Fw: Whom, specifically, is our greatest ally? - (spoiler: Australia) - [PEACE]

jim bell jdb10987 at yahoo.com
Sun Nov 3 11:53:27 PST 2019


 I'm going to re-send this, because after over a hour it doesn't seem to have appeared on the list.
          Jim Bell
   ----- Forwarded Message ----- From: jim bell <jdb10987 at yahoo.com>To: Steven Schear <schear.steve at gmail.com>Cc: cypherpunks <cypherpunks at lists.cpunks.org>; Razer <g2s at riseup.net>Sent: Sunday, November 3, 2019, 10:30:21 AM PSTSubject: Re: Whom, specifically, is our greatest ally? - (spoiler: Australia) - [PEACE]
  On Sunday, November 3, 2019, 01:52:45 AM PDT, Steven Schear <schear.steve at gmail.com> wrote:
 
 
 >>"I think that in America, gun laws cannot Constitutionally be any stricter that they were in 1789, when the Bill of Rights of voted, and 1791, when it was ratified by states."
>Of course they are more strict.

I will try to be clearer.  In virtually any environment, there is "the way things are supposed to be" and there is "the way things actually are".  One major source of this discrepancy, in the American gun-rights situation, is that until 2010, in the Supreme Court decision McDonald v. Chicago   https://en.wikipedia.org/wiki/McDonald_v._City_of_Chicago   the Bill of Rights had continued to be only selectively enforced on the States themmselves.   There was a very long period of the practice called "incorporation"  https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights    So, for essentially over 200 years, states didn't necessarily feel bound by the wording of the Second Amendment.  
I never thought that this "incorporation" concept made any sense.  It effectively amount to "exclusion" of the principles of the BOR to the States, despite the fact the requisite 3/4s of the then-existing states had ratified the relevant Amendment.  What, exactly, did their "ratifications" actually mean, if not to comply with the wording of the Amendments they had just ratified.   If those Amendments could be interpreted to apply to those States, of course.
It's further illogically applied:  Notice that the 1st Amendment begins, "Congress shall make no law...".  Apparently, the Federal Congress, that is.  Not the State legislatures, it seems.   So,if any Amendment is written so as to seem to apply only to the Federal Government, it must be the First!   Yet, there has long been essentially no dispute that the 1st Amendment ALSO applies to the States themselves.   That is certainly a good idea, but I dare you to try to find out the actual, Constitutional justification for deciding that's the way things have to be done.  
And when the Second Amendment declares that it "shall not be infringed", there is no indication at all that the ratifying States immediately intended to exclude themselves from this obligation,   Where did that idea come from?


 >When these Amendments were written each state had militias controlled by their governors,

I don't think that's precisely true.  Saying that "each state had militias" can be interpeted in at least two ways:1.   There are militias acting within the territory of each state.       OR2.   [The Government] of each state owns or controls [some of?] the militias acting within each respective state.
These are distinctly different concepts.  I think State Constitutions generally give such Governors power "to call out the militia".   But the way law works, that does not automatically mean that those militias become obliged to obey that call.  I realize that might seem to be a fine distinction, especially to a non-lawyer, but the way American Constitutions are interpreted, the absence of a explicit reference to an power has (at least used to be!) interpereted as the ABSENCE of that power.   When States wrote their Constitutions, they (I think correctly) recognized that if "the Government" was to EVER have the authority to "call out" a militia, that power had to be listed in the Constitution itself.  And it was.
 "and these rights were linked to militia membership."
That reasoning is excluded by the 2008 Heller and the 2010 McDonald decisions.  Sure, that was long the position of "the powers that be", and the chattering leftist political classes especially, but the Heller decision destroyed that concept forever.    https://supreme.justia.com/cases/federal/us/554/570/#tab-opinion-1962738 
>From the Heller decision:    "Logic demands that there be a link between the stated purpose and the command. The Second Amendment would be nonsensical if it read, “A well regulated Militia, being necessary to the security of a free State, the right of the people to petition for redress of grievances shall not be infringed.” That requirement of logical connection may cause a prefatory clause to resolve an ambiguity in the operative clause (“The separation of church and state being an important objective, the teachings of canons shall have no place in our jurisprudence.” The preface makes clear that the operative clause refers not to canons of interpretation but to clergymen.) But apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause. See F. Dwarris, A General Treatise on Statutes 268–269 (P. Potter ed. 1871) (hereinafter Dwarris); T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 42–45 (2d ed. 1874).[Footnote 3] “ ‘It is nothing unusual in acts … for the enacting part to go beyond the preamble; the remedy often extends beyond the particular act or mischief which first suggested the necessity of the law.’ ” J. Bishop, Commentaries on Written Laws and Their Interpretation §51, p. 49 (1882) (quoting Rex v. Marks, 3 East, 157, 165 (K. B. 1802)). Therefore, while we will begin our textual analysis with the operative clause, we will return to the prefatory clause to ensure that our reading of the operative clause is consistent with the announced purpose.[Footnote 4]"     ===========end of Heller quote======================


> This which dramatically changed in 1903, when Congress became Dicks.

Some would argue that Congress was ALWAYS Dicks.   And I couldn't disagree,

>https://en.m.wikipedia.org/wiki/Militia_Act_of_1903

>Since then the restrictions have only gotten tighter. Today, there are effectively no militias.

Returning to the "the way things are SUPPOSED to be" vs.  "the way things are actually done" issue, I have explained that:  "Incorporation" wasn't applied to the 2nd Amendment until 2010, and maybe not even today!   I argue that in 2010, State legislatures became all obligated to "clean house" of newly-discovered-to-be-unconstitutional laws, due to the McDonald decision.  But to my knowledge, none of them ever did so.   Implicitly, this means that they are thumbing their Legislative noses at the Supreme Court.  As if they are saying, "Just try to make me!... Nyah! Nyah!! Nyah!!!".  
But that doesn't mean that my interpretation is wrong, nor Heller's, nor McDonald's.  Just that those interpretations aren't currently RESPECTED by legislatures, as reflected in their state laws.  So while you can certainly point out hundreds or even thousands of current State laws, their existence doesn't mean that they don't violate the current interpretation of the U.S. Constitution by the U.S. Supreme Court.

>https://mises.org/wire/when-state-governors-tried-take-back-control-national-guard

>I interpret this change to mean these rights originally conferred to the states now Constitutionally belong to the nation's individuals.

Well, since the late 1800's, there has been the foundation of the 'National Guard' organization(s) in presumably each state.  But it is merely an implication to suggest things like, 'now we don't need militias', or worse, 'we can now ban militias, since the National Guard substitutes for it."  Or even worse, 'since we no longer have militias, none of the 2nd Amendment rights are valid anymore.'    (I'm not suggesting you said these things, merely that such implicit arguments have frequently been cited by (mostly liberal?) debaters, and much of the clueless populace, lacking any sort of legal education, accepts them without apparent question.)
https://www.youtube.com/watch?v=zruWCuNmWV8
"You come in here with a skull full of mush, and you leave thinking like a lawyer",    The Paper Chase, 1973.   When I originally saw this movie, in the theater, I had no idea how accurate this statement was.  And of course, I also had no idea that I would eventually be giving myself much of a lawyer's legal education 30 years later, and then understanding what "Professor Kingsfield" meant.
Yes, there IS something which could be called "thinking like a lawyer".  Figuring out the precise meaning of words, sentences, and paragraphs.  But as importantly, the ability to understand (and reject) tantalizingly attractive implications that might actually not be a proper way of thinking of some issue.  Just because a Governor may have the authority to 'call out the militia', does not necessarily mean that the militia is obliged to obey him.   Yes, that's a hard concept to grasp.  From the Wikipedia article:  https://en.wikipedia.org/wiki/Militia  

"Militias thus can be military or paramilitary, depending on the instance. Some of the contexts in which the term "militia" is used include:
   
   - Forces engaged in defense activity or service, to protect a community, its territory, property, and laws.   [3]   

   - The entire able-bodied population of a community, town, county, or state, available to be called to arms.      
      - A subset of these who may be legally penalized for failing to respond to a call-up.
      - A subset of these who actually respond to a call-up, regardless of legal obligation.



[end of quote from Wikipedia]
Now, a state might hypothetically have a LAW requiring a militia member to respond to a call.   But that law would not necessarily be Constitutional, and that law might be interpreted by a court that it violates the 2nd Amendment.  Such laws, of course, have been rarely, if ever, actually challenged and decided on.  (There is virtually never a NEED to:  If there is a genuine emergency, no doubt that most militia people would respond, and the few who fail to respond would be ignored).
The Founding Fathers, being a product of the then-recent American Revolution, deeply distrusted centralized government power.   Their view of "a militia", I believe, was that of armed force of neighbors who were entitled (virtually by natural rights) to band together to defend their community.  NOT a group of people who only got that power to group from government, with the idea that this could be taken away at a moment's notice, and who were somehow obliged to act only under their State's beck and call, and could be demanded to show up on cue.
I think the (certainly the current!) Supreme Court would decide that no, while the Governor had the (positive) authority to 'call out the militia', nevertheless that militia had no obligation at all to obey that call, if that was their choice.   And they might even show up intending to shoot the Governor !
These are the kind of distinctions that few non-lawyers comprehend.
            Jim Bell


On Sun, Nov 3, 2019, 5:13 AM jim bell <jdb10987 at yahoo.com> wrote:

 On Saturday, November 2, 2019, 08:11:34 PM PDT, Razer <g2s at riseup.net> wrote:
 

On November 2, 2019 5:28:58 AM PDT, Zenaan Harkness <zen at freedbms.net> wrote:
>>For those who missed the memo, in Australia, "cunt" is the most
>>endearing term used between two blokes who are great friends and have
>>been for a long time.
>
>Between absolutely anyone else at all, the word is one of, if not
>>the, worst possible slurs.
>
>>When in polite company, it is strongly advisable to not use the term
>>at all, even when your best long term friend rocks up, since others
>>may not take so kindly to such colloquial speach in such situations.

>Aussie Thomas Violence says:

>"I love little cultural differences, like how Americans are super offended by the word cunt but here in Australia we're super offended by school children being slaughtered with automatic weapons"
Sure he said that!  The current difference between America and Australia is that the latter generally banned guns a few years ago, and mostly America hasn't done that.  It's called the "Second Amendment", and my interpretation fairly closely agrees with the 2008 Supreme Court case D.C. v. Heller.  I think that in America, gun laws cannot Constitutionally be any stricter that they were in 1789, when the Bill of Rights of voted, and 1791, when it was ratified by states.  That's the meaning of the term "infringed", with its root-word "fringe".  
I assert that this means that the RTKBA cannot be further limited, even around the "fringed".  Why this wording?  Well, if the wording had says, "the right to keep and bear a gun shall not be denied", some slick politician some day would decide that if 'they' banned any gun with more power than 1/4 of a 0.22 pistol, they still hadn't actually DENIED people's rights to own a gun, used singular.   Slick.
I can remember about 1966, when "Texas Tower Shooter" Charles Whitman shot people.   It shocked the nation, not merely due to the violence, but because at that time it seemed to be such an astonishing act.   "What has changed", we should ask?  America doesn't have that many more people (and guns) than we did in 1966.  

>Later, on twitter: "heaps of replies i'd like to get to here but i have to turn off the notifications, i'm too busy denying christ, implementing white genocide, making christmas illegal, kneeling during the anthem, and reading up on the automatic gun known as the Assault Rifle 15"
Would we know if that email barrage was actually just a 'false-flag' flood by people simulating some other group of people harassing somebody?   "Fake hate crimes" are extremely common, primarily because they are easy to simulate, and if the person doing that is halfway intelligent, he or she probably won't get caught.   ("Hide the noose in your pocket, walk to the door, look around to make sure nobody is looking and there are no security cameras, and then drop the noose!  Try not to leave any DNA!")

thomas violence on Twitter

Rr
Sent from my Androgyne dee-vice with K-9 Mail





  
    
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: text/html
Size: 32124 bytes
Desc: not available
URL: <https://lists.cpunks.org/pipermail/cypherpunks/attachments/20191103/99479d01/attachment.txt>


More information about the cypherpunks mailing list