Rebellion, Congress in its wisdom had seen fit to tax a segment of the economy (a tax that avoided a per capita tax on the wealthy and exploited the Commerce Clause and Federal Government's regulatory powers of commerce). In a democracy, the minority if it can be legally identified for purposes of taxation can contest the federal powers thereby exercise, but only in a court of law with the authority to hear the complaint. Congress had provided the federal trial courts where the federal tax law could be challenged.  Thereby, Congress, unlike the British Parliament its predecessor in interest, would succeed, where Parliament had failed, by providing redress of grievances.  Remember the slogan, "No taxation without representation"?   The Pennsylvania farmers had representatives in Congress. The States had elected Washington President. The tax protestors had no credibility in 1798 after they had committed acts of violence against the revenue agents.

The reality is that the Congress can by its regulatory powers identify every item in interstate commerce and subject it to federal regulation and tax.  One may hate that political reality, one may even seek to amend the Constitution to effect a different outcome, but what one may not do is take up insurrection against the lawful seizure of goods (arms or whiskey) which are subject to federal regulation. However, once the gun owner has come by possession of a weapon subject to regulation and tax, the Second Amendment at least arguably procures for its owner a right of possession. Once the weapon is used in a crime, the weapon becomes subject to seizure, even at a time when all the pretext the law enforcement official has in making the seizure is probable cause sufficient for writ of arrest or seizure, or, in certain circumstances, seize the weapon upon later established extant and then present exigent circumstances at time of seizure.

While we all idealize the defense of the home as a basis for individual right of gun possession and ownership, the reality is that actual use of the gun must withstand criminal analysis by state and in some circumstances federal prosecutors. While the defense available in killing or maiming another in the defense of life is recognized in the law, the defendant claiming the defense must succeed in establishing that there was no means of retreat from threat of harm to self or another from an assailant and likewise that any force used to procure one's safety was such reasonable force as to effect one's safety, and no more.

Yes, most state jurisdictions have sought to insulate the defender of the home from an impolitic charge which a prosecutor should be wary of attempting to prosecute. In reality, most jurors in such a contest would give the defendant home owner the benefit of a doubt and thus entertain seriously a reasonable doubt that sufficient criminal mens rea was present to convict one of a criminal act of violence. The burden of proof though is on the defendant who must labor to establish by evidence and credible testimony a reasonable self-defense or defense of another from assault (threat of serious bodily harm). In states which sound like a private home should be a shooting range, the UPS man should not be shot dead first and then and only then check his credentials for coming onto one's property. I for one would not want to be a meter reader or a police officer executing a warrant in such a state. There is lunacy, and then there is state lunacy.

Notice that this discussion has nothing to do with those aspects of licensing and purchaser identification which are part of the federal right to regulate interstate commerce. If you'd like to argue in favor of intrastate gun purchase or ownership not having to do with interstate commerce, you'd still have to withstand state interest in tracking a gun's origin backwards in time from the commission of the crime (which includes conspiracy) in which the weapons is used in a crime of violence (or even property fraud or theft for that matter).

Finally, the gun lobby control of Congress has led to armed and dangerous sociopaths and psychopaths at large in society.  Also, by its lack of will, Congress permits such individuals ban together in private militias or conspiracies which contemplate acts of violence against lawful authority with which they may take issue given sufficient instigation by purveyors of evil in the lives of persons who are led astray by fears and hatreds of their fellows.

The only reason that we have such profligate gun practices is the politicization of the Second Amendment by the gun manufacturers and the munitions industry that benefits from unbridled gun sales and profiteering. Free speech is more tightly monitored and controlled than gun ownership. I daresay that the prevalence of armed militia's who contemplate violence in defense of a way of life in some parts of our country is not well appreciated. I do not doubt that such mad persons who toy with violence of insurrection are more subject of federal agent infiltration, or at least should be, than any free speech group that simply wants political play in the marketplace of ideas.

The Ku Klux Klan model of armed resistance to federal law is and should ever be the subject of investigation and infiltration by law enforcement. Sedition in time of war in which issue is taken with the federal government conduct of war is certainly the target of federal infiltration and surveillance, and so must be even the so called peace time organizations of those who contemplate and act upon plans of armed resistance to federal law enforcement. The lawful check on federal agents must rest in our resort to the courts and our legal system. You may not like that, but such is our system of laws.

In effect, if anyone is in the business of a private militia, as opposed to the militia effected by law, and would oppose enforcement of the law by firing on a federal agent, that person is involved in a criminal conspiracy and without ever a shot being fired. They must in the face of a lawful order, lay down their arms and vacate the field.  There is no recourse in firing a weapon at a federal official (or for that matter an officer of a state government). Even a Southern plantation owner like George Washington understood that premise for quelling acts of insurrection of men like who like himself were land owners. George Washington on that day procured for his young country a domestic peace that would prevail for the most part until John Brown's Harpers Ferry federak arsenal raid and then not much later the rebels of South Carolina siege of the federal forts to bring the federal government itself under attack.

I do not speak here to the purveyors of death among and concealed in the Second Amendment advocates. No, rather I speak to the law abiding Second Amendment advocates: do not bank on violence, but resort to your political and civil discourse; caution yourself and restrain yourself and talk or writing of taking down the lawful government of the United States of America.  If one in your company speaks of such evil, you must stand the test of your loyalty and lawfulness. Be of service and ask of the purveyors of death that such persons step down from positions of trust and authority in your political organizations. Separately, such individuals must be identified to the authorities for indulging in criminal conspiracies if such be their plans and deeds. In having specific plans for acts of resistance or violence, the mere purchase or loading of a weapon completes the criminal conspiracy as between at least two persons.

Best wishes to those who further public discourse on gun control laws which regard the right of private ownership of guns subject of course to lawful control and restraint of dangerous instrumentalities to other family members, our fellows, and our society of law abiding persons. The violence against women and children must stop. The desensitizing of elements of society about the propensities inherent in killing without regard for the loss of life or serious bodily injury must stop. Everyone has a part to play in our regard for life and civil society.

Glebewise

Sunday, January 20, 2013

Congress has sufficient power to control commerce in weaponry

Tuesday, January 8, 2013

Meditation on My Other Self