New Second Amendment Lawsuit

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Don Hamrick, pro se ) 18 U.S.C. § 1964(c) RICO Treble Damages

5860 Wilburn Road ) 42 U.S.C. § 1983; § 1985; § 1986; § 1988
Wilburn, AR 72179 ) 42 U.S.C. § 1402(a)(1)
PLAINTIFF ) SEAMEN’S SUIT, 28 U.S.C. § 1916
AS PRIVATE ATTORNEY GENERAL ) FOR MY OWN RIGHTS AND FOR THE RIGHTS
v. ) OF THIRD PARTIES (JUS TERTII DOCTRINE)
United States, et al ) CIVIL ACTION NO. _______________________
DEFENDANTS ) JURY TRIAL DEMANDED
RICO Act Damages Sought: $ 14.4 million (2002) Plus Damages for Denial of 1st & 7th Amdt Rights
“res integra jus naturale et justita ferenda”

“A case of first impression on the law of nature and justice as it ought to be.”
This Case is Not to be Assiged to Judges Huvelle, Walton, Leon, or Collyer for Judicial Bias
COMPLAINT
For the Full Scope of Second Amendment Rights and the
Human Right to “Openly” Keep and Bear Arms
in Intrastate, Interstate and Maritime Travel
(The Flip Side to Heller)
(1). HUMAN RIGHTS COMPLAINT UNDER THE TREATY CLAUSE;
(2). CIVIL COMPLAINT UNDER THE CIVIL RICO ACT AND THE FTCA;
(3). PETITION FOR WRIT OF MANDAMUS;
(4). PETITION FOR WRIT OF PROHIBITION;
(5). PETITION FOR DECLARATORY JUDGMENT; AND FOR INJUNCTIVE RELIEF
(1). Invoking My Private Right of Action under the AMERICAN DECLARATION ON THE RIGHTS AND
DUTIES OF MAN to Enforce My Human Right and My Seventh Amendment Right to a Civil Jury
Trial after Six Years of Fraudulent and Unconstitutional Summary Judgments on Motion to
Dismiss Denying My Seventh Amendment Right to a Civil Jury Trial;
(2). Invoking My Right as a Victim of the United States Government’s Abuse of Power to Act as a
Private Attorney General under the Civil RICO Act as a Civil Remedy for Obstructions of Justice,
Judicial Extortion Under Color of Law, Judicial Extortion Under Color of Official Right
(Racketeering), Fraud and False Statements in Six Years of Fraudulent and Unconstitutional
Summary Judgments, and for Racketeering an Unlawful and an Unconstitutional Protection
Scheme Over the Second Amendment;
(3) For Damages from Defamation, Retaliation, and Harassment for Exercising My Constitutional
Rights and My Human Rights in the Interest of Freedom and Justice.
“If liberty is worth keeping and free representative government worth saving, we must stand for
all American fundamentals -- not some, but all. All are woven into the great fabric of our
national well-being. We cannot hold fast to some only, and abandon others that, for the moment,
we find inconvenient. If one American fundamental is prostrated, others in the end will surely
fall. The success or failure of the American theory of society and government, depends upon our
fidelity to every one of those interdependent parts of that immortal charter of orderly freedom,
the Constitution of the United States.”
Albert J. Beveridge
The Assault Upon American Fundamentals
45 REPORTS OF AMERICAN BAR ASSOCIATION, 188, 216 (1920).
“My litigious history these past six years prove, by judicial fiat, that I have no enforceable
statutory, constitutional, or human rights under the law as a seaman being a Ward of the
Admiralty or even as a private citizen of the United States acting in the capacity of a private
attorney general or as a human rights defender. Being stripped of enforceable rights I am
relegated to the status of a non-citizen subject or slave held to involuntary servitude, the
consequences of denied justice for constitutional wrongs committed by the United States not only
in violation of the Bill of Rights, the Thirteenth and Fourteenth Amendments but also in violation
of the International Bill of Human Rights and other human rights treaties. Push further my rights
in the name of justice and freedom I risk arrest and prosecution under federal charges by the
United States.”
Don Hamrick, the Unrepresented Civil Plaintiff.
THE TABLE OF CONTENTS
TABLE OF CONTENTS
PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS, RULE 201(D), FED.R.EV. .....................1
A. Summary Judgment Dismissal is Barred Due Plaintiff’s Human Rights Complaint against the
United States alleging Judicial Bias and Loss of Integrity in the Federal Judicial System under
the Canons of Ethics ..........................................................................................................................1
B. Summary Judgment Dismissal is Barred due to Two Open Invitations from the U.S. Supreme
Court for Second Amendment cases and One Open Invitation for a Right to Travel Case. My
Case Presents a Right to Travel with Second Amendment rights. .......................................................6
(1). First Invitation by SCOTUS: Second Amendment (1997).......................................... 6
(2). Second Invitation by SCOTUS: Right to Travel (1999) ............................................. 6
(3). Third Invitation by SCOTUS: Second Amendment (2008) (Again!) ........................ 10
C. Summary Judgment is Unconstitutional and a Fraud. Summary Judgment under Bell Atlantic
Corp. v. Twombly is a stealthy encroachment upon the Seventh Amendment right to a Civil Jury
Trial. ...............................................................................................................................................10
D. WWII and the Fighting Merchant Marine....................................................................................18
E. WWII MEMOS: U.S. Merchant Marine Are Members of the Armed Forces ................................19
F. The Federal Courts have become the Judicial Praetorian Guard protecting the United States
from its own People in the war over the Bill of Rights......................................................................19
G. Justice Harlan’s Dissent on Arbitrary Exercise of Government Power and Oppression in
Downes v. Bidwell, 182 U.S. 244 at 376-382 (1901).........................................................................20
H. Dismantling of Private Attorney General Endangers Civil Rights ................................................22
I. Anarchy and Treason in the Federal Courts: Are Political Ideologies the New Rule of Law
Now?...............................................................................................................................................24
(1) Summary Judgment is Unconstitutional: The Judge and Jury are Now One in the
Same!............................................................................................................................ 24
(2) Is the Eleventh Amendment Unconstitutional? ......................................................... 25
(3) Will the Lower Federal Courts Rebel Against Heller? .............................................. 25
J. The Federal Courts and the U.S. Department of Justice have Obstructed Justice by
Unconstitutionally Denying my Seventh Amendment Right to a Civil Jury Trial..............................25
(1). Case Law ................................................................................................................ 27
(2). Kendall W. Hannon, Note, MUCH ADO ABOUT TWOMBLY? A STUDY OF THE
IMPACT OF BELL ATLANTIC CORP. V. TWOMBLY on 12(b)(6) Motions, 83 Notre Dame
L. Rev. (forthcoming April 2008) .................................................................................. 28
(3). Charles B. Campbell, A “Plausible” Showing After Bell Atlantic Corp. v.
Twombly ....................................................................................................................... 28
(4). Barry G. Sher, Kevin C. Logue and Asa R. Danes BELL ATLANTIC CORP. V.
TWOMBLY: THE SUPREME COURT TIGHTENS PLEADING STANDARDS FOR ANTITRUST
CONSPIRACY AND BEYOND; StayCurrent: A Client Alert from Paul Hastings, May
2007, Paul, Hastings, Janofsky & Walker LLP, 875 15th Street, N.W., Washington,
DC 20005, (18 Offices Worldwide) ............................................................................... 35
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K. Judicial Bias and Hostility in the Lower Federal Courts toward Second Amendment Cases is
Common Knowledge....................................................................................................................... 39
(1). Glenn H. Reynolds, Brannon P. Denning, HELLER’S FUTURE IN THE LOWER
COURTS, 102 Northwestern Law Review Colloquy 406 (2008): ......................................39
COURTS, 102 Northwestern Law Review Colloquy 406 (2008) SECTION II. THE
LOWER COURTS AND THE HELLER DECISION: ....................................................40
(3). Glenn H. Reynolds & Brannon P. Denning, HELLER’S FUTURE IN THE LOWER
COURTS, 102 Nw. U. L. Rev. Colloquy 406 (July 2008) CONCLUSION:..........................44
L. Rule 9(d) Pleading Official Document: Heller............................................................................ 44
M. The Unrepresented Civil Plaintiff, being a Seaman, is a Ward of the Admiralty and Not an
Attorney is Acting in the Capacity of a Private Attorney General under the Civil RICO Act and
in the Capacity of a Human Rights Defender in Accordance with the U.N. DECLARATION ON
HUMAN RIGHTS DEFENDERS (see Exhibit 12) Invoking the AMERICAN DECLARATION ON THE
RIGHTS AND DUTIES OF MAN through the Treaty Clause and through 28 U.S.C. § 1334 FEDERAL
QUESTIONS. ..................................................................................................................................... 44
N. Fed.R.Ev. Rule 406 Habit/Routine Practice of Treason Against the Constitution: We the
People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia,
No. 04-1211 (August 31, 2005) Has Lead the U.S. Department of State to commit Treason By
Giving Away 8 Islands of Alaska to Russia Without the Advice or Consent of the U.S. Senate,
the Governor of Alaska, the people of Alaska, or event the people of the United States.................... 45
(1). Citing State Department Watch: Voice for the American Public’s Interest:...............45
(2). The diplomatic message traffic of January 21, 1977 .................................................47
(3). The diplomatic message traffic of January 25, 1977 .................................................49
(4). The diplomatic message traffic of February 24, 1977 ...............................................51
PART 2. THE PRELIMINARIES........................................................................................................................ 53
A. Statutory Waiver of Sovereign Immunity .................................................................................... 53
(1). 46 CFR § 1.01–30 Judicial review. ..........................................................................53
(2). 46 CFR § 1.03–15 General.......................................................................................53
B. Seaman’s Suit Under 28 U.S.C. § 1916....................................................................................... 53
C. Seamen are Wards of the Admiralty............................................................................................ 53
D. Estoppel and Seamen’s Rights .................................................................................................... 55
(1). Huseman v. Icicle Seafoods, Inc., et al, In Rem, ; Ninth Circuit No. 04-35655
(December 27, 2006)......................................................................................................56
(2). Luttrell v. United States, et al., Ninth Circuit. 644 F.2d 1274 (Dec. 4, 1980).............58
E. Resurrecting Neglected Federal Laws For Second Amendment Purposes..................................... 59
(1). 10 U.S.C. § 311. Militia: composition and classes ....................................................59
(2). 10 U.S.C. § 312. Militia duty: exemptions................................................................59
(3). 10 U.S.C. § 332. Use of militia and armed forces to enforce Federal authority..........59
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(4). 10 U.S.C. § 333. Interference with State and Federal law......................................... 59

(5). 10 U.S.C. § 334. Proclamation to disperse ............................................................... 59
(6). 10 U.S.C. § 351. Arming of American Vessels: During war or threat to national
security.......................................................................................................................... 59
(7). 10 U.S.C. § 7851. Composition of the Naval Militia ................................................ 59
(8). 10 U.S.C. § 7854. Availability of material for Naval Militia .................................... 59
(9). 16 U.S.C. § 412. National Military Parks; Camps for military instruction;
regulations for militia .................................................................................................... 59
(10). 18 USC § 245(b)(1)(B). Federally Protect Activities............................................. 59
(11). 23 U.S.C. § 401. Highway Safety: Authority of the Secretary ............................... 59
(12). 23 U.S.C. § 402. Highway Safety: Highway Safety Programs ............................... 59
(13). 23 U.S.C. § 407. Highway Safety: Innovative Project Grants ................................ 59
(14). 32 U.S.C. § 109. National Guard; Maintenance of other troops ............................. 59
(15). 33 U.S.C. § 383. Resistance of Pirates by Merchant Vessels ................................. 59
(16). 42 USC § 2000a. Prohibition Against Discrimination or Segregation in Places of
Public accommodation................................................................................................... 59
(17). 42 USC § 2000a-1. Prohibition Against Discrimination or Segregation Required
by any Law, Statute, Ordinance, Regulation, Rule or Order of a State or State Agency... 59
(18). 42 USC § 2000a-2. Prohibition Against Deprivation of, Interference With, and
Punishment for Exercising Rights and Privileges Secured by Section 2000a or 2000a-1
of this title ..................................................................................................................... 59
(19). 42 USC § 2000a-5. Civil actions by the Attorney General..................................... 59
(20). 42 USC § 2000bb. Congressional Findings and Declaration of Purposes............... 59
(21). 42 USC § 2000bb-1. Free Exercise of Religion Protected ..................................... 59
F. Basis for Jurisdiction ...................................................................................................................60
(1). Under 28 U.S.C. § 1331, Federal Questions............................................................. 60
(2). Under 42 U.S.C. § 1985 Conspiracy to Interfere With Civil Rights.......................... 60
(3). Under 42 U.S.C. § 1985 Conspiracy to Interfere With Civil Rights.......................... 60
(4). Under 42 U.S.C. § 1981 Equal Rights Under the Law.............................................. 60
(5). Under 42 U.S.C § 1982. Property Rights of Citizens................................................ 60
(6). Under 42 U.S.C. § 1983 Civil Action for Deprivation of Rights............................... 60
(7). Under 42 U.S.C. § 2000h–2. Intervention by Attorney General; Denial of Equal
Protection on Account of . . . National Origin ............................................................... 61
(8). Under 42 U.S.C. § 1986. Action for Neglect to Prevent ........................................... 61
(9). Under 18 U.S.C. § 1988. Proceedings in Vindication of Civil Rights ....................... 61
(10). Under 28 U.S.C. § 1343(a), Civil Rights and Elective Franchises........................... 61
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(11). Under 18 U.S.C. § 1964 Civil Remedies [for Racketeering] ...................................62

G. Exceptions to Jurisdiction ........................................................................................................... 62
H. Venue – United States as Defendant ........................................................................................... 63
I. Representations to the Court......................................................................................................... 63
J. Standing to Sue as a Private Right of Action under the AMERICAN DECLARATION ON THE
RIGHTS AND DUTIES OF MAN through the Treaty Clause and 28 U.S.C. § 1331 Federal Questions ..... 64
K. Standing to Sue for Cause and Not for the Status of the Plaintiff for Violations of My Own
Civil Rights, Constitutional Rights, and Human Rights.................................................................... 64
(1). 16 CORPUS JURUS SECUNDUM § 111 Requirement of Standing: ...............................65
(2). 16 CORPUS JURUS SECUNDUM § 113 Facial and As-Applied Challenges ..................66
(3). The Constitution of the United States of America: Analysis and Interpretation of
Cases Decided by the Supreme Court of the United States to June 28, 2002....................67
(4). Standing to Sue: U.S. ATTORNEY’S MANUAL, Title 4: Civil Resource Manual § 35:....70
L. Standing to Sue for the Civil Rights, Constitutional Rights, and Human Rights of Third
Parties (i.e., the Unorganized Militia, 10 U.S.C. § 311(b)(2)), under the Jus Tertii Doctrine............. 71
(1). 16 CORPUS JURUS SECUNDUM § 116 Exceptions to Prohibition of Assertion of
Rights of Third Parties ...................................................................................................71
(2) The Third Circuit & Just Tertii (for the Rights of Third Parties) ................................72
(3). General Principles of Third Party (Jus Tertii) Standing in Amato v. Wilentz 952
F.2d 742; 1991 U.S. App. LEXIS 30138 (1991), ............................................................74
(4) Third Party (Jus Tertii) Standing as Applied to the Plaintiff’s Case ...........................76
M. Standing to Sue as a Private Attorney General under the Civil RICO Act ................................... 78
(1). Citing from David F. Herr, ANNOTATED MANUAL FOR COMPLEX LITIGATION,
(Thomson West, 2006 ed., Chapter 35 Civil Rico, pp. 792-793, footnotes generally
omitted) .........................................................................................................................78
(2). Citing Paul A. Batista, CIVIL RICO PRACTICE MANUAL, 2nd Ed. 2006 Cumulative
Supplement (Wolters Kluwer Law & Busines,) ..............................................................78
§ 6.29 Agencies of the United States as RICO Defendants.........................................78
§ 6.30 ─ Individual Federal Officials as RICO Defendants ........................................78
N. Pre-Enforcement Standing to Sue ............................................................................................... 79
(1). Email from U.S. Marshals Service as Threatening Arrest over Citizen’s Arrest
Warrant is Obstruction of Justice....................................................................................79
O. Stigmatic Harm and Standing ..................................................................................................... 83
(1). Stigmatizing Trait....................................................................................................83
(2). Denial of Equal Treatment .......................................................................................83
(3). The Experience of the Stigmatized...........................................................................84
(4). Questions of Causation and Redressability ...............................................................85
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PART 3. PURPOSE OF THIS CASE ....................................................................................................................87

Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1
A. John S. Baker, Jr., REVISITING THE EXPLOSIVE GROWTH OF FEDERAL CRIMES, The Heritage
Foundation Legal Memorandum, No. 26, June 16, 2008...................................................................88
B. The Over-Criminalization of Social and Economic Conduct ........................................................95
C. The Consequences of Judicial Inaction ........................................................................................97
D. Recognizing the Need for Change ...............................................................................................98
E. Treason by the Federal Courts over the Full Scope of the Second Amendment ..........................100
(1). (August 13, 2008) United States v. Hollis Wayne Fincher, 8th Circuit, No. 07-
2514 and No. 07-2888 ................................................................................................. 103
(2). (June 26, 2008) District of Columbia v. Heller, U.S. Supreme Court, No. 07-290
at 52-53 and 54-56; 128 S.Ct. 2783; 554 U.S.478 F. 3d 370, affirmed. ......................... 103
(3). (August 24, 2004) The Conclusion in the U.S. Department of Justice
Memorandum Opinion for the Attorney General [John Aschroft] WHETHER THE
SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHTS. ................................................ 105
(4). (December 5, 2002) Silveira, et al. v. Lockyer, 9th Cir. No. 01-15098.................... 105
(5). (Revised October 18, 2001) United States v. Emerson, 5th Cir,, No. 99-10331
(October 16, 2001) ...................................................................................................... 106
F. Eighth Circuit’s Faulty Logic on Machinegun Prohibition in United States v. Hollis Wayne
Fincher, No. 07-2514 and No. 07-2888 (August 13, 2008) .............................................................106
(1). Jacob Sullum, WHY NO RIGHT TO MACHINE GUNS? ReasonOnline, June 26, 2008 . 108
G. Open Carry Handgun in Intrastate, Interstate, and Maritime Travel is the Constitutional Norm
Even Though it May Not Be the Social Norm or the Legal Norm Today ........................................109
(1). Nunn v. State, 1 Ga. (1 Kel.) 243 at 251 (1846) (cited, in part, by Heller): ............. 109
(2). State v. Chandler, 5 La. Ann. 489, at 489-490; 52 Am. Dec. 599 (1850) (citied, in
part, by Heller at 40).................................................................................................... 110
(3). Andrews v. State, 50 Tenn. (3 Heisk.) 165, 8 Am. Rep. 8 (1871) (citied, in part, by
Heller at 57) ................................................................................................................ 110
(4). State v. Reid, 1 Ala. 612 at 616, 35 Am. Dec. 44 (1840) (citied, in part, by Heller
at 57)........................................................................................................................... 111
H. What is the Role of the Unorganized Militia, 10 U.S.C. § 311(b)(2) in Federalism and
Homeland Security?.......................................................................................................................111
I. General Synopsis of this Case.....................................................................................................123
J. To Sue For My Own Rights and Pursuit of Justice......................................................................127
(1). To Determine Constitutionality of Summary Judgment Dismissals of My Previous
Cases over the Second Amendment ............................................................................. 127
(2). To Compel Intervention by the Attorney General (42 U.S.C. § 2000h–2)............... 128
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(3). To determine whether I have a civil Gideon right to court appointed qualified
attorney under the American Bar Association’s Task Force on Access to Civil
Justice’s recommendation. ...........................................................................................128
(4). To determine if Mandamus Relief was wrongfully Denied .....................................128
(5). To enforce my Seventh Amendment rights under the Common Law by treaty
under the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN. ......................128
(6). To enforce a proper and uncorrupted judicial review of the FINAL AGENCY ACTION
of the U.S. Coast Guard. ..............................................................................................128
(7). To determine whether provisions for private rights of action should be mandatory
for all statutory rights under federal laws......................................................................129
(8). To determine whether allegations of obstruction of justice against the U.S.
Marshals Service are valid............................................................................................129
(9). To apply the Federal Tort Claims Act for violations of the Seamen’s Suit Law (28
U.S.C. § 1916). ............................................................................................................129
(10). To determine if six years of unconstitutional summary judgments on motion to
dismiss meets the requisite conditions for mandamus relief. .........................................129
(11). To determine whether the Assistant U.S. Attorney Dennis Barghaan of the U.S.
Attorney’s Office in Alexandria committed obstructions of justice. ..............................129
(12). To determine whether the scandal over the politically motivated firing of eight
U.S. Attorneys during the 2006 presidential election effected obstructions of justice
for my civil action at the U.S. District Court for the Eastern District of Arkansas, Little
Rock. ...........................................................................................................................130
(13). To determine whether the U.S. District Court in Little Rock, Arkansas
committed obstructions of justice. ................................................................................130
(14). To determine whether I have any enforceable statutory, constitutional, or human
rights at all in the Courts of the United States. ..............................................................130
K. To Sue For the Rights of Third Parties (Jus Tertii Doctrine) ...................................................... 130
(1). The law-abiding American people at large as a whole set of People as a Third
Party. ...........................................................................................................................130
(2). The Unorganized Militia, 10 U.S.C. § 311(b)(2), as a subset of the American
people at large as a Third Party. ...................................................................................130
(3). American Merchant Seamen as a subset of the American people at large as a Third
Party. ...........................................................................................................................131
(4). American Truck Drivers as a subset of the American people at large as a Third
Party. ...........................................................................................................................131
L. To Sue in the Interest of the Second Amendment ...................................................................... 131
(1). To present a Second Amendment Case by Invitation of U.S. Supreme Court..........131
(2). To determine whether unconstitutional conditions exist over the Second
Amendment. ................................................................................................................131
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(3). To Compel Negotiated Rulemaking with the U.S. Coast Guard, the BATFE and
the MARITIME ADVISORY COMMITTEE FOR OCCUPATIONAL SAFETY AND HEALTH
(MACOSH) of the U.S. Department of Labor as Special Procedures Under Rule
16(C)(9) Federal Rules Of Civil Procedure, 33 C.F.R. § 1.05-60, 5 U.S.C. § 560-
570a, and 5 U.S.C. Appendix - FEDERAL ADVISORY COMMITTEE ACT............................ 131
(4). To resurrect open carry in intrastate, interstate, and maritime travel. ...................... 131
M. To Sue for Equal Justice Under the Law ...................................................................................132
(1). To Achieve Justice for Obstructions of Justice by the Hostile Federal Courts......... 132
(2). To Challenge the Constitutionality of Rule 5.1(a)(1)(A) of the Federal Rules of
Civil Procedure............................................................................................................ 133
(3) To challenge the constitutionality of the Eleventh Amendment. .............................. 133
(4). To determine whether a U.S. seaman has a private right of action against the
United Nations PROGRAMME OF ACTION TO PREVENT, COMBAT AND ERADICATE THE
ILLICIT TRADE IN SMALL ARMS AND LIGHT WEAPONS IN ALL ITS ASPECTS (UN Document
A/CONF.192/15)......................................................................................................... 135
(5). To determine whether Pacer Online Docket Fees are part of the Seamen’s Suit
Law............................................................................................................................. 135
N. To Sue for Seamen’s Rights Under the Law ..............................................................................135
O. Arbitrary Exercise of Government Power ..................................................................................140
(1). To Incorporate the Second Amendment through the Fourteenth Amendment. ........ 140
(2). To determine whether the U.S. Department of Justice and the FBI have a duty to
investigate allegations of extortion and corruption against federal judges and their
court clerks.................................................................................................................. 140
(3). To determine the role of the Citizen’s Arrest Warrant in the Checks and Balance
System of the Constitution of the United States............................................................ 141
(4). To Determine what role the U.S. Merchant Marine has in homeland security when
the U.S. Department of Homeland Security has superintendence of the Merchant. ....... 141
(5). To determine whether the federal courts are waging a judicial war against the
Constitution of the United States.................................................................................. 141
PART 4. IN DEFENSE OF PRO SE CIVIL LITIGATION ....................................................................................143
A. The Congress Has Killed the Private Bill (First Amendment Right to Petition) ..........................144
B. 2008 UPDATE: Neither the House nor the Senate have passed any Private Bills from January
3 to June 30, 2008..........................................................................................................................145
C. The Plaintiff has the Right to Challenge the Constitutionality of a Statute (Case Law) ...............148
(1). Change of Conditions............................................................................................ 148
(2). Change of Circumstances ...................................................................................... 149
(3). Compelling Constitutional Reasons ....................................................................... 149
C. Right to Petition ........................................................................................................................149
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D. Kathleen M. Sullivan’s, Unconstitutional Conditions, 10 Harv.L.Rev. 1413 (May 1989)........... 150

PART 5. FEDERAL QUESTIONS PRESENTED (28 U.S.C. § 1331)................................................................... 153
Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1
A. Human Rights Law................................................................................................................... 154
B. Constitutional Law (The Checks and Balance System) .............................................................. 155
C. Corruption and Obstructions of Justice (18 U.S.C. § 1505)........................................................ 158
D. Application of the RICO Act Against the U.S. Government ...................................................... 160
E. Maritime Law ........................................................................................................................... 160
PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS .............................................................................. 163
A. Plaintiff has a Private Right of Action under the AMERICAN DECLARATION ON THE RIGHTS AND
DUTIES OF MAN through the Treaty Clause of the U.S. Constitution ............................................... 164
(1). The Preamble to the American Declaration on the Rights and Duties of Man .........164
(2) The Invoked Articles of the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES
OF MAN in support of my demand for my Seventh Amendment right to a civil jury trial
in defense of my own injuried rights.............................................................................164
(3) The Invoked Articles of the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES
OF MAN in support of my demand for my Seventh Amendment right to a civil jury trial
in defense of the rights of third parties..........................................................................166
B. Plaintiff has a Private Right of Action under Article XVIII (Right to a Fair Trial), and Article
XXIV (Right of Petition) (among others) of the American Declaration of the Rights and Duties
of Man, 1948 through the Treaty Clause of the U.S. Constitution has already been taken by the
Plaintiff with his Human Rights Complaint against the United States now Pending at the Inter-
American Commission on Human Rights (Petition No. 1142-06) ................................................... 170
C. PLAINTIFF’S NOTE: David B. Kopel, Paul Gallant & Joanne D. Eisen, The Human Right of
Self-Defense, 22 BYU Journal of Public Law 43-178 (Fall 2007) (136 pages) is incorporated
into this Part 6 as part of my claims in this complaint.................................................................... 171
D. The Conclusion in David B. Kopel, Paul Gallant & Joanne D. Eisen, The Human Right of
Self-Defense 22 BYU Journal of Pulbic Law 33 (Fall 2007)........................................................... 171
E. With the Heller Opinion, the Second Amendment’s Individual Right to Keep and Bear Arms
Became a Fundamental Change of Circumstances for the Emergence of a New Peremptory
Norm of General International Law (jus cogens) Achieving Human Rights Status as Obligatio
Erga Omnes upon the Member States of the United Nations .......................................................... 172
F. Natural Rights are Human Rights .............................................................................................. 173
G. Heller Impacts Maritime and International Human Rights Treaties............................................ 175
(1). Articles 39-51 of the United Nations Charter..........................................................175
(2). Convention on the Prevention and Punishment of the Crime of Genocide,
December 9, 1948 ........................................................................................................178
(3). United Nations’ Declaration On Human Rights Defenders .....................................178
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(4). The Inter-American Convention Against Corruption.............................................. 178

(5). United Nations Convention Against Corruption..................................................... 179
(6). International Covenant On Civil And Political Rights............................................ 179
(7). United Nations’ Universal Declaration on Human Rights ...................................... 179
(8). American Declaration of the Rights and Duties of Man ......................................... 180
H. Citing from David Sloss, When Do Treaties Create Individually Enforceable Rights?................180
I. United Nations at War Against the Second Amendment..............................................................183
J. The Human Rights Case of Jessica Gonzales: You Have No Individual Right to Police
Protection ......................................................................................................................................184
K. The Human Rights Record of the United States 2002-2007 .......................................................185
L. Other Constitutions: Human Rights are Created by God. Not by Government. ...........................186
M. Other Constitutions: Personal Self-Defense ..............................................................................187
N. Other Constitutions: Self-Defense Against Tyranny...................................................................189
O. Other Constitutions: Right and Duty of Citizens to Resist or Revolt Against Domestic or
Foreign Tyranny ............................................................................................................................190
P. Other Constitutions: Security against home invasion ..................................................................192
PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS ..............................................................201
A. The Right to Openly Keep and Bear Arms (Open Carry) in Intrastate, Interstate, and
Maritime Travel is the Constitutional Norm ...................................................................................202
B. Open Carry in Intrastate, Interstate, and Maritime Travel is a Near-Absolute Human Right
Notwithstanding Prohibited Person Status under 18 U.S.C. § 922 et seq.........................................202
C. Judge Ellen Segal Huvelle Wrongfully Denied Mandamus Relief ..............................................203
(1). Mandamus: Reserved for Extraordinary Situations: ............................................... 204
(2). First Condition for Mandamus Relief: The plaintiff has a clear right to relief ......... 204
(3). Second Condition for Mandamus Relief: The defendant has a clear duty to act ...... 204
(4). Third Condition for Mandamus Relief: There is no other adequate remedy
available to the plaintiff. .............................................................................................. 204
(5). This Court has the duty to affirm Mandamus Relief............................................... 204
D. There Are No Federal Laws or Regulations on the Second Amendment Rights of U.S.
Seamen to Possess or Carry a Handgun, Whether Concealed Carry or Open Carry, Between the
Jurisdictions of Domestic Law and Maritime Law..........................................................................206
(1). “National Open Carry Handgun” is an Inherent Human Right of Self-Defense....... 206
E. The U.S. Department of Homeland Security Has General Superintendence Over the U.S.
Merchant Marine and Merchant Personnel But Ignores the Role of Seamen’s Second
Amendment Rights in Homeland Security......................................................................................206
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(1). That small arms training falls under the GENERAL REQUIREMENTS AND
CLASSIFICATIONS FOR ABLE SEAMEN, 46 U.S.C. § 7306(a)(3): .......................................207
(2). That 33 C.F.R. § 104.220 COMPANY OR VESSEL PERSONNEL WITH SECURITY DUTIES
requires the following: .................................................................................................207
(3). That the International Maritime Organization’s Maritime Safety Committee policy
on, Piracy and Armed Robbery Against Ships: Guidance to Shipowners and Ship
Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and
Armed Robbery Against Ships, MSC/Circ.623/Rev.3, dated May 29, 2002,
paragraphs 45 and 46 states:.........................................................................................208
F. Case Law on Vested Rights (Sorted by Year) ............................................................................ 210
(1) Calder v. Bull, 3 Dall 386 (1796)............................................................................210
(2). Marbury v. Madison 5 U.S. 137, 163 (1803) .........................................................210
(3). Cockrum v. State, 24 Texas 394 (1859)..................................................................210
(4). Wilson v. State, 33 Arkansas, 557, at 560 (1878) (striking a ban on open carry).....211
(5). Union Pacific Railway Company v. Botsford, 141 U.S. 250, at 251 (1891).............211
(6). Yick Wo v. Hopkins, 118 U.S. 356, at 369 (1886) ...................................................211
(7) Coppage v. Kansas, 236 U.S. 1 (1915) [Unconsitutional Conditions] ......................211
(8). Olmstead v. United States 277 U.S. 438, 485 (1928) ..............................................214
(9). Murdock v. Pennsylvania 319 US 105 (1942) ........................................................214
(10). West Virginia State Board of Education v. Barnette 319 U.S. 624, 638-639
(1943) ..........................................................................................................................214
(11). American Communications Association, C.I.O., et al v. Douds, Regional
Director of the National Labor Relations Board, 339 U.S. 382, 442-443 (1950)............215
(12). Lucas v. Colorado General Assembly 377 U.S. 713, 736-737 (1964)...................215
(13). Jordan v. Gardner 986 F.2d 1521 (9th Cir. 1993) ................................................215
(14). People v. Banks 6 Cal.4th 926, 949 (1993)..........................................................215
G. Case Law on the Private Right of Action (Sorted by Year)........................................................ 215
(1). United States v. Lee, 106 U.S. 196, at 220 (1882)...................................................215
(2). Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370 (7th Cir. 1985).........215
(3). Robert A. Buell, v. Betty Mitchell, Warden, No. 99-4271, 6th Cir., 274 F.3d at 373
(December 4, 2001) .....................................................................................................216
(4). Robert A. Buell, v. Betty Mitchell, Warden, No. 99-4271, 6th Cir., 274 F.3d at 373
(December 4, 2001) .....................................................................................................217
(5). Robert A. Buell, v. Betty Mitchell, Warden, No. 99-4271, 6th Cir. (December 4,
2001) ...........................................................................................................................217
(6). Diana Renkel v. United States 6th Circuit, No. 05-3420; 456 F.3d 640 (6th Cir.
2006) ...........................................................................................................................218
H. Case Law on Constitutional Rights (Sorted by Year)................................................................. 219
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(1). United States v. Lee, 106 U.S. 196, at 220 (1882) .................................................. 219
(2). Juliard v. Greeman, 110 U.S. 421 (1884) .............................................................. 219
(3). Kentucky Railroad Tax Cases, 115 U.S. 321, 337 (1885) ....................................... 219
(4). Boyd v. United States, 116 U.S. 616 at 635 (1885)................................................. 219
(5). Logan v. United States 144 US 263 (1892) ............................................................ 219
(6). Duncan v. Missouri, 152 U.S. 377, 382 (1894) ...................................................... 220
(7). Mountain Timber Co. v. Washington, 243 US 219 (1917) ..................................... 220
(8). Miller v. United States 230 F 486 at 489 (1913)..................................................... 220
(9). Davis v. Wechler, 263 U.S. 22, 24 (1923).............................................................. 220
(10). Olmstad v. United States, 277 U.S. 438 (1928) .................................................... 220
(11). Lawrence v. State Tax Commission, 286 US 276, at 282 (1932)........................... 220
(12). Perry v. United States, 294 U.S. 330, 358 (1935)................................................ 220
(13). Smith v. Allwright, 321 U.S. 649 at 664 (1944).................................................... 220
(14). Kent v. Dulles, 357 U.S. 116, 125 (1958)............................................................. 220
(15). Walter Process Equipment v. Food Machinery, 382 U.S. 172 (1965) ................... 221
(16). Simmons v. United States, 390 U.S. 377 (1968) ................................................... 221
(17). Chandler v. Judicial Council, 398 U.S. 74, at 140 (1970) .................................... 221
(18). Chandler v. Judicial Council, 398 U.S. 74, at 140 (1970) .................................... 221
(19). Sherar v. Cullen, 481 F. 2d 946 (1973)................................................................ 221
(20). Goss v. Lopez, 419 US 565 (1975)....................................................................... 221
(21). United States v. Chadwick, 433 U.S. 1, at 16 (1976) ............................................ 221
(22). Owen v. City of Independence 445 U.S. 622, 657 1980)....................................... 221
(23). Forrester v. White, 484 U.S. 219, at 227-229 (1988)............................................ 221
(24). Mireles v. Waco, 502 U.S. 9, at 11-12 (1991) ...................................................... 222
(25). Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993) ................................... 223
PART 8. PLAINTIFF’S RELIGIOUS RIGHTS DECLARATIONS .........................................................................225
A. God, Guns, & Freedom .............................................................................................................226
B. What Rights Do We Have?........................................................................................................226
(1). Natural Rights (Black’s Law Dictionary)............................................................... 226
(2). Civil Rights (Civil Liberties) (Black’s Law Dictionary)......................................... 226
(3). Religious Freedom (Black’s Law Dictionary) ...................................................... 226
C. Second Amendment As A Religious Right Explained ................................................................226
(1). Inherent Rights Defined ........................................................................................ 226
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(2). Inalienable Rights Defined.....................................................................................226

(3). Inherent human right includes creeds .....................................................................226
(4). Creed Defined as Confession or Articles of Faith, i.e. The Bible ............................227
D. The Unrecognized And Denied Religious Connection To The Second Amendment................... 227
(1). The Sword and The Bible as Articles of Faith, A System of Religious Belief .........228
(2). Selected Bible Verses Application to Plaintiff’s Case.............................................230
(a). Warnings of Government Genocide -- 2nd Kings 19:32-34 ............................... 230
(b). Corruption -- Ecclesiastes 3:16-17 .................................................................... 230
(c). Corruption/Bribery -- Isaiah 1:23-26................................................................. 230
(d). The Corrupted Receives Justice – Job 20:24-25 ................................................ 230
(e). Defending Against Government Abuses -- Jeremiah 5:20-31............................. 230
(f). Malicious Prosecution -- Psalms 59:1-5............................................................. 230
(g). Illegal Use of Weapons -- Numbers 35:18......................................................... 231
(h). Militias -- Ecclesiastes 4:12-13......................................................................... 231
(i). Defending the Church with Weapons -- 2 Chronicles 23:10 ............................... 231
(j). Weapons in the Workplace -- Nehemiah 4:17 .................................................... 231
(k). Lawlessness Without The Sword -- Deuteronomy 32:25. .................................. 231
(l). Weapons Making & Defense Against Persecution - Isaiah 54:16-17................... 231
(m). The Slaughter Weapon - (Sword v. Full-Auto Firearms) -- Ezekiel 9:1-2.......... 231
(n). Facing Your Enemy -- Deuteronomy 20:1......................................................... 231
(o). War -- Exodus 15:3 .......................................................................................... 231
(p). The Lord as a Warrior -- Joshua 5:13................................................................ 231
(q). Standing Watch -- Zechariah 9:8....................................................................... 232
(3). The Story of David and Goliath: Keeping Firearms Out of the Hands of Children
(Teens) Defies Religious Teachings of the Bible ..........................................................232
(a). Weapons Training For Children - 1 Samuel 17:39-40........................................ 232
(b). The Hypocrites – Isaiah 32:14-15, 18................................................................ 233
(4). The Takings Clause of the Fifth Amendment includes Non-Physical Takings.........233
PART 9. PLAINTIFF’S MARITIME DECLARATIONS ...................................................................................... 235
A. Heller impacts the Vienna Convention on the Law of Treaties 1969 and the Vienna
Convention on the Law of Treaties between States and International Organizations or between
International Organizations 1986................................................................................................... 236
B. Heller impacts the American Declaration of the Rights and Duties of Man ................................ 236
C. Second Amendment Rights of U.S. Seamen to “Open Carry Handgun” in Intrastate,
Interstate, and Maritime Travel under the First, Fourth, Fifth, Ninth, Tenth, Thirteenth, and
Fourteenth Amendments................................................................................................................ 236
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D. Second Amendment Rights of Seamen under 33 U.S.C. § 383 Resistance of Pirates by

Merchant Vessels (Suppression of Piracy)......................................................................................236
(1). 33 USC § 383. Resistance of pirates by merchant vessels (Suppression of Piracy) . 237
PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT ..............239
A. Heller and Incorporation of the Second Amendment .................................................................240
B. Human rights interpretation of Michael Anthony Lawrence, Second Amendment
Incorporation through the Fourteenth Amendment Privileges and Immunities and Due Proceess
Clauses, Missouri Law Review, Vol. 72, No. 1 (Winter 2007)........................................................242
(1). Excerpts From Heller with the Phrase “Natural Rights”......................................... 242
(2). Excerpts with Phrases the Include the Word “Human”........................................... 244
(3). “Oath” for federal judges, pages 42-44 (in last footnote)........................................ 248
C. The Stare Decisis Doctrine in Planned Parenthood v. Casey 505 U.S. 833 at 854-855 (Part III.
A.) (1992); 120 L. Ed.2d. 674, 700 (1992). ....................................................................................250
PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT .........................................253
A. Law Review Articles for 2008...................................................................................................254
B. Law Review Articles from 2007 ................................................................................................254
C. Professor Suja Thomas discusses the Seventh Amendment Right to a Jury Trial at the
University of Cincinnati College of Law (November 8, 2007) ........................................................254
D. New York Times Sidebar: Cases Keep Flowing In, But The Jury Pool Is Idle (April 30, 2007) ..256
E. Dissenting Opinions Exposing Too Many Summary Judgments .................................................259
(1). Melvin v. Cal-Freshener Corp., 8th Circuit, No. 06-1279 (2006) ............................ 259
(2). Adickes v. S.H. Kress & Co., 398 U.S. 144, 176 (1970) ......................................... 259
(3). Montana v. Hall, 481 U.S. 400, 406-410 (1987) .................................................... 259
PART 12. CHALLENGING THE FINAL AGENCY ACTION OF THE U.S. COAST GUARD ..................................263
A. Capt. J. P. Brusseau Violated his Oath of Office when he ascribed a Personal Ideology
against the Second Amendment as a Basis for the Denial Letter, April 19, 2002.............................264
PART 13. CHALLENGING THE FEDERAL COURT RULING ............................................................................265
A. Hamrick v. President George W. Bush, U.S. District Court for DC, No. 02-1435 (2002)............266
B. Did Judge Ellen Segal Huvelle commit a fraud or make false statements (18 U.S.C. § 1001) in
her Memorandum and Order? ........................................................................................................269
(1). Excerpts from the U.S. Attorney’s Manual, Title 9: Criminal Resource Manual. .... 269
PART 14. CHALLENGING SELECTED FEDERAL LAWS .................................................................................271
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A. Interstate Transportation of Firearms 18 U.S.C. § 926A. ........................................................... 272
B. Registration of Certain Organizations 18 U.S.C. § 2386. ........................................................... 272
C. The Merchant Marine Act of 1936 ............................................................................................ 272
(1). 46 U.S.C. Appendix § 1101. Fostering Development and Maintenance of
Merchant Marine..........................................................................................................272
D. Maritime Problems; Cooperation With Others; Cargo Carriage; Recommendations 46 U.S.C
Appendix § 1122........................................................................................................................... 272
E. Maritime Education and Training under the Merchant Marine Act of 1936................................ 273
(1). 46 U.S.C. Appendix § 1295. Congressional Declaration Of Policy ........................273
F. Secretary of Transportation May Provide Additional Training on Maritime Subjects 46 U.S.C.
Appendix § 1295d. ........................................................................................................................ 273
G. Powers and Duties of Secretary of Transportation 46 U.S.C. Appendix § 1295g........................ 273
H. U.S. Coast Guard Merchant Mariner’s Document Pilot Program Public Law No. 108-293.
Section 611 ................................................................................................................................... 274
I. Seafarers International Union’s Small Arms Range and Courses Approved by Military Sealift
Command ..................................................................................................................................... 274
J. Brief Legislative History of Civil Defense (50 U.S.C. § 2251 et. seq.)........................................ 275
K. 10 U.S.C. § 311. Militia: Composition and Classes ................................................................... 276
PART 15. CHALLENGING SELECTED FEDERAL REGULATIONS ................................................................... 279
A. 46 CFR §12.05-3(a)(4) General Requirements (for Able Seamen)............................................. 280
B. 46 CFR §12.05-3(b)(4) General Requirements (for Able Seamen)............................................. 280
C. 27 C.F.R. § 478.38 Transportation of Firearms.......................................................................... 282
D. 33 CFR § 104.220 Company or Vessel Personnel with Security Duties ..................................... 283
E. 33 CFR § 104.230 Drill and exercise requirements .................................................................... 283
PART 16. CHALLENGING SELECTED STATE LAWS...................................................................................... 285
A. Federal Preemption of State Laws............................................................................................. 286
B. The List of Named State Laws: ................................................................................................. 288
C. Online Research Sites for Open & Concealed Carry.................................................................. 289
PART 17. CHALLENGING SELECTED MARITIME CONVENTIONS AND TREATIES ........................................ 297
A. PIRACY AND ARMED ROBBERY AGAINST SHIPS: Guidance to Shipowners and Ship
Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed
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Robbery Against Ships (International Maritime Organization’s Maritime Safety Committee

(MSC) Circular 623 Rev. No. 3, dated May 29, 2002)....................................................................298
B. Maritime Labour Convention, 2006 ..........................................................................................298
C. International Maritime Organization (IMO) Convention for the Suppression of Unlawful Acts
Against the Safety of Maritime Navigation, 1988...........................................................................299
D. Chapter XI-2 - Special Measures to Enhance Maritime Security of The International
Convention for Safety of Life at Sea (1974 as amended) (SOLAS)..................................................300
E. International Ship and Port Facility Security Code (ISPS Code) .................................................301
F. Chapter II: Master-Deck Department of the International Convention on Standards of
Training, Certification and Watchkeeping for Seafarers, 1978........................................................302
PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES .................305
A. The RICO Act Includes the United States Government..............................................................306
B. The Civil RICO Act Includes the United Nations.......................................................................308
(1). Michael Goldsmith and Vicki Rinne, CIVIL RICO, FOREIGN DEFENDANTS, AND
“ET”, 73 Minn. L. Rev. 1023, (April, 1989) ................................................................ 308
C. The United Nations, the United States and the States are Racketeering Enterprises Over the
Second Amendment.......................................................................................................................311
(1). Definition of Enterprise under the RICO Act. ........................................................ 311
(2). Types of Enterprises. ............................................................................................ 311
D. The Private Attorney General and the Human Rights Defender..................................................315
E. Disarming the Private Attorney General.....................................................................................317
PART 19 THE CLAIMS ..................................................................................................................................323
A. The U.S. Coast Guard Final Agency Action Denial was Wrongfully Based Upon a Personal
Ideology in Violation of the Oath of Office ....................................................................................324
B. Teetering on Judicial Tyranny and Despotism............................................................................329
C. Most Federal Judges are Mad Hatters on the Wrong Side of the Looking Glass .........................330
D. Judge Edith Jones of the Fifth Circuit, “The American legal system has been corrupted almost
beyond recognition.”......................................................................................................................332
(1) Three Contemporary Threats to the Rule of Law .................................................... 332
(2) No ‘Great Awakening’ In Law School Classrooms ................................................. 333
(3) Judge Edith Jones declares that the Rule of Law has religious origins. .................... 334
E. Extortion Under Color of Official Right - Hobbs Act: Title 9 U.S. Attorneys’ Manual:
Criminal Resource Manual § 2404 .................................................................................................334
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F. Evidence of Habit/Routine Practice (Rule 406, Fed.R.Ev.) Leads to Presumptions in General

in This Civil Action of Corruption, Racketeering, and Judicial Treason Against the Constitution
(Rule 301, Fed.R.Ev.).................................................................................................................... 337
G. Evidence of U.S. Supreme Court Bias Against Second Amendment Cases and Against Pro Se
Plaintiffs with a Second Amendment Case..................................................................................... 338
H. Calendar Committee and Judge Reggie B. Walton of the U.S. District Court for DC Violated
Court Order of Judge Richard W. Roberts. .................................................................................... 344
CLAIM No. (1): Human Rights Violations .................................................................................... 346
CLAIM No. (2): Retaliation by the The U.S. Coast Guard ............................................................. 348
CLAIM No. (3): Judicial Treason Against the Constitution & Bill of Rights .................................. 348
CLAIM No. (4): Obstructions of Justice ........................................................................................ 349
CLAIM No. (5): My Human Right to a Civil Jury Trial Violated ................................................... 354
CLAIM No. (6): U.S. Marshals Service Committed Obstructions of Justice and Conspiracies to
Obstruct Justice............................................................................................................................. 356
CLAIM No. (7): Don Hamrick has a Right to a Private Bill Remedy Citing as Precedence Wilke
v. Robbins, 551 U.S. ____; 433 F. 3d 755; 1127 S.Ct. 2588 (June 25, 2007). ................................. 359
CLAIM No. (8) Civil RICO Act Treble Damages in the amount of $14 Million ............................. 360
CLAIM No. (9) $1 Million in Compensatory Damages.................................................................. 361
PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) .............................................................. 363
A. RICO charges: U.S. Attorney’s Manual, Title 4 Civil Resource Manual § 109 .......................... 368
B. RICO-related Charges: U.S. Attorney’s Manual, Title 9 Criminal Resource Manual § 110 ........ 370
C. Extortion: Hobbs Act – Generally: U.S. Attorney’s Manual, Title 9 Criminal Resource
Manual § 2402 .............................................................................................................................. 370
D. Extortion By Force or Fear – U.S. Attorney’s Manual, Title 9 Criminal Resource Manual §
2403.............................................................................................................................................. 371
(1). Did the defendant induce or attempt to induce the victim to give up property or
property rights?............................................................................................................371
(2). Did the defendant use or attempt to use the victim’s reasonable fear of physical
injury or economic harm in order to induce the victim’s consent to give up property?...371
(3). Did the defendant’s conduct actually or potentially obstruct, delay, or affect
interstate or foreign commerce in any (realistic) way or degree?...................................372
(4). Was the defendant’s actual or threatened use of force, violence or fear wrongful? ..372
E. Extortion Under Color of Official Right - Hobbs Act USAM 9 Criminal.R.M. § 2404............... 374
F. The RICO Claims...................................................................................................................... 378
(1). Robbins v. Wilkie, et al, 10th Circuit, No. 01-8037, (August 21, 2002):..................378
G. Obstructions of Justice (18 U.S.C. § 1505)................................................................................ 379
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(1) Fraud and False States by the federal bench and bar under 18 U.S.C. § 1001. ......... 379
H. Corruption in the U.S. Department of Justice.............................................................................380
(1). Justice Department Witheld Evidence from the Court............................................ 380
(2). Federal and State Gun Control Laws Violate the Thirteenth and Fourteenth
Amendments ............................................................................................................... 382
(a). “Actual Freedom” in Abraham Lincoln’s Emancipation Proclamation: ..............382
(b) “Actual Freedom” Defined in Dred Scott v. Sanford, 60 US (19 How.) 393,
417 (1857) ..............................................................................................................382
I. Exemptions to Foreign Sovereign Immunities Act of 1976 Apply to my Case Against the
United Nations...............................................................................................................................383
J. Dennis Barghaan, Assistant U.S. Attorney from Alexandria, Virginia, acting as Special
Attorney for the U.S. Department of Justice, and persons or persons unknown in the U.S.
Department of Justice criminally withheld evidence (Memorandum Opinion for the Attorney
General, Whether the Second Amendment Secures an Individual Right, dated August 24, 2004)
vital to my Second Amendment case at the U.S. District Court for DC, Case No. 03-2160 .............384
PART 21. PETITION FOR WRIT OF MANDAMUS (MY DEMANDS FOR JUSTICE) ...........................................386
A. Writ of Mandamus for Negotiated Rulemaking with the U.S. Coast Guard, the BATFE and
the Maritime Advisory Committee for Occupational Safety and Health (MACOSH) of the U.S.
Department of Labor as Special Procedures Under Rule 16(C)(9) Federal Rules Of Civil
Procedure, 33 C.F.R. § 1.05-60, 5 U.S.C. § 561-570a, and 5 U.S.C. Appendix - Federal
Advisory Committee Act.................................................................................................................387
B. Writ of Mandamus for Negotiated Rulemaking with the U.S. Coast Guard in Cooperation
with other Agencies, States, Territories, and Political Subdivisions in Accordance with 14
U.S.C. § 141. .................................................................................................................................388
C. Writ of Mandamus for Negotiated Rulemaking with the International Maritime Organization
through the U.S. State Department in accordance with 14 U.S.C. § 142..........................................392
PART 22. PETITION FOR WRIT OF PROHIBITION .........................................................................................396
A. Writ of Prohibition to Prohibit My Arrest by the U.S. Marshals Service or any other federal
or district law enforcement agency for Exercising My Right to Make Citizen’s Arrests of Federal
Judges and court clerks for felony EXTORTION UNDER COLOR OF LAW 18 U.S.C. § 872, and
felony racketeering EXTORTION UNDER COLOR OF OFFICIAL RIGHT 18 U.S.C. § 1951(a) and §
1951(b)(2) of their respective court’s filing fees in violation of the Seamen’s Suit Law 28 U.S.C.
§ 1916 in accordance with D.C. Code § 23-582(b)(2) and § 23-582(c)............................................397
B. Petition for Writ of Prohibition in Defence of Citizen’s Arrest Warrant of Federal Judges and
Court Clerks for Felony Extortion..................................................................................................397
PART 23. PETITION FOR DECLARATORY JUDGMENT ..................................................................................398
PART 24. PETITION FOR INJUNCTIVE RELIEF..............................................................................................400
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PART 25. DAMAGES ..................................................................................................................................... 402
(1) RICO Act Damages for Wrongful Detention by the U.S. Coast Guard...................................... 403
(2) RICO Act Damages for Obstructions of Justice by the U.S. Department of Justice ................... 405
(3) RICO Act Damages for Obstructions of Justice by the U.S. Marshals Service .......................... 405
(4) RICO Act Damages for the Denial of my Seventh Amendment right to a Civil Jury Trial by
the Federal Judiciary ..................................................................................................................... 405
EXHIBIT 1. STATE DEPARTMENT GIVES AWAY 8 ISLANDS OF ALASKA TO RUSSIA ...................................... 406
EXHIBIT 2. NO RIGHT TO POLICE PROTECTION DOCTRINE .......................................................................... 408
EXHIBIT 3. HELLER’S FUTURE IN THE LOWER COURTS ................................................................................ 412
EXHIBIT 4. THE LAW OF CITIZEN’S ARREST 65 COLUMBIA L.REV. 502 (MARCH 1965)............................... 419
EXHIBIT 5. DAVE KOPEL: U.N. TO WORLD: YOU HAVE NO HUMAN RIGHT TO SELF-DEFENSE ................... 421
EXHIBIT 6. THE RIGHT OF A LITIGANT TO PROCEED PRO SE: AMICUS CURIAE BRIEF IN ANDREW
PICKHOLTZ V. RAINBOW TECHNOLOGIES, INC.AND SOFTWARE SECURITY, INC............................................. 425
EXHIBIT 7. COMMENTS ON THE NINTH CIRCUIT PRO SE TASK FORCE REPORT ............................................. 430
EXHIBIT 8. DAVE B. KOPEL, MEDELLIN AND THE SECOND AMENDMENT .................................................... 438
EXHIBIT 9. FEDERAL JUDICIAL ACCOUNTABILITY & INTEGRITY LEGISLATION (J.A.I.L.) ............................ 441
EXHIBIT 10. U.S. DEPARTMENT OF STATE - INTERNATIONAL LEGAL AUTHORITIES .................................... 445
EXHIBIT 11. REPORT OF THE U.N. SECRETARY-GENERAL ON HUMAN RIGHTS DEFEENDERS ....................... 446
EXHIBIT 12. U.N. DECLARATION ON HUMAN RIGHTS DEFENDERS .............................................................. 451
EXHIBIT 13. CASTLE ROCK, CO. VS JESSICA GONZALES 545 U.S. 748 (2005) (NO INDIVIDUAL RIGHT
TO POLICE PROTECTION KILLED 3 LITTLE GIRLS) ......................................................................................... 457
EXHIBIT 14. HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES ..................................... 459
EXHIBIT 15. JAMES S. GIFFORD, JUS COGENS AND FOURTEENTH AMENDMENT PRIVILEGES OR
IMMUNITIES: A FRAMEWORK OF SUBSTANTIVE, FUNDAMENTAL HUMAN RIGHTS IN A CONSTITUTIONAL
SAFE-HARBOR, 16 ARIZ. J. INT’L & COMP. LAW 484 (SPRING 1999) ............................................................ 472
EXHIBIT 16. UNITED STATES V. HOLLIS WAYNE FINCHER, 8TH CIRCUIT ...................................................... 518
EXHIBIT 17. HELLER’S FUTURE IN THE LOWER COURTS ............................................................................. 526
EXHIBIT 18. JOHN ROSS, PROHIBITION’S UGLY LEGACY BY JOHN ROSS, UNINTENDED CONSEQUENCES ..... 534
EXHIBIT 19. DAVID B. KOPEL, THE NATURAL RIGHT OF SELF-DEFENSE: HELLER’S LESSON FOR THE
WORLD, 58 SYRACUSE LAW REVIE __ (2008) ............................................................................................... 544
EXHIBIT 20. NICK BRADLEY, NATIONAL SECURITY, SWISS STYLE.............................................................. 560
EXHIBIT 21. JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION ............................ 564
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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS
Part 1. Mandatory Judicial Notice of Adjudicative Facts, Rule 201(d), Fed.R.Ev.

A. Summary Judgment Dismissal is Barred Due Plaintiff’s Human Rights
Complaint against the United States alleging Judicial Bias and Loss of Integrity in
the Federal Judicial System under the Canons of Ethics

1
Don Hamrick FRIDAY, JULY 4TH, 2008
5860 Wilburn Road, Wilburn, Arkansas 72179, Email: [email protected]
U.S. Supreme Court Ruling on the Second Amendment as

Being an Individual Right has Become “jus cogens” For A
New Peremptory Norm of General International Law
“Petition No. 1142-06”
Paolo G. Carozza PLAINTIFF’S NOTE: The date of this letter is the “4th of July.”
Inter-American Commission on Human Rights It is Independence Day! It is the day I mailed this letter to the
1889 F Street, N.W. INTER-AMERICAN COMMISSION ON HUMAN RIGHTS because the
Washington, D.C., 20006 Federal Courts are acting like the Judicial Praetorian Guard for
Dear Mr. Carozza, the U.S. Government against its own People.
Please let the attached U.S. Supreme Court’s District of Columbia, et al v. Heller opinion be
entered into the record as evidence vindicating my human rights complaint against the United States in
Petition No. 1142-06. The Heller opinion also affects Jessica Gonzales (now Lenahan) human rights
complaint against the United States, Petition No. 1490-05.
Citing the VIENNA CONVENTION ON THE LAW OF TREATIES 1969 and the VIENNA CONVENTION ON
THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN
INTERNATIONAL ORGANIZATIONS 1986 it is my claim that the U.S. Supreme Court’s Heller opinion on the
Second Amendment includes and protects the right of armed self-defense as part of the “right to life”
provision in international human rights treaties and presents a “fundamental change of circumstances
(Article 62 of both Vienna Conventions) for the “emergence of a new peremptory norm of general
international law (“jus cogens”), (Article 64 of both Vienna Conventions) for the “right to life”
provisions in international human rights treaties through the treaty clause in Article II, Section 2 of the
CONSTITUTION OF THE UNITED STATES.
The Heller opinion also impacts the AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN
under Articles I, II, IV, V, VI, VII, VIII, IX, gun culture under Articles XIII, XV, XVII, XVIII, XXI, XXII,
XXIII, XXIV, XXV, XXVI, and duties to society under Article XXIX to which the INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS and the INTER-AMERICAN COURT ON HUMAN RIGHTS have jurisdiction.
The Heller opinion has two quotable points:
Page 9:
“Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone
else.” [Footnote 7: . . . J. Ayliffe, A NEW PANDECT OF ROMAN CIVIL LAW 195 (1734) (“Yet a Person might
keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on
the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of
Inheritance”); . . .]1
Page 1 of 3
1
Emphasis is mine.

2
Page 46:
“As the Constitution of the United States, and the constitutions of several of the states, in terms more or
less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave
discussion, in some of the state courts, whether a statute prohibiting persons, when not on a
journey, or as travellers, from wearing or carrying concealed weapons, be constitutional.
There has been a great difference of opinion on the question.” 2 J. Kent, Commentaries on American
Law *340, n. 2 (O. Holmes ed., 12th ed. 1873).2
In the Page 9 quotation I construe the term “everyone else” to include merchant seamen in
interstate and maritime travel as supported by the terms “Navigation” and “Traveling” in Scalia’s
Footnote 7.
Scalia’s Page 46 quotation implies that “open carry in interstate and maritime travel” is an
“absolute or near-absolute right” not subject to any regulation at all. This inference needs clarification
by judicial challenge.
The federal statute, 18 U.S.C. § 926A - INTERSTATE TRANSPORTATION OF FIREARMS, (nearly
identical in effect to the strickened DC gun control law), is now ready for such a judicial challenge.
IMPACTED INTERNATIONAL TREATIES:

● PIRACY AND ARMED ROBBERY AGAINST SHIPS: GUIDANCE TO SHIPOWNERS AND SHIP OPERATORS,
SHIPMASTERS AND CREWS ON PREVENTING AND SUPPRESSING ACTS OF PIRACY AND ARMED ROBBERY
AGAINST SHIPS (International Maritime Organization’s Maritime Safety Committee (MSC) Circular 623
Rev. No. 3, dated May 29, 2002)
Firearms
¶45. The carrying and use of firearms for personal protection or protection of a ship is strongly
discouraged.
¶46. Carriage of arms on board ship may encourage attackers to carry firearms thereby escalating an
already dangerous situation, and any firearms on board may themselves become an attractive target for
an attacker. The use of firearms requires special training and aptitudes and the risk of accidents with
firearms carried on board ship is great. In some jurisdictions, killing a national may have unforeseen
consequences even for a person who believes he has acted in self defence.
● CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, Dec. 9, 1948
● MARITIME LABOUR CONVENTION
Page 2 of 3
2
Emphasis mine.

3
THE INTERNATIONAL BILL OF HUMAN RIGHTS:

● UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948
● INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1966
● INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966
● OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
● SECOND OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS,
AIMING AT THE ABOLITION OF THE DEATH PENALTY
SELECTED INTERNATIONAL HUMAN RIGHTS INSTRUMENTS

● INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, 21 Dec
1965
● INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 16 Dec 1966
● OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 16 Dec 1966
● SECOND OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS,
AIMING AT THE ABOLITION OF THE DEATH PENALTY, 15 Dec 1989
● INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, 16 Dec 1966

● CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, 18 Dec 1979
● OPTIONAL PROTOCOL TO THE CONVENTION ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN,
10 Dec 1999
THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS

● THE AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN
● THE AMERICAN CONVENTION ON HUMAN RIGHTS
● ADDITIONAL PROTOCOL TO THE AMERICAN CONVENTION ON HUMAN RIGHTS IN THE AREA OF ECONOMIC,
SOCIAL AND CULTURAL RIGHTS (Protocol of San Salvador)
Respectfully submitted,
Don Hamrick
Page 3 of 3

4
The international reputation of the U.S. District Court for the District of Columbia
is now on the line in how it now treats my case. Dismissing my case by Summary
Judgment on Motion to Dismiss will be viewed with “strict scrutiny” under my
Seventh Amendment right to a civil jury trial by the INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS and under the AMERICAN DECLARATION ON THE RIGHTS AND
DUTIES OF MAN OF 1948. This Court would do well to Order the U.S. Attorney to
forget about filing their Motion to Dismiss and proceed directly to the Discovery
Phase because 6 years of Motions to Dismiss is a criminal offense in itself.
The statistics of seventeen cases by an unrepresented civil plaintiff
pushing the Second Amendment getting dismissed with and without prejudice
ought to be, in and of itself, criminal evidence of judicial bias sufficient to sustain
my Mandatory Judicial Notice dismissal of my case barred based on the hostile
and despicable treatment my cases have received by the federal courts. The
reputation of the federal courts are noted in law review articles presented in
this case!
“It is the manner of enforcement which gives section 1983 (title 42 of the U.S. Code - Federal statutes) its unique
importance, for enforcement is placed in the hands of the people. Each citizen acts as a private attorney general
who takes on the mantel of the sovereign guarding for all of us the individual liberties enunciated in the
Constitution. Section 1983 represents a balancing feature in our governmental structure whereby individual
Thus, it is of special import
citizens are encouraged to police those who are charged with policing us all.
that suits brought under this statute be resolved by a determination of truth rather than
by a determination that the truth shall remain hidden.” Frankenhauser v. Rizzo 59 F.R.D. 339, 343
(1973)
CAVEAT: The Bolded fonts represent my intellectual anger, NOT my emotional

anger, at how the federal courts have “enslaved” me these past 6 years
(Thirteenth Amendment implications) researching the law, perpetually reading
law review articles for new legal strategy only to be continually smacked down as
“Where a person’s good name, reputation, honor, or integrity is at stake

because of what the government is doing to him, notice and an
opportunity to be heard are essential.” Wisconsin v. Constantineau, 400
U.S. 433, 437 (January 19, 1971).

5
B. Summary Judgment Dismissal is Barred due to Two Open Invitations from the
U.S. Supreme Court for Second Amendment cases and One Open Invitation for a
Right to Travel Case. My Case Presents a Right to Travel with Second Amendment
rights.
(1). First Invitation by SCOTUS: Second Amendment (1997)
The first subject matter jurisdiction invitation extended by the U.S. Supreme Court on the Second
Amendment was Justice Thomas’ concurring opinion in Printz v. United States 521 U.S. 898 (1997):
“. . . If, however, the Second Amendment is read to confer a personal right to “keep and bear arms,” a colorable
argument exists that the Federal Government’s regulatory scheme, at least as it pertains to the purely intrastate
sale or possession of firearms, runs afoul of that Amendment’s protections. As the parties did not raise this
argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the
opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly
been considered, as the palladium of the liberties of a republic.” 3 J. Story, Commentaries § 1890, p. 746 (1833).
(2). Second Invitation by SCOTUS: Right to Travel (1999)
The second subject matter jurisdiction invitation extended by the U.S. Supreme Court on the right to
travel as part of the privileges and immunities clause of the Fourteenth Amendment was again from Justice
Thomas, but this time in his dissent in Saenz v. Roe 526 US 489 (1999). In Saenz, California, which has the sixth
highest welfare benefit levels in the country, sought to amend its Aid to Families with Dependent Children
(AFDC) program in 1992 by limiting new residents, for the first year they live in the State, to the benefits they
would have received in the State of their prior residence. Cal. Welf. & Inst. Code Ann. §11450.03. The U.S.
Supreme Court held:
1. Section 11450.03 violates Section 1 of the Fourteenth Amendment. Pp. 8-17.
(a) In assessing laws denying welfare benefits to newly arrived residents, this Court held in
Shapiro that a State cannot enact durational residency requirements in order to inhibit the
migration of needy persons into the State, and that a classification that has the effect of imposing
a penalty on the right to travel violates the Equal Protection Clause absent a compelling
governmental interest. Pp. 8-10.
(b) The right to travel embraces three different components: the right to enter and leave another
State; the right to be treated as a welcome visitor while temporarily present in another State; and,
for those travelers who elect to become permanent residents, the right to be treated like other
citizens of that State. Pp. 10-12.
(c) The right of newly arrived citizens to the same privileges and immunities enjoyed by other
citizens of their new State--the third aspect of the right to travel--is at issue here. That right is
protected by the new arrival’s status as both a state citizen and a United States citizen, and it is
plainly identified in the Fourteenth Amendment’s Privileges or Immunities Clause, see Slaughter-
House Cases, 16 Wall. 36, 80. That newly arrived citizens have both state and federal capacities
adds special force to their claim that they have the same rights as others who share their
citizenship. Pp. 12-14.
(d) Since the right to travel embraces a citizen’s right to be treated equally in her new State of
residence, a discriminatory classification is itself a penalty. California’s classifications are
defined entirely by the period of residency and the location of the disfavored class members’
prior residences. Within the category of new residents, those who lived in another country or in a
State that had higher benefits than California are treated like lifetime residents; and within the
broad subcategory of new arrivals who are treated less favorably, there are 45 smaller classes

6
whose benefit levels are determined by the law of their former States. California’s legitimate
interest in saving money does not justify this discriminatory scheme. The Fourteenth
Amendment’s Citizenship Clause expressly equates citizenship with residence, Zobel, 457 U. S.,
at 69 , and does not tolerate a hierarchy of subclasses of similarly situated citizens based on the
location of their prior residences. Pp. 14-17.
2. PRWORA’s approval of durational residency requirements does not resuscitate §11450.03.
This Court has consistently held that Congress may not authorize the States to violate the
Fourteenth Amendment. Moreover, the protection afforded to a citizen by that Amendment’s
Citizenship Clause limits the powers of the National Government as well as the States. Congress’
Article I powers to legislate are limited not only by the scope of the Framers’ affirmative
delegation, but also by the principle that the powers may not be exercised in a way that violates
other specific provisions of the Constitution. See Williams v. Rhodes, 393 U. S. 23, 29 . Pp. 17-
21.
Chief Justice Rehnquist , with whom Justice Thomas joins, dissenting.
The Court today breathes new life into the previously dormant Privileges or Immunities Clause
of the Fourteenth Amendment--a Clause relied upon by this Court in only one other decision,
Colgate v. Harvey , 296 U. S. 404 (1935), overruled five years later by Madden v. Kentucky , 309
U. S. 83 (1940). It uses this Clause to strike down what I believe is a reasonable measure falling
under the head of a “good-faith residency requirement.” Because I do not think any provision of
the Constitution--and surely not a provision relied upon for only the second time since its
enactment 130 years ago--requires this result, I dissent.
I
Much of the Court’s opinion is unremarkable and sound. The right to travel clearly embraces the
right to go from one place to another, and prohibits States from impeding the free interstate
passage of citizens. The state law in Edwards v. California , 314 U. S. 160 (1941), which
prohibited the transport of any indigent person into California, was a classic barrier to travel or
migration and the Court rightly struck it down. Indeed, for most of this country’s history, what
the Court today calls the first “component” of the right to travel , ante, at 10, was the entirety of
this right. As Chief Justice Taney stated in his dissent in the Passenger Cases , 7 How. 283
(1849):
“We are all citizens of the United States; and, as members of the same community, must have the
right to pass and repass through every part of it without interruption, as freely as in our own
States. And a tax imposed by a State for entering its territories or harbours is inconsistent with the
rights which belong to the citizens of other States as members of the Union, and with the objects
which that Union was intended to attain. Such a power in the States could produce nothing but
discord and mutual irritation, and they very clearly do not possess it.” Id., at 492.
See also Crandall v. Nevada , 6 Wall. 35, 44 (1868); Williams v. Fears , 179 U. S. 270, 274
(1900); Memorial Hospital v. Maricopa County , 415 U. S. 250, 280-283 (1974) ( Rehnquist, J.,
dissenting) (collecting and discussing cases). The Court wisely holds that because Cal. Welf. &
Inst. Code Ann. §11450.03 (West Supp. 1999) imposes no obstacle to respondents’ entry into
California, the statute does not infringe upon the right to travel. See ante , at 10. Thus, the
traditional conception of the right to travel is simply not an issue in this case.
I also have no difficulty with aligning the right to travel with the protections afforded by the
Privileges and Immunities Clause of Article IV, §2, to nonresidents who enter other States
“intending to return home at the end of [their] journey.” See ante , at 11. Nonresident visitors of
other States should not be subject to discrimination solely because they live out of State. See Paul
v. Virginia , 8 Wall. 168 (1869); Hicklin v. Orbeck , 437 U. S. 518 (1978). Like the traditional

7
right-to-travel guarantees discussed above, however, this Clause has no application here, because
respondents expressed a desire to stay in California and become citizens of that State.
Respondents therefore plainly fall outside the protections of Article IV, §2.
Finally, I agree with the proposition that a “citizen of the United States can, of his own volition,
become a citizen of any State of the Union by a bon ; fide residence therein, with the same rights
as other citizens of that State.” Slaughter-House Cases , 16 Wall. 36, 80 (1873).
But I cannot see how the right to become a citizen of another State is a necessary “component”
of the right to travel, or why the Court tries to marry these separate and distinct rights. A person is
no longer “traveling” in any sense of the word when he finishes his journey to a State which he
plans to make his home. Indeed, under the Court’s logic, the protections of the Privileges or
Immunities Clause recognized in this case come into play only when an individual stops traveling
with the intent to remain and become a citizen of a new State. The right to travel and the right to
become a citizen are distinct, their relationship is not reciprocal, and one is not a “component” of
the other. Indeed, the same dicta from the Slaughter-House Cases quoted by the Court actually
treats the right to become a citizen and the right to travel as separate and distinct rights under the
Privileges or Immunities Clause of the Fourteenth Amendment. See id., at 79-80.3 At most,
restrictions on an individual’s right to become a citizen indirectly affect his calculus in deciding
whether to exercise his right to travel in the first place, but such an attenuated and uncertain
relationship is no ground for folding one right into the other.
No doubt the Court has, in the past 30 years, essentially conflated the right to travel with the
right to equal state citizenship in striking down durational residence requirements similar to the
one challenged here. See, e.g. , Shapiro v. Thompson , 394 U. S. 618 (1969) (striking down 1-
year residence before receiving any welfare benefit); Dunn v. Blumstein , 405 U. S. 330 (1972)
(striking down 1-year residence before receiving the right to vote in state elections); Maricopa
County , 415 U. S., at 280 -283 (striking down 1-year county residence before receiving
entitlement to nonemergency hospitalization or emergency care). These cases marked a sharp
departure from the Court’s prior right-to-travel cases because in none of them was travel itself
prohibited. See id., at 254-255 (“Whatever its ultimate scope . . . the right to travel was involved
in only a limited sense in Shapiro “); Shapiro, supra, at 671-672 (Harlan, J., dissenting).
3
The Court’s decision in the Slaughter-House Cases only confirms my view that state infringement on the right to
travel is limited to the kind of barrier established in Edwards v. California, 314 U. S. 160 (1941), and its discussion
is worth quoting in full:
“But lest it should be said that no such privileges and immunities are to be found if those we have been
considering are excluded, we venture to suggest some which own their existence to the Federal
government, its National character, its Constitution, or its laws.
“One of these is well described in the case of Crandall v. Nevada [, 6 Wall. 35 (1868)]. It is said to be the
right of the citizen of this great country, protected by implied guarantees of its Constitution, `to come to
the seat of government to assert any claim he may have upon that government, to transact any business he
may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has
the right of free access to its seaports, through which all operations of foreign commerce are conducted, to
the subtreasuries, land offices, and courts of justice in the several States.’ And quoting from the language
of Chief Justice Taney in another case, it is said `that for all the great purposes for which the Federal
government was established, we are one people, with one common country, we are all citizens of the
United States;’ and it is, as such citizens, that their rights are supported in this court in Crandall v.
Nevada.” 16 Wall., at 79 (footnote omitted).

8
Instead, the Court in these cases held that restricting the provision of welfare benefits, votes, or
certain medical benefits to new citizens for a limited time impermissibly “penalized” them under
the Equal Protection Clause of the Fourteenth Amendment for having exercised their right to
travel. See Maricopa County, supra , at 257. The Court thus settled for deciding what restrictions
amounted to “deprivations of very important benefits and rights” that operated to indirectly
“penalize” the right to travel. See Attorney General of N. Y. v. Soto-Lopez , 476 U. S. 898, 907
(1986) (plurality opinion). In other cases, the Court recognized that laws dividing new and old
residents had little to do with the right to travel and merely triggered an inquiry into whether the
resulting classification rationally furthered a legitimate government purpose. See Zobel v.
Williams , 457 U. S. 55, 60 , n. 6 (1982); Hooper v. Bernalillo County Assessor, 472 U. S. 612,
618 (1985).4 While Zobel and Hooper reached the wrong result in my view, they at least put the
Court on the proper track in identifying exactly what interests it was protecting; namely, the right
of individuals not to be subject to unjustifiable classifications as opposed to infringements on the
right to travel.
The Court today tries to clear much of the underbrush created by these prior right-to-travel cases,
abandoning its effort to define what residence requirements deprive individuals of “important
rights and benefits” or “penalize” the right to travel. See ante , at 14-15. Under its new analytical
framework, a State, outside certain ill-defined circumstances, cannot classify its citizens by the
length of their residence in the State without offending the Privileges or Immunities Clause of the
Fourteenth Amendment. The Court thus departs from Shapiro and its progeny, and, while paying
lipservice to the right to travel, the Court does little to explain how the right to travel is involved
at all. Instead, as the Court’s analysis clearly demonstrates, see ante , at 15-17, this case is only
about respondents’ right to immediately enjoy all the privileges of being a California citizen in
relation to that State’s ability to test the good-faith assertion of this right. The Court has thus
come full circle by effectively disavowing the analysis of Shapiro , segregating the right to travel
and the rights secured by Article IV from the right to become a citizen under the Privileges or
Immunities Clause, and then testing the residence requirement here against this latter right. For all
its misplaced efforts to fold the right to become a citizen into the right to travel, the Court has
essentially returned to its original understanding of the right to travel.”
---
Justice Thomas, with whom the Chief Justice [Rhenquist] joins, dissenting.
“As The Chief Justice points out, ante at 1, it comes as quite a surprise that the majority relies on
the Privileges or Immunities Clause at all in this case. That is because, as I have explained supra ,
at 1-2, The Slaughter-House Cases sapped the Clause of any meaning. Although the majority
appears to breathe new life into the Clause today, it fails to address its historical underpinnings or
its place in our constitutional jurisprudence. Because I believe that the demise of the Privileges or
Immunities Clause has contributed in no small part to the current disarray of our Fourteenth
Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case.
Before invoking the Clause, however, we should endeavor to understand what the framers of the
Fourteenth Amendment thought that it meant. We should also consider whether the Clause should
displace, rather than augment, portions of our equal protection and substantive due process
jurisprudence. The majority’s failure to consider these important questions raises the specter that
the Privileges or Immunities Clause will become yet another convenient tool for inventing new
4
As Chief Justice Burger aptly stated in Zobel: “In reality, right to travel analysis refers to little more than
a particular application of equal protection analysis. Right to travel cases have examined, in equal
protection terms, state distinctions between newcomers and longer term residents.” 457 U. S., at 60 , n. 6.

9
rights, limited solely by the “predilections of those who happen at the time to be Members of this
Court.” Moore v. East Cleveland, 431 U. S. 494, 502 (1977).”
(3). Third Invitation by SCOTUS: Second Amendment (2008) (Again!)

Justice Scalia’s opinion in District of Columbia v. Heller, No. 07-290, 554 US ____ (June 26, 2008) held
that “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a
militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Justice Scalia
answered the first invitation by Justice Thomas with yet another subject matter jurisdiction invitation:
“JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear
arms in doubt, and for not providing extensive historical justification for those regulations of the
right that we describe as permissible. See post, at 42–43. But since this case represents this
Court’s first in-depth examination of the Second Amend-ment, one should not expect it to clarify
the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879), our first in-depth
Free Exercise Clause case, left that area in a state of utter certainty. And there will be time
enough to expound upon the historical justifications for the exceptions we have mentioned if and
when those exceptions come before us.”
This alone insures that I get a civil jury trial.
C. Summary Judgment is Unconstitutional and a Fraud. Summary Judgment under

Bell Atlantic Corp. v. Twombly5 is a stealthy encroachment upon the Seventh
Amendment right to a Civil Jury Trial.
“It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate
and unconstitutional practices get their first footing in that way, namely, by silent approaches and
slight deviations from legal modes of procedure. This can only be obviated by adhering to the
rule that constitutional provisions for the security of person and property should be liberally
construed. A close and literal construction deprives them of half their efficacy, and leads to
gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty
of courts to be watchful for the constitutional rights of the citizen, and against any stealthy
encroachments thereon. Their motto should be obsta principiis. We have no doubt that the
legislative body is actuated by the same motives; but the vast accumulation of public business
brought before it sometimes prevents it, on a first presentation, from noticing objections which
become developed by time and the practical application of the objectionable law.” Boyd v. United
States, 116 U.S. 616 at 635 (1886)
5
U.S. Supreme Court, No. 05-1126 (May 21, 2007), 425 F. 3d 99

10
Pleading Rule 9(b) Special Matters of Fraud, Mistake and Conditions of Mind, FEDERAL RULES OF CIVIL
PROCEDURE:
AGAINST SUMMARY JUDGMENT
John Bronsteen
Assistant Professor, Loyola University Chicago School of Law.
75 George Washington Law Review 522 (April 2007)
Introduction
For centuries, the paradigm for resolving a legal dispute was a trial.6 But about twenty-five years
ago, legal scholarship began to take note of a shift away from that paradigm.7 Empirical studies
demonstrated that most cases were resolved by settlement rather than trial, and although this trend
was lamented by a few (including most famously Owen Fiss in his article Against Settlement),8 it
was supported by two emerging pillars of the legal academy. One was the field of law and
economics, which welcomed settlement as a cheap and efficient alternative to adjudication.9 The
other was the field of alternative dispute resolution, which grouped settlement with mediation and
arbitration as less adversarial means of working through disagreements.10 Settlement was a boon
to both litigants and the court system because it avoided the costs of trial. With broad approval
from judges, parties, and academics, settlement was the new paradigm as the twentieth century
ended.
But settlement and trial are not the only ways to resolve a legal dispute, and a third option has
recently become so prominent as to mirror the focus attracted by settlement in the early 1980s.11
This new option is pretrial adjudication, typically in the form of summary judgment. When one
party sues another, the defendant refuses to settle and instead litigates—but with the hope of
never seeing a jury. After each side shows the other all of its relevant documents, propounds
interrogatories to the opposing party, and makes available its witnesses for questioning via
depositions, the parties ask the court to grant judgment in their favor on the ground “that there is
6
See, e.g., Stephan Landsman, THE CIVIL JURY TRIAL IN AMERICA, 62 Law & Contemp. Probs. 285, 285 (1999) (“Americans
have relied on juries of ordinary citizens to resolve their civil disputes since the beginning of the colonial period.”).
7
E.g., Carrie Menkel-Meadow, FOR AND AGAINST SETTLEMENT: USES AND ABUSES OF THE MANDATORY SETTLEMENT
CONFERENCE, 33 UCLA L. Rev. 485, 502 (1985) (“Over 90% of all cases (both civil and criminal) are currently settled and
taken out of the system and, thus, are unavailable for common law rule making.”); Judith Resnik, MANAGERIAL JUDGES, 96
HARV. L. REV. 374, 404 (1982).
8
Owen Fiss, Comment, AGAINST SETTLEMENT, 93 Yale L.J. 1073 (1984).
9
E.g., George Loewenstein et al., SELF-SERVING ASSESSMENTS OF FAIRNESS AND PRETRIAL BARGAINING, 22 J. LEGAL STUD.
135, 135 (1993) (“Litigation is a negative-sum proposition for the litigants—the longer the process continues, the lower
their aggregate wealth.”).
10
See, e.g., Carrie Menkel-Meadow, FOR AND AGAINST SETTLEMENT: USES AND ABUSES OF THE MANDATORY SETTLEMENT
CONFERENCE, 33 UCLA L. Rev. at 504 (1985) (“Settlement can be particularized to the needs of the parties, it can avoid
win/lose, binary results, provide richer remedies than the commodification or monetarization of all claims, and achieve
legitimacy through consent.”).
11
See Stephen B. Burbank, VANISHING TRIALS AND SUMMARY JUDGMENT IN FEDERAL CIVIL CASES: DRIFTING TOWARD
BETHLEHEM OR GOMORRAH?, 1 J. Empirical Legal Stud. 591, 600 (2004).

11
no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.”12
Judges now grant these motions so often13 that summary judgment stands alongside trial and
settlement as a pillar of our system. 14 A defendant1510 can use this mechanism to rid itself of
litigation without either risking trial or paying a settlement, and the refusal to settle might
discourage future lawsuits. Because summary judgment avoids the time and expense of trial, it
also appeals to commentators who prize efficiency.16 It is thus a staple of how today’s U.S. civil
justice system conducts business, and most view this state of affairs as a welcome development.17
Amid this movement toward an increasingly central role for summary judgment, there have been
a few cautionary voices. When the Supreme Court started us down this road twenty years ago by
12
FED. R. CIV. P. 56(c). Although a party may move for summary judgment from the beginning of a suit, Fed. R. Civ. P.
56(a)–(b), the rule gives judges discretion to continue a motion until further discovery has taken place, Fed. R. Civ. P.
56(f).
13
See Stephen B. Burbank, VANISHING TRIALS AND SUMMARY JUDGMENT IN FEDERAL CIVIL CASES: DRIFTING TOWARD
BETHLEHEM OR GOMORRAH?, 1 J. Empirical Legal Stud. at 592 (2004) (“[T]he rate of case termination by summary
judgment in federal civil cases nationwide increased substantially in the period between 1960 and 2000 . . . .”).
14
See Gillian K. Hadfield, WHERE HAVE ALL THE TRIALS GONE? SETTLEMENTS, NONTRIAL ADJUDICATIONS, AND STATISTICAL
ARTIFACTS IN THE CHANGING DISPOSITION OF FEDERAL CIVIL CASES, 1 J. Empirical Legal Stud. 705, 705 (2004) (using
electronic docketing data to reach the “surprising conclusions that a smaller percentage of cases were disposed of through
settlement in 2000 than was the case in 1970, [and] that vanishing trials have been replaced not by settlements but by nontrial
adjudication”).
15
Although summary judgment can be granted in favor of either a plaintiff or a defendant, it is granted far more
often in favor of the defendant. Stephen B. Burbank, VANISHING TRIALS AND SUMMARY JUDGMENT IN FEDERAL CIVIL CASES:
DRIFTING TOWARD BETHLEHEM OR GOMORRAH?, 1 J. Empirical Legal Stud. at 616 (2004) (“In [fiscal year] 2000, judges in the
Eastern District [of Pennsylvania] granted 293 motions for summary judgment (87 for plaintiffs and 206 for defendants) . . .
.”); D. Theodore Rave, Note, QUESTIONING THE EFFICIENCY OF SUMMARY JUDGMENT, 81 N.Y.U. L. Rev. 875, 900 n.142
(2006). Because the Administrative Office of the U.S. Courts does not keep statistics on summary judgment, Rave, supra, at
900, statistics must be calculated based on individual studies, e.g., Stephen B. Burbank, VANISHING TRIALS AND SUMMARY
JUDGMENT IN FEDERAL CIVIL CASES: DRIFTING TOWARD BETHLEHEM OR GOMORRAH?, 1 J. Empirical Legal Stud. at 616-18
(2004) (collecting data from the Eastern District of Pennsylvania), or audits of sampled electronic docket information, e.g.,
Gillian K. Hadfield, WHERE HAVE ALL THE TRIALS GONE? SETTLEMENTS, NONTRIAL ADJUDICATIONS, AND STATISTICAL
ARTIFACTS IN THE CHANGING DISPOSITION OF FEDERAL CIVIL CASES, 1 J. Empirical Legal Stud. at 712-23 (2004) (auditing
electronic data for input error and compiling “corrected” data).
16
Edward J. Brunet et al., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE 1 (2d ed. 2000) (“Rule 56 performs a
‘workhorse’ task in the federal procedural system and occupies center stage in attaining the central goal of conserving
the expenditure of judicial resources.”).
17
See E.g., BRUNET ET AL., supra note 11, at 327 (“Summary judgment should be seen as a potential expense-saving
device to avoid an unnecessary trial.”); Randy J. Kozel & David Rosenberg, Solving the Nuisance-Value Settlement Problem:
Mandatory Summary Judgment, 90 VA. L. REV. 1849, 1853 (2004) (“[M]andating summary judgment as a condition
precedent to entering into an enforceable settlement agreement eliminates the potential payoff from nuisance-value strategies,
removing any incentive to employ them.”); Georgene M. Vairo, Through the Prism: Summary Judgment After the Trilogy
(2003), in CIVIL PRACTICE AND LITIGATION TECHNIQUES IN FEDERAL AND STATE COURTS, at 1543, 1564
(ALI-ABA, Coursebook, 2006) (“Justice Rehnquist’s opinion [in Celotex] is a veritable ode to the superiority of summary
judgment as a means of fairly, efficiently and economically disposing of claims.”); see also Martin H. Redish, Summary
Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57 STAN. L. REV. 1329, 1335 (2005) (“Because
the very purpose of summary judgment is to avoid unnecessary trials, one need not be a trained logician to conclude that an
increase in the availability of summary judgment will naturally have a corresponding negative impact on the number of
trials.”).

12
making it easier for judges to grant summary judgment,18 some scholars wondered whether the
intended improvements in efficiency would materialize19 or whether the right to a jury trial was
being unduly restricted.20 And recently, a few scholars have begun to voice concerns that the
summary judgment revolution might have gone too far.21 But these detractors have been all but
drowned out in a sea of support for the new regime of dispute resolution, and even the detractors
object merely to how often summary judgment is used, rather than to the fact that it is used at
18
See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). This “trilogy” drastically reduced barriers for granting summary
judgment motions. Before the trilogy, the judicial attitude toward summary judgment was perhaps best summed up by an
Alabama courthouse sign that read “No Spittin,’ No Cussin’ and No Summary Judgment.” Susan T. Wall, “NO SPITTIN,’
NO CUSSIN’ AND NO SUMMARY JUDGMENT”: RETHINKING MOTION PRACTICE, S.C. Law., June 1997, at 29, 29.
19
Samuel Issacharoff & George Loewenstein, SECOND THOUGHTS ABOUT SUMMARY JUDGMENT, 100 YALE L.J. 73, 100
(1990) (“[C]hanges that facilitate judicial disposition of cases but impede settlement may fail to relieve, if not
exacerbate, court congestion.”); see also Arthur R. Miller, THE PRETRIAL RUSH TO JUDGMENT: ARE THE “LITIGATION
EXPLOSION,” “LIABILITY CRISES,” AND EFFICIENCY CLICHÉS ERODING OUR DAY IN COURT AND JURY TRIAL COMMITMENTS ?, 78
N.Y.U. L. Rev. 982, 1047 (2003) (“[C]ritics have questioned whether the [trilogy] decisions really will produce gains in
efficiency, pointing out that summary judgment motions take time to prepare, support, and decide (realities that are
likely to have been increased by the motion’s post-1986 vitality), often slow a case’s forward progress, and typically
save time only when granted.” (citation omitted)).
20
E.g., Jack H. Friedenthal, CASES ON SUMMARY JUDGMENT: HAS THERE BEEN A MATERIAL CHANGE IN STANDARDS?, 63 Notre
Dame L. Rev. 770, 775 (1988) (“[W]hen the moving party would have the burden of persuasion at trial, the courts have
. . . strained to permit the granting of the motion by interpreting the amendment not to include a strict submission of
matters of credibility to the jury, a questionable determination.”); see also Paul W. Mollica, FEDERAL SUMMARY
JUDGMENT AT HIGH TIDE, 84 Marq. L. Rev. 141, 141–42 (2000) (“[T]he increase in summary dispositions of civil cases
stirs fear that, in the haste to resolve weak cases, courts risk overriding the constitutional imperatives of due process
and the right to a civil jury trial under the Fifth and Seventh Amendments.”).
21
E.g., Arthur R. Miller, THE PRETRIAL RUSH TO JUDGMENT: ARE THE “LITIGATION EXPLOSION,” “LIABILITY CRISES,” AND
EFFICIENCY CLICHÉS ERODING OUR DAY IN COURT AND JURY TRIAL COMMITMENTS?, 78 N.Y.U. L. Rev. 982, at 1047 (2003);
Patricia M. Wald, SUMMARY JUDGMENT AT SIXTY, 76 Tex. L. Rev. 1897, 1941 (1998) (“Its flame lit by Matsushita,
Anderson, and Celotex in 1986, and fueled by the overloaded dockets of the last two decades, summary judgment has
spread swiftly through the underbrush of undesirable cases, taking down some healthy trees as it goes.”); Rebecca
Silver, Note, STANDARD OF REVIEW IN FOIA APPEALS AND THE MISUSE OF SUMMARY JUDGMENT, 73 U. Chi. L. Rev. 731, 751–
52 (2006) (lamenting that summary judgment has become the status quo for Freedom of Information Act decisions,
even when genuine issues of material fact exist); Milton I. Shadur, AN OLD JUDGE’S THOUGHTS, CBA REC., January 2004,
at 27, 27 (“From my perspective that trend has gone much too far, to the benefit of no one involved in the justice
system . . . .”).

13
all.22 Indeed, the idea of questioning the legitimacy of summary judgment altogether is widely
regarded as “a legal lunacy.”23
Against this backdrop, it makes sense that a forthcoming article titled “Why Summary Judgment
Is Unconstitutional”24 has received such intense interest and provoked such profound surprise. 25
This article by Suja Thomas contends that summary judgment violates the Seventh Amendment
to the U.S. Constitution, which guarantees the right to a jury trial in civil cases. The argument is
straightforward: when we allow a judge to keep a plaintiff’s lawsuit away from a jury on the
ground that no “reasonable jury could find for”26 the plaintiff, we have violated the constitutional
decree that “[i]n suits at common law, . . . the right of trial by jury shall be preserved.”27 Thomas
notes that the Supreme Court has always interpreted the Seventh Amendment to mean that the
jury trial right must never be limited further than it was at common law in 1791 (otherwise it
would not be fully “preserved”), and she explains that neither summary judgment nor its
equivalent existed at common law. 28
Thomas’s paper deserves the attention it has received, and its arguments are convincing with
respect to history and textual interpretation. I doubt that anyone will mount a successful rebuttal
to those points. Nonetheless, I doubt even more strongly that Thomas’s historical and interpretive
arguments alone will persuade courts to abolish summary judgment. As the last half century of
legal scholarship has demonstrated, courts temper their adherence to doctrine with a healthy dose
of concern for the practical implications of their decisions. Because summary judgment is such an
integral part of the everyday workings of the U.S. civil justice system, and because everyone
22
E.g., Edward J. Brunet et al., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE at 327 (2d ed. 2000) (“Summary judgment
should be seen as a potential expense-saving device to avoid an unnecessary trial.”); Randy J. Kozel & David Rosenberg,
SOLVING THE NUISANCE-VALUE SETTLEMENT PROBLEM: MANDATORY SUMMARY JUDGMENT, 90 VA. L. REV. 1849, 1853 (2004)
(“[M]andating summary judgment as a condition precedent to entering into an enforceable settlement agreement eliminates
the potential payoff from nuisance-value strategies, removing any incentive to employ them.”); Georgene M. Vairo,
THROUGH THE PRISM: SUMMARY JUDGMENT AFTER THE TRILOGY (2003), in CIVIL PRACTICE AND LITIGATION TECHNIQUES IN
FEDERAL AND STATE COURTS, at 1543, 1564 (ALI-ABA, Coursebook, 2006) (“Justice Rehnquist’s opinion [in Celotex] is a
veritable ode to the superiority of summary judgment as a means of fairly, efficiently and economically disposing of
claims.”); see also Martin H. Redish, SUMMARY JUDGMENT AND THE VANISHING TRIAL: IMPLICATIONS OF THE LITIGATION
MATRIX, 57 STAN. L. REV. 1329, 1335 (2005) (“Because the very purpose of summary judgment is to avoid unnecessary
trials, one need not be a trained logician to conclude that an increase in the availability of summary judgment will naturally
have a corresponding negative impact on the number of trials.”).
23
W. Mollica, FEDERAL SUMMARY JUDGMENT AT HIGH TIDE, 84 Marq. L. Rev. at 205 (2000).
24
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 VA. L. REV. 139 (2007).
25
The article has attracted, as of this writing, 5149 abstract views and 1019 downloads on the Social Science Research
Network. See Social Science Research Network,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=886363 (last visited Mar. 23, 2007).
It was also featured on two leading Weblogs. Legal Theory Blog
http://lsolum.typepad.com/legaltheory/2006/02/suja_on_the_con.html (Feb. 22, 2006, 18:33 CST); How Appealing,
http://howappealing.law.com/022206.html#011509 (Feb. 22, 2006, 21:50 EST).
26
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Edward J. Brunet et al., SUMMARY JUDGMENT: FEDERAL LAW
AND PRACTICE at 267 (2d ed. 2000). This is the standard set out by the Supreme Court for whether summary judgment should
be granted, and it governs current practice.
27
U.S. CONST. amend. VII.
28
See Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 148-58 (2007) (outlining the
procedural mechanisms available at common law and concluding that summary judgment does not resemble those
procedures).

14
assumes that the system would be crushed under the weight of innumerable trials if summary
judgment disappeared, courts will turn a blind eye to the interpretive problems raised by Thomas
and by the litigants who will cite her work. 29
I view this near-certain outcome as unfortunate—not because I believe that courts should ignore
practical considerations, but rather because I think their assumptions about such considerations
are inaccurate in this context. Specifically, I think that the civil justice system would actually
enjoy a net benefit from abolishing summary judgment, in terms of both efficiency30 and
fairness.3126 To put it another way, it would behoove us to abolish summary judgment even if we
were not constitutionally obligated to do so. My hope is that the twin problems of its
unconstitutionality and its concrete harm might together be enough to persuade courts (or
amenders of the Federal Rules of Civil Procedure) to move away from this practice rather than
embrace it. We would be better off if we returned to the old paradigms of settlement and trial than
if we maintained our current reliance on pretrial adjudication as the new dominant mode of
resolving disputes.
...
III.
A Brief Sketch of the Constitutional Issue
It is unnecessary for this Article to restate the constitutional case against summary judgment laid
out so well in Suja Thomas’s forthcoming article. 32 On the other hand, an article titled “Against
Summary Judgment” would do its readers a disservice if it failed to provide even a cursory
explanation of the point that summary judgment is unconstitutional.
The Seventh Amendment to the U.S. Constitution states that “[i]n suits at common law, . . . the
right of trial by jury shall be preserved.”33 The reference to “common law” and the word
“preserved” have prompted the Supreme Court consistently to interpret the Amendment to mean
that litigants today must be accorded no less restrictive access to a jury trial than were litigants in
1791 when the Amendment was ratified.34 There was no such thing as summary judgment in
1791,35 so on its face the practice stands on infirm constitutional footing. It could, however, be
permissible if any procedures that did exist in 1791 created a limitation on the right to jury trial
equivalent to that which summary judgment creates in our current system.36
As Thomas explains, there were five relevant procedures in 1791 that limited the right to jury
trial.37 Summary judgment is constitutional if and only if it equates to any of these procedures.
The five procedures were:
29
To her credit, Thomas anticipates this point and addresses it in a couple of paragraphs near the end of her paper. See See
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 177-79 (2007).
30
Infra Part I.C.
31
Infra Part II.A.
32
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. 139 (2007).
33
34
Edward J. Brunet et al., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE at 14-15 (2d ed. 2000); Suja A. Thomas, WHY
SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 146-47 (2007).
35
Edward J. Brunet et al., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE at 14-15 (2d ed. 2000).
36
See id.
37
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 148 (2007).

15
(1) demurrer to the pleadings,

(2) demurrer to the evidence,
(3) special case,
(4) compulsory nonsuit, and
(5) new trial.38
The first three procedures shared a crucial similarity: in each, the judge made no assessment of
the facts of the case whatsoever. The demurrer to the pleadings was a sort of precursor to the
modern motion for judgment on the pleadings (i.e., the motion to dismiss under Rule 12(b)(6)). 39
One party admitted all facts alleged by the other and requested judgment in its favor. The judge
would then issue a conclusive judgment one way or the other. Unlike a modern 12(b)(6) motion,
in which the case proceeds if the motion is denied, a demurrer to the pleadings would end the
case in favor of whichever litigant received the ruling it sought. A defendant who made such a
motion would lose her right to advance her case because she would have admitted everything
alleged. 40 Thus, this procedure at most limited the right to jury trial as much as does a 12(b)(6)
motion—far less than a summary judgment motion, which allows the judge to keep the plain tiff
from a jury on the ground that the plaintiff’s evidence would be insufficient to convince a
reasonable jury.
Unlike the demurrer to the pleadings, the demurrer to the evidence might look to some like a
variation on our current practice of summary judgment. But there are determinative differences.
After all the evidence was presented at trial, one side could admit that all of the other side’s
evidence was true and ask the judge to decide the case either way by applying the law to those
admitted facts.41 Like the demurrer to the pleadings, this procedure was rare because it carried a
huge risk (one that today’s summary judgment lacks): if the judge disagreed with your claim to
win as a matter of law, then you would lose the case outright. Another difference from summary
judgment was that the procedure took place during the jury trial rather than before. But by far the
most important difference was that the judge was not asked to (indeed, was required not to) weigh
each side’s evidence and decide whether any reasonable jury could rule for one of the parties.
Instead, to pursue a demurrer to the evidence, one side had to admit everything alleged by the
other side. This resembles far more closely the standard applied to a modern 12(b)(6) motion than
to a motion for summary judgment.
The third common-law procedure, the special case, also involved a judicial determination of the
law when the facts were in no dispute. If the parties established the facts by agreement or by a
jury verdict, then they could ask the court to decide the case by a pure application of the law to
those facts.42 This differs from summary judgment for the same reasons that the demurrer to the
evidence does: the judge makes no factual assessment, and whichever party loses at this stage
automatically loses the case.
38
39
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 149 (2007) (“Under demurrer to the
pleadings, the court considered only the facts alleged by the opposing party.”).
40
41
42

16
The fourth common-law procedure, the compulsory nonsuit, comes closer to summary judgment
but still falls short. In the compulsory nonsuit, the judge could overrule a jury verdict if there was
no evidence to support it.43 This procedure is far more like the modern judgment notwithstanding
the verdict than it is like summary judgment, because it occurred after the trial rather than before.
But it lacked even the teeth of its modern analogue because it was limited to cases where no
evidence was offered to support a necessary claim: “Whether there be any evidence, is a question
for the Judge. Whether [there be] sufficient evidence, is for the jury.”44
That leaves only the fifth common-law procedure, the new trial. This is the only procedure that
could plausibly be said to restrict the right to jury trial as much as does summary judgment. Only
via this procedure could a litigant in 1791 receive a meaningful ruling from a judge based on the
sufficiency, rather than the mere existence, of the other side’s evidence. After the trial and jury
verdict, the judge could rule in effect that no reasonable jury could have reached this conclusion,
and accordingly he would order a new jury trial.45
Of course, the standard of review is the only similarity between this procedure and summary
judgment. The timing is different—post-trial rather than pretrial—which arguably suggests that
the old procedure infringes the right to jury trial less severely. Far more important, though, is the
difference in remedy. Summary judgment causes a litigant to lose her case without ever seeing a
jury, whereas the new trial procedure of the common law merely required the litigant to retry her
case in front of another jury. Regardless whether this retrying procedure was wasteful or
otherwise bad policy, one cannot reasonably contend that such a remedy impinged the right to
jury trial as much as does the remedy in summary judgment. In 1791, a plaintiff who suffered an
adverse ruling from the new trial procedure would receive two jury trials, whereas today a
plaintiff who suffers an adverse ruling at summary judgment does not even receive one.
Thus, none of the procedural mechanisms available in 1791 restricted the right to jury trial to the
extent that it is restricted today by summary judgment. None allowed the judge to evaluate the
conflicting evidence offered by both sides and issue a judgment resolving the case on the basis of
his evaluation. Summary judgment gives the judge this power, and it is therefore used frequently
to keep cases away from juries. Because we currently employ a procedure that deprives plaintiffs
of jury trials in cases in which they would have had such trials in 1791, we are violating the
constitutional edict that “[i]n suits at common law, . . . the right of trial by jury shall be
preserved.”46
Conclusion
Summary judgment might be a wonderful procedure were it not inefficient, unfair, and
unconstitutional. It is inefficient because it gives a defendant the incentive to impose the costly
and time-consuming burden of discovery and motions practice upon the plaintiff, the court, and
itself, rather than to settle early and avoid those costs. It is unfair because it requires a judge to
decide the case in a context in which ruling for the defendant speeds along the judge’s docket,
whereas ruling for the plaintiff potentially invites a trial that would backlog the docket and bring
both criticism and an increased workload upon the judge. Summary judgment thus creates a
systemic bias against one of the two categories of litigants (plaintiffs), arguably the most
43
44
Co. of Carpenters v. Hayward, (1780) 99 Eng. Rep. 241, 242 (K.B.) (emphasis added).
45
46

17
egregious problem that can plague a civil justice system.47 Finally, summary judgment is
unconstitutional because it fails to “preserve[ ]” the “right of trial by jury” in civil cases as
mandated by the Seventh Amendment. When the Amendment was ratified, no procedure existed
that imposed the limits on the right to a jury trial that are now imposed by summary judgment.
Powerful interests are aligned in favor of summary judgment. Large corporations, the typical
defendants in important civil litigation, benefit from the procedure and would no doubt exert
inexorable political pressure to retain it.48 Judges too might support it, though only because they
would overlook the fact that without summary judgment, most cases they now adjudicate would
settle early rather than go to trial. Perhaps these interests cannot be overcome. But if that is the
case, then we should at least acknowledge that summary judgment owes its continued existence
primarily to our system’s capitulation to those who undeservedly benefit from it. In a better
world, it would not exist.
D. WWII and the Fighting Merchant Marine
Admiral Albert J. Herberger, USN (Ret), answering questions about the Merchant Marine of
WWII state: 49
During WWII, when were guns and gunners first put on U.S. ships?”
“In the Pacific, long before war was declared, some enterprising ship crews built
plywood “guns,” hoping their profile would fool the enemy ships. On November 17,
1941 Congress approved arming of merchant ships and set up the Naval Armed Guard. It
took many months for guns and crews to get aboard thousands of ships. Many of the
initial guns were of World War I vintage. Mariners in the Merchant Marine were trained
at U.S. Maritime Service Training Stations, they received on-the-job training while under
attack. Mariners assisted the Naval Armed Guard in passing ammunition, catching
cannon hot shells after firing wearing large asbestos gloves, and many were assigned
anti-aircraft gun stations.”
Did the Merchant Marine receive military training and acquire a military capability?
“Yes, in early 1940 the Coast Guard began training the Merchant Marine personnel
in gunnery and, in addition, the Merchant Marine Academy required extensive military
training of their cadets to qualify for graduation. By November 1941 (in an act of
Congress) our Government began to arm Merchant Ships and in December of that year,
Navy armed guards were assigned to many vessels.”
47
Cf. Daniel W. Shuman & Jean A. Hamilton, JURY SERVICE—IT MAY CHANGE YOUR MIND: PERCEPTIONS OF FAIRNESS OF
JURORS AND NONJURORS, 46 SMU L. Rev. 449, 450 (1992) (“Perceptions about the fairness of the judicial system are
important because they reflect belief about its legitimacy.”).
48
See Gerald Burk, CORPORATE POWER AND ITS DISCONTENTS, 53 Buff. L. Rev. 1419, 1419 (2006) (“Perhaps most
devastating for the rule of law is that artificial persons have learned to reshape legal doctrine to their advantage by
litigating rules, rather than discrete rights. In a word, corporate persons have become hegemonic. They shape the
rules of the game, professional norms, and legal outcomes.”).
49
www.usmm.org/gunnery.html

18
E. WWII MEMOS: U.S. Merchant Marine Are Members of the Armed Forces
President Franklin Delano Roosevelt,50 Commander-in-Chief of the Armed Forces, stated in
correspondence between Admiral Emory S. Land, Chairman of the Maritime Commission and Head of
the War Shipping Administration, and Robert P. Patterson, Acting Secretary of War, that the U.S.
Merchant Marine was an Armed Force.
When Robert P. Patterson, Patterson, Acting Secretary of War, asked in the March 4, 1943
Memo, “Is it your desire that, for the purpose of awarding decorations, the War Department consider
officers and members of the crews of ships of the Merchant Marine as members of the armed forces?”
the President answered, “Yes.”
F. The Federal Courts have become the Judicial Praetorian Guard protecting the
United States from its own People in the war over the Bill of Rights.
By the Fourteenth Amendment, the powers of states in dealing with crime within their borders are not
limited, except that no state can deprive particular persons or classes of persons of equal and impartial justice
under the law, that law in its regular course of administration through courts of justice is due process, and when
secured by the law of the state, the constitutional requirement is satisfied, and that due process is so secured by
laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government
unrestrained by the established principles of private right and distributive justice. Leeper v. Texas, 139 U.S. 462,
463 (1891), 11 Sup. Ct. Rep. 577.
The following cases were dismissed by arbitrary exercise of government (judicial bias by interjected a
political ideology as a replacement for the Rule of Law and equal justice under the law) power under the
unconstitutional summary judgment in violation of the Seventh Amendment right to a civil jury trial under the
common law:
U.S. District Court/DC, No. 02-1434 (OBEYED 28 U.S.C. § 1916)
! DC Circuit, No. 02-5334 (VIOLATED 28 U.S.C. § 1916)
! 8th CIRCUIT, CASE NO. 07-2400 (VIOLATED 28 U.S.C. § 1916W)
! U.S. District Court/Little Rock, No. 06-0044. (VIOLATED 28 U.S.C. § 1916)
! U.S. Supreme Court, Nos. 03-145 (VIOLATED 28 U.S.C. § 1916)
! U.S. Supreme Court, Nos. 04-1150 (VIOLATED 28 U.S.C. § 1916)
! U.S. Supreme Court, Nos. 04M56 (VIOLATED 28 U.S.C. § 1916)
50
www.usmm.org//fdr/armedforce.html

19
G. Justice Harlan’s Dissent on Arbitrary Exercise of Government Power and

Oppression in Downes v. Bidwell, 182 U.S. 244 at 376-382 (1901)
Mr. Justice Harlan, dissenting:
In Martin v. Hunter, 1 Wheat. 304, 324, 326, 331, 4 L. ed. 97, 102, 104, this court speaking by
Mr. Justice Story, said that ‘the Constitution of the United States was ordained and established,
not by the states in their sovereign capacities but emphatically, as the preamble of the
Constitution declares, by ‘the People of the United States.”
In McCulloch v. Maryland, 4 Wheat. 316, 403-406, 4 L. ed. 579, 600, 601, Chief Justice
Marshall, speaking for this court, said: ‘The government proceeds directly from the people; is
‘ordained and established’ in the name of the people; and is declared to be ordained ‘in order to
form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings
of liberty to themselves and to their posterity.’ The assent of the states, in their sovereign
capacity, is implied in calling a convention, and thus submitting that instrument to the people. But
the people were at perfect liberty to accept or reject it; and their act was final. It required not the
affirmance, and could not be negatived, by the state governments. The Constitution, when thus
adopted, was of complete obligation, and bound the state sovereignties. . . . The government of
the union, then (whatever may be the influence of this fact on the case) is emphatically and truly a
government of the people. In form and in substance it emanates from them. Its powers are granted
by them, and are to be exercised directly on them and for their benefit. This government is
acknowledged by all to be one of enumerated powers. . . . It is the government of all; its powers
are delegated by all; it represents all, and acts for all.’
Although the states are constituent parts of the United States, the government rests upon the
authority of the people of the United States, and not on that of the states. Chief Justice Marshall,
delivering the unanimous judgment of this court in Cohen v. Virginia, 6 Wheat. 264, 413, 5 L. ed.
257, 293, said: ‘That the United States form, for many and for most important purposes, a single
nation, has not yet been denied. In war, we are one people. In making peace, we are one people. .
. . In many other respects, the American people are one; and the government which is alone
capable of controlling and managing their interests . . . is the government of the Union. It is their
government, and in that character they have no other. America has chosen to be, in many respects
and to many purposes, a nation; and for all these purposes her government is complete; to all
these objects it is competent. The people have declared that in the exercise of all powers given for
those objects it is supreme. It can, then, in effecting these objects, legitimately control all
individuals or governments within the American territory.’
In reference to the doctrine that the Constitution was established by and for the states as distinct
political organizations, Mr. Webster said: ‘The Constitution itself in its very front refutes that. It
declares that it is ordained and established by [182 U.S. 244, 378] the People of the United
States. So far from saying that it is established by the governments of the several states, it does
not even say that it is established by the people of the several states. But it pronounces that it was
established by the people of the United States in the aggregate. Doubtless, the people of the
several states, taken collectively, constitute the people of the United States. But it is in this their
collective capacity, it is as all the people of the United States, that they established the
Constitution.’
In view of the adjudications of this court I cannot assent to the proposition, whether it be
announced in express words or by implication, that the national government is a government of or
by the states in union, and that the prohibitions and limitations of the Constitution are addressed
only to the states. That is but another form of saying that, like the government created by the
Articles of Confederation, the present government is a mere league of states, held together by

20
compact between themselves; whereas, as this court has often declared, it is a government created
by the People of the United States, with enumerated powers, and supreme over states and
individuals with respect to certain objects, throughout the entire territory over which its
jurisdiction extends. If the national government is in any sense a compact, it is a compact between
the People of the United States among themselves as constituting in the aggregate the political
community by whom the national government was established. The Constitution speaks, not
simply to the states in their organized capacities, but to all peoples, whether of states or
territories, who are subject to the authority of the United States. Martin v. Hunter, 1 Wheat. 327,
4 L. ed. 103.
...
Although from the foundation of the government this court has held steadily to the view that the
government of the United States was one of enumerated powers, and that no one of its branches,
nor all of its branches combined, could constitutionally exercise powers not granted, or which
were not necessarily implied from those expressly granted (Martin v. Hunter, 1 Wheat. 326, 331,
4 L. ed. 102, 104) . . . This nation is under the control of a written constitution, the supreme law
of the land and the only source of the powers which our government, or any branch or officer of
it, may exert at any time or at any place. . . .To say otherwise is to concede that Congress may, by
action taken outside of the Constitution, engraft upon our republican institutions a colonial system
such as exists under monarchical governments. Surely such a result was never contemplated by
the fathers of the Constitution. If that instrument had contained a word suggesting the possibility
of a result of that character it would never have been adopted by the people of the United States. .
..
The idea prevails with some-indeed, it found expression in agruments at the bar-that we have in
this country substantially or practically two national governments; one to be maintained under the
Constitution, with all its restrictions; the other to be maintained by Congress outside and
independently of that instrument, by exercising such powers as other nations of the earth are
accustomed to exercise. It is one thing to give such a latitudinarian construction to the
Constitution as will bring the exercise of power by Congress, upon a particular occasion or upon
a particular subject, within its provisions. It is quite a different thing to say that Congress may, if
it so elects, proceed outside of the Constitution. The glory of our American system [182 U.S. 244,
381] of government is that it was created by a written constitution which protects the people
against the exercise of arbitrary, unlimited power, and the limits of which instrument may not be
passed by the government it created, or by any branch of it, or even by the people who ordained
it, except by amendment or change of its provisions. ‘To what purpose,’ Chief Justice Marshall
said in Marbury v. Madison, 1 Cranch, 137, 176, 2 L. ed. 60, 73, ‘are powers limited, and to what
purpose is that limitation committed to writting, if these limits may, at any time, be passed by
those intended to be restrained? The distinction between a government with limited and unlimited
powers is abolished if those limits do not confine the persons on whom they are imposed, and if
acts prohibited and acts allowed are of equal obligation.’
The wise men who framed the Constitution, and the patriotic people who adopted it, were
unwilling to depend for their safety upon what, in the opinion referred to, is described as ‘certain
principles of natural justice inherent in Anglo-Saxon character, which need no expression in
constitutions or statutes to give them effect or to secure dependencies against legislation
manifestly hostile to their real interests.’ They proceeded upon the theory-the wisdom of which
experience has vindicated- that the only safe guaranty against governmental oppression was to
withhold or restrict the power to oppress. They well remembered that Anglo- Saxons across the
ocean had attempted, in defiance of law and justice, to trample upon the rights of Anglo-Saxons
on this continent, and had sought, by military force, to establish a government that could at will

21
destroy the privileges that inhere in liberty. They believed that the establishment here of a
government that could administer public affairs according to its will, unrestrained by any
fundamental law and without regard to the inherent rights of freemen, would be ruinous to the
liberties of the people by exposing them to the oppressions of arbitrary power. Hence, the
Constitution enumerates the powers which Congress and the other departments may exercise,-
leaving unimpaired, to the states or the People, the powers not delegated to the national
government nor prohibited to the states. That instrument so expressly declares in [182 U.S. 244,
382] the 10th Article of Amendment. It will be an evil day for American liberty if the theory of a
government outside of the supreme law of the land finds lodgment in our constitutional
jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all
violation of the principles of the Constitution.
H. Dismantling of Private Attorney General Endangers Civil Rights

By M. Wood
Virginia School of Law51
580 Massie Road
Charlottesville, Virginia 22903-1738
November 22, 2002
See Pamela S. Karlan, DISARMING THE PRIVATE ATTORNEY GENERAL, Illinois Law Review, Vol. 2003, No.1,
183-210 (2003).52
A series of decisions by the Rehnquist Court not seeking damages but are acting much as a normal
undermining the private attorney general action poses attorney general would by vindicating important
a danger to civil rights protections by weakening Congressional policies. Most civil rights statutes rely
enforcement for existing federal regulations, visiting heavily on the private attorney general, a term coined
law professor Pamela Karlan said at a National in 1943 by Judge Jerome Frank, who was referring to
Lawyers Guild-sponsored event Nov. 19. Although the litigation by private plaintiffs “to prevent [a
Court maintains in its decisions that states still have to government] official from acting in violation of his
follow federal laws such as those barring employment statutory powers.” Karlan said the Court verified the
discrimination, they have undercut citizen’s right to importance of the private attorney general in Newman
sue when laws are broken, casting out remedies the v. Piggie Park Enterprises, one of the earliest cases
political branches have tried to provide to citizens, she based on the Civil Rights Act of 1964. Piggie Park
said. recognized the “piggybacking” function of the Act,
Karlan said: Congress harnessed private plaintiffs to
Karlan said the Supreme Court’s decisions have
help obtain equal treatment for the general public.
weakened the public’s ability to enforce civil rights
laws. Traditionally the Court might “retrench” on civil
rights protections by more narrowly defining the
“That makes the Court the most dangerous protection, a decision Congress can react to and
branch of government rather than the least,” override. “When the Court makes it clear they’re
Karlan said. retrenching, the political process responds to that,”
A centerpiece of the Second Reconstruction, Karlan said. Today, Karlan alleged, the Court’s actions
private attorneys general are private plaintiffs who are are more “insidious.”
51
http://www.law.virginia.edu/html/news/2002_fall/karlan.htm
52
http://home.law.uiuc.edu/lrev/publications/2000s/2003/2003_1/Karlan.pdf

22
“They’ve gotten rid of the primary mechanism for right of action to enforce disparate impact
enforcement,” Karlan said, allowing potential discrimination under Title VI of the 1964 Civil Rights
wrongdoers to take advantage of the lack of legal Act, which prohibits discrimination by federally
reprisals for their actions. funded entities. In the case, Sandoval’s attorneys
argued that requiring the state’s driver license exam to
Congress isn’t responding to the Court’s decisions
be administered in English only discriminated against
partly because legislators don’t understand the
him.
consequences of the rulings, and due to its more
conservative bent in recent years. The Court’s moves Karlan said the Court interpreted the 1964 statute
are so subtle, Karlan said, they haven’t created enough as if it were written in 2001.
pressure on the public to vote in politicians who care
“It’s about the current Supreme Court’s vision
about civil rights.
about how much regulation there should be against
Karlan said people used to think the 14th states,” she said. She said an earlier Court recognized
Amendment, which says states cannot abridge Congress’s intent to allow private actions as another
citizen’s rights, trumped the 11th Amendment, the way to enforce regulations, but the current Court has
“sovereign state immunity” amendment, which limits not genuinely considered Congressional intent in
citizens from bringing suits against states in federal legislation like the 1964 Civil Rights Act.
courts. Now, Karlan said, the branch that used to see
In Circuit City v. Adams, Adams had signed an
the 14th Amendment as a limitation on the 11th has
agreement on his Circuit City application that he
reversed course: now the 11th is a constraint on the
would settle labor disputes through arbitration, a
14th.
clause many companies now require employees to
“I call this the Eleventeenth Amendment,” she consent to. He later claimed he was discriminated
said. against because of his sexual orientation and said he
had the right to file a lawsuit. The Court determined
Karlan highlighted several cases that have
that Adams was not a worker engaged in foreign or
abridged citizens’ rights under the “Eleventeenth
interstate commerce within the meaning of the FAA—
Amendment.” Patricia Garrett was a nurse at the
only “transportation workers” were exempt from
University of Alabama Medical Center who got cancer
compulsory arbitration, despite the fact that Congress
and asked the state to accommodate her chemotherapy
writes laws assuming a very broad definition of
schedule. A week after returning to work, Garrett was
interstate and foreign commerce.
demoted, although she said she could perform her
duties. In Board of Trustees v. Garrett, the Court ruled Because the Equal Employment Opportunity
that the state had to comply with ADA laws, but also Commission (EEOC) only files a few hundred cases
said Garrett herself had no right to sue the state, thus each year, the ability to enforce employment laws is
undercutting any enforcement of the laws, Karlan said. limited by court decisions forcing private plaintiffs to
arbitrate, she said.
Concerning the Court’s rollback of the 14th
Amendment, Karlan said the Court “hasn’t done it in a Karlan said alternate dispute resolutions lack
way that is obvious to people [like Garrett] until they binding agreements, set no precedents, and generally
try to being their own lawsuit.” favor defendants because they work frequently with
the same arbiters, who need strong customer
Karlan said the Court’s Garrett decision implied
relationships to survive. Arbitration often involves
that cases are only important if the government’s
paying up front, there is no way of getting appointed
attorneys prosecute the case. This violates the idea
counsel, and plaintiffs may be liable for other
behind the private attorney general, she added, and in
attorney’s fees, all of which keeps some plaintiffs from
the end results in a decrease in the total amount of
pursuing cases.
enforcement of congressional regulations.
The mediation movement “decreases substantially
In Alexander v. Sandoval, decided in 2001 in
the enforcement of employment laws,” Karlan said.
another 5-4 decision, the Court took away the private

23
“There’s never any law created, so every plaintiff has in stores to keep children from seeing them, and the
to start from square one.” Court struck down the state law, seemingly stripping
state sovereignty as well.
In Circuit City and other employment
discrimination cases, “you’re essentially defending to By weakening enforcement of federal laws, states
argue the law should be applied that’s already there.” and other federally funded bodies have little reason to
follow federal guidelines, Karlan said. That, combined
In 2001 the Court also eliminated attorney’s fees
with the Court’s chipping away of other civil rights,
from cases that fall under the “catalyst theory”
has already left its mark on the legal scene, Karlan
category—cases that prompt a defendant to change
said. She noted that the LAPD manual now encourages
their ways voluntarily— in Buckhannon Board and
police interrogators not to worry about the Miranda
Care Home v. West Virginia Department of Health
warnings because an illegally obtained confession can
and Human Resources. Although Chief Justice
still be used in other ways. The Court has ruled that if
Rehnquist downplayed the impact of the decision,
the defendant testifies in a case where an illegally
Karlan argued that such cases are the most important,
obtained confession was suppressed, the prosecutors
and eliminating attorney’s fees reduces the impetus for
can introduce the confession in the cross examination.
such suits being filed.
She said now some civil rights groups fight to
“They’ve taken away the ability to get damages in
keep cases away from the Supreme Court to avoid bad
a large number of cases,” she said. The decision itself
decisions. Civil rights groups do want the Michigan
shows the Court “has an incredibly negative vision of
affirmative action case to be heard, however, because
civil rights plaintiffs generally.” In the decision Justice
they foresee more conservative appointees in the
Scalia called attorney fees “an extraordinary boon,”
future and their chances of eking out at least a partial
and failed to recognize it as a mechanism of the law,
victory are probably better now.
she said. The decision seems to classify plaintiffs as
“vaguely quasi-criminals.” Karlan said state courts are often more progressive
than federal courts today, unlike when she attended
Karlan said the Court’s enforcement of its own
law school, and many state constitutions offer more
views is uneven, revealing that “federalism is a means
rights than the federal Constitution, such as a right to
and not a goal for the current Supreme Court.” She
an education. Some state courts are filling in laws to
argued that the Court doesn’t really want to devolve
counteract Supreme Court decisions like that of Circuit
the country back to federalism, but justices use
City, which was originally tried in California.
federalism when it’s advantageous to do so. She cited
California law now declares some contracts
Bush v. Gore’s overruling of the Florida State
unconscionable and enacted a statute to create a
Supreme Court as a prime example. In another case, a
private right of action. But state-level reforms can’t
state had a regulation on the books that required
undercut all the Court’s rulings, she warned.
cigarettes to be placed at a level of four feet or higher
I. Anarchy and Treason in the Federal Courts: Are Political Ideologies the New
Rule of Law Now?
(1) Summary Judgment is Unconstitutional: The Judge and Jury are Now
One in the Same!
Suja A. Thomas, WHY SUMMARY JUDGMENT IS STILL UNCONSTITUTIONAL, A REPLY TO PROFESSORS BRUNET AND
NELSON, IOWA LAW REVIEW, Vol. 93, No. 5, 2008

24
Suja A. Thomas, THE UNCONSTITUTIONALITY OF SUMMARY JUDGMENT: A STATUS REPORT, 93 Iowa Law Review
__ (forthcoming 2008) Iowa Law Review Symposium on Procedural Justice
Kendall W. Hannon, NOTE, MUCH ADO ABOUT T WOMBLY? A STUDY OF THE IMPACT OF BELL ATLANTIC CORP. V.
TWOMBLY ON 12(B)(6) MOTIONS, 83 Notre Dame L. Rev. (forthcoming April 2008).
Charles B. Campbell, A “PLAUSIBLE” SHOWING AFTER BELL ATLANTIC CORP. V. TWOMBLY, Nevada Law Journal,
Vol. 9, 2008 (forthcoming)
(2) Is the Eleventh Amendment Unconstitutional?

Pamela S. Karlan, THE IRONY OF IMMUNITY: THE ELEVENTH AMENDMENT, Irreparable Injury, And Section 1983,
53 Stanford Law Review 1311-1330 (May 2002).
Randy E. Barnett, THE PEOPLE OR THE STATE?: CHISHOLM V. GEORGIA AND POPULAR SOVEREIGNTY, 93 Virginia
Law Review 1729 (2007)
Caitlin E. Borgmann, LEGISLATIVE ARROGANCE AND CONSTITUTIONAL ACCOUNTABILITY, 79 Southern California
Law Review 753 (2006)
(3) Will the Lower Federal Courts Rebel Against Heller?
Mark Tushnet, TWO ESSAYS ON DISTRICT OF COLUMBIA V. HELLER: (1) Heller and the New Originalism;
and (2) Heller and the Perils of Compromise
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1189494
Glenn H. Reynolds & Brannon P. Denning, HELLER’S FUTURE IN THE LOWER COURTS, 102 Nw. U. L.
Rev. Colloquy 406 (July 2008).
http://www.law.northwestern.edu/lawreview/colloquy/2008/23/LRColl2008n23Reynolds&Denning.pdf
J. The Federal Courts and the U.S. Department of Justice have Obstructed Justice
by Unconstitutionally Denying my Seventh Amendment Right to a Civil Jury Trial.
The federal courts’ open display of bias and hostility to my Second Amendment cases from 2002 to 2008
stand in violation of the Canons and the Good Behaviour Clause of Section 1, Article III of the Constitution of the
United States. An honest criminal investigation for corruption and obstructions of justice would certainly be
sending some federal judges to prison for supplanting their political ideologies for the Rule of Law denying my
right to equal justice under the law.
Dismissal by Summary Judgment on Motion to Dimiss in this civil action in due regard to the U.S.
Supreme Court inviting a Second Amendment case from the American people in Heller to expound on the many
applications of the right to keep and bear arms under Rule 301 Presumptions in General (Federal Rules of
Evidence).
Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia exhibited extreme
judicial bias, if not bigotry, to the rights of a seaman, a ward of the Admiralty, in her Order dated June 3, 2008
dismissing my previous case (No. 07-1616), even though the dismissal was without [legal] prejudice. I claim the
dismissal is motivated by an anti-Second Amendment political ideology.

25
Like the plaintiff in Prunte, Mr. Hamrick as “failed to argue that he employed a
reasonable amount of diligence, and it seems clear that he did not.”[FN1] . . .
Moreover, “the Court does not believe that [P]laintiff’s pro se status should
excuse his lack of diligence, as [P]laintiff is an experienced federal court
litigator.” . . . Pl.’s Resp. at 3 (enumerating seventeen other cases initiated by
Mr. Hamrick in various federal courts).
[FN1] Mr Hamrick’s late request for service by the USMS does not constitute
“good cause.” See Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987)
(noting that even plaintiffs proceeding in forma pauperis “may not remain
silent and do nothing to effectuate service.”). Moreover, because Mr.
Hamrick has not been authorized to proceed in forma pauperis, but claims he
is not able to financially afford service, service by the USMS in this case would
not be appropriate. See Holmes v. United States, No. 06-796, 2008 U.S. Dist.
LEXIS 1638, at *6 (W.D. Okla. Jan. 8, 2008) (“Plaintiff is not proceeding in
forma pauperis, and accordingly, he must be prepared to proffer payment to
the Marshals Service for its attempts at serving [defendant].”).
The bolded & underscored passages of Judge Collyer’s Order above are evidence of judicial bias against a
seaman exercising his statutory right of fee exemption under the Seaman’s Suit Law, 18 U.S.C. § 1916.
Apparently, the Court Clerk failed to notify the judge that on the day I submitted my lawsuit I included a
handwritten request that the Court make a copy for the defendant United States and have the U.S. Marshals
Service deliver that complaint with the summons in accordance with Rule 4(c)(3).
Rule 4(c)(3) states that service:
“By a Marshal or Someone Specially Appointed. At the plaintiff’s request, the court
may order that service be made by a United States marshal or deputy marshal or by a
person specially appointed by the court. The court must so order if the plaintiff is
authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under
28 U.S.C. § 1916.”
Restated for my situation:
At the plaintiff’s request, the court must so order if the plaintiff is
authorized to proceed as a seaman under 28 U.S.C. § 1916.”
Note with particularity Judge Collyer’s remark, that the [P]laintiff is an experienced federal court
litigator, enumerating seventeen other cases initiated by Mr. Hamrick in various federal courts.”
What Judge Collyer failed or refused to point out is that all of those seventeen cases were dismissed,
some with prejudice, some without prejudice, on Motion to Dismiss converting to unconstitutional Summary
Judgment dismissals. Now what the Hell(!) happened with the idea that “Pro se pleadings are to be
considered without regard to technicality; pro se litigants pleadings are not to be held to the same high
standards of perfection as lawyers.” Picking v. Pennsylvania R. Co., 151 Fed. 2nd 240; Pucket v. Cox 456 2nd
233.
If I was truly an experienced federal court litigator I would have beaten the Motion to Dismiss, and I
would have had my civil jury trial. No matter how many law review articles I read for new legal strategy every
federal judge I have encounted have used inapplicable boilerplate case law and any excuse under the sun to

26
dismiss my cases. History predicates that the federal courts will treat Heller just as they treated Lopez. The federal
courts have made a mockery of justice for the unrepresented civil plaintiff.
(1). Case Law

“When we conclude that the integrity of the judicial process has been harmed, however,
and the fraud rises to the level of unconscionable plan or scheme which is designed to
improperly influence the court in its decisions, we not only can act, we should.” Toscano v.
Cir, 441 F.2d 930, 933 (9th Cir. 1971)
“That which keeps one party away from court by conduct preventing a real trial on the
issues is extrinsic fraud and forms a sufficient basis for equitable relief from judgment.”
Libro v. Walls, 103 Nev 540, 543, 746 P.2d 632, 634 (1987).
Because summary judgments are unconstitutional as found by Professor Suja A. Thomas,53 in WHY
SUMMARY JUDGMENT IS UNCONSTITUTIONAL54 and reaffirmed in WHY SUMMARY JUDGMENT IS STILL
UNCONSTITUTIONAL: A REPLY TO PROFESSORS BRUNET AND NELSON,55 my seventeen cases were
unconstitutionally dismissed. And because they were unconstitutionally dismissed their summary judgment
dismissals in their aggregate effect violated not only my Seventh Amendment right to a civil jury trial but my
human right to a civil jury trial under international human rights treaties.
By this evidence the judges issuing summary judgment dismissals with and without prejudice under the
Conley standard have operated outside the U.S. Constitution and the Bill of Rights and therefore have operated
outside their jurisdiction. When judges operate without jurisdiction they do not have absolute immunity from
liability for their unconstitutional actions.
Now we have the U.S. Supreme Court killing off Conley to relax the pleading standard so the federal
courts can consider the plausibility of not only the plaintiff’s claims but also of the defenses of the defendant
making it much easier for the federal courts to dismiss cases. This new plausible standard exacerbates the injuries
to the Seventh Amendment right to a common law civil jury trial.
Under these conditions the doctrine of res judicata does not apply, especially when I add knew claims that
have occurred after my earlier cases. “Res Judicata does not apply if new conduct caused a new injury
after the first action.” (See Yosemite Community College Dist., 785 F.2d 781).
In Twombly, the Court distinguished Swierkiewicz by stating that “we

do not require heightened fact pleading of specifics, but only
enough facts to state a claim for relief that is plausible on its face.
53
http://www.law.uiuc.edu/faculty/directory/SujaThomas
54
55
Available Online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1117636

27
The Bell Atlantic v. Twombly standard for pleading under Rule 8(a)(2) of the Federal Rules of Civil
Procedure prejudicially disfavors the unrepresented civil plaintiff, i.e., Me!
Citing Weisman v. National Association of Securities Dealers, Inc., et al. 11th Circuit, No. 04-13575
(September 18, 2007):
“[T]he Supreme Court recently abrogated its oft-quoted observation that ‘a complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.’ Bell Atlantic Corp. v. Twombly, 550 U.S. __, __, 127 S. Ct. 1955, 1968
(May 21, 2007) (quoting Conley v. Gibson, 350 U.S. 41, 45-46, 78 S. Ct. 99, 102 (1957))”
(2). Kendall W. Hannon, Note, MUCH ADO ABOUT TWOMBLY? A STUDY OF THE
IMPACT OF BELL ATLANTIC CORP. V. TWOMBLY on 12(b)(6) Motions, 83 Notre
Dame L. Rev. (forthcoming April 2008)56
In a more immediate sense, the results of this study demonstrate that there is reason to be wary of the
Twombly decision right now. Congress since the Civil War has not only articulated broad swaths of civil rights
that are protected from intrusion, it has also sought, through instrumentalities like 42 U.S.C. § 1988, to
encourage the enforcement of these rights. Without access to courts, these broad civil
protections are not worth the paper they are printed on. If the lower courts are, as this
study suggests, applying the Twombly language in such a way as to impose a higher
burden on civil rights plaintiffs, the practical effect of this reality is to close the courts to
a large number of plaintiffs. Ultimately, therefore, this study suggests that this
procedural, linguistic alteration is having the same effect, though comparatively under the
radar, as a legislative rolling back of civil rights.
(3). Charles B. Campbell, A “Plausible” Showing After Bell Atlantic Corp. v.

Twombly 57
The United States Supreme Court’s decision in Bell Atlantic Corp. v. Twombly58 is creating quite
a stir. Suddenly gone is the famous loosey-goosey rule of Conley v. Gibson “that a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”59
Now a complaint must provide “enough facts to state a claim to relief that is plausible on its
face.”60 Only decided last May, Bell Atlantic has been cited in over 3,700 cases.61
56
57
58
127 S. Ct. 1955 (2007).
59
355 U.S. 41, 45–46 (1957), abrogated by Bell Atl. Corp., 127 S. Ct. at 1968–69.
60
127 S. Ct. at 1974.

28
Already being described as a landmark decision,62 Bell Atlantic nonetheless has lawyers and
judges scratching their heads over the precise pleading standard to apply in its wake. As the
Second Circuit (mildly) put it, “Considerable uncertainty concerning the standard for assessing
the adequacy of pleadings has recently been created by the Supreme Court’s decision in Bell
Just what is a plausible “showing that the pleader is
Atlantic Corp. v. Twombly.63
entitled to relief” under Rule 8(a)(2)?
I believe an answer lies in the 26-year-old decision of the Former Fifth Circuit in In re Plywood
Antitrust Litigation.64 Plywood Antitrust requires, at a minimum, that “a complaint . . . contain
either direct or inferential allegations respecting all the material elements necessary to sustain a
recovery under some viable legal theory.”65 Already used in more than half the circuits,66 this
61
Search of Westlaw’s Keycite service conducted February 25, 2008. This figure includes citations in both opinions for the
court and in separate opinions by individual judges. For an empirical analysis of district court cases citing Bell Atlantic in the
context of Fed. R. Civ. P. 12(b)(6) motions to dismiss, see Kendall W. Hannon, Note, Much Ado About Twombly? A Study of
the Impact of Bell Atlantic Corp. v. Twombly on 12(b)(6) Motions, 83 Notre Dame L. Rev. (forthcoming April 2008).
62
Janet L. McDavid & Eric Stock, BELL ATLANTIC V. TWOMBLY, NAT’L L.J., July 30, 2007, at 12; see also John Sarratt, MR.
MICAWBER’S BAD DAY: IS NOTICE PLEADING DEAD?, N.C. Lawyers Weekly, July 2, 2007; Michael C. Dorf, THE SUPREME
COURT WREAKS HAVOC IN THE LOWER FEDERAL COURTS—AGAIN, Findlaw’s Writ, Aug. 13, 2007,
http://writ.news.findlaw.com/dorf/20070813.html; see also Andrée Sophia Blumstein, A HIGHER STANDARD: ‘TWOMBLY’
REQUIRES MORE FOR NOTICE PLEADING, Tenn. B.J., Aug. 2007, at 12 (“Of all the cases decided this term by the United States
Supreme Court, Bell Atlantic Corp. v. Twombly may be the case of the most practical, everyday significance.”) (endnote
omitted).
63
Iqbal v. Hasty, 490 F.3d 143, 155 (2d Cir. 2007); see also Allan Ides, BELL ATLANTIC AND THE PRINCIPLE OF SUBSTANTIVE
SUFFICIENCY UNDER FEDERAL RULE OF CIVIL PROCEDURE 8(A)(2): TOWARD A STRUCTURED A PPROACH TO FEDERAL PLEADING
PRACTICE, 243 F.R.D. 604, 604–05 & nn. 3 & 4 (2007) (noting confusion); Scott Dodson, PLEADING STANDARDS AFTER BELL
ATLANTIC V. TWOMBLY, 93 Va. L. Rev. in Brief 121, 126 (2007),
http://www.virginialawreview.org/inbrief/2007/07/09/dodson.pdf; Thomas P. Brown & Christine C. Wilson, BELL ATLANTIC
CORP. V. TWOMBLY: A TECTONIC SHIFT IN PLEADING STANDARDS (OR JUST A TREMOR)?, Wash. Legal Found. Legal
Backgrounder (Aug. 24, 2007), http://www.wlf.org/upload/08-24-07wilson.pdf; A. Benjamin Spencer, PLAUSIBILITY
PLEADING, 49 B.C. L. REV. (forthcoming 2008). As the Reporter to the Advisory Committee on Civil Rules put it, “One
phrase or another [in Bell Atlantic] can be made to point in almost any direction.” Edward H. Cooper, Memorandum, NOTICE
PLEADING: THE AGENDA AFTER TWOMBLY 3 in AGENDA MATERIALS 268, 270, Advisory Committee on Civil Rules Meeting,
Washington, D.C., November 8–9, 2007, http://www.uscourts.gov/rules/Agenda%20Books/CV2007-11.pdf.
64
655 F.2d 627, 641 (5th Cir. Unit A Sept. 1981), cert. dismissed sub. nom Weyerhaeuser Co. v. Lyman Lamb Co., 462 U.S.
1125 (1983).
65
Id. at 641.
66
See infra notes 202–207 and accompanying text.
The text:
The Plywood Antitrust/Car Carriers standard has been used not only in the Fifth and Seventh Circuits, but in the
First,202 Sixth,203 Eleventh,204 and District of Columbia205 Circuits as well. After Bell Atlantic, the Third206 and
Eighth207 Circuits have used the standard, too, albeit in unpublished decisions.
The footnotes:
202. Fitzgerald v. Codex Corp., 882 F.2d 586, 589 (1st Cir. 1989).

29
standard paraphrases advice found in the venerable WRIGHT & MILLER for nearly 40 years.67
Properly applied, this “all . . . material elements” standard satisfies Bell Atlantic’s “plausibility”
requirement in all respects.
The Plywood Antitrust pleading standard works well after Bell Atlantic, first, because the
Supreme Court referred to the standard, albeit parenthetically, with approval in Bell Atlantic.68
Second, it does much to harmonize the Federal Rules’ goal of dispensing with pleading
technicalities while still requiring enough general factual information about a pleader’s claim to
make the notice in “notice pleading” meaningful. Finally, and perhaps most importantly, it gives
lawyers, litigants, and courts a standard they can actually use when drafting, or assessing the
sufficiency of, pleadings.
203. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (quoting Car Carriers
and citing Plywood Antitrust). The Sixth Circuit has begun citing Bell Atlantic for its use of the Car
Carriers standard. League of United Latin Am. Citizens (LULAC) v. Bredesen, 500 F.3d 523, 527 (6th
Cir. 2007).
204. Roe v. Aware Woman Ctr. For Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001) (quoting Plywood
Antitrust). In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions handed down by the Former Fifth Circuit before the
close of business on September 30, 1981. Id. at 1209–10. Thus, Plywood Antitrust is binding precedent
in the Eleventh Circuit.
205. Dist. of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1081 n.14 (D.C. Cir. 1984).
206. See Montville Township v. Woodmont Builders, LLC, 244 F. App’x 514, 517 (3d Cir. 2007); Haspel
v. State Farm Mut. Auto. Ins. Co., 241 F. App’x 837, 839 (3d Cir. 2007).
207. See Abdullah v. Minnesota, No. 06-4142, 2008 WL 283693, at *1 (8th Cir. Feb. 4, 2008).
67
See infra notes 182–184 and accompanying text.
The text:
The precise formulation of the Rule 8 standard utilized in Car Carriers originated in the Former Fifth Circuit’s 1981
decision in In re Plywood Antitrust Litigation.182 There the Fifth Circuit observed:
Despite the liberality of modern rules of pleading, a complaint still must contain either direct or inferential
allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. . . .
“[I]f a pleader cannot allege definitely and in good faith the existence of an essential element of his claim, it is
difficult to see why this basic deficiency should not be exposed at the point of minimum expenditure of time and
money by the parties and the court.”183
On the former point, the Fifth Circuit cited a district court decision, which in turn quoted a similar statement in the
first edition of WRIGHT & MILLER;184
The footnotes:
182. 655 F.2d 627.
183. Id. at 641 (citations omitted) (quoting Daves, 114 F. Supp. at 645).
184. Id. (citing City of Gainsville v. Florida Power & Light Co., 488 F. Supp. 1258, 1263 (S.D. Fla. 1980), in turn
quoting 5 WRIGHT & MILLER, supra note 173, § 1216, at 121–23).
68
See 127 S. Ct. at 1969 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984), in turn quoting
Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 654 (7th Cir. 1984), in turn quoting Plywood Antitrust, 655 F. 2d at 641.).

30
...
III.
The Road Now Taken?69
By sweeping away Conley’s “no set of facts” standard, Bell Atlantic opens the way for the more
moderate interpretation of Rule 8(a)(2) suggested by Professors Wright, Miller, Moore, and
Hazard and utilized in cases such as Daves. The road not taken in Conley may be the road now
taken a half century later. Moreover, Bell Atlantic itself suggests how the new standard can be
formulated for future cases.
Professor Hazard’s suggestion that Rule 8(a)(2), properly interpreted, requires a factual “narrative
in ordinary language . . . setting forth all elements of a claim under applicable substantive law” 70
is similar to the Car Carriers requirement—quoted in Bell Atlantic—of “direct or inferential
allegations respecting all the material elements necessary to sustain recovery under some viable
legal theory.”71 It also echoes Judge Clark’s formulation of a moderate form of notice pleading
for code jurisdictions.72
The precise formulation of the Rule 8 standard utilized in Car Carriers originated in the Former
Fifth Circuit’s 1981 decision in In re Plywood Antitrust Litigation.73 There the Fifth Circuit
observed:
Despite the liberality of modern rules of pleading, a complaint still must contain either direct or
inferential allegations respecting all the material elements necessary to sustain a recovery under
some viable legal theory. . . . “[I]f a pleader cannot allege definitely and in good faith the
existence of an essential element of his claim, it is difficult to see why this basic deficiency
should not be exposed at the point of minimum expenditure of time and money by the parties and
the court.”74
On the former point, the Fifth Circuit cited a district court decision, which in turn quoted a similar
statement in the first edition of WRIGHT & MILLER;75 thus, the Plywood Antitrust formulation
is really just a paraphrase of WRIGHT & MILLER. On the latter point, the Fifth Circuit was
69
NOTE ON COINCIDENTAL USE OF “The Road Now Taken.” See Randy E. Barnett, THE PEOPLE OR THE STATE?:
CHISHOLM V. GEORGIA AND POPULAR SOVEREIGNTY, 93 Virginia L. Rev. 1729 at 1737 (2007) (Another reason for teaching
Chisholm is that it represents the “road not taken” with respect to constitutional amendments.) My emphasis on the “road
not taken” applies to “what if” Chisholm v. Georgia was the correct interpretation of the U.S. Constitution that a State could
be sued by citizen’s of another State and the Second Amendment was incorporated through the Fourteenth Amendment to
apply to the States. The Second Amendment right to open carry in intrastate, interstate, and maritime travel would probably
be preserved even today! The “road not taken” indeed!
70
Geoffrey C. Hazard, Jr., From Whom No Secrets Are Hid, 76 TEX. L. REV. at 1685 (1998). I omit Professor Hazard’s use
of the adjective “detailed” in reference to the factual narrative because it could be understood to suggest a greater level of
detail than the Car Carriers line of cases requires.
71
Car Carriers, 745 F.2d at 1106 (quoting Sutliff, 727 F.2d at 654, in turn quoting Plywood Antitrust, 655 F.2d at 641).
72
See Charles E. Clark, Handbook on the Law of Code Pleading § 38, at 240 (2d ed. 1947).
73
655 F.2d 627.
74
Id. at 641 (citations omitted) (quoting Daves, 114 F. Supp. at 645).
75
Id. (citing City of Gainsville v. Florida Power & Light Co., 488 F. Supp. 1258, 1263 (S.D. Fla. 1980), in turn quoting 5
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 121–23 (1969)

31
quoting Daves v. Hawaiian Dredging Co.,18576 the case quoted at length in the same section of
WRIGHT & MILLER; the same excerpt, along with a citation to Daves, also appears in Bell
Atlantic.77
These authorities suggest an appropriate interpretation of the Rule 8(a)(2) pleading standard after
Bell Atlantic: factual allegations in plain language touching (either directly or by inference) all
material elements necessary to recover under substantive law—but freed from the technicalities
of common law and code pleading. One of the benefits of the Plywood Antitrust/Car Carriers
formulation of the standard is that it directs attention to “allegations” on “the material elements
necessary to sustain recovery” without reference to either the “facts” or the “cause of action” that
so plagued code pleading.
A major reason for rejecting the Ninth Circuit’s plea to add code pleading language to Rule
8(a)(2) was the fear that such language would revive battles over what constituted “facts” and the
proper definition of a “cause of action.”78 By avoiding the language of the codes, the Plywood
Antitrust/Car Carriers formulation encourages courts to focus on the Rules’ textual standard of
“entitle[ment] to relief,” as measured by the elements necessary to recover, without returning to
the technicalities of code pleading.
Moreover, measuring “entitle[ment] to relief” by “the material elements necessary to sustain
recovery” finds support in the history of Rule 8. In upholding a government antitrust complaint in
United States v. Employing Plasterers Association,79 the Supreme Court noted that, “where a
bona fide complaint is filed that charges every element necessary to recover, summary dismissal
of a civil case for failure to set out evidential facts can seldom be justified.”80 Judge Clark later
quoted this language from Employing Plasterers in his paper Special Pleading in the “Big
Case”?81
76
114 F. Supp. at 645. Although the Former Fifth Circuit attributed its quotation from Daves to the late Chief Justice Burger,
the excerpt is from the district court’s opinion. Id. The district court’s opinion does not indicate that it is quoting (or
paraphrasing) the defendants’ argument; there is no citation of any kind for this statement. See id. A review of the Daves case
file shows that the defendants argued at some length that the plaintiffs had not satisfied Rule 8, but their argument contains
no statements from which the excerpt appears to have been taken. See Mem. Supp. Defs.’ Mot. to Dismiss or for Summ. J.,
supra note 172, at 16–19.
77
Bell Atl., 127 S. Ct. at 1966 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216,
at 233–34 (3d ed. 2004), in turn quoting Daves, 114 F. Supp. at 645).
78
See Advisory Comm. on Rules for Civ. Proc., Report of Proposed Amendments to the Rules of Civil Procedure for the
United States District Courts at 19 (1955), http://www.uscourts.gov/rules/Reports/CV10-1955.pdf [hereinafter “1955
REPORT”]. The entire 1955 Report is reprinted in 12A Charles Alan Wright et al., Federal Practice and Procedure App. F
(3d ed. 2007). The 1955 Report’s proposed note to Rule 8 is reprinted in 2 James Wm. Moore et al., Moore’s Federal
Practice § 8App.01[3] (3d ed. 1997).
79
347 U.S. 186 (1954).
80
Id. at 189 (emphasis added).
81
21 F.R.D. at 49.

32
The Supreme Court’s decision in Swierkiewicz v. Sorema S.A. does not reject, as some have
suggested,82 requiring a complaint to allege the elements of a claim under substantive law.
Swierkiewicz rejected using an evidentiary standard as a pleading standard; it did not reject
measuring the sufficiency of a complaint by whether it alleged all of the elements necessary to
recover.83
For example, one of the plaintiff’s claims in Swierkiewicz was a Title VII claim for national-
origin discrimination. 84 There are two elements of a statutory claim for national-origin
discrimination: (1) an adverse employment action (e.g., firing, demoting, refusing to hire); and (2)
the plaintiff’s national origin was a “motivating factor” in the employer’s decision. 85
Swierkiewicz had plainly alleged both of those elements in his complaint. 86 The Second Circuit’s
“heightened pleading” standard required more than the two statutory elements of national-origin
discrimination, however. It required allegations of all four elements of a McDonnell Douglas87
prima facie case: “(1) membership in a protected group; (2) qualification for the job in question;
(3) an adverse employment action; and (4) circumstances that support an inference of
82
See 2 James Wm. Moore et al., Moore’s Federal Practice § 8.04[1a] (3d ed. 2007) (“The Supreme Court . . . has rejected
the idea that courts should measure a pleading’s adequacy by the elements of a claim.”). The third edition of MOORE’S
FEDERAL PRACTICE was published in 1997, after Professor Moore’s death in 1994.
83
See John P. Lenich, Notice Pleading Comes to Nebraska: Part I – Pleading Claims for Relief, Neb. Lawyer, Sept. 2002, at
7 n.12 (“The authors [of Moore’s Federal Practice] are wrong.”).
84
Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 provides:
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin . . . .
42 U.S.C. § 2000e–2(a)(1) (2000).
85
See id. Model jury instructions confirm this:
To prove his [her] claim, plaintiff must prove by a preponderance of the evidence: First, that defendant
[e.g., failed to hire, promote, or demoted] the plaintiff, and Second, that plaintiff’s [e.g., race, gender,
religion] was a motivating factor in defendant’s decision.
5 Leonard B. Sand et al, Modern Federal Jury Instructions ¶ 88.03[1], Instruction 88-42, at 88-133 (2007).
86
Among other things, Swierkiewicz alleged:
20. Mr. Chavel demoted Mr. Swierkiewicz on account of his national origin (Hungarian) and his age (he
was 49 at the time).
....
37. Plaintiff’s age and national origin were motivating factors in SOREMA’s decision to terminate his
employment.
Am. Compl. ¶¶ 20, 37, reprinted in Jt. App. at 25a, 27a, Swierkiewicz, 534 U.S. 506 (No. 00-1853), 2001 WL 34093952.
87
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

33
discrimination.”88 The Supreme Court rejected making McDonnell Douglas’s “evidentiary

standard” into a “pleading requirement.”89 In particular, the Court observed that
it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the
McDonnell Douglas framework does not apply in every employment discrimination case. For
instance, if a plaintiff is able to produce direct evidence of discrimination, he may prevail without
proving all the elements of a prima facie case. . . . It . . . seems incongruous to require a plaintiff,
in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove
to succeed on the merits if direct evidence of discrimination is discovered.90
What the Court rejected in Swierkiewicz was requiring a complaint to allege all the elements of
the McDonnell Douglas evidentiary standard. The Court did not reject requiring a plaintiff to
allege all the elements of a statutory claim. Swierkiewicz does not suggest that the plaintiff’s
complaint would have been sufficient if it had failed to allege an adverse employment action or
plaintiff’s national origin as a motivating factor for that action (the required statutory elements).
Thus, Swierkiewicz does not reject requiring a complaint to allege all the elements of a claim
under substantive law.
In fact, Bell Atlantic itself is an exercise in measuring “entitle[ment] to relief” by “the material
elements necessary to sustain recovery.” The first element of an offense under section 1 of the
Sherman Act is “that the defendants entered into an agreement or conspiracy.”91 The Court held
in Bell Atlantic that plaintiffs had failed to allege sufficient facts to suggest that such an
agreement or conspiracy was “plausible.” Accordingly, the plaintiffs had failed to establish that
they were “entitled to relief” under Rule 8(a)(2) because they failed to allege sufficiently one of
“the material elements necessary to sustain recovery” under section 1 of the Sherman Act.
The Plywood Antitrust/Car Carriers interpretation of Rule 8(a)(2) remains a break from the
technical horrors that often accompanied code pleading, and continues to permit the Rule to be
construed liberally to avoid dismissals for “foot faults” in pleading. True, it represents a
somewhat higher standard than the literal terms of Conley’s “no set of facts” language permitted.
As Professor Hazard’s article suggests, however, this interpretation is “quite possible” again now
that Rule 8 is no longer “turned . . . on its head” by Conley v. Gibson.
...
Conclusion
In the wake of Bell Atlantic, some have expressed the “hope[] that trial judges, long overworked
but fearful of reversal by the circuit court, will now be unshackled, free to dismiss the large
number of meritless cases that clog dockets and cost defendants untold losses in time and
money.”92241 Bell Atlantic does suggest a greater willingness to dismiss cases at the pleading
stage—especially the “big cases” where “big” lawyers have plenty of time and talent to lay out
88
534 U.S. at 510.
89
534 U.S. at 510–11.
90
Id. at 511.
91
See 4 Leonard B. Sand et al, Modern Federal Jury Instructions ¶ 79.04[1], Instruction 79-41, at 79-82, ¶ 79.05[1],
Instruction 79-46, at 79-98.
92
William F. Patry, Patry on Copyright § 19:2 (2007)

34
their case adequately. If the Plywood Antitrust/Car Carriers formulation of the Rule 8(a)(2)
pleading standard prevails, however, district courts will not be “unshackled,” but will instead be
more closely focused on the text of Rule 8(a)(2), particularly the requirement of showing
“entitle[ment] to relief,” instead of Conley v. Gibson’s now abrogated “hyperbole.”
(4). Barry G. Sher, Kevin C. Logue and Asa R. Danes BELL ATLANTIC CORP. V.
TWOMBLY: THE SUPREME COURT TIGHTENS PLEADING STANDARDS FOR
ANTITRUST CONSPIRACY AND BEYOND; StayCurrent: A Client Alert from Paul
Hastings, May 2007, Paul, Hastings, Janofsky & Walker LLP, 875 15th
Street, N.W., Washington, DC 20005, (18 Offices Worldwide)
INTRODUCTION
On May 21, 2007, the United States Supreme Court issued an important decision pertaining to the
pleading standards in an antitrust action under Section 1 of the Sherman Act, 15 U.S.C. § 1. In
Bell Atlantic Corp. v. Twombly, No. 05-1126, the Supreme Court reversed the judgment of the
Court of Appeals for the Second Circuit, 425 F.3d 99 (2d Cir. 2005), and held in a 7-2 decision
that to satisfy the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, and
survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which
relief may be granted in a § 1 case, an allegation of parallel conduct and a bare assertion of an
agreement will not suffice. 93 The Court required “plausible grounds to infer an agreement” in
violation of Section 1, [15 U.S.C. § 1] and determined that stating such “plausible grounds”94
requires “enough fact to raise a reasonable expectation that discovery will reveal evidence of
illegal agreement.”
The decision is likely to have an impact well beyond the antitrust context.95 The Court took
head on what has for decades been the primary formulation of the pleading standard on a motion
to dismiss in federal and many state courts. That formulation – as every defense lawyer has seen
quoted in innumerable oppositions filed by plaintiffs – is that a complaint should not be dismissed
for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41,
45-46 (1957).96 The Supreme Court in Twombly stated that this language has been “questioned,
criticized, and explained away long enough,” and that it “is best forgotten as an incomplete,
negative gloss on an accepted pleading standard.” Referring to the Dickens character, the Court
expressed concern that any other approach allows plaintiffs to pursue cases based on nothing
more than “Mr. Micawber’s optimism.” The Court was concerned that parties are subjected to
costly discovery, which plaintiffs use both as a lever to increase the settlement value of cases and
to seek support for claims even where one has not been pleaded. Twombly should become a
significant tool for defendants in combating such tactics.
Section 1 of the Sherman Act prohibits contracts, combinations or conspiracies in restraint of
trade or commerce. Because unilateral action cannot violate § 1, a hotly contested issue in § 1
93
Plaintiff Don Hamrick’s emphasis.
94
95
96
Plaintiff Don Hamrick’s emphasis

35
claims is whether the challenged conduct resulted from concerted action – an agreement or
conspiracy. If direct evidence of a conspiracy – such as a recorded conversation in the proverbial
smoke-filled room – is not available, plaintiffs are required to plead facts from which a
conspiracy properly can be inferred.
One way that plaintiffs have attempted in the past to plead concerted action without direct
evidence is by alleging parallel conduct, where competitors in an industry have acted in the
same or similar fashion. The problem with that approach is that parallel business conduct, where
one or more companies adopt the practices of their competitors, does not, standing alone,
violate the antitrust laws. Lower courts, such as the district court in Twombly, have therefore
held that dismissal is appropriate when a plaintiff fails to plead so-called “plus factors”97 – facts
tending to exclude the possibility that the conduct was the result of lawful activities – when a § 1
claim is based on parallel conduct. In Twombly, however, the Second Circuit held that pleading
plus factors is not required under the circumstances of the case.
The proper pleading standard in antitrust actions has taken on critical importance in recent years,
as the cost and burden of discovery in such cases can be enormous and can cause significant
disruption to the ongoing operations of a business or an industry. Without fully developed factual
allegations, this burden may be imposed on defendants who are swept into litigation alleging a
widespread – even industry-wide – conspiracy without facts which, if true, would show each
defendant’s alleged role in the conspiracy and provide notice of the charges that must be
defended.
BACKGROUND
The Twombly case arose in the context of the TELECOMMUNICATIONS ACT OF 1996, which was
intended to promote competition in local telephone service markets. The TELECOMMUNICATIONS
ACT required INCUMBENT LOCAL EXCHANGE CARRIERS (ILECs) to open local telephone and
Internet service, which had been previously provided by government-sanctioned regional
monopolies, to competition from COMPETITIVE LOCAL EXCHANGE CARRIERS (CLECs). ILECs, in
exchange, were allowed to compete for long-distance service and local telephone service
customers in territories traditionally serviced by other ILECs.
Plaintiffs, representatives of a putative class of subscribers of local telephone or high-speed
Internet service, alleged that the ILECs violated § 1 by conspiring to thwart efforts of CLECs to
enter their respective local telephone markets and by agreeing not to compete with other ILECs to
provide local telephone service in each other’s territories. Plaintiffs alleged no facts showing that
defendants reached any agreement, but instead alleged parallel conduct by the ILECs.
Specifically, plaintiffs relied primarily on allegations that ILECs were not attempting to expand
into each other’s markets, even though the areas they serviced often were not contiguous and
were in some instances entirely surrounded by their competitors’ territories. While this conduct
could be entirely consistent with unilateral behavior, plaintiffs alleged that defendants’ decisions
not to move into adjacent local phone service markets constituted anomalous parallel conduct that
would be unlikely in the absence of a conspiracy not to compete, and that the conspiracy was
motivated by each ILEC’s desire to maintain a monopoly in its territory. Plaintiffs also pointed to
97
Scott Dodson, PLEADING STANDARDS AFTER BELL ATLANTIC CORP. V. TWOMBLY, 93 Virginia Law Review in Brief 121-128,
124 (July 9, 2007) uses the term “notice-plus.” Posting of Scott Dodson to Civil Procedure Prof Blog,
http://lawprofessors.typepad.com/civpro/2007/05/prof_scott_dods.html (May 21, 2007).
Also available Online at: http://www.virginialawreview.org/inbrief/2007/07/09/dodson.pdf

36
a statement made by the CEO of one of the ILECs that competing in the territory of another ILEC
“might be a good way to turn a quick dollar but that doesn’t make it right.”
THE DISTRICT COURT DECISION
The district court dismissed the complaint, concluding that pleading parallel conduct, without
pleading plus factors, is insufficient for purposes of Rule 12(b)(6). The district court noted that
parallel conduct is often legitimate and therefore does not violate the antitrust laws.
The court also recognized that, under existing precedent, to defeat summary judgment a plaintiff
would be required to demonstrate that the parallel conduct resulted from an agreement, and that a
plaintiff can satisfy that standard by establishing at least one plus factor tending to exclude
independent self-interest as an explanation for defendants’ parallel behavior. The court reasoned
that because parallel conduct alone does not violate § 1, plus factors must be pleaded in order to
state a substantive element of the claim upon which relief could be granted.
Further, the court reasoned that pleading plus factors is necessary to give defendants notice of
plaintiffs’ theory of the conspiracy and enable defendants to defend the claim. The court
concluded that plaintiffs failed to state a viable § 1 claim because all businesses are expected,
acting on their own, to resist rivals’ efforts to take their customers, and there is nothing suspicious
about a company’s decision not to enter a new line of business. The court held that no conspiracy
could be inferred from that conduct, and that plaintiffs failed to allege any other facts to support
an inference of conspiracy.
THE SECOND CIRCUIT DECISION
The Second Circuit vacated the judgment of the district court, concluding that the district court
applied the wrong pleading standard when it required the plaintiffs to plead plus factors and
concluded that the plaintiffs’ allegations were sufficient to give the defendants fair notice of the
claim and its grounds. The circuit court stated that antitrust claims are not subject to the
heightened pleading requirements of Rule 9(b), and that Rule 8 requires only that the complaint
contain “a short and plain statement” of the claim showing that the pleader is entitled to relief to
provide defendants with fair notice of the basis for the complaint and enable them to answer and
prepare for trial.
Although the Second Circuit acknowledged that parallel conduct could just as easily be legitimate
unilateral business conduct, it nevertheless held that the inquiry regarding plus factors is limited
to the summary judgment stage because plus factors are evidence of conspiracy, and evidence
need not be pleaded under Rule 8. The circuit court held that, at the pleading stage, the factual
predicate pleaded for a § 1 claim need only include conspiracy among the realm of “plausible
possibilities,” and that pleading facts that indicate parallel conduct can state a plausible
conspiracy.
The Second Circuit concluded that dismissal under Rule 12(b)(6) required a court to find that
there is no set of facts that would permit a plaintiff to demonstrate that the particular parallel
conduct asserted was the product of collusion rather than coincidence.
THE SUPREME COURT DECISION
In reversing the Second Circuit, the Supreme Court began its analysis by acknowledging that a
showing of parallel business behavior is admissible circumstantial evidence from which an
agreement may be inferred. However, it reiterated that such parallel conduct alone is
insufficient to establish an agreement or itself constitute a Sherman Act offense, concluding

37
that it is consistent with conspiracy but just as much in line with rational and competitive business
strategy unilaterally prompted by common perceptions of the market.
The Court acknowledged that, under Rule 8, a complaint does not need detailed factual
allegations, but concluded that a plaintiff’s obligation to provide the “grounds” of his or her
“entitle[ment] to relief” requires factual allegations that must be enough to raise a right to
relief above the speculative level on the assumption that all of the complaint’s allegations
are true.
In the antitrust context, the Court noted that a parallel conduct allegation gets a § 1 complaint
close to stating a claim, but without some further factual enhancement it stops short of the line
between possibility and plausibility. “Hence, when allegations of parallel conduct are set out in
order to make a § 1 claim, they must be placed in a context that raises a suggestion of a preceding
agreement, not merely parallel conduct that could just as well be independent action. The need at
the pleading stage for allegations plausibly suggesting (not merely consistent with)
agreement reflects the threshold requirement of Rule 8(a)(2) . . . .”
This “plausibility requirement” serves the practical purpose of preventing a plaintiff with a
largely groundless claim from using costly discovery to increase the settlement value of the case.
The Court specifically addressed the expense of discovery in antitrust actions, noting that the
potential expense was obvious in the Twombly case where the plaintiffs represented a putative
class of at least 90 percent of subscribers of local telephone or high-speed Internet service against
the largest telecommunications companies in the country for unspecified instances of antitrust
violations that occurred over a seven-year period. The Court was not persuaded by the argument
that judicial supervision could limit abuse of the discovery process.
The Court agreed with the district court that plaintiffs’ claim of conspiracy in Twombly was based
on parallel conduct, and not an independent allegation of an agreement among ILECs. The Court
also agreed that nothing in the complaint suggests that the ILECs’ resistance to CLECs was
anything more than “the natural, unilateral reaction of each ILEC intent on keeping its regional
dominance.” Also, the Court ruled that the ILECs’ reluctance to enter each other’s markets was
not suggestive of conspiracy because there was an alternative explanation, specifically that the
ILECs would concentrate on the market segment that they formerly dominated as monopolies,
expecting their competitors to do the same thing.
The Court in Twombly was not persuaded by plaintiffs’ argument that its decision would be
contrary to Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), which held that a “complaint in an
employment discrimination lawsuit [need] not contain specific facts establishing a prima facie
case of discrimination under the framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973).” In Swierkiewicz, the Supreme Court reversed on the grounds that the circuit
court had impermissibly applied what amounted to a heightened pleading standard by requiring
that the plaintiff allege “specific facts” beyond those necessary to state his claim and the grounds
showing entitlement to relief. In Twombly, the Court distinguished Swierkiewicz by stating that
“we do not require heightened fact pleading of specifics, but only enough facts to state a
claim for relief that is plausible on its face. Because the plaintiffs here have not nudged their
claims across the line from conceivable to plausible, their complaint must be dismissed.”
The Twombly decision criticized the Second Circuit’s reliance on a frequently quoted passage set
forth in the seminal case of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which states that “a
complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle

38
him to relief.” The Court concluded that the Second Circuit may have read this passage in
isolation in formulating its understanding of the proper pleading standard for a § 1 claim. As
Justice Stevens, who was joined in part by Justice Ginsburg, pointed out in dissent, the Conley
passage has been relied on for 50 years by federal courts and has served as the model for the law
in many states. The Court, however, rejected an interpretation of Conley’s “no set of facts”
language that would permit a complaint to survive a motion to dismiss whenever the pleadings
left open the possibility that a plaintiff might later establish some set of undisclosed facts to
support recovery. The Court listed criticisms of the “no set of facts” language as a literal
pleading standard, and characterized the passage as an “incomplete, negative gloss” of an
accepted standard: “once a claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint.” The Court stated that the
Conley “no set of facts” language “has earned its retirement.”
IMPACT OF THE DECISION
By requiring that an antitrust conspiracy complaint must allege facts sufficient to provide
“plausible grounds to infer an agreement,” as opposed to mere parallel competitor or industry
action, the Twombly decision may provide companies swept up in widespread antitrust
litigation with a strong basis for seeking dismissal of conclusory pleadings. In addition,
because there is no statutory stay of discovery in antitrust litigation while a motion to dismiss is
being considered, this decision may provide grounds for more courts to stay discovery pending a
decision on a motion to dismiss, so that the burden and substantial expense of antitrust discovery
may be avoided, or at least postponed, until it is determined that a complaint is viable. Moreover,
because the Supreme Court “retired” the longstanding Conley “no set of facts” standard used
by federal courts and many state courts in assessing motions to dismiss generally, the Twombly
decision may give rise to closer scrutiny of complaints and support efforts to stay or avoid
costly discovery in a variety of cases outside of the antitrust context.
Now a complaint must provide “enough facts to state a claim to relief that is plausible on its
face.”98
K. Judicial Bias and Hostility in the Lower Federal Courts toward Second
Amendment Cases is Common Knowledge
COURTS, 102 Northwestern Law Review Colloquy 406 (2008):99
The Supreme Court has released its long-awaited opinion in District of Columbia v. Heller,100 and
the buzz has been considerable. Though much has been made of the majority’s historic ruling and
of the narrowness of that majority, many commentators have missed an important point. What
Heller is most notable for is its complete and unanimous rejection of the “collective rights”
interpretation that for nearly seventy years held sway with pundits, academics, and—most
significantly—lower courts.
98
127 S. Ct. at 1974.
99
100
No. 07-290, slip op. (U.S. June 26, 2008) (link).

39
The repudiation of this extensive body of case law101 suggests that the real test of Heller will
occur once the lower courts, traditionally hostile to an individual rights interpretation of the
Second Amendment, face the in-evitable follow-up cases challenging other restrictive gun laws.
Experience with other seemingly groundbreaking Supreme Court decisions in recent years, such
as United States v. Lopez, suggests that lower-court foot-dragging may limit Heller’s reach,
though this time around there will likely be considerably more scrutiny and more vigorous
litigation efforts. If the lower courts present a challenge to the implementation of Heller, they also
provide litigants with an opportunity. Given the fact that the Heller majority declined to give a
detailed accounting of the proper standard of review to be used in subsequent Second
Amendment cases, litigants have a rare opportunity to write on a tabula much more rasa than is
ordinarily the case in constitutional litigation, making use of recent scholarship on the crafting of
constitutional decision rules that implement constitutional provisions.
COURTS, 102 Northwestern Law Review Colloquy 406 (2008) SECTION II. THE
LOWER COURTS AND THE HELLER DECISION:
It is impossible to review the Second Amendment jurisprudence from the federal
courts of appeals (excepting only Parker v. District of Columbia,102 the lower-court
version of Heller, and United States v. Emerson) without noting two things: a
significant hostility toward individual rights arguments, and a surprisingly deep
investment in their own case law, despite its rather tenuous anchor in the Supreme Court’s
decisions. This raises the question: what will they do when presented with gun-rights cases post-
Heller?
There is some reason to expect that the answer will be “not much.” The last constitutional
revolution led by the Supreme Court—via its Lopez and Morrison103 decisions limiting
Congressional power—essentially petered out in the face of lower-court resistance. 104 In light of
Gonzales v. Raich,105 which upheld the application of federal drug control laws to local,
noncommercial, medical marijuana, lower court reluctance to read Lopez and Morrison looked
prescient. Will that happen again with the Second Amendment?
101
See Brannon P. Denning, CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES v.
MILLER AND THE SECOND AMENDMENT, 26 Cumb. L. Rev. 961 (1996) (criticizing the case law citing United States v. Miller as
authority for rejecting an individual rights interpretation).
102
478 F.3d 370, 395 (D.C. Cir. 2007) (concluding ―that the Second Amendment protects an indi-vidual right to keep and
bear arms ), aff’d sub nom. District of Columbia v. Heller, No. 07-290 (June 29, 2008).
103
United States v. Morrison, 529 U.S. 598 (2000) (invalidating the civil-suit provision of the Violence Against Women Act
as beyond Congress’s commerce power)
104
See Glenn H. Reynolds & Brannon P. Denning, LOWER COURT READINGS OF LOPEZ, OR WHAT IF THE SUPREME COURT
HELD A CONSTITUTIONAL REVOLUTION AND NOBODY CAME? 2000 Wis. L. Rev. 369 (2000) [he-reinafter Reynolds & Denning,
Constitutional Revolution]; Brannon P. Denning & Glenn H. Reynolds, RULINGS AND RESISTANCE: THE NEW COMMERCE
CLAUSE JURISPRUDENCE ENCOUNTERS THE LOWER COURTS, 55 ARK. L. REV. 1253 (2003) [hereinafter Denning & Reynolds,
Rulings and Resistance] (discussing lower court cases following Morrison).
105
545 U.S. 1 (2005) (upholding application of the Controlled Substances Act to noncommercial marijuana grown and
possessed for local, medicinal use under state law)

40
In Lopez, the Supreme Court struck down the Gun Free School Zones Act as being in excess of
Congress’s enumerated power to regulate commerce among the several states. In the years
following Lopez, hundreds of cases flooded the lower courts, most brought by defendants
convicted of violating various federal criminal statutes, claiming that those laws also exceeded
Congress’s commerce power.106 In the five years after Lopez, however, only one law—the civil
suit provision eventually invalidated in Morrison—was struck down by a federal appellate
court.107 Even after Morrison, when the Court not only reaffirmed Lopez but seemed to add, “and
we mean it,” courts were still reluctant to rigorously analyze federal statutes using the Lopez-
Morrison framework. Though before Raich signaled a retreat, lower courts were beginning to
uphold as-applied challenges to particular federal statutes.108 Will Heller suffer Lopez’s fate,
serving more as casebook fodder than as actual authority? On the surface, there are some
analogies between the Commerce Clause and the Second Amendment that suggest that, like
Lopez, Heller itself may end up as so much sound and fury, signifying nothing—or at least
nothing much.
First, there are the institutional prejudices of the courts of appeals, favoring the status quo and
possessing a desk-clearing mentality. Like the bureaucrats they increasingly resemble, the
members of the appellate judiciary do not like to rock the boat. In addition, the courts of appeals
have a history of more-or-less open hostility to claims of a private right to arms. The vast
majority of cases to date suggest that, to the extent they can, they will try to rule against such a
right. Second, as was true following Lopez, there are few federal firearms laws that are vulnerable
under Heller. Indeed, Justice Scalia’s opinion took some pains to make clear what the Court was
not calling into question:
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.109
Indeed the very enumeration of “presumptively lawful regulatory measures” seemed calculated to
reduce expectations among, for example, felons convicted of possessing firearms in violation of
federal law that Heller represented a “Get Out of Jail Free” card.
Third, the Heller majority’s refusal to be pinned down on a specific standard of review might also
leave an opening for lower courts to confine Heller to its facts.110 20 For example, a court might
read Heller as standing for the proposition that anything less than an absolute ban could pass
106
Several of these challenges are discussed in Glenn H. Reynolds & Brannon P. Denning, LOWER COURT READINGS OF
LOPEZ, OR WHAT IF THE SUPREME COURT HELD A CONSTITUTIONAL REVOLUTION AND NOBODY CAME? 2000 Wis. L. Rev. 369
(2000).
107
Brzonkala v. Va. Polytechnic Inst. and State Univ., 169 F.3d 820 (4th Cir. 1999) (en banc), aff’d sub. nom. United States
v. Morrison, 529 U.S. 598 (2000).
108
Brannon P. Denning & Glenn H. Reynolds, RULINGS AND RESISTANCE: THE NEW COMMERCE CLAUSE JURISPRUDENCE
ENCOUNTERS THE LOWER COURTS, 55 ARK. L. REV. 1253 (2003) (describing these as-applied challenges).
109
District of Columbia v. Heller, No. 07-290, slip op. at 54–55 (U.S. June 26, 2008). A foot-note added, for good measure,
that the Court’s list of “these presumptively lawful regulatory measures . . . does not purport to be exhaustive.” Id. at 55 n.26.
110
See id. at 63 (“[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should
not expect it to clarify the entire field . . . .”).

41
muster. Even if a reviewing court adopts the kind of intermediate standard of review urged by the
Solicitor General,111 it might simply apply the standard in a way that defers to governmental
judgments about the necessity of regulation. A more explicit articulation of the standard to be
employed could have discouraged lower court evasion of Heller, or at least made such evasion
somewhat easier to detect, if the Court was inclined to monitor lower courts for compliance,
something that it did not do following Lopez.112
Fourth, because the majority preemptively (perhaps ―peremptorily is a better
word) signaled its view that a number of federal gun control laws would not be called
into question by Heller,113 the most promising targets—local gun bans similar to the District’s
and restrictive state gun laws—lie beyond the immediate scope of Heller because the Second
Amendment remains outside those provisions of the Bill of Rights that have been incorporated
through the Fourteenth Amendment and applied to states.114 Thus, the true test of Heller’s reach
will turn on whether the Court will be willing to entertain one of the proliferating number of cases
challenging these laws.115 If the Court does not, then, like Lopez, Heller may end up having all
the robustness of a “but see” cite.116
On the other hand, there are several important differences that ought not be overlooked between
the situation following Lopez and that likely to follow Heller. Perhaps most important is the fact
that there was virtually no coordinated follow-up litigation to Lopez on the part of the public
interest bar. Most of the litigation was opportunistic: Lopez was cited in just about every appeal
on behalf of those convicted of federal criminal offenses, who, as a group, rarely present the most
sympathetic face. By contrast, several lawsuits were filed challenging gun control laws in other
communities within hours of the Heller opinion’s publication.117 Given the stakes, interest groups
challenging local laws have greater incentive than individual criminal defense attorneys to ensure
that only the best cases with the cleanest facts are brought.
111
Brief of the United States as Amicus Curiae, District of Columbia v. Heller, No. 07-290, at 8–9 (2008) (recommending
remand for analysis using intermediate scrutiny as the standard of review), available at http://www.scotusblog.com/wp/wp-
content/uploads/2008/01/us-heller-brief-1-11-08.pdf
112
Whatever one thinks of the substance of his test or how well that test implements the right guar-anteed by the Second
Amendment, Justice Breyer at least described in some detail the approach he would take. See Heller, No. 07-290, slip op. at
8–12 (Breyer, J., dissenting) (describing the ―interest-balancing approach he would employ in Second Amendment cases).
113
District of Columbia v. Heller, No. 07-290, slip op. at 54–55 (U.S. June 26, 2008)
114
United States v. Cruikshank, 92 U.S. 542 (1875) (refusing to apply the First and Second Amendments to the states). For
Heller’s discussion of Cruikshank and its continued significance in light of the Court’s incorporation of most provisions of
the Bill of Rights to the states, see Heller, No. 07-290, slip op. at 47–49 & nn.22–23.
115
The majority did drop a pointed note that the case first declining to apply the Second Amendment to the states “also said
that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry
required by our later cases.” Id. at 48 n.23.
116
Cf. John Copeland Nagle, THE COMMERCE CLAUSE MEETS THE DELHI SANDS FLOWER-LOVING FLY, 97 MICH. L. REV. 174,
176 (1998) (“Whether Lopez marks a dramatic shift in Commerce Clause jurispru-dence or is instead destined to be a ‘but
see’ citation remains to be seen.”).
117
See, e.g., Maura Dolan, The 2nd Amendment: Reaction to the Court Ruling, L.A. TIMES, June 27, 2008, at A19, available
at http://www.latimes.com/news/nationworld/nation/la-na-legal27-2008jun27,0,3173451.story

42
Moreover, there was relatively little public interest in Lopez or the Commerce
Clause. The Second Amendment, on the other hand, is among the most significant
provisions of the Bill of Rights from the standpoint of public engagement.118 The
public interest groups sponsoring follow-up litigation will have every incentive to
publicize lower court attempts to evade or blunt the effect of Heller and can try to
choose cert-worthy cases from among those to be litigated. Given popular interest,
the media and elected officials will have an incentive to monitor lower court implementation
of Heller. It is also possible that the lower courts’ hostility to an individual right to arms was
largely a product of the zeitgeist of an earlier era, carried forward as much by habit and stare
decisis as by any institutional interest. With the individual right theory of the Second Amendment
now not only endorsed by the Supreme Court, but also, thanks to extensive scholarship,
academically respectable (and, of course, popular with a very large majority of citizens) it may be
that today’s federal judiciary will be less hostile to the right than past courts. A related point is
that lower court judges may perceive the stakes differently in Heller than they did in Lopez.
Following Lopez to its logical conclusions suggested rethinking the foundations of the modern
New Deal state, if not mandating the unwinding of that state. At the very least, it presented an
opportunity for hundreds of criminal defendants to escape the consequences of their convictions.
Neither was an appealing option for even the most ardent advocate for limiting federal power, so
judges strenuously resisted following Lopez wherever it might lead—especially if it meant
revisiting the constitutional legitimacy of statutes like the 1964 Civil Rights Act. By contrast,
even reading Heller for all that it is worth, it is clear that significant regulations of private
firearms ownership—including various licensing regimes—are not necessarily presumptively
unconstitutional.
Finally, despite the unanimity of the Court in its conclusion that the Second Amendment
protected some individual right, the alternative limiting implementations of that right were
expressed as dissents, as opposed to partial concurrences. 119 29 Thus, there are not any narrow
concurring opinions whose authors essentially control the outcome of future cases; the alternative
approaches of the dissenters are, well, dissents. Imagine a situation, though, in which Justice
Breyer’s “interest-balancing” approach was a concurring opinion; lower courts seeking to limit
Heller might choose Justice Breyer’s standard of review in the absence of anything definite in the
majority opinion.120
In Lopez, for example, though the Court listed a number of factors bearing on whether a given
local activity “substantially affected” interstate commerce or not, the Court did not make clear
whether all factors had to be satisfied, or just some, or whether some factors were indispensible to
a find ing that regulated activity had a substantial effect on interstate commerce. In response,
118
See Jeffrey M. Jones, Public Believes Americans Have Right to Own Guns, GALLUP, Mar. 27, 2008,
http://www.gallup.com/poll/105721/Public-Believes-Americans-Right-Own-Guns.aspx (“A solid majority of the U.S. public,
73%, believes the Second Amendment to the Constitution guarantees the rights of Americans to own guns.”)
119
See, e.g., Heller, No. 07-290, slip op. at 1 (Stevens, J., dissenting); id., slip op. at 1 (Breyer, J., dissenting). Justice Breyer
seems to be feeling his way toward some sort of “undue burden” standard, though it is more of an “undue-burden-lite”
standard, as it is difficult to imagine him upholding a ban on abortion in the District of Columbia on the basis that one could
reach a friendlier jurisdiction for the price of a subway ticket. See id. at 30 (Breyer, J., dissenting) (“The adjacent states do
permit the use of handguns for target practice, and those States are only a brief subway ride away.”).
120
Likewise, Justice Stevens’s primary dissent is, if anything, less clear than Justice Scalia’s majori-ty opinion on the
appropriate standard of review. By contrast, Justice Breyer’s dissent is quite detailed.

43
many lower court judges interpreted the opinion narrowly. The presence of any factor
distinguishing the statute under review from the Gun Free School Zones Act was deemed
sufficient to turn back the constitutional challenge.31 Which set of forces will prevail? It’s
impossible to say for certain, so we’ll equivocate and say, “it depends.” Bureaucrats tend to take
the path of least resistance, and least controversy. Though some foot-dragging is likely, it’s
equally likely that the kind of resistance demonstrated in response to Lopez won’t manifest itself
in response to Heller, as such resistance would likely produce far more controversy.
(3). Glenn H. Reynolds & Brannon P. Denning, HELLER’S FUTURE IN THE
LOWER COURTS, 102 Nw. U. L. Rev. Colloquy 406 (July 2008) CONCLUSION:
Though the civics-book formulation provides that the Supreme Court establishes clear principles
which lower courts should conscientiously apply, reality is considerably more complex and
frequently less satisfying. Unfortunately, as many lawyers can attest, the Supreme Court often
formulates principles that are not clear, and sometimes it fails to establish principles at all. Lower
courts, meanwhile, are not always conscientious in following the Supreme Court’s lead,
whether for reasons of bureaucratic rigidity or because they have their own agendas. Given
the Supreme Court’s light caseload, and the enormous number of cases in the lower courts, the
path taken by the federal judiciary can diverge considerably from that established by the Supreme
Court.121
Will Heller be such a case? As we have noted before, this depends—upon the behavior of
litigants, upon the predilections of lower court judges, and upon the degree and nature of
scrutiny that the process receives. For us, at least, it offers an opportunity to continue our study of
how Supreme Court precedent influences lower courts in an entirely new context, for which we
are properly grateful.
L. Rule 9(d) Pleading Official Document: Heller

Rule 9(d) Pleading Official Document or Act, Federal Rules of Civil Procedure: District of Columbia v.
Heller, U.S. Supreme Court, No. 07-290 (July 26, 2008) (The Second Amendment Protects An Individual Right
To Possess A Firearm Unconnected With Service In A Militia, And To Use That Arm For Traditionally Lawful
Purposes, Such As Self-Defense Within The Home.)
Plaintiff’s case pleads the Second Amendment protects an individual right to possess a firearm
unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense
outside the home in intrastate, interstate, and maritime travel.
M. The Unrepresented Civil Plaintiff, being a Seaman, is a Ward of the Admiralty

and Not an Attorney is Acting in the Capacity of a Private Attorney General under
the Civil RICO Act and in the Capacity of a Human Rights Defender in Accordance
with the U.N. DECLARATION ON HUMAN RIGHTS DEFENDERS (see Exhibit 12) Invoking
121
See Glenn Harlan Reynolds, Looking Ahead: October Term 2007, 2007 CATO SUP. CT. REV. 335, 350–52 (describing
the Supreme Court’s reduced influence on federal courts of appeals).

44
the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN through the Treaty
Clause and through 28 U.S.C. § 1334 FEDERAL QUESTIONS.
I have a human rights complaint against the United States pending at the Inter-American Commission on
Human Rights, Petition No. 1142-06.
“Pleadings in this case are being filed by Plaintiff In Propria Persona, wherein pleadings are to be
considered without regard to technicalities. Propria, pleadings are not to be held to the same high standards of
perfection as practicing lawyers.” See Haines v. Kerner 92 Sct 594, also See Power 914 F2d 1459 (11th Cir1990),
also See Hulsey v. Ownes 63 F3d 354 (5th Cir 1995). also See In Re: HALL v. Bellmon 935 F.2d 1106 (10th Cir.
1991).”
Pro Se pleadings are to be considered without technicality; pro se litigants pleadings are not to be held to
the same high standards of perfection as lawyers. Picking v. Penna. Rwy. Co. 151 F.2d 240, (C.A.3, 1945);
Jenkins v. McKeithen, 395 US 411, 421 (1969); Haines v. Kerner, 404 U.S. 519 (1972) 92 S.Ct. 594; Puckett v.
Cox, 456 F.2d 233, (6th Cir. 1972).
N. Fed.R.Ev. Rule 406 Habit/Routine Practice of Treason Against the Constitution:

We the People Foundation, et al v. United States, et al, U.S. District Court for the
District of Columbia, No. 04-1211 (August 31, 2005) Has Lead the U.S. Department
of State to commit Treason By Giving Away 8 Islands of Alaska to Russia Without
the Advice or Consent of the U.S. Senate, the Governor of Alaska, the people of
Alaska, or event the people of the United States.
(1). Citing State Department Watch: Voice for the American Public’s
Interest:122
● Billions of barrels of oil and gas potential are in the hundreds of thousands of
square miles of American seabeds that the U.S. State Department is giving to
the Russians.
● President Bush has declared all offshore areas open for oil and gas
exploration.
● The State Department has given itself a special exception for the Russians
over U.S. seabeds in Arctic Ocean and Bering Sea.
● This State Department favor to the Russians is in the form of a secretly-
negotiated maritime boundary agreement. The public, State of Alaska, and
Congress were kept in the dark.
● The maritime boundary agreement puts eight American Alaskan islands and
their vast 200-mile seabeds on the Russian side.
● This is a special type of State Department foreign aid to authoritarian
regimes. Instead of cash, the State Department is giving away land and
massive seabeds.
122
www.statedepartmentwatch.org

45
● The State Department giveaway policy started with Secretary of State Henry
Kissinger in 1977 under his “détente” campaign. All Secretaries of State
since him have kept the policy.123
Henry Kissinger, as Secretary of State for President Gerald Ford, ordered the de facto giveaway
of sovereignty over 8 American Alaskan islands to the Soviet Union, along with the 200-mile
fishery conservation zones around them.
He made the order secretly upon his own declaration in January 1977 without consultation with
Congress, the State of Alaska, or the American public in general.
He ordered that a maritime boundary for the fishery conservation zones (later to be applied to
exclusive economic zones) between Alaska and Siberia would follow a line in the Bering Sea and
Arctic Ocean which was described in the treaty by which the United States obtained part of
modern-day Alaska from Russia in 1867. Kissinger’s line ignored vast developments and
additions to Alaska after 1867, including the American discovery and/or inclusion in the United
States of Wrangell, Herald, Bennett, Henrietta, and Jeannette Islands in the Arctic Ocean in 1881.
It placed these islands, plus Copper Island, Sea Lion Rock and Sea Otter Rock in the Bering Sea
(which were ceded to the United States in the 1867 treaty), on the Soviet/Russian side of the
maritime boundary. Thus effective sovereignty over them plus the tens of thousands of square
miles of fishery/exclusive economic zones were surrendered.
Kissinger asked for nothing in return for the United States.
The diplomatic message traffic is presented below.
January 21, 1977: Kissinger instructed his Undersecretary of State for Political Affairs Philip C.
Habib to wire to the U. S. Embassy in Moscow the declaration that the United States, for
maritime boundary purposes, would “respect the line set forth in the convention [treaty] signed at
Washington March 30, 1867. The Government of the United States of course anticipates that the
Government of the Union of Soviet Socialist Republics will follow a similar practice....”
January 25, 1977: The U. S. Embassy reported back that “...Khabarov [of the Soviet Treaty and
Legal Division] went over the note carefully and looked up Soviet text of the 1867 convention on
[sic] maritime boundaries between Alaska and Siberia. But he did not offer substantive comment.
He did ask, as a personal aside, whether it was not customary to negotiate or at least discuss such
matters before giving notice about enforcement provisions. He added that he was not aware that
the question had been discussed in connection with the bilateral fishing agreement signed in
November.”
February 24, 1977: The U. S. Embassy reported the position of the Soviet Government: “The
Government of the USSR has taken into account the intention of the US side, in setting forth its
fisheries jurisdiction, to respect the line established by the convention signed April [sic] 18(30),
1867 in Washington, D.C. The Government of the USSR in carrying out its measures ensuing
from the decree of the presidium of the Supreme Soviet of December 10, 1976, Temporary
Measures for the Protection of Living Resources and Regulation of Fisheries in Areas Adjacent to
the USSR Coast, intends to adhere to the same line of the Convention of April 18, 1867, in the
Arctic Ocean, Chukchi, and the Bering Seas.”
This policy has continued without any change under Presidents Jimmy Carter, Ronald Reagan,
123
www.statedepartmentwatch.org/KissingerGiveaway.htm

46
George H. W. Bush, William Clinton, and George W. Bush. All negotiations have been
conducted in strict secrecy without the knowledge and/or participation of Congress, the State of
Alaska, and the American public. No known quid pro quo for the United States has been
identified.
(2). The diplomatic message traffic of January 21, 1977

47

48
(3). The diplomatic message traffic of January 25, 1977

49

50
(4). The diplomatic message traffic of February 24, 1977

51
See also http://www.statedepartmentwatch.org/AlaskaGovSenAG.htm

http://www.statedepartmentwatch.org/AlaskaAGConfirm.htm
http://www.alamo-girl.com/0302.htm
http://www.statedepartmentwatch.org/HidingFromCongress.htm
http://www.statedepartmentwatch.org/AlaskaGiveaway.htm
See generally as relevant evidence http://www.statedepartmentwatch.org

52
PART 2. THE PRELIMINARIES
Part 2. The Preliminaries

A. Statutory Waiver of Sovereign Immunity
(1). 46 CFR § 1.01–30 Judicial review.
(a) Nothing in this chapter shall be construed to prohibit any party from seeking judicial review of any
Commandant’s decision or action taken pursuant to the regulations in this part or part 5 of this chapter with
respect to suspension and revocation proceedings arising under 46 U.S.C. chapter 77.
(2). 46 CFR § 1.03–15 General.
(a) Any person directly affected by a decision or action taken under this chapter or under chapter III of this title,
by or on behalf of the Coast Guard, except for matters covered by subpart J of part 5 of this chapter dealing with
suspension-and-revocation hearings, shall follow the procedures contained in this section when requesting that the
decision or action be reviewed, set aside, or revised.
B. Seaman’s Suit Under 28 U.S.C. § 1916
“In all courts of the United States, seamen may institute and prosecute suits and appeals in their own names and
for their own benefit for wages or salvage or the enforcement of laws enacted for their health or safety without
prepaying fees or costs or furnishing security therefor.”
Plaintiff’s case is undeniably about safety for the U.S. Merchant Seaman in the maritime environment and
in open society. The legislative history of the Seamen’s Suit Law does not subject the fee exemption to conditions
of indigency or the filing of in forma pauperis. To imposes such conditions is an unconstitutional act of prior
restraint of a statutory right. I cannot be sustained that Congress giveth a statutory right and the Courts taketh it
away by fudicial fiat. That fiat invokes the Doctrine of Unconstitutional Conditions.
Notes on the Seaman Suit Law
June 12, 1917, ch. 27, Sec. 1, 40 Stat. 157 (H.R. 11; Pub.L.No. 21: An Act Making appropriations for sundry
civil expenses of the Government for the fiscal year ending June thirtieth, nineteen hundred and eighteen, and for
other purposes.) — Provided further, That courts of the United States shall be open to seamen, without furnishing
bonds or prepayment of or making deposits to secure fees or costs, for the purpose of entering and prosecuting
suit or suits in their own name and for the own benefit for wages or salvage and to enforce laws made for their
health and safety.
July 1, 1918, ch. 113, Sec. 1, 40 Stat. 683 (H.R. 12441; Pub.L.No. 181: An Act Making appropriations for
sundry civil expenses of the Government for the fiscal year ending June thirteenth, nineteen hundred and
nineteen, and for other purposes.) — Provided, That courts of the United States, including appellate courts,
hereafter shall be open to seamen, without furnishing bonds or prepayment of or making deposit to secure fees or
costs, for the purpose of entering and prosecuting suit or suits in their own name and for their own benefit for
wages or salvage and to enforce laws made for their health and safety.
June 25, 1948, ch. 646, 62 Stat. 955 (H.R. 3214; Pub.L.No. 773: An Act: To revise, codify, and enact into law
title 28 of the United States Code entitled “Judicial Code and Judiciary”) — 28 U.S. 1916: In all courts of the
United Stats, seamen may institute and prosecute suits and appeals in their own names and for their own benefit
for wages or salvage or the enforcement of laws enacted for their health or safety without prepaying fees or costs
or furnishing security therefor.
C. Seamen are Wards of the Admiralty
The federal courts and the Bush Administration by all appearances are abandoning the Common Defence
obligation of the U.S. Constitution as well as abandoning the duty to protect seamen against wrongful acts of
shipping companies, seafaring unions, and even against wrongful acts of the U.S. Government.
53 PRELIMINARIES
PART 2. THE
Boyd v. United States, 116 U.S. 616, 635 (1886):

“It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any
stealthy encroachments thereon. Their motto should be obsta principiis.” 124
Chandris, Inc. v. Latsis, No. 94-325, ___ U.S. ___ (1995):
In Warner v. Goltra, 293 U.S. 155 (1934), we stated that “a seaman is a mariner of any degree, one who
lives his life upon the sea.” Id., at 157. Similarly, in Norton v. Warner Co., 321 U.S. 565, 572 (1944), we
suggested that “ ‘every one is entitled to the privilege of a seaman who, like seamen, at all times
contributes to the labors about the operation and welfare of the ship when she is upon a voyage’ “
(quoting The Buena Ventura, 243 F. 797, 799 (SDNY 1916)).
Isbrandtsen Co. v. Johnson, 343 U.S. 779, 782-784 (1952):
Whenever congressional legislation in aid of seamen has been considered here since 1872, this Court has
emphasized that such legislation is largely remedial and calls for liberal interpretation in favor of the
seamen. The history and scope of the legislation is reviewed in Aguilar v. Standard Oil Co., 318 U.S.
724, 727 -735 (1943), and notes. “Our historic national policy, both legislative and judicial, points the
other way [from burdening seamen]. Congress has generally sought to safeguard seamen’s rights.”
Garrett v. Moore-McCormack Co., 317 U.S. 239, 246 (1942). “[T]he maritime law by inveterate tradition
has made the ordinary seaman a member of a favored class. He is a ‘ward of the admiralty,’ often
ignorant and helpless, and so in need of protection against himself as well as others. . . . Discrimination
may thus be rational in respect of remedies for wages.” Warner v. Goltra, 293 U.S. 155, 162 (1934);
Cortes v. Baltimore Insular Line, 287 U.S. 367, 375, 377 (1932); Wilder v. Inter-Island Navigation Co.,
211 U.S. 239, 246-248 (1908); Patterson v. Bark Eudora, 190 U.S. 169 (1903); Brady v. Daly, 175 U.S.
148, 155-157 (1899). “The ancient characterization of seamen as `wards of admiralty’ is even more
accurate now than it was formerly.” Robertson v. Baldwin, 165 U.S. 275, 287 (1897); 5 Harden v.
Gordon, 11 Fed. Cas. No. 6,047, 2 Mason (Cir. Ct. Rep.) 541, 556.
Statutes which invade the common law or the general maritime law are to be read with a presumption
favoring the retention of longestablished and familiar principles, except when a statutory purpose to the
contrary is evident. No rule of construction precludes giving a natural meaning to legislation like this that
obviously is of a remedial, beneficial and amendatory character. It should be interpreted so as to effect its
purpose. Marine legislation, at least since the Shipping Commissioners Act of June 7, 1872, 17 Stat. 262,
should be construed to make effective its design to change the general maritime law so as to improve the
lot of seamen. “The rule that statutes in derogation of the common law are to be strictly construed does
not require such an adherence to the letter as would defeat an obvious legislative purpose or lessen the
scope plainly intended to be given to the measure.” Jamison v. Encarnacion, 281 U.S. 635, 640 (1900);
Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437 (1907), 440. The direction of the current
of maritime legislation long has been evident on its face.
“In this country these notions were reflected early, and have since been expanded, in legislation designed
to secure the comfort and health of seamen aboard ship, hospitalization at home and care abroad. . . . The
legislation . . . gives no ground for making inferences adverse to the seaman or restrictive of his rights. . . .
Rather it furnishes the strongest basis for regarding them broadly, when an issue concerning their scope
arises, and particularly when it relates to the general character of relief the legislation was intended to
secure.” Aguilar v. Standard Oil Co., 318 U.S. 724, 728-729 (1943).
124
The Latin phrase, obsta principiis, translates to “oppose beginnings” or “oppose first attempts”.
54
Nicholas Schreiber v. K-Sea Transportation Corp. New York, Supreme Court, Appellate Division, April 25,
2006; 5410N Index 104992/04 107571/04:
Petitioner, as a ward of the admiralty, is entitled to heightened protection from the courts. There
is a long-standing policy to safeguard the rights of seamen, whose contracts are traditionally
viewed with solicitude:
They are emphatically the wards of the admiralty; and though not technically
incapable of entering into a valid contract, they are treated in the same manner, as
courts of equity are accustomed to treat young heirs, dealing with their
expectancies, wards with their guardians, and cestuis que trust with their trustees.
. . . If there is any undue inequality in the terms, any disproportion in the bargain,
any sacrifice of rights on one side, which are not compensated by extraordinary
benefits on the other, the judicial interpretation of the transaction, is that the
bargain is unjust and unreasonable, that advantage has been taken of the situation
of the weaker party, and that pro tanto the bargain ought to be set aside as
inequitable. (Garrett v. Moore-McCormack Co., 317 U.S. at 246, 1942 AMC at
1650, quoting Harden v. Gordon, 2000 AMC 893, 902, 11 Fed Cas 480, 485
[1823])
D. Estoppel and Seamen’s Rights
Estoppel is a legal principle that prevents a person from asserting or denying something in court that
contradicts what has already been established as the truth.
Collateral Estoppel is a legal doctrine that prevents the relitigation of facts or issues that were previously
resolved in court.
Equitable Estoppel (or, estoppel in pais) is a type of estoppel that bars a person from adopting a position
in court that contradicts his or her past statements or actions when that contradictory stance would be unfair to
another person who relied on the original position.
Estoppel by Silence is a type of estoppel that prevents a person from asserting something when she had
both the duty and the opportunity to speak up earlier, and her silence put another person at a disadvantage.
Estoppel that arises when a party is under a duty to speak but fails to do so. — also termed estoppel by standing
by; estoppel by inaction.
Promissory Estoppel is a legal doctrine used in American law as well as other legal systems, although
other legal systems may call it by a different name. Promissory estoppel allows a party to recover on a promise
even though that promise was made without consideration. Essentially it prevents, or estops, a person from
arguing that his or her promise should not be upheld. It also requires that reliance on the promise was reasonable,
and that the person trying to enforce the promise actually relied on the promise to his or her detriment. The
precise legal requirements for promissory estoppel may vary between jurisdictions.
Black’sLaw Dictionary defines promissory estoppel as:
“The principle that a promise made without consideration may nonetheless be enforced to prevent
injustice if the promisor should have reasnably expected the promissee to rely on the promise and
if the promisee did actually rely on the promise to his or her detriment.”
“The doctrine of promissory estoppel is equitable in origin and nature and arose to provide a remedy through the
enforcement of a gratuitous promise. Promissory is distinct from equitable estoppel in that the representation at
issue is promissory rather than a representation of fact. ‘Promissory estoppel and estoppel by conduct are two
entirely distinct theories. The latter does not require a promise.’” Ann Taylor Schwing, CALIFORNIA AFFIRMATIVE
DEFENSE § 34:16, at 35 (2d ed. 1996)(quoting Division of Labor Law Enforcement v. Transpacific Transp. Co.,
88 Cal.App. 3d 823, 829 (Cal.Ct.App. 1979))
55 PRELIMINARIES
PART 2. THE
The United States Constitution is a promissory estoppel barring the States and the Federal Government
from exceeding the limits contractually imposed on the States and the Federal Government so as not to infringe
upon the freedoms, rights, and duties of the People. “Making constitutional rights inalienable because citizens
may undervalue the worth of those rights to themselves would be classic paternalism overruling individuals’
choices for their own good. Individuals’ choices may diverge from their “best” interests for many reasons: for
example, because they under-assess risk or under-value their long-term interests. Choices to waive constitutional
rights are no exceptions; invalidating such choices, even if perfectly voluntary, compels citizens to hang onto their
rights for their own good.” Kathleen M. Sullivan’s, Unconstitutional Conditions, 10 Harv.L.Rev. 1413 at 1480
(May 1989).
Black’s Law Dictionary defines EQUITABLE ESTOPPEL:
1. A defensive doctrine preventing one party [United States] from taking unfair advantage of
another [Pro Se Plaintiff] when, through false language or conduct, the person to be estopped
[Counsel for Defense & the United States] has induced another person [District Court judge &
the U.S. Congress] to act in a certain way, with the result that the other person [Pro Se Plaintiff &
the American People] has been injured in some way [Case dismissed with prejudice & the
American People left defenseless against the common criminal and now clandestine terrorists
operating in the United States through gun control laws]. ! This doctrine is founded on principles
of fraud. The five essential elements for this type of estoppel are:
(1) that there was a false representation or concealment of material facts,
(2) that the representation must have been known to be false by the party making
it, or the party must have been negligent in not knowing its falsity,
(3) that it was believed to be true by the person to whom it was made,
(4) that the party making the representation must have intended that it be acted
on, or the person acting on it must have been justified in assuming this intent,
and,
(5) that the party asserting estoppel acted on the representation in a way that will
result in substantial prejudice unless the claim of estoppel succeeds. — Also
termed estoppel by conduct; estoppel in pais.
(1). Huseman v. Icicle Seafoods, Inc., et al, In Rem, ; Ninth Circuit No. 04-
35655 (December 27, 2006)
p. 19912-19913:
Circuit Judge McKeown:
II. EQUITABLE ESTOPPEL
[4] Equitable estoppel, sometimes called fraudulent concealment, “focuses primarily on the
actions taken by the defendant in preventing a plaintiff from filing suit. . . . [including] the
plaintiff’s actual and reasonable reliance on the defendant’s conduct or representations.” Santa
Maria, 202 F.3d at 1176. For example, “conduct or representations by the defendant-employer
which tend to lull the plaintiff into a false sense of security, can estop the defendant from raising
the statute of limitations, on the general equitable principle that no man may take advantage of his
own wrong.” Atkins v. Union Pac. R.R., 685 F.2d 1146, 1149 (9th Cir. 1982) (internal quotation
marks and alterations omitted).
56
p. 19918-19919:
III. WARDS OF THE COURT DOCTRINE
...
[9] The “wards of the court” doctrine was created to account for the “special circumstances
attending [the seaman’s] calling,” because the “seaman, while on his vessel, is subject to the
rigorous discipline of the sea and has little opportunity to appeal to the protection from abuse of
power which the law makes readily available to the landsman.” Socony-Vacuum Oil Co. v. Smith,
305 U.S. 424, 430-31 (1939). “The physical conditions under which the seaman labors are
extremely hazardous.” Cal. Home Brands, Inc. v. Ferreira, 871 F.2d 830, 837 (9th Cir. 1989).
[10] Invocation of the “wards of the court” doctrine is to be linked to the specific policy reasons
for its creation. For example, in Socony, the Court declined to apply the common law rule of
assumption of risk, and instead used the rule of comparative negligence, because it recognized
that seamen are often in the unusual position of having to make quick decisions under hazardous
circumstances using whatever equipment they are given. See 305 U.S. at 431-32.
-----------------------
p. 19926
Circuit Judge Reinhardt, dissenting:
I. SPECIAL PROTECTIONS DUE TO SEAMEN
Equitable Estoppel in General
The Supreme Court has declared that courts should “avoid, within reasonable limits, the application of
rules of the common law which would affect [seamen] harshly because of the special circumstances
surrounding their calling.” Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 431 (1939). Any
“ambiguities or doubts are resolved in favor of the seaman.”125 Vaughan v. Atkinson, 369 U.S. 527, 532
(1962). In no area do seamen get more protection than in the context of recovery for injuries. Thorman,
421 F.3d at 1097.
p. 19930
The ward of the court doctrine exists, in part, because seamen are too “poor, friendless, and improvident”
to assert their rights. Vaughan, 369 U.S. at 531. It also exists “because they are by the peculiarity of their
lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labor.”
Chandris v. Latsis, 515 U.S. 347, 354-55 (1995).
p. 19931
Perhaps the majority’s inexplicable hostility to the legal protections due injured seamen derives in part
from a mistaken belief that seamen are no longer the “ignorant and helpless” men of old. Johnson v.
Offshore Tankers Svc. Inc., 789 F.2d 1417, 1419 (9th Cir. 1986). However, the Supreme Court reaffirmed
the ward of the court doctrine only a decade ago and the Ninth Circuit did so even more recently.
Chandris v. Latsis, 515 U.S. 347, 354 (1995); Orsini, 247 F.3d at 959.
125
Plaintiff Hamrick’s emphasis.
57 PRELIMINARIES
PART 2. THE
(2). Luttrell v. United States, et al., Ninth Circuit. 644 F.2d 1274 (Dec. 4, 1980)
Seamen as wards of admiralty are wards of the court, not the Executive Branch of the
government. Furthermore, any such relationship that might be claimed to exist with the executive
would be extinguished once the seamen brought suit against the United States. (See, Norris, THE
LAW OF SEAMEN. Volume I, Chapter 24, page 593 et seq., Sections 501, 503, and 512).
(b) 28 U.S.C. §§ 2201 and 2202 create additional remedies in the form of declaratory judgment
relief for federal litigants, but do not in and of themselves confer subject-matter jurisdiction on
the courts. Wells v. United States, 280 F.2d 275 (9th Cir. 1960).
(c) 42 U.S.C. §§ 1983 and 1985 when coupled with 28 U.S.C. § 1343, confer jurisdiction for
actions claiming the deprivation of civil rights under the color of state law or by conspiracy.
(d) 18 U.S.C. §§ 201, 202, 205, 208, 1001 and 1008 define crimes under federal law and do not
confer civil subject-matter jurisdiction.
Perhaps, under Rule 60(b) of the Federal Rules of Civil Procedure, the district court might have
obtained jurisdiction over appellant’s claim for relief because of newly discovered evidence or
the claim (if the complaint can be so read) that the prior judgment was obtained through extrinsic
or intrinsic fraud.
Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or
deception practiced on him by his opponent, as by keeping him away from court, . . .” United
States v. Throckmorton, 98 U.S. 61, 65-66, 25 L.Ed. 93 (1878).
The concern of the court in Throckmorton and its progeny was that because of this type of fraud,
the injured party is prevented from fairly presenting his claim or defenses or from introducing
relevant or material evidence. Id, at 66; see also 7 MOORE’S FEDERAL PRACTICE, Second Edition,
§ 60.37 (1979).
58
E. Resurrecting Neglected Federal Laws For Second Amendment Purposes

(1). 10 U.S.C. § 311. Militia: composition and classes
(2). 10 U.S.C. § 312. Militia duty: exemptions
(3). 10 U.S.C. § 332. Use of militia and armed forces to enforce Federal
authority
(4). 10 U.S.C. § 333. Interference with State and Federal law
(5). 10 U.S.C. § 334. Proclamation to disperse
(6). 10 U.S.C. § 351. Arming of American Vessels: During war or threat to
national security
(7). 10 U.S.C. § 7851. Composition of the Naval Militia
(8). 10 U.S.C. § 7854. Availability of material for Naval Militia
(9). 16 U.S.C. § 412. National Military Parks; Camps for military instruction;
regulations for militia
(10). 18 USC § 245(b)(1)(B). Federally Protect Activities
(11). 23 U.S.C. § 401. Highway Safety: Authority of the Secretary
(12). 23 U.S.C. § 402. Highway Safety: Highway Safety Programs
(13). 23 U.S.C. § 407. Highway Safety: Innovative Project Grants
(14). 32 U.S.C. § 109. National Guard; Maintenance of other troops
(15). 33 U.S.C. § 383. Resistance of Pirates by Merchant Vessels
(16). 42 USC § 2000a. Prohibition Against Discrimination or Segregation in
Places of Public accommodation
(17). 42 USC § 2000a-1. Prohibition Against Discrimination or Segregation
Required by any Law, Statute, Ordinance, Regulation, Rule or Order of a
State or State Agency
(18). 42 USC § 2000a-2. Prohibition Against Deprivation of, Interference
With, and Punishment for Exercising Rights and Privileges Secured by
Section 2000a or 2000a-1 of this title
(19). 42 USC § 2000a-5. Civil actions by the Attorney General
(20). 42 USC § 2000bb. Congressional Findings and Declaration of Purposes
(21). 42 USC § 2000bb-1. Free Exercise of Religion Protected
59 PRELIMINARIES
PART 2. THE
F. Basis for Jurisdiction

(1). Under 28 U.S.C. § 1331, Federal Questions
The U.S. District Court for the District of Columbia has original jurisdiction in this civil action arising
under the United States Constitution, laws, or treaties of the United States.
(2). Under 42 U.S.C. § 1985 Conspiracy to Interfere With Civil Rights
(2) Obstructing Justice. “If two or more persons in any State or Territory conspire to deter, by force,
intimidation, or threat, any party or witness in any court of the United States from attending such court, or from
testifying to any matter pending therein, freely, fully, and truthfully; . . . or if two or more persons conspire for the
purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or
Territory, with intent to deny to any citizen the equal protection of the laws, . . . for lawfully enforcing, or
attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws.”
(3). Under 42 U.S.C. § 1985 Conspiracy to Interfere With Civil Rights
(3) Depriving Persons of Rights or Privileges. If two or more persons in any State or Territory conspire or go in
disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the
laws; . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such
injury or deprivation, against any one or more of the conspirators.
(4). Under 42 U.S.C. § 1981 Equal Rights Under the Law
(a). Statement of Equal Rights. All persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and
equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens,
and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no
other.
(5). Under 42 U.S.C § 1982. Property Rights of Citizens
All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white
citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.
(6). Under 42 U.S.C. § 1983 Civil Action for Deprivation of Rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in
such officer’s judicial capacity,126 injunctive relief shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to
the District of Columbia shall be considered to be a statute of the District of Columbia.
126
Judges are not immune from liability for administrative actions that violate federal law. The collection of filing fees falls
under the administrative capacity, not the judicial capacity of the judicial officer (i.e., judges and court clerks). Therefore
injunctive relief is warranted in the Plaintiff’s case herein.
60
(7). Under 42 U.S.C. § 2000h–2. Intervention by Attorney General; Denial of

Equal Protection on Account of . . . National Origin
Whenever an action has been commenced in any court of the United States seeking relief from the denial of equal
protection of the laws under the fourteenth amendment to the Constitution on account of race, color, religion, sex
or national origin, the Attorney General for or in the name of the United States may intervene in such action upon
timely application if the Attorney General certifies that the case is of general public importance. In such action the
United States shall be entitled to the same relief as if it had instituted the action.
(8). Under 42 U.S.C. § 1986. Action for Neglect to Prevent
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985
of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the
same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his
legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence
could have prevented; and such damages may be recovered in an action on the case; and any number of persons
guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party
be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action
therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if
there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under
the provisions of this section shall be sustained which is not commenced within one year after the cause of action
has accrued.
(9). Under 18 U.S.C. § 1988. Proceedings in Vindication of Civil Rights
(a) Applicability of Statutory and Common Law. The jurisdiction in civil and criminal matters conferred on the
district courts by the provisions of titles 13, [The Judiciary, today’s Title 28 of the U.S. Code], 127 24, [Civil
Rights, today’s Title 42, Chapter 21 of the U.S. Code],128 and 70 [Crimes, today’s Title 18 of the U.S. Code] 129 of
the Revised Statutes for the protection of all persons in the United States in their civil rights, and for their
vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws
are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient
in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as
modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such
civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United
States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a
criminal nature, in the infliction of punishment on the party found guilty.
(10). Under 28 U.S.C. § 1343(a), Civil Rights and Elective Franchises
The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any
person:
(1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege
of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of
Title 42;
127
REVISED STATUTES OF THE UNITED STATES 1873-1874, 2nd Edition, First Session of the 43rd Congress. U.S. Government
Printing Office, Washington, DC.
128
Id.
129
Id.
61 PRELIMINARIES
PART 2. THE
(2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in
section 1985 of Title 42 which he had knowledge were about to occur and power to prevent;
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of
any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress
providing for equal rights of citizens or of all persons within the jurisdiction of the United States;
(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the
protection of civil rights, including the right to vote.
(11). Under 18 U.S.C. § 1964 Civil Remedies [for Racketeering]
(a) The district courts of the United States shall have jurisdiction to prevent and restrain violations of 18 U.S.C. §
1962 by issuing appropriate orders, including, but not limited to:
1. ordering any person to divest himself of any interest, direct or indirect, in any enterprise;
2. imposing reasonable restrictions on the future activities or investments of any person, including, but
not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise
engaged in, the activities of which affect interstate or foreign commerce; or ordering dissolution or
reorganization of any enterprise, making due provision for the rights of innocent persons under 18 U.S.C.
§ 1964(a).
G. Exceptions to Jurisdiction
(1). As to 28 U.S.C. § 2680(a) it is my claim that the U.S. Coast Guard did not exercise due care in the
execution of the Final Agency Action denying my application for Second Amendment rights as a seaman
requesting the National Open Carry Handgun endorsement on the Merchant Mariner’s Document in due regard to
mandatory small arms training in accordance with OPNAVINST 3591.1C: SMALL ARMS TRAINING AND
QUALIFICATION, dated May 13, 2002; ENCLOSURE (3) QUALIFICATION CRITERIA FOR SECURITY PERSONNEL
(AFLOAT) dated May 13, 1992,130 because the Coast Guard has a ministerial duty to process, review, and approve
and not a discretionary duty to deny my application for the Second Amendment application for the endorsement
to the Merchant Mariner’s Document as mandated by the Coast Guard’s Oath of Office to support and defende
the Constitution of the United States. The Bill of Rights which includes the Second Amendment in included in the
“support and defend the Constitution” clause by inference under constitutional law.
28 U.S.C. § 2680 The provisions of Title 28, Part VI, Chapter 171 – Tort Claims Procedure and section
1346 (b) of Title 28 shall not apply to—
(a) Any claim based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation, whether or not
such statute or regulation be valid, or based upon the exercise or performance or
the failure to exercise or perform a discretionary function or duty on the part of
a federal agency or an employee of the Government, whether or not the
discretion involved be abused.
130
Current edition is OPNAVINST 3591.1E: SMALL ARMS TRAINING AND QUALIFICATION, dated February 20, 2007;
ENCLOSURE (1) RANGE REGULATIONS; ENCLOSURE (2) SMALL ARMS DRY FIRE TRAINING PROCEDURE AND GUIDELINES;
ENCLOSURE (3) QUALIFICATIONS FOR PISTOLS – M9 Beretta Pistol and the M11 9mm Compact Pistol (Selection for U.S.
civilian Able Seamen are limited to the M9 9mm Beretta Pistol; ENCLOSURE (4) QUALIFICATIONS FOR RIFLE - M14, M16
(series) rifles, M4A1, M727, and Mk-18 Carbines, Rifle selection for U.S. civilian Able Seamen limited to the M14.;
ENCLOSURE (5) QUALIFICATION CRITERIA FOR SHOTGUNS - 12-gauge 00 buckshot and slugs; ENCLOSURE (6) QUALIFICATION
CRITERIA FOR LIGHT, MEDIUM AND HEAVY MACHINE GUN PERFORMANCE E VALUATION - M60 and MK43 (variants) 7.62MM
medium machine guns, M240 (variants) 7.62MM medium machine guns, and MK46 Mod 0 (M249 Squad Automatic
Weapon (SAW)) 5.56MM light machine guns (not available to civilian Able Seamen).
62
(h) Any claim arising out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit,
or interference with contract rights: Provided, That, with regard to acts or
omissions of investigative or law enforcement officers of the United States
Government, the provisions of this chapter and section 1346 (b) of this title
shall apply to any claim arising, on or after the date of the enactment of this
proviso, out of assault, battery, false imprisonment, false arrest, abuse of
process, or malicious prosecution. For the purpose of this subsection,
“investigative or law enforcement officer” means any officer of the United
States who is empowered by law to execute searches, to seize evidence, or to
make arrests for violations of Federal law.
(k) Any claim arising in a foreign country.
It is my claim that the U.S. Coast Guard DID NOT exercise due care in regard to 28 U.S.C. § 2680(a)
because the Coast Guard DID NOT have discretion, in other words, the Coast Guard did not have the
discretionary duty to deny my Second Amendment application for the National Open Carry Handgun
endorsement on the Merchant Mariner’s Document. That duty was ministerial based upon their Oath of Office
to support and defence the Constitution of the United States and that includes the Second Amendment as
part of the Constitution through the Bill of Rights.
In like manner to the fruit of the poison tree under the Fourth Amendment it is also my claim that since
the U.S. Coast Guard cannot seek safe harbor under 28 U.S.C. § 2680(a) neither can they present a defense under
28 U.S.C. § 2680(h) and (k) Exception because their investigation of me through the NCIS, pulling me off a U.S.
Government vessel of the Preposition Fleet anchored off the coast of Lithuania (the seizure), and placing me in
the Hotel Klaipėda for 12 days (false imprisonment) because the U.S. Coast Guard misinterpreted a
publishable article on the Second Amendment (abuse of process and malicious prosecution) because the
offending incidents was initiated by the U.S. Coast Guard in Washington, DC and the violation of the
“Fifth Amendment” taking and Fourth Amendment “seizure” occurred aboard a U.S. Government
vessel, sovereign territory of the United States under maritime law. Judge Ellen Segal Huvelle of the
U.S. District Court for DC ignored these facts in my first two companion cases, Nos. 02-1434 and 02-
1435 fraudulently and criminally misconstruing the facts has occurring in a foreign country as an excuse
to dismiss my cases. This dismissal with prejudice is prima facie evidence of criminal misconduct on the
part of Judge Huvelle. The federal courts open hostility to unrepresented civil plaintiffs and to Second
Amendment cases advocating individual rights are well documented in academic law review articles.
Violating 28 U.S.C. § 2680(a) negates all other Exceptions!
H. Venue – United States as Defendant

Because the United States is the Defendant in this Tort Claims Case the U.S. District Courts in Batesville,
Arkansas (via Little Rock, Arkansas) and the District of Columbia both have original jurisdiction under 28 U.S.C.
§ 1402(b) and 28 U.S.C § 1346(b)(1). Both District Courts have proven themselves to be prejudiced and hostile to
my Seventh Amendment right to a civil jury trial. However, to set a stronger precedence I select the U.S. District
Court for the District of Columbia for Venue.
I. Representations to the Court
In accordance with Rule 11(b) Plaintiff hereby certifies that by presenting to the U.S. District Court for
the District of Columbia this civil action that it is Plaintiff’s affirmation it is the best of his knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances:
63 PRELIMINARIES
PART 2. THE
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions herein are warranted by existing law or by a
nonfrivolous argument for the extension, modification, or reversal of existing law or the
establishment of new law;
(3) the allegations and other factual contentions have evidentiary support (i.e., the related case as
noted above) or, if specifically so identified, are likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery; and (4) the denials of factual
contentions are warranted on the evidence or, if specifically so identified, are reasonably based on
a lack of information or belief.
J. Standing to Sue as a Private Right of Action under the AMERICAN DECLARATION
ON THE RIGHTS AND DUTIES OF MAN through the Treaty Clause and 28 U.S.C. § 1331
Federal Questions
See also Paul B. Stephan, PRIVATE REMEDIES FOR TREATY VIOLATIONS AFTER SANCHEZ-LLAMAS 11 Lewis
& Clark L. Rev. 65 (2007).
I have standing to sue the United States as a Private Right of Action under the Treaty Clause because (1)
the U.S. Coast Guard, the Federal Agencies of the Executive Branch and the Legislative Branch from 2002 to the
present have unconstitutionally denied my First Amendment right to petition the government for redress of
grievances, and (2) the Federal Courts have unconstitutionally denied my Seventh Amendment right to a civil jury
trial through the unconstitutional use of Summary Judgments on Motions to Dismiss even though I am:
(a). a victim of human rights abuses by the U.S. Government in a human rights
complaint now pending at the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
Petition No. 1142-06. Because I am defending my “human rights” I have become
a HUMAN RIGHTS DEFENDER by United Nations standards (DECLARATION ON THE
RIGHT AND RESPONSIBILITY OF INDIVIDUALS, GROUPS AND ORGANS OF SOCIETY TO
PROMOTE AND PROTECT UNIVERSALLY RECOGNIZED HUMAN RIGHTS AND
FUNDAMENTAL FREEDOMS, United Nations General Assembly Resolution
A/RES/53/144 dated March 8, 1999), by enforcing the AMERICAN DECLARATION
ON THE RIGHTS AND DUTIES OF MAN.
(b). an unrepresented civil plaintiff with a civil RICO Act case against the U.S.
Government acting in the capacity of a PRIVATE ATTORNEY GENERAL prosecuting
extortion under color of official right, 18 U.S.C. § 1951(a) and (b)(2), (Hobbs
Act);
(c). a victim of obstruction of justice by the federal courts and federal law
enforcement agencies.
(d). a victim of extortion under color of law, 18 U.S.C. § 872;
(e). a victim of constitutional rights violations by the U.S. Government.
K. Standing to Sue for Cause and Not for the Status of the Plaintiff for Violations of
My Own Civil Rights, Constitutional Rights, and Human Rights
But see Chisholm v. Georgia, 2 U.S. 419 at 466 (1793) (Justice Wilson) (Causes, and not parties to
causes, are weighed by justice, in her equal scales: On the former solely, her attention is fixed: To the latter, she
is, as she is painted, blind.)
64
In rebuttal to the U.S. Attorney’s Manual, Title 4: Civil Resource Manual § 35 Standing to Sue under the
“case or controversy” clause of Article III of the Constitution there is enough “plausible” evidence to prove that I
have suffered a distinct and palpable injury as a result of the putatively illegal conduct of the officers of the U.S.
Coast Guard; of judges and court clerks in the administrative functions where they do not have immunites of any
kind from suit; of officials and agents of the U.S. Department of Transportation, the U.S. Department of Justice,
the U.S. Marshals Service, and the FBI, to name a few as defendants under the name of the United States. The
injuries to my reputation, to my constitutional rights, to my statutory rights, and to my human rights are “easily”
traceable to the challenged conduct. The injuries are extremely likely to be redressed if the requested relief is
granted.
In addition to the constitutional requirements of Article III, courts have developed a set of prudential
considerations to limit standing in federal court to prevent a plaintiff “from adjudicating “abstract questions of
wide public significance’ which amount to ‘generalized grievances’ pervasively shared and most appropriately
addressed in the representative branches.” Speculative claims that a proposed governmental action may result in
injury to a plaintiff are insufficient to confer standing. The required injury must be both real and immediate, not
conjectural or hypothetical.
The injuries to my good name and reputation first by the U.S. Coast Guart, then in a conspiracy between
the U.S. Coast Guard and the U.S. Department of Transportation, and subsequently whether in a conspiracy, or
independently by the other named departments of the United States above are not speculative, conjectural, or
hypothetical claims but real and immediate claims.
However, once Standing to Sue under any authorized catagories has been established I do have the right
under the Standing to Sue for the rights of third parties of the jus tertii doctrine to raise such speculative,
conjectural, or hypothetical claims as viable means to present prima facie challenges, “as applied” challenges, and
facial challenges to the constitutionality of selected federal laws and regulations. The federal courts have a duty
under Article III and under the checks and balance system of the Constitution to adjudicate speculative,
conjectural, and hypothetical claims after real and immediate claims have been established as a proper standing to
sue in order to prevent the Legislative and Executive Branch from taking the American People down a slippery
slope of despotic totalitarianism form of government in opposition to our Guaranteed Republican form of
Government unless the federal Judicial Branch is in collusion with such treachery.
(1). 16 CORPUS JURUS SECUNDUM § 111 Requirement of Standing:
Article III of the United States constitution gives federal courts jurisdiction only over cases and controversies, and
the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial
process.131 Thus, a person must have standing to be able to assert a challenge to the constitutionality of a statute or
government action. 132 The standing inquiry is especially rigorous when reaching the merits of the dispute would
force the court to decide whether an action taken by one of the other two branches of the federal government was
unconstitutional. 133
Although the standing inquiry often turns on the nature and source of the claim asserted, it in now way depends
on the merits of the plaintiff’s contention that particular conduct is illegal. 134 The question of standing generally
focuses on the party seeking a forum, rather than on the issues to be adjudicated.135 The essence of the
131
Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.E.2d 135 (1990).
132
Hines v. Elkhart General Hospital, 465 F.Supp. 421 (N.D. Ind. 1979) , judgment aff’d, 603 F.2d 646 (7th Cir. 1979).
133
Burt v. Rumsfeld, 322 F.Supp.2d 189, 189 Ed. Law Rep. 666 (D. Conn. 2004).
134
Burt v. Rumsfeld, 322 F.Supp.2d 189, 189 Ed. Law Rep. 666 (D. Conn. 2004).
135
Kaneohe Bay Cruises, Inc. v. Hirata, 75 Hawaii 250, 861 P.2d 1 (1993).
65 PRELIMINARIES
PART 2. THE
constitutional standing question is whether the plaintiff has a personal stake in the issue presented. 136 A party has
standing to challenge a statute’s constitutionality if the party has a sufficient interest in the outcome of a
justiciable controversy to obtain judicial resolution of that controversy.137 A challenger must have some right
specifically affected, 138 and the interest that he or she seeks to protect must be within the zone of interests to be
protected by the statute or constitutional guaranty in question.139 While one need have only a slight interest to
sustain standing where issues of great public interest are presented,140 a showing only of such interest in the
subject of the suit as the public generally has is usually not sufficicient to warrant the exercise of judicial
power.141
(2). 16 CORPUS JURUS SECUNDUM § 113 Facial and As-Applied Challenges
A party may generally challenge the constitutionality of a statute only as applied to that party,142 and such a
challenge is referred to as an “as applied challenge.143
A facial challenge to the constitutional validity of a statute considers only the text of the measure itself, and not its
application to the particular circumstances of an individual.144 A party asserting a facial challenge to a statute
seeks to vindicate not only his or her own rights, but also those of others who may also be adversely impacted by
the statute in question.145 In order to challenge successfully the facial validity of a statute or a rule of practice
when no fundamental constitutional right is implicated, a party is required to demonstrate as a threshold matter
that the statute may not be applied constitutionally to the facts of his or her case.146 A person may bring a facial
challenge to a statute if the unconstitutional feature is so pervasive as to render the entire statute invalid,147 and if
the statute reaches a substantial amount of protected conduct.148
136
H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed. 2d 388 (1981); Oregon Advocacy Center v. Mink, 322 F.3d
1101 (9th Cir. 2003); Public Citinzen, Inc. v. Bomer, 274 F.3d 212 (5th Cir. 2001). [Nexus requirement: Whether or not
personal stake in outcome is sufficient to confer standing depends on whether there is a logical nexus between status asserted
and claim sought to be adjudicated.]
137
State v. City of Oak Creek, 2000 Wisconsin 9, 232 Wis. 2d 612, 605 N.W.2d 526 (2000).
138
McCord v. Stephens, 295 Ala. 162, 325 So. 2d 155 (1975); Morris v. Fleming, 128 Ariz. 271 271, 625 P.2d 334 (Ct. App.
Div. 1 1980). [Adverse parties: Adverseness of parties, which is necessary for standing, does not exist when party attacking
statute does not stand to gain if attack is sustained.] People v. Capitol News, Inc., 137 Ill. 2d 162, 148 Ill. Dec. 1, 560 N.E.2d
303, 13 A.L.R.5th 1029 (1990).
139
Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970);
Dismas Charities, Inc. v. U.S. Department of Justice, 401 F.3d 666, 2005 Fed. App. 0128P (6th Cir. 2005).
140
Right to Relief: Burt v. Rumsfeld, 322 F.Supp.2d 189, 189 Ed. Law Rep. 666 (D. Conn. 2004).
141
Plumas County Bd. Of Sup’rs v. Califano, 594 F.2d 756 (9th Cir. 1979).
142
Ghegan & Ghegan, Inc. v. Weiss, 338 Ark. 9, 991 S.W.2d 536 (1999).
143
Tobe v. City of Santa Ana, 9 Cal. 4th 1069, 40 Cal. Rptr.2d 402, 892 P.2d 1145 (1995).
144
Tobe v. City of Santa Ana, 9 Cal. 4th 1069, 40 Cal. Rptr.2d 402, 892 P.2d 1145 (1995).
145
City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67, 72 A.L.R.5th 665 (1999).
146
Thalheim v. Town of Greenwich, 256 Conn. 628, 775 A.2d 947 (2001) [Vagueness: To be vague in all of its applications,
and thus unconstitutionally vague on its face under due process clause, a statute must necessarilky be vague as to the litigant;
hence, if the statute is not vague as to the litigant, a due process challenge must necessarily fail, as a person who engages in
some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.]
147
People v. Morgan, 203 Ill.2d 470, 272 Ill. Dec. 160, 786 N.E.2d 994 (2003).
148
State v. Dalton, 674 N.W.2d. 111 (Iowa 2004).
66
(3). The Constitution of the United States of America: Analysis and

Interpretation of Cases Decided by the Supreme Court of the United States to
June 28, 2002
Article III
Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies (pp. 690-691)
Constitutional Standards: Injury in Fact, Causation, and Redressability.—
While the Court has been inconsistent, it has now settled upon the rule that, “at an irreducible
minimum,” the constitutional requisites under Article III for the existence of standing are that the
plaintiff must personally have suffered some actual or threatened injury that can fairly be traced
to the challenged action of the defendant, and that the injury is likely to be redressed by a
favorable decision. 149
For some time, injury alone was not sufficient; rather, the injury had to be “a wrong which
directly results in the violation of a legal right,”150 that is, “one of property, one arising out of
contract, one protected against tortious invasion, or one founded in a statute which confers a
privilege.”151 The problem was that the “legal right” language was “demonstrably circular: if the
plaintiff is given standing to assert his claims, his interest is legally protected; if he is denied
standing, his interest is not legally protected.”152 The observable tendency of the Court, however,
was to find standing frequently in cases distinctly not grounded in property rights.153
In any event, the “legal rights” language has now been dispensed with. Rejection occurred in two
administrative law cases in which the Court announced that parties had standing when they
suffered “injury in fact” to some interest, “economic or otherwise,” that is arguably within the
zone of interest to be protected or regulated by the statute or constitutional provision in
149
Valley Forge Christian College v. Americans United, 454 U.S. 464, 472 (1982); Allen v. Wright, 468 U.S. 737, 751
(1984); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). See, however, United States Parole Comm’n v.
Geraghty, 445 U.S. 388 (1980), a class action case, in which the majority opinion appears to reduce the significance of the
personal stake requirement. Id. at 404 n.11, reserving full consideration of the dissent’s argument at 401 n.1, 420-21.
150
Alabama Power Co. v. Ickes, 302 U.S. 464, 479 (1938). Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S.
123, 151-152 (1951) (Justice Frankfurter concurring). But see Frost v. Corporation Comm’n, 278 U.S. 515 (1929); City of
Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958).
151
Tennessee Power Co. v. TVA, 306 U.S. 118, 137-138 (1939).
152
C. Wright, HANDBOOK OF THE LAW OF FEDERAL COURTS at 65-66 (4th ed. 1983).
153
E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) (indirect injury to organization and members
by governmental maintenance of list of subversive organizations); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)
(same); Abington School Dist. v. Schempp, 374 U.S. 203, 224 n. 9 (1963) (parents and school children challenging school
prayers); McGowan v. Maryland, 366 U.S. 420, 430-431 (1961) (merchants challenging Sunday closing laws); Baker v.
Carr, 369 U.S. 186, 204-208 (1962) (voting rights).
67 PRELIMINARIES
PART 2. THE
question. 154 Now political, 155 environmental, aesthetic, and social interests, when impaired,
afford a basis for making constitutional attacks upon governmental action.156
...
pp.693
Of increasing importance are the second and third elements of standing, causation and
redressability, recently developed and held to be of constitutional requisite. There must be a
causal connection between the injury and the conduct complained of; that is, the Court insists that
the plaintiff show that “but for” the action, she would not have been injured. And the Court has
insisted that there must be a “substantial likelihood” that the relief sought from the court if
granted would remedy the harm. 157 371
pp. 703-705
Standing to Challenge Lawfulness of Governmental Action.—
Standing to sue on statutory or other non-constitutional grounds has a constitutional content to the
degree that Article III requires a “case” or “controversy,” necessitating a litigant who has sustained
or will sustain an injury so that he will be moved to present the issue “in an adversary context and
in a form historically viewed as capable of judicial resolution.”158 Liberalization of the law of
standing in this field has been notable. The “old law” required that in order to sue to contest the
lawfulness of agency administrative action, one must have suffered a “legal wrong,” that is, “the
right invaded must be a legal right,”159 requiring some resolution of the merits preliminarily. An
injury-in-fact was insufficient.
154
Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). The “zone
of interest” test is a prudential rather than constitutional standard. The Court sometimes uses language characteristic of the
language. Thus, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), the Court refers to injury in fact as “an invasion
of a legally-protected interest,” but in context, here and in the cases cited, it is clear the reference is to any interest that the
Court finds protectable under the Constitution, statutes, or regulations.
155
Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999).
156
E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871, 885
(1991); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72-74 (1978); Village of Arlington Heights v.
Metropolitan Housing Dev. Corp., 429 U.S. 252, 261-263 (1977); Singleton v. Wulff, 428 U.S. 106, 112-113 (1976); Warth v.
Seldin, 422 U.S. 490, 498-499 (1975); O’Shea v. Littleton, 414 U.S. 488, 493-494 (1974); Linda R.S. v. Richard D., 410 U.S.
614, 617-618 (1973).
157
Lujan v. Defenders of Wildlife, 504 U.S. 555, 595 (1992); Allen v. Wright, 468 U.S. 737, 751 (1984). See also ASARCO
Inc. v. Kadish, 490 U.S. 605, 612-617 (1989) (plurality opinion). Although the two tests were initially articulated as two
facets of a single requirement, the Court now insists they are separate inquiries. Id. at 753 n. 19. To the extent there is a
difference, it is that the former examines a causal connection between the assertedly unlawful conduct and the alleged injury,
whereas the latter examines the causal connection between the alleged injury and the judicial relief requested. Id. In Steel Co.
v. Citizens for a Better Environment, 523 U.S. 83 (1998), the Court denied standing because of the absence of redressability.
An environmental group sued the company for failing to file timely reports required by statute; by the time the complaint was
filed, the company was in full compliance. Acknowledging that the entity had suffered injury in fact, the Court found that no
judicial action would afford it a remedy.
158
Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 151-152 (1970), citing Flast v. Cohen, 392 U.S. 83, 101
(1968). “But where a dispute is otherwise justiciable, the question whether the litigant is a ‘proper party to request an
adjudication of a particular issue,’ [quoting Flast, supra, 100], is one within the power of Congress to determine.” Sierra
Club v. Morton, 405 U.S. 727, 732 n.3 (1972).
159
Tennessee Power Co. v. TVA, 306 U.S. 118, 137-138 (1939). See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938);
Perkins v. Lukens Steel Co., 310 U.S. 113 (1940).
68
A “legal right” could be established in one of two ways. It could be a common-law right, such
that if the injury were administered by a private party, one could sue on it;160 or it could be a
right created by the Constitution or a statute.161 The statutory right most relied on was the judicial
review section of the Administrative Procedure Act, which provided that “[a] person suffering
legal wrong because of agency action, or adversely affected or aggrieved by agency action within
the meaning of a relevant statute, is entitled to judicial review thereof.”162 Early decisions under
this statute interpreted the language as adopting the “legal interest” and “legal wrong” standard
then prevailing as constitutional requirements of standing, which generally had the effect of
limiting the type of injury cognizable in federal court to economic ones.163
In 1970, however, the Court promulgated a two-pronged standing test: if the litigant (1) has
suffered injury-in-fact and if he (2) shows that the interest he seeks to protect is arguably within
the zone of interests to be protected or regulated by the statutory guarantee in question, he has
standing. 164 Of even greater importance was the expansion of the nature of the cognizable injury
beyond economic injury, to encompass “aesthetic, conservational, and recreational” interests as
well.165 “Aesthetic and environmental wellbeing, like economic well-being, are important
160
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). This was
apparently the point of the definition of “legal right” as “one of property, one arising out of contract, one protected against
tortious invasion, or one founded on a statute which confers a privilege.” Tennessee Power Co. v. TVA, 306 U.S. 118, 137-
138 (1939).
161
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). The Court
approached this concept in two interrelated ways. (1) It might be that a plaintiff had an interest that it was one of the purposes
of the statute in question to protect in some degree. Chicago Junction Case, 264 U.S. 258 (1924); Alexander Sprunt & Son v.
United States, 281 U.S. 249 (1930); Alton R.R. v. United States, 315 U.S. 15 (1942). Thus, in Hardin v. Kentucky Utilities
Co., 390 U.S. 1 (1968), a private utility was held to have standing to contest allegedly illegal competition by TVA on the
ground that the statute was meant to give private utilities some protection from certain forms of TVA competition. (2) It
might be that a plaintiff was a “person aggrieved” within the terms of a judicial review section of an administrative or
regulatory statute. Injury to an economic interest was sufficient to “aggrieve” a litigant. FCC v. Sanders Brothers Radio
Station, 309 U.S. 470 (1940); Associated Industries v. Ickes, 134 F.2d 694 (2d Cir.), cert. dismd. as moot, 320 U.S. 707
(1943).
162
5 U.S.C. § 702. See also 47 U.S.C. § 202(b)(6) (FCC); 15 U.S.C. § 77i(a) (SEC); 16 U.S.C. § 825a(b) (FPC).
163
FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 477 (1940); City of Chicago v. Atchison, T. & S.F. Ry. Co., 357
U.S. 77, 83 (1958); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 7 (1968).
164
Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). Justices
Brennan and White argued that only injuryin- fact should be requisite for standing. Id. at 167. In Clarke v. Securities Industry
Ass’n, 479 U.S. 388 (1987), the Court applied a liberalized zone-of-interest test. But see Lujan v. National Wildlife
Federation, 497 U.S. 871, 885-889 (1990); Air Courier Conf. v. American Postal Workers Union, 498 U.S. 517 (1991). In
applying these standards, the Court, once it determined that the litigant’s interests were “arguably protected” by the statute in
question, proceeded to the merits without thereafter pausing to inquire whether in fact the interests asserted were among
those protected. Arnold Tours v. Camp, 400 U.S. 45 (1970); Investment Company Institute v. Camp, 401 U.S. 617 (1971);
Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 320 n. 3 (1977). Almost contemporaneously, the Court also
liberalized the ripeness requirement in review of administrative actions. Gardner v. Toilet Goods Ass’n, 387 U.S. 167 (1967);
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). See also National Credit Union Administration v. First National Bank
& Trust Co., 522 U.S. 479 (1998), in which the Court found that a bank had standing to challenge an agency ruling
expanding the role of employer credit unions to include multi-employer credit unions, despite a statutory limit that any such
union could be of groups having a common bond of occupation or association. The Court held that a plaintiff did not have to
show it was the congressional purpose to protect its interests. It is sufficient if the interest asserted is “arguably within the
zone of interests to be protected . . . by the statute.” Id. at 492 (internal quotation marks and citation omitted). But the Court
divided 5-to-4 in applying the test. And see Bennett v. Spear, 520 U.S. 154 (1997).
165
Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 154 (1970).
69 PRELIMINARIES
PART 2. THE
ingredients of the quality of life in our society, and the fact that particular environmental interests
are shared by the many rather than the few does not make them less deserving of legal protection
through the judicial process.”166
pp. 706
The Requirement of a Real Interest
Almost inseparable from the requirements of adverse parties and substantial enough interests to
confer standing is the requirement that a real issue be presented, as contrasted with speculative,
abstract, hypothetical, or moot issues. It has long been the Court’s “considered practice not to
decide abstract, hypothetical or contingent questions.”167
(4). Standing to Sue: U.S. ATTORNEY’S MANUAL, Title 4: Civil Resource
Manual § 35:
The “case or controversy” clause of Article III of the Constitution imposes a minimal
constitutional standing requirement on all litigants attempting to bring suit in federal court. In
order to invoke the court’s jurisdiction, the plaintiff must demonstrate, at an “irreducible
minimum,” that:
(1) he/she has suffered a distinct and palpable injury as a result of the putatively
illegal conduct of the defendant;
(2) the injury is fairly traceable to the challenged conduct; and
(3) it is likely to be redressed if the requested relief is granted.
See Valley Forge Christian College v. Americans United for Separation of Church and State,
Inc., 454 U.S. 464, 472 (1982); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99
(1979); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37 (1976).
“In order to have standing to sue under RICO civil liability provisions, plaintiff must show a
violation of RICO, injury to business or property, and causation of the injury by the violation.”
Heckt v. Commerce Clearing House, Inc., C.A.2(N.Y.) 1990, 897 F.2D 21, 100A.L.R. Fed. 655.
“The strongest evidence that the Takings Clause [of the Fifth Amendment] originally was
intended to cover regulatory takings are the Framers’ strong leanings in favor of protection for
property rights, James Madison’s post-ratification statements, and the just compensation
philosophy contained in the writings of Blackstone, Locke, and Grotius. Although Madison’s
statements do not carry the same weight as pre-ratification commentary, they should carry some
weight because of Madison’s role in drafting the Takings Clause and the fact that he published
the Property essay so shortly after ratification. Madison’s view supports the jurisprudential
position taken by Grotius and Blackstone and clearly extends the Takings Clause to non-physical
takings.” Andrew S. Gold, Regulatory Takings and Original Intent: the Direct, Physical Takings
Thesis “Goes Too Far,” 49 Am. U.l. Rev. 181, 241 (1999).
166
Sierra Club v. Morton, 405 U.S. 727, 734 (1972), Moreover, said the Court, once a person establishes that he has standing
to seek judicial review of an action because of particularized injury to him, he may argue the public interest as a
“representative of the public interest,” as a “private attorney general,” so that he may contest not only the action which
injures him but the entire complex of actions of which his injury-inducing action is a part. Id. at 737-738, noting Scripps-
Howard Radio v. FCC, 316 U.S. 4 (1942); FCC v. Sanders Brothers Radio Station, 309 U.S. (1940). See also Gladstone
Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. (1979); Havens Realty Corp. v. Coleman, 455 U.S. 363, 376 n.16 (1982)
(noting ability of such party to represent interests of third parties).
167
Alabama State Fed’n of Labor v. McAdory, 325 U.S. 450, 461 (1945).
70
Plaintiff, Don Hamrick, is a United States citizen and a U.S. Merchant Seaman, (a.k.a. Able Seaman for
purposes of the U.S. Code). Plaintiff Don Hamrick reported aboard a U.S. government vessel as a new crew
member. He was required to attend a small arms recertification course as a job-related requirement for the
position of Able Seaman aboard that ship. Upon successful completion of that small arms training Plaintiff Don
Hamrick applied to the U.S. Coast Guard to have that extra training recognized by the Coast Guard in the form of
an endorsement on his Merchant Mariner’s Document to read “National Open Carry Handgun” in accordance
with 46 U.S.C. § 7306(a)(3), General Requirements and Classifications for Able Seamen Is Qualified
Professionally as Demonstrated by an Applicable Examination or Educational Requirements. The Coast Guard
denied that application with their final agency action denial under 46 C.F.R. § 1.03-15(j). Plaintiff initiated of
federal civil rights case on Second Amendment grounds at the U.S. District Court for DC.
L. Standing to Sue for the Civil Rights, Constitutional Rights, and Human Rights of
Third Parties (i.e., the Unorganized Militia, 10 U.S.C. § 311(b)(2)), under the Jus
Tertii Doctrine
(1). 16 CORPUS JURUS SECUNDUM § 116 Exceptions to Prohibition of Assertion

of Rights of Third Parties
Under certain conditions, the rights of third parties may be asserted by one who challenges the constitutionality
of legislation or other governmental action.
Application of the constitutional standing requirement is not a mechanical exercise.168 The rule that a person may
not question the constitutionality of a statute or governmental action as it applies to others is subject to
exceptions,169 and the court may allow representation of the rights of others where there is a need to protect their
rights,170 or where the cases presents issues of great public importance.171
Concern that rights are most effectively asserted by those owning them is sufficiently eased to allow surrogate
standing where there are circumstantial assurances of a litigant’s effective advocacy of third-party rights.172 Such
assaurances are provided where the relationship between a state-enforced measure, injury to the litigant, and
purpose or effect of the measure challenged naturally compel the litigant to fully and aggressively assert third
persons’ constitutional claims. 173
The “jus tertii” doctrine174 provides standing to a litigant who argues that a single application of a statute injures
him or her and impinges on the constitutional rights of a third person. 175 The application of the doctrine generally
168
Pennell v. City of San Jose, 485 U.S. 1, 108 s.Ct. 849, 99 L.Ed.2d 1 (1988).
169
Tobacco Road v. City of Novi, 490 F.Supp. 537 (E.D. Mich.) 1979).
170
Bell & Howell Co. N.L.R.B., 598 F.2d 136 (D.C. Cir. 1979).
171
Baca v. New Mexico Dept. of Public Safety, 2002-NMSC-017, 132 N.M. 282, 47 P.3d 441 (2002).
172
Nicholson v. Board of Educ. Torrance Unified School Dist., 682 F.2d 858, 5 Ed. Law Rep. 733 (9th Cir. 1982).
173
Deerfield Medical Center v. City of Deerfield Breach, 661 F.2d 328 (5th Cir. 1981); Lepelletier v. F.D.IC., 164 f.3D 37
(D.C. Cir. 1999).
174
The doctrine of jus tertii states that “a litigant must assert his or her own legal rights and interests, and cannot rest a claim
to relief on the legal rights or interests of third parties,” but that litigants may bring actions on behalf of third parties if the
litigant has suffered an injury in fact, bears a close relation to the third parties, and the third parties are somehow hindered in
their ability to protect their own interests.” Tesmer v. Granholm, 114 F.Supp.2d 603 at 608 (citing Powers v. Ohio, 499 U.S.
400, 410-411 (1991)).
71 PRELIMINARIES
PART 2. THE
depends on the presence of some substantial relationship between the claimant and the third party,176 the third
party’s inability otherwise to assert or effectively preserve his or her rights,177 and the need to avoid dilution of
those rights that would otherwise result.178 The claimant must demonstrate that he or she has suffered a concrete,
redessable injury,179 and that he or she is very nearly as effective a proponent of the right as the third person
would be. 180 The doctrine also applies where the rights of the third party would be diluted and adversely affected
if the constitutional challenge brought by a litigant on his or her behalf should fail and the statute remain in
force. 181
(2) The Third Circuit & Just Tertii (for the Rights of Third Parties)
Citing from Michael A. Frattone, THIRD CIRCUIT SETS FORTH BALANCING TEST FOR EVALUATING JUS
TERTII STANDING IN F IRST AMENDMENT CONTEXT [OF] AMATO V. WILENTZ (1991), 38 Villanova Law Review
1117 (1993)
The series of modern cases specifically establishing jus tertii standing as a distinct legal principle
began with Barrows v. Jackson in 1953.182 In Barrows, the Court permitted a white vendor to
assert the rights of a black vendee as a defense in a suit charging the vendor with breach of a
[1122] racially restrictive covenant.183 Barrows was the first case in which the Supreme Court
expressly recognized a litigant’s standing to assert the constitutional rights of third parties.184 The
Barrows court stated that “under the peculiar circumstances ... the reasons which underlie the rule
denying standing to raise another’s rights ... are outweighed by the need to protect the
fundamental rights which would be denied.”185 Since the Barrows decision, the Supreme Court
has consistently recognized jus tertii standing to be appropriate when the policies underlying the
restrictions on such standing are not furthered.186
175
People v. Rocha, 110 Mich. App. 1, 312 N.W.2d. 657 (1981).
176
Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 s.Ct. 2077, 114 L.Ed.2d 660 (1991); Connection Distributing
Co. v. Reno, 154 F.3d 281, 1998 Fed. App. 0249P (6th Cir. 1998). [Inextricably bound up: General rule that person may not
assert constitutional rights of others does not apply where relationship between litigant and third person is such that
enjoyment of third person’s rights is inextricably bound up with activity litigant wishes to address.]
177
Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 s.Ct. 2077, 114 L.Ed.2d 660 (1991); Connection Distributing
Co. v. Reno, 154 F.3d 281, 1998 Fed. App. 0249P (6th Cir. 1998).
178
Id.
179
Id.
180
Callahan v. Woods, 658 F.2d 679 (9th Cir. 1981).
181
Carey v. Population Services, Intern., 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977).
182
346 U.S. 249 (1953).
183
Id. at 257 (stating that “the reasons which underlie our rule denying standing to raise another’s rights ... are outweighed by
the need to protect the fundamental rights which would be denied”).
184
Id. at 255-59.
185
Id. at 257.
186
See, e.g., Secretary of State of Maryland v. Munson, 467 U.S. 947, 956 (1984). The Munson Court recognized that in
“situations where competing considerations outweigh any prudential rationale against third-party standing ... the Supreme
Court has relaxed the prudential-standing limitation.” Id. Specifically, the Court noted that “where practical obstacles prevent
a party from asserting rights on behalf of itself, for example, the Court has recognized the doctrine of jus tertii standing.” Id.;
see United States Dept. Labor v. Triplett, 494 U.S. 715, 721 (1990) (holding attorney had jus tertii standing to bring action
based on client who was deprived of legal representation, due to obstacles preventing client from asserting his own rights);
Singleton v. Wulff, 428 U.S. 106, 114-15 (1976) (holding physicians had third party standing to raise claims of patients who
72
Supreme Court decisions addressing the appropriateness of jus tertii standing have provided
federal courts with guidance in determining the relevant factors for evaluating jus tertii
standing. 187
First, the litigant must have suffered a concrete, redressable injury in fact.188
Second, the court must consider whether prudential considerations should prevent the plaintiff
from advancing the claim. 189
In assessing prudential considerations, the court must examine the following three factors:
(1) the relationship between the litigant and the third party;
(2) the ability of the third party to advance his own interests; and
(3) the impact of potential litigation by the third party.190
The Supreme Court has, however, left undecided the issue of the exact role these three factors
play in evaluating jus tertii standing. 191 In some cases, the Court appears to take the position that
none of the factors are actual prerequisites to standing, and that these factors must instead be
balanced.192 In other decisions, however, the Court appears to require that third party claimants
were denied medical funding for abortions based on obstacles precluding patients from asserting own rights, while
recognizing that the rule against third party standing “should not be applied where its underlying justifications are absent”);
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958) (holding that nexus of association was sufficient to give
NAACP jus tertii standing to assert constitutional rights of its members).
There are also numerous examples where jus tertii standing is permitted in order to avoid chilling expression in the First
Amendment contexts. See, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 756
(1976) (holding that prudential rationale against third party standing was outweighed by society’s interest in protecting free
speech and expression).
187
See Robert Allen Sedler, STANDING TO ASSERT CONSTITUTIONAL JUS TERTII IN THE SUPREME COURT, 71 Yale L.J. 599, 600
at 626-28 (1962). This commentator notes that federal courts most often assess: 1) the interest of the third party asserting jus
tertii standing; 2) the nature of the right asserted; 3) the relationship between the party asserting standing and the
rightholders; and 4) the feasibility of the rightholders asserting their own rights in an independent action. Id.; see Note,
STANDING TO ASSERT CONSTITUTIONAL JUS TERTII, 88 Harv. L. Rev. 423, at 425 (1974).
188
See Caplin & Drysdale v. United States, 491 U.S. 617, 623 n.3 (1989). If the plaintiff can allege sufficient concrete injury,
the Article III case-and-controversy requirement is satisfied. Id.
189
Id.
190
Id. at 623-24 n.3.
191
See Eisenstadt v. Baird, 405 U.S. 438, 443-46 (1972) (balancing variety of factors but failing to indicate their relative
weight); Griswold v. Connecticut, 381 U.S. 479, 481 (1965)(same).
192
See, e.g., Caplin & Drysdale, 491 U.S. at 623 n.3. The Caplin Court held that a lawyer had third party standing to raise
the Sixth Amendment rights of his client when challenging a statute that might have inhibited the client from paying his
attorney’s fees. Id. at 623 n.3, 624. The Court adopted a balancing approach and concluded that even though a criminal
defendant suffers no serious obstacles to advancing his or her own claim, the other two factors weighed strongly enough to
impart standing to the attorney. Id. at 624.
The Court has similarly held that the obstacle requirement is not necessary in First Amendment overbreadth cases. See
Secretary of State of Maryland v. Munson, 467 U.S. 947, 957 (1984) (“Although failure to show an obstacle might defeat a
party’s standing outside the First Amendment context, this Court has not found the argument dispositive in determining
whether standing exists to challenge a statute that allegedly chills free speech.”); see also Virginia v. American Booksellers
73 PRELIMINARIES
PART 2. THE
meet each of the three factors before it will allow jus tertii standing.193 Against the background of
this equivocal Supreme Court precedent, the Third Circuit arranged the prudential limitation
factors into a cohesive framework for evaluating jus tertii standing questions in Amato v.
Wilentz.194
(3). General Principles of Third Party (Jus Tertii) Standing in Amato v.
Wilentz 952 F.2d 742; 1991 U.S. App. LEXIS 30138 (1991),
B. General Principles of Third Party Standing
The longstanding basic rule of third party standing is that “in the ordinary course, a litigant must
assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights
or interests of third parties.” Powers v Ohio, 113 L. Ed. 2d 411, 111 S Ct 1364, 1370 (1991). The
rule serves at least two judicial purposes. First, the rule fosters judicial restraint: courts faced with
unsettled questions avoid pronouncements that are perhaps unnecessary and undesirable because
the rightholders do not wish to assert their rights. See Secretary of State of Maryland v Munson,
467 U.S. 947, 955, 104 S Ct 2839, 81 L. Ed. 2d 786 (1984); Singleton v Wulff, 428 U.S. 106, 113-
14, 96 S Ct 2868, 49 L. Ed. 2d 826 (1976) (plurality opinion). Second, the rule assures concrete,
sharp presentation of the issues and enables courts to avoid ruling on abstract grievances.
Generally, the third party will be the best advocate of its own position, and the plaintiff may place
a slightly different, self-interested “spin” on its presentation. See Munson, 467 U.S. at 955;
Singleton, 428 U.S. at 114.
The general rule against third party standing is not ironclad, however. The rule does not reflect an
Article III “Case or Controversy” requirement, but stems from prudential concerns. See, for
example, Caplin & Drysdale, Chartered v United States, 491 U.S. 617, 623 n. 3, 109 S Ct 2646,
105 L. Ed. 2d 528 (1989); Hodel v Irving, 481 U.S. 704, 711; 107 S. Ct. 2076 , 95 L. Ed. 2d 668
(1987); Craig v Boren, 429 U.S. 190, 193, 97 S Ct 451, 50 L. Ed. 2d 397 (1976). Accordingly, in
limited circumstances where the policies supporting the general rule are not served, the Supreme
Court has approved third party standing. See Singleton, 428 U.S. at 114-15. Where rightholders
are unable to raise their own rights and their relationship with the plaintiff suggests an identity of
interests, courts can be more certain that the litigation is necessary and that the issues will be
framed clearly and effectively. See id at 114-16. Moreover, other policy considerations, notably
the fear of chilling expression in First Amendment cases, may at times outweigh the policies
behind the general rule against third party standing. See, for example, Munson, 467 U.S. at
956-60.
The Supreme Court has thus recognized the dangers inherent in third party standing, yet has also
recognized that third party standing may at times be appropriate. While the Justices have
frequently disagreed on the proper outcomes in third party standing cases, the Court’s opinions do
give federal courts rather clear guidance on what factors are relevant in determining whether to
make an exception to the general rule. Where a plaintiff asserting third party standing has
suffered concrete, redressable injury (that is, the plaintiff has Article III standing), federal courts
are to examine at least three additional factual elements before allowing the suit to proceed.
Ass’n, 484 U.S. 383, 392-93 (1988) (holding that no inquiry into potential obstacles to suit needed in granting standing to
booksellers to raise purchasers’ First Amendment rights).
193
See Powers v. Ohio, 111 S. Ct. 1364, 1370-71 (1991) (stating that “we have recognized the right of litigants to bring
actions on behalf of third parties, provided three important criteria are satisfied” in upholding standing of litigant to raise
Equal Protection claims of jurors preemptorily challenged on racial grounds).
194
952 F.2d 742 (3d Cir. 1991).
74
Caplin & Drysdale, 491 U.S. at 623 n. 3. First, the court must examine the relationship between
the plaintiff and the third party whose rights are asserted; second, the court must consider the
ability of the third party to advance its own rights -- whether some obstacle impedes the
rightholder’s own suit; and third, the court must inquire into the impact on third party interests --
whether the plaintiff and the third party have consistent interests. Id.
The Supreme Court has been less clear, however, about what to do with these factors. Its
jurisprudence contains seemingly inconsistent strains about whether the factors, especially the
“obstacle” factor, are in fact prerequisites to third party standing, or whether courts are instead to
balance them. In some cases, the Court has explicitly or implicitly held that an obstacle to the
rightholder’s suit is not an absolute requirement for third party standing. In Caplin & Drysdale,
for example, the Court held that a lawyer had third party standing to raise the Sixth Amendment
rights of a client when challenging a statute that might have inhibited the client from paying his
attorneys’ fees. The Court concluded that even though a criminal defendant suffers no serious
obstacles to advancing his or her own claim, the other two factors weighed strongly enough that
the lawyer had standing. Id. Similarly, the Court has held that in First Amendment overbreadth
challenges, the danger of chilling expression is so important that the showing of an obstacle is not
required. Munson, 467 U.S. at 957 (“Although [failure to show an obstacle] might defeat a party’s
standing outside the First Amendment context, this Court has not found the argument dispositive
in determining whether standing exists to challenge a statute that allegedly chills free speech.”).
See also Virginia v American Booksellers Ass’n, 484 U.S. 383, 392-93, 108 S Ct 636, 98 L. Ed.
2d 782 (1988) (no inquiry into obstacle in summarily upholding booksellers’ standing to raise
bookbuyers’ First Amendment rights in facial challenge to statute).
On the other hand, in Powers v Ohio, which upheld the standing of a litigant to raise the Equal
Protection claims of jurors peremptorily challenged due to their race, the Court’s language
seemed to require certain showings from would-be third party claimants:
We have recognized the right of litigants to bring actions on behalf of third parties, provided three
important criteria are satisfied: the litigant must have suffered an “injury in fact,” thus giving him
or her a “sufficiently concrete interest” in the outcome of the issue in dispute . . .; the litigant must
have a close relation to the third party . . .; and there must exist some hindrance to the third
party’s ability to protect his or her own interests. . . .
111 S Ct at 1370-71 (citations omitted).195 Despite this language, however, we very much doubt
that the Court in Powers intended silently to overrule its standing holdings in cases such as Caplin
& Drysdale, Munson, and American Booksellers, especially in a case where it in fact allowed
third party standing. Rather, the discussion in Powers may merely reflect that where, as in
Powers, all three conditions exist, the Court will recognize third party standing.
Furthermore, the Caplin & Drysdale balancing approach has the virtue of incorporating the
strength of the showings on each factor. For example, obstacles to suit do not come in one size.
Even if an obstacle to the third party’s suit exists, surely the severity of the hindrance is relevant.
Similarly, the extent of potential conflicts of interests between the plaintiff and the third party
whose rights are asserted matters a good deal. While it may be that standing need not be denied
because of a slight, essentially theoretical conflict of interest, we have held that genuine conflicts
strongly counsel against third party standing. See Polaroid Corp. v Disney, 862 F2d 987, 1000
(3d Cir 1988).
195
In this section of Powers, the Court did not specifically mention the third Caplin & Drysdale prong (effect on third parties’
interests), but the opinion’s later discussion of the relationship prong incorporated it. Below we will follow the same
approach of combining these closely linked factors.
75 PRELIMINARIES
PART 2. THE
In short, we read the body of Supreme Court precedent as (1) identifying factors that are relevant
to determining third party standing and (2) rendering an overall balance of factors dispositive.196 8
Moreover, we do not read the list of factors in Powers and Caplin & Drysdale as exhaustive; in
some cases, other factors may also be relevant to the ultimate prudential decision. For example,
the Supreme Court has considered First Amendment cases different (or at least courts must
balance differently) because of the overarching fear of chilling expression. We too will consider
the potential chilling in this case, even though Essex County’s claim is not a conventional one of
statutory overbreadth. Another factor we believe that the Court would deem relevant is whether
hearing a suit between state governmental units may conflict with federal courts’ traditional
federalism concerns about interfering with essentially state matters. We will therefore address
that consideration also. All the while we will bear in mind that third party standing is exceptional:
the burden is on the County to establish that it has third party standing, not on the defendant to
rebut a presumption of third party standing.
(4) Third Party (Jus Tertii) Standing as Applied to the Plaintiff’s Case
(a). First, the litigant must have suffered a concrete, redressable injury in fact.
My claims and the exhibits provide enough information to sustain concrete, redressable injuries in fact.
(b). Second, the court must consider whether prudential considerations should prevent the plaintiff from
advancing the claim.
Biased and prejudicial prudential considerations has already cost the me six years of federal litigation
from advancing my claims.
(i). In assessing prudential considerations, the court must examine the following three factors:
(A). The relationship between the litigant and the third party;
The third party is the law-abiding American people whether or not they are the unorganized militia under
10 U.S.C. § 311(b)(2). The unorganized militia under 10 U.S.C. § 311(b)(2) is also a third party as a subset of the
American people.
(B). The ability of the third party to advance his own interests;197
There is a substantial number of the American people who are not aware of their full rights under the
196
Our decision to apply the more flexible balancing approach may conflict with the apparent requirement of a showing of an
obstacle in Frissell v Rizzo, 597 F2d 840, 848 (3d Cir 1979). Even in Frissell, however, we acknowledged exceptions to that
rule. We noted (and distinguished) cases such as Craig v Boren, where vendors of 3.2% beer were held to have standing to
assert the equal protection rights of 18-to-21-year-old men not allowed to purchase that beer -- despite no substantial obstacle
to the men’s own suit. See 597 F2d at 848 n.7. The County claims that as a would-be licensor asserting its licensee’s rights, it
escapes the general dictate in Frissell. At all events, we agree with the County that subsequent Supreme Court cases such as
Munson, Caplin & Drysdale, and Powers, have superseded Frissell’s analysis on this point. For the same reason, we are not
bound by the statement in Bowman v Wilson, 672 F2d 1145, 1152-53 (3d Cir 1982), that showings of an obstacle and of a
close relationship are requirements for third party standing.
197
Citing Kowalski v. Tesmer 543 U.S. 125 (2004), 333 F.3d 683:
In Caplin & Drysdale, the Court even permitted jus tertii standing where not all of the factors were met (“The second of
these three factors counsels against review here . . . We think the first and third factors, however, clearly weigh in petitioner’s
favor. . . . Petitioner therefore satisfies our requirements for jus tertii standing.” 491 US at 624, n 3.).
76
Constitution of the United States and who cannot afford the time or the expense to pursue or preserve their rights
in the federal courts.
(C). The impact of potential litigation by the third party.
If the American people of all 50 States were fully knowledgeable of their Second Amendment rights
under the law of class actions it would create an impact upon the courts far greater than the Microsoft antitrust
case.198 Allowing my case to proceed in vindication of my own injuried rights and those injuried rights of third
parties (i.e., the American people at large in all 50 States) the impact upon of potential litigation will be lessened.
Citing Craig v. Boren, 429 U.S. 190 at 193-194 (1976):

“[O]ur decisions have settled that limitations on a litigant’s assertion of jus tertii are not
constitutionally mandated, but rather stem from a salutary “rule of self-restraint” designed to
minimize unwarranted intervention into controversies where the applicable constitutional
questions are ill-defined199 and speculative. See, e.g., Barrows v. Jackson, 346 U. S. 249, 346 U.
S. 255, 257 (1953); see also Singleton v. Wulff, 428 U. S. 106, 428 U. S. 123-124 (1976)
(POWELL, J., dissenting). These prudential objectives, thought to be enhanced by restrictions on
third-party standing, cannot be furthered here, where the lower court already has entertained the
relevant constitutional challenge and the parties have sought -- or at least have never resisted -- an
authoritative constitutional determination.200 In such circumstances, a decision by us to forgo
consideration of the constitutional merits in order to await the initiation of a new challenge
to the statute by injured third parties would be impermissibly to foster repetitive and time-
consuming litigation under the guise of caution and prudence. 201 Moreover, insofar as the
applicable constitutional questions have been and continue to be presented vigorously and
“cogently,” Holden v. Hardy, 169 U. S. 366, 169 U. S. 397 (1898), the denial of jus tertii
standing in deference to a direct class suit can serve no functional purpose. 202 Our Brother
BLACKMUN’s comment is pertinent:
“[I]t may be that a class could be assembled, whose fluid membership always included some
[males] with live claims. But if the assertion of the right is to be ‘representative’ to such an
extent anyway, there seems little loss in terms of effective advocacy from allowing its
assertion by” the present jus tertii champion. 203 Singleton v. Wulff, supra at 428 U. S. 117-
118.”
198
http://www.usdoj.gov/atr/cases/ms_index.htm
199
Plaintiff’s emphasis. In the present case the constitutional question on the Second Amendment has been sharply and
clearly defined to be an individual right regardless of the militia.
200
The lower federal courts are documented to have resisted an authoritative constitutional determination with various
degress of bias and hostility.
201
Plaintiff’s emphasis.
202
203
Plaintiff’s emphasis. So, what not my case?
77 PRELIMINARIES
PART 2. THE
M. Standing to Sue as a Private Attorney General under the Civil RICO Act
(1). Citing from David F. Herr, ANNOTATED MANUAL FOR COMPLEX LITIGATION,
(Thomson West, 2006 ed., Chapter 35 Civil Rico, pp. 792-793, footnotes
generally omitted)
Congress enacted the 1920 Racketeer Influenced and Corrupt Organizations Act (RICO) to respond to the
“infiltration of organized crime and racketeering into legitimate organizations operating in interstate commerce.”
Congress targeted organized crime through a broad statutory scheme that included severe criminal penalties,
fines, imprisonment, asset forfeiture, and civil remedies in an effort to undermine the economic power of
racketeering organizations. The statute further enabled private individuals to act, in effect, as private attorneys
general204 to sue for injury to their businesses or property caused by a RICO violation.
Civil RICO claims have alleged wrongs actionable under state and common law; as well as other federal
statutes. Although the statute was targeted at organized crime, courts have broadly construed RICO’s provisions,
and its scope has extended well beyond its original aim. Early efforts by lower courts to restrict claims that
appeared to exceed RICO’s original goals were overruled by Supreme Court decisions that broadened the statute’s
reach. RICO claims can now be found in a variety of contexts, including insurance and business disputes,
antiabortion and other protests, consumer financial services litigation family law, and whistle-blower actions.
Although the nontraditional uses of RICO have continued to expand despite significant criticisms by
commentators and the courts, Congress has shown little inclination to narrow the statute’s focus or reach.
(2). Citing Paul A. Batista, CIVIL RICO PRACTICE MANUAL, 2nd Ed. 2006
Cumulative Supplement (Wolters Kluwer Law & Busines,)
§ 6.29 Agencies of the United States as RICO Defendants
In Berger v. Pierce, 933 F.2d 393 (6th Circuit, 1991) ─ which, like the Tenth, has been highly
conservative in its treatment of civil racketeering issues ─ held that a federal agency is not subject
to any civil RICO liability:
Section 1962 states a requirement of “racketeering activity” as a predicate for a civil RICO
action. Section 1961(1), in turn, defines “racketeering activity,” which requires that the defendant
be, variously, “chargeable,” “indictable,” or “punishable” for violations of specific state and
federal criminal provisions. The assertion that the [federal agency] was engaged in RICO
conspiracy under section 1926(d) was patently defective as a matter of law, since it is self-
evidence that a federal agency is not subject to state or [federal] criminal prosecution.
Berger 933 F.2d at 397.
§ 6.30 ─ Individual Federal Officials as RICO Defendants
The automatic immunity accorded to federal agencies from RICO liability does not extend
automatically to individual federal officials. While federal officials may qualify for the absolute
or limited immunity available to them in all types of federal civil litigation, they do not receive
the same underlying protection that federal agencies receive in the RICO context.
This distinction was made clear in Mceily v. United States, 6 F.3d 343, 350 (5th Circuit, 1993) in
which the Fifth Circuit held that the Federal Deposit Insurance Corporation (FDIC), “as a federal
agency, is not chargeable, indictable or punishable for violations of state and federal criminal
204
18 U.S.C. § 1964(c) (West 2003). See Rotella v. Wood, 528 U.S. 549, 557 (2000) (“The object of civil RICO is thus not
merely to compensate victims but to turn them into prosecutors, ‘private attorneys general,’ dedicated to eliminating
racketeering activity.”).
78
provisions.” Id. In contrast, as McNeily stressed, individual FDIC officials could face RICO
liability, since individual federal officials can violate RICO’s predicate acts. Id. See also Brown v.
Nationsbank Corp., 188 F.3d 579, 587 (5th Circuit, 1999) (“McNeily does not support the grant of
immunity to FBI agents”).
N. Pre-Enforcement Standing to Sue

(1). Email from U.S. Marshals Service as Threatening Arrest over Citizen’s Arrest
Warrant is Obstruction of Justice
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Subject: RE: IMMINENT WARNING & NOTICE OF INTENT TO MAKE CITIZEN’S ARRESTS
Date: Tue, 13 May 2008 12:49:25 -0400
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From: “Jessup, William $USMS$” <[email protected]>
To: “Don Hamrick” <[email protected]>
79 PRELIMINARIES
PART 2. THE
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DATE: Tuesday, May 13, 2008 at 12:49 PM
FROM: William Jessup, (USMS) <[email protected]>
TO: Don Hamrick <[email protected]>
SUBJ: RE: IMMINENT WARNING & NOTICE OF INTENT
TO MAKE CITIZEN’S ARRESTS
Don, greetings. I hope all is well with you.
Couple things.
First, the offer is always open if you want to talk – I’m buying lunch or coffee or whatever. Just
let me know. I can come to you if you’re not in town but fairly close to DC.
Second, as has been stated before, any attempt by you to effectuate a “citizen’s arrest” on any
Federal Judicial Officer will result in your arrest and prosecution for crimes under Title 18
of the United States Code, including but not limited to 18 USC § 111.1
Again, I’m available to discuss this with you any time. Feel free to give me a call if and when you’re in
the DC area.
Kindest regards,
-Bill
William Jessup
Senior Inspector
U.S. Marshals Service
U.S. Courthouse
333 Constitution Ave, NW
Washington, DC 20001
202-353-0663 (desk)
202-631-2904 (cell)
Note that William Jessup added 18 U.S.C. § 111, ASSAULTING, RESISTING, OR IMPEDING CERTAIN OFFICERS
OR EMPLOYEES to the previous list of threats of arrest for 18 U.S.C. § 1201 KIDNAPPING, and 18 U.S.C. § 1203
HOSTAGE TAKING because I intend to exercise a common law right of citizen’s arrest for felony EXTORTION UNDER
COLOR OF LAW, 18 U.S.C. § 872 and EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering), 18 U.S.C. §
1951(a) and § 1951(b)(2) in relation to the SEAMEN’S SUIT law, 28 U.S.C. § 1916.
Also note that I directed my letter to officials at the U.S. Department of Justice, superiors to William
Jessup. Note that William Jessup, a subordinate to the Justice Department, took it upon himself to answer my
email in 42 minutes, instead of waiting for the officials at the Justice Department to answer. The Justice
Department might have seen things my way and might have offered up an alternative remedy, i.e., a full refund of
the disputed extortion of filing fees, $1,465 plus interest, which would be entirely satisfactory.
The Justice Department still has the opportunity, in spite of William Jessup usurping the authority of the
Justice Department, to respond to my letter. Again, the caveat, if the Justice Department fail or refuse to answer
my email and mailed letter the burden of remedy will be placed back on my shoulders.
80
In one of my series of brief emailed rebuttals to William Jessup I provided a series of questions and answers for
him to expand on:
QUESTION: Do federal judges have immunity for administrative acts that break federal law?
ANSWER: No. Judges who break the law in their administrative duties can be arrested and
prosecuted.
QUESTION: Do my cases qualify for the filing fee exemption under the Seamen’s Suit law?
ANSWER: Yes. The U.S. District Court for DC and Charlotte, NC accepted my cases without the
filing fees. The DC Circuit, 8th Circuit, the US District Courts for DC and Little Rock
and the US Supreme Court did not. They broke the law.
QUESTION: Did federal law enforcement take my complaint, investigate, and prosecute?
ANSWER: No. The burden of remedy falls back on my shoulders with citizen’s arrest.
QUESTION: Do you accept the above as the basis in fact and law for citizen’s arrest?
ANSWER: ________ ? Provide the basis in law why you answer yes or no.
I did not get a reply from William Jessup answering the above questions.
William Jessup has predictably provided me “Pre-Enforcement Standing to Sue” under Parker v. District
of Columbia, DC Circuit, No. 04-7041, (March 9, 2007), pp. 6-9. One of the FEDERAL QUESTIONS, 28 U.S.C. §
1331, will be whether or not I have a right to make citizen’s arrest of federal judges for felony EXTORTION UNDER
COLOR OF LAW, 18 U.S.C. § 872 and EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering), 18 U.S.C. §
1951(a) and § 1951(b)(2) in relation to the SEAMEN’S SUIT law, 28 U.S.C. § 1916, and whether the burden of
remedy under the Sixth, Seventh, Ninth, and Tenth Amendments, is placed back on the citizen complainant, i.e.,
the right to make citizen’s arrest of federal judges as a remedy of last resort, when “the First Amendment does not
impose any affirmative obligation on the government to listen, to respond,” in light of We the People Foundation,
et al v. United States, et al, U.S. District Court for the District of Columbia, No. 04-1211 (August 31, 2005):
The Supreme Court, however, has held that “the First Amendment does not impose any
affirmative obligation on the government to listen, to respond . . .” See Smith v. Ark. State
Highway Employees, Local 1315, 441 U.S. 463, 465 (1979).
Id. We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No.
04-1211 (August 31, 2005). Affirmed, DC Circuit, No. 05-5359 (May 8, 2007):
81 PRELIMINARIES
PART 2. THE
We need not resolve this debate, however, because we must follow the binding Supreme Court
precedent. See Tenet v. Doe, 544 U.S. 1, 10-11 (2005). And under that precedent, Executive and
Legislative responses to and consideration of petitions are entrusted to the discretion of those
Branches.
Certiorari, denied, January 7, 2008; Petition for Rehearing denied, February 25, 2008.
Parker v. District of Columbia

OPINION, DC Circuit, No. 04-7041, (March 9, 2007), pp. 6-9.
We recognized in Seegars that our analysis in Navegar was in tension with the Supreme Court’s
treatment of a preenforcement challenge to a criminal statute that allegedly threatened
constitutional rights. See id. (citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289
(1979)). In United Farm Workers, the Supreme Court addressed the subject of preenforcement
challenges in general terms:
When the plaintiff has alleged an intention to engage in a course of conduct arguably affected
with a constitutional interest, but proscribed by a statute, and there exists a credible threat of
prosecution thereunder, he “should not be required to await and undergo a criminal prosecution as
the sole means of seeking relief.”
442 U.S. at 298 (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)). The unqualified language of
United Farm Workers would seem to encompass the claims raised by the Seegars plaintiffs, as
well as the appellants here. Appellants’ assertions of Article III standing also find support in the
Supreme Court’s decision in Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988), which
allowed a pre-enforcement challenge to a Virginia statute criminalizing the display of certain
types of sexually explicit material for commercial purposes. In that case, the Court held it
sufficient for plaintiffs to allege “an actual and well-founded fear that the law will be enforced
against them,” id. at 393, without any additional requirement that the challenged statute single out
particular plaintiffs by name.205 In both United Farm Workers and American Booksellers, the
Supreme Court took a far more relaxed stance on preenforcement challenges than Navegar and
Seegars permit. Nevertheless, unless and until this court en banc overrules these recent
precedents, we must be faithful to Seegars just as the majority in Seegars was faithful to Navegar.
Applying Navegar-Seegars to the standing question in this case, we are obliged to look for an
allegation that appellants here have been singled out or uniquely targeted by the D.C. government
for prosecution. No such allegation has been made; with one exception, appellants stand in a
position almost identical to the Seegars plaintiffs. Appellants attempt to distinguish their situation
from that of the Seegars plaintiffs by pointing to “actual” and “specific” threats, Appellants’ Br.
at 21, lodged against appellants by D.C. during the course of the district court litigation. But this
is insufficient. None of the statements cited by appellants expresses a “special priority” for
205
Of course, American Booksellers can be distinguished from Navegar, Seegars, and the present case, on the ground that the
constitutional challenge at issue there implicated the First (as opposed to the Second) Amendment. The American Booksellers
Court was concerned that Virginia’s statute might chill speech without any prosecution ever taking place, 484 U.S. at 393,
thereby creating a wrong without remedy if pre-enforcement standing were denied. But in deciding whether to privilege one
amendment to the U.S. Constitution over another in assessing injury-in-fact, we note the statement of our dissenting
colleague in Seegars: “I know of no hierarchy of Bill of Rights protections that dictates different standing analysis.” 396 F.3d
at 1257 (Sentelle, J., dissenting). The Seegars majority, although it felt constrained by Navegar to reach a different result,
tacitly agreed with Judge Sentelle’s assessment that the injury-in-fact requirement should be applied uniformly over the First
and Second Amendments (and presumably all other constitutionally protected rights). Id. at 1254.
82
preventing these appellants from violating the gun laws, or a particular interest in punishing them
for having done so. Rather, the District appears to be expressing a sentiment ubiquitous among
stable governments the world over, to wit, scofflaws will be punished.
The noteworthy distinction in this case—a distinction mentioned in appellants’ complaint and
pressed by them on appeal—is that appellant Heller has applied for and been denied a registration
certificate to own a handgun, a fact not present in Seegars. The denial of the gun license is
significant; it constitutes an injury independent of the District’s prospective enforcement of its
gun laws, and an injury to which the stringent requirements for pre-enforcement standing under
Navegar and Seegars would not apply. Since D.C. Code § 22-4504 (prohibition against carrying a
pistol without a license) and D.C. Code § 7-2507.02 (disassembly/trigger lock requirement)
would amount to further conditions on the certificate Heller desires, Heller’s standing to pursue
the license denial would subsume these other claims too.
This is not a new proposition. We have consistently treated a license or permit denial pursuant to
a state or federal administrative scheme as an Article III injury. See, e.g., Cassell v. F.C.C., 154
F.3d 478 (D.C. Cir. 1998) (reviewing denial of license application to operate private land mobile
radio service); Wilkett v. I.C.C., 710 F.2d 861 (D.C. Cir. 1983) (reviewing denial of application
for expanded trucking license); see also City of Bedford v. F.E.R.C., 718 F.2d 1164, 1168 (D.C.
Cir. 1983) (describing wrongful denial of a preliminary hydroelectric permit as an injury
warranting review). The interests injured by an adverse licensing determination may be interests
protected at common law, or they may be created by statute. And of course, a licensing decision
can also trench upon constitutionally protected interests, see, e.g., Dist. Intown Props. Ltd. P’ship
v. District of Columbia, 198 F.3d 874 (D.C. Cir. 1999) (reviewing District of Columbia’s denial
of a building permit under the Takings Clause); Berger v. Bd. of Psychologist Exam’rs, 521 F.2d
1056 (D.C. Cir. 1975) (reviewing District of Columbia’s denial of a license to practice
psychology under the Due Process Clause), which will also give rise to Article III injury.
O. Stigmatic Harm and Standing
Citing and adapting Thomas Healy, STIGMATIC HARM AND STANDING, 92 Iowa Law Review 417
(2007) to my case herein. Despite Allen v. Wright 468 U.S. 737 (1984) the Court has never completely ruled out
stigmatic harm as a basis for standing. Citing the Conclusion:
(1). Stigmatizing Trait
A U.S Seaman as an Unrepresented Civil Plaintiff with a civil RICO Act case where the Pro Se Civil
Plaintiff has the authority to act as a Private Attorney General applying the civil RICO Act against the Unied
States Government and against the United Nations in defense of the Second Amendment as a constitutional right
and as an international human right.
(2). Denial of Equal Treatment
Read together, [Allen v. Wright, 468 U.S. 737 (1984) and Heckler v. Mathews, 465 U.S. 728
(1984)] suggest a fairly straightforward rule: a plaintiff who alleges that he was denied equal
treatment can claim standing on the basis of stigmatic harm, while a plaintiff who alleges that
governmental action stigmatizes a group of which he is a member lacks standing unless he
personally was denied equal treatment. [Healy, 432]
[Stigmatic Harm] would give access to the federal courts to plaintiffs who have been denied
access in the past. It also would allow some claims to be heard in federal court that currently
cannot be heard there. . . . when the government does stigmatize a group, members of that group
should have standing to argue that the government’s action is unlawful. If they do not have a
meritorious claim, their cases will be dismissed. But they should not be turned away on the
supposition that their injury is abstract. As I have tried to show, this is not true. Those who are
83 PRELIMINARIES
PART 2. THE
stigmatized by government action are not simply concerned bystanders seeking to vindicate value
interests. They suffer serious and concrete injuries and should therefore have the same standing in
federal court as other plaintiffs alleging concrete harms. [Healy, 488].
Perpetual dismissals of my cases for the last 6 years combined with federal law enforcement agencies
harassing me and my family just because I am exercising my First Amendment right to petition the Government
for redress of grievance and my Seventh Amendment right to a civil jury trial constitutes a denial of equal
treatment under the Rule of Law qualifies my case for standing on the basis of stigmatic harm.
(3). The Experience of the Stigmatized
First, because the stigmatized are marked as less than fully human, they face the “ever-present
possibility” that they will be the targets of prejudice and discrimination. . . . This threat of
discrimination is harmful in itself, producing anxiety and a feeling that one must “be
constantly on guard.” But even more harmful is the actual discrimination experienced by the
stigmatized. Research shows that “members of stigmatized groups are more likely to experience
derision, exclusion, discrimination, and violence than are those who are not stigmatized.” This
discrimination makes it harder for the stigmatized to obtain employment, housing,
education, and to develop lasting relationships with others. In the words of Goffman, “we
exercise varieties of discrimination [against the stigmatized], through which we effectively, if
often unthinkingly, reduce his life chances.” [Healy, 453-454]
The highlight text above directly applies to me as evidenced by my previous lawsuit, Hamrick v.
Hoffman, Crowley, and Seafarers International Union, U.S. District Court for DC, No. 07-1726, dismissed
without prejudiced, but ORDERED to file an Amended Complaint because Judge Rosemary M. Collyer
apparently did not like my own authored political poems I included in the Complaint criticizing the corrupt
federal judiciary and the U.S. Government. The lawsuit resulted from a breach of contract by the shipping
company (Crowley). Crowley waived the pre-employment physical to get be aboard a container ship. But because
I had been at the union clinic just long enough to be my high blood pressure taken and discovered before the
preemployment physical was canceled the clinic notified the shipping company one hour after the ship left for
Europe with me on the ship. Crowley revoked the waiver and imposed blood pressure checks. I refused the blood
pressure checks and light-duty status on the basis of breach of contract. The Master eventually threatened me with
a logging which would involve the U.S. Coast Guard (The Coast Guard as named defendants already has
Department of Transportation Bar Notices from 2004 and 2006 prohibiting me from visiting DOT, FAA, and
USCG buildings in Washington, DC because of my litigious activities over my Second Amendment cases,
another example of stigmatic harm). My employment was terminated on not fit for duty status and I was flown
back to the United States from Europe.
Stigmatization also threatens one’s self-esteem. Research has shown that most stigmatized
individuals are aware that society views them as devalued and tainted. And social scientists have
long maintained that people construct their self-identities, at least in part, on the basis of how
others react to them. Thus, the knowledge that others view them as less than fully human can
undermine the self-esteem of the stigmatized. They may even come to conclude that society is
right—that they are in fact “less worthwhile, deserving, or valuable” than others. As the social
psychologist Gordon Allport once asked rhetorically, “[W]hat would happen to your own
personality if you heard it said over and over again that you were lazy . . . and had inferior
blood”? . . . . [Healy, 454].
Implied in the above section stereotyping others as a class of people of lower standing stems from
ignorance various degrees of sociopathic behavior patterns. I did not pick a litigious fight with the
U.S. Government. In the early 1990s I initiated a course of self-education on the U.S.
Constitution, the Bill of Rights and the Second Amendment because I was indeed ignorant on
constitutional subject matters. In 2002 when I was extremely educated in constitutional law for a
layman an opportunity presented itself to me by shear chance to attend a small arms class as a
84
new Able Seaman aboard a U.S. Government ammunition ship coming out of the shipyard in
Newport News, Virginia. I pass that small arms course. Finding 46 U.S.C. § 7306(a)(3) as the
basis to submit my application to the U.S. Coast Guard for an endorsement on my Merchant
Mariner’s Document for “National Open Carry Handgun.” The Coast Guard denied my
application on the basis that in provided no benefit to marine safety or security and that there
were no federal laws or regulations government my requested endorsement. Rather than rely on
the U.S. Constitution and the Second Amendment as a basis of lawful authority the Coast Guard
officer relied on his own prejudiced judgment thereby providing me with the legal cause of action
for judicial review of a final agency action. From 2002 to the present day my cases have been
treated with such disdain that I grew to feel as though I was nothing more than an annoying fly
buzzing around the courts only to get shooed away with dismissals and most were with prejudice!
So, I believe the federal courts view unrepresented civil plaintiffs as ignorant litigants.
Finally, the stigmatized are usually the targets of negative stereotypes, which can lead to self-
fulfilling prophecies. One example is what social scientists have labeled “stereotype threat.” In
lay terms, stereotype threat exists when the fear of conforming to stereotype creates self-doubt
that interferes with one’s performance. . . . [Healy, 456]
Stereotype threat involves the internalization of negative stereotypes by the stigmatized. Self-
fulfilling prophecies also occur when a negative stereotype influences the way we treat a person
and the person reacts to this treatment with behavior that confirms the stereotype.318 . . . [Healy,
457]
I began this litigious journey in 2002 with an awareness of a corrupt judicial system but naively believed
that I had an iron-clad, open and shut case for Second Amendment rights from a merchant seaman’s point of
view. I had to navigate a sharp learning curve in the Federal Rules of Civil Procedure and Appellate Procedure
and the Rules of the U.S. Supreme Court. The education was thrilling but the obstructions of justice by the federal
bench and bar proved most frustrating. I felt like a typical outcast shunned by social cliques if the federal courts
can be compared to high schools. I took a gamble on my future that I could make a difference for American
seamen as a class of people. So far all I have achieved is what appears to be a coincidental change in the Supreme
Court’s Rule 40.2.
Stigmatic harms are not insurmountable. Many stigmatized individuals develop ways of coping
with their situations. As noted above, they may attribute negative outcomes to the prejudice of
others rather than allow those outcomes to affect their self-esteem. They may also try to
compensate for, or even eliminate, their stigmatizing traits by changing their behaviors or
working harder. . . . But although these strategies can lessen the harms associated with stigma,
they also carry costs. Reflexively blaming negative outcomes on prejudice can prevent one from
understanding other reasons behind those outcomes. Attempting to change behavior can backfire
if those efforts fail, causing one to feel even worse than before. And avoiding situations that
might expose one to ridicule or prejudice limits one’s access to important resources and “severely
circumscribes one’s freedoms.” [Healy 457-458]
In short, stigmatization is a serious injury with harmful consequences. Not all stigmatized people
experience these harms in the same way, and many individuals are able to overcome these harms
and lead happy, fulfilling lives. But for the most part, “[p]eople who are stigmatized tend to
experience more negative outcomes in their work lives and in their personal lives than do the
nonstigmatized.” [Healy, 458]
(4). Questions of Causation and Redressability
It is true that much of the harm experienced by the stigmatized likely would exist even in the
absence of government action. It is also true that we cannot measure precisely the extent to which
government action in a given case contributes to stigmatic harm. But it seems clear that when
85 PRELIMINARIES
PART 2. THE
the government stigmatizes members of a particular group, it exacerbates the harm they
experience. By reinforcing the social belief that those with a particular trait are discredited,
the government adds to the prejudice and discrimination against them, creates additional
threats to their self-esteem, and reaffirms the stereotypes that lead to selffulfilling
prophecies. The government’s role also likely increases the intensity of these harms,
particularly the threat to self-esteem. [Healy, 464].
86
PART 3. THE PURPOSE OF THIS CASE
Part 3. Purpose of this Case
Rule 8(d)(2). Alternative Statements of a Claim.

In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal
on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate
citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state
that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my
claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the
Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law.
My alternative statements of claims are presented in their alternative presentations in the following
Parts of my complaint as shown here to support my primary claims in Part 19:
Part 4. In Defense of Pro Se Civil Litigation
Part 5. Federal Questions Presented (28 U.S.C. § 1331)
Part 6. Plaintiff’s Human Rights Declarations
Part 7. Plaintiff’s Constitutional Rights Declarations
Part 8. Plaintiff’s Religious Rights Declarations
Part 9. Plaintiff’s Maritime Rights Declarations
Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment
Part 11. Challenging the Constitutionality of Summary Judgment
Part 12. Challenging the Final Agency Action of the U.S. Coast Guard
Part 13. Challenging the Federal Court Ruling
Part 14. Challenging Selected Federal Laws
Part 15. Challenging Selected Federal Regulations
Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes
Part 17. Challenging Selected Maritime Conventions and Treaties
Part 18. Racketeering and Treason against the Constitution by Federal Judges
Part 19. The Claims
Part 20. Statement of Proposed Rico Charges (Claims)
Part 21. Petition for Writ of Mandamu (My Demands for Justice)
Part 22. Petition for Writ of Prohibition
Part 23. Petition for Declaratory Judgment
Part 24. Petition for Injunctive Relief
Part 25. Damages
PART 3. THE P87

URPOSE OF THIS CASE
A. John S. Baker, Jr., REVISITING THE EXPLOSIVE GROWTH OF FEDERAL CRIMES, The
Heritage Foundation Legal Memorandum, No. 26, June 16, 2008
REVISITING THE EXPLOSIVE GROWTH OF FEDERAL CRIMES
John S. Baker, Jr.,
The Heritage Foundation
Legal Memorandum, No. 26, June 16, 2008
John S. Baker is Dale E. Bennett Professor of Law at the Louisiana State University Law Center.
The author thanks his research assistant, Ms. Beverly Froese, who reviewed the federal statutes
and organized the data under his direction.
Measuring the growth in the number of activities considered federal crimes is challenging.
Ideally, one compares counts of federal crimes taken at different times and employing consistent
criteria to determine what constitutes a federal crime. Obtaining comparable data, however, is
almost impossible. Nonetheless, a careful survey of laws enacted by Congress does permit
reasonable estimation of the number of federal criminal offenses.
This report follows from other attempts to count the number of federal criminal offenses or to
measure their growth. The most complete count of federal crimes, done by the U.S. Department
of Justice (DOJ) in the early 1980s, put the number at 3,000. A 1998 report by a task force of the
American Bar Association relied on the DOJ figure and other data to measure the growth of
206
federal criminal law but did not itself actually provide a count of federal crimes. In a 2004
Federalist Society monograph building on the DOJ and ABA reports, I counted new federal
crimes enacted following the point at which the ABA report finished its data collection at the
close of 1996. That report estimates that there were 4,000 federal crimes at the start of 2000.207
This report updates that total through 2007, finding 452 additional crimes created since 2007, for
a total of at least 4,450 federal crimes.208
The growth of federal crimes continues unabated. The increase of 452 over the eight-year period
between 2000 and 2007 averages 56.5 crimes per year—roughly the same rate at which Congress
created new crimes in the 1980s and 1990s. So for the past twenty-five years, a period over which
the growth of the federal criminal law has come under increasing scrutiny, Congress has been
creating over 500 new crimes per decade. That pace is not steady from year to year, however; the
data indicate that Congress creates more criminal offenses in election years.
206
Task Force on Federalization of Criminal Law, American Bar Association, THE FEDERALIZATION OF CRIMINAL LAW (1998)
[hereinafter ABA Report].
207
John Baker, Federalist Society for Law and Public Policy, MEASURING THE EXPLOSIVE GROWTH OF FEDERAL CRIME
LEGISLATION (2004) [hereinafter Federalist Society Report].
208
See app.
PART 3. THE PURPOSE88

OF THIS CASE
This study reviews the crimes newly enacted by Congress in order to:
(1) update the number of federal crimes;
(2) measure whether Congress continues to pass federal criminal laws at the same
pace found by the ABA report; and
(3) determine whether the new crimes contain a mens rea requirement, a key
protection of the common law that protects those who did not intend to commit
wrongful acts from unwarranted prosecution and conviction.
Previous Studies
Counting the number of federal crimes might seem to be a rather straightforward matter: Simply
count all the statutes that Congress has designated as crimes. After all, unlike state law, federal
law has never had a common law of crimes. Locating purely common-law crimes requires
consulting judicial opinions, and even then, determining what is and is not a common-law crime
209
is problematic. Given that federal courts lack common-law jurisdiction over crimes, all federal
210
crimes must be statutory. So it would seem that counting statutes should be an easy task.
Making an accurate count is not as simple as counting the number of criminal statutes, however.
As the American Bar Association’s Task Force on the Federalization of Crime stated, “So large is
the present body of federal criminal law that there is no conveniently accessible, complete list of
federal crimes.”211 Not only is the number of statutes large, but the statutes are scattered and
212
complex. The situation presents a two-fold challenge:
(1) determining what statutes count as crimes and
(2) determining whether, as to the different provisions within a section or
subsection, there is more than a single crime, and if so, how many.
The first difficulty is that federal law contains no general definition of the term “crime.” Title 18
of the U.S. Code is designated “Crimes and Criminal Procedure,” but it is not a comprehensive
criminal code. Title 18 is simply a collection of statutes. It does not provide a definition of crime.
Until repealed in 1984, however, Section 1 of Title 18 began by classifying offenses into felonies
and misdemeanors, with a sub-class of misdemeanors denominated “petty offenses.” Later
amendments re-introduced classifications elsewhere in Title 18.213 The repeal and later
amendments, however, were tied to the creation of the United States Sentencing Commission, and
this new focus on sentencing has done nothing to solve—and probably has exacerbated—the
problem of determining just what should be counted as “crimes.” That issue is particularly
pertinent for offenses not listed in Title 18. Title 18 does contain many, but not all, of the federal
crimes. Other offenses carrying criminal penalties are distributed throughout the other 49 titles of
the U.S. Code. 214 These scattered criminal provisions are usually regulatory or tort-like,
sometimes making them difficult to identify.
209
See Wayne R. LaFave, 1 SUBSTANTIVE CRIMINAL LAW § 2.1(e) (2003).
210
United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812).
211
ABA Report, supra note 1, at 9.
212
The ABA report explained:
213
See 18 U.S.C. § 3581 (classification of felonies, misdemeanor and infraction in terms of sentencing); 18 U.S.C. § 3156(3)
(definition of “felony” for purposes of release and detention).
214
There are 50 titles, but Title 34 currently contains no un-repealed statutes.
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URPOSE OF THIS CASE
The second problem is that, whether it is codified in Title 18 or some other title, one statute does
not necessarily equal one crime. Often, a single statute contains several crimes. Determining the
number of crimes contained within a single statute is a matter of judgment. Different people may
make different judgments about the number of crimes contained in each statute, depending on the
criteria they employ. In the absence of a definition of crime, it is incumbent upon the compiler to
explain the criteria employed in making the count. Not intending to re-invent the criteria, I have
looked to previous attempts to count the number of federal crimes.
The most comprehensive effort to count the number of federal crimes was undertaken by the
Office of Legal Policy (OLP) of the U.S. Department of Justice in early 1983 in connection with
efforts to pass a comprehensive federal criminal code. Ronald Gainer, who oversaw the study,
later published an article entitled “Report to the Attorney General on Federal Criminal Code
215
Reform.” The DOJ’s count involved a review by hand of every page of the U.S. Code, and it
put the number at “approximately 3,000 federal crimes,” a figure which has been much cited
216
since. That number includes all federal offenses in the U.S. Code carrying a criminal penalty
enacted through early 1983.
In a 1998 article, “Federal Criminal Code Reform: Past and Future,” Gainer cited the figure of
“approximately 3,300 separate provisions that carry criminal sanctions for their violation.”217
This number was based on a count done by the Buffalo Criminal Law Center “employing
somewhat different measures” than the DOJ survey.218 This survey apparently considered only
“separate provisions” as constituting crimes, while the methodology used in the DOJ count often
found more than one crime in a single provision.
In 1998, the American Bar Association’s Task Force on the Federalization of Criminal Law,
chaired by former Attorney General Edwin Meese and containing this author as a member, issued
a report entitled “The Federalization of Criminal Law.” This report was concerned with the
growth in federal criminal law and thus faced the problem of identifying the number of federal
crimes enacted over periods of time. The Task Force decided, however, not to “undertake a
section by section review of every printed federal statutory section,” which would have been too
“massive” an undertaking for the Task Force’s “limited purpose.”219 The ABA report did
conclude that the 3,000 number was “surely outdated by the large number of new federal crimes
enacted in the 16 or so years since its estimation.”220 The ABA report did not attempt a
comprehensive count like DOJ, but it did provide a good measure of the growth of federal
criminal law, which demonstrated that the number of federal crimes as of the end of 1996 greatly
exceeded 3,000.
Although the ABA Report did not actually count the number of crimes, it drew the following dra-
matic conclusion from the available data:
215
Ronald Gainer, REPORT TO THE ATTORNEY GENERAL ON FEDERAL CRIMINAL CODE REFORM, 1 Crim. L.F. 99 (1989).
216
Id. at 110.
217
Ronald Gainer, FEDERAL CRIMINAL CODE REFORM: PAST AND FUTURE, 2 Buff. Crim. L. Rev. 46, 55 n.8 (1998) (emphasis
added).
218
Id.
219
ABA Report, supra note 1, at 92.
220
Id.at 94.

OF THIS CASE
The Task Force’s research reveals a startling fact about the explosive growth of federal criminal
law: More than 40% of the federal provisions enacted since the Civil War have been enacted
since 1970.221
But the ABA report’s approach actually underestimates the increase in the number of federal
crimes. According to Gainer, the DOJ effort to count crimes discovered that any attempt to count
using computer searches would consistently undercount crimes. This is why the DOJ did a
complete hand count of federal crimes, which meant reading through the many thousands of
pages of the U.S. Code. The ABA report, for its purposes, instead conducted a Westlaw search of
the statutes “us[ing] the key words ‘fine’ and ‘imprison’ (including any variations of those words
such as ‘imprisonment’).”222 As explained below, this strategy likely missed many crimes.
Methodology
This current report and the accompanying count were developed against the background of the
DOJ and the ABA Task Force reports. Like the ABA Task Force, my researchers and I could not
review thousands of pages of statutes in order to complete a count as comprehensive as the
DOJ’s, nor even review all the new crimes enacted since the DOJ completed its count in 1983.
The ABA report did not actually include a count, and even the comprehensive count by the DOJ
report gave the number in terms of an estimate. In part, that was due to the fact that the DOJ
count employed debatable criteria about how many crimes are contained in a particular statute.
Nevertheless, our count adhered to the criteria used in the DOJ count. For the current count, we
reviewed legislation from the beginning of 2000 through the end of 2007.
Building on the data in the 1998 ABA report, which run through 1996, my previous report for the
Federalist Society estimated that the U.S. Code contained 4,000 crimes as of the beginning of
223
2000. For the present report, we conducted a comprehensive search of statutory provisions
enacted from the beginning of 2000 through 2007. Like the DOJ and ABA reports, this and my
previous report consider only statutes, not regulations. As the ABA report notes, if regulations
were included, that would have added, as of the end of 1996, an additional 10,000 or so crimes.224
Another report from the early 1990s, however, estimated that “there are over 300,000 federal
regulations that may be enforced criminally.”225
For purposes of continuity, this report, like my previous one, relied on Westlaw searches using
the same terms as the ABA report. For this report, however, we went beyond the terms used by
the ABA report and found more crimes in amendments to existing laws that did not contain those
search terms. Just searching the database of statutes passed each year using the terms “fine!” and
“imprison!”—the ABA Report approach—does not yield a comprehensive list of crimes because
it does not capture statutory amendments that do not contain either of those terms. For example,
an amendment to an existing law might revise the statute by adding an additional subsection. This
subsection, due to its placement in the existing statute, might create a new crime, although it does
221
Id. at 7 (emphasis in the original); see also id. at n.9 (“[M]ore than a quarter of the federal criminal provisions enacted
since the Civil War have been enacted within the sixteen year period since 1980”).
222
ABA Report, supra note 1, at app. C, 91, n.1.
223
The Federalist Society Report looked at crimes enacted through 2003, but only drew conclusions about the number of
crimes as of the beginning of 2000. See FEDERALIST SOCIETY REPORT, supra note 2, at 8.
224
See ABA Report, supra note 1, at 10.
225
John C. Coffee, Jr., DOES “UNLAWFUL” MEAN “CRIMINAL”?: REFLECTIONS ON THE DISAPPEARING TORT/CRIME DISTINCTION
IN AMERICAN LAW, 71 B.U. L. Rev. 193, 216 (1991).
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URPOSE OF THIS CASE
not include either “fine!” or “imprison!.” Therefore, after using the search terms “fine!” and
“imprison!,” the search proceeded to the “Historical Notes” field for each of the years from 2000
through 2007. This produced several hundred hits for each year (the highest being about 690 in a
single year), which yielded a number of crimes which were not captured just using the ABA
search terms.
In this report, we employed the DOJ report’s methodology for counting the number of new
crimes contained within a single statute. Under the DOJ approach, statutes containing more than
one act corresponding to a common-law crime were determined to have as many crimes as there
were common-law crimes in the statute.226 On the other hand, the DOJ counted a statute as con-
taining only one crime, even though it contained multiple acts, if those acts did not constitute
common-law crimes.
Specifically, the criteria employed in this report to distinguish whether the new statutory language
did or did not create a new crime are as follows:
• Each act stated in terms corresponding to the act element of a traditional or
common-law crime (e.g., theft, burglary, fraud) is counted separately as one crime.
Thus, multiple crimes may be listed in a single section or subsection.
• Multiple acts unrelated to traditional crimes, when stated in the same section or
subsection, are treated as different ways of committing one crime. Also,
elaborations on traditional crimes (e.g., theft by fraud, misrepresentation, forgery)
are counted as one crime only if listed together in one section or subsection.
• If the same or similar non-traditional crimes are listed in separate sections or
sub-sections, each section or subsection is counted as a separate crime. Attempts
and conspiracies to commit a crime were counted as distinct crimes.
• The number of crimes listed for each section or subsection indicates only the
number of crimes added that year by a statute or amendment, which does not
necessarily equal the total number of crimes in those sections or subsections
originally enacted in an earlier year.
The Number of Federal Crimes
My 2004 report stated that “Conservatively speaking, the U.S. Code contains at least 3,500
offenses which carry criminal penalties. More realistically, the number exceeds 4,000.” The
estimate of over 4,000, as of the beginning of 2000, rested on an evaluation of the information
already covered by the counts conducted by DOJ and the ABA and new data for the years 1997
through 1999.
Since the start of 2000, Congress has created at least 452 new crimes. So the total number of fed-
eral crimes as of the end of 2007 exceeds 4,450. Ninety-one of the 452 were contained in new
laws that created 279 new crimes, and the remaining were contained in amendments to existing
227
laws. The total of 452 new crimes breaks down by year as follows: 65 for 2000; 28 for 2001;
82 for 2002; 51 for 2003; 48 for 2004; 13 for 2005; 145 for 2006; 20 for 2007. The Appendix
to this report lists all the federal statutes containing new crimes.
The data suggest a potential electoral motivation behind the growth of the federal criminal law.
Except for in 2003, the number of new crimes enacted in election years significantly surpass
226
Telephone interview with Ronald Gainer (Dec. 29, 2003).
227
The ABA report does not include a review of amendments. See ABA Report, supra note 1, at 8 n.10.

OF THIS CASE
those in non-election years. While this may be due to the two-year cycle in Congress and the time
it takes to pass a bill, work done on legislation in a previous Congress need not be completely
duplicated. Bills are, for example, frequently re-introduced at the commencement of the a new
Congress.
This study did not perform a statistical analysis of the number of crimes created in various
discrete areas of substantive law. My 2004 report, however, concluded that a large percentage of
the new crimes came in the environmental area. For the years 2000 through 2007, many of the
new crimes were in the following areas:
• National security, i.e., aircraft security, protection of nuclear and other facilities,
counterfeit/forged insignia and documents;
• Terrorism and support for terrorists;
• Protection of federal law enforcement;
• Protection of members of the armed forces;
• Protection of children from sexual exploitation; and
• Controls on the Internet.
Not surprisingly, many of the new crimes were enacted in response to the events of 9/11.
Interpretation: A Troubling Trend
As practitioners in the field know well, the number of criminal statutes does not tell the whole
story. Measuring the rate of growth certainly confirms that Congress continues to enact criminal
statutes at a brisk pace. But no matter how many crimes Congress enacts, it remains for federal
prosecutors to decide which statutes to invoke when seeking an indictment.
228
Federal prosecutors have certain favorites, notably mail and wire fraud statutes, which they
use even when other statutes might be more applicable. That, of course, does not mean that the
addition of little-used crimes is unimportant. The federal government is supposedly a government
of limited powers and, therefore, limited jurisdiction. Each new crime expands the jurisdiction of
federal law enforcement and federal courts. Regardless of whether a statute is used to indict, it is
available to establish the legal basis upon which to show probable cause that a crime has been
committed and, therefore, to authorize a search and seizure. The availability of more crimes also
affords the prosecutor more discretion and thereby greater leverage against defendants. Increasing
the number and variety of charges tends to dissuade defendants from fighting the charges,
because they usually can be “clipped” for something.
Moreover, the expansion of federal criminal law continues to occur even without new legislation.
Federal prosecutors regularly stretch their theories of existing statutes. For example, federal
courts often cooperate with prosecutors by making new laws apply retroactively. What Judge
John Noonan wrote in 1984 about bribery and public corruption continues to be generally true,
namely that federal prosecutors and federal judges have been effectively creating a common law
229
of crimes through expansive interpretations.
Ultimately, the reason the ABA report and this report track the increase of federal crimes is to
provide some measure of the extent to which federal criminal law and its enforcement are over-
reaching constitutional limits. The Supreme Court has admonished Congress twice within recent
228
18 U.S.C. §§ 1341, 1343 (mail fraud and wire fraud, respectively).
229
See John Noonan, BRIBES (1984) at 585–86, 620.
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URPOSE OF THIS CASE
years, when it declared federal statutes unconstitutional, that it lacks a “plenary police power.”230
The statistical measures in this and the ABA report indicate that those cases have not dissuaded
Congress from continuing to pass criminal laws at the same pace.
Judicial Interpretation of Mens Rea
A mens rea requirement has long served an important role in protecting those who did not intend
to commit wrongful acts from unwarranted prosecution and conviction. Mens rea elements, such
as specific intent, willful intent, and the knowledge of specific facts constituting the offense, are a
part of nearly all common-law crimes. These protections were generally codified into statutes, as
state legislatures adopted criminal codes, and the practice was continued in the creation of
statutes defining new crimes in addition to those recognized historically by the common law.
If anything, mens rea requirements are more important today than in the past. Historically, nearly
all crimes concerned acts that were malum in se, or wrong in themselves, such as murder, battery,
and theft. Today, however, new crimes and petty offenses created by statute almost always
concern acts that are malum prohibitum, or wrong only because it is prohibited. This category
includes petty offenses and crimes like marketing medicines not approved by the FDA and
shipping flammable materials without a sticker on the box. For malum prohibitum crimes and
petty offenses, mens rea requirements can serve to protect individuals who have accidentally or
unknowingly violated the law or, in some cases, were unaware that a law covered their particular
conduct.
For the period 2000 through 2007, the great majority of sections or subsections appeared to have
a mens rea requirement, often employing the term “knowingly” or “willfully.” Nevertheless, 55
statutory provisions (some of which contain more than one crime) contained no reference to a
mens rea requirement. Of these 55, 17 are new and 38 amend existing statutes. That means that
17 out of the total of 91 new criminal statutes did not specify a mental element.
The Appendix of this report identifies the mens rea element or the lack thereof for each of the 237
statutory provisions containing new crimes passed by Congress.
This count concerning mens rea is somewhat tentative, for several reasons. For example, whether
an offense has a mens rea requirement may depend on a judgment about the number of crimes
contained in a particular section or subsection. Consider, for example, 18 U.S.C. § 1960, which
prohibits “unlicensed money transmitting businesses” and was amended in the wake of 9/11. The
statute contains several subsections. The 2001 amendments added a new subsection expanding
the definition of “unlicensed money transmitting business.” The added section contains a
knowledge requirement. In our count, the amendment does not count as adding a crime. While
the amendment adds a mens rea, it also drops a mens rea requirement from an existing
provision. 231 If 18 U.S.C. § 1960 is counted as just one crime or if only the newly added
subsection is considered, then the crime carries a mens rea. That means, however, that the
elimination of the one mens rea requirement may escape notice. Once again, what counts as a
crime dictates conclusions about what Congress has done in passing a statute—that is, whether it
has or has not eliminated a mens rea requirement.
The linkage between the mens rea issue and meaning of “crime” goes to the heart of the moral
foundation of criminal law, as Professor John Coffee has explained:
230
United States v. Lopez, 514 U.S. 549, 566 (1995); United States v. Morrison, 529 U.S. 598, 618 (2000).
231
Previously, the relevant portion of the provision (18 U.S.C. § 1960(b)(1)(A)) read “is intentionally operated”; it now reads
“is operated.”

OF THIS CASE
[T]o define the proper sphere of the criminal law, one must explain how its purposes and methods
differ from those of tort law. Although it is easy to identify distinguishing characteristics of the
criminal law—e.g., the greater role of intent in the criminal law, the relative unimportance of
actual harm to the victim, the special character of incarceration as a sanction, and the criminal
law’s greater reliance on public enforcement—none of these is ultimately decisive.
Rather the factor that most distinguishes the criminal law is its operation as a system of moral
education and socialization. The criminal law is obeyed not simply because there is a legal threat
underlying it, but because the public perceives its norms to be legitimate and deserving of
compliance. Far more than tort law, the criminal law is a system for public communication of
values. 232
When the traditional requirement of mens rea is weakened, then, the unique features of the crimi-
nal law are undermined, to the great detriment of society. It is troubling that, in a significant
proportion of new criminal statutes enacted in recent years, Congress has neglected this crucial
component that cuts to the heart of what it means to be “guilty” of a crime.
Conclusion
As is repeated throughout this report, one’s opinion about what counts as a federal crime drives
the count of federal crimes. Simply focusing on the penalty may not be sufficient because one
penalty often applies to several acts. While federal law classifies crimes by penalties, federal law
does not provide a clear definition of crime that would allow distinctions among separate criminal
acts. That makes any count subject to argument. At the very least, however, this report can
conclude the following: Based on the growth of federal crime legislation since the count in the
early 1980s by the Office of Legal Policy in the Department of Justice, the United States Code
today includes at least 4,450 offenses which carry a criminal penalty, and the rate at which
Congress passes new crimes has not waned since at least the 1980s.
Appendix
The Appendix to this report, which lists and describes the criminal statutory provisions enacted
from 2000 through 2007, is available at
http://www.heritage.org/Research/LegalIssues/upload/2008_Baker_appendix.pdf.
B. The Over-Criminalization of Social and Economic Conduct
Source: www.OverCriminalization.com (A product of The Heritage Foundation.)233
The origin of modern criminal law can be traced to early feudal times. From its inception, the
criminal law expressed both a moral and a practical judgment about the societal consequences of
certain activity: to be a crime, the law required that an individual must both cause (or attempt to
cause) a wrongful injury and do so with some form of malicious intent. Classically, lawyers
capture this insight in two principles: in order to be a crime there must be both an actus reus (a
bad act) and a culpable mens rea (a guilty mind). At its roots, the criminal law did not punish
merely bad thoughts (intentions to act without any evil deed) or acts that achieved unwittingly
wrongful ends but without the intent to do so. The former were for resolution by ecclesiastical
232
Coffee, supra note 20, at 193–194 (emphasis added) (citation omitted).
233
For more information see Paul Rozenberg, THE OVER-CRIMINALIZATION OF SOCIAL AND ECONOMIC CONDUCT, The Heritage
Foundation Legal Memorandum: Executive Summary. No. 7. April 17, 2003, at:
http://www.overcriminalized.com/pdfs/lm_07.pdf. Paul Rosenzweig is Senior Legal Research Fellow in the Center for
Legal and Judicial Studies at The Heritage Foundation and Adjunct Professor of Law at George Mason University.
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authorities and the latter were for amelioration in the tort system. In America today, this classical
understanding of criminal law no longer holds.
The requirement of an actual act of some form is fundamental. As an initial premise, Anglo-
American criminal law does not punish thought. For a crime to have been committed there must,
typically, be some act done in furtherance of the criminal purpose. The law has now gone far
from that model of liability for an act and, in effect, begun to impose criminal liability for the acts
of another based upon failures of supervision that are far different from the common law’s
historical understanding.
Similarly, the law historically has required that before an individual is deemed a criminal he must
have acted with an intent to do wrong. Accidents and mistakes are not considered crimes. Yet
contemporary criminal law punishes acts of negligence and even acts which are accidental. In the
regulatory context, as Justice Potter Stewart has noted, there is, in effect, a standard of near-
absolute liability.
Expanded Reach of Criminal Law.
To these fundamental changes in the nature of criminal liability one must also add significant
changes in the subject matter of criminal law. At its inception, criminal law was directed at
conduct that society recognized as inherently wrongful and, in some sense, immoral. These acts
were wrongs in and of themselves (malum in se), such as murder, rape, and robbery. In recent
times the reach of the criminal law has been expanded so that it now addresses conduct that is
wrongful not because of its intrinsic nature but because it is a prohibited wrong (malum
prohibitum)--that is, a wrong created by a legislative body to serve some perceived public good.
These essentially regulatory crimes have come to be known as “public welfare” offenses.
Thus, today the criminal law has strayed far from its historical roots. Many statutes punish those
whose acts are wrongful only by virtue of legislative determination. The distortion of the classical
criminal law has arisen for a variety of reasons (some of which may have been accompanied by
benign motives). For example, the Enron scandal and similar acts of intentional corporate fraud
have led to overly broad reform proposals that may trap honest but unsophisticated corporate
managers. But whatever the cause, the distortion is not without its consequences. The landscape
of criminal law today is vastly different from what it was 100 years ago--so much so as to be
almost unrecognizable.
Lack of Judicial Constraint.
Because the courts have deliberately chosen a limited, almost self-abnegating role in constraining
the use of criminal sanctions, no effective judicial constraint currently limits the extent to which
individual conduct that bears no direct causal relationship to a societal harm may be criminalized.
Nor is there a limit on the extent to which, in the social and economic context, the legislatures
may dispense with the traditional conceptions of mens rea. The consequences of this are two-fold:
a pathological legislative approach to criminal law and an excess of prosecutorial discretion.
The legislative impetus is clear--there is a “market” of public approval for more criminal laws
and no effective consideration of countervailing costs to society. And in the absence of any
judicial check on this legislative trend, the result is a wholesale transfer of power from elected
legislative officials to prosecutors who, in many instances, are unelected and not responsible to
the public. Where once the law had strict limits on the capacity of the government to criminalize
conduct, those limits have now evaporated. Society has come, instead to rely on the conscience
and circumspection in prosecuting officers. Or, as the Supreme Court said in United States v.
Dotterweich, Americans are obliged to rely only on “the good sense of prosecutors, the wise
guidance of trial judges, and the ultimate judgment of juries” to determine criminal conduct. In
effect, the legislative branch has transferred a substantial fraction of its authority to regulate

OF THIS CASE
American social and economic conduct to those who have no expertise in the matter: prosecutors,
trial judges, and jurors who make decisions on criminalizing conduct without any ability to
consider the broader societal impacts of their decisions.
Where once, to be a criminal, an individual had to do an act (or attempt to do an act) with willful
intent to violate the law or with knowledge of the wrongful nature of his conduct, today it is
possible to be found criminally liable and imprisoned for a substantial term of years for the failure
to do an act required by law, without any actual knowledge of the law’s obligations and with no
wrongful intent whatsoever. These developments are advanced in the name of the “public
welfare”--an express invocation of broader social needs at the expense of individual liberty and
responsibility. It is, ultimately, the triumph of a Benthamite utilitarian conception of the criminal
law over the morally grounded understanding of criminal law advanced by William Blackstone.
One may, and indeed one should, doubt the wisdom of such a course. Given how the criminal law
has developed, a free people are constrained to ask the question: Are broader social needs well
served when individual liberty and responsibility suffer?
C. The Consequences of Judicial Inaction234
In effect, then, the courts have deliberately chosen a limited, almost self-abnegating role in
constraining the use of criminal sanctions. As it stands today, no effective judicial constraint
currently limits the extent to which individual conduct that bears no causal relationship to a
societal harm may be criminalized. Nor is there a limit on the extent to which, in the social and
economic context, the legislatures may dispense with the traditional conceptions of mens rea. The
consequences of this are two-fold: a pathological legislative approach to criminal law and an
excess of prosecutorial discretion.
As Professor William Stuntz has noted, American criminal law “covers far more conduct than
any jurisdiction could possibly punish.”235 This wide span of American law is the product of
institutional pressures that draw legislators to laws with broader liability rules and harsher
sentences.236 The reason is the dynamic of legislative consideration: When a legislator is faced
with a choice on how to draw a new criminal statute (either narrowly and potentially
underinclusive or broadly and potentially overinclusive), the politics of the situation naturally
cause the legislator to be overinclusive. Few, if any, groups regularly lobby legislators regarding
criminal law and those that do more commonly seek harsher penalties and more criminal laws,
rather than less. The political dynamic is exacerbated by the consideration (usually implicitly) of
the costs associated with the criminal justice system. Broad and overlapping statutes with
minimum obstacles to criminalization and harsh penalties are easier to administer and reduce the
costs of the legal system. They induce guilty pleas and produce high conviction rates, minimizing
the costs of the cumbersome jury system and producing outcomes popular with the public.23790
The final piece of the equation is legislative reliance on the existence of prosecutorial discretion.
Broader and harsher statutes may produce bad outcomes that the public dislikes, but blame for
those outcomes will lie with prosecutors who exercise their discretion poorly, not the legislators
who passed the underlying statute. As a consequence, every incentive exists for criminal
legislation to be as expansive as possible.
234
Paul Rozenberg, THE OVER-CRIMINALIZATION OF SOCIAL AND ECONOMIC CONDUCT, The Heritage Foundation Legal
Memorandum: Executive Summary. No. 7. April 17, 2003, at: http://www.overcriminalized.com/pdfs/lm_07.pdf.
235
William J. Stuntz, THE PATHOLOGICAL POLITICS OF CRIMINAL LAW, 100 Mich. L. Rev. 505, 507 (2001).
236
Id. at 510.
237
Id. at 600.
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URPOSE OF THIS CASE
And in the absence of any judicial check on this legislative trend, the result is a wholesale transfer
of power from elected legislative officials to prosecutors who, in many instances, are unelected
and not responsible to the public. Where once the law had strict limits on the capacity of the
government to criminalize conduct, those limits have now evaporated. Society has come, instead
to rely on the “conscience and circumspection in prosecuting officers.”238 Or, as the Supreme
Court said in Dotterweich, Americans are obliged to rely only on “the good sense of prosecutors,
the wise guidance of trial judges, and the ultimate judgment of juries” to determine criminal
conduct. 23992 In effect, the legislative branch has transferred a substantial fraction of its authority
to regulate American social and economic conduct to those who have no expertise in the matter:
prosecutors, trial judges, and jurors who make decisions on criminalizing conduct without any
ability to consider the broader societal impacts of their decisions.
Conclusion
And so, the criminal law has come to this odd and unusual point in its development. Where once,
to be a criminal, an individual had to do an act (or attempt to do an act) with willful intent to
violate the law or with knowledge of the wrongful nature of his conduct, today it is possible to be
found criminally liable and imprisoned for a substantial term of years for the failure to do an act
required by law, without any actual knowledge of the law’s obligations and with no wrongful
intent whatsoever. These developments are advanced in the name of the “public welfare”—an
express invocation of broader social needs at the expense of individual liberty and responsibility.
It is, ultimately, the triumph of a Benthamite utilitarian conception of the criminal law over the
morally grounded understanding of criminal law advanced by Blackstone. One may, and indeed
one should, doubt the wisdom of such a course. Given how the criminal law has developed, a free
people are constrained to ask the question: Are broader social needs well served when individual
liberty and responsibility suffer?
D. Recognizing the Need for Change240

Excerpt from
A MODEL FOR LEADING CHANGE: MAKING ACQUISITION REFORM WORK
Report of the Military Research Fellows
Lieutenant Colonel Charles L. Beck, Jr., US Air Force
Lieutenant Colonel Nina Lynn Brokaw, US Army,
Commander Brian A. Kelmar, US Navy
DSMC 1996-1997
Defense Systems Management College, December 1997
One of the most important roles of the leadership is recognizing the need for change. This sounds
obvious, since change could not be implemented unless you recognize the need for it, but many
238
Nash v. United States, 229 U.S. 373, 378 (1913).
239
Dotterweich, 320 U.S. at 285.
240
Pp. 3-5 to 3-6. Footnotes omitted. Published by the Defense Systems Management College Press, Fort Belvoir, Virginia
22060_5565. (Disclaimer: This book was produced in the Department of Defense (DoD) school environment in the interest
of academic freedom and the advancement of national defense_related concepts. The views expressed in this book are those
of the authors and do not reflect the official position or policy of the DoD or those of the United States Government).
www.dau.mil/pubs/mfrpts/pdf/res97.pdf

OF THIS CASE
researchers point out that this recognition can be one of the hardest aspects of change. The
“Boiling Frog” experiment has been used to illustrate the difficulty of recognizing the need for
change:
“The label comes from a classic physiological response experiment involving two live frogs, a
pan filled with water, and a bunsen burner. The first frog is placed in a pan of cold water. The
pan is then placed on a bunsen burner and the heat is turned up very gradually. If the change in
temperature is gradual enough, the frog will sit in the pan until it boils to death. The creature
could have jumped out of the pan at any time, but the change in its environment happened so
gradually that no response was triggered in the frog and death ensued If we take the remaining
frog and place it in a pan of water that is already boiling, it will not sit there but will promptly
jump out and survive. We can clearly continue to refine this experiment so that we can discover
how great the change has to be in a given time period in order to get the frog to respond, but the
analogy is clear.” [Tichy and Devanna, Transformational Leader,241 44.]
Organizations become boiled frogs because they do not recognize the changes in their
environment in time to react. There are numerous examples of companies that have not
recognized the need for change. The business news regularly carries stories of large corporations
losing market share and profits, while companies in the same line of business are making record
profits. The companies that are doing poorly may have failed to recognize the need for change.
As illustrated by the boiling frog phenomenon, these organizations are slow to realize that a
change is needed.
The leaders of the organization must recognize and believe in the need for change before it is too
late. The senior leadership may not be the first to recognize the need for change, but they must be
sold on it and make a commitment to its support. Mr. William J. Trahant of Coopers and
Lybrand expresses the need for a clear reason for change: “No organization changes, absent a
business imperative for the change. Without this business imperative, the organization can
implement a lot of organizational good ideas, but these become training exercise, without
resulting in measurable change. This training is good, but will not result in change.”
Levels of Urgency for Change
Recognition of the need for change is tied in to the level of urgency for change. The less urgent
and obvious the need for change, the harder it is to see that change is needed, as was illustrated by
the boiling frog analogy. Organizational change theorists are in general agreement that there
must be a justifiable reason for change, and that the reason must be communicated to and
believed by the workforce. However, there is disagreement as to the level of urgency that must
be conveyed. Some researchers feel that successful organizational change can only occur if there
is a strong sense of urgency. Others lean more toward a “business imperative” to generate
change. Regardless of the level of urgency they advocate, almost all researchers agree that the
less urgent the need, the harder it will be to recognize and convince others of the need for change.
Using Lewin’s model, the less urgent the need, the harder it will be to create the dissatisfaction
with the status quo that will unfreeze the organization.
241
http://www.wiley.com/cda/product/0,,0471623342%7Cdesc,00.html. “How to transform an organization, based on
fascinating, inside stories of major industrial companies and service companies (including Fortune 500 companies),
aggressive smaller firms, and European companies. Provides insights into the styles and philosophies of leaders and
executives who have transformed their companies, whether big or small, and offers practical advice on middle management’s
role in transforming large organizations.”
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E. Treason by the Federal Courts over the Full Scope of the Second Amendment
THE SIGNIFICANCE OF EMANCIPATION IN THE WEST INDIES
Frederick Douglass. [1857] (1985).
Speech, Canandaigua, New York, August 3, 1857242
“Let me give you a word of the philosophy of reform. The whole history of the progress of
human liberty shows that all concessions yet made to her august claims, have been born of
earnest struggle. The conflict has been exciting, agitating, all-absorbing, and for the time being,
putting all other tumults to silence. It must do this or it does nothing. If there is no struggle there
is no progress. Those who profess to favor freedom and yet depreciate agitation, are men who
want crops without plowing up the ground, they want rain without thunder and lightening. They
want the ocean without the awful roar of its many waters.”
“This struggle may be a moral one, or it may be a physical one, and it may be both moral and
physical, but it must be a struggle. Power concedes nothing without a demand. It never did and it
never will. Find out just what any people will quietly submit to and you have found out the exact
measure of injustice and wrong which will be imposed upon them, and these will continue till
they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by
the endurance of those whom they oppress. In the light of these ideas, Negroes will be hunted at
the North, and held and flogged at the South so long as they submit to those devilish outrages,
and make no resistance, either moral or physical. Men may not get all they pay for in this world;
but they must certainly pay for all they get. If we ever get free from the oppressions and wrongs
heaped upon us, we must pay for their removal. We must do this by labor, by suffering, by
sacrifice, and if needs be, by our lives and the lives of others.” Frederick Douglass, 1857
WHY WE FIGHT:
THEORIES OF HUMAN AGGRESSION AND CONFLICT,
David Churchman,
University Press of America,
Lanham, Maryland (2005),
ISBN 0-7618-3306-4 (paperback),
The Conclusion to “Chapter 3: The Nature of Man”
The question of whether man is aggressive or peaceful by nature or by nurture has long been
disputed, is not yet resolved, and may never be. The best evidence suggests that neither position
is correct –that the question is a false dichotomy and the two interact to produce the incredible
individual and cultural variety seen across human history. Our ancestors provide controversial
evidence as to our evolution from aggressive hunters, peaceful gegetarians, or opportunistic
scavengers. Our biology, particularly our hormones and differences between the sexes, provide
insights. Fundamental drives, to pass on our genes, to defend territory, to achieve status, and to
establish an individual identity, have explanatory power. Furthermore, like other species, we
resolve or manage many of our disputes by methods other than fighting, most often vebally.
Conflict is common but it is worth remembering that people are more often altruistic and
cooperative than warlike and murderous in their relations with one another.
242
In THE FREDERICK DOUGLASS PAPERS. SERIES ONE: SPEECHES, DEBATES, AND INTERVIEWS. Volume 3: 1855-63. Edited by
John W. Blassingame. New Haven: Yale University Press, p. 204.

OF THIS CASE
The Conclusion to “Chapter 4: Aggression and the Mind”

Anger might stimulate an impetuous courage, but of all degrees of courage, that is the least
effective. By outrage, I mean taking moral offense at something. . . . Outrage, which our sense of
duty summons us to redress, on the other hand, can find expression in a wider range of behavior.
We can use expressions that anger uses, or we can purposefully go about redressing the offense in
quiet, civil, ways, our comportment no different from what it is in other endeavors. . . . Anger and
the courage it can spark are depleted rather quickly. We blow up, speak our piece, swing our fist
until retribution is accomplished, and then we move on. . . . Outrage, if we have a sense of duty,
endures until the wrong is righted, as can the courage needed to accomplish the task.
Note that the Frederick Douglass in 1857 (pre-Civil War era) and David Churchman 148 years later in
2005 discuss generaly the same subject matter: human reactions to arbitrary aggressive behavior under various
names, i.e., bullying, verbal abuse, harassment, tyranny, fascism, judicial tyrants and despots.
“Outrage, if we have a sense of duty, endures until the wrong is righted, as can the courage needed to
accomplish the task” best describes my six years of litigation in the federal courts facing hostile judges with
political ideologies against the Second Amendment and/or against unrepresented civil plaintiffs or both. And here
I am again standing up to those same hostile judges telling them to kiss my ass in regard to their war against the
Second Amendment.
Now I may be a cynic about the U.S. Supreme Court’s opinion in the Heller case that the Second
Amendment is an individual right regardless of the militia but they way I see it the U.S. Supreme Court Court
realized that they we slicing off too many rights from the Bill of Rights too frequently to get away with nullifying
the individual right of the Second Amendment. So, the U.S. Supreme Court threw a bone to the American People
in the sytle of Marie-Antoinette’s “Let them eat cake” with their Second Amendment proclamation to distract the
People from the dismal condition of their Bill of Rights. But how long with this facade stand?
My cynicism is confirmed by two law review articles:
HELLER’S FUTURE IN THE LOWER COURTS,
Glenn H. Reynolds & Brannon P. Denning,
102 Nw. U. L. Rev. Colloquy 406 (July 2008).243
TWO ESSAYS ON DISTRICT OF COLUMBIA V. HELLER
Mark Tushnet,
Harvard Public Law Working Paper No. 08-17,
(“HELLER AND THE NEW ORIGINALISM,” forthcoming in the Ohio State Law Journal. And
“HELLER AND THE PERILS OF COMPROMISE,” forthcoming in the Lewis & Clark Law Review).244
The federal courts have aggressively refused to exercise subject mater jurisdiction over the full scope of
the Second Amendment. And as their aggression to divert the redress of grievances on the full scope of Second
Amendment rights is judicial treason against the Constitution of the United States under Cohen v. Com. Wealth
of Virginia 19 U.S. 264 (Wheat) (1821):
It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it
must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure
because it approaches the confines of the constitution. We cannot pass it by because it is doubtful.
With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it
243
244
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be brought before us. We have no more right to decline the exercise of jurisdiction which is
given, than to usurp that which is not given. The one or the other would be treason to the
constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All
we can do is, to exercise our best judgment, and conscientiously to perform our duty.)
Substituting a political ideology for the Rule of Law to deny triable cases that approach the limits of
constitutional rights and freedoms is not what would be considered the best judgments of federal judges. In the
landmark case Chisholm v. Georgia, 2 U.S. 419 (Dall.) (1793) the rightfully interpreted Article III, Section 2 of
the Constitution of the United States that a State can be sued by a citizen of another State address the matter of
treason against the Constitution in subtle terminology:
Let a State be considered as subordinate to the People: But let every thing else be subordinate to
the State. The latter part of this position is equally necessary with the former. For in the practice,
and even at length, in the science of politics there has very frequently been a strong current
against the natural order of things, and an inconsiderate or an interested disposition to
sacrifice the end to the means. As the State has claimed precedence of the people; so, in the
same inverted course of things, the Government has often claimed precedence of the State; and to
this perversion in the second degree, many of the volumes of confusion concerning sovereignty
owe their existence. The ministers, dignified very properly by the appellation of the magistrates,
have wished, and have succeeded in their wish, to be considered as the sovereigns of the State.
This second degree of perversion is confined to the old world, and begins to diminish, even there:
but the first degree is still too prevalent, even in the several States, of which our union is
composed. By a State I mean, a complete body of free persons united together for their common
benefit, to enjoy peaceably what is their own, and to do justice to others.
Chisholm v. Georgia, 2 U.S. at 455 (Dall.) (1793)
I have already remarked, that in the practice, and even in the science of politics, there has
been frequently a strong current against the natural order of things; and an inconsiderate
or an interested disposition to sacrifice the end to the means. This remark deserves a more
particular illustration. Even in almost every nation, which has been denominated free, the state
has assumed a supercilious preeminence above the people, who have formed it: Hence the
haughty notions of state independence, state sovereignty and state supremacy. In despotic
Governments, the Government has usurped, in a similar manner, both upon the state and the
people: Hence all arbitrary doctrines and pretensions concerning the Supreme, absolute, and
incontrolable, power of Government. In each, man is degraded from the prime rank, which he
ought to hold in human affairs: In the latter, the state as well as the man is degraded.
Id. at 461.
The U.S. Supreme Court did not hear a Second Amendment case since United States v. Miller 307 U. S.
174, 179 (1939). It was sixty-eight (68) years between Miller and Heller. It is ludicrous to believe that the People
did not have enough interest to file Second Amendment cases, let alone appeal them to the Supreme Court of the
United States. The set of cicrumstances implies a hostile federal judicial system dismissing cases at the District
Courts and the Appeals Courts affirming the dismissals and the U.S. Supreme Court denying petitions for writ of
certiorari during those 68 years. Isn’t that treason against the Constitution under Cohens?
Of more recent years the federal courts and the U.S. Department of Justice perfidiously avoided
addressing the full scope of the Second Amendment. Addressing the full scope of Second Amendment rights
would compel the federal courts and the U.S. Department of Justice to concede that the full scope, i.e, the
Holy Grail, of the Second Amendment embodies the right to openly keep and bear arms in intrastate, interstate,
and maritime travel. They would also have to establish that the unorganized militia under 10 U.S.C. § 311(b)(1)
has power reserved to the People under the Tenth Amendment and unenumerated rights under the Ninth
Amendment to self-organize and self-regulate and operate autonomously as part of the vital checks and balance

OF THIS CASE
system of the Constitution of the United States without permission or authority from the State or from the United
States. Note how meticulously the federal courts and the U.S. Department of Justice avoid addressing the scope of
the Second Amendment in the following landmark cases:
(1). (August 13, 2008) United States v. Hollis Wayne Fincher, 8th Circuit, No.
07-2514 and No. 07-2888
In discussing the limitations the government can place on an individual’s right to possess
firearms, the Court noted that Miller does not protect “weapons not typically possessed by law-
abiding citizens for lawful purposes, such as short-barreled shotguns.” Heller, 128 S. Ct. at
2815-16. The Court also articulated a nonexclusive list of what it viewed to be acceptable
government regulation of firearms:
[T]he majority of the 19th-century courts to consider the question held that prohibitions on
carrying concealed weapons were lawful under the Second Amendment or state analogues.
Although we do not undertake an exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of arms. We also recognize
another important limitation on the right to keep and carry arms. Miller said, as we have
explained, that the sorts of weapons protected were those “in common use at the time.” We think
that limitation is fairly supported by the historical tradition of prohibiting the carrying of
“dangerous and unusual weapons.”
Id. at 2816-17 (internal citations and footnote omitted).
(2). (June 26, 2008) District of Columbia v. Heller, U.S. Supreme Court, No. 07-
290 at 52-53 and 54-56; 128 S.Ct. 2783; 554 U.S.478 F. 3d 370, affirmed.
We may as well consider at this point (for we will have to consider eventually) what types of
weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment”
could mean that only those weapons useful in warfare are protected. That would be a startling
reading of the opinion, since it would mean that the National Firearms Act’s restrictions on
machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in
warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in
tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men
were expected to appear bearing arms supplied by themselves and of the kind in common use at
the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms
“in common use at the time” for lawful purposes like self-defense. “In the colonial and
revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of
person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98
(1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254
(1973)).
Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the
purpose announced in its preface. We therefore read Miller to say only that the Second
Amendment does not protect those weapons not typically possessed by law-abiding citizens for
lawful purposes, such as short-barreled shotguns. That accords with the historical understanding
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of the scope of the right, see Part III, infra.245

III
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone
through the 19th-century cases, commentators and courts routinely explained that the right was
not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever
purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For
example, the majority of the 19th-century courts to consider the question held that prohibitions on
carrying concealed weapons were lawful under the Second Amendment or state analogues. See,
e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent
*340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do
not undertake an exhaustive historical analysis today of the full scope of the Second
Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions
on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of
firearms in sensitive places such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms.246
We also recognize another important limitation on the right to keep and carry arms. Miller said,
as we have explained, that the sorts of weapons protected were those “in common use at the
time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of
prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769);
3 B. Wilson, WORKS OF THE HONOURABLE JAMES WILSON 79 (1804); J. Dunlap, THE NEW-YORK
JUSTICE 8 (1815); C. Humphreys, A COMPENDIUM OF THE COMMON LAW IN FORCE IN KENTUCKY
482 (1822); 1 W. RUSSELL, A TREATISE ON CRIMES AND INDICTABLE MISDEMEANORS 271–272
(1831); H. Stephen, SUMMARY OF THE CRIMINAL LAW 48 (1840); E. Lewis, AN ABRIDGMENT OF
THE CRIMINAL LAW OF THE UNITED STATES 64 (1847); F. Wharton, A TREATISE ON THE CRIMINAL
LAW OF THE UNITED STATES 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384
(1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v.
Lanier, 71 N. C. 288, 289 (1874).
It may be objected that if weapons that are most useful in military service—M-16 rifles and the
like—may be banned, then the Second Amendment right is completely detached from the
prefatory clause. But as we have said, the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens capable of military service, who would
bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true
today that a militia, to be as effective as militias in the 18th century, would require sophisticated
arms that are highly unusual in society at large. Indeed, it may be true that no amount of small
arms ould be useful against modern-day bombers and tanks. But the fact that modern
developments have limited the degree of fit between the prefatory clause and the protected right
245
Miller was briefly mentioned in our decision in Lewis v. United States, 445 U. S. 55 (1980), an appeal from a conviction
for being a felon in possession of a firearm. The challenge was based on the contention that the prior feloy conviction had
been unconstitutional. No Second Amendment claim was raised or briefed by any party. In the course of rejecting the
asserted challenge, the Court commented gratuitously, in a footnote, that “[t]hese legislative restrictions on the use of
firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected
liberties. See United States v. Miller . . . (the Second Amendment guarantees no right to keep and bear a firearm that does not
have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id., at 65–66, n. 8. The
footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation
of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at
issue and was not argued.
246
We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

OF THIS CASE
cannot change our interpretation of the right.

(3). (August 24, 2004) The Conclusion in the U.S. Department of Justice
Memorandum Opinion for the Attorney General [John Aschroft] WHETHER
THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHTS.247
[W]e conclude that the Second Amendment secures an individual right to keep and to bear arms.
Current case law leaves open and unsettled the question of whose right is secured by the
Amendment. Although we do not address the scope of the right, our examination of the
original meaning of the Amendment provides extensive reasons to conclude that the Second
Amendment secures an individual right, and no persuasive basis for either the collective-right
or quasi-collective-right views. The text of the Amendment’s operative clause, setting out a “right
of the people to keep and bear Arms,” is clear and is reinforced by the Constitution’s structure.
The Amendment’s prefatory clause, properly understood, is fully consistent with this
interpretation. The broader history of the Anglo-American right of individuals to have and use
arms, from England’s Revolution of 1688-1689 to the ratification of the Second Amendment a
hundred years later, leads to the same conclusion. Finally, the first hundred years of
interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil
War period closest to the Amendment’s ratification, confirm what the text and history of the
Second Amendment require.
(4). (December 5, 2002) Silveira, et al. v. Lockyer, 9th Cir. No. 01-15098.
Despite the increased attention by commentators and political interest groups to the question of
what exactly the Second Amendment protects, with the sole exception of the Fifth Circuit’s
Emerson decision there exists no thorough judicial examination of the amendment’s meaning.
The Supreme Court’s most extensive treatment of the amendment is a somewhat cryptic
discussion in United States v. Miller, 307 U.S. 174 (1939). In that case, a criminal defendant
brought a Second Amendment challenge to a federal gun control law that prohibited the transport
of sawed-off shotguns in interstate commerce. The Court rejected the challenge to the statute. In
the only and oft-quoted passage in the United States Reports to consider, albeit somewhat
indirectly, whether the Second Amendment establishes an individual right to arms, the Miller
Court concluded:
In the absence of any evidence tending to show that possession or use of a ‘shotgun having a
barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the
preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice
that this weapon is any part of the ordinary military equipment or that its use could contribute to
the common defense.
Miller, 307 U.S. at 178. The Miller Court also observed more generally that “[w]ith the obvious
purpose to assure the continuation and render possible the effectiveness of [state militias] the
declaration and guarantee of the Second Amendment were made. It must be interpreted and
applied with that end in view.” Id. Thus, in Miller the Supreme Court decided that because a
weapon was not suitable for use in the militia, its possession was not protected by the Second
Amendment. As a result of its phrasing of its holding in the negative, however, the Miller Court’s
opinion stands only for the proposition that the possession of certain weapons is not protected,
and offers little guidance as to what rights the Second Amendment does protect. Accordingly, it
has been noted, with good reason, that “[t]he Supreme Court’s jurisprudence on the scope
247
http://www.usdoj.gov/olc/secondamendment2.pdf
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of [the Second] [A]mendment is quite limited, and not entirely illuminating.” Gillespie v.
City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999). What Miller does strongly imply,
however, is that the Supreme Court rejects the traditional individual rights view.
The only post-Miller reference by the Supreme Court to the scope of the amendment
occurred in Lewis v. United States, 445 U.S. 55, 65 n. 8 (1980), in which the Court noted, in a
footnote dismissing a Second Amendment challenge to a felon-in-possession conviction, that the
federal gun control laws at issue did not “trench upon any constitutionally protected liberties,”
citing Miller in support of this observation. In that footnote, Lewis characterized the Miller
holding as follows: “[T]he Second Amendment guarantees no right to keep and bear a firearm
that does not have ‘some reasonable relationship to the preservation or efficiency of a well-
regulated militia.’ “ Id. (quoting Miller, 307 U.S. at 178). The Lewis Court, like the Miller Court,
phrased its statements in terms of what is not protected. Lewis does, however, reinforce the strong
implication in Miller that the Court rejects the traditional individual rights model.
(5). (Revised October 18, 2001) United States v. Emerson, 5th Cir,, No. 99-
10331 (October 16, 2001)
“We reject the collective rights and sophisticated collective rights models for interpreting the
Second Amendment. We hold, consistent with Miller, that it protects the right of individuals,
including those not then actually a member of any militia or engaged in active military service or
training, to privately possess and bear their own firearms, such as the pistol involved here, that
are suitable as personal, individual weapons and are not of the general kind or type excluded by
Miller. However, because of our holding that section 922(g)(8), as applied to Emerson, does not
infringe his individual rights under the Second Amendment we will not now further elaborate
as to the exact scope of all Second Amendment rights.”
F. Eighth Circuit’s Faulty Logic on Machinegun Prohibition in United States v.

Hollis Wayne Fincher, No. 07-2514 and No. 07-2888 (August 13, 2008)
“Accordingly, under Heller, Fincher’s possession of the guns is not protected by the Second
Amendment. Machine guns are not in common use by law-abiding citizens for lawful
purposes and therefore fall within the category of dangerous and unusual weapons that the
government can prohibit for individual use. Furthermore, Fincher has not directly attacked the
federal registration requirements on firearms, and we doubt that any such attack would succeed in
light of Heller. Accordingly, because [-8-] Fincher’s possession of guns is not protected by the
Second Amendment, the district court did not abuse its discretion in preventing him from arguing
otherwise to the jury.”
United States v. Hollis Wayne Fincher, 8th Cir., No. 072514 and No. 07-2888 (Aug. 31. 2008), p. 7-8.

OF THIS CASE
“There’s a mighty big difference between good, sound reasons and reasons that
sound good.” Burton Hillis, cited in Laurence J. Peter, PETER’S QUOTATIONS:
IDEAS FOR OUR TIME (1977), p. 425.
Let’s begin the “Machine guns are not in common use by law-abiding citizens for lawful purposes
and therefore fall within the category of dangerous and unusual weapons that the government can prohibit
for individual use” line of logical reasoning with United States v. Miller, 307 U. S. 174 at 179 (1939):
THE POST HOC FALLACY OF LOGIC OVER MACHINEGUNS

False Cause: This fallacy establishes a cause/effect relationship that does not exist. There are various
Latin names for various analyses of the fallacy.
Event B. Event C.
THE FALSE ARGUMENT: Machine guns are not in
common use by law-abiding citizens for lawful purposes and . . . the government can prohibit for
therefore fall within the category of dangerous and unusual individual use.
weapons that . . .
THE INVERSE ARGUMENT: If machine guns were in
common use by law-abiding citizens for lawful purposes (the . . . the government could not prohibit
Swiss model) they would not fall within the category of machineguns for individual use.
dangerous and unusual weapons and . . .
Event A. The U.S. Government created the condition that machinguns are not in common use by
law-abiding citizens for lawful purposes by regulating and outlawing machineguns beginning with the
National Firearms Act of 1934.
The Federal Courts ignore Event A in order to maintain the Post Hoc fallacy of logic (the false cause)
between Events B and C to defend the U.S. Government’s actions prohibiting possession and ownership
of machineguns.
The two most common include these types of logical false causes:
(1) Non Causa Pro Causa (Literally, “Not the cause for a cause”): A general, catch-all category
for mistaking a false cause of an event for the real cause.
(2) Post Hoc, Ergo Propter Hoc (Literally: “After this, therefore because of this”): This type of
false cause occurs when the writer mistakenly assumes that, because the first event preceded the
second event, it must mean the first event caused the later one. Sometimes it does, but sometimes
it doesn’t. It is the honest writer’s job to establish clearly that connection rather than merely assert
it exists. Example: “A black cat crossed my path at noon. An hour later, my mother had a heart-
attack. Because the first event occurred earlier, it must have caused the bad luck later.” This is
how superstitions begin.
PART 3. THE P107

URPOSE OF THIS CASE
(1). Jacob Sullum, WHY NO RIGHT TO MACHINE GUNS? ReasonOnline,

June 26, 2008
WHY NO RIGHT TO MACHINE GUNS?
Jacob Sullum
http://www.reason.com/blog/printer/127226.html
June 26, 2008
Justice Antonin Scalia, writing for the majority in D.C. v. Heller, distinguishes between “unusual
and dangerous weapons,” which can be banned without violating the Second Amendment,
and weapons “in common use...for lawful purposes,” which can’t. The distinction is necessary
partly to shore up his argument that “nothing in our precedents forecloses our adoption of the
original understanding of the Second Amendment”—i.e., that it protects an individual right to
arms. In particular, Scalia argues that the 1939 decision U.S. v. Miller, which gun control
supporters (including the Heller dissenters) portray as endorsing the militia-only, collective-
right view of the Second Amendment, in fact “stands only for the proposition that the Second
Amendment right, whatever its nature, extends only to certain types of weapons.” The law at
issue in Miller was a federal ban on sawed-off shotguns, and the Court said “it is not within
judicial notice that this weapon is any part of the ordinary military equipment or that its use could
contribute to the common defense.” It therefore concluded that short-barreled shotguns are not
covered by the Second Amendment, which applies only to the sort of weapons that citizens would
bring with them for militia duty.
Scalia is right that Justice John Paul Stevens’ reading of Miller—that the Second
Amendment applies only to possession of guns while serving in the organized militia—is
implausible. “Had the Court believed that the Second Amendment protects only those serving in
the militia,” Scalia writes, “it would have been odd to examine the character of the weapon rather
than simply note that the two crooks were not militiamen.”
Nevertheless, for someone determined (as Scalia apparently is) to maintain existing federal gun
laws, there are a couple of problems with accepting the Miller Court’s view of which weapons are
covered by the Second Amendment. First, the Court’s assumption that short-barreled shotguns are
not appropriate for military use was incorrect. Second, this test would mean that the Second
Amendment covers machine guns, which also are banned by federal law.248 Scalia acknowledges
this difficulty:
Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only
those weapons useful in warfare are protected. That would be a startling reading of the opinion,
since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged
in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.
248
As a commenter noted, private citizens can legally possess machine guns manufactured before 1986 if they successfully
complete an onerous and expensive licensing process. The sale of new machine guns to civilians is prohibited.

OF THIS CASE
To avoid this uncomfortable result, Scalia latches onto another phrase in Miller:
We think that Miller’s “ordinary military equipment” language must be read in tandem with what
comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to
appear bearing arms supplied by themselves and of the kind in common use at the time.”
Machine guns obviously were not “in common use” at the time the Second Amendment was
adopted. But that’s not enough to avoid overturning the ban on automatic weapons, since, as
Scalia himself emphasizes, constitutional rights do not apply only to colonial-era technology:
Some have made the argument, bordering on the frivolous, that only those arms in existence in
the 18th century are protected by the Second Amendment. We do not interpret constitutional
rights that way. Just as the First Amendment protects modern forms of communications, and the
Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima
facie, to all instruments that constitute bearable arms, even those that were not in existence at the
time of the founding.
Scalia needs to make this point because otherwise today’s pistols and revolvers, quite different
from the firearms available in the 18th century, would not be covered by the Second Amendment.
But why stop there? Why isn’t an M-16, eminently suitable for military use but also the sort of
weapon militia members could keep in their homes and bring with them when their services were
necessary (as Swiss and Israeli citizen-soldiers do),249 included as well? Apparently
because machine guns are not “in common use...for lawful purposes” in the United States
today. But maybe they would be if they were legal. This seems like circular reasoning to
me. 250
G. Open Carry Handgun in Intrastate, Interstate, and Maritime Travel is the

Constitutional Norm Even Though it May Not Be the Social Norm or the Legal
Norm Today
(1). Nunn v. State, 1 Ga. (1 Kel.) 243 at 251 (1846) (cited, in part, by Heller):
“The right of the people to bear arms shall not be infringed.” The right of the whole people, old
and young, men, women and boys, and not militia only, to keep and bear arms of every
description, not such merely as are used by the militia, shall not be infringed, curtailed, or
broken in upon, in the smallest degree; and all this for the important end to be attained: the
rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a
free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and
void, which contravenes this right, originally belonging to our forefathers, trampled under foot by
Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688,
conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our
own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-
crowned field of New Orleans, plead eloquently for this interpretation! And the acquisition of
Texas may be considered the full fruits of this great constitutional right.
We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of
249
250
PART 3. THE P109

URPOSE OF THIS CASE
carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of
his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so
much of it, as contains a prohibition against bearing arms openly, is in conflict with the
Constitution, and void; and that, as the defendant has been indicted and convicted for carrying a
pistol, without charging that it was done in a concealed manner, under that portion of the statute
which entirely forbids its use, the judgment of the court below must be reversed, and the
proceeding quashed.
(2). State v. Chandler, 5 La. Ann. 489, at 489-490; 52 Am. Dec. 599 (1850)
(citied, in part, by Heller at 40)
The counsel of the accused requested the court to charge the jury, “that to carry weapons, either
concealed or openly, is not a crime in the State of Louisiana; that the Constitution which
guarantees to the citizen the right to bear arms cannot be restricted by the action of the
Legislature.”
The act of the 25th of March, 1813, makes it a misdemeanor to be “found with a concealed
weapon, such as a dirk, dagger, knife, pistol, or any other deadly weapon concealed in his bosom,
coat, or any other place about him, that does not appear in full view.” This law became absolutely
necessary to (p.490)counteract a vicious state of society, growing out of the habit of carrying
concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting
persons. It interfered with no man’s right to carry arms (to use its words) “in full open view,”
which places men upon an equality. This is the right guaranteed by the Constitution of the United
States, and which is calculated to incite men to a manly and noble defence of themselves, if
neccessary, and of their country, without any tendency to secret advantages and unmanly
assassinations.
(3). Andrews v. State, 50 Tenn. (3 Heisk.) 165, 8 Am. Rep. 8 (1871) (citied, in
part, by Heller at 57)
We hold, then, that the Act of the Legislature in question, so far as it prohibits the citizen “either
publicly or privately to carry a dirk, sword cane, Spanish stiletto, belt or pocket pistol,” is
constitutional. As to the pistol designated as a revolver, we hold this may or may not be such a
weapon as is adapted to the usual equipment of the soldier, or the use of which may render him
more efficient as such, and therefore hold this to be a matter to be settled by evidence as to what
character of weapon (p.187)is included in the designation “revolver.” We know there is a pistol of
that name which is not adapted to the equipment of the soldier, yet we also know that the pistol
known as the repeater is a soldier’s weapon--skill in the use of which will add to the efficiency of
the soldier. If such is the character of the weapon here designated, then the prohibition of the
statute is too broad to be allowed to stand, consistently with the views herein expressed. It will be
seen the statute forbids by its terms, the carrying of the weapon publicly or privately, without
regard to time or place, or circumstances, and in effect is an absolute prohibition against keeping
such a weapon, and not a regulation of the use of it. Under this statute, if a man should carry such
a weapon about his own home, or on his own premises, or should take it from his home to a
gunsmith to be repaired, or return with it, should take it from his room into the street to shoot a
rabid dog that threatened his child, he would be subjected to the severe penalties of fine and
imprisonment prescribed in the statute. [187.1] See Page v. State. Post 198, in note. Page v. State,
50 Tenn. (3 Heisk.) 198 (1871). This opinion appears as a note in the last four pages of Andrews.
It has been separated to this file.

OF THIS CASE
(4). State v. Reid, 1 Ala. 612 at 616, 35 Am. Dec. 44 (1840) (citied, in part, by
Heller at 57)
(Held: The act of the 1st of February, 1839, “To suppress the evil practice of carrying weapons
secretly,” does not either directly, or indirectly tend to divest the citizen of the “right to bear arms
in defence of himself and the State;” and is, therefore consistent with the 23d section of the 1 Art.
of the constitution [of Alabama].)
A statute which, under the pretence of regulating, amounts to a destruction of the right, or
which requires arms to be so borne as to render them wholly useless for the purpose of
defence, would be clearly (p.617)unconstitutional. But a law which is intended merely to
promote personal security, and to put down lawless aggression and violence, and to that end
inhibits the wearing of certain weapons, in such a manner as is calculated to exert an unhappy
influence upon the moral feelings of the wearer, by making him less regardful of the personal
security of others, does not come in collision with the constitution.
H. What is the Role of the Unorganized Militia, 10 U.S.C. § 311(b)(2) in Federalism

and Homeland Security?
Federalism and the separation of powers under the Tenth Amendment must include the unorganized
militia with their Second Amendment rights specifically and their Bill of Rights generally as a stop-gap measure
in the event of another total break down of law and order traditionally provided by the local, state and federal
governments as evidenced by the disastrous response to Hurricane Katrina in New Orleans in 2005 where police
officers themselves were looting stores with other looters all around them251 and the distrust and disbelieve of the
Katrina victims of abuse of power and authority and constitutional and human rights violations committed by
local, state, and federal governmental and law enforcement authorities by testifying before Congress of their
experiences during and after the destruction of Hurricane Katrina.
HOMELAND SECURITY AND THE LOST PROTECTION CLAUSE
Jason Mazzone
Assistant Professor of Law, Brooklyn Law School
Pages 93 and 96. (November 12, 2004)
In 1916, Congress passed the National Defense Act.252 The Act federalized the National Guard,
imposing greater federal control and providing increased funding. The Act made the Guard part
of the Army.253 The Act stated that the Militia consists of all able-bodied men between the ages
251
http://thatvideosite.com/video/614 -and- http://www.youtube.com/watch?v=X7Kc1sBntXI
But see official versions: http://www.gpoaccess.gov/serialset/creports/katrinasupp.html
http://www.gpoaccess.gov/Katrinareport/mainreport.pdf. See also, Donald C. Menzel, The Katrina Aftermath: A Failure of
Federalism or Leadership?, Public Administration Review: The Response to Hurricane Katrina (November | December 2006)
Donald C. Menzel is the Director of the Institute for Public Policy & Leadership at the University of South Florida Sarasota-
Manatee. Available online at: http://www3.interscience.wiley.com/cgi-bin/fulltext/118561452/PDFSTART.
252
NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 Stat. 166.
253
Id. pmbl:
That the Army of the United States shall consist of the Regular Army, the Volunteer Army, the Officers’ Reserve Corps, the
Enlisted Reserve Corps, the National Guard while in the service of the United States, and such other land forces as are now or
may hereafter be authorized by law.
PART 3. THE P111

URPOSE OF THIS CASE
of 18-45.254 The Militia was divided into three classes: the National Guard, the Naval Militia, and
the Unorganized Militia.255 No program was put in place under the Act for the Unorganized
Militia. 256
...
In addition to the historical development of the National Guard as a separate institution from the
old militia, rather than its heir, several functional distinctions weigh against equating guardsmen
with the old militiamen. The cornerstone of the Constitution’s militia was universal service (by
adult white men), whereas the National Guard is an entirely voluntary corps. The militia
originated as a local institution under the authority of the states. In sharp contrast, the National
Guard is, by law, part of the national military, run by, paid for, and mobilized by the national
government.257 Indeed, “[t]he militia . . . was designed and supported as an alternative to the
professional standing army of the central government. The modern National Guard, then, is not
just different from the militia referred to in the Constitution, it is in many ways, its antithesis.” 258
The militia was not only separate from the national army, it was meant to outnumber and
overpower it. (Recall Madison’s claim about what a half million militiamen could do to a couple
of thousand regulars.)259 By contrast, today more than 1.4 million troops belong to the regular
254
Id. § 57.
255
Id. [Plaintiff’s Emphasis on “Unorganized Militia”]
256
257
On modern funding of the old Militia, See H. Richard Uviller & William G. Merkel, THE MILITIA AND THE RIGHT
TO ARMS, OR, HOW THE SECOND AMENDMENT FELL SILENT, at 142-43 (Durham: Duke University Press, 2002):
With the help of lobbying by the NGA, Congress has judged and continued to judge the National Guard necessary to the
nation’s security and funds it handsomely in every federal budget. . . . The states, too, fund their Guards . . . albeit very much
less generously than the federal government. . . . In contrast to the National Guard, the unorganized militia—the shadow of
the common militia so extolled by the framers of the Second Amendment—has not been funded by Congress since at
least 1903. It is unclear that any state appropriated any of the funds Congress set aside for the common militia after
Reconstruction, or that any state provided funds for the unorganized militia after 1877, or even after 1850.
258
Id. at 153. These authors conclude that there is today no functionally equivalent entity of the old militia. Id. at 154.
259
See supra text accompanying note 174 (Included herein, footnotes omitted):
Federalists also emphasized the important role the militia would perform under the Constitution to prevent abuses by a
standing national army. Some delegates to Philadelphia specifically sought to add to the Constitution a statement that the
militia was a guard “against the danger of standing armies in time of peace.” Hamilton in Federalist 29 argues that federal
control over the militia would in fact protect liberties: the militia was “the only substitute that can be devised for a standing
army; and the best possible defense against it, if it should exist.” Madison calculated that given the option of employing the
militia, the federal government would not need a very large army at all: it would never comprise more than 25,000 or 30,000
men. An army of that size prevented little risk to liberties because it would be “opposed [by] a militia amounting to near half
a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common
liberties, and united and conducted by governments possessing their affections and confidence.” In any showdown, the
militia would never “be conquered by such a proportion of regular troops.” Preventing abuses by a national army therefore
required giving the national government power to employ the militia for security purposes so it would not be tempted to
deploy federal troops instead.176 (Madison also thought the political safeguards of federalism would keep in check national
military power.) As for the militia, it would never turn against the people even when under federal command because “the
existence of subordinate governments to which the people are attached, and by which the militia officers are appointed, forms
a barrier against the enterprises of ambition.” Finally, federalists emphasized that because the militia comprised ordinary
citizens, giving the national government power to march militia units into other states would not render them an instrument of
oppression.

OF THIS CASE
United States military establishment; the Army National Guard has about 360,000 members.260
The distinction between the old militia as an alternative to a standing army and the National
Guard as the army itself is symbolized by a further difference: who takes care of the weapons.
Militiamen kept their guns at home because they might need them at any moment to rise up in
arms against oppression. Weapons for use by National Guardsmen are kept under lock and key in
federal armories: the only armed fighting Guardsmen do is at the direction of the government
itself.261
THE MINUTEMEN, THE NATIONAL GUARD AND THE PRIVATE MILITIA MOVEMENT:
WILL THE REAL MILITIA PLEASE STAND UP?
Chuck Dougherty
28 John Marshall Law Review 959, 962-970 (Summer 1995)
Though the division of the militia into organized and unorganized branches still exists today,
Congress has not explicitly defined the role of the unorganized militia.262 Nevertheless, federal
statutes do provide for civilian firearms training as part of the Civilian Marksmanship Program. 263
Although legislators have attacked the program as being outdated, 264 it has survived
260
H. Richard Uviller & William G. Merkel, THE MILITIA AND THE RIGHT TO ARMS, OR, HOW THE SECOND
AMENDMENT FELL SILENT, at 143 (Durham: Duke University Press, 2002).
261
Id. at 143-44.
262
See Keith A. Ehrman & Dennis A. Henigan, THE SECOND AMENDMENT IN THE TWENTIETH CENTURY: HAVE YOU SEEN YOUR
MILITIA LATELY?, 15 U. Dayton L. Rev. 5, at 37 n.242 (1989). See supra note 15 [in original] for federal and state provisions
calling for the existence of an unorganized militia [included herein for convenience]:
For the federal unorganized militia statute, see 10 U.S.C. S 311 (1993). The statute provides that “The militia of the United
States consists of all able-bodied males at least 17 years of age and . . . under 45 years of age . . . and of female citizens of the
United States who are members of the National Guard.” S 311(a). The statute then defines the unorganized militia as
“members of the militia who are not members of the National Guard or the Naval Militia.” S 311(b)(2).
Similar constitutional provisions or statutes exist in most states. See, e.g., Ariz. Const. art. 16, S 1; Ark. Const. art. 11, S 1;
Colo. Const. art. 17, S 1; Ind. Const. art. 12, S 1; Iowa Const. art. 6, S 1; Kan. Const. art. 8, S 1; Ky. Const. S 219; Me. Const.
art. 7, S 5; Miss. Const. art. 9, S 214; Mont. Const. art. VI, S 13, cl. 2; N.M. Const. art. 18, S 1; S.D. Const. art. 15, S 1; Wyo.
Const. art. 17, S 1; Ala. Code S 31-2-2 (1975); Alaska Stat. S 26-05-010 (1962); Cal. Mil. & Vet. Code S 121 (West 1982);
Conn. Gen. Stat. S 27-1 (1958); Del. Code Ann. tit. 20, S 121 (1974); Fla. Stat. ch. 250.02(1) (1941); Ga. Code Ann. S 38-2-
3(d) (1981); Haw. Rev. Stat. S 121-1(4) (1976); Idaho Code S 46-102 (1932); Ill. Comp. Stat. Ann. 1805/1 S 1 (Smith-Hurd
1993); La. Rev. Stat. Ann. S 29:3 (West 1950); Md. Ann. Code art. 65, S 1 (1973); Mass. Gen. L. ch. 33, S 2 (1932); Mich.
Comp. Laws S 32.509 (1992); Minn. Stat. S 190.06 (1946); Mo. Rev. Stat. S 41.050 (1985); Neb. Rev. Stat. S 55-106 (1943);
Nev. Rev. Stat. S 412.026 (1991); N.H. Rev. Stat. Ann. S 110- B:1(IV) (1983); N.J. Rev. Stat. S 38A:1-2 (1987); N.Y. Mil.
Law S 2(2) (McKinney 1988); N.C. Gen. Stat. S 127A-1 (1986); N.D. Cent. Code S 37-02-01 (1943); Ohio Rev. Code Ann.
S 5923.01 (1953); Okla. Stat. tit. 44, S 41 (1987); Or. Rev. Stat. S 396.105(3) (1983); 51 Pa. Stat. Ann. S 301(a)(1) (1984);
R.I. Gen. Laws S 30-1-2 (1989); S.C. Code Ann. S 25-1- 60 (Law. Co-op. 1976); Tenn. Code Ann. S 58-1-104(d) (1956);
Utah Code Ann. S 39-1-1(1) (1953); Vt. Stat. Ann. tit. 20, S 1151 (1987); Va. Code Ann. S 44-1 (Michie 1950); Wash. Rev.
Code S 38.04.030 (1961); Wis. Stat. S 15-5-19 (1986). A Texas statute provides for a Texas State Guard which, unlike the
unorganized militias in most states, consists entirely of volunteers. Tex. Gov’t Code Ann. S 431.052 (West 1989). The
Wisconsin Constitution mentions an unorganized militia, but leaves its membership undefined. Wis. Const. art. IV, S 29.
263
10 U.S.C. S 4311 (1993). The statute provides that “(t)he Secretary of the Army may provide for the issue of a reasonable
number of standard military rifles, and the sale of such quantities of ammunition as are available, for use in conducting rifle
practice.” Id. In addition, this program provides for the operation of rifle ranges, employment of instructors, and competitions
for certain youth groups, as well as adults who are members of a gun club affiliated with the program. 10 U.S.C. S 4308
(1993). The youth groups include the Boy Scouts of America, 4-H Clubs and Future Farmers of America. Id.
264
139 Cong. Rec. S14122-01, S14132 (daily ed. Oct. 21, 1993) (statements of Sen. Domenici). Congress enacted the
program following the Spanish-American War to heighten preparedness for combat among potential army inductees. Id.
PART 3. THE P113

URPOSE OF THIS CASE
Congressional [p.970] debates as recently as June 1994.265 At least one senator has argued that
the program continues to add to the nation’s defense capability. 266 Additionally, a United States
Army study found that individuals who received training in the program were significantly more
effective in combat than those without such training.267 However, although Congress explicitly
created a dual- militia system, the unorganized militias of the various states have remained
largely dormant.268
...
3. The Unorganized Militia
The federal government has afforded the unorganized militia no protection from federal firearms
regulations. 269 Since the unorganized militia’s membership comprises much of the general
citizenry, Congress has indirectly applied all federal firearms regulations to this group.270 While
the unorganized militia may be entitled to some Second Amendment protection, the small role
that states have given their unorganized militias limits the extent of this right.
The unorganized militia is wholly incapable of protecting the United States from foreign
aggression, and thus cannot receive Second Amendment protection for this militia purpose. The
unorganized militia has been called upon to fill this role in the past: governors have deployed
265
139 Cong. Rec. H5435-36 (daily ed. June 29, 1994) (statement of Rep. Mahoney). Congress authorized $2.5 million to be
used in fiscal year 1994 for the Civilian Marksmanship Program. 139 Cong. Rec. S14122-01, S14132 (daily ed. Oct. 21,
1993) (statement of Rep. Schatz).
266
139 Cong. Rec. S14122-01, S14133 (daily ed. Oct. 21, 1993) (statements of Sen. Craig). “(T)he talent of well-trained men
and women for purposes of marksmanship as it relates to the defense of this country really has not changed and it will not
change, only ebb and flow with our times and with our history.” Id.
267
See James B. Whisker, The Citizen-Soldier Under Federal and State Law, 94 W. Va. L. Rev. 947, at 969-70 (1992)
(summarizing the Arthur D. Little Report to the U.S. Army, 1966). Individuals engaged in combat who had previous firearms
training suffered fewer casualties, maintained their weapons better, and fired more often and with greater accuracy than those
without such prior training. Id.
268
See infra notes 185, 188 and accompanying text for a discussion of the few times that a state has called its unorganized
militia into service.
269
See generally Ehrman & Henigan, supra note 25 (noting that federal statutes are consistent with modern Federal Courts of
Appeals decisions finding that the National Guard is the only militia protected from federal firearms regulation).
270
Congress has not treated all persons equally with respect to firearms regulations. In particular, federal statutes entirely
exclude members of several groups from ownership of firearms. See 18 U.S.C. S 922(g) (1993) (prohibiting felons, fugitives
from justice, drug addicts, aliens, those dishonorably discharged from the armed services, or those who have renounced their
United States citizenship from possessing firearms). The federal courts have consistently upheld the constitutionality of such
restrictions. See, e.g., Lewis v. United States, 445 U.S. 55, 65-66 (1980) (finding that the exclusion of felons from the right to
possess firearms was consistent with Fifth Amendment Due Process). Commentators have noted that the “people” Madison
referred to in the Second Amendment are only those entitled to the full benefits of society. See Don B. Kates, Jr., HANDGUN
PROHIBITION AND THE ORIGINAL MEANING OF THE SECOND AMENDMENT, 82 Mich. L. Rev. 204, at 266 (1983) (noting the
attitude of the Constitution’s drafters against granting rights to convicted felons). Delegates at the state ratification
conventions made comments that directly support the view that the Second Amendment right excludes felons. Id. at 222. The
Pennsylvania right to arms proposal read, in pertinent part, “(N)o law shall be passed for disarming the people or any of them
unless for crimes committed, or real danger of public injury from individuals. . . .” Id. (quoting 2 B. Schwartz, THE BILL OF
RIGHTS: A DOCUMENTARY HISTORY 665 (1971)). Samuel Adams proposed that the Second Amendment right be limited to
peaceable citizens. Id. at 224.

OF THIS CASE
their unorganized militias as recently as World War II to repel foreign invasion.271 However, the
rapid advance of weapons technology since that time has left untrained, lightly-armed individuals
unable to resist any significant foreign threat.272
Modern police forces have generally replaced the eighteenth- century militia in the role of law
enforcement.273 However, governors [p.984] have occasionally called out their state’s
unorganized militia to quell civil unrest. 274 Sheriff’s Departments across the country still use the
common law posse comitatus concept to augment their law enforcement capabilities. 275
Additionally, individuals still use personally-owned firearms to prevent criminal activity or detain
criminals until the arrival of police.276 Thus, the Second Amendment may extend some
protection to the unorganized militia in the role of law enforcement. However, the extent to which
professional police provide for law enforcement today severely limits the unorganized militia’s
role.
4. Private “Citizen” Militias
Members of private militia organizations gain no Second Amendment rights by virtue of such
membership. The debates surrounding the ratification of the Constitution make clear that the
drafters’ definition of “militia” did not include private armies.277 The Federalists and Anti-
Federalists disagreed over how militia control would be divided between the federal and state
governments, but no one argued that the militia should be independent of all governmental
control.278 The concerns of the Anti-Federalists pertaining to the militia all involved retaining
control over the militia for the state governments.279 Thus, the inclusion of the Second
Amendment in the Bill of Rights rose out of concerns over federalism, not the protection of
271
Don B. Kates, Jr., HANDGUN PROHIBITION AND THE ORIGINAL MEANING OF THE SECOND AMENDMENT, 82 Mich. L. Rev. 204,
at 271-72 (1983) Following the Japanese attack of Pearl Harbor, the Governor of Hawaii called upon armed citizens to
augment the islands’ sparse defenses in repelling the anticipated Japanese invasion. Id. at 272 n.284.
272
But cf., id. at 271 (arguing that Congress, by failing to repeal the militia statute creating the unorganized militia, has
implicitly found the unorganized militia necessary in the case of “dire military emergency.”).
273
See, e.g., Sanford Levinson, THE EMBARRASSING SECOND AMENDMENT, 99 Yale L. J. 637, at 656 (1989) (acknowledging
the argument that professional police forces have made armed citizens irrelevant to effective law enforcement).
274
See, e.g., James B. Whisker, The Citizen-Soldier Under Federal and State Law, 94 W. Va. L. Rev. 947, at 973 (1992)
(describing Virginia Governor William Mumford Tuck’s use of the unorganized militia to prevent a utility worker strike).
275
See, e.g., Street Smart, L.A. Times, Aug. 8, 1994, at B1 (describing police use of the posse comitatus power to
commandeer vehicles and solicit assistance in pursuing criminals).
276
Every month, the National Rifle Association publishes examples of individuals countering criminal activity with firearms.
See, e.g., The Armed Citizen, Am. Rifleman, Sept. 1994, at 8. But See LaFawn Oliver, Protect Your Home Against Burglary,
Lewiston Morning Trib., July 19, 1992, at D2 (noting the danger of a criminal disarming a homeowner and using the
homeowner’s gun against him or her).
277
See supra notes 36-74 [in orginal] for a discussion of these debates. Senator Joseph Biden finds the use of the term “well
regulated” to be dispositive in determining that private organizations cannot claim Second Amendment protection. Meet the
Press (NBC Television broadcast, Apr. 30, 1995) (“(The private militias) are not constitutionally mandated. . . . (The Second
Amendment) says .well regulated’ militia, meaning a government . . . controls that militia; if they (are not government
controlled), they are not a militia.”). See supra notes 157-62 and accompanying text for a discussion of the phrase “well
regulated.”
278
Keith A. Ehrman & Dennis A. Henigan, THE SECOND AMENDMENT IN THE TWENTIETH CENTURY: HAVE YOU SEEN YOUR
MILITIA LATELY?, 15 U. Dayton L. Rev. 5, at 20 (1989).
279
See supra notes 43-46 [in orginal] for a discussion of the three principal Anti-Federalist concerns that relate to the militia.
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individual [p.985] rights.280 [194] The Second Amendment should protect the individual state
militiaman in the performance of his duties; however, that protection is ancillary to the protection
afforded to the state militias. Thus, once a militia member steps outside of his role as a state actor,
his Second Amendment protection ceases to exist. The private “citizen” militias, which generally
have no state affiliation, 281 can therefore receive no special Second Amendment protection.
FEDERALISM AND THE TUG OF WAR WITHIN:

SEEKING CHECKS AND BALANCE IN THE INTERJURISDICTIONAL GRAY AREA
Erin Ryan
66 Maryland Law Review 503 (2007)
Abstract:
FEDERALISM AND THE TUG OF WAR WITHIN explores tensions that arise among the underlying
values of federalism when state or federal actors regulate within the ‘‘interjurisdictional gray area’’
that implicates both local and national concerns. Drawing examples from the failed response to
Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article
demonstrates how the trajectory set by the New Federalism’s ‘‘strict-separationist’’ model of dual
sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, pro-
accountability, and localism-protective values of federalism, the Article identifies a problemsolving
value inherent in the capacity requirement of American federalism’s subsidiarity principle (that
regulatory decisionmaking should take place at the most local level possible). The progression of
federalism models informing Supreme Court interpretation over the 20th century reflects a pendulum-
like attempt to reach the proper balance between these competing values. Although the Court’s
federalism jurisprudence during the New Deal era prioritized the problem-solving value over the
‘‘check-and-balance’’ anti-tyranny value, the New Federalism decisions exalt the check-and-balance
value at the expense of the problem-solving (and all other) values, protecting the bright line posited
between mutually exclusive spheres of state and federal regulatory authority.
Interjurisdictional problems uncomfortably blur that boundary, pitting problem-solving and checks-
and-balances against one another by demanding both local and national regulatory attention. But it
is arguably the tension between these values that has made our system of government so robust------
enabling it to adjust for changing demographics, technologies, and expectations without losing its
essential character. The New Federalism’s focus on checks and balances above all else compromises its
ability to effectively mediate this critical competition, sacrificing other federalism values and
obstructing even desirable regulatory activity in the interjurisdictional gray area (such as federal
initiative that might have been taken in the wake of Katrina). The comparatively pragmatic
cooperative federalism model affords some balance, but is critiqued by New Federalism proponents as
providing insufficient checks.
To remedy the theoretical problems left unresolved by cooperative federalism and the pragmatic ones
caused by New Federalism, this Article argues that the Court should adopt a model of Balanced
Federalism that better mediates between competing federalism values and provides greater guidance for
280
See Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW 299 n.6 (2d ed. 1988) (finding that the sole concern of the second
amendment’s framers was to prevent federal interferences with the state militia). Professor Tribe concludes that the Second
Amendment is “merely ancillary to other constitutional guarantees of state sovereignty.” Id.
281
A few such organizations, including the private militias in the Florida panhandle, do claim some marginal state affiliation.
See, e.g., Santa Rosa County, Florida, Resolution No. 94-09 (Apr. 14, 1994) (establishing the Santa Rosa County Militia by
nonbinding resolution).

OF THIS CASE
regulatory decisionmaking in the interjurisdictional gray area. Where the New Federalism asks the
Tenth Amendment to police a stylized boundary between state and federal authority from crossover by
either side, Balanced Federalism asks the Tenth Amendment to patrol regulatory activity within the
gray area for impermissible compromises of fundamental federalism values. The Article concludes by
introducing the outlines of a jurisprudential standard for interpreting Tenth Amendment claims
within a model of Balanced Federalism dual sovereignty that affords both checks and balance. Such a
framework would foster a healthier dialectic between the various federalism values that, though in
tension with one another, have made our system of government so effective and enduring.
C ONCLUSION: SEEKING CHECKS AND B ALANCE IN FEDERALISM
The accelerating interdependence of modernity has revived the great dilemma of
constitutional federalism------ that is, how to define the boundaries of state and federal
jurisdiction so as to preserve checks and balances without eviscerating effective regulatory
responses to interjurisdictional problems. The Tenth Amendment, representing the most
direct (if nondirective) constitutional statement about the balance
of local and national power, has become a site of heated political contest between those
who respectively favor stronger and weaker boundaries between local and national reach.
According to the former, the interlinking cooperative federalism model that drives many
of our most ambitious regulatory endeavors impermissibly threatens the constitutionally
intended balance;282 to the latter, the strictseparationist New Federalism approach
impossibly threatens meaningful resolution of our most pressing societal problems.283 Still,
the intractability of interjurisdictional regulatory problems like Katrina, national security
maintenance, air and water pollution, and others all highlight the need to develop a
model of Balanced Federalism that can more meaningfully contend with the
interjurisdictional gray area.
The Court’s New Federalism jurisprudence points us toward a strict-separationist model of
federal-state relations that assumes a clear line between areas of properly national and
inviolate local concern, policed by the Tenth Amendment. A host of controversial
preemption cases, doctrinally silent on federalism but for their vociferous dissents, acts in
282
See, e.g., Jonathan H. Adler, JUDICIAL FEDERALISM AND THE FUTURE OF FEDERAL ENVIRONMENTAL REGULATION, 90 Iowa
L. Rev. 377, 399 (2005) (stating that the administration of federal programs through the states obscures federal
regulatory responsibility); Michael S. Greve, Against Cooperative Federalism, 70 MISS. L.J. 557, at 576 (2000)
(arguing that a system of cooperative federalism threatens central constitutional values); Roderick M. Hills, Jr., The
Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and ‘‘Dual Sovereignty’’ Doesn’t,
96 MICH. L. REV. 813, at 891-908 (1998) (decrying commandeering as inefficient, unjust in cost distribution, and
violative of the First Amendment as forced speech).
283
See, e.g., Daniel C. Esty, REVITALIZING ENVIRONMENTAL FEDERALISM, 95 Mich. L. Rev. 570, at 623-24 (1996)
(finding that environmental programs are best enforced with both state and federal cooperation); Robert A.
Schapiro, TOWARD A THEORY OF INTERACTIVE FEDERALISM, 91 Iowa L. Rev. 243, at 258 (2005) (finding that the
dualist federalist approach advanced by the Supreme Court may limit Congress’s ability to deal with various
national problems, such as environmental protection); Philip J. Weiser, FEDERAL COMMON LAW, COOPERATIVE
FEDERALISM, AND THE ENFORCEMENT OF THE TELECOM ACT, 76 N.Y.U. L. Rev. 1692 at 1733-34 (2001) (noting that
the dual federalism approach has not worked in the telecommunications context and in fact, ‘‘defied reality’’);
Phillip J. Weiser, TOWARDS A CONSTITUTIONAL ARCHITECTURE FOR COOPERATIVE FEDERALISM, 79 N.C. L. Rev. 663, at
665-66 (2001) (observing that the New Federalism rhetoric does not account for the practical need for federal-
state regulatory sharing); John D. Tortorella, Note, REINING IN THE TENTH AMENDMENT: FINDING A PRINCIPLED LIMIT TO
THE NON-COMMANDEERING DOCTRINE OF UNITED STATES V. PRINTZ, 28 Seton Hall L. Rev. 1365, 1381 (1998) (stating
that Printz’s non-commandeering rule will impede Congress’s ability to implement important policy objectives).
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URPOSE OF THIS CASE
tacit support of the project. Yet this idealistic bright line between mutually exclusive
spheres of authority is illusory. At the margins, a gray area exists in which regulatory
problems implicate matters of both national and local obligation. Decisionmaking that
imposes the bright-line rule in the interjurisdictional gray area is doomed to arbitrariness,
unable to navigate the tension there arising between the competing federalism values of
checks and balances, accountability, localism, and problem-solving. The latter value is
especially weakened in the strict-separationist approach, promoting inefficient regulatory
response in the gray area.
Yet even if legitimate constitutional interpretation does not require the bright-line rule
approach, neither does it warrant a wholesale abandonment of the check-and-balance
value that the New Federalism privileges. The fact that federalism constraints enjoy no
natural constituency suggests that judicially enforceable constraints may be necessary if we
value federalism’s underlying principles,284 as this piece argues we should. A powerful case
can be made for the importance of the under-appreciated problem-solving value, but each
of the others continue to exert considerable normative force.285 Federalism itself remains
content-neutral, designed to realize a set of competing good government values that are
suspended in a permanent tug of war.
What is needed, simply, is balance. The embrace of a Balanced Federalism model of dual
sovereignty that anticipates interjurisdictional problems would facilitate interpretation of
the Tenth Amendment so that it can police the real boundary at issue: that between
legitimate and unjustifiable regulation within the interjurisdictional gray area. It would
facilitate interpretation of the other controversial federalism inquiries that hinge on our
conception of dual sovereignty, such as the scope of the commerce power and the
relationship between federal authority under Section Five of the Fourteenth Amendment
and state sovereign immunity under the Eleventh Amendment. In Balanced Federalism,
the Tenth Amendment functions not as the blunt bright-line rule into which it has been
caricatured by the New Federalism, but instead as the guardian of dual sovereignty by the
careful application of a jurisprudential standard made sensitive to the clash of federalism
values in the gray area. Dual sovereignty under Balanced Federalism may be less
attractively simple than New Federalism’s strict-separationist ideal, but it would be more
honest, more grounded in reality, and ultimately more useful. A judicial balancing test
such as that proposed in Part VI would assist application of Balanced Federalism Tenth
Amendment constraints to the variety of challenges that arise in the gray area, providing
guidance for courts and policymakers nationwide.
Much work is needed to bring this proposal to maturity. Still, moving toward a more
Balanced Federalism would progress the discourse at a critical time for both federalism
and regulatory law. At stake is the ability of state and federal government to take on
confounding interjurisdictional problems without compromising the important
federalism values associated with structural checks and balances, all while continuing to
promote accountability and localized diversity and innovation. Moving from the bright-
line approach to the jurisprudential standard would maintain a healthy balance between
284
See Neal Devins, THE JUDICIAL SAFEGUARDS OF FEDERALISM, 99 NW. U. L. REV. 131, at 133 (2004) (discussing
voter disregard for federalism issues), and accompanying text.
285
Indeed, those so satisfied with the New Deal expansion of federal legislative jurisdiction that anti-tyranny
constraints now seem quaint might reflect on whether the expansion of federal executive authority in the post-9/11
era alters this complacency.

OF THIS CASE
local and national power without catapulting any one federalism value over all competing
considerations. And it would help make the difference between a faltering, ponderous
response to interjurisdictional crises like Katrina and the more confident, smoothly
coordinated regulatory response of which we should be capable.
ALL THE WAY DOWN THE SLIPPERY SLOPE:

GUN PROHIBITION IN ENGLAND AND SOME LESSONS FOR CIVIL LIBERTIES IN AMERICA
Joseph E. Olson and David B. Kopel
22 Hamline L. Rev. 399 at 414 (1999)
“As a result of alcohol prohibition, the United States in the 1920s and early 1930s did have a
problem with criminal abuse of machine guns, a fad among the organized crime gangsters who
earned lucrative incomes supplying bootleg alcohol, although most such firearms were owned by
peaceable citizens. The repeal of Prohibition in 1933 had sent the American murder rate
into a nosedive, but in 1934 Congress went ahead and enacted the National Firearms Act
anyway.”286
XI.
Conclusion: Towards Closer Analysis of Slippery Slopes
While slippery slopes are frequently invoked in political and legal debate, little attention has
been paid to factors that contribute to the real, as opposed to the merely theoretical, danger that a
first step down a slippery slope may lead to severe damage or even elimination of a civil liberty.
This Essay has identified the following factors that helped lead to the destruction of the right to
arms in Great Britain:
• media sensationalism about abuses of the right and media hostility toward the exercise of the
right;
• technological changes that introduce new and socially controversial (p.463)ways of
exercising the right;
• the hesitation of extending civil liberties principles developed under old technologies to new
technologies;
• the creation of government jurisdiction, in the form of a licensing system, that created a
platform for administrative constriction of the right;
• political leaders gaining political benefits (such as diverting the public from the death
penalty, or demonstrating the leader’s compassion) from attacks on the right;
• restrictions aimed at teenagers, which over the long term reduced the number of adults
interested in the exercising of the right, and, consequently reduced the number of adults
interested in defending the right politically;
• shifting the burden of proof away from the government, which no longer had to prove the
need for new restrictions or for the denial of a permit to exercise the right, and placing the
burden on the individual, who had to prove his or her need to own a particular item;
• restrictions created by administrative fiat that further reduced adult entry into or continuance
in the activity, thus driving the exercise of the right to levels so low that rights advocates
286
Plaintiff’s emphasis. http://www.guncite.com/journals/okslip.html
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URPOSE OF THIS CASE
became an insignificant political group;

• the production of deliberately misleading data by the government in support of restrictive
legislation;
• registration of the property of persons who exercised the right, which was later used to
facilitate confiscation of property;
• the government’s loss of trust in ordinary citizens.
In addition, we identified one other potential factor that might encourage movement down a
slippery slope, that being the prominent success of an earlier step down the slope; this factor did
not appear to be present in England. None of the British gun controls resulted in any statistically
noticeable reduction in crime in the years after their enactment.
These factors are not the only factors that could make a slippery slope situation dangerous; but
when slippery slope arguments are raised, the presence (or absence) of these factors may
indicate how real the slippery slope danger is. The more factors that are present, the greater the
potential slippery slope risk.
This Essay has also identified several structural elements in the British system of government
that contributed to the gradual elimination of the right to arms in Great Britain:
• rights are subject to balancing against perceived government or social needs;
• the government is not constrained by internal checks and balances;
• there is a consensus that Parliament, which is, in practice, a few leaders of the majority
party, rather than the people or the law, is sovereign;
• there is no written constitution;(p.464)
• the absence of a right in a written constitution impedes the growth of rights consciousness
among the people.
Regarding most of these elements, the United States is radically different from Great Britain.
Consequently, civil liberties of all types are stronger in the United States than in Great Britain.
However, the erosion of federalism and of the separation of powers over the last half century in
the United States should caution Americans against complacency regarding the security of their
constitutional structure.
We also identified several factors about the political defense of gun rights in Great Britain that
made the arms right vulnerable to the slippery slope. Most of these factors have parallels
regarding the defense of other civil liberties in Britain:
• the right was defended only on sporting grounds, and not on the basis that it protects people
from dangerous criminals or from dangerously criminal governments;
• the right’s defenders accepted and even applauded a great deal of regulation of the right;
• the right’s defenders accepted the principle that the right could be further regulated
whenever the government saw a need, rather than only when there was a genuine necessity
for more regulation;
• the right’s defenders usually appeased the government, rather than resisting unjustifiable
government demands for more controls;
• people who exercised the right in one way were often unwilling to defend people who
exercised the right in a different way.

OF THIS CASE
As with constitutional structure, the American system is considerably more sound than the
British one. Civil liberties organizations such as the National Rifle Association and the
American Civil Liberties Union are bolder than their British counterparts, and better able to
articulate strong theories of right that can withstand heavy political assault and pressure to
balance the right against other interests.
In the United States’ political and legal debate, arguments for or against slippery slopes have
heretofore often been made in a simplistic manner, with little more than assertions that slippery
slope dangers do or do not exist. We hope that this Essay can provide a step toward a more
complex analysis of slippery slopes by highlighting some of the elements that can increase or
decrease slippery slope risks.
Slippery slopes are not inevitable, but neither are they imaginary. The British experience
demonstrates that many civil liberties, including the right to arms, really can slowly slide all the
way to the bottom of the slippery slope. While we have not aimed to convince readers to value
any particular civil liberty, such as arms, speech, or protection from warrantless searches, we
have attempted to show that it is reasonable for groups that do honor such rights, like the NRA,
ACLU, or NACDL, to refuse to acquiesce in “reasonable” infringements of those rights. Even
though, as John Maynard (p.465)Keynes observed, we are all dead in the long run, persons who
cherish a particular civil liberty want that liberty to endure not just in their own lifetimes, but in
the lives of subsequent generations. In the long run, the best way to protect a given civil liberty
from destruction may be to resist even the smallest infringements in short run.
EXPOSING THE SECOND AMENDMENT:

FEDERAL PREEMPTION OF STATE MILITIA LEGISLATION
J. Norman Heath
79 U. Det. Mercy L. Rev.39 (2001).
http://www.guncite.com/journals/heath.html
II. Militia Preemption and the Marshall Court: State Militia Law Held Invalid
Professor Laurence H. Tribe identifies in Supreme Court jurisprudence three modes of federal
preemption exercisable by Congress against the states:
(1) “express preemption,” where Congress has in so many words declared its
intention to preclude state legislation of a described sort in a given area;
(2) “implied preemption,” where Congress, through the structure or objectives of
its enactments has by implication precluded a certain kind of state regulation in
an area; and
(3) “conflict preemption,” where Congress did not necessarily focus on
preemption of state regulation at all, but where the particular state law conflicts
directly with federal law, or otherwise (p.44) stands as an obstacle to the
accomplishment of federal statutory objectives.
In addition, Professor Tribe recognizes:
Because congressional purposes can be either substantive or jurisdictional, a state action may be
struck down as an invalid interference with the federal design either because it is in substantive
conflict with the operation of a federal regulation or program or because, whatever its
substantive impact, it intrudes jurisdictionally upon a field that Congress has validly reserved for
exclusively federal regulation. It is this latter phenomenon that some describe as field (or
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URPOSE OF THIS CASE
“occupying the field”) preemption - which, it is worth stressing, may fall into any of the three
categories set forth above. 287
IX. Conclusion
The federal court gun-possession case pronouncements bearing on the militia and federalism are
irreconcilable with the actual constitutional status of state militia regulation as expounded by the
U.S. Supreme Court. Intentionally or otherwise, jurists have deluded themselves and the legal
community into accepting the convoluted proposition that plenary power to organize and arm the
militia was both delegated to Congress (through the Militia Clauses) and(p.72) reserved to the
states (under the Second Amendment). 288 If such a phenomenon exists in the U.S. Constitution
it is remarkable that the Supreme Court has never cited the Second Amendment as an example
of “dual sovereignty,” “dual federalism,” or “new federalism” in the course of its endless labors
to define the boundaries of state and federal power.
In actual Supreme Court jurisprudence, there is no constitutional provision other than Article I,
Section 8, Clause 16 which limits Congressional interference with the “state” militia. The
Court’s repeated citations to the preemption of state militia law when adjudicating state-federal
conflicts in other areas of regulation greatly reinforce the conclusion that state militia powers are
ordinary in their susceptibility to federal preemption. Because the Second Amendment is not a
prophylactic benefiting state legislative or executive powers, it must represent either a
nonsensical protection of federal militia powers from federal interference,289 or it represents
some type of right held directly by the people. Any benefit to the state governments from the
Second Amendment must be incidental to a citizen-held right binding on the federal
government.
The dwindling proponents of the “states’ right” interpretation of the amendment cannot point to
a single instance of a militia-related(p.73) federal law being invalidated on Second Amendment
grounds, despite the Supreme Court having had multiple opportunities spread over two centuries
to invoke the amendment for that purpose.
287
Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW § 6-28, at 1176-77 (3d ed.2000).
288
A statement found on the American Bar Association’s website reads, “The United States Supreme Court and lower federal
courts have consistently interpreted this Amendment only as a prohibition against Federal interference with State militia and
not as a guarantee of an individual’s right to keep or carry firearms.” at http://www.abanet.org/gunviol/secondamend.html.
The basis for the A.B.A.’s claim that the U.S. Supreme Court endorses the “states’ right” interpretation of the amendment is
almost certainly to be found in a disputed reading of U.S. v. Miller, see supra text accompanying note 10.
289
According to former Solicitor General Seth Waxman, this problematic interpretation might even be the preferred one. In a
letter he wrote to a member of the National Rifle Association, dated 22 August 2000, later posted on the NRA’s website,
Waxman first identified the “right” as federal: “the ‘obvious purpose’ of the Second Amendment was to effectuate
Congress’s power to ‘call forth the Militia to execute the Laws of the Union . . . .” (emphasis added). He then went on to
offer an ambiguous explanation that contradicted the previous one: “[the] courts have uniformly held that it [the Second
Amendment] precludes only federal attempts to disarm, abolish, or disable the ability to call up the organized state militia.”
Finally, the Solicitor General alluded to, “the right of the states to maintain a militia that was being preserved...” (emphasis
added), at http://www.nraila.org/research/20000901-AntiGunGroups-OOl.shtml [GunCite note: Waxman’s letter is no longer
at the aforementioned URL, but it can be viewed here - http://www.rkba.org/federal/doj/waxman-emerson.html] . Thus, in
three short paragraphs, the Department of Justice endorsed three contradictory interpretations of the amendment, none of
which recognized a “right of the people” of any description. The Second Amendment debate is characterized by a puzzling
tendency to question the validity of the “individual right” reading while failing to examine at all the validity of the “states’
right” interpretation. Solicitor General Waxman’s letter seems to have capitalized on this pattern by relying on the neglect of
the reader to critically examine the positive, rather than negative, assertions being made.

OF THIS CASE
The suspicious obstinance of the lower federal courts in clinging to the “states’ right”
interpretation presents a serious obstruction to the proper adjudication of the nature and scope of
the Second Amendment right, and thus serves only to exacerbate and prolong the current public-
policy impasse regarding gun ownership. The American public deserves a more considered,
consistent, and constitutional approach to the delineation of the Second Amendment right. The
decisions of the lower federal courts in Second Amendment cases cannot ultimately withstand
high court scrutiny; a consistent body of Supreme Court jurisprudence spanning 180 years places
federal preemption of state militia powers among the most well-settled propositions in American
constitutional law.
I. General Synopsis of this Case

There is a longstanding right to intrastate, interstate, and maritime travel. But the dispute over the right to
travel while in lawful possession of a privately owned firearm (i.e., a handgun) under the Second Amendment
right to “openly” keep and bear arms under the Fourth, Fifth, Ninth, and Tenth Amendments is pivotal to all other
rights that my case brings to this Court.
My case presents the traveling Second Amendment as the flip-side to District of Colubmia v. Heller, No.
07-290; 554 U.S. ____ (2008), firearms in the home. My case targets the unconstitutional actions of the U.S.
Coast Guard violating my First Amendment and Second Amendment rights and my right to due process as a
seaman and as a citizen of the United States in terms of tort claims for damages in the amount of $4.8 million and
the obstructions of justice, harassment, and malicious threats of arrest and denials of rights by the U.S. Coast
Guard and the U.S. Marshals Service and other obstructions of justice and denials of rights by the U.S.
Department of Justice the federal judges exhibit bias in their unconstitutional Summary Judgment dismissals of
my cases for the last 6 years as tort claims for damages in the equal amount of $4.8 million and civil RICO Act
claims for triple damages for each amount in the amount of $14.4 million combined to equal $28.8 million.
This case invokes the Jus Tertii Doctrine to sue for the rights of third parties and Article XVIII (Right to
a Fair Trial) of the human rights treaty, AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN 1948 to sue
for my own human rights and for the human rights of third parties (i.e. the unorganized militia under 10 U.S.C. §
311(b)(2), truck drivers, and American merchant seamen, to target the unconstituational fraud of the individual
States and the United States in their conspiratorial collusion and unilateral attacks on the checks and balance
system of the U.S. Constitution as expressed in not only the aggregate effect of State and Federal gun control laws
but also the unconstitutional Eleventh Amendment and other case law and legislative and executive attacks on the
privileges and immunities, rights, powers, duties, and responsibilities of citizens of the individual States and as
citizens of the United States under the Bill of Rights, Thirteenth and Fourteenth Amendments.
STATE PAROCHIALISM, THE RIGHT TO TRAVEL, AND
THE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV
Bryan H. Wildenthal
41 Stanford Law Review 1557 at 1557-1558 (July 1989):
State discrimination against out-of-staters falls into two conceptually distinct categories. On the
one hand, a state might treat its own residents more favorably than residents of other states who
are temporarily within the state’s jurisdiction, whether as travelers, day-commuters, or those just
wandering through who may lack residence in any particular state. The Court has generally
viewed this kind of resident/ nonresident discrimination as subject to the strictures of the
privileges and immunities clause of article IV.290 The commerce clause291 has also been invoked
290
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S.
CONST. art. IV, § 2, cl. 1.
PART 3. THE P123

URPOSE OF THIS CASE
against resident/nonresident discrimination, in the context of commercial discrimination against

nonresident buyers or sellers. On the other hand, a state might discriminate among those currently
claiming residence in the state, on the basis of how recently they moved into the state or on their
motives for moving into the state. This type of policy divides residents into two classes: those
accepted as bona fide, established residents, and those disfavored as latecomers with inadequate
ties or attachment to the state, suspect motives for immigrating, or perhaps both. Because the
latecomers have, by definition, recently exercised the right to travel into the state discriminating
against them, the Court has tended to view such discrimination as impinging on that right, thereby
triggering strict scrutiny under the equal protection clause of the fourteenth amendment. This has
been the basis for the Court’s development of the so-called “right to travel” strand of equal
protection analysis.292
Id. at 1592 (July 1989):
Framing a strict scrutiny test under the privileges and immunities clause requires a re-
examination of the test traditionally employed under the clause’s jurisprudence. This has
frequently been phrased as the “peculiar evil” test, an odd, recurrent formulation which
apparently originated in Toomer v. Witsell,293 and which is merely a somewhat confusing and
darkly mysterious way of stating a classic kind of close-fit, means-ends analysis-the kind utterly
familiar in equal protection jurisprudence. That is, where some important state interest exists (an
“evil” that must be ameliorated), a classification scheme aimed at certain persons (the allegedly
“peculiar” source of the “evil”) will be upheld as advancing the interest if the fit between means
and ends is sufficiently close-if the objects of the classification truly are the “peculiar” source of
the “evil.” Toomer also offered a more straightforwardly-phrased means-ends test,294 which has
increasingly supplanted the “peculiar evil” language in modern Court decisions.295207 By the
time of the Piper case, a ready-made formulation existed for our present purposes: The Clause
does not preclude discrimination against nonresidents where (i) there is a substantial reason for
the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a
substantial relationship to the State’s objective. In deciding whether the discrimination bears a
291
U.S. CONST. art. I, § 8, cl. 3.
292
See U.S. CONST. amend. XIV, § 1; notes 115-202 [in original] and accompanying text [pp. 1575-1591].
293
[Footnote 205 in original] 334 U.S. 385, 396-98 (1948); see also, e.g., United Bldg. & Constr. Trades Council v. Camden,
465 U.S. 208, 222 (1984); Zobel v. Williams, 457 U.S. 55, 76 (1982) (O’Connor,J., concurring in the judgment); Hicklin v.
Orbeck, 437 U.S. 518, 525-26 (1978) (each reciting “peculiar evil” test). See also the discussion of the peculiar evil test at
text accompanying [Footnote 22 in original: Text at 1561 in original: (The traditional test the Court has used to analyze
resident/nonresident distinctions under the clause is somewhat oddly phrased. It asks whether the nonresidents disadvantaged
by the state law in question “ ‘constitute a peculiar source of the evil at which the [discriminatory] statute is aimed.’ “)
[Footnote 22 in original]: Hicklin v. Orbeck, 437 U.S. 518, 525-26 (1978) (quoting Toomer v. Witsell, 334 U.S. 385, 398
(1948)) (brackets added by Hicklin Court). But see text accompanying notes 205-208 [in original; but consolidated in the first
half of this footnote herein.] (noting recent emergence of the “substantial relationship” test).
294
“[The clause] does not preclude disparity of treatment in the many situations where there are perfectly valid independent
reasons for it. Thus the inquiry in each case must be concerned with whether such reasons do exist and whether the degree of
discrimination bears a close relation to them.” Toomer, 334 U.S. at 396. Substitute “compelling state interest” for “reason”
and you have, of course, a classic statement of the strict scrutiny test.
295
See, e.g., Supreme Court of N.H. v. Piper, 470 U.S. 274, 284 (1985) (eschewing “peculiar evil” language in favor of
“substantial relationship” test); Camden, 465 U.S. at 222 (reciting “substantial relationship” and “peculiar evil” tests side by
side). It was never exactly clear how stringent the old peculiar evil test was. After all, how peculiar is “peculiar”?

OF THIS CASE
close or substantial relationship to the State’s objective, the Court has considered the availability
of less restrictive means.296
296
Piper, 470 U.S. at 284 (citations omitted).
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Compare Chisholm v. Georgia, 2 U.S. 419 at 455 (1793) (Justice Wilson):
“Let a State be considered as subordinate to the People: But let every thing else be subordinate to
the State. The latter part of this position is equally necessary with the former. For in the practice,
and even at length, in the science of politics there has very frequently been a strong current
against the natural order of things, and an inconsiderate or an interested disposition to
sacrifice the end to the means.”297
Again, Chisholm v. Georgia, 2 U.S. 419 at 461-462 (1793) (Justice Wilson).
I have already remarked, that in the practice, and even in the science of politics, there has
been frequently a strong current against the natural order of things; and an inconsiderate
or an interested disposition to sacrifice the end to the means. This remark deserves a more
particular illustration. Even in almost every nation, which has been denominated free, the state
has assumed a supercilious preeminence above the people, who have formed it: Hence the
haughty notions of state independence, state sovereignty and state supremacy. In despotic
Governments, the Government has usurped, in a similar manner, both upon the state and the
people: Hence all arbitrary doctrines and pretensions concerning the Supreme, absolute, and
incontrolable, power of Government.298 In each, man is degraded from the prime rank, which he
ought to hold in human affairs: In the latter, the state as well as the man is degraded. Of both
degradations, striking instances occur in history, in politics, and in common life. One of them is
drawn from an anecdote, which is recorded concerning Louis XIV. who has been stiled the grand
Monarch of France. This Prince, who dissused around him so much dazzling splendour, and so
little vivifying heat, was vitiated by that inverted manner of teaching and of thinking, which
forms Kings to be tyrants, without knowing or even suspecting that they are so. The oppression,
under which he held his subjects during the whole course of his long reign, proceeded chiefly
from the principles and habits of his erroneous education. By these, he had been accustomed to
consider his Kingdom as his patrimony, and his power over his subjects as his rightful and
undelegated inheritance. These sentiments were so deeply and strongly imprinted on his mind,
that when one of his Ministers represented to him the miserable condition, to which those subjects
were reduced, and, in the course of his representation, frequently used the word L’Etat, the state,
the King, though he felt the truth and approved the substance of all that was said, yet was shocked
at the frequent repetition of the expression L’Etat; and complained of it is as an indecency offered
to his person and character. And, indeed, that Kings should imagine themselves the final causes,
for which men were made, and societies were formed, and Governments were instituted, will
cease to be a matter of wonder or surpise, when we find that lawyers, and statesmen, and
philosophers, have taught or favoured principles, which necessarily lead to the same conclusion.
Another instance, equally strong, but still more astonishing, is drawn from the British
Government, as described by Sir William Blackstone and his followers. As described by him and
them, the British is a despotic Government. It is a Government without a people. In that
Government, as so described, the sovereignty is possessed by the Parliament: In the Parliament,
therefore, the supreme and absolute authority is vested: In the Parliament resides that
incontrolable and despotic power, which, in all Governments, must reside somewhere. The
constituent parts of the Parliament are the King’s majesty, the Lord’s Spiritual, the Lord’s
Temporal, and the Commons. The King and these three Estates together form the great
corporation or body politic of the Kingdom. All these sentiments are found; the last expressions
297
298

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are found verbatim in the commentaries upon the laws of England. The Parliament form the great
body politic of England! What, then, or where, are the People? Nothing ! No where! They are not
so much as even the ‘baseless fabric of a vision!’ From legal contemplation they totally
disappear! Am I not warranted in saying, that, if this is a just description; a Government, so and
justly so described, is a despotic Government?
J. To Sue For My Own Rights and Pursuit of Justice

(1). To Determine Constitutionality of Summary Judgment Dismissals of My
Previous Cases over the Second Amendment
CASE NO. 1: Hamrick v. Adm. Thomas H. Collins, et al, U.S. District Court for DC, No. 02-1434 filed July
18, 2002, COMPLAINT FOR DEFAMATION & DAMAGES, LIBEL AS A MATTER OF PRIVATE
CONCERN, INJURY TO REPUTATION, UNLAWFUL INTERFERENCE WITH THE LAWFUL
OPERATION OF A U.S. MERCHANT VESSEL, UNLAWFUL INTERFERENCE WITH A SEAMAN’S
EMMPLOYMENT ABOARD A U.S. MERCHANT VESSEL, WRONGFUL DETENTION / FALSE
IMPRISONMENT OF A U.S. MERCHANT SEAMAN IN A FOREIGN COUNTRY, HARASSMENT,
EMOTIONAL DISTRESS, AND SUBJECTION TO A MALICIOUS CRIMINAL INVESTIGATION
EXTENDING FROM PETITIONER’S EXERCISE OF F IRST AMENDMENT RIGHTS TO FREE SPEECH
AND TO PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES PURSUING SECOND
AMENDMENT RIGHTS; Dismised with Prejudice.
CASE NO. 2: Hamrick v. President Bush, et al, U.S. District Court for DC, No. 02-1435 filed July 18, 2002,
PETITION FOR WRIT OF MANDAMUS, A WRIT OF PROHIBITION, DECLARATORY JUDGEMENT
AND INJUNCTIVE RELIEF; Dismised with Prejudice; Affirmed District Court’s Dismissal with
Prejudice on October 10, 2002. Appeal filed with DC Circuit, October 28, 2002. DC Circuit
affirmed Dismissal with Prejudice. Appealed to U.S. Supreme Court. Petition for Writ of
Certiorari, No. 03-145, Denied.
CASE NO. 3: Hamrick v. President Bush, et al, U.S. District Court for DC, No. 03-2160, October 21, 2003,
AMENDED COMPLAINT – CRIMINAL & CIVIL RIGHTS COMPLAINT OF RACKETEERING AND
FRAUD UNDER THE RICO ACT FOR AN UNCONSTITUTIONAL PROTECTION SCHEME UNDER
COLOR OF LAW OVER THE SECOND AMENDMENT VIOLATING PLAINTIFF’S RIGHT TO PETITION
AND R IGHT TO DUE PROCESS AND FOR WRIT OF MANDAMUS, WRIT OF PROHIBITION,
DECLARATORY AND INJUNCTIVE RELIEF & FOR DAMAGES; Dismissed with Prejudice.
Appealed to DC Circuit, Case No. 04-5316. Appealed to U.S. Supreme Court on Rule 11
(Before Judgment of the DC Circuit); Petition for Writ of Certiorari, No. 04-1150, Denied.
CASE NO. 4: Hamrick, pro se v. United States, U.S. District Court for DC, No. 1:04MS00422, filed
September 1, 2004; MOTION FOR THE COURT TO SUMMON A SPECIAL GRAND JURY, IN RE:
HAMRICK (PRO SE) V. PRESIDENT GEORGE W. BUSH, ET AL: A SECOND AMENDMENT CASE;
TO INVESTIGATE ALLEGATIONS OF CORRUPTION AND RACKETEERING IN THE FEDERAL
JUDICIARY AND IN THE U.S. DEPARTMENT OF JUSTICE. This case sought a criminal review of
Cases 1 through 3 above. Case was dismissed because the judge sat on it doing nothing.
Because the federal courts have systematically and repetitively dismissed my Second Amendment case
because my cases advocate the Second Amendment and Ninth Amendment right to “openly” keep and bear arms
in intrastate, interstate, and maritime travel the federal courts have committed treason against the Constitution of
the United States. Collection of filing fees is not a judicial function of federal judges or their court clerks it is an
administrative function. Therefore federal judges are accountable for their acts of felony extortion under color of
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URPOSE OF THIS CASE
law (18 U.S.C. § 8972) and felony extortion under color of official right (racketeering) (18 U.S.C. § 1951(b)(2),
even though they may issue court orders compelling payment with the subject matter of the case qualifies for the
Seamen’s Suit Law (28 U.S.C. § 1916), the orders are still unlawfull. The evidence of bad faith behavior under
Article III is clear and unmistakeable. See Mireles v. Waco 502 U.S. 9 (1991) (Judicial immunity is an immunity
from suit, not just from ultimate assessment of damages, and it can be overcome only if a judge’s actions are
nonjudicial or were taken in the complete absence of all jurisdiction.).
(2). To Compel Intervention by the Attorney General (42 U.S.C. § 2000h–2)
To compel intervention by the Attorney General by Writ of Mandamus or by other court order to certify
this case as one of general public importance in accordance with 42 U.S.C. § 2000h–2 for relief from the denial of
equal protection of the laws under the Fourteenth Amendment to the Constitution on account national origin.
(3). To determine whether I have a civil Gideon right to court appointed
qualified attorney under the American Bar Association’s Task Force on
Access to Civil Justice’s recommendation.
To determine whether I have a civil Gideon right to court appointed qualified legal representation under
the American Bar Association’s Recommendation Adopted by the House of Delegates, August 7-8, 2006 (That
the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a
matter of right at public expense to low income persons in those categories of adversarial proceedings where
basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody as
determined by each jurisdiction.).299
(4). To determine if Mandamus Relief was wrongfully Denied
To determine whether the creation of the U.S. Department of Homeland Security on March 1, 2003 and
the transfer of the U.S. Coast Guard from the U.S. Department of Transportation to the U.S. Department of
Homeland Security provided the requisite “extraordinary situation” for mandamus relief from the U.S. Coast
Guard’s Final Agency Action denying my Second Amendment right to have the “National Open Carry Handgun”
endorsement on the Merchant Mariner’s Document and whether I have a clear right to relief and whether the
United States has a clear duty to act and whether I exhausted all other available remedies. (See See Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988); Power v. Barnhart, 292 F.3d 781, 784 (D.C.
Cir. 2002); see also In re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000) (mandamus issued “only for
the most transparent violations of a clear duty to act”). And to determine whether my original Petition for Writ of
Mandamus (U.S. District Court for DC, No. 02-1435) and for damages (No. 02-1434) were wrongfully dismissed.
(5). To enforce my Seventh Amendment rights under the Common Law by
treaty under the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN.
To enforce my Seventh Amendment right to a civil jury trial under the common law after six years of
unconstitutional summary judgments for dismissals on Motions to Dismiss by invoking my rights under the
AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN through the Treaty Clause as a private right of
action in the U.S. District Court for the District of Columbia.
(6). To enforce a proper and uncorrupted judicial review of the FINAL AGENCY
ACTION of the U.S. Coast Guard.
To enforce my right to a proper and uncorrupted judicial review of the Final Agency Action of the U.S.
Coast Guard for fraudulently denying my Second Amendment application for “National Open Carry Handgun”
299
http://www.abanet.org/legalservices/sclaid/downloads/06A112A.pdf

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endorsement on the Merchant Mariner’s Document on the basis that the requested endorsement would not be in
the best interest of marine safety or security.
(7). To determine whether provisions for private rights of action should be
mandatory for all statutory rights under federal laws.
To determine whether the Seamen’s Suit law, 28 U.S.C. § 1916, has an implied private right of action to
effect citizen’s arrests by way of Citizen’s Arrest Warrants for federal judges and court clerks for 18 U.S.C. § 872
EXTORTION UNDER COLOR OF LAW and 18 U.S.C. § 1651(b)(c) EXTORTION UNDER COLOR OF OFFICIAL RIGHT
(Racketeering) and whether all statutory rights under federal laws should have provisions for private rights of
action against federal employers for violating those statutory rights as part of the checks and balance system under
the unenumerated rights of the Ninth Amendment and powers reserved to the People under the Tenth
Amendment.
(8). To determine whether allegations of obstruction of justice against the U.S.
Marshals Service are valid.
To determine whether allegations of obstruction of justice against the U.S. Marshals Service are valid in
refusing to accept, to act on, or to assist with my Citizen’s Arrest Warrant which included probable cause
evidence of extortion under color of law and under color of official right in the form of copies of Court Orders
unlawfully ordering me to pay the filing fees of the U.S. Court of Appeals for the DC Circuit as a seaman under
the Seamen’s Suit Law Law (28 U.S.C. § 1916).
(9). To apply the Federal Tort Claims Act for violations of the Seamen’s Suit
Law (28 U.S.C. § 1916).
To hold certain federal judges and their court clerks liable under the Federal Tort Claims Act for
administrative violations of the federal laws noted in Line Item H. above in light of the fact that immunity does
not extend to administrative functions of judges and court employees. See Mireles v. Waco 502 U.S. 9 (1991)
(Judicial immunity is an immunity from suit, not just from ultimate assessment of damages, and it can be
overcome only if a judge’s actions are nonjudicial or were taken in the complete absence of all jurisdiction.).
Collection of exempted filing fees is not a judicial function.
(10). To determine if six years of unconstitutional summary judgments on
motion to dismiss meets the requisite conditions for mandamus relief.
To determine whether the federal courts created an “extraordinary situation” for mandamus relief with 6-
years of dismissals through unconstutional summary judges on motions to dismiss with and without prejudice.
(See We the People Foundation, et al v. United States, et al, U.S. District Court for DC, No. 04-1211 (August 31,
2005) (“The First Amendment does not impose any affirmative obligation on the government to listen, to
respond.” affirmed by the DC Circuit, and certiorari denied by the U.S. Supreme Court); Bell Atlantic Corp. v.
Twombly, 550 U.S. __, __, 127 S. Ct. 1955 (May 21, 2007) (ratcheting up the standard of pleading to give way to
even more dismissals of civil causes under the new Plausible Standard of stating a claim to relief that a complaint
must now provide “enough facts to state a claim to relief that is plausible on its face”).
(11). To determine whether the Assistant U.S. Attorney Dennis Barghaan of
the U.S. Attorney’s Office in Alexandria committed obstructions of justice.
To determine whether the Assistant U.S. Attorney Dennis Barghaan of the U.S. Attorney’s Office in
Alexandria was brought into my case as the Special Attorney for the U.S. Department of Justice specifically to
deny my Seventh Amendment right to a civil jury trial by expediting my case to dismiss with prejudice on August
16, 2004 (see Hamrick v. President George W. Bush, et al, U.S. District Court for DC, 03-2160) in order to deny
me my right to use the U.S. Department of Justice’s Memorandum Opinion for the Attorney General, WHETHER
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URPOSE OF THIS CASE
300
THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT, that was released internally on August 24, 2004, just
eight days after the prejudiced dismissal of my case.
(12). To determine whether the scandal over the politically motivated firing of
eight U.S. Attorneys during the 2006 presidential election effected
obstructions of justice for my civil action at the U.S. District Court for the
Eastern District of Arkansas, Little Rock.
To determine whether politics during the presidential election of 2006 and political ideologies of judges
of the U.S. District Court for the Eastern District of Arkansas, Little Rock played a role in the dismissal of my
civil case against the United States and the United Nations (expending $1,000. to produce the 4-volume complaint
with evidence, each volume being 1-inch thick with enough copies for all parties). (see Hamrick v. United
Nations, United States, U.S. District Court, Little Rock, No. 06-0044).
(13). To determine whether the U.S. District Court in Little Rock, Arkansas
committed obstructions of justice.
To determine whether the U.S. District Court in Little Rock violated the Seamen’s Suit Law (28 U.S.C. §
1916) and Rule 4(c)(3) of the FEDERAL RULES OF CIVIL PROCEDURE by compelling payment of their filing fee.
And because I did pay their filing fee under condition of coercion whether that District Court violated Rule
4(c)(3) to have the U.S. Marshals Service serve the Summons and Complaint upon the Defendants under on the
claim by the Court Clerk that their was no storage space available to keep the 8 copies of the complaint (4
volumes x 8 copies = 32 books filling the capacity of 4 boxes) claiming that I did not have the right of service by
U.S. Marshals Service under Rule 4(c)(3) because I paid the filing fee.
(14). To determine whether I have any enforceable statutory, constitutional,
or human rights at all in the Courts of the United States.
To determine whether I have any enforceable statutory, constitutional, or human rights after six years of
unconstitutional summary judgments.
K. To Sue For the Rights of Third Parties (Jus Tertii Doctrine)

(1). The law-abiding American people at large as a whole set of People as a
Third Party.
The Second Amendment rights to open carry in intrastate, interstate, and maritime travel and not my
exclusive rights but rights belonging to the law-abiding American people at large as a whole set of people as a
third party under the Bill of Rights and under the Thirteenth and Fourteenth Amendments as not only as citizens
of the individual States but also as citizens of the United States.
(2). The Unorganized Militia, 10 U.S.C. § 311(b)(2), as a subset of the
American people at large as a Third Party.
Often ignored by State legislatures and the U.S. Congress their neglect necessitates the need for jus tertii
litigation on their behalf.
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(3). American Merchant Seamen as a subset of the American people at large

as a Third Party.
Also ignored by State legislastures and the U.S. Congress is the role of U.S. merchant seamen in
homeland security when the U.S. Department of Homeland Security has superintendence over the U.S. Merchant
Marine through the U.S. Coast Guard.
(4). American Truck Drivers as a subset of the American people at large as a
Third Party.
The American truck drivers represent another subset of the American people who are discriminated
against by State and Federal gun control laws and present another viable choice for a Third Party whose rights
require defending under the jus tertii doctrine.
L. To Sue in the Interest of the Second Amendment

(1). To present a Second Amendment Case by Invitation of U.S. Supreme
Court
To present a Second Amendment case to the U.S. Supreme Court to expound on the “many applications of the
right to keep and bear arms” by request of Justice Scalia in District of Columbia v. Heller, U.S. Supreme Court,
No. 07-290, at 63 (July 26, 2008).
(2). To determine whether unconstitutional conditions exist over the Second

Amendment.
To determine whether there exists a state of unconstitutional conditions in the United States over our Bill
of Rights and the Thirteenth and Fourteenth Amendments, and our human right to life under international human
rights treaties and whether and how, as an alleged free people, can we enforce those rights.
(3). To Compel Negotiated Rulemaking with the U.S. Coast Guard, the
BATFE and the MARITIME ADVISORY COMMITTEE FOR OCCUPATIONAL SAFETY
AND HEALTH (MACOSH) of the U.S. Department of Labor as Special
Procedures Under Rule 16(C)(9) Federal Rules Of Civil Procedure, 33 C.F.R.
§ 1.05-60, 5 U.S.C. § 560-570a, and 5 U.S.C. Appendix - FEDERAL ADVISORY
COMMITTEE ACT.
(4). To resurrect open carry in intrastate, interstate, and maritime travel.
To resurrect the lost Second Amendment and Ninth Amendment right to “openly” keep and bear arms in
intrastate, interstate, and maritime travel as a badge of actual freedom. See Abraham Lincoln’s EMANCIPATION
PROCLAMATION; and Dred Scott v. Sandford, 60 U.S. (19 How.) 416-417 (1857) (. . . , and to keep and carry arms
wherever they went. . .) which gave birth to the Thirteenth and Fourteenth Amendments.
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URPOSE OF THIS CASE
M. To Sue for Equal Justice Under the Law

(1). To Achieve Justice for Obstructions of Justice by the Hostile Federal
Courts
HELLER AND THE PERILS OF COMPROMISE
Mark Tushnet
(forthcoming in the Lewis & Clark Law Review)
in TWO ESSAYS ON DISTRICT OF COLUMBIA V. HELLER
Harvard Public Law Working Paper No. 08-17 (2008).
Describing some regulations of gun ownership and use as presumptively constitutional seems to
have been a necessary compromise, from Justice Scalia’s point of view. But compromises are
risky because they provide the opportunity for later decisionmakers to move in either direction –
toward invalidating even some of the presumptively constitutional regulations or,
importantly, toward upholding everything but the regulation struck down in Heller – while
maintaining that they are acting within the doctrine set out in Heller. As I have discussed in more
detail elsewhere, gun policy is one of the locations were Americans conduct our culture wars.
Heller’s meaning will be determined by – and in – future battles in those wars. I for one would
not be amazed to discover that the gun-rights revolution turning out much like the federalism
and takings revolutions, and for the same reason: Culture wars produce repeated battles in the
courts and symbolic victories and defeats there, but permanent victory comes from
developments elsewhere, which then yield real rather than symbolic decisions by the courts.
Note the last sentence in Mark Tushnet’s, Heller and the Perils of Compromise:
“Culture wars produce repeated battles in the courts and symbolic victories and defeats there, but
permanent victory comes from developments elsewhere, which then yield real rather than
symbolic decisions by the courts.”
Elsewhere?
Mark Tushnet may very well be hinting at a “Regulatory War.” As a U.S. Merchant
Seaman my case presents on example of a Regulatory War. With this case I am applying the
Second Amendment to federal laws and regulations from a merchant seaman’s point of view. In
effect I am waging a “Regulatory War” against the U.S. Government hell-bent on denying my
rights.
Citing Caitlin E. Borgmann, LEGISLATIVE ARROGANCE AND CONSTITUTIONAL
ACCOUNTABILITY, 79 Southern California Law Review 753 (2006)
Our Constitution promises that the government may not infringe the constitutional rights of its
citizens. For that promise to have any meaning, the government must be held accountable
for such infringements. Under our constitutional system, the judiciary exists as a check to ensure
that accountability. And yet, through artfully crafted legislation, state legislatures currently are
infringing constitutional rights with impunity, shirking their constitutional responsibility by
manipulating well-established principles designed to ensure that the government is held to
account when it harms citizens through unconstitutional actions.
Federal courts should stop this trend. Regardless of how sympathetic an underlying state goal
may be, or how frustrated a state may be by the Supreme Court’s decisions, it is far worse to
permit state legislative arrogance to go unchecked. The core constitutional principles of
federal supremacy and the balancing of power among the branches of government are threatened
by these actions, which invite an anarchy in which individual rights are constantly subject to
shifting majorities. To take constitutional responsibility is to share constitutional authority the

OF THIS CASE
way our system of government intends, not to arrogate power because of disagreements with how
other branches have exercised theirs. The federal courts should ensure that states who engage
in legislative arrogance are held accountable by hearing pre-enforcement challenges to
these acts. The legitimacy of such challenges is supported by a straightforward application of
Article III case or controversy principles and the Ex parte Young doctrine, as well as by basic
constitutional norms.
(2). To Challenge the Constitutionality of Rule 5.1(a)(1)(A) of the Federal
Rules of Civil Procedure.
Rule 5.1(a)(1)(A) on its face appears to unconstitutional prohibit a civil plaintiff from challenging the
constitutionality of federal statutes when the United States or one of its agencies or one of its officers or
employees in their official capacity are defendants.
(3) To challenge the constitutionality of the Eleventh Amendment.
To determine whether the Eleventh Amendment unconstitutionally discriminates against out-of-state
citizen’s in violation of the Fourteenth Amendment; whether the Eleventh Amendment was wrongly enacted;
whether the Eleventh Amendment violates the pre-existing privileges and immunities clause of Article IV,
Section 2; and whether the Eleventh Amendment unconstitutionally dismantles a vital mechanism in checks and
balance system of the Constitution of the United States and cascadingly threatens the guarantee of a Republican
form of Government; whether the Fourteenth Amendment nullified the Eleventh Amendment.
Chisholm v. Georgia
2 U.S. 419 at 466-468 (1793) (Justice Cushing)
(pre-Eleventh Amendment)
It is declared that ‘the Judicial power shall extend to all cases in law and equity arising under the
Constitution, the laws of the United States, or treaties made or which shall be made under their
authority; to all cases affecting ambassadors or other public ministers and consuls; to all cases
of admiralty and maritime jurisdiction; to controversies, to which the United States shall be a
party; to controversies between two or more States and citizens of another State; between citizens
of different States; between citizens of the same State claiming lands under grants of different
States; and between a State and citizens thereof and foreign States, citizens or subjects.’301 The
judicial power, then, is expressly extended to ‘controversies between a State and citizens of
another State.’302 When a citizen makes a demand against a State, of which he is not a citizen, it
is as really a controversy between a State and a citizen of another State, as if such State made a
demand against such citizen. The case, then, seems clearly to fall within the letter of the
Constitution. It may be suggested that it could not be intended to subject a State to be a
Defendant, because it would effect the sovereignty of States. If that be the case, what shall we do
with the immediate preceding clause; ‘controversies between two or more States,’ where a State
must of necessity be Defendant’ If it was not the intent, in the very next clause also, that a State
might be made Defendant, why was it so expressed as naturally to lead to and comprehend that
idea? Why was not an exception made if one was intended?303
Again what are we to do with the last clause of the section of judicial powers, viz. ‘Controversies
between a state, or the citizens thereof, and foreign states or citizens?’ Here again, States must be
301
302
303
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URPOSE OF THIS CASE
suable or liable to be made Defendants by this clause, which has a similar mode of language with
the two other clauses I have remarked upon. For if the judicial power extends to a controversy
between one of the United States and a foreign State, as the clause expresses, one of them must be
Defendant. And then, what becomes of the sovereignty of States as far as suing affects it? But
although the words appear reciprocally to affect the State here and a foreign State, and put them
on the same footing as far as may be, yet ingenuity may say, that the State here may sue, but
cannot be sued; but that the foreign State may be sued but cannot sue. We may touch foreign
sovereignties but not our own.304 But I conceive the reason of the thing, as well as the words of
the Constitution, tend to show that the Federal Judicial power extends to a suit brought by a
foreign State against any one of the United States. One design of the general Government was for
managing the great affairs of peace and war and the general defence; which were impossible to be
conducted, with safety, by the States separately. 305 Incident to these powers, and for preventing
controversies between foreign powers or citizens from rising to extremeties and to an appeal to
the sword,306 a national tribunal was necessary, amicably to decide them, and thus ward off such
fatal, public calamity. Thus, States at home and their citizens, and foreign States and their
citizens, are put together without distinction upon the same footing, as far as may be, as-to
controversies between them. So also, with respect to controversies between a State and citizens of
another State (at home) comparing all the clauses together, the remedy is reciprocal; the claim to
justice equal. As controversies between State and State, and between a State and citizens of
another State, might tend gradually to involve States in war and bloodshed, a disinterested civil
tribunal was intended to be instituted to decide such controversies, and preserve peace and
friendship. Further; if a State is entitled to Justice in the Federal Court, against a citizen of
another State, why not such citizen against the State, when the same language equally
comprehends both? The rights of individuals and the justice due to them, are as dear and precious
as those of States. Indeed the latter are founded upon the former; and the great end and object of
them must be to secure and support the rights of individuals, or else vain is Government.307
304
Plaintiff’s emphasis to compare with the Eleventh Amendment.
305
Plaintiff’s emphasis to compare the term “general defence” with the “common defence” clause of the Preamble to the
Constitution of the United States and the “great affairs of peace and war” with the “domestic Tranquility” clause of the same
Preamble to imply that the aggregate effect of gun control laws of the 50 states endangers both the common defence and
domestic Tranquility. The Eleventh Amendment endangers both.
306
Plaintiff’s emphasis. But for the want of an educated public and for the legitimate recognition of the unorganized militia
the People of the Tenth Amendment would have already resorted to “the sword” on many occasions, prime example being
the States’ and the United States failure to control the border with Mexico refusing to acknowledge that certain acts by the
Mexican drug cartel with evidence of Mexican military participation in criminal activity well inside the United States are acts
of war. See Michael Webster, Mexican Drug Cartels Out of Control in the U.S. and Mexico, American Chronicle, August 3,
2008 available online at http://www.americanchronicle.com/articles/70429.
307
Plaintiff’s emphasis. Hence the gun control laws of every State in their aggregate effect is a war against the citizens of the
United States their right to travel with their Second Amendment right to “openly” keep and bear arms because the U.S.
Supreme Court refuses to apply the Second Amendment to the States through the Fourteenth Amendment. The Eleventh
Amendment exacerbates that war against the rights of out-of-state citizens.

OF THIS CASE
(4). To determine whether a U.S. seaman has a private right of action against
the United Nations PROGRAMME OF ACTION TO PREVENT, COMBAT AND
ERADICATE THE ILLICIT TRADE IN SMALL ARMS AND LIGHT WEAPONS IN ALL ITS
ASPECTS (UN Document A/CONF.192/15).
To determine whether a U.S. seaman has a private right of action under the RICO Act and under human
rights treaties to sue the United Nations in the U.S. District Court for the District of Columbia for violating the
United Nations Charter, Article 2, Clause 7 for their Programme of Action to Prevent, Combat and Eradicate the
Illicit Trade in Small Arms and Light Weapons in All Its Aspects (UN Document A/CONF.192/15)
(5). To determine whether Pacer Online Docket Fees are part of the Seamen’s
Suit Law.
To determine whether Pacer Online Docket Fees are automatically included in the Seamen’s Suit Law as
exempted fees for American seamen.
N. To Sue for Seamen’s Rights Under the Law

(1) No Explicit Private Right of Action Stated in the Seamen’s Suit Law, 28 U.S.C. § 1916
Congress did not explicitly express a private right of action in the Seamen’s Suit Law, 28 U.S.C. § 1916
for a Seventh Amendment right to a civil jury trial as a remedy o prevent the federal judges and court clerks from
compelling payment of filing fees from seamen with cases qualifying under the Seamen’s Suit Law which would
and does criminally violate the Seamen’s Suit Law and 18 U.S.C. § 872 EXTORTION UNDER COLOR OF LAW and 18
U.S.C. § 1651(b)(c) EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering).
(2) There is an Implied Private Right of Action in the Seamen’s Suit Law, 28 U.S.C. § 1916
Citing from Paul B. Stephan in Section III Private Enforcement of Federal Statutes: An Evolving
Jurisprudence, in PRIVATE REMEDIES FOR TREATY VIOLATIONS AFTER SANCHEZ-LLAMAS, 11 Lewis & Clark L.
Rev. 65 at 71 (2007),308 and stylizing the text for display here:
“. . . Justice Brennan, writing for the Court [in Cort v. Ash 422 U.S. 66 (1975)], offered a four-point test for
determining whether courts could infer a power of private enforcement from a statute that did not expressly
address the issue.”
“In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are
relevant.”
[TEST (1).] [Is] the plaintiff “one of the class for whose especial benefit the statute was enacted,”
Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39 (1916) (emphasis supplied) – that is,
does the statute create a federal right in favor of the plaintiff?
ANSWER: Yes. I am a merchant seaman. The Seamen’s Suit Law, 28 U.S.C. § 1916 is specificly directed to
merchant seamen.
[TEST (2).] [Is] there any indication of legislative intent, explicit or implicit, either to create such a
remedy or to deny one? See, e. g., National Railroad Passenger Corp. v. National Assn. of
Railroad Passengers, 414 U.S. 453, 458 , 460 (1974) (Amtrak).”
ANSWER: Citing from Citing Isbrandtsen Co. v. Johnson, 343 U.S. 779, 782-784 (1952):
308
http://www.lclark.edu/org/lclr/objects/LCB_11_1_Stephan.pdf.
PART 3. THE P135

URPOSE OF THIS CASE
Whenever congressional legislation in aid of seamen has been considered here since 1872, this
Court has emphasized that such legislation is largely remedial and calls for liberal interpretation
in favor of the seamen. The history and scope of the legislation is reviewed in Aguilar v. Standard
Oil Co., 318 U.S. 724, 727 -735 (1943), and notes. “Our historic national policy, both legislative
and judicial, points the other way [from burdening seamen]. Congress has generally sought to
safeguard seamen’s rights.” Garrett v. Moore-McCormack Co., 317 U.S. 239, 246 (1942). “[T]he
maritime law by inveterate tradition has made the ordinary seaman a member of a favored class.
He is a ‘ward of the admiralty,’ often ignorant and helpless, and so in need of protection against
himself as well as others. . . . Discrimination may thus be rational in respect of remedies for
wages.” Warner v. Goltra, 293 U.S. 155, 162 (1934); Cortes v. Baltimore Insular Line, 287 U.S.
367, 375, 377 (1932); Wilder v. Inter-Island Navigation Co., 211 U.S. 239, 246-248 (1908);
Patterson v. Bark Eudora, 190 U.S. 169 (1903); Brady v. Daly, 175 U.S. 148, 155-157 (1899).
“The ancient characterization of seamen as `wards of admiralty’ is even more accurate now than
it was formerly.” Robertson v. Baldwin, 165 U.S. 275, 287 (1897); 5 Harden v. Gordon, 11 Fed.
Cas. No. 6,047, 2 Mason (Cir. Ct. Rep.) 541, 556.
Statutes which invade the common law or the general maritime law are to be read with a
presumption favoring the retention of longestablished and familiar principles, except when a
statutory purpose to the contrary is evident. No rule of construction precludes giving a natural
meaning to legislation like this that obviously is of a remedial, beneficial and amendatory
character. It should be interpreted so as to effect its purpose. Marine legislation, at least since the
Shipping Commissioners Act of June 7, 1872, 17 Stat. 262, should be construed to make effective
its design to change the general maritime law so as to improve the lot of seamen. “The rule that
statutes in derogation of the common law are to be strictly construed does not require such an
adherence to the letter as would defeat an obvious legislative purpose or lessen the scope plainly
intended to be given to the measure.” Jamison v. Encarnacion, 281 U.S. 635, 640 (1900); Texas
& P. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437 (1907), 440. The direction of the
current of maritime legislation long has been evident on its face.
“In this country these notions were reflected early, and have since been expanded, in legislation
designed to secure the comfort and health of seamen aboard ship, hospitalization at home and
care abroad. . . . The legislation . . . gives no ground for making inferences adverse to the seaman
or restrictive of his rights. . . . Rather it furnishes the strongest basis for regarding them broadly,
when an issue concerning their scope arises, and particularly when it relates to the general
character of relief the legislation was intended to secure.” Aguilar v. Standard Oil Co., 318 U.S.
724, 728-729 (1943).
Citing Nicholas Schreiber v. K-Sea Transportation Corp. New York, Supreme Court, Appellate Division,
April 25, 2006; 5410N Index 104992/04 107571/04:
Petitioner, as a ward of the admiralty, is entitled to heightened protection from the courts. There
is a long-standing policy to safeguard the rights of seamen, whose contracts are traditionally
viewed with solicitude:
They are emphatically the wards of the admiralty; and though not technically incapable of
entering into a valid contract, they are treated in the same manner, as courts of equity are
accustomed to treat young heirs, dealing with their expectancies, wards with their guardians, and
cestuis quetrust with their trustees. . . . If there is any undue inequality in the terms, any
disproportion in the bargain, any sacrifice of rights on one side, which are not compensated by
extraordinary benefits on the other, the judicial interpretation of the transaction, is that the bargain
is unjust and unreasonable, that advantage has been taken of the situation of the weaker party, and
that pro tanto the bargain ought to be set aside as inequitable. (Garrett v. Moore-McCormack Co.,

OF THIS CASE
317 U.S. at 246, 1942 AMC at 1650, quoting Harden v. Gordon, 2000 AMC 893, 902, 11 Fed
Cas 480, 485 [1823])
TEST (3). [Is] it consistent with the underlying purposes of the legislative scheme to imply such a
remedy for the plaintiff? See, e. g., Amtrak, supra; Securities Investor Protection Corp. v.
Barbour, 421 U.S. 412, 423 (1975); Calhoon v. Harvey, 379 U.S. 134 (1964).”
ANSWER: Yes, by the fact that seamen arewards of the Admiralty.
TEST (4). [Is] the cause of action one traditionally relegated to state law, in an area basically the
concern of the States, so that it would be inappropriate to infer a cause of action based
solely on federal law? See Wheeldin v. Wheeler, 373 U.S. 647, 652 (1963); cf. J. I. Case Co.
v. Borak, 377 U.S. 426, 434 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388, 394 -395 (1971); id., at 400 (Harlan, J., concurring in judgment).”
ANSWER: The cause of action is strictly for the federal courts. But when the judicial, the executive, and the
legislative branch denies all available remedies under the First Amendment right to petitition the government for
redress of grievances and the Seventh Amendment right to a civil jury trial under the aggregate effect of appearing
to be generalized corruption and obstructions of justice then the only remedy left is the Ninth Amendment right
and the Tenth Amendment power reserved to the People to make citizen’s arrests with the Citizen’s Arrest
Warrant with accompanying evidence of felony violations of federal law, as in my case, the Seamen’s Suit Law,
28 U.S.C. § 1916. But because the Seamen’s Suit Law does not explicitly provide for such a private right of
action such as the Citizen’s Arrest remedy as a remedy of last resort or even the traditional Seventh Amendment
right to a civil jury trial the victim must present a civil case against the United States for a civil jury trial for a
judicial determination on the implied private right of action in the Seamen’s Suit Law.
See also, We the People Foundation, et al v. United States, et al, U.S. District Court for the District of
Columbia, No. 04-1211 (August 31, 2005):
affirmative obligation on the government to listen, to respond . . .” See Smith v. Ark. State
Highway Employees, Local 1315, 441 U.S. 463, 465 (1979).
Id. Affirmed, DC Circuit, No. 05-5359 (May 8, 2007) (Certiorari denied, January 7, 2008; Petition for Rehearing
denied, February 25, 2008):
We need not resolve this debate, however, because we must follow the binding Supreme Court
precedent. See Tenet v. Doe, 544 U.S. 1, 10-11 (2005). And under that precedent, Executive and
Legislative responses to and consideration of petitions are entrusted to the discretion of those
Branches.
See also, Justice Harlan’s Dissent in Downes v. Bidwell, 182 U.S. 244 at 376-382 (1901)
In Martin v. Hunter, 1 Wheat. 304, 324, 326, 331, 4 L. ed. 97, 102, 104, this court speaking by
Mr. Justice Story, said that ‘the Constitution of the United States was ordained and established,
not by the states in their sovereign capacities but emphatically, as the preamble of the
Constitution declares, by ‘the People of the United States.”
In McCulloch v. Maryland, 4 Wheat. 316, 403-406, 4 L. ed. 579, 600, 601, Chief Justice
Marshall, speaking for this court, said: ‘The government proceeds directly from the people; is
‘ordained and established’ in the name of the people; and is declared to be ordained ‘in order to
form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings
PART 3. THE P137

URPOSE OF THIS CASE
of liberty to themselves and to their posterity.’ The assent of the states, in their sovereign
capacity, is implied in calling a convention, and thus submitting that instrument to the people. But
the people were at perfect liberty to accept or reject it; and their act was final. It required not the
affirmance, and could not be negatived, by the state governments. The Constitution, when thus
adopted, was of complete obligation, and bound the state sovereignties. . . . The government of
the union, then (whatever may be the influence of this fact on the case) is emphatically and truly a
government of the people. In form and in substance it emanates from them. Its powers are granted
by them, and are to be exercised directly on them and for their benefit. This government is
acknowledged by all to be one of enumerated powers. . . . It is the government of all; its powers
are delegated by all; it represents all, and acts for all.’
Although the states are constituent parts of the United States, the government rests upon the
authority of the people of the United States, and not on that of the states. Chief Justice Marshall,
delivering the unanimous judgment of this court in Cohen v. Virginia, 6 Wheat. 264, 413, 5 L. ed.
257, 293, said: ‘That the United States form, for many and for most important purposes, a single
nation, has not yet been denied. In war, we are one people. In making peace, we are one people. .
. . In many other respects, the American people are one; and the government which is alone
capable of controlling and managing their interests . . . is the government of the Union. It is their
government, and in that character they have no other. America has chosen to be, in many respects
and to many purposes, a nation; and for all these purposes her government is complete; to all
these objects it is competent. The people have declared that in the exercise of all powers given for
those objects it is supreme. It can, then, in effecting these objects, legitimately control all
individuals or governments within the American territory.’
In reference to the doctrine that the Constitution was established by and for the states as distinct
political organizations, Mr. Webster said: ‘The Constitution itself in its very front refutes that. It
declares that it is ordained and established by [182 U.S. 244, 378] the People of the United
States. So far from saying that it is established by the governments of the several states, it does
not even say that it is established by the people of the several states. But it pronounces that it was
established by the people of the United States in the aggregate. Doubtless, the people of the
several states, taken collectively, constitute the people of the United States. But it is in this their
collective capacity, it is as all the people of the United States, that they established the
Constitution.’
In view of the adjudications of this court I cannot assent to the proposition, whether it be
announced in express words or by implication, that the national government is a government of or
by the states in union, and that the prohibitions and limitations of the Constitution are addressed
only to the states. That is but another form of saying that, like the government created by the
Articles of Confederation, the present government is a mere league of states, held together by
compact between themselves; whereas, as this court has often declared, it is a government created
by the People of the United States, with enumerated powers, and supreme over states and
individuals with respect to certain objects, throughout the entire territory over which its
jurisdiction extends. If the national government is in any sense a compact, it is a compact between
the People of the United States among themselves as constituting in the aggregate the political
community by whom the national government was established. The Constitution speaks, not
simply to the states in their organized capacities, but to all peoples, whether of states or
territories, who are subject to the authority of the United States. Martin v. Hunter, 1 Wheat. 327,
4 L. ed. 103.
...
Although from the foundation of the government this court has held steadily to the view that the
government of the United States was one of enumerated powers, and that no one of its branches,

OF THIS CASE
nor all of its branches combined, could constitutionally exercise powers not granted, or which
were not necessarily implied from those expressly granted (Martin v. Hunter, 1 Wheat. 326, 331,
4 L. ed. 102, 104) . . . This nation is under the control of a written constitution, the supreme law
of the land and the only source of the powers which our government, or any branch or officer of
it, may exert at any time or at any place. . . .To say otherwise is to concede that Congress may, by
action taken outside of the Constitution, engraft upon our republican institutions a colonial system
such as exists under monarchical governments. Surely such a result was never contemplated by
the fathers of the Constitution. If that instrument had contained a word suggesting the possibility
of a result of that character it would never have been adopted by the people of the United States. .
..
The idea prevails with some-indeed, it found expression in agruments at the bar-that we have in
this country substantially or practically two national governments; one to be maintained under the
Constitution, with all its restrictions; the other to be maintained by Congress outside and
independently of that instrument, by exercising such powers as other nations of the earth are
accustomed to exercise. It is one thing to give such a latitudinarian construction to the
Constitution as will bring the exercise of power by Congress, upon a particular occasion or upon
a particular subject, within its provisions. It is quite a different thing to say that Congress may, if
it so elects, proceed outside of the Constitution. The glory of our American system [182 U.S. 244,
381] of government is that it was created by a written constitution which protects the people
against the exercise of arbitrary, unlimited power, and the limits of which instrument may not be
passed by the government it created, or by any branch of it, or even by the people who ordained
it, except by amendment or change of its provisions. ‘To what purpose,’ Chief Justice Marshall
said in Marbury v. Madison, 1 Cranch, 137, 176, 2 L. ed. 60, 73, ‘are powers limited, and to what
purpose is that limitation committed to writting, if these limits may, at any time, be passed by
those intended to be restrained? The distinction between a government with limited and unlimited
powers is abolished if those limits do not confine the persons on whom they are imposed, and if
acts prohibited and acts allowed are of equal obligation.’
The wise men who framed the Constitution, and the patriotic people who adopted it, were
unwilling to depend for their safety upon what, in the opinion referred to, is described as ‘certain
principles of natural justice inherent in Anglo-Saxon character, which need no expression in
constitutions or statutes to give them effect or to secure dependencies against legislation
manifestly hostile to their real interests.’ They proceeded upon the theory-the wisdom of which
experience has vindicated- that the only safe guaranty against governmental oppression was to
withhold or restrict the power to oppress. They well remembered that Anglo- Saxons across the
ocean had attempted, in defiance of law and justice, to trample upon the rights of Anglo-Saxons
on this continent, and had sought, by military force, to establish a government that could at will
destroy the privileges that inhere in liberty. They believed that the establishment here of a
government that could administer public affairs according to its will, unrestrained by any
fundamental law and without regard to the inherent rights of freemen, would be ruinous to the
liberties of the people by exposing them to the oppressions of arbitrary power. Hence, the
Constitution enumerates the powers which Congress and the other departments may exercise,-
leaving unimpaired, to the states or the People, the powers not delegated to the national
government nor prohibited to the states. That instrument so expressly declares in [182 U.S. 244,
382] the 10th Article of Amendment. It will be an evil day for American liberty if the theory of a
government outside of the supreme law of the land finds lodgment in our constitutional
jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all
violation of the principles of the Constitution.
PART 3. THE P139

URPOSE OF THIS CASE
O. Arbitrary Exercise of Government Power

Citing Leeper v. Texas, 139 U.S. 462, 463 (1891), 11 Sup. Ct. Rep. 577.
“By the Fourteenth Amendment, the powers of states in dealing with crime within their borders are not limited,
except that no state can deprive particular persons or classes of persons of equal and impartial justice under the
law, that law in its regular course of administration through courts of justice is due process, and when secured by
the law of the state, the constitutional requirement is satisfied, and that due process is so secured by laws
operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government
unrestrained by the established principles of private right and distributive justice.”)
common law:
DC Circuit, No. 02-5334 (VIOLATED 28 U.S.C. § 1916)
8th CIRCUIT, CASE NO. 07-2400 (VIOLATED 28 U.S.C. § 1916W)
U.S. District Court/Little Rock, No. 06-0044. (VIOLATED 28 U.S.C. § 1916)
U.S. Supreme Court, Nos. 03-145 (VIOLATED 28 U.S.C. § 1916)
U.S. Supreme Court, Nos. 04M56 (VIOLATED 28 U.S.C. § 1916)
(1). To Incorporate the Second Amendment through the Fourteenth

Amendment.
To determine whether the Second Amendment is incorporated with the Bill of Rights through the
Fourteenth Amendment to apply to the States as well as to the United States thus enabling the Second
Amendment right to “openly” keep and bear arms in intrastate, interstate, and maritime travel as an unenumerated
right of the Ninth Amendment and whether the combination of the Second and Ninth Amendment conditions the
right to “openly” keep and bear arms in intrastate, interstate, and maritime travel as a near absolute right as a
presumption of liberty rather that as a privilege of the States’ police power in terms of regulating, restricting, or
prohibiting that right.
(2). To determine whether the U.S. Department of Justice and the FBI have a
duty to investigate allegations of extortion and corruption against federal
judges and their court clerks.
To determine Whether the U.S. Department of Justice and the FBI have a Duty to Investigate and
Prosecute Allegations Against Federal Judges and Their Court Clerks of EXTORTION UNDER COLOR OF LAW (18
U.S.C. § 872) and EXTORTION UNDER COLOR OF OFFICIEAL RIGHT (Racketeering under 18 U.S.C. § 1951(b)(2))

OF THIS CASE
as applied to the Seamen’s Suit Law (28 U.S.C. § 1916) in accordance with the U.S Attorney’s Manual, Title 9, §
131.020 INVESTIGATIVE AND SUPERVISORY JURISDICTION.
(3). To determine the role of the Citizen’s Arrest Warrant in the Checks and
Balance System of the Constitution of the United States.
To determine whether the Citizen’s Arrest Warrant as a remedy of last resort can be applied against
federal judges and their court clerks for EXTORTION UNDER COLOR OF LAW (18 U.S.C. § 872) and EXTORTION
UNDER COLOR OF OFFICIEAL RIGHT (Racketeering under 18 U.S.C. § 1951(b)(2)) for violation of the Seamen’s
Suit Law (28 U.S.C. § 1916) has a role in the Checks and Balance System of the U.S. Constitution. And to
determine whether a CITIZEN’S ARREST WARRANT under the Law of Citizen’s Arrest as implied by DC Code, §
23.582(b)(1)(A) ARRESTS WITHOUT WARRANT BY OTHER PERSONS with probable cause evidence of extortion as
noted in Line Item H. above places a burden of compliance upon the U.S. Marshals Service under 28 U.S.C. §
566(c) POWERS AND DUTIES to assistance with the execution of the Citizen’s Arrest Warrant without threats of
arrest and prosecution for 18 U.S.C. § 111 ASSAULTING, RESISTING, OR IMPEDING CERTAIN OFFICERS OR
EMPLOYEES; 18 U.S.C. § 1201 KIDNAPPING; and 18 U.S.C. § 1203 HOSTAGE TAKING as alleged by agents of the
U.S. Marshals Service.
(4). To Determine what role the U.S. Merchant Marine has in homeland
security when the U.S. Department of Homeland Security has
superintendence of the Merchant.
To determine whether the U.S. Merchant Marine and American seafarers have a role in homeland security
under the Second Amendment as an individual right. (see definition of Secretary under Title 46 Shipping of the
U.S. Code: 46 U.S.C. § 2101(34) (“Secretary”, except in part H [Identification of Vessels], means the head of the
department in which the Coast Guard is operating [which is the U.S. Department of Homeland Security]) (see also
the definition of Secretary under Title 14 U.S. Coast Guard of the U.S. Code: 14 U.S.C. § 5. “Secretary” is
defined as the Secretary of the respective department in which the Coast Guard is operating [again the U.S.
Department of Homeland Security]. (see also 14 U.S.C. § 1 U.S. Coast Guard Operating under the U.S.
Department of Homeland Security). (see also 46 U.S.C. § 2103 SUPERINTENDENCE OF THE MERCHANT MARINE
(The Secretary [of the U.S. Department of Homeland Security] has general superintendence over the merchant
marine of the United States and of merchant marine personnel insofar as the enforcement of this subtitle is
concerned and insofar as those vessels and personnel are not subject, under other law, to the supervision of
another official of the United States Government. In the interests of marine safety and seamen’s welfare, the
Secretary shall enforce this subtitle and shall carry out correctly and uniformly administer this subtitle. The
Secretary may prescribe regulations to carry out the provisions of this subtitle.
(5). To determine whether the federal courts are waging a judicial war against
the Constitution of the United States
To determine whether the federal courts are waging a judicial war against the Constitution of the United
States and against the American People’s right to a civil jury trial under the Seventh Amendment. (See We the
People Foundation, et al v. United States, et al, U.S. District Court for DC, No. 04-1211 (August 31, 2005)
(“The First Amendment does not impose any affirmative obligation on the government to listen, to respond.”
affirmed by the DC Circuit, and certiorari denied by the U.S. Supreme Court); Bell Atlantic Corp. v. Twombly,
550 U.S. __, __, 127 S. Ct. 1955 (May 21, 2007) (ratcheting up the standard of pleading to give way to even more
dismissals of civil causes under the new Plausible Standard of stating a claim to relief that a complaint must now
provide “enough facts to state a claim to relief that is plausible on its face”).
PART 3. THE P141

URPOSE OF THIS CASE
PART 4. IN DEFENSE OF PRO SE CIVIL LITIGATION

Part 19. The Claims
Part 25. Damages
PART 4. IN DEFENSE143
OF PRO SE CIVIL LITIGATION
A. The Congress Has Killed the Private Bill (First Amendment Right to Petition)
“While the absolute number of private bills submitted by individual members of Congress has remained
relatively steady, the number that have become private laws has shown a precipitous decline.” (Citing Matthew
Mantel, PRIVATE BILLS AND PRIVATE LAWS, 99 Law Library Journal 87, 90 (May 2007)). Footnote 24 in Mantel’s
article only listed data from 96th Congress (1979) to the 108th Congress (2003). Don Hamrick found the data to
create a more expanded chart from the 80th Congress (1947) to the present day 110th Congress (December 12,
2007).
PART 4. IN DEFENSE OF PRO144

SE CIVIL LITIGATION
B. 2008 UPDATE: Neither the House nor the Senate have passed any Private Bills
from January 3 to June 30, 2008
http://www.senate.gov/reference/resources/pdf/110_2.pdf
(1) “Private Legislation”
A HISTORY OF THE COMMITTEE ON THE JUDICIARY 1813–2006
Section II–Jurisdictions History of the Judiciary Committee
“PRIVATE LEGISLATION,”
House Document No. 109-153, pp. 143-148
http://www.gpoaccess.gov/serialset/cdocuments/hd109-153/browse.html
Nearly half of all the laws enacted by Congress have been private laws. 309 Unlike public law,
which applies to public matters and deals with individuals only by classes, the provisions of
private law apply to “one or several specified persons, corporations, [or] institutions.”310
Private legislation has its foundation in the right to “petition the government for a redress of
grievances”311 guaranteed to all citizens by the First Amendment to the U.S. Constitution.
Congress sometimes chooses to enact private law to grant relief in situations where no other legal
remedies are available. Private legislation is premised on the idea that public law cannot cover all
situations equitably, and sometimes Congress must address special circumstances with specially
targeted legislation. In this sense, private law has been called “an anomaly,”312 since it is intended
to address specific problems that public law either created or overlooked.
The 1st Congress enacted 10 private laws. The 59th Congress–the historic high water mark of
private legislation–enacted 6,249. Reporters observing the 59th Congress (1905–1906) noted that,
on one occasion, 320 private pension bills passed the House in an hour and a half, “an average of
three each minute.” One reporter characterized the Chairman of the Committee of the Whole as
presiding with “auctioneer-like qualities” as these private pension measures were raised and
rapidly adopted in turn.313
Today Congress enacts very little private legislation. In the last 10 Congresses combined it has
enacted just 159 private measures, a mere two percent of the amount passed in the 1905–1906
sessions alone. In the 108th Congress, just one percent of the laws enacted by Congress were
private – the lowest percentage of private legislation enacted at any time in the nation’s history.
The first private law enacted by Congress in 1789 awarded a year-and-a-half’s pay at the rank of
Captain to a foreign citizen serving in the U.S. military.314 Since that time, Congress has enacted
309
According to data obtained from CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, v.7, §1028, the CALENDAR
OF THE UNITED S TATES HOUSE OF REPRESENTATIVES AND HISTORY OF LEGISLATION FROM THE 74 TH THROUGH 79TH CONGRESSES,
and the CONGRESSIONAL RECORD’S RESUME OF CONGRESSIONAL ACTIVITY FROM THE 80TH THROUGH 109TH CONGRESSES,
BETWEEN 1789 AND 2006, Congress enacted a total of 94,120 laws. Of these, 45,937 — 49 percent — have been private laws.
310
HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, v.4, §3285.
311
U.S. CONGRESS, CONSTITUTION, JEFFERSON’S MANUAL, AND RULES OF THE HOUSE OF REPRESENTATIVES, H.Doc. 108–241,
108th Cong., 2nd sess. (Washington: GPO, 2005), §208, p. 90. (Hereafter referred to as “HOUSE MANUAL”).
312
“PRIVATE BILLS IN CONGRESS,” Harvard Law Review, vol. 79, June 1966, p. 1684.
313
“Three Pensions a Minute,” New York Times, May 12, 1906, p. 9.
314
CONGRESSIONAL QUARTERLY’S GUIDE TO CONGRESS, 5th ed., vol. I (Washington: Congressional Quarterly, Inc., 2000), p.
526.
over 45,000 private laws dealing with issues both commonplace and extraordinary: providing
pensions or lump sum payments to soldiers and widows, satisfying sundry monetary claims
against the government, correcting military records, eliminating the “political disabilities” of
Civil War rebels, fixing immigration problems, extending patents, providing vessel
documentation, refunding tariffs or overpayments, expediting the naturalization process for a
potential Olympian, authorizing the Speaker of the House to wear a foreign military decoration,
and permitting the family of an immigrant murdered in a post 9/11 hate crime to remain in the
United States.
Historically, most private legislation introduced in the House of Representatives was considered
by various private claims Committees in the House315 or by the Committee on Immigration and
Naturalization. 316 THE 1946 LEGISLATIVE REORGANIZATION ACT,317 however, transferred
jurisdiction over both immigration and claims to the House Committee on the Judiciary, along
with jurisdiction over patents. Thus, since 1947, only a fraction of private measures dealing with
sundry matters such as public lands, vessel documentation, military awards, veterans’ benefits
and legislation relating to tax and tariffs introduced in the House have been referred to
Committees other than the House Committee on the Judiciary.
While the overall volume of private law has not been large in recent years, the internal workload
of the Judiciary Committee and of its Members and professional staff, in dealing with private
legislation has remained significant. Over the last 27 years, the House Judiciary Committee has
processed 91 percent of all private laws enacted. In addition, the importance of the task of
reviewing such legislation is as high as ever. In its truest sense, each private measure referred to
the House Judiciary Committee represents a plea for relief from a petitioner who, in theory, has
no other recourse. The problems involved may touch on some of the most important and
emotionally-charged subjects imaginable: a mother’s plea to bring an adopted child into the
United States, the death of a soldier’s toddler due to government negligence, payments justly
owed to a small business but tied up in bureaucratic red tape.
Since 1947, private immigration and claims bills have been handled in the House by
subcommittees of the full Judiciary Committee, initially known as Subcommittee No. 1 (dealing
with immigration and nationality) and Subcommittee No. 2 (dealing with claims against the
government.)318 Currently, such measures are referred to one Judiciary subcommittee, the
Subcommittee on Immigration, Border Security, and Claims, for review.
Individual private cases are examined by the Subcommittee to determine if they meet the criteria
for private relief and are in keeping with precedents and with Congress’s overarching goal of
making equitable law.
The decline in the introduction of private legislation in recent decades stems primarily from
incremental reforms made by Congress to delegate the authority to address most private
grievances administratively or through the courts. Examples of this progression include the
creation of the United States Court of Claims in 1855, the enactment of the Federal Tort Claims
315
These include the House Committees on Claims; Pensions and Revolutionary Claims; Private Land Claims; Revolutionary
Claims; Military Pensions; Invalid Pensions; Revolutionary Pensions; War Claims; and Pensions. David T. Canon, Garrison
Nelson, Charles Stewart III, Committees in the U.S. Congress, 1789–1946, vol. 1, (Washington: CQ Press, 2002), pp. VI-
XXXV.
316
U.S. Congress, House Committee on the Judiciary, HISTORY OF THE COMMITTEE ON THE JUDICIARY OF THE HOUSE OF
REPRESENTATIVES, Committee Print, 92nd Cong. 2nd sess., (Washington: GPO, 1972), p. 5.
317
P.L. 79–601, 60 Stat. 812.
318
CRS Typed Report, (TRENDS IN ACTIVITY ON PRIVATE LEGISLATION IN CONGRESS), by Richard S. Beth, p. 8.

SE CIVIL LITIGATION
Act, and the passage of similar statutes permitting administrative settlement of most military
claims.319 Likewise, changes in immigration law have, at times, led to reductions in the
introduction of private legislation in Congress.320
Congress has also made numerous internal reforms that have had the effect of reducing the
amount of private legislation introduced. For example, section 131 of the 1946 Legislative
Reorganization Act barred the introduction of private bills addressing grievances that might be
resolved by the Tort Claims Procedure of Title 28, bills to grant a pension, to construct a bridge
over a navigable stream, or to correct a military or naval record. These provisions were made part
of the standing rules of the House in 1953, and are currently codified in Rule XIII, clause 4.321
As former House Judiciary Committee Chairman Emanuel Celler noted, these changes initially
did “effect some change in the private bill workload,” reducing the percentage of private
measures enacted from 55 percent immediately before the reforms, to 34 percent after their
adoption. 322
Additional reforms undertaken by the House Judiciary Committee in 1947 barred stays of
deportation simply because of the introduction of a private bill for “stowaways, deserting seamen,
and border jumpers.” The Committee realized that a large fraction of private immigration bills
were being introduced by Members, not with the hope of them becoming law, but simply to stay
deportation proceedings. The simple introduction of a relief bill meant that the alien would not be
deported while the measure was pending, whether or not the measure was ever acted upon.
The volume of private legislation introduced, and as a result, the workload of the House Judiciary
Committee, however, remained unmanageably large despite these reforms. In the 90th Congress
(1967–1968), for example, House Judiciary Subcommittee No. 2 was referred 779 private claims
bills and oversaw the enactment of 116 of them into law. Subcommittee No. 1 was referred over
6,000 private immigration bills.323 According to former Rep. William Cahill, this represented “the
largest number [of private immigration bills] ever introduced” up to that time.324 While the
Judiciary panel worked hard to meet its responsibilities – its immigration subcommittee held 37
meetings and oversaw the enactment of 216 private laws – the strain from such legislative volume
meant that it was simply, “unable to remain current.”325
In response to this challenge, the restrictions on stays of deportation for certain petitioners were
further broadened. According to Rep. Cahill, in 1967, the Committee rule “was broadened to
include those who entered the United States as transients en route to third countries and [who]
illegally remain[ed] in this country.”326 New Judiciary Committee rules adopted in 1969, and
319
CRS Typed Report, (TRENDS IN ACTIVITY ON PRIVATE LEGISLATION IN CONGRESS), by Richard S. Beth.
320
Other changes in immigration law have arguably led to increases in the introduction of private bills at certain points in
congressional history. For more information on immigration policy and its effect on private legislation, see TRENDS IN
ACTIVITY ON PRIVATE LEGISLATION IN CONGRESS, by Richard S. Beth, and CRS Report RL33024, PRIVATE IMMIGRATION
LEGISLATION, by Margaret Mikyung Lee.
321
HOUSE MANUAL, §822, p. 601.
322
Rep. Emanuel Celler, remarks in the House, CONGRESSIONAL RECORD, daily edition, vol. 95, pt. 15, May 12, 1949, p.
A2901.
323
U.S. Congress, House Committee on the Judiciary, SUMMARY OF ACTIVITIES, Committee Print, 90th Cong., 2nd sess.,
(Washington: GPO, 1968), p. 9.
324
Rep. William T. Cahill, remarks in the House, CONGRESSIONAL RECORD, vol. 115, pt. 20, Mar. 12, 1969, p. H1629.
325
Ibid., p. H1630.
326
Rep. William T. Cahill, remarks in the House, CONGRESSIONAL RECORD, vol. 115, pt. 20, Mar. 12, 1969, p. H1629.
amended in 1971, further tightened procedures for the consideration of private immigration
measures and contributed signifi cantly to an overall decline in their introduction. Specifi cally,
the rules altered Committee policy by eliminating the stay of deportation of various additional
petitioners that used to be automatic upon the introduction of a private immigration bill. These
Judiciary Committee rules changes led the introduction of private immigration bills to “drop
sharply.”327
The marked reduction in private laws enacted in recent decades stem largely from these reforms,
but doubtless also stems in part from periodic accusations of impropriety or the appearance of
impropriety in the introduction of private measures. In 1969 and 1976, Members and staff in both
chambers were accused of soliciting and accepting bribes in exchange for the introduction of
private immigration measures.328 In addition, the widely publicized 1980 FBI Abscam bribery
sting operation revolved, in part, around requests for the introduction of private bills in exchange
for money. 329
Today, in considering private immigration bills, the Judiciary Committee generally reviews only
those cases that are of such an extraordinary nature that an exception to the law is needed and acts
favorably on only those private bills that meet certain well-defined precedents. The
Subcommittee has published detailed rules of procedure for the consideration of private
immigration and claims bills, and works regularly with Members and staff to guide them in the
framing and drafting of private legislation on behalf of their constituents.330
C. The Plaintiff has the Right to Challenge the Constitutionality of a Statute (Case
Law)
“A statute valid when enacted may become invalid by change in the conditions to which it is applied.”
Nashville, C. & St. L. R. Co. v. Walters, 294 US 405, 55 S Ct 486, (1935). “Longevity does not ensure that a
statute is constitutional.” [Per Marshall, J., as Circuit Justice.] Brennan v. U.S. Postal Service, 439 US 1345, 98 S
Ct 22 (1978). “The principle that a statute, valid, when enacted may cease to have validity, owing to a change of
circumstances, is applicable to Acts of Congress.” Hamilton v. Kentucky Distilleries & Warehouse Co. 251 US
146 (1919), 40 S Ct 106, 64 L Ed 194.
“When the United States Supreme Court is asked to invalidate a statutory provision that has been
approved by both houses of Congress and signed by the President, it should do so only for the most compelling
constitutional reasons.” Mistretta v. United States, 488 US 361, 109 S Ct 647, 102 L Ed 2d 714 (1989).
(1). Change of Conditions
“A statute valid when enacted may become invalid by change in the conditions to which it is
applied.” Nashville, C. & St. L. R. Co. v. Walters, 294 US 405, 55 S Ct 486, (1935). “Longevity does not ensure
that a statute is constitutional.” [Per Marshall, J., as Circuit Justice.] Brennan v. U.S. Postal Service, 439 US
1345, 98 S Ct 22 (1978).
327
Richard L. Madden, “Private Immigration Bills Found to Drop Sharply,” New York Times, Oct. 25, 1972, p. 14.
328
“Rep. Helstoski Denies He Got Payoffs,” New York Times, June 26, 1976, p. A5.
329
Charles R. Babcock, “FBI ‘Sting’ Ensnares Several In Congress,” The Washington Post, Feb. 3, 1980, p. A1.
330
SUBCOMMITTEE RULES OF PROCEDURE are available on the House Committee on the Judiciary’s website:
http://judiciary.house.gov/Printshop.aspx.

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(2). Change of Circumstances

“The principle that a statute, valid, when enacted may cease to have validity, owing to a change of
circumstances, is applicable to Acts of Congress.” Hamilton v. Kentucky Distilleries & Warehouse Co. 251 US
146 (1919), 40 S Ct 106, 64 L Ed 194.
(3). Compelling Constitutional Reasons
“When the United States Supreme Court is asked to invalidate a statutory provision that has been
approved by both houses of Congress and signed by the President, it should do so only for the
most compelling constitutional reasons.” Mistretta v. United States, 488 US 361, 109 S Ct 647,
102 L Ed 2d 714 (1989).
The Change of Circumstances as the basis for a constitutional challenge to state and federal laws are also
available uberrimae fidei 331 as a human rights challenge to the United Nations global gun control agenda
spearheaded by the PROGRAMME OF ACTION TO PREVENT, COMBAT AND ERADICATE THE ILLICIT TRADE IN SMALL
ARMS AND LIGHT WEAPONS IN ALL ITS ASPECTS on the basis that it is being used to attack our Second Amendment
constitutional rights and the international human right to own and possess firearms for the safety, security, and
defense of the international human right to life. The basis in international law for my allegations is found in the
United Nations INTERNATIONAL BILL OF HUMAN RIGHTS, the CONVENTION AGAINST CORRUPTION and the GENEVA
CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, just to name a few.
The Changes of Circumstances for a constitutional challenge of state and federal laws (i.e. the new Rule
5.1 of the Federal Rules of Civil Procedure) corresponds with Articles 60, 61, 62, 64 of the VIENNA CONVENTION
ON THE LAW OF TREATIES OF 1969 and the VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND
INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS OF 1986. The United States can use
these authorities to (1) force the United Nations to cease and desist, to abandon their global gun control agenda;
(2) to withdraw from the United Nations; or (3) to even cause the disbanding of the United Nations for breach of
the United Nations Charter under Article 2, clause 7 of the U.N. Charter.
Because the United States has not acted intra vires332 in a timely manner to the [Special Rapporteur’s
report, “PREVENTION OF HUMAN RIGHTS VIOLATIONS COMMITTED WITH SMALL ARMS AND LIGHT WEAPONS,”]333 and
because of the federal courts corruptive actions blocking my case from proceeding to a civil jury trial I filed my
human rights complaint against the United States with the Inter-American Commission on Human Rights on the
hope I will find a fair and unbiased international tribunal, lest the entire world is going to Hell in a handbasket.
C. Right to Petition
Citing 3 CONSTITUTION OF THE UNITED STATES OF AMERICA, ANALYSIS AND INTERPRETATION 1188 (1992)
It is no longer confined to demands for “a redress of grievances,” in any accurate meaning of
these words, but comprehends demands for an exercise by the Government of its powers in
furtherance of the interest and prosperity of the petitioners and of their views on politically
contentious matters. See Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127
(1961). The right extends to the “approach of citizens or groups of them to administrative
agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the
third branch of Government. Certainly the right to petition extends to all departments of the
331
Latin. “of the utmost good faith”
332
Latin: “within the powers of,” “of or referring to an action taken within the scope of authority.”
333
www.iansa.org/un/documents/salw_hr_report_2006.pdf.
Government. The right of access to the courts is indeed but one aspect of the right of petition.”
California Motor Transport Co. v . Trucking Unlimited, 404 U.S. 508, 510 (1972). See also
NAACP v. Claiborne Hardware Co., 458 U .S. 886, 913–15 (1982); Missouri v. NOW, 620 F.2d
1301 (8th Cir.), cert. denied , 449 U .S. 842 (1980) (boycott of States not ratifying ERA may not
be subjected to antitrust suits for economic losses because of its political nature).
The actions of the Judicial Branch of the federal government in Plaintiff’s six year litigious saga are held
as evidence of judicial bias and politicized judicial activism against Plaintiff’s case for Second Amendment rights
under Rule 406, Habit, Routine Practice of the Federal Rules of Evidence as violating Article III, Sections 1 and 2
of the Constitution:
Section. 1. . . . The Judges, both of the supreme and inferior Courts, shall hold
their Offices during good Behaviour, . . . .
Section. 2. The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and Treaties made,
or which shall be made, under their Authority; . . . — to Controversies to which
the United States shall be a Party; — to Controversies between two or more
States; — between a State and Citizens of another State [Modified by
Amendment XI]; . . . .
And the same against Plaintiff’s right to due process of the Fourteenth Amendment as well as violating
Plaintiff’s First Amendment right to petition the government for substantial redress of grievances. The across the
board shut-out of Plaintiff’s case is tantamount to only granting Plaintiff his First Amendment right to petition the
government for procedural redress of grievances as if to deceive Plaintiff in just going through the motions of
justice as if justice was actually rendered. This violates Plaintiff’s right to due process and Plaintiff construes and
alleges this judicial belligerence against Second Amendment cases falls under the RICO Act in an illegal
protection scheme where the federal government unconstitutionally forces Plaintiff to rely on the government for
personal security.
D. Kathleen M. Sullivan’s, Unconstitutional Conditions, 10 Harv.L.Rev. 1413 (May

1989)
Basic constitutional jurisprudence dictates that courts subject most government benefit decisions
to minimal scrutiny, but scrutinize government actions that directly burden preferred liberties
more closely. Unconstitutional conditions problems arise at the boundary between these two
directives: when government conditions a benefit on the recipient’s waiver of a preferred liberty,
should courts review the conditioned benefit deferentially, as a benefit, or strictly, as a burden on
a preferred liberty? . . . Professor Sullivan criticizes traditional analyses of unconstitutional
conditions for focusing wrongly on whether conditions coerce individuals, distort legislative
process, or permit alienation of constitutional rights. She articulates an alternative defense of
close scrutiny, arguing that rightspressuring conditions on government benefits skew distribution
of power between government and rightholders, as well as among rightholders themselves.
Professor Sullivan then develops this systemic approach, detailing both the circumstances in
which courts should apply close scrutiny, and those in which government justifications may be
strong enough to survive such scrutiny.334
The doctrine of unconstitutional conditions holds that government may not grant a benefit on the
condition that the beneficiary surrender a constitutional right, even if the government may
334
Kathleen M. Sullivan, “Unconstitutional Conditions,” 102 Harv.158 L.Rev. 1413 (May 1989), introduction. Italics in
original.

SE CIVIL LITIGATION
withhold that benefit altogether. It reflects the triumph of the view that government may not do
indirectly what it may not do directly over the view that the greater power to deny a benefit
includes the lesser power to impose a condition on its receipt. (Id. at 1415)
[A]ssuming that some set of constitutionally preferred liberties has been agreed upon, and that
burdens on those liberties require especially strong justification, unconstitutional conditions
doctrine performs an important function. It identifies a characteristic technique by which
government appears not to, but in fact does burden those liberties, triggering a demand for
especially strong justification by the state. Part I of this Article defines the basic elements of the
technique. (Id. at 1419)
The central challenge for a theory of unconstitutional conditions is to explain why conditions on
government benefits that “indirectly” pressure preferred liberties should be as suspect as “direct”
burdens on those same rights, such as the threat of criminal punishment. (Id. at 1419)
IV. Unconstitutional Conditions as Commodification
Unconstitutional conditions doctrine has a third possible theoretical explanation: that some
constitutional rights are inalienable, and therefore may not be surrendered even through voluntary
exchange. This approach identifies the harm in unconstitutional conditions as the
commodification of rights the treatment of rights as transferable objects. (Id. at 1477)
1. Paternalism.
Making constitutional rights inalienable because citizens may undervalue the worth of those
rights to themselves would be classic paternalism overruling individuals’ choices for their own
good. Individuals’ choices may diverge from their “best” interests for many reasons: for example,
because they underassess risk or under-value their long-term interests. Choices to waive
constitutional rights are no exceptions; invalidating such choices, even if perfectly voluntary,
compels citizens to hang onto their rights for their own good. (Id. at 1480)
. . . The very existence of constitutional rights, however, unlike consumer tastes or preferences,
results from the prior “paternalistic” act of enacting a Constitution. The framers’ decision to place
constitutional rights beyond majority decisionmaking reflects the prediction that citizens will
undervalue those rights in the ordinary course of politics. Constitutional rights thus represent
commitments by a constitutional majority to override the acts of future political majorities’
political version of Ulysses and the Sirens. If the Constitution overrides the legislative choices of
improvident future political majorities, why not the trading choices of improvident future
individual rightholders? This approach would conceive unconstitutional conditions doctrine as a
mere backstop to constitutionalism itself, which among other things, places rights beyond the
reach of politics because citizens, if left to their own devices, will squander them. (Id. at 1480-81)
4. Personhood.
Another sort of argument defends inalienability not because it promotes efficiency or equality,
but because some things ought not to be traded on markets at all. Such wholesale anti-
commodification arguments rest on various theories. Some, for example, view market boundaries
as essential to a distinction between the sacred and the profane. On such a view, reverence,
mystery, and awe for something depend on its freedom from the pollution of trade. A second
variant argues that noncommodificiation can help preserve social norms of altruism or donation.
(Id. at 1484)
Such a “personhood” approach would hold that the opportunity to exchange rights for benefits
wrongly commodifies rights. . . . Inalienability here would follow from the view that
constitutional rights, like body parts and love, but unlike clothes or mass-market consumer goods,
are essential attributes of personal identity. The metaphor of constitutionally protected liberties as
a “birthright” captures this view. Free transfer of such rights is a form of dismemberment. If
citizens could purchase and sell constitutional rights, they would have a different and inferior
conception both of those constitutional rights and of themselves. (Id. at 1485)
V. A Systemic Account of Unconstitutional Conditions
Neither coercion, corruption, nor commodification theories satisfactorily explain why conditions
on benefits that pressure preferred liberties should receive the same strict scrutiny as “direct”
constraints. . . . None of these three approaches suffices: coercion theory focuses too narrowly on
the individual beneficiary, germaneness theory focuses wrongly on [the corruption of the]
legislative process, and inalienability theory focuses too generally on problems with exchange.
(Id. at 1489-90)
This Part argues for an alternative approach grounded in the systemic effects that conditions on
benefits have on the exercise of constitutional rights. Such an approach starts from the
proposition that the preferred constitutional liberties at stake in unconstitutional conditions cases
do not simply protect individual rightholders piecemeal. Instead, they also help determine the
overall distribution of power between government and rightholders generally, and among classes
of rightholders. (Id. at 1490)
Unconstitutional conditions, no less than “direct” infringements, can skew this distribution in
three ways.
First they can alter the constitutional liberties generally declare desirable some realm of
autonomy that should remain free from government encroachment. Government freedom to
redistribute power over presumptively autonomous decisions from the citizenry to itself through
the leverage of permissible spending or regulation would jeopardize that realm. Second, an
unconstitutional condition can skew the distribution of constitutional rights among rightholders
because it necessarily discriminates facially between those who do and those who do not comply
with the condition. If government has an obligation of evenhandedness or neutrality with regard
to a right, this sort of redistribution is inappropriate. Third, to the extent that a condition
discriminates de facto between those who do and do not depend on a government benefit, it can
create an undesirable caste hierarchy in the enjoyment of constitutional rights. (Id. at 1490)
A. Constitutional Liberty as Distribution
A systemic approach to unconstitutional conditions problems recognizes that constitutional
liberties regulate three relationships: the relationship between government and rightholders,
horizontal relationships among classes of right holders, and vertical relationships among
rightholders. . . . rights-pressuring conditions on government benefits potentially skew all three.
(Id. at 1491)
Such an approach has important advantages over coercion, germaneness, and inalienability
theories in illuminating unconstitutional conditions problems. Unlike coercion and unalienability
theories, a systemic approach emphasizes the distinctive role of government: citizens’
transactions with government require different analysis than interpersonal transactions, an
analysis that focuses not on individuals but on the balance of power and freedom in the polity as a
whole. (Id. at 1491)

SE CIVIL LITIGATION
PART 5. FEDERAL QUESTIONS PRESENTED

Part 19. The Claims
Part 25. Damages
153
A. Human Rights Law

(1) Has State and Federal gun control laws in their aggregate effect risen to levels that violate the Second
Amendment and international human rights treaties?
(2). Does the Heller opinion declaring “[t]he Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia” create a “fundamental change of circumstances” for the
“emergence of a new peremptory norm of general international law (“jus cognens”) for the “right to life”
provision of human rights treaties?
(3). Does the Heller opinion opinion declaring “[t]he Second Amendment protects an individual right to
possess a firearm unconnected with service in a militia” create an “obligation erga omnes” requirement on the
United States under human rights treaties to incorporate the Second Amendment through the Privileges and
Immunities Clause of the Fourteenth Amendment thereby 7applying the Second Amendment to the States and
thusly resurrecting the Second Amendment and Ninth Amendment right to “openly” keep and bear arms in
intrastate, interstate, and maritime travel?
(4). Does the Supremacy Clause make human rights treaties mirroring our own Bill of Rights directly
enforceable as a private right of action for citizens of the United States in federal courts?
(5). Does the Supremacy Clause prohibit implementing legislation by Congress for human rights treaties
mirroring our own Bill of Rights?
(6). Does the Supremacy Clause prohibit the President and the Senate from inserting “Reservations,
Understandings, and Declarations” (RUDs) into human rights treaties mirroring our own Bill of Rights?
(7). Do “Reservations, Understandings, and Declarations” (RUDs) prohibiting a private right of action in
international human rights treaties for United States citizens violate the judicial Power clause of Article III,
Clause 2 of the Constitution of the United States which states, in part, “The judicial Power shall extend to all
Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or
which shall be made, under their Authority; — to all Cases of admiralty and maritime Jurisdiction; — to
Controversies to which the United States shall be a Party; . . . and between a State, or the Citizens thereof, and
foreign States, Citizens or Subjects.”?
(8). Is Summary Judgment unconstitutional?
(9). Are Conley v. Gibson, 355 U.S. 41 at 45-46, 48 (1957) that “The assertion of federal rights, when
plainly and reasonably made, are not to be defeated under the name of local practice,” and “that a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief “ abrogated by the new “Plausible Standard”in
Bell Atlantic Corp. v. Twombly, 550 U.S. __, __, 127 S. Ct. 1955 (May 21, 2007) of stating a claim to relief that a
complaint must now provide “enough facts to state a claim to relief that is plausible on its face” representative of
a judicial war on the American People’s right to a civil jury trial?
(10). Do I have a right to make citizen’s arrest of federal judges and their court clerks for felony
EXTORTION UNDER COLOR OF LAW, 18 U.S.C. § 872 and EXTORTION UNDER COLOR OF OFFICIAL RIGHT
(Racketeering), 18 U.S.C. § 1951(a) and § 1951(b)(2) in relation to extorted payments of filing fees as a seaman
under the SEAMEN’S SUIT law, 28 U.S.C. § 1916?
(11). Does the Seamen’ Suit law, 28 U.S.C. § 1916 directly apply to docket access fees of the PACER
Service Inc., the internet access provider to federal court dockets?
(12). Does the right to make a citizen’s arrest as a remedy of last resort extend to federal judges and their
court clerks for violations of federal laws in light of the U.S. District Court for the District of Columbia’s opinion
in We the People Foundation, et al v. United States, et al, No. 04-1211 (August 31, 2005), (affirmed by the DC
Circuit, and certiorari denied by the U.S. Supreme Court) that “the First Amendment does not impose any
affirmative obligation on the government to listen, to respond,” to complaints filed with federal agencies?
154 PRESENTED
PART 5. FEDERAL QUESTIONS
(13). Is the right to make a citizen’s arrest of employees of the United States government a part of the
checks and balance system of the United States Constitution (i.e., under the Sixth, Seventh, Ninth and Tenth
Amendments)?
(14) Has State and Federal gun control laws in their aggregate effect risen to levels that violate
international human rights treaties?
B. Constitutional Law (The Checks and Balance System)
(1). Was Chisholm v. Georgia, 2 U.S. 419 at 466 (1793) a correct interpretation of Section 2, Article III,
of the Constitution of the United States in that “The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under
their Authority; . . . to Controversies . . . “between a State and Citizens of another State” that a State can by sued
by a citizen of another State?
(2). Was the right of a citizen of one State to sue another State under Section 2, Article III of the
Constitution of the United States a functional part of the Checks and Balance system of the guarantee of a
Republican form of Government under Section 4, Article IV of the Constitution of the United States?
(3). Does the Eleventh Amendment unconstitutionally construe to deny or disparage the Ninth
Amendment unenumerated right of a citizen of one State to sue another State?
(4). Was the Eleventh Amendment an unconstitutional taking under the Fifth Amendment of power
reserved to the People under the Tenth Amendment and an unconstitutional taking of unenumerated rights under
the Ninth Amendment?
(5). Does treason in Article III, Section 3, Clause 1 apply to federal judges levying War against the
Constitution of the United States as stated in Cohen v. Com. Wealth of Virginia 19 U.S. 264 (Wheat) (1821) (It is
most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take
jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the
confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever
difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to
decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other
would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid
them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.)?
(6). Does the Ninth and Tenth Amendments require Congress to include provisions on private rights of
action in federal laws and regulations affecting the rights, freedoms, duties, and responsibilities of U.S. citizens?
(7). Does the “No Individual Right to Police Protection Doctrine” invoke the Second Amendment right to
keep and bear arms as an absolute right of personal safety and security for immediate armed self-defense under
the Law of Nature and especially under the Law of Human Nature?
(8). Did creation of the U.S. Department of Homeland Security in response to the terrorist attacks in 2001
establish extraordinary circumstances for the plaintiff’s Petition for Writ of Mandamus (U.S. District Court for
DC, No. 02-1435)?
(9). Does Heller (2008) create extraordinary circumstances for mandamus relief for the Plaintiff’s Petition
for Writ of Mandamus?
(10). Does Summary Judgment violate the common law right to a civil jury trial under the Seventh
Amendment?
(11). Citing Justice Breyer’s four-point test four determining whether courts could infer private
enforcement from a statute that did not expressly provide for private enforcement in Cort v. Ash, 422 U.S. 66, at
78 (1975) is a private remedy implicit in the Seamen’s Suit Law 28 U.S.C. § 1916 even though it does not
expressly provide a private remedy?
155
(12). Are Pacer Internet Docket Fees automatically included under the Seamen’s Suit Law (28 U.S.C. §
1916) of exempted fees or must a United States seaman file a separate motion for the exemption to apply to the
Pacer Internet Docket Fees?
(13). When a civil case before a Court of the United States with subject matter jurisdiction concerning the
safety of seamen at sea and ashore in the United States is there a Tenth Amendment power of citizen’s arrest and
a Seventh Amendment private right of action under the Law of Citizen’s Arrest for a United States
seaman/plaintiff to enforce the Seamen’s Suit Law (28 U.S.C. § 1916) against federal judges and court clerks who
unlawfully Order and compel the seaman/plaintiff to pay the court’s filing fee (18 U.S.C. § 872 Extortion Under
Color of Law and 18 U.S.C. § 1651(b)(2) Extortion Under Color of Official Right (RICO Act)) when all
normative remedies are exhausted?
(14). Is their an implied Private Right of Action under the SEAMEN’S SUIT LAW (28 U.S.C. § 1916) to
make citizen’s arrest of federal judges and their court clerks for felony EXTORTION UNDER COLOR OF LAW (18
U.S.C. § 872) and felony EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering), (18 U.S.C. § 1951(a))
and § 1951(b)(2) in relation to extorted payments of filing fees as a seaman under the SEAMEN’S SUIT LAW (28
U.S.C. § 1916)?
(15). Does the SEAMEN’S SUIT LAW (28 U.S.C. § 1916) apply directly to Pacer Online Docket access fees?
(16). Does the right to make a citizen’s arrest under the Law of Citizen’s Arrest as a remedy of last resort
extend to federal judges and their court clerks for violations of EXTORTION UNDER COLOR OF LAW (18 U.S.C. §
872) and felony EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering), (18 U.S.C. § 1951(a)) and §
1951(b)(2) in light of the U.S. District Court for the District of Columbia’s opinion in We the People Foundation,
et al v. United States, et al, No. 04-1211 (August 31, 2005), (affirmed by the DC Circuit, and certiorari denied by
the U.S. Supreme Court) that “the First Amendment does not impose any affirmative obligation on the
government to listen, to respond,” to complaints filed with federal agencies?
(17). Is the LAW OF CITIZEN’S ARREST part of the checks and balance system of the United States
Constitution (i.e., under the Sixth, Seventh, Ninth and Tenth Amendments)?
The Supreme Court, however, has held that “the First Amendment does not impose any affirmative obligation on
the government to listen, to respond . . .” See Smith v. Ark. State Highway Employees, Local 1315, 441 U.S. 463,
465 (1979).
We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 04-
1211 (August 31, 2005). Affirmed, DC Circuit, No. 05-5359 (May 8, 2007):
We need not resolve this debate, however, because we must follow the binding Supreme Court precedent. See
Tenet v. Doe, 544 U.S. 1, 10-11 (2005). And under that precedent, Executive and Legislative responses to and
consideration of petitions are entrusted to the discretion of those Branches.
(18). Are the FEDERAL BUREAU OF INVESTIGATION and the PUBLIC INTEGRITY SECTION, Criminal Division
of the U.S. Department of Justice required to accept, investigate, and prosecute federal judges and their court
clerks for EXTORTION UNDER COLOR OF OFFICIEAL RIGHT (18 U.S.C. § 1951(b)(2)) in accordance with the U.S
Attorney’s Manual, Title 9, § 131.020 INVESTIGATIVE AND SUPERVISORY JURISDICTION.
(19). Does the Preamble to the Constitution, the legislative Preamble to the Bill of Rights, the Bill of
Rights themselves, and the Thirteenth and Fourteenth Amendments serve as a barrier to restrictive and prohibitive
regulation of firearms through the Commerce Clause of Article 1, Section 8 in the Constitution of the United
States?
156 PRESENTED
(20). Does the Second Amendment, Fifth Amendment, Ninth Amendment, and the “privileges and
immunities” clause of the Fourteenth Amendment extend to the right to “openly” keep and bear arms in intrastate,
interstate, and maritime travel?
(21). As a person not prohibited to own and possess a firearm under 18 U.S.C. § 922, et seq. do I have the
right to own and possess firearms in intrastate and interstate travel?
(22). Is the Second Amendment a vital component of the Common Defence clause, the General Welfare
clause, and the Domestic Tranquility clause of the Preamble to the U.S. Constitution and of the Tenth
Amendment under the Bill of Rights?
(23). Is the U.S. Coast Guard required, as a non-discretionary duty under the Oath of Office to support
and defend the Constitution, to include a Second Amendment indicator, (i.e. an endorsement for National Open
Carry Handgun) on the MERCHANT MARINER’S DOCUMENT for mandatory occupational training under OPNAV
Instruction 3591.1C (May 13, 1992) SMALL ARMS TRAINING AND QUALIFICATION,335 and 46 U.S.C. § 7306(a)(3)
GENERAL REQUIREMENTS AND CLASSIFICATIONS FOR ABLE SEAMEN, in the 9mm Baretta, 12-ga shotgun, and the M-
14 rifle when there are no federal laws or regulations for or against the requested endorsement?
(24). Does 18 U.S.C. § 926A. INTERSTATE TRANSPORTATION OF FIREARMS and the aggregate effect of gun
control laws of the 48 contiguous State violate the right to travel simultaneously with the right to “openly”keep
and bear arms under the Second, Fifth, Fourth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments and does
the aggregate effect of State and Federal gun control laws impose conditions and badges of slavery as defined by
Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 416-417 (1856)?
(25). Does the Heller opinion declaring the “[t]he Second Amendment protects an individual right to
possess a firearm unconnected with service in a militia” create a constitutional obligation to incorporate the
Second Amendment through the Privileges and Immunities Clause of the Fourteenth Amendment to appy to the
States thus resurrecting the Second Amendment and Ninth Amendment right to “openly” keep and bear arms in
intrastate, interstate, and maritime travel?
(26). Is the Second Amendment right to keep and bear arms “openly” in intrastate, interstate, and
maritime travel an unenumerated near-absolute right of the Ninth Amendment?
(27). Is there a Seventh Amendment right of private enforcement of federal statutes for U.S. Citizen’s
acting in the capacities of a victim, a private attorney general as implied by the guarantee of a Republican Form of
Government and as implied by the Checks and Balance System of the Constitution of the United States, and as
implied by the Tenth Amendment powers reserved to the People, and as a human rights defender under the United
Nations’ DECLARATION ON THE RIGHT AND RESPONSIBILITY OF INDIVIDUALS, GROUPS AND ORGANS OF SOCIETY TO
PROMOTE AND PROTECT UNIVERSALLY RECOGNIZED HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, United
Nations General Assembly Resolution A/RES/53/144 dated March 8, 1999, as implied by the Treaty Clause?
(28). Is it the duty of a U.S. Marshal or a Deputy U.S. Marshal, under 28 U.S.C. § 566(d) Powers and
Duties (Each United States marshal, deputy marshal, and any other official of the Service as may be designated
by the Director may carry firearms and make arrests . . . for any felony cognizable under the laws of the United
States if he or she has reasonable grounds to believe that the person to be arrested has committed or is
committing such felony) to accept a Citizen’s Arrest Warrant for named federal judges and court clerks when there
is attached to the Citizen’s Arrest Warrant undeniable evidence in the form of Memorandums and Orders of
Courts of the United States, that on their face orders the seaman/plaintiff to unlawfully pay filing fees of the
courts in clear violation of the Seamen’s Suit Law (28 U.S.C. § 1916)?
(29). In light of Heller does 18 U.S.C. § 926(A) Interstate Transporation of Firearms violate the Second
Amendment?
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(30). In light of Heller does 50 U.S.C. § 2386 interpreted to require the registration of the “unorganized
militia” under 10 U.S.C. § 311(b)(2) present a conflict of laws under the Doctrine of Unconstitutional Conditions?
C. Corruption and Obstructions of Justice (18 U.S.C. § 1505)

(1). Did the U.S. Government act as a racketeering enterprise specifically against my cases during the past
6-year litigious pursuit for Second Amendment rights and/or generally against the Second Amendment in an
unlawful and an unconstitutional protection scheme in violation of the RICO Act?
(2). Did the U.S. Coast Guard unlawfully retaliate on 2004 and 2006 with Bar Notices because I named
the U.S. Coast Guard as a Defendant in my lawsuit in defense of my Second Amendment right and/or for
published criticisms critical of the U.S. Coast Guard on the Internet?
(3). Did the federal courts corruptively and unconstitutionally dismiss my cases from 2002 to 2008 and
thereby not only violate my Seventh Amendment right to a civil jury trial under the Constitution of the United
States but also my human rights to a civil jury trial under ARTICLE II. Denial of Equal Justice Under the Law;
ARTICLE XVIII Denial of a Fair Civil Trial (Seventh Amendment); ARTICLE XXIV Denial of Right to Petition
for Redress (First Amendment); ARTICLE XXVI Denial of Due Process Rights (Fifth & Fourteenth Amendments)
of the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN ?
(4). Is the federal judiciary waging a War against the People’s civil and constitutional rights? (See Kelo v.
New London 545 U.S. 469 (2005) (erosion of the Fifth Amendment takings clause in this eminent domain case);
1211 (August 31, 2005); affirmed DC Circuit, No. 05-5359 (May 8, 2007); certiorari denied January 7, 2008;
Petition for Rehearing denied February 25, 2008 (the First Amendment does not impose any affirmative
obligation on the government to listen, to respond); Bell Atlantic Corp. v. Twombly, 550 U.S. __, __, 127 S. Ct.
1955 (May 21, 2007) (crippling the Seventh Amendment right to a civil jury trial by relaxing the standards on
Motion to Dismiss and Summary Judgment with the new Plausible Standard).
(5). Were the judicial opinions in my Second Amendment cases from 2002 to 2008 fraudulent and
unconstitutional (i.e., 18 U.S.C. § 1001 FRAUD AND FALSE STATEMENTS)?
Hamrick v. President George W. Bush, et al, U.S. District Court for the District of Columbia, No. 02-1435, Judge
Ellen Segal Huvelle, October 9, 2002, denying with prejudice my PETITION FOR WRIT OF MANDAMUS, WRIT
OF PROHIBITION, DECLARATORY JUDGMENT, AND INJUNCTIVE RELIEF
Hamrick v. Admiral Thomas H. Collins, USCG, et al, U.S. District Court for the District of Columbia, No. 02-
1434, Judge Ellen Segal Huvelle, December 26, 2002, denying with prejudice my COMPLAINT FOR
DEFAMATION AND DAMAGES, LIBEL AS A MATTER OF PRIVATE CONCERN, INJURY TO REPUTATION,
UNLAWFUL INTERFERENCE WITH THE LAWFUL OPERATION OF A MERCHANT VESSEL, UNLAWFUL
INTERFERENCE WITH A SEAMAN’S EMPLOYMENT ABOARD A MERCHANT VESSEL, WRONGFUL
DETENTION/FALSE IMPRISONMENT OF A U.S. MERCHANT SEAMAN IN A FOREIGN COUNTRY,
HARASSMENT, EMOTIONAL DISTRESS, AND SUBJECTION TO A MALICIOUS CRIMINAL INVESTIGATION
EXTENDING FROM PETITIONER’S EXERCISE OF FIRST AMENDMENT RIGHTS TO FREE SPEECH AND
TO PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES PURSUING SECOND AMENDMENT
RIGHTS
Reggie B. Walton, August 16, 2004, denied with prejudice my CIVIL RIGHTS COMPLAINT OF
RACKETEERING AND FRAUD UNDER THE RICO ACT FOR AN UNCONSTITUTIONAL PROTECTION
SCHEME UNDER COLOR OF LAW OVER THE SECOND AMENDMENT VIOLATING THE PLAINTIFF’S
RIGHT TO PETITION AND RIGHT TO DUE PROCESS AND FOR WRIT OF MANDAMUS, WRIT OF
PROHIBITION, DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF & FOR DAMAGES.
158 PRESENTED
(6). Did Dennis Barghaan, Assistant U.S. Attorney from Alexandria, Virginia, acting as Special Attorney
for the U.S. Department of Justice, and persons or persons unknown in the U.S. Department of Justice criminally
withhold evidence (Memorandum Opinion for the Attorney General, WHETHER THE SECOND AMENDMENT
SECURES AN INDIVIDUAL RIGHT, dated August 24, 2004)336 vital to my Second Amendment case at the U.S. District
Court for DC, Case No. 03-2160?
(7) Did Judge Reggie B. Walton abuse the Federal Rules of Civil Procedure and criminally obstruct
justice when he issued his Scheduling Order (No. 03-2160)?
(8) Does the Preamble to the Constitution, the legislative Preamble to the Bill of Rights, the Bill of Rights
themselves, the Thirteenth and Fourteenth Amendments serve as a barrier to restrictive and prohibitive regulation
of firearms through the Commerce Clause of Article 1, Section 8?
(9) Does the Second Amendment extend to the right to keep and bear arms in intrastate and interstate
travel?
(10) Does the Plaintiff, as a U.S. citizen, have the right to own and possess firearms in intrastate and
interstate travel?
(11) Is the Second Amendment a vital component of the Common Defence clause, the General Welfare
clause, and the Domestic Tranquility clause of the Preamble to the U.S. Constitution and of the Tenth
Amendment under the Bill of Rights? (1) Do I, as a U.S. Citizen and as a U.S. Merchant Seaman, have any
specifically enforceable rights under the petition clause of the First Amendment or under the Bill of Rights in
general without the threat of arrest and prosecution to pursue Second Amendment rights and to pursue justice for
obstruction of justice thereof?
(12) Is the U.S. Coast Guard required, as a non-discretionary duty, to include a Second Amendment
indicator, (i.e. an endorsement for National Open Carry Handgun) on the MERCHANT MARINER’S DOCUMENT for
mandatory occupational training under OPNAV Instruction 3591.1C (May 13, 1992) SMALL ARMS TRAINING AND
QUALIFICATION,337 and 46 U.S.C. § 7306(a)(3) GENERAL REQUIREMENTS AND CLASSIFICATIONS FOR ABLE SEAMEN,
in the 9mm Baretta, 12-ga shotgun, and the M-14 rifle when there are no federal laws or regulations for or against
the requested endorsement?
(13) Does the 18 U.S.C. § 926A. INTERSTATE TRANSPORTATION OF FIREARMS and the aggregate effect of
gun control laws of the 48 contiguous State violate the right to travel simultaneous with the right to keep and bear
arms under the Second, Fifth, Fourth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments and does the
aggregate effect of State and Federal gun control laws imposing conditions and badges of slavery as defined by
Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 416-417 (1856):
“It would give to persons of the Negro race, who were recognized as citizens in any one State of the Union, the
right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and
without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or
night without molestation, unless they committed some violation of law for which a white man would be punished;
and it would give them the full liberty of speech in public and in private upon all subjects upon which its own
citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they
went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and
inevitably producing discontent and insubordination among them, and endangering the peace and safety of the
State.”
336
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465 (1979).
1211 (August 31, 2005). Affirmed, DC Circuit, No. 05-5359 (May 8, 2007):
D. Application of the RICO Act Against the U.S. Government
(1). Did the U.S. Government act as a racketeering enterprise against the Plaintiff over his First
Amendment right to petition the government for redress of grievances in his 6-year litigious pursuit for Second
Amendment rights in violation of the RICO Act to sustain the allegation that the United States government
conducted racketeering activities in an unlawful and an unconstitutional protection scheme over the Second
Amendment
(2). Did the U.S. Coast Guard unlawfully retaliate against the Plaintiff for exercising First Amendment
rights in his pursuit for Second Amendment rights in publishing criticism specifically of the U.S. Coast Guard or
criticisms generally of the U.S. Government?
E. Maritime Law
(1). Do the Firearms provisions in ¶44 and ¶45 of the PIRACY AND ARMED ROBBERY AGAINST SHIPS:
GUIDANCE TO SHIPOWNERS AND SHIP OPERATORS, SHIPMASTERS AND CREWS ON PREVENTING AND SUPPRESSING
ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS,338 International Maritime Commission, Maritime Safety
Commission’s Circular 623/Rev.2, dated June 20, 2001 (currently Rev.3, dated May 29, 2002), negate, nullify, or
void the Second Amendment?
(2). Did Capt. J. P. Brusseau, USCG, Coast Guard act with “deliberate indifference” to Plaintiff’s Second,
Ninth, Thirteenth and Fourteenth Amendment rights and Tenth Amendment powers by denying Plaintiff’s
application for the National Open Carry Handgun endorsement on his Merchant Mariner’s Document for U.S.
Government required small arms training as a pre-requisite for employment aboard a U.S. Government
ammunition ship, and subsequently initiated a criminal investigation through the European division of the Naval
Criminal Investigative Service (NCIS) in retaliation for a publishable “Op-Ed” article emailed to Capt. Brusseau.
(3). Does the Firearms provisions in Paragraphs 44 and 45 of the International Maritime Commission,
Maritime Safety Commission’s Circular 623/Rev.2, dated June 20, 2001 (currently Rev.3, dated May 29, 2002),
titled, PIRACY AND ARMED ROBBERY AGAINST SHIPS: GUIDANCE TO SHIPOWNERS AND SHIP OPERATORS,
SHIPMASTERS AND CREWS ON PREVENTING AND SUPPRESSING ACTS OF PIRACY AND ARMED ROBBERY AGAINST
SHIPS,339 stand superior in law to the U.S. Constitution’s Second Amendment’s right to keep and bear arms?
(4). Did Capt. J. P. Brusseau, USCG, Coast Guard act with “deliberate indifference” to Plaintiff’s Second,
Ninth, Thirteenth and Fourteenth Amendment rights and Tenth Amendment powers by denying Plaintiff’s
application for the National Open Carry Handgun endorsement on his Merchant Mariner’s Document for U.S.
Government required small arms training as a pre-requisite for employment aboard a U.S. Government
338
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160 PRESENTED
ammunition ship, and subsequently initiated a criminal investigation through the European division of the Naval
Criminal Investigative Service (NCIS) in retaliation for a publishable “Op-Ed” article emailed to Capt. Brusseau.
161
162 PRESENTED
PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS

Part 19. The Claims
Part 25. Damages
163
PART 6. PLAINTIFF’S HUMAN R IGHTS DECLARATIONS
A. Plaintiff has a Private Right of Action under the AMERICAN DECLARATION ON THE
RIGHTS AND DUTIES OF MAN through the Treaty Clause of the U.S. Constitution
(1). The Preamble to the American Declaration on the Rights and Duties of
Man
All men are born free and equal, in dignity and in rights, and, being endowed by
nature with reason and conscience, they should conduct themselves as brothers
one to another.
The fulfillment of duty by each individual is a prerequisite to the rights of all.
Rights and duties are interrelated in every social and political activity of man.
While rights exalt individual liberty, duties express the dignity of that liberty.
Duties of a juridical nature presuppose others of a moral nature which support
them in principle and constitute their basis.
Inasmuch as spiritual development is the supreme end of human existence and
the highest expression thereof, it is the duty of man to serve that end with all his
strength and resources.
Since culture is the highest social and historical expression of that spiritual
development, it is the duty of man to preserve, practice and foster culture by
every means within his power.
And, since moral conduct constitutes the noblest flowering of culture, it is the
duty of every man always to hold it in high respect.
(2) The Invoked Articles of the AMERICAN DECLARATION ON THE RIGHTS AND
DUTIES OF MAN in support of my demand for my Seventh Amendment right to
a civil jury trial in defense of my own injuried rights.
Article I. Right to life, liberty and personal security.
Every human being has the right to life, liberty and the security of his person.
Article II. Right to equality before law.
All persons are equal before the law and have the rights and duties established in this
Declaration, without distinction as to race, sex, language, creed or any other factor.
Article IV. Right to freedom of investigation, opinion, expression and dissemination.
Every person has the right to freedom of investigation, of opinion, and of the expression
and dissemination of ideas, by any medium whatsoever.
Article V. Right to protection of honor, personal reputation, and private and family life.
Every person has the right to the protection of the law against abusive attacks upon his
honor, his reputation, and his private and family life.
Article XIII. Right to the benefits of culture.
Every person has the right to take part in the cultural life of the community, to enjoy the
arts, and to participate in the benefits that result from intellectual progress, especially
scientific discoveries.
164
He likewise has the right to the protection of his moral and material interests as regards
his inventions or any literary, scientific or artistic works of which he is the author.
Article XVII. Right to recognition of juridical personality and civil rights.
Every person has the right to be recognized everywhere as a person having rights and
obligations, and to enjoy the basic civil rights.
165
Article XVIII. Right to a fair trial.

Every person may resort to the courts to ensure respect for his legal rights. There should
likewise be available to him a simple, brief procedure whereby the courts will protect him
from acts of authority that, to his prejudice, violate any fundamental constitutional rights.
Article XXI. Right of assembly.
Every person has the right to assemble peaceably with others in a formal public meeting
or an informal gathering, in connection with matters of common interest of any nature.
Article XXII. Right of association.
Every person has the right to associate with others to promote, exercise and protect his
legitimate interests of a political, economic, religious, social, cultural, professional, labor
union or other nature.
Article XXIV. Right of petition.
Every person has the right to submit respectful petitions to any competent authority, for
reasons of either general or private interest, and the right to obtain a prompt decision
thereon.
Article XXV. Right of protection from arbitrary arrest.
No person may be deprived of his liberty except in the cases and according to the
procedures established by pre-existing law.
No person may be deprived of liberty for nonfulfillment of obligations of a purely civil
character.
Every individual who has been deprived of his liberty has the right to have the legality of
his detention ascertained without delay by a court, and the right to be tried without undue
delay or, otherwise, to be released. He also has the right to humane treatment during the
time he is in custody.
Article XXVI. Right to due process of law.
Every accused person is presumed to be innocent until proved guilty.
Every person accused of an offense has the right to be given an impartial and public
hearing, and to be tried by courts previously established in accordance with pre-existing
laws, and not to receive cruel, infamous or unusual punishment.
(3) The Invoked Articles of the AMERICAN DECLARATION ON THE RIGHTS AND
DUTIES OF MAN in support of my demand for my Seventh Amendment right to
a civil jury trial in defense of the rights of third parties.
Article I. Right to life, liberty and personal security.
Every human being has the right to life, liberty and the security of his person.
Article II. Right to equality before law.
All persons are equal before the law and have the rights and duties established in this
Declaration, without distinction as to race, sex, language, creed or any other factor.
Article III. Right to religious freedom and worship.
166
Every person has the right freely to profess a religious faith, and to manifest and practice
it both in public and in private.
Article IV. Right to freedom of investigation, opinion, expression and dissemination.
Every person has the right to freedom of investigation, of opinion, and of the expression
and dissemination of ideas, by any medium whatsoever.
Article V. Right to protection of honor, personal reputation, and private and family life.
Every person has the right to the protection of the law against abusive attacks upon his
honor, his reputation, and his private and family life.
Article VI. Right to a family and to protection thereof.
Every person has the right to establish a family, the basic element of society, and to
receive protection therefore.
Article VII. Right to protection for mothers and children.
All women, during pregnancy and the nursing period, and all children have the right to
special protection, care and aid.
Article VIII. Right to residence and movement.
Every person has the right to fix his residence within the territory of the state of which he
is a national, to move about freely within such territory, and not to leave it except by his
own will.
Article IX. Right to inviolability of the home.
Every person has the right to the inviolability of his home.
Article X. Right to the inviolability and transmission of correspondence.
Every person has the right to the inviolability and transmission of his correspondence.
Article XI. Right to the preservation of health and to well-being.
Every person has the right to the preservation of his health through sanitary and social
measures relating to food, clothing, housing and medical care, to the extent permitted by
public and community resources.
Article XII. Right to education.
Every person has the right to an education, which should be based on the principles of
liberty, morality and human solidarity.
Likewise every person has the right to an education that will prepare him to attain a
decent life, to raise his standard of living, and to be a useful member of society.
The right to an education includes the right to equality of opportunity in every case, in
accordance with natural talents, merit and the desire to utilize the resources that the state
or the community is in a position to provide.
Every person has the right to receive, free, at least a primary education.
Article XIII. Right to the benefits of culture.
Every person has the right to take part in the cultural life of the community, to enjoy the
arts, and to participate in the benefits that result from intellectual progress, especially
scientific discoveries.
167
He likewise has the right to the protection of his moral and material interests as regards
his inventions or any literary, scientific or artistic works of which he is the author.
Article XIV. Right to work and to fair remuneration.
Every person has the right to work, under proper conditions, and to follow his vocation
freely, insofar as existing conditions of employment permit.
Every person who works has the right to receive such remuneration as will, in proportion
to his capacity and skill, assure him a standard of living suitable for himself and for his
family.
Article XV. Right to leisure time and to the use thereof.
Every person has the right to leisure time, to wholesome recreation, and to the
opportunity for advantageous use of his free time to his spiritual, cultural and physical
benefit.
Article XVI. Right to social security.
Every person has the right to social security which will protect him from the
consequences of unemployment, old age, and any disabilities arising from causes beyond
his control that make it physically or mentally impossible for him to earn a living.
Article XVII. Right to recognition of juridical personality and civil rights.
Every person has the right to be recognized everywhere as a person having rights and
obligations, and to enjoy the basic civil rights.
Article XVIII. Right to a fair trial.
Every person may resort to the courts to ensure respect for his legal rights. There should
likewise be available to him a simple, brief procedure whereby the courts will protect him
from acts of authority that, to his prejudice, violate any fundamental constitutional rights.
Article XIX. Right to nationality.
Every person has the right to the nationality to which he is entitled by law and to change
it, if he so wishes, for the nationality of any other country that is willing to grant it to him.
Article XX. Right to vote and to participate in government.
Every person having legal capacity is entitled to participate in the government of his
country, directly or through his representatives, and to take part in popular elections,
which shall be by secret ballot, and shall be honest, periodic and free.
Article XXI. Right of assembly.
Every person has the right to assemble peaceably with others in a formal public meeting
or an informal gathering, in connection with matters of common interest of any nature.
Article XXII. Right of association.
Every person has the right to associate with others to promote, exercise and protect his
legitimate interests of a political, economic, religious, social, cultural, professional, labor
union or other nature.
Article XXIII. Right to property.
Every person has a right to own such private property as meets the essential needs of
decent living and helps to maintain the dignity of the individual and of the home.
168
Article XXIV. Right of petition.

Every person has the right to submit respectful petitions to any competent authority, for
reasons of either general or private interest, and the right to obtain a prompt decision
thereon.
Article XXV. Right of protection from arbitrary arrest.
No person may be deprived of his liberty except in the cases and according to the
procedures established by pre-existing law.
No person may be deprived of liberty for nonfulfillment of obligations of a purely civil
character.
Every individual who has been deprived of his liberty has the right to have the legality of
his detention ascertained without delay by a court, and the right to be tried without undue
delay or, otherwise, to be released. He also has the right to humane treatment during the
time he is in custody.
Article XXVI. Right to due process of law.
Every accused person is presumed to be innocent until proved guilty.
Every person accused of an offense has the right to be given an impartial and public
hearing, and to be tried by courts previously established in accordance with pre-existing
laws, and not to receive cruel, infamous or unusual punishment.
Article XXVII. Right of asylum.
Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek
and receive asylum in foreign territory, in accordance with the laws of each country and
with international agreements.
Article XXVIII. Scope of the rights of man.
The rights of man are limited by the rights of others, by the security of all, and by the just
demands of the general welfare and the advancement of democracy.
169
B. Plaintiff has a Private Right of Action under Article XVIII (Right to a Fair
Trial), and Article XXIV (Right of Petition) (among others) of the American
Declaration of the Rights and Duties of Man, 1948 through the Treaty Clause of the
U.S. Constitution has already been taken by the Plaintiff with his Human Rights
Complaint against the United States now Pending at the Inter-American Commission
on Human Rights (Petition No. 1142-06)
In 2006, after four years of unconstitutional summary judgments340 on Motions to Dismiss in violation of
my Seventh Amendment right to a civil jury trial under the common law I exercised my Private Right of Action in
accordance with the AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN under Articles I (Right to life),
II (Right to equality before law), IV (Right to freedom of investigation, opinion, expression and dissemination), V
(Right to protection of honor, personal reputation, and private and family life), VI (Right to a family and to
protection thereof), VII (Right to protection for mothers and children), VIII (Right to residence and movement),
IX (Right to inviolability of the home), the right to be a part of the gun culture under Articles XIII (Right to the
benefits of culture), XV (Right to leisure time and to the use thereof ), XVII (Right to recognition of juridical
personality and civil rights), XVIII (Right to a fair trial), XXI (Right of assembly), XXII (Right of association),
XXIII (Right to property, i.e. the right to own and possess firearms notwithstanding violations/convictions under
the law), XXIV (Right of petition, i.e. We the People Foundation, et al v. United States, et al, U.S. District Court
for the District of Columbia, No. 04-1211 (August 31, 2005), (affirmed by the DC Circuit, and certiorari denied
by the U.S. Supreme Court) that “the First Amendment does not impose any affirmative obligation on the
government to listen, to respond”) , XXV (Right of protection from arbitrary arrest), XXVI (Right to due process
of law), and Article XXIX (Duties to society) to which the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS and
the INTER-AMERICAN COURT ON HUMAN RIGHTS have jurisdiction and filed my human rights complaint against the
United States (Petition No. 1142-06).
At contest here is the U.S. Supreme Court’s doctrine that “the First Amendment does not
impose any affirmative obligation on the government to listen, to respond or, in this context,
to recognize the association and bargain with it.” See Smith v. Ark. State Highway Employees,
Local 1315, 441 U.S. 463, 465 (1979).
1211 (August 31, 2005)
affirmative obligation on the government to listen, to respond or, in this context, to
recognize the association and bargain with it.” See Smith v. Ark. State Highway Employees,
Local 1315, 441 U.S. 463, 465 (1979). Plaintiffs’ claims that the defendants are obligated to
“properly” respond to plaintiffs’ petitions shall thus be dismissed for failure to state a claim upon
which relief may be granted.
We the People Foundation, et al v. United States, et al, THE APPEAL: DC Circuit, No. 05-5359 (May 8,
2007)
340
Suja A. Thomas, THE UNCONSTITUTIONALITY OF SUMMARY JUDGMENT: A STATUS REPORT, 93 Iowa Law Review __
(forthcoming 2008) Iowa Law Review Symposium on Procedural Justice; Suja A. Thomas, WHY SUMMARY JUDGMENT IS STILL
UNCONSTITUTIONAL: A REPLY TO PROFESSORS BRUNET AND NELSON, 93 Iowa Law Review, __ (forthcoming 2008); Suja A.
Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. 139 (2007).
170
C. PLAINTIFF’S NOTE: David B. Kopel, Paul Gallant & Joanne D. Eisen, The
Human Right of Self-Defense, 22 BYU Journal of Public Law 43-178 (Fall 2007)
(136 pages) is incorporated into this Part 6 as part of my claims in this complaint.
The law review article is available online at: http://www.law2.byu.edu/jpl/Vol22.1/Kopel.pdf.
The above law review article is included in this complaint in its entirety by reference to the URL above.
D. The Conclusion in David B. Kopel, Paul Gallant & Joanne D. Eisen, The Human
Right of Self-Defense 22 BYU Journal of Pulbic Law 33 (Fall 2007)
Conclusion341
As Grotius wrote in his introduction:
I have used in proof of this law, the testimony of philosophers, historians, poets,
and lastly even of orators. Not that they are indiscriminately to be relied on as
impartial authority, since they often bend to the prejudices of their sect, the
nature of their argument, or the interest of their cause, but where many minds of
different ages and countries concur in affirming the same general sentiment, this
general concurrence must be referred to some general cause; which in the
questions we have undertaken to examine, can be no other than a right induction
from the principles of natural justice, or some common consent. The former
indicates the law of nature, the latter the law of nations…
So wrote Grotius in his introduction.342 The human right of self-defense is affirmed by the
concurrence of many minds of different ages—Grotius knew this, and as this Article has
elaborated, the concurrence has continued in the nearly four centuries since Grotius. We have
cited fewer orators and poets than did Grotius, and we have enjoyed the benefit of many sources
which did not exist at the time of Grotius, including the written constitutions all over the world,
the Universal Declaration of Human Rights, and the vast structure of international law that was
built on the foundation of Grotius. We have only rarely touched on the many heated arguments
between the great scholars, or the tremendous differences in practices between leading systems of
law, or how the modern world’s constitutions and treaties are based on strikingly diverse views of
civilization and justice. We have not addressed all the differences among our many sources
because, regarding self-defense, “many minds of different ages and countries concur in affirming
the same general sentiment.”
To examine the evidence is to discover what the Special Rapporteur so artfully concealed: the
overwhelming consensus among the sources of international law, from ancient times to the
present, among diverse legal systems, religions, and nations: self-defense is a fundamental human
right.
In this Article, we do not claim that the evidence produced thus far proves the existence of a
universal international human right to possess and carry firearms in all circumstances. We do
suggest that the evidence of an international human right to self-defense is clear. The existence of
a right of personal defense undoubtedly must imply some right to defensive training, and to the
341
http://www.davekopel.org/2A/LawRev/The-Human-Right-of-Self-Defense.pdf
342
1 GROTIUS, Prolog. § 41, quoted in HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW: WITH A SKETCH OF THE
HISTORY OF THE SCIENCE 29 n. 13 (2002)(1836). While this Article has usually quoted from the 2005 edition of Grotius, we
chose to use the alternative translation quoted in Wheaton because its English flows more naturally than does the 2005 text’s
version of the same quote.
171
possession of some type of defensive arms. However, we have only attempted to suggest some
possible lines of exploration for subsequent scholarly analysis of the derivative rights to defensive
arms and defensive training. It does seem apparent that it would be a violation of human rights
law for a government to forbid self-defense, to forbid defensive training, or to forbid the
possession of reasonably necessary defensive arms. No government has the legitimate authority
to forbid a person from exercising her human right to defend herself against a violent attack, or to
forbid her from taking the steps and acquiring the tools necessary to exercise that right.
E. With the Heller Opinion, the Second Amendment’s Individual Right to Keep and
Bear Arms Became a Fundamental Change of Circumstances for the Emergence of
a New Peremptory Norm of General International Law (jus cogens) Achieving
Human Rights Status as Obligatio Erga Omnes upon the Member States of the
United Nations
Citing the VIENNA CONVENTION ON THE LAW OF TREATIES 1969 343 and the VIENNA CONVENTION ON THE
LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL
ORGANIZATIONS 1986 it is my claim that the U.S. Supreme Court’s Heller opinion on the Second Amendment as
being an individual right presents a “fundamental change of circumstances” (Article 62 of both Vienna
Conventions) for the “emergence of a new peremptory norm of general international law” (“jus cogens”),
(Article 64 of both Vienna Conventions) for the “right to life” provision in international human rights treaties
through the treaty clause in Article II, Section 2 of the CONSTITUTION OF THE UNITED STATES. I now present this
argument to the Federal Court under the Treaty Clause as a FEDERAL QUESTION under 28 U.S.C. § 1331.344
The Heller opinion also impacts the “right to life provisions in Article 4 of THE AMERICAN CONVENTION
345
ON HUMAN RIGHTS; in Article 3 of the United Nations UNIVERSAL DECLARATION ON HUMAN RIGHTS; in Article
6, Clause 1 of the United Nations COVENANT ON CIVIL AND POLITICAL RIGHTS.346
The Heller opinion has two quotable points:
Page 9:
“Keep arms” was simply a common way of referring to possessing arms, for militiamen and
everyone else.” [Footnote 7: . . . J. Ayliffe, A NEW PANDECT OF ROMAN CIVIL LAW 195 (1734)
343
The Vienna Convention on the Law of Treaties, done at Vienna May 23, 1969 and signed by the United States on April
24, 1970 (Treaty Doc.: Ex. L, 92nd Cong., 1st Sess.); submitted to Senate November 22, 1971. U.S. Department of State:
TREATIES PENDING IN THE SENATE (Updated as of July 7, 2008). Not yet ratified. See http://www.state.gov/s/l/treaty/pending/
344
Cohens v. Virginia, 19 U.S. 264, at 404 (6 Wheaton 264) (1821) (It is most true that this Court will not take jurisdiction if
it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid
a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever
doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more
right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would
be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can
do is to exercise our best judgment and conscientiously to perform our duty. In doing this on the present occasion, we find
this tribunal invested with appellate jurisdiction in all cases arising under the Constitution and laws of the United States. We
find no exception to this grant, and we cannot insert one.). [Emphasis is mine.]
345
THE AMERICAN CONVENTION ON HUMAN RIGHTS, done at San Jose November 22, 1969 and signed by the United States on
June 1, 1977 (Treaty Doc.: Ex. F, 95th Cong., 2nd Sess.); submitted to Senate February 23, 1978. Not yet ratified. U.S.
Department of State: TREATIES PENDING IN THE SENATE (Updated as of July 7, 2008).
See http://www.state.gov/s/l/treaty/pending/
346
THE COVENANT ON CIVIL AND POLITICAL RIGHTS was ratified by the United States in 1992.
172
(“Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting,
Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or
such Arms as accrued to him by way of Inheritance”); . . .]347
Page 46:
“As the Constitution of the United States, and the constitutions of several of the states, in terms
more or less comprehensive, declare the right of the people to keep and bear arms, it has been a
subject of grave discussion, in some of the state courts, whether a statute prohibiting persons,
when not on a journey, or as travellers, from wearing or carrying concealed weapons, be
constitutional. There has been a great difference of opinion on the question.” 2 J. Kent,
Commentaries on American Law *340, n. 2 (O. Holmes ed., 12th ed. 1873).348
In the Page 9 quotation I construe the term “everyone else” to include merchant seamen in interstate and
maritime travel as supported by the terms “Navigation” and “Traveling” in Scalia’s Footnote 7.
Scalia’s Page 46 quotation implies that “open carry in interstate and maritime travel” is an “absolute or
near-absolute right” not subject to any regulation at all. This inference needs clarification by judicial challenge.
F. Natural Rights are Human Rights
Black’s Law Dictionary defines natural right as “[a] right that is conceived as part of natural law and that
is therefore thought to exist independently of rights created by government or society, such as the right to life,
liberty, and property.” See Natural Law.
Black’s Law Dictionary defines human rights as [t]he freedoms, immunities, and benefits that, according
to modern values (esp. at an international level), all human beings should be able to claim as a matter of right in
the society to which they live. See Universal Declaration of Human Rights.
Black’s Law Dictionary defines “right to travel” as [a] person’s constitutional right – guaranteed by the
Privileges and Immunities Clause – to travel freely between states.
My approach to the Second Amendment, (the flip-side to Heller), applies to the right to “openly” keep
and bear arms in interstate and maritime travel for personal safety and security and in defense of self and others
and for property as not only a constitutional right but also as a human right under the “right to life” provision of
human rights treaties. My approach is proper because Scalia’s opinion uses the term “natural right” to descibe the
Second Amendment on the following pages in Justice Scalia’s Heller opinion:
Page 6 in Footnote 6:
“. . . See Heyman, Natural Rights and the Second Amendment, in THE SECOND AMENDMENT IN
LAW AND HISTORY 179, 193–195 (C. Bogus ed. 2000). . .”); on page 10 in Footnote 7 (“. . . W.
Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833) (with
reference to colonists’ English rights: “The right of every individual to keep arms for his defence,
suitable to his condition and degree; which was the public allowance, under due restrictions of the
natural right of resistance and self-preservation; . . .”)
Page 12:
“Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for
example, as a recognition of the natural right of defense “of one’s person or house”—what he
called the law of “self preservation.” 2 Collected Works of James Wilson 1142, and n. x (K. Hall
& M. Hall eds. 2007) (citing Pa. Const., Art. IX, §21 (1790));”
347
Emphasis is mine.
348
Emphasis is mine.
173
Page 20:
By the time of the founding, the right to have arms had become fundamental for English subjects.
See Malcolm 122–134. Blackstone, whose works, we have said, “constituted the preeminent
authority on English law for the founding generation,” Alden v. Maine, 527 U. S. 706, 715
(1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of
Englishmen. See 1 Blackstone 136, 139–140 (1765). His description of it cannot possibly be
thought to tie it to militia or military service. It was, he said, “the natural right of resistance and
self-preservation,” id., at 139, and “the right of having and using arms for self-preservation and
defence,” id., at 140;
Page 21,
“In the tumultuous decades of the 1760’s and 1770’s, the Crown began to disarm the inhabitants
of the most rebellious areas. That provoked polemical reactions by Americans invoking their
rights as Englishmen to keep arms. A New York article of April 1769 said that “[i]t is a natural
right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep
arms for their own defence.” A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr.
13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936);”
Page 39.
“In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second
Amendment as protecting the “natural right of self-defence” and therefore struck down a ban
on carrying pistols openly.”
I construe the term “natural right” to be the same by definition as the term “human right.” This
equivalent usage is proper and acceptable. The Heller opinion therefore becomes a “fundamental change of
circumstances” introducing the “emergence of a new peremptory norm of general international law (“jus
cogens”) (See Articles 62 and 64 of the VIENNA CONVENTION ON THE LAW OF TREATIES 1969 and the
VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN
INTERNATIONAL ORGANIZATIONS, 1986)
G. U.S. Department of State, Bureau of International Information Programs on

Access to the Courts and Equal Justice for All
Citing Robert J. Grey, Jr., ACCESS TO THE COURTS: EQUAL JUSTICE FOR ALL,349 in Issues of Democracy:
Access to the Courts - Equal Justice for All, U.S. Department of State, Bureau of International Information
Programs, August 2004, 6-11:
A fundamental value in the American system of justice is that the stability of our society depends
upon the ability of the people to readily obtain access to the courts, because the court system is
the mechanism recognized and accepted by all to peacefully resolve disputes. Denying access to
the courts forces dispute resolution into other arenas and results in vigilantism and violence.
EQUAL JUSTICE IN PRACTICE
When discussing the idea of access to the courts, mere access in the theoretical or legal sense is
not enough; rather, it is the results that flow from the decisions made by the courts that give it
meaning. For example, the value of “access” is evident when the courts decide that no one,
349
Available Online at http://usinfo.state.gov/journals/itdhr/0804/ijde/ijde0804.pdf
174
especially those in positions of power, is above the law, or when access requires the right to
counsel in cases where one’s liberty is in jeopardy.
G. Heller Impacts Maritime and International Human Rights Treaties
(1). Articles 39-51 of the United Nations Charter
United Nations Charter
Article 2, Clause 7:
Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall require the
Members to submit such matters to settlement under the present Charter; but this principle shall
not prejudice the application of enforcement measures under Chapter VII – ACTION WITH
RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION.
Chapter VII
ACTION WITH RESPECT TO THREATS TO THE PEACE,
BREACHES OF THE PEACE, AND ACTS OF AGGRESSION
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace,
or act of aggression and shall make recommendations, or decide what measures shall be taken in
accordance with Articles 41 and 42, to maintain or restore international peace and security.
Article 40
In order to prevent an aggravation of the situation, the Security Council may, before making the
recommendations or deciding upon the measures provided for in Article 39, call upon the parties
concerned to comply with such provisional measures as it deems necessary or desirable. Such
provisional measures shall be without prejudice to the rights, claims, or position of the parties
concerned. The Security Council shall duly take account of failure to comply with such
provisional measures.
Article 41
The Security Council may decide what measures not involving the use of armed force are to be
employed to give effect to its decisions, and it may call upon the Members of the United Nations
to apply such measures. These may include complete or partial interruption of economic relations
and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the
severance of diplomatic relations.
Article 42
Should the Security Council consider that measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as
may be necessary to maintain or restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of Members of the
United Nations.
Article 43
All Members of the United Nations, in order to contribute to the maintenance of international
peace and security, undertake to make available to the Security Council, on its call and in
accordance with a special agreement or agreements, armed forces, assistance, and facilities,
including rights of passage, necessary for the purpose of maintaining international peace and
security.
175
Such agreement or agreements shall govern the numbers and types of forces, their degree of
readiness and general location, and the nature of the facilities and assistance to be provided.
The agreement or agreements shall be negotiated as soon as possible on the initiative of the
Security Council. They shall be concluded between the Security Council and Members or
between the Security Council and groups of Members and shall be subject to ratification by the
signatory states in accordance with their respective constitutional processes.
Article 44
When the Security Council has decided to use force it shall, before calling upon a Member not
represented on it to provide armed forces in fulfilment of the obligations assumed under Article
43, invite that Member, if the Member so desires, to participate in the decisions of the Security
Council concerning the employment of contingents of that Member’s armed forces.
Article 45
In order to enable the United Nations to take urgent military measures, Members shall hold
immediately available national air-force contingents for combined international enforcement
action. The strength and degree of readiness of these contingents and plans for their combined
action shall be determined within the limits laid down in the special agreement or agreements
referred to in Article 43, by the Security Council with the assistance of the Military Staff
Committee.
Article 46
Plans for the application of armed force shall be made by the Security Council with the assistance
of the Military Staff Committee.
Article 47
There shall be established a Military Staff Committee to advise and assist the Security Council on
all questions relating to the Security Council’s military requirements for the maintenance of
international peace and security, the employment and command of forces placed at its disposal,
the regulation of armaments, and possible disarmament.
The Military Staff Committee shall consist of the Chiefs of Staff of the permanent members of
the Security Council or their representatives. Any Member of the United Nations not permanently
represented on the Committee shall be invited by the Committee to be associated with it when the
efficient discharge of the Committee’s responsibilities requires the participation of that Member
in its work.
The Military Staff Committee shall be responsible under the Security Council for the strategic
direction of any armed forces placed at the disposal of the Security Council. Questions relating to
the command of such forces shall be worked out subsequently.
The Military Staff Committee, with the authorization of the Security Council and after
consultation with appropriate regional agencies, may establish regional sub-committees.
Article 48
The action required to carry out the decisions of the Security Council for the maintenance of
international peace and security shall be taken by all the Members of the United Nations or by
some of them, as the Security Council may determine.
Such decisions shall be carried out by the Members of the United Nations directly and through
their action in the appropriate international agencies of which they are members.
Article 49
176
The Members of the United Nations shall join in affording mutual assistance in carrying out the
measures decided upon by the Security Council.
Article 50
If preventive or enforcement measures against any state are taken by the Security Council, any
other state, whether a Member of the United Nations or not, which finds itself confronted with
special economic problems arising from the carrying out of those measures shall have the right to
consult the Security Council with regard to a solution of those problems.
Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective self-
defence if an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and security. Measures
taken by Members in the exercise of this right of self-defence shall be immediately reported to the
Security Council and shall not in any way affect the authority and responsibility of the Security
Council under the present Charter to take at any time such action as it deems necessary in order to
maintain or restore international peace and security.
Article 51 of United Nations Charter (citing again from THE HUMAN RIGHT OF SELF-DEFENSE) affirms
“the inherent right” of self-defense.350 Frey accurately states that Article 51 is directly concerned with the defense
of states, and not of individuals. 351 We agree.
But what Frey elides is that the right of national self-defense is the child of the right of personal
self-defense—as we detailed supra.352 Notably, the U.N. Charter does not purport to grant states
a right of self-defense. The charter simply recognizes an “inherent” right. In the French text of the
U.N. charter, it is a “droit naturel” (natural right or natural law). As Yoram Dinstein observes,
“The choice of words has overtones of jus naturale, which appears to be the fount of the right to
self-defense.”353 (“Jus naturale” is Latin for “natural law”; as discussed above, jus naturale
included a strong right of personal defense. 354)
Given the U.N. Charter’s choice of language which explicitly invoked natural right, it was not
surprising that the International Court of Justice wrote: “The Court therefore finds that Article 51
of the Charter is only meaningful on the basis that there is a ‘natural’ or ‘inherent’ right of self-
defense….”355
Elucidating Article 51, Dinstein writes: “The legal notion of self-defence has its roots in inter-
personal relations, and is sanctified in domestic legal systems since time immemorial. From the
350
See also General Treaty for the Renunciation of War (“Kellogg-Briand Pact”) 94 L.N.R.S. 57 (1928); 22 AM. J. INT’L L.
109-13 (formal notes exchanged between the signatories, reserving the right to selfdefense).
351
Frey Report at 13, para. 39 (“ Article 51 was not intended to apply to situations of self-defence for individual persons.”)
352
See David B. Kopel, Paul Gallant, and Joanne D. Eisen, titled, THE HUMAN RIGHT OF SELF-DEFENSE.
353
DINSTEIN, at 179. Dinstein goes on to reject the overtone, because he rejects the whole concept of natural law, for
reasons detailed supra at text accompanying notes .
354
See supra text accompanying notes – (natural law and the classical founding scholars of international law), and – (Roman
law jus naturale).
355
Military and Paramilitary Activities (Nicaragua v. United States), 1986 I.C.J. Rep. 14, 94, para. 176.
177
dawn of inter-State relations, writers sought to apply this concept to inter-State relations,
particularly in connection with the just war doctrine.”356
If one explicitly recognizes the existence of the child, then one can scarcely deny the implication
that a parent exists. “I admit that there was a person named Martin Luther King, Jr., but I deny the
existence of Martin Luther King, Sr.” The previous sentence is illogical—and so is Frey’s claim
that the explicit recognition of the natural, inherent right of national self-defense in Article 51 can
be reconciled with the denial of the natural, inherent right of personal self-defense.
(2). Convention on the Prevention and Punishment of the Crime of Genocide,

December 9, 1948
Article 2. In the present Convention,357 genocide means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article 3. The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.
(3). United Nations’ Declaration On Human Rights Defenders

Article 6. Obstruction of Justice.
Article 9. The Right to Effective Remedy of Human Rights Violations.
(4). The Inter-American Convention Against Corruption
356
DINSTEIN, at 176; see also M. A Weightman, Self-Defense in International Law , 37 VIR. L. R EV. 1095, 1099-1102
(1951).
357
CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, December 9, 1948, ratified by the United
States on November 25, 1988.
178
Article III.1. Abuse of Authority, (Equivalent to 18 U.S.C. § 4. Misprision of Felony).

Article III.1 1. Obstruction of Justice.
Article IV. Acts of Corruption (18 U.S.C. § 872 Extortion Under Color of Law).
(5). United Nations Convention Against Corruption

Article 11. Measures Relating to the Judiciary and Prosecution Services.
Article 19. Abuse of Functions.
Article 24. Concealment.
Article 27. Participation and Attempt.
Article 28. Knowledge, Intent and Purpose as Elements of an Offence.
Article 30. Prosecution, Adjudication and Sanctions.
Article 32. Protection of . . . Victims.
Article 33. Protection of Reporting Persons.
Article 34. Consequences of Acts of Corruption [“Citizen’s Arrest Warrant”].
Article 39. Cooperation Between National Authorities and the Private Sector.
(6). International Covenant On Civil And Political Rights

Article 14.1. Denial of Equal Justice Under the Law,
Article 15.1. Threatened False Arrest (As applied against U.S. Marshals Service).
Article 16. Denial of Equal Justice Under the Law.
(7). United Nations’ Universal Declaration on Human Rights

Article 6.
Everyone has the right to recognition everywhere as a person before the law.
Article 7.
All are equal before the law and are entitled without any discrimination to equal protection of the
law. All are entitled to equal protection against any discrimination in violation of this Declaration
and against any incitement to such discrimination.
Article 8.
Everyone has the right to an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the constitution or by law.
Article 9.
No one shall be subjected to arbitrary arrest, detention or exile.
Article 10.
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 12.
No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks.
179
Article 13.
(1) Everyone has the right to freedom of movement and residence within the borders of each
state.
Article 29.
(1) Everyone has duties to the community in which alone the free and full development of his
personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as
are determined by law solely for the purpose of securing due recognition and respect for the rights
and freedoms of others and of meeting the just requirements of morality, public order and the
general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and
principles of the United Nations.
(8). American Declaration of the Rights and Duties of Man

Article II. Denial of Equal Justice Under the Law.
Article XVIII. Denial of a Fair Civil Trial (Seventh Amendment).
Article XXIV. Denial of Right to Petition for Redress (First Amndment). 358
Article XXVI. Denial of Due Process Rights (Fifth & Fourteenth Amendments).
H. Citing from David Sloss, When Do Treaties Create Individually Enforceable
Rights?
WHEN DO TREATIES CREATE INDIVIDUALLY ENFORCEABLE RIGHTS?
The Supreme Court Ducks the Issue in Hamdan and Sanchez-Llamas
David Sloss
45 Columbia Journal of Transnational Law 20 (2006)359
ABSTRACT
In both Hamdan v. Rumsfeld and Sanchez-Llamas v. Oregon, government briefs asserted that
there is a “long-established presumption” that treaties do not create judicially-enforceable
individual rights. In his dissent in Sanchez-Llamas, Justice Breyer challenged this claim. The
debate about whether the Supreme Court should adopt such a presumption is part of a broader
conflict between the “nationalist” and “transnationalist” models of treaty enforcement. The
transnationalist model applies a presumption in favor of domestic judicial remedies for violations
of treaty-based individual rights. In contrast, the nationalist model applies a presumption against
individual remedies for treaty violations. This article analyzes the historical foundations of both
models. It demonstrates that doctrines involving the domestic judicial enforcement of treaties
have changed dramatically in the past thirty years. Between 1789 and 1975, there was not a
single judicial decision endorsing the nationalist presumption against private enforcement of
treaty rights. In contrast, there were dozens of Supreme Court decisions that applied the
transnationalist pre sumption in favor of domestic judicial remedies. Although the nationalist
presumption against individual enforcement of treaties has gained widespread accep-tance in the
358
See pages 13-18 of this Warning & Notice of Intent.
359
Available Online at http://law.slu.edu/sloss/Publications/Sloss%20Columbia%20Article.pdf
180
lower courts in the past thirty years, the Supreme Court has never endorsed that presumption.
The Court’s decisions in Hamdan and Sanchez-Llamas declined to endorse either the nationalist
or transnationalist presumption, but the Court’s ultimate resolution of the conflict between the
nationalist and transnationalist models will have significant implications for U.S. foreign
relations, separation of powers, and the rule of law.
VI. CONCLUSION
We can learn much about the legal thought of past generations by focusing on what the courts did
not say. The propositions that did not need to be stated because courts took them for granted may
be as revealing as what the courts did say. During the first fifty years of U.S. constitutional
history, the Supreme Court consistently decided treaty cases in accordance with the
transnationalist model: they assumed that treaties have the status of law in our domestic
constitutional system, that some treaty provisions create primary rights for individuals, and that
individuals whose treaty rights are violated are entitled to remedies in domestic courts. The Court
occasionally stated these assumptions explicitly. However, the best evidence that the Justices
shared these assumptions is the Court’s consistent record of awarding remedies to individuals
whose treaty rights were violated, even in cases where the political branches had not authorized
the courts to provide remedies for treaty violations. Thus, the nationalist claim that there is a
long-standing presumption that treaties do not create individually enforceable rights is utterly
false. The truth is that the transnationalist model explains the actual record of Supreme Court
decisions in treaty cases for most of U.S. history.
This does not mean that the nationalist presumption against private enforcement of treaties is
indefensible. Rather, it means that the nationalists cannot win the debate by citing precedents that
do not actually support their position. The strongest defense of the nationalist model is an
argument that relies on changed circumstances. The world is a very different place today than it
was in 1789, or 1839, or even 1939. The United States is a superpower; we confront enemies who
have demonstrated their willingness to use unconventional means to attack us. There is a
considerable risk that some of those enemies may acquire weapons of mass destruction. In these
circum-stances, the President arguably needs a greater degree of flexibility in framing and
implementing national security policy than he did 100 or 200 years ago. During the twentieth
century, the Court adopted several doctrinal innovations that supported the increasing
concentration of foreign affairs power in the executive branch.360 Nationalists may contend that
adoption of the nationalist presumption against private enforcement of treaties would be a
sensible next step in the evolution of foreign affairs doctrine.
If the Court takes this step, though, it should acknowledge honestly that it is embracing a novel
doctrinal innovation. Moreover, before the Court endorses this doctrinal innovation, it should
consider the potential negative consequences. Adoption of the nationalist presumption against
private enforcement of treaties would yield three different types of harmful consequences. These
relate to federal supremacy, separation of powers, and U.S. foreign relations.
Under the Articles of Confederation, the federal government was powerless to halt treaty
violations by state government officers.361 The Framers solved this problem by including treaties
in the text of the Supremacy Clause: they gave treaties the status of supreme federal law and
360
See G. Edward White, THE TRANSFORMATION OF THE CONSTITUTIONAL REGIME OF FOREIGN RELATIONS, 85 VA. L. REV. 1
(1999).
361
See Carlos Manuel Vazquez, Treaty-Based Rights and Remedies of Individuals, 92 COLUM. L. REV. 1082, at 1101–04.
(1992)
181
made treaties directly binding on state courts.362 In recent years, state and local governments
have routinely violated U.S. obligations under Article 36 of the VCCR,363 just as state
governments violated U.S. treaty obligations before adoption of the Constitution. The treaty
violations persist because state courts and lower federal courts have invoked the nationalist
presumption against private enforcement as a justification for their refusal to en-force the
treaty.364 In Sanchez-Llamas v. Oregon,365 the Supreme Court had an opportunity to halt the
ongoing treaty violations, but it failed to deliver. The Court in Sanchez-Llamas did not endorse
the nationalist presumption against private enforcement of treaties.366 However, the Court
applied a nationalist approach to treaty interpretation,367 adopting a restrictive view of the scope
of legal protection accorded to foreign nationals under the treaty. By restricting the range of
judicial remedies available to individual victims of Article 36 violations, the Court effectively
signaled to state and local officers that they can continue to violate the treaty without fearing
judicial sanctions.368 Thus, application of the nationalist model perpetuates the very problem of
treaty violations by state officers that the Fram-ers thought they solved by including treaties in the
text of the Supremacy Clause.
The second harmful consequence associated with the nationalist model relates to separation of
powers. In Hamdan v. Rumsfeld, the Supreme Court ruled that Common Article 3 of the Geneva
Conventions is a part of U.S. federal law, that Common Article 3 grants rights to individual
Guantanamo detainees, and that it would violate the rights of those detainees to subject them to
362
See U.S. CONST. art. VI, cl. 2 (stipulating that treaties are “the supreme Law of the Land” and that “Judges in every State
shall be bound thereby”). See also Carlos Manuel Vazquez, TREATY-BASED RIGHTS AND REMEDIES OF INDIVIDUALS , 92
COLUM. L. REV. 1082, at 1104–10; Martin S. Flaherty, HISTORY RIGHT?: HISTORICAL SCHOLARSHIP, ORIGINAL
UNDERSTANDING, AND TREATIES AS “SUPREME LAW OF THE LAND,” 99 Colum. L. Rev. 2095, at 2120–26 (1999).
363
See David Sloss, WHEN DO TREATIES CREATE INDIVIDUALLY ENFORCEABLE RIGHTS? 45 Columbia Journal of Transnational
Law 20 (2006), notes 65–69 and accompanying text.
364
See, e.g., State v. Sanchez-Llamas, 108 P.3d 573 (Or. 2005). See also David Sloss, WHEN DO TREATIES CREATE
INDIVIDUALLY ENFORCEABLE RIGHTS? 45 Columbia Journal of Transnational Law 20 (2006), notes 69, 70, 74–77 and
accompanying text.
365
126 S. Ct. 2669 (2006).
366
See David Sloss, WHEN DO TREATIES CREATE INDIVIDUALLY ENFORCEABLE RIGHTS? 45 Columbia Journal of Transnational
Law 20 (2006), notes 75–77 and accompanying text.
367
Recall that the transnationalist model applies the twin canons of good faith and liberal interpretation, whereas the
nationalist model applies the canon of deference to the executive branch. See supra notes 32–38 and accompanying text. The
Court in Sanchez-Llamas explicitly invoked the nationalist canon of deference to the executive branch in support of its
decision. See Sanchez-Llamas, 126 S. Ct. at 2685. In contrast, the Court’s opinion makes no reference to the canons of good
faith and liberal interpretation. Moreover, the Court’s decision is contrary to both those canons. The canon of good faith
counsels courts to interpret a treaty in accordance with the agreed international understanding of its terms, but the Sanchez-
Llamas majority explicitly rejected the agreed international understanding of Article 36 of the VCCR, as reflected in
decisions by the International Court of Justice. See id. at 2683–86. The canon of liberal interpretation counsels courts to
interpret a treaty to provide the broadest possible protection for the rights of foreign nationals, but the Court interpreted
Article 36 in a manner that left both petitioners, and countless other foreign nationals, without any meaningful remedy for the
acknowledged violation of their treaty-based individual rights.
368
The Court specifically rejected two proposed remedies for Article 36 violations: application of the exclusionary rule and
preemption of state procedural default rules to enable individuals to raise Article 36 claims in post-conviction proceedings in
state court. See Sanchez-Llamas, 126 S. Ct. at 2678–87. The Court’s opinion leaves open the possibility that individuals can
obtain judicial remedies for Article 36 violations by raising ineffective-assistance-of-counsel claims. See supra notes 126–28
and accompanying text. However, since this remedial mechanism does not affect the state officers who violated the treaty in
the first place, it provides no incentive for them to comply with the treaty.
182
trial by military com-mission.369 If the Court had endorsed the nationalist presumption against
private enforcement of treaties, it might well have ruled that the Geneva Conventions are not
judicially enforceable. 370 In that case, the Court would presumably have denied relief to Hamdan
on the grounds that individual claimants cannot enforce the Geneva Conventions in U.S. courts.
Thus, even though the Supreme Court held that the proposed military commission proceedings
violate federal law, and that they violate Hamdan’s federal rights, a court apply-ing the nationalist
presumption would disclaim the power to halt those ongoing violations. That type of rationale is
squarely at odds with core rule-of-law principles. When federal courts turn a blind eye to
executive action that violates federal law, they distort the constitutional balance of power by
ceding too much power to the President and diminishing the relative powers of the legislative and
judicial branches.371 Thus, courts that apply the nationalist model abdicate their constitutional
responsibility to restrain illegal executive action, thereby distorting the balance of power among
the branches.
Finally, judicial application of the nationalist model harms the United States’ international
reputation. U.S. violations of the VCCR and the Geneva Conventions contribute to a growing
perception that the United States is hostile to international law. More specifically, other countries
accuse the United States of trying to develop an inter-national system in which other states are
constrained by international law, but the United States is free to pursue its national interests, un-
fettered by the requirements of international law. Proponents of the nationalist model may object
that it is inappropriate for courts to concern themselves with international perceptions of U.S.
behavior. That objection, though, merely serves to highlight the intellectual gulf between the
Marshall Court and modern nationalists. According to a leading historical account, the Marshall
Court’s decisions manifested “deep concern that the United States be known for its adherence to
international law and its respect for treaty obligations. . . . In construing treaties of the Untied
States, the Court exercised great liberality in broadening the rights of the signatory powers and
those claiming under them.”372 Modern courts would do well to follow Chief Justice Marshall’s
transnationalist approach.
I. United Nations at War Against the Second Amendment

United Nations’ War of Aggression Against the Individual’s Human Right of Self-Defense is a Breach
of Treaty (The U.N. Charter, Article 2, Clause 7) Under the VIENNA CONVENTION ON THE LAW OF TREATIES OF
1969 and the VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS
OR BETWEEN INTERNATIONAL ORGANIZATIONS OF 1986.
369
See 126 S. Ct. 2749, 2793–97 (2006).
370
Even if the Court adopted the nationalist presumption against private enforcement, it could reasonably have held that the
federal habeas statute grants individuals a private right of action that empowers them to enforce the Geneva Conventions by
filing a habeas corpus petition. However, courts that have endorsed the nationalist presumption have generally held that the
Geneva Conventions are not judicially enforceable in a habeas corpus action. See, e.g., Hamdan v. Rumsfeld, 415 F.3d 33,
38–40 (D.C. Cir. 2005).
371
In the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, Congress has authorized the President to
utilize military commissions similar to the ones that the President initially tried to establish without congressional
authorization. The fact of congressional authorization clearly mitigates concerns about unchecked executive power in this
context. Nevertheless, the nationalist model is problematic because it encourages judges to turn a blind eye to unlawful
executive action.
372
George Lee Haskins & Herbert A. Johnson, FOUNDATIONS OF POWER: JOHN MARSHALL, 1801–15, at 557 (1981) (History
of the Supreme Court of the United States Vol. 2).
183
The human right of armed self defense is not explicitly covered in either of the Vienna Conventions
above, hereinafter referred to as Vienna ‘69 and Vienna ‘86. Both Vienna Conventions affirm that the rules of
customary international law will continue to govern questions not regulated by the provisions of the those two
Vienna Conventions, The United Nations’ PROGRAMME OF ACTION TO PREVENT, COMBAT AND ERADICATE THE
ILLICIT TRADE IN SMALL ARMS AND LIGHT WEAPONS has the potential to become a customary international norm
that may very will forcibly obligate the United States into repealing the Second Amendment.
J. The Human Rights Case of Jessica Gonzales: You Have No Individual Right to
Police Protection
What better example to expose a federal judicial system at war with the United States Constitution, the
Bill of Rights, and against the with the people themselves than the tragic and horrifying case of Jessica Gonzales
(now Lenahan).
184
K. The Human Rights Record of the United States 2002-2007

Because the United States fails to include itself in its annual COUNTRY REPORTS ON HUMAN RIGHTS
PRACTICES, China issues their own annual HUMAN RIGHTS RECORD OF THE UNITED STATES. The Chinese reports
from 2002 to 2007 focus on six basic categories of human rights violations by the United States:
THE HUMAN RIGHTS RECORD OF THE UNITED STATES (2002-2007)
Information Office of the State Council of China
CATEGORIES HUMAN RIGHTS
I. Ineffective Protection of Life and Security of Person (2002)
I. On Life, Freedom and Personal Safety (2003)
I. On Life, Liberty and Security of Person (2004)
1
I. On Life and Security of Person (2005)
I. On Life, Property and Security of Person (2006)
I. On Life, Property and Personal Security (2007)
II. Serious Human Rights Violation by Law Enforcement Officials (2002)
II. On Political Rights and Freedom (2003, 2004, 2005)
II. On Infringements upon Human Rights by Law Enforcement and Judicial Organs
2 (2005)
II. On Human Rights Violations by Law Enforcement and Judicial Departments (2006,
2007)
III. On Civil and Political Rights (2006, 2007)
III. Money-driven Democracy (2002)
IV. Poverty, Hunger and Homelessness (2002)
3 III. On Living Conditions of US Laborers (2003)
III. On Economic, Social and Cultural Rights (2004)
IV. On Economic, Social and Cultural Rights (2005, 2006, 2007)
VI. Deep-rooted Racial Discrimination (2002)
4 IV. On Racial Discrimination (2003, 2004)
V. On Racial Discrimination (2005, 2006, 2007)
V. Women and Children Are in Worrisome Situation (2002)
V. On Conditions of Women, Children and Elderly People (2003)
5
V. On The Rights of Women and Children (2004, 2005, 2007)
VI. On the Rights of Women, Children, the Elderly and the Disabled (2006)
VII. Blunt Violations of Human Rights in Other Countries (2002)
VIII. Double Standards in International Field of Human Rights (2002)
VI. On Infringement upon Human Rights of Other Nations (2003)
6
VI. On the Infringement of Human Rights of Foreign Nationals (2004)
VII. On the United States’ Violation of Human Rights in Other Countries (2005, 2006)
VII. On the Violation of Human Rights in Other Countries (2007)
2007 http://mwcnews.net/index.php?option=com_content&task=view&id=21087
2006 http://news.xinhuanet.com/english/2007-03/08/content_5817027.htm
2005 http://english.people.com.cn/200603/09/eng20060309_249259.html
2004 http://english.peopledaily.com.cn/200503/03/eng20050303_175406.html
2003 http://english.people.com.cn/200403/01/eng20040301_136190.shtml
2002 Part 1: http://www.china-embassy.org/eng/zt/zfbps/t36550.htm
Part 2: http://www.china-embassy.org/eng/zt/zfbps/t36549.htm
Part 3: http://www.china-embassy.org/eng/zt/zfbps/t36548.htm
185
L. Other Constitutions: Human Rights are Created by God. Not by Government.

" Footnote 263 in David B. Kopel, Paul Gallant, and Joanne D. Eisen, titled, THE HUMAN RIGHT OF SELF-
DEFENSE notes that human rights are included in the constitutions of 16 nations:
The constitutions of at least sixteen nations explicitly affirm that human rights are inherent (or
“natural” or created by God); they affirm human rights are recognized by governments, but not
created by governments.373
Afghanistan Const., art. 23, “Life is a gift of God and a natural right of human
beings.”
Andorra Const., art. 4 “The Constitution recognizes the intangibility of the
human dignity and guarantees the person’s inviolable
and imprescriptible rights….”
Azerbaijan Const., art. 24 “Everyone…possess inviolable and inalienable rights
and liberties.”
Belive Const., pmbl. “inalienable rights with which all members of the
human family are endowed by their Creator….”
Egypt Const., art. 41 “Individual freedom is a natural right not subject to
violation….”
Ethiopia Const., art. 10 “Human rights and freedoms, emanating from the
nature of mankind, are inviolable and inalienable.”
Liberia Const., art. 11, “All persons…have certain natural, inherent and
inalienable rights….”
Lithuania Const., art. 18 “The rights and freedoms of individuals shall be
inborn.”
Luxembourg Const., art. 11 “The State guarantees the natural rights of the
individual….”
Paraguay Const., art. 4 “The right to the life is inherent to the human person.”
Saint Lucia Const., Part II, sched. III, b “ all persons have been endowed equally by God with
inalienable rights….”
Saudi Arabia Const., art. 26 “The state protects human rights in accordance with
the Islamic Shari’ah.”
Spain Const., art. 10 “inviolable rights which are inherent….”
Syria const., art. 25 “Freedom is a sacred right.”
Trinidad & Tobago Const., pmbl. “the equal and inalienable rights with which all
members of the human family are endowed by their
Creator….”
Turkey Const., art. 12 “Everyone possesses inherent fundamental rights….”
373
SELF-DEFENSE. The following list is from footnote 263 of SELF-DEFENSE.
186
M. Other Constitutions: Personal Self-Defense

The International Court of Justice is instructed to use as a source of law “the general principles” from the
laws of “civilized nations.”374 Without arguing about what nations currently count as “uncivilized”, we note that
personal self-defense is part of the law of every legal system in the world today.375 In addition, many nations have
constitutionalized self-defense, in a variety of forms.
Before surveying the constitutions, we must acknowledge that around the world, many constitutional
rights are honored only in the breach. For example, the constitution of Zimbabwe guarantees the right of free
assembly376 but all forms of dissent are ruthlessly suppressed. Recently, opposition leader Morgan Tsvangirai was
badly beaten by the government.377 In Kenya, the constitution is clear: “No person shall be deprived of his life
save in execution of the sentence of a court….”378 However, shoot-to-kill orders were recently issued to police
who executed the orders with a series of extrajudicial killings. 379 Even so, the expression of a standard in a
national constitution is a signal of the importance of that standard in the national and international community,
such that even governments which do not obey the standard feel compelled to assert that they do.380
From Antigua to Nigeria to Zimbabwe, there are thirteen nations which use nearly-identical language to
constitutionalize self-defense:
# Antigua & Barbuda, CONST, art. 4:
1. No person shall be deprived of his life intentionally save in execution of the sentence of a court
in respect of a crime of treason or murder of which he has been convicted.
2. A person shall not be regarded as having been deprived of his life in contravention of this
section if he dies as the result of the use, to such extent and such circumstances as are
permitted by law, of such force as is reasonably justifiable
a. for the defence of any person from violence or for the defence of property;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. for the purpose of suppressing a riot, insurrection or mutiny; or
374
Supra.
375
See Schlomit Wallerstein, Justifying the Right to Self-Defense: A Theory of Forced Consequences , 91 VA. L. REV. 999,
999 (2005) (“the right to self-defense is recognized in all jurisdictions”).
376
ZIMBABWE const. Ch. III, art. 21 (1) (“no person shall be hindered in his freedom of assembly and association… and in
particular to form or belong to political parties…”).
377
See Tsvangirai Held in Intensive Care , BBC News, Mar. 14, 2007. Concerning breach of Zimbabwe’s guarantees
(“Zimbabwean opposition leader Morgan Tsvangirai is being treated in an intensive care unit as doctors examine wounds he
received in police custody…. He and dozens of other activists were arrested at a rally on Sunday.”)
378
KENYA CONST., ch. 5, art. 71(1).
379
See Cyrus Ombati, Govt Burns 8,000 Guns As Minister Orders Police to Kill Thugs , THE EAST AFRICAN
STANDARD (Nairobi), Mar. 16, 2007. (Internal Security minister John Michuki stated: “An illegal weapon in the hands of a
criminal has no other purpose except to kill an innocent person. It is, therefore, justifiable for the law enforcers to take equal
measure against such a person.”).
380
“Hypocrisy is the tribute that vice pays to virtue.” François, Duke of La Rochefoucauld. “If a State acts in a way prima
facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained
within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude
is to confirm rather than weaken the rule.” Nicaragua v. United States, at 98.
187
d. in order lawfully to prevent the commission by that person of a criminal offence, or if he dies
as the result of a lawful act of war.
# the Bahamas, CONST., art. 16.
# Barbados, CONST., art. 12.
# Belize, CONST., art. 4.
# Grenada, CONST., art 2.
# Guyana, CONST., art. 138.
# Jamaica, CONST., art. 14.
# Malta, CONST., § 33.
# Nigeria, CONST., art. 33.
# St. Kitts & Nevis, CONST., art. 4.
# Saint Lucia, CONST., art. 2.
# Saint Vincent and the Grenadines, CONST., art. 2.
# Zimbabwe. CONST., art. 12:
(1) No person shall be deprived of his life intentionally save in execution of the sentence of a
court in respect of a criminal offence of which he has been convicted.
(2) A person shall not be regarded as having been deprived of his life in contravention of
subsection (1) if he dies as the result of the use, to such extent and in such circumstances as
are permitted by law, of such force as is reasonably justifiable in the circumstances of the
case
(a) for the defence of any person from violence or for the defence of property;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) for the purpose of suppressing a riot, insurrection or mutiny or of dispersing an unlawful
gathering; or
(d) in order to prevent the commission by that person of a criminal offence; or if he dies as the
result of a lawful act of war.
(3) It shall be sufficient justification for the purposes of subsection (2) in any case to which that
subsection applies if it is shown that the force used did not exceed that which might lawfully
have been used in the circumstances of that case under the law in force immediately before
the appointed day.
# Slovakia uses a variation of the formula, CONST., art. 15:
(1) Everyone has the right to life. Human life is worthy of protection even prior to birth.
(2) No one must be deprived of life.
(3) Capital punishment is not permitted.
(4) If someone was deprived of life as a result of an action that does not represent a criminal act,
this does not constitute a violation of rights according to this Article.
188
N. Other Constitutions: Self-Defense Against Tyranny

As Grotius, Pufendorf, and many other legal and moral philosophers have elaborated, self-
defense against tyranny is just a larger application of self-defense against a lone criminal. Many
nations have constitutionalized the right of self-defense against tyrants. In five countries, the
constitutionalization is framed as a constitutional intention to assist the liberation of other nations
from tyranny:
Algeria Const., art. 27: “Algeria associates itself with all the peoples fighting for their political
and economic liberation, for the right of self determination and against
any racial discrimination.” Art: 33: “Individual or associative defense of
the fundamental human rights and individual and collective liberties is
guaranteed.”
Angola Const., art. 16: “The Republic of Angola shall support and be in solidarity with the
struggles of peoples for national liberation and shall establish relations
of friendship and cooperation with all democratic forces in the world.”
Cuba Const., art. 12 : The Republic of Cuba espouses the principles of anti-imperialism and
internationalism, and
(h) considers wars of aggression and of conquest international crimes;
recognizes the legitimacy of the struggle for national liberation, as well
as of armed resistance to aggression; and considers that its solidarity
with those under attack and with the peoples that struggle for their
liberation and self-determination constitutes its internationalist duty;
Portugal Const., art. 7(3): “Portugal recognizes the right of peoples to revolt against all forms of
oppression, in particular colonialism and imperialism.”
Suriname Const., art 7. 1. The Republic of Suriname recognizes and respects the right of
nations to self determination and national independence on the basis of
equality, sovereignty and mutual benefit….
4. The Republic of Suriname promotes the solidarity and collaboration
with other peoples in the combat against colonialism, neo-colonialism,
racism, genocide and in the combat for national liberation, peace and
social progress.
189
O. Other Constitutions: Right and Duty of Citizens to Resist or Revolt Against

Domestic or Foreign Tyranny
In thirteen nations, the constitution affirms a right and duty of citizens to resist or revolt against domestic or
foreign tyranny:
Andorra Const., article 5: “The Universal Declaration of Human Rights is binding in
Andorra.”381
Argentina Const. 382, § 36: (1) This Constitution shall rule even when its observance is
interrupted by acts of force against the institutional order and the
democratic system. These acts shall be irreparably null.
(2) Their authors shall be punished with the penalty foreseen in
Section 29, disqualified in perpetuity from holding public offices and
excluded from the benefits of pardon and commutation of sentences.
(3) Those who, as a consequence of these acts, were to assume the
powers foreseen for the authorities of this Constitution or for those of
the provinces, shall be punished with the same penalties and shall be
civil and criminally liable for their acts. The respective actions shall
not be subject to prescription.
(4) All citizens shall have the right to oppose resistance to those
committing the acts of force stated in this section.
(5) He who, procuring personal enrichment, incurs in serious
fraudulent offense against the Nation shall also attempt against the
democratic system, and shall be disqualified to hold public office for
the term specified by law.
(6) Congress shall enact a law on public ethics which shall rule the
exercise of public office.
Congo Const., article 17: “Any citizen may oppose the execution of an order received when it
touches the rights and liberties contained in the present Constitution.”
Greece Const., art. 120(4) “Observance of the Constitution shall be committed to the patriotism
of the Greeks who shall have the right and the obligation to resist by
any means anybody who tries to subvert it violently.”
Guatemala Const., art. 45: Action against violators and legitimacy of resistance. The action to
judge the violators of the human rights is public and can be exerted by
means of simple denunciation, without caution nor some formality.
The resistance of the town for the protection and defense of the rights
and guarantees briefed in the Constitution is legitimate. 383
381
Original in Spanish. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr
The Universal Declaration affirms the right of violent resistance to tyranny, so the incorporation of the Universal Declaration
into a national constitution thereby incorporates the rightfulness of resisting tyranny. (Kopel, et al)
382
Section (2), (5), and (6) omitted in Kopel, et al, THE HUMAN RIGHT OF SELF DEFENSE. Section (2), (5), and (6), in their
operation is the parallel function of the “Common Defence” clause in the Preamble to the United States Constitution and the
Powers reserved to the People in the Tenth Amendment of the Bill of Rights to the United States Constitution.
383
190
Honduras Const., art. 3: Nobody must be obedient to an usurping government nor to those
who assume functions or uses public by the force of the average arms
or using procedures that break or do not know what this Constitution
and the laws establish. The acts verified by such authorities are null.
the town must right to resort to the insurrection in defense of the
constitutional order.384
Hungary Const., art. 2(3): “No activity of any person may be directed at the forcible acquisition
or exercise of public power, nor at the exclusive possession of such
power. Everyone has the right and obligation to resist such activities
in such ways as permitted by law.”
Lithuana Const. art. 3: “(1) No one may limit or restrict the sovereignty of the People or
make claims to the sovereign powers of the People. (2) The People
and each citizen shall have the right to oppose anyone who
encroaches on the independence, territorial integrity, or constitutional
order of the State of Lithuania by force.”
Mauritania Const., pmbl.: Trusting in the omnipotence of Allah, the Mauritanian people
proclaims its will to guarantee the integrity of its territory, its
independence, and its national unity and to take upon itself its free
political economic and social development. Believing strongly in its
spiritual values and in the spreading of its civilization “it also
solemnly proclaims its attachment to Islam and to the principles of
democracy as they have been defined by the Universal Declaration of
Human Rights of 10 Dec 1948 and by the African Charter of Human
and Peoples Rights of 28 June 1981 as well as in the other
international conventions which Mauritania has signed.” Judging that
liberty, equality, and the dignity of Man may be assured only in a
society which establishes the primacy of law, taking care to create the
durable conditions for a harmonious social development respectful of
the precepts of Islam, the sole source of law, but responsive as well to
the exigencies of the modern world, the Mauritanian people proclaims
in particular the inalienable guarantee of the following rights and
principles:
- the right to equality;
- the fundamental freedoms and rights of human beings;
- the right of property;
- political freedom and freedom of labor unions;
- economic and social rights; and
- the rights attached to the family, the basic unit of Islamic society.
Conscious of the necessity of strengthening its ties with brother
peoples, the Mauritanian people, a Muslim, African, and Arab people,
proclaims that it will work for the achievement of the unity of the
Greater Maghreb of the Arab Nation and of Africa and for the
consolidation of peace in the world. (incorporating right of resistance
384
Id.
191
articulated in the Universal Declaration and the African Charter. See

supra text accompanying notes - , - .).385
Peru Const. art. 46: “Nobody have to be obedient to an usurping government, nor to those
who they assume public functions in violation of the Constitution and
the laws. The civil populace has the right of insurgency in defense of
the constitutional order. The acts are null of those who usurp public
functions.”386
Portugal Const., art. 21: “Everyone has the right to resist any order that infringes his rights,
freedoms, or safeguards and to repel by force any form of aggression
when recourse to public authority is impossible…” See also id., at __
(Portuguese constitution shall be construed “in accordance with the
Universal Declaration of human rights.”; as discussed at note __,
supra, the Universal Declaration recognizes the right of violent self-
defense against tyranny.)
Romania const., art 20 (1) Constitutional provisions concerning the citizens’ rights and
liberties shall be interpreted and enforced in conformity with the
Universal Declaration of Human Rights, with the covenants and other
treaties Romania is a party to. (2) Where inconsistencies exist
between the covenants and treaties on fundamental human rights
Romania is a party to and internal laws, the international regulations
shall take precedence. (incorporating right of resistance articulated in
the Universal Declaration of Human Rights.
Slovakia Const., art. 32: “Citizens have the right to put up resistance to anyone who would
eliminate the democratic order of human rights and basic liberties
listed in this Constitution, if the activity of constitutional bodies and
the effective use of legal means are rendered impossible.”
P. Other Constitutions: Security against home invasion
Finally, a very common item in constitutions which include a Bill of Rights is the right to security against home
invasion. Sometimes—as in the United States’ Fourth Amendment [U.S. CONST., amend. 4.]—the right is stated
in terms that apply only to home invasions by the government. Very frequently, however, the right is stated in
terms which are not limited to government actors.
Afghanistan Const., art. 38.1-2: “Other than the situations and methods indicated in the
law, no one, including the state, is allowed to enter or
inspect a private residence without prior permission of the
resident or holding a court order.”
Andorra Const., art. 14: “Inviolability of the dwelling shall be guaranteed. No one
shall enter a dwelling or any other premises against the
will of the owner or without a warrant, except in case of
flagrant delicto.”
Angola Const., art. 44: “The State shall guarantee the inviolability of the home
and the secrecy of correspondence, with limitations
especially provided for by law.”
385
Italics parts omitted in original. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr
386
Spanish in original. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr
192
Antigua & Barbuda., ch. 2(3)(c): “protection for his family life, his personal privacy, the
privacy of his home and other property and from
deprivation of property without fair compensation,…”
Armenia Const., art. 21: “Everyone is entitled to privacy in his or her own
dwelling. It is prohibited to enter a person’s dwelling
against his or her own will except under cases prescribed
by law.”
Azerbaijan Const., art. 33.1-2: “Everyone has the right for sanctity of his/her home.
Except cases specified by law or decision of law court
nobody has the right to enter private home against the will
of its inhabitants.”
Bahamas Const., ch. 3.15(c): “protection for the privacy of his home and other property
and from deprivation of property without compensation…”
Belarus Const., art. 29: “The right of the people to be secure in their houses and
other legitimate effects shall be guaranteed. No person
shall have the right, save in due course of law to enter the
premises or other legal property of a citizen against one’s
will.”
Belgium Const., art. 15 “The domicile is inviolable; no visit to the individual’s
residence can take place except in the cases provided for
by law and in the form prescribed by law.”
Belize Const., art. II.9.1 “Except with his own consent, a person shall not be
subjected to the search of his person or his property or the
entry by others on his premises.”
Benin Const., art. 20: “The domicile shall be inviolable. House visits or searches
may be carried out only according to the forms and
conditions provided by law.”387
Bolivia Const., art. 21: “All house is an asylum inviolable; at night it will not be
possible to be entered her without consent of which it
inhabits it and by day only the entrance to requisition
written and motivated of competent authority will be
crossed, except for the case of crime ‘in fragantí.’ “388
Brazil Const., art. 5: XI - the home is the inviolable refuge of the individual,
and no one may enter therein without the consent of the
dweller, except in the events of flagrante delicto 389 or
387
Original in Spanish. English version found online at:
http://www.chr.up.ac.za/hr_docs/constitutions/docs/BeninC(englishsummary)(rev).doc
388
Translation of “in fragantí” not readily available.
389
“being caught in the act” Latin.
193
disaster, or to give help, or, during the day, by court

order;390
Bulgaria Const., art. 33.1-2 “The home is inviolable. No one shall enter or stay inside a
home without its occupant’s consent, except in the cases
expressly stipulated by law. Entering a home or staying
inside without the consent of its occupant or without the
judicial authorities’ permission shall be allowed only for
the purposes of preventing an immediately impending
crime or a crime in progress, for the capture of a criminal,
or in extreme necessity.”
Burkina Faso Const., art. 6: “The residence, the domicile, private and family life,
secrecy of correspondence of every person are inviolable.
It can only be affected according to the forms and in the
cases specified by the law.”391
Burundi Const., art. [43]:392 “No one cannot be the subject of interference arbitrary in
its private life, its family, her residence or its
correspondence, nor of attacks to its honor and its
reputation. It can be ordered searchings or house searches
only under the forms and the conditions envisaged by the
law.”393
Cambodia Const., art. 40: “The right to privacy of residence and to the secrecy of
correspondence by mail, telegram, fax, telex and telephone
shall be guaranteed.”
China Const., art 39. “The home of citizens of the People’s Republic of China is
inviolable. Unlawful search of, or intrusion into, a citizen’s
home is prohibited.”
Cuba Const., art. 56: “The home is inviolable. Nobody can enter the home of
another against his will, except in those cases foreseen by
law.”
Domican Republic Const.: art. 8.3 “The inviolability of the home. No home visit can
be verified but in the cases anticipated by the law and with
the formalities that it prescribes.”394
Egypt Const., art. 44 “Homes shall have their sanctity and they may not be
entered or inspected except by a causal judicial warrant as
prescribed by the law.”
El Salavador Const., art. 20: “The home is inviolable and it will only be able to be
entered by consent of the person who inhabits it, by
390
Original in Spanish. English version found online at http://www.v-brazil.com/government/laws/titleII.html
391
Original in Spanish. English version found online at
http://www.chr.up.ac.za/hr_docs/constitutions/docs/Burkina%20FasoC%20(englishsummary)(rev).doc
392
Art. 23 in original. There correct article number corresponding to the text indicates “article 43” not “23.”
393
Original in French. English version online at http://www.idlo.int/texts/leg5567.pdf
394
194
judicial mandate, flagrant crime or imminent danger of its

perpetration, or by serious risk of the people.”395
Eritrea Const., art. 18(2): “No person shall be subjected to unlawful search,
including his home or other property; there shall be no
unlawful entry of his premises and no unlawful seizure of
his personal possessions; nor shall the privacy of his
correspondence, communication or other property be
violated.
Estonia Const., art. 33: “The home is inviolable. No one may forcibly enter or
search anyone’s dwelling, property or place of work,
except in such cases and in accordance with procedures
determined by law for the protection of public order or
health, or the rights and liberties of others, or in order to
prevent a criminal act, to capture a criminal offender or to
establish facts in a criminal investigation.”
Ethiopia Const., art. 26.1: “Everyone has the right to privacy. This right shall include
the right not to be subjected to searches of his home,
person or property, or the seizure of any property under his
personal possession.”
Germany Const. (Grundgesetz), art. 13.1: “The home is inviolable.”
Grenada Const., ch. 1.7: “Except with his own consent, no person shall be subjected
to the search of his person or his property or the entry by
others on his premises.”
Guatemala Const., art. 23: “Inviolability of the house. The house is inviolable.
Nobody will be able to penetrate in other people’s
dwelling without permission of that inhabits it, safe by
written order of competent judge in which never specifies
the reason for the diligence and before the six nor after the
eighteen hours, Such diligence will be always made in the
presence of the interested one, or of its agent chief
executive.”396
Guyana Const., art. 40.1(c): “protection for the privacy of his home and other property
and from deprivation of property without compensation.”
Honduras Const., art. 99: “The home is inviolable. No entrance or registry will be
able to be verified without consent of the person who
inhabits it or resolution of competent authority. However,
it can be levelled off, in case of urgency, to prevent the
commission or impunity of crimes or to avoid serious
damages to the person or the property.”397
Hong Kong Const., art. 29: “The homes and other premises of Hong Kong residents
shall be inviolable. Arbitrary or unlawful search of, or
395
Ib.
396
Ib.
397
195
intrusion into, a resident’s home or other premises shall be

prohibited.”
Ireland Const., art. 40.5: “The dwelling of every citizen is inviolable and shall not
be forcibly entered save in accordance with law.”
Iran Const., art. 22: “The dignity, life, property, rights, residence, and
occupation of the individual are inviolate, except in cases
sanctioned by law.”
Italy Const., art. 14: “(1) Personal domicile is inviolable. (2) No one’s domicile
may be inspected, searched, or seized save in cases and in
the manner laid down by law conforming to the guarantee
of personal liberty.”
Jamaica Const., art. 19.1: “Except with his own consent, no person shall be subject
Jordan Const., art. 10: “Dwelling houses shall be inviolable and shall not be
entered except in the circumstances and in the manner
prescribed by law.”
Kuwait Const., art. 38: “Places of residence shall be inviolable. They may not be
entered without the permission of their occupants except in
the circumstances and manner specified by law.”
Latvia Const., art. 96: “Everyone has the right to inviolability of their private life,
home and correspondence.”
Lebanon Const., art. 14: “The citizen’s place of residence is inviolable. No one may
enter it except in the circumstances and manners
prescribed by law.”
Liberia Const., art. 16: “No person shall be subjected to interference with his
privacy of person, family, home or correspondence except
by order of a court of competent jurisdiction.”
Libya Const., art. 12: “The home is inviolable and shall not be entered or
searched except under the circumstances and conditions
defined by the law.”; art. 24.1: “A person’s dwelling place
shall be inviolable.”
Luxembourg Const., art. 15: “The home is inviolable. No domiciliary visit may be
made except in cases and according to the procedure laid
down by the law.”
Macedonia Const., art. 26.1: “The inviolability of the home is guaranteed.”
Madagascar Const., art. 13.1: “Everyone shall be assured of protection of his person, his
residence, and his correspondence.”
Mongolia Const., art. 16.13: “Privacy of citizens, their families, correspondence, and
homes are protected by law.”
Nepal Const., art. 22: “Except as provided by law, the privacy of the person,
house, property, document, correspondence or information
of anyone is inviolable.”
196
Nicaragua Const., art. 26:398 “All persons have the right to:
1. privacy and the privacy of their family;
2. the inviolability of their home, correspondence, and
communications;
3. respect for their honor and reputation.
A private home may be searched only with a warrant from
a competent judge or expressly authorized official to
prevent a crime from being committed or to avoid damage
to persons or goods, in accordance with the procedures
established by law. The law shall determine the cases and
the procedures for an examination of private documents,
fiscal records and related documents, when such is
indispensable for the investigation of matters before the
Courts or for fiscal reasons. Illegally seized letters,
documents and other private papers shall be null and void
in legal proceedings or elsewhere.”
Nigeria Const., art. 37: “The privacy of citizens, their homes, correspondence,
telephone conversations and telegraphic communications
is hereby guaranteed and protected.”
Oman Const., art. 27: “Dwellings are inviolable and it is not permitted to enter
them without the permission of the owner or legal
occupant, except in the circumstances specified by the
Law and in the manner stipulated therein.”
Panama Const., art. 26: “The home or the residence is inviolable.”399
Paraguay Const., 400 art. 33 & 34: “About the Right to Privacy
(1) Personal and family privacy, as well as the respect of
private life, are inviolable. Individual behavior that does
not affect public order as established by law or the rights
of third parties is exempted from the authority of public
officials.
(2) The protection of the privacy, dignity, and private
image of each individual is hereby guaranteed.
Article 34 About the Inviolability of Private Premises
Every private premises is inviolable. Private premises can
only be searched or closed by a court order in accordance
with the law. By way of exception, it can be searched or
closed without a court order in case of flagrante delicto401
398
English version found online at http://www.leftjustified.com/leftjust/lib/sc/ht/wtp/nicaragu.html
399
400
English version found online at http://servat.unibe.ch/icl/pa00000_.html
401
“caught in the act”
197
or to prevent the imminent perpetration of a crime or to

avoid personal harm or property damage.
Peru Const., art. 2.9:402 “Every individual has the right:
9. [to] the inviolability of his home. No one may enter the
home or conduct any investigation or search without
authorization from the inhabitant or a court warrant except
in the case of flagrante delicto 403 or very grave danger of
the same. Exceptions for reasons of health or serious risk
are governed by law.”
Portugal Const., art. 34: “The individual’s home and the privacy of his
correspondence and other means of private communication
are inviolable.…No one may enter the home of any person
at night without his consent.”
Qatar Const., art. 37: “The sanctity of human privacy shall be inviolable, and
therefore interference into privacy of a person, family
affairs, home of residence, correspondence, or any other
act of interference that may demean or defame a person
may not be allowed save as limited by the provisions of
the law stipulated therein.”
Romania Const., art. 27.1: “The domicile and the residence are inviolable. No one
may enter or remain in the domicile or residence of a
person without consent.”
Russian Federation Const., art. 25: “The home is inviolable. No one has the right to enter the
home against the will of persons residing in it except in
cases stipulated by the federal law or under an order of a
court of law.”
Rwanda Const., art. 22: “The private lives of individuals shall not be infringed
upon in any way.…Domiciles shall be inviolable.”
Saint Kitts & Nevis Const., art. 9.1: “Except with his own consent, a person shall not be
subject to the search of his person or his property or the
entry by others on his premises.”
Saint Lucia Const.: art. 7.1 (same as St. Kitts).
Saint Vincent & The Grenadines Const., art. 7.1 (same as St. Kitts).
Slovakia Const., art. 21.1: “A person’s home is inviolable. It must not be entered
without the resident’s consent.”
Saudi Arabia Const., art. 37: “The home is sacrosanct and shall not be entered without
the permission of the owner or be searched except in cases
specified by statutes.”
South Korea Const., art. 16: “All citizens are free from intrusion into their place of
residence.”
402
English version available online at http://www.idlo.int/texts/leg6577.pdf
403
“being caught in the act.”
198
Spain Const., art. 18.2: “The home is inviolable.”

Suriname Const., art. 17.1: “Everyone has a right to respect of his privacy, his family
life, his home and his honor and good name.”
Switzerland Const., 13.1: “Every person has the right to respect for his or her private
and family life, home, and secrecy of mail and
telecommunication.”
Syria Const., art. 31: “Homes are inviolable.”
Thailand Const., § 35 “A person is protected for his or her peaceful habitation in
and for possession of his or her dwelling place. The entry
into a dwelling place without consent of its possessor or
the search thereof shall not be made except by virtue of the
law.”
Trinidad & Tobago Const., art. 4(c): “the right of the individual to respect for his private and
family life.”
Tunisia Const., art. 9: “The inviolability of the home and the secrecy of
correspondence are guaranteed, save in exceptional cases
established by the law.”
Turkey Const., art. 21.1: “The domicile of an individual shall not be violated.”
Uruguay Const., art. 11: “The home is an asylum inviolable. At night nobody will
be able to enter him without consent of its head, and by
day, only of express order of competent Judge, in writing
and in the cases determined by the law.”404
Venezuela Const., art. 47: “The domestic home and all deprived enclosure of person
are inviolable.”405
Vietnam Const., art. 73.1-2 “The citizen is entitled to the inviolability of his domicile.
No one is allowed to enter the domicile of another person
without his consent, except in cases authorised by the
law.”
Zambia Const., art. 17.1: “Except with his own consent, no person shall be subjected
Zimbabwe Const., art. 17.1: “Except with his own consent or by way of parental
discipline, no person shall be subjected to the search of his
person or his property or the entry by others on his
premises.”
404
405
Id.
199
200
PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS

Part 19. The Claims
Part 25. Damages
201
A. The Right to Openly Keep and Bear Arms (Open Carry) in Intrastate, Interstate,
and Maritime Travel is the Constitutional Norm
Citing District of Columbia v. Heller, 554 U.S. ___ (2008) (Slip Opinion No. 07-290 at 54):
“[I]n State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that
citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of
the United States, and which is calculated to incite men to a manly and noble defence of
themselves, if necessary, and of their country, without any tendency to secret advantages and
unmanly assassinations.” District of Columbia v. Heller, 554 U.S. ___ (2008) (Slip Opinion No.
07-290 at 40)
“[T]he majority of the 19th-century courts to consider the question held that prohibitions on
carrying concealed weapons were lawful under the Second Amendment or state analogues.
See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 25.” District of
Columbia v. Heller, 554 U.S. ___ (2008) (Slip Opinion No. 07-290 at 54)
“Few laws in the history of our Nation have come close to the severe restriction of the District’s
handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia
Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld
a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the
Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol
“publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187,
violated the state constitutional provision (which the court equated with the Second Amendment).
That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State
v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating,
amounts to a destruction of the right, or which requires arms to be so borne as to render
them wholly useless for the purpose of defence, would be clearly unconstitutional”).” District
of Columbia v. Heller, 554 U.S. ___ (2008) (Slip Opinion No. 07-290 at 57).
“Facts do not cease to exist because they are ignored.” Aldous Huxley, PROPER STUDIES: A
NOTE ON DOGMA, p. 205 (1917).
“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of
our passions, they cannot alter the state of facts and evidence.” John Adams (1732-1826), U. S.
President, December 1770.
“There are some acts of justice which corrupt those who perform them.” Joseph Joubert (1754-
1824), Pensees.
“There is no crueler tyranny than that which is perpetrated under the shield of law and in the
name of justice.” Charles-louis De Secondat, Baron De Montesquieu (1742).
B. Open Carry in Intrastate, Interstate, and Maritime Travel is a Near-Absolute

Human Right Notwithstanding Prohibited Person Status under 18 U.S.C. § 922 et
seq.
In the Heller opinion Justice Scalia cited case law at the State level striking down severe gun control laws
that approached the District of Columbia handgun ban.
“Open carry” is covered in
202 RIGHTS DECLARATIONS

PART 7. PLAINTIFF’S CONSTITUTIONAL
1. State v. Reid, 1 Ala. 612, 616-617, 35 Am. Dec. 44 (1840) (A statute which, under the pretence of regulating,
amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly
useless for the purpose of defence, would be clearly unconstitutional.)
2. pages 57 (Nunn v. State, 1 Ga. 243, 250–251 (1846) (We are of the opinion, then, that so far as the act of 1837
seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive
the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so
much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and
void.)
3. page 40 (State v. Chandler, 5 La. Ann. 489, 489–490 (1850) (The act of the 25th of March, 1813, makes it a
misdemeanor to be “found with a concealed weapon, such as a dirk, dagger, knife, pistol, or any other deadly
weapon concealed in his bosom, coat, or any other place about him, that does not appear in full view.” This law
became absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying
concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons. It
interfered with no man’s right to carry arms (to use its words) “in full open view,” which places men upon an
equality. This is the right guaranteed by the Constitution of the United States, and which is calculated to incite
men to a manly and noble defence of themselves, if neccessary, and of their country, without any tendency to
secret advantages and unmanly assassinations.); and
4. page 57 (Andrews v. State, 50 Tenn. at 187 (1871) (It will be seen the statute forbids by its terms, the carrying
of the weapon publicly or privately, without regard to time or place, or circumstances, and in effect is an absolute
prohibition against keeping such a weapon, and not a regulation of the use of it. Under this statute, if a man
should carry such a weapon about his own home, or on his own premises, or should take it from his home to a
gunsmith to be repaired, or return with it, should take it from his room into the street to shoot a rabid dog that
threatened his child, he would be subjected to the severe penalties of fine and imprisonment prescribed in the
statute.).
C. Judge Ellen Segal Huvelle Wrongfully Denied Mandamus Relief

In Judge Ellen Segal Huvelle’s Order dismissing my first case, No. 02-1435 she cited boilerplate case law
without due regard to the merits of my case (extreme judicial prejudice to my right to due process). She stated:
The remedy of mandamus is an extraordinary one, and is reserved for extraordinary situations. 406 See
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). Under well-established Circuit law,
mandamus relief is available only if three conditions are met:407
(1) the plaintiff has a clear right to relief;
(2) the defendant has a clear duty to act; and
(3) there is no other adequate remedy available to the plaintiff.
Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002); see also In re Bluewater Network, 234 F.3d 1305, 1315
(D.C. Cir. 2000) (mandamus issued “only for the most transparent violations of a clear duty to act”).
406
407
203
(1). Mandamus: Reserved for Extraordinary Situations:

The terrorist attacks of September 11, 2001 is an extraordinary situation. The creation of the U.S.
Department of Homeland Security in response to the terrorist attack of September 11, 2001 is an extraordinary
situation. The transfer of the U.S. Coast Guard from the U.S. Department of Transportation to the U.S.
Department of Homeland Security is an extraordinary situation. The transfer of superintendence of the U.S.
Merchant Marine from the U.S. Department of Transportation to the U.S. Department of Homeland Security is an
extraordinary situation.
(2). First Condition for Mandamus Relief: The plaintiff has a clear right to
relief
In 2002 I had a clear right to Mandamus relief with the combine effect of the extraordinary situations
listed at subparagraph (1) above. In 2008 I still have the same extradinary situations listed at subparagraph (1)
above but the U.S. Supreme Court handed me another clear right to Mandamus relief in the form of the U.S.
Supreme Court’s opinion in District of Columbia v. Heller, No. 07-290 (June 26, 2008) stating that the Second
Amendment is an individual right.
(3). Second Condition for Mandamus Relief: The defendant has a clear duty
to act
I have clearly shown that the United States has a very poor human rights record in how it treats its how
People. I have clearly shown that the United States has the highest prison population than any other nation in the
world. It is a substantial and proven claim that disarming the American people through gun control laws is not the
the solution to murders, violent crimes, and property crimes. Academic law review articles frequently right about
the road not taken under many areas of the Constitution of the United States. This case highlights one road not
taken and suggests that it is time long overdue to take that road to an armed society under the Second Amendment
as the constitutional norm that it is and social norms will form in compliance with the Second Amendment. The
law and social norms are interdependent. The United States Government has a clear duty to respect the Second
Amendment for its intended purpose as part of the checks and balance system under the Constitution of the
United States.
(4). Third Condition for Mandamus Relief: There is no other adequate
remedy available to the plaintiff.
I have exhausted all remedies available from the U.S. Coast Guard, the U.S. Congress (petition for a
private bill was administratively rejected), from the Executive Branch, and even from the federal Judicial Branch
(hence my human rights complaint so noted on pages 1-3 of this complaint.).
(5). This Court has the duty to affirm Mandamus Relief.
Citing Cohen v. Com. Wealth of Virginia 19 U.S. 264 (Wheat) (1821):
It is most true that this Court will not take jurisdiction if it should not: but it is
equally true, that it must take jurisdiction if it should. The judiciary cannot, as the
legislature may, avoid a measure because it approaches the confines of the
constitution. We cannot pass it by because it is doubtful. With whatever doubts,
with whatever difficulties, a case may be attended, we must decide it, if it be
brought before us. We have no more right to decline the exercise of jurisdiction
which is given, than to usurp that which is not given. The one or the other would
be treason to the constitution. Questions may occur which we would gladly
avoid; but we cannot avoid them. All we can do is, to exercise our best judgment,
and conscientiously to perform our duty.)

(a). Capt. Fink, USCG, Commanding Officer, National Maritime Center, Arlington,
Virginia issued the initial denial of Petititoner’s application for National Open Carry Handgun
endorsement on his Merchant Mariner’s Document in his letter dated February 22, 2002.
(b). Capt. Fink stated in the above letter:
“This is in response to your application dated January 10, 2002, for an endorsement on
your merchant mariner’s document that would entitle you to carry a handgun. MMDs
serve the purposes of identifying the mariner and providing evidence of his or her
professional qualifications. An endorsement authorizing carriage of a handgun is beyond
the scope of the professional requirements for the crew on board a merchant vessel and is
not authorized by regulation.”
(c). Capt. Fink did not cite the regulation he referred to in his letter to Plaintiff because
there is no Coast Guard regulation in existence that prohibits authorizing my endorsement for
“National Open Carry Handgun” but the Second Amendment to the U.S. Constitution.
(d). The intent and purpose of the Bill of Rights, the first ten amendments to the U.S.
Constitution, as explained in the Preamble to the Bill of Rights, is to “prevent misconstruction or
abuse of its powers, that further declaratory and restrictive clauses should be added: And as
extending the ground of public confidence in the Government, will best ensure the beneficent ends
of its institution.”
(e). National Open Carry Handgun is a right of the First, Second, Ninth, Tenth,
Thirteenth, and Fourteenth Amendments, inclusively.
(f). The constitutional right of National Open Carry Handgun is inseparable from the
constitutional right to travel the various states under the Second, Ninth, Tenth, and Thirteenth
Amendments for the lawful purpose of personal security in defense of life and liberty. These
rights still retain constitutional status and protections in opposition to federal, state, and local laws
and ordinances. Federal, state, county, and city laws and ordinances that infringe and prohibit this
right are “repugnant to the constitution” and are “null and void” in terms of their constitutionality
and must be stricken. (Marbury v. Madison)
(g). The Federal Government, the Coast Guard and the States all have a legal and
constitutional obligation to obey an under-enforced constitutional norm, the National Open Carry
Handgun right of the Second, Ninth, Tenth, Thirteenth and Fourteenth Amendments which
extends beyond its interpretation by the federal judiciary to the full dimensions of the concept
which the norm embodies.408
(h). The Federal Government, the Coast Guard and the States are required to fashion their
own conceptions of the constitutional norm of National Open Carry Handgun and measure their
conduct by reference to this concept.409
(i). The Federal Government, the Coast Guard and the States all have an obligation to use
their ‘best efforts’ to avoid unconstitutional conduct.410
408
Paraphrasing. Denning, Brannon P., Gun Shy: the Second 20 Amendment as an “Underenforced Constitutional Norm, 21
Harv. J.L. & Pub. Pol’y 719, (Summer 1998) discussing Lawrence Gene Sager’s Fair Measure: The Legal Status of
Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212 (1978).
409
Id.
410
Id.
205
(j). The Coast Guard acted with “deliberate indifference” to Plaintiff’s Second, Ninth,
Tenth, and Thirteenth Amendment rights by denying Plaintiff’s application, and thereby violated
Plaintiff’s civil, religious, and constitutional rights.
(k). The Coast Guard acted with error when initiating a criminal investigation through the
U.S. Navy Criminal Investigative Service against Plaintiff for exercising First Amendment rights
pursuing Second Amendment rights.
D. There Are No Federal Laws or Regulations on the Second Amendment Rights of
U.S. Seamen to Possess or Carry a Handgun, Whether Concealed Carry or Open
Carry, Between the Jurisdictions of Domestic Law and Maritime Law.
(1). “National Open Carry Handgun” is an Inherent Human Right of Self-
Defense
The Second Amendment right to openly keep and bear arms for personal safety, security and self-defense
against the common criminal of society and against government tyranny, whether implied or explicitly included,
under the right to life provisions of international human rights treaties and especially so under the United Nations
CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE.
Federal and State gun control laws violate the Bill of Rights to the U.S. Constitution and the privileges
and immunities of the Fifth and Fourteenth Amendments and the U.S. citizenship of the Fourteenth Amendment.
The United Nations global gun control agenda violates the United Nations Charter, Article 2, Clause 7 to
which United States has the international remedy under the VIENNA CONVENTION ON THE LAW OF TREATIES 1969
and VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR
BETWEEN INTERNATIONAL ORGANIZATIONS 1986
E. The U.S. Department of Homeland Security Has General Superintendence Over

the U.S. Merchant Marine and Merchant Personnel But Ignores the Role of
Seamen’s Second Amendment Rights in Homeland Security
Because there are no federal laws or regulations for or against Don Hamrick’s requested endorsement for
National Open Carry Handgun on the Merchant Mariners Document, Capt. Brusseau should have given full
weight of the Second Amendment to Don Hamrick’s application and acted in accordance with the “Oath of
Office” [CG-9556 (Rev. 8-05)] that states:
“Having accepted this appointment, I, [Capt. Brusseau], do solemnly swear (or affirm) that I will
support and defend the Constitution of the United States against all enemies, foreign and
domestic, that I will bear true faith and allegiance to the same, that I take this obligation freely,
without any mental reservation or purpose of evasion, and that I will well and faithfully discharge
the duties of the office on which I am about to enter. So help me God.”
That Capt. Brusseau abandoned his duty to support and defend the constitutional rights of seamen under
the Bill of Rights by ignoring Don Hamrick’s individual right under the Second Amendment as an Able Seaman
in their administrative final agency action in favor of a treasonous political ideology more in line with the United
Nations global gun control agenda attacking the Second Amendment.
That in 2002, U.S. civilian Able Seamen taking employment aboard U.S. Government vessels of the
Ready Reserve Fleet and of the Pre-Position Fleet in support of the U.S. military are required to have small arms
training in accordance with OPNAVINST 3591.1C: SMALL ARMS TRAINING AND QUALIFICATION, dated May 13,

2002; ENCLOSURE (3) QUALIFICATION CRITERIA FOR SECURITY PERSONNEL (AFLOAT) dated May 13, 1992,411
through the Military Sealift Command, shipping companies, and the Seafarers International Union.
(1). That small arms training falls under the GENERAL REQUIREMENTS AND
CLASSIFICATIONS FOR ABLE SEAMEN, 46 U.S.C. § 7306(a)(3):
“To qualify for an endorsement as able seaman authorized by this section, an applicant must provide satisfactory
proof that the applicant is qualified professionally as demonstrated by an applicable examination or educational
requirements .”
(2). That 33 C.F.R. § 104.220 COMPANY OR VESSEL PERSONNEL WITH SECURITY
DUTIES requires the following:
Company and vessel personnel responsible for security duties must have knowledge, through training or
equivalent job experience, in the following, as appropriate:
(a) Knowledge of current security threats and patterns;
(b) Recognition and detection of dangerous substances and devices;
(c) Recognition of characteristics and behavioral patterns of persons who are likely to threaten
security;
(d) Techniques used to circumvent security measures;
(e) Crowd management and control techniques;
(f) Security related communications;
(g) Knowledge of emergency procedures and contingency plans;
(h) Operation of security equipment and systems;
(i) Testing and calibration of security equipment and systems, and their maintenance while at sea;
(j) Inspection, control, and monitoring techniques;
(k) Relevant provisions of the Vessel Security Plan (VSP);
(l) Methods of physical screening of persons, personal effects, baggage, cargo, and vessel stores;
and
(m) The meaning and the consequential requirements of the different Maritime Security
(MARSEC) Levels.
(n) Relevant aspects of the TWIC program and how to carry them out.
That 33 C.F.R. § 104.220 COMPANY OR VESSEL PERSONNEL WITH SECURITY DUTIES places unarmed
company and vessel personnel with security duties at grave risk of personal injury or death when security duties
411
207
require that they approach and confront suspicious persons. It is unrealistic and suicidal to expect company
personnel to comply with 33 C.F.R. § 104.220 while unarmed.
(3). That the International Maritime Organization’s Maritime Safety
Committee policy on, Piracy and Armed Robbery Against Ships: Guidance to
Shipowners and Ship Operators, Shipmasters and Crews on Preventing and
Suppressing Acts of Piracy and Armed Robbery Against Ships,
MSC/Circ.623/Rev.3, dated May 29, 2002, paragraphs 45 and 46 states:
Firearms
45 The carrying and use of firearms for personal protection or protection of a ship is strongly
discouraged.
46 Carriage of arms on board ship may encourage attackers to carry firearms thereby escalating an
already dangerous situation, and any firearms on board may themselves become an attractive
target for an attacker. The use of firearms requires special training and aptitudes and the risk of
accidents with firearms carried on board ship is great. In some jurisdictions, killing a national
may have unforeseen consequences even for a person who believes he has acted in self
defence.
Pirates/armed robbers have succeeded in entering ship
51 Early detection of potential attacks must be the first line of defence, action to prevent the attackers
actually boarding the second, but there will be incidents when attackers succeed in boarding a ship.
The majority of pirates and armed robbers are opportunists seeking an easy target and time may not
be on their side, particularly if the crew are aware they are on board and are raising the alarm.
However, the attackers may seek to compensate for the pressure of time they face by escalating
their threats or the violence they employ.
When attackers are on board the actions of the master and crew should be aimed at:
.1 securing the greatest level of safety for those on board the ship;
.2 seeking to ensure that the crew remain in control of the navigation of the ship; and
.3 securing the earliest possible departure of the attackers from the ship.
52 The options available to the master and crew will depend on the extent to which the attackers have
secured control of the ship, e.g. by having gained access to the bridge or engine room, or by seizing
crew members who they can threaten, to force the master or crew to comply with their wishes.
However, even if the crew are all safely within secure areas, the master will always have to
consider the risk to the ship the attackers could cause outside those areas, e.g. by using firebombs to
start fires on a tanker or chemical carrier.
53 If the master is certain that all his/her crew are within secure areas and that the attackers cannot
gain access or by their actions outside the secure areas they do not place the entire ship at imminent
risk, then he/she may consider undertaking evasive manoeuvres of the type referred to above to
encourage the attackers to return to their craft.
54 The possibility of a sortie by a well-organized crew has, in the past, successfully persuaded
attackers to leave a ship but the use of this tactic is only appropriate if it can be undertaken at no
risk to the crew. For an action like this to be attempted the master must have clear knowledge of
where the attackers are on the ship, that they are not carrying firearms or other potentially lethal
weapons and that the number of crew involved significantly outnumbers the attackers they will
face. If a sortie party can use water hoses, they stand an increased chance of success. The intention

should be to encourage the attackers back to their craft. Crew members should not seek to come
between the attackers and their craft nor should they seek to capture attackers as to do so may
increase the resistance the attackers offer which will, in turn, increase the risk faced by members of
the sortie party. Once outside the secure area, the sortie party should always stay together. Pursuit
of an individual attacker by a lone crew member may be attractive but if it results in the crew
member being isolated and seized by the attackers, the advantage turns to the attackers. Crew
members should operate together and remain in constant communication with the bridge and should
be recalled if their line of withdrawal to a secure area is threatened.
55 If the crew do apprehend an attacker, he/she should be placed in secure confinement and well cared
for. Arrangements should be made to transfer him/her to the custody of officers of the security
forces of a coastal State at the earliest possible opportunity. Any evidence relating to this activities
should also be handed over to the authorities who take him/her into custody. The pirates/armed
robbers begin to gain control and take one or more of the ship’s crew into their custody
56 If the attackers have gained control of the engine room or bridge, have seized crew members or can
pose an imminent threat to the safety of a ship, the master or officer in charge should remain calm
and, if possible, seek to negotiate with the attackers with the intention of maintaining the crew’s
control over the navigation of the ship, the safe return of any hostages they may hold and the early
departure of the attackers from the ship. There will be many circumstances when compliance with
the attackers’ demands will be the only safe alternative and when resistance or obstruction of any
kind could be both futile and dangerous.
57 In the event of attackers gaining temporary control of the ship, crew members should, if it is safe
and practicable, leave Close Circuit Television (CCTV) records running.
58 As there have been occasions when entire crews have been locked up, consideration should be
given to secreting equipment within areas in which the crew could be detained to facilitate their
early escape. The pirates/armed robbers have stolen property/money, etc.
59 At this stage it is essential that the pirates/armed robbers are assured that they have been given
everything they demand and a strong reassurance that nothing has been secreted may persuade the
pirates/armed robbers to leave. The pirates/armed robbers start to disembark from the ship
60 If the crew are in their secure positions, it would be unwise of them to leave this security until it is
confirmed that the pirates/armed robbers have left the ship. The pirates/armed robbers have
disembarked from the ship
61 A pre-arranged signal on the ship’s siren will alert the crew to the “all clear”.
209
F. Case Law on Vested Rights (Sorted by Year)

(1) Calder v. Bull, 3 Dall 386 (1796)
A right vested in a citizen means that he has the power to do certain actions, or to
possess certain things, according to the law of this land.
(2). Marbury v. Madison 5 U.S. 137, 163 (1803)
“If he has a right, and that right has been violated, do the laws of his country
afford him a remedy? [5 U.S. 137, 163] The very essence of civil liberty certainly
consists in the right of every individual to claim the protection of the laws,
whenever he receives an injury. One of the first duties of government is to afford
that protection. In Great Britain the king himself is sued in the respectful form of
a petition, and he never fails to comply with the judgment of his court.
In the third volume of his Commentaries, page 23, Blackstone states two cases in
which a remedy is afforded by mere operation of law.
‘In all other cases,’ he says, ‘it is a general and indisputable rule, that
where there is a legal right, there is also a legal remedy by suit or action
at law whenever that right is invaded.’
And afterwards, page 109 of the same volume, he says, ‘I am next to consider
such injuries as are cognizable by the courts of common law. And herein I shall
for the present only remark, that all possible injuries whatsoever, that did not fall
within the exclusive cognizance of either the ecclesiastical, military, or maritime
tribunals, are, for that very reason, within the cognizance of the common law
courts of justice; for it is a settled and invariable principle in the laws of England,
that every right, when withheld, must have a remedy, and every injury its proper
redress.’
The government of the United States has been emphatically termed a government
of laws, and not of men. It will certainly cease to deserve this high appellation, if
the laws furnish no remedy for the violation of a vested legal right.
If this obloquy is to be cast on the jurisprudence of our country, it must arise
from the peculiar character of the case.”
(3). Cockrum v. State, 24 Texas 394 (1859)
“The object of the clause [Second Amendment] first cited, has reference to the
perpetuation of free government, and is based on the idea, that the people cannot
be effectually oppressed and enslaved, who are not first disarmed. The clause
cited in our bill of rights, has the same broad object in relation to the government,
and in addition thereto, secures a personal right to the citizen. The right of a
citizen to bear arms, in the lawful defense of himself or the state, is absolute. He
does not derive it from the state government, but directly from the sovereign
convention of the people that framed the state government. It is one of the “high
powers” delegated directly to the citizen, and “is excepted out of the general
powers of government.” A law cannot be passed to infringe upon or impair it,
because it is above the law, and independent of the law-making power.”

(4). Wilson v. State, 33 Arkansas, 557, at 560 (1878) (striking a ban on open
carry)
“[T]o prohibit the citizen from wearing or carrying a war arm, except upon his
own premises or when on a journey traveling through the country with baggage,
or when acting as or in aid of an officer, is an unwarranted restriction upon his
constitutional right to keep and bear arms. If cowardly and dishonorable men
sometimes shoot unarmed men with army pistols or guns, the evil must be
prevented by the penitentiary and gallows, and not by a general deprivation of a
constitutional privilege.”)
(5). Union Pacific Railway Company v. Botsford, 141 U.S. 250, at 251 (1891)
“Limiting government officials’ power to stop, search, and seize private citizens
was long a guiding principle of American Jurisprudence. The Supreme Court
decreed in 1891, “No right is held more sacred, or is more carefully guarded, by
the common law, than the right of every individual to the possession and control
of his own person, free from all restraint or interference of others, unless by clear
and unquestionable authority of law.” 412
(6). Yick Wo v. Hopkins, 118 U.S. 356, at 369 (1886)
When we consider the nature and the theory of our institution of government . . .
we are constrained to conclude that they do not mean to leave room for the play
and action of purely personal and arbitrary power . . . . The very idea that one
man may be compelled to hold his life, or the means of living, or any material
right essential to the enjoyment of life, at the mere will of another, seems
intolerable in any country where freedom prevails, as being the essence of
slavery itself. 413
(7) Coppage v. Kansas, 236 U.S. 1 (1915) [Unconsitutional Conditions]
“The Fourteenth Amendment recognizes “liberty” and “property” as coexistent
human rights, and debars the states from any unwarranted interference with
either.
Since a state may not strike down the rights of liberty or property directly, it may
not do so indirectly, as by declaring in effect that the public good requires the
removal of those inequalities that are but the normal and inevitable result of the
exercise of those rights, and then invoking the police power in order to remove
the inequalities, without other object in view.
The Fourteenth Amendment debars the states from striking down personal liberty
or property rights or materially restricting their normal exercise excepting so far
as may be incidentally necessary for the accomplishment of some other and
paramount object, and one that concerns the public welfare. The mere restriction
of liberty or of property rights cannot, of itself, be denominated “public welfare”
412
James Bovard, LOST RIGHTS: THE DESTRUCTION OF A MERICAN LIBERTY, Palgrace, New York, ISBN
0-312-12333-7; at 228.
413
Id. at 49.
211
and treated as a legitimate object of the police power, for such restriction is the
very thing that is inhibited by the Amendment.”
The liberty protected by the 14th Amendment to the Federal Constitution may
not be interfered with, under the guise of protecting the public interests, by
legislative action which is arbitrary or without reasonable relation to some
purpose within the competency of the state to effect. . . . The liberty guaranteed
by the 14th Amendment to the Federal Constitution denotes not merely freedom
from bodily restraint, but also the right of the individual to contract, to engage in
any of the common occupations of life, to acquire useful knowledge, to marry,
establish a home and bring up children, to worship God according to the dictates
of his own conscience, and generally to enjoy those privileges long recognized at
common law as essential to the orderly pursuit of happiness by free men.185
Meyeri v. Nevada, 262 U.S. 390 (1923), 43 S.Ct. 625, 29 ALR 1446, 67 L.Ed.
1042. The due process clause forbids arbitrary deprivations of liberty;
where a person’s good name, reputation, honor, or integrity is at stake
because of what the government is doing to him, 414 the minimal requirements
of the clause must be satisfied. Goss v. Lopez, 419 U.S. 565 (1975), 95 S.Ct. 729,
42 L.Ed. 725. Mere public intolerance or animosity cannot constitutionally
justify the deprivation of a person’s physical liberty. O’Connor v. Donaldson,
422 U.S. 563 (1975), 95 S.Ct. 2486, 45 L.Ed.2d 396. Constitutional rights may
not be denied simply because of hostility to their assertion or exercise. 415
Watson v. Memphis, 373 U.S. 526 (1963), 83 S.Ct. 1314, 10 L.Ed.2d. 529, Cox v.
Lousiana, 379 U.S. 536 (1965), 85 S.Ct. 453, 13 L.Ed.2d. 471. The Bill of Rights
in general, and the due process clause of the Fourteenth Amendment in
particular, were designed to protect fragile values of a vulnerable citizenry from
the overbearing concern for efficiency and efficacy which may characterize
praiseworthy government officials no less, and perhaps more, than mediocre
ones. Fuentes v. Shevin, 407 U.S. 67 (1972), 92 S.Ct. 1983, 32 L.Ed.2d. 556.
Both the substantive and the procedural protections of the due process clause of
the Federal Constitution’s Fourteenth Amendment may be triggered when the
state, by the affirmative, by the affirmative acts of its agents, subjects an
involuntarily confined individual to deprivations of liberty which are not among
those generally authorized by his confinement. De Shaney v. Winnebago County
Dept. of Social Services, 489 U.S. 189 (1989), 109 S.Ct. 998, 103 L.Ed. 249.
414
The U.S. Coast Guard retaliated for being named as defendants in my civil RICO Act case and conspired with the U.S.
Department of Transportation, Office of Security, to issue Bar Notices in 2004 and 2006 prohibiting me from visiting any
DOT, FAA, USCG headquarters buildings subject me to arrest and prosecution just because I am exercising my Right to
Petition under the First Amendment for my Seventh Amendment right to a civil jury trial. This Court denied or ignored my
Motion for an Injunction against the Bar Notices. The Bar Notices remain in effect even though they violate my rights to
conduct discovery or pursue evidence supporting my case. The U.S. Marshals Service has threatened me with arrest if I
attempt to make citizen’s arrest of federal judges or court clerks even when I have evidence of felony extortion under color of
law, 18 U.S.C. § 872 in violation of 28 U.S.C. § 1916. I have an appeal to the U.S. Supreme Court from the 8th Circuit on this
judicial extortion of filing fees, No. 07m24, my motion to proceed as a seaman without paying the filing fees under the new
rule change to Rule 40.2. The U.S. Supreme Court forced me to pay their filing fees in Nos. 03-145 and 04-1150. My Petition
for Writ of Certiorari includes my Citizen’s Arrest Warrant of Chief Justice John G. Roberts for signing off on two court
orders when he was a judge at the DC Circuit.
415
That includes the public intolerance or animosity of people who want to exercise their Second Amendment right to openly
keep and bear arms in intrastate and interstate travel under the Thirteenth and Fourteenth Amendments.

In examining procedural due process questions under the Federal Constitution’s

Fourteenth Amendment, a court follows a two-step process in which the first step
asks whether there exists a liberty or property interest which has been interfered
with by the state, and the second step examines whether the procedures attendant
upon that deprivation are constitutionally sufficient; to constitute a liberty or
property interest for Fourteenth Amendment purposes, an interest must rise to
more than an abstract need or desire and must be based on more than a unilateral
hope; and an individual claiming a protected interest must have a legitimate
claim of entitlement to it. Kentucky Dept. Of Corrections v. Thompson, 490 U.S.
454 (1989), 109 S.Ct. 1904, 104 L.Ed.2d. 506.
The Constitution requires that the powers of government must be so exercised as
not, in attaining a permissible end, unduly to infringe a constitutionally protected
freedom. Cantwell v. Connecticut, 310 U.S. 296 (1940), 60 S.Ct. 900, 128 ALR
1352, 84 l L.Ed. 1213, Aptheker v. Secretary of State, 378 U.S. 500 (1964), 84
S.Ct. 1659, 12 L.Ed. 992. Even though a governmental purpose be legitimate and
substantial, that purpose cannot be pursued by means that broadly stifle
fundamental personal liberties when the end can be more narrowly achieved; the
breadth of legislative abridgment must be reviewed in the light of less drastic
means for achieving the same basic purpose. Shelton v. Tucker, 364 U.S. 479
(1960), 81 S.Ct. 247, 5 L.Ed. 2d 231, Aptheker v. Secretary of State, 378 U.S.
500 (1964), 84 S.Ct. 1659, 12 L.Ed. 992. Acts in themselves legal lose that
character when they became part of a unlawful scheme. 416 Steele v. Bulova
Watch Co. 344 U.S. 280 (1952), 73 S.Ct. 252, 97 L.Ed. 319. Public officials
may become tortfeasors by exceeding the limits of their authority. Land v.
Dollar 330 U.S. 731 (1947), 67 S.Ct. 1009, 91 L.Ed. 1209. To sustain an action
on the case it must be shown that the defendant has done some wrong, that
is, has violated some right of the plaintiff, and that damage has resulted as a
direct and proximate consequence of the commission of that wrong; a mere
conspiracy or combination to do injurious acts is not sufficient.417 Adler v.
Fenton, 24 How. 407., 16 L.Ed. 696. No consideration need be alleged or
proved in an action on the case for misfeasance, as the gist of such an action
is the misfeasance. Garlandi v. Davis. 4 How. 131, 11 L.Ed. 907. Intentionally
to do that which is calculated in the ordinary course of events to damage,
and which does, in fact, damage another in that other person’s property or
trade, is actionable if done without just cause or excuse; the intentional
infliction of such damage upon another, without justification or excuse, is
416
Denial of a motion, dismissal of a Second Amendment case in a single instance or even in a few instances may be
judicially proper. But 5 years of denials of my pleadings and dismissals of my Second Amendment cases becomes an
unlawful scheme. Hence my civil RIOC Act case alleging the United States and the United Nations of racketeering an
unlawful and an unconstitutional protection scheme over the Second Amendment.
417
In 2002 the U.S. Coast Guard denied my application for an endorsement on my Merchant Mariner’s Document (ID Card)
for “National Open Carry Handgun” in respect to completing federally required small arms training as a prerequisite for
employment as an Able Seaman aboard a U.S. Government ammunition ship coming out of the shipyard in Newport News,
Virginia. The Coast Guard admitted to the fact that their were (and still) no federal laws or regulations for or against a
“National Open Carry Handgun.” Even though the proper course of action would be to rely on the Second Amendment in the
absence of federal laws and regulations for guidance the Coast Guard officer relied on personal judgment to determine that
there would not provide any benefit to marine safety or security. This occurred less than a year after the terrorist attacks on
September 11, 2001.
213
malicious in law.418 Hitchman Coal & Coke Co. v. Mitchell, 245 U.S. 229
(1917), 38 S.Ct. 65, 62 L.Ed. 260. The right – whether it be called liberty or
property – has value, and to interfere with this right without just cause is
unlawful. Dorchyi v. Kansas, 272 U.S. 306 (1926), 47 S.Ct. 86, 71 L.Ed. 248.
(8). Olmstead v. United States 277 U.S. 438, 485 (1928)
Justice Brandeis, dissenting:
Decency, security and liberty alike demand that government officials shall be
subjected to the same rules of conduct that are commands to the citizen. In a
government of laws, existence of the government will be imperiled if it fails to
observe the law scrupulously. Our Government is the potent, the omnipresent
teacher. For good or for ill, it teaches the whole people by its example. Crime is
contagious. If the Government becomes a lawbreaker, it breeds contempt for law;
it invites every man to become a law unto himself; it invites anarchy. To declare
that in the administration of the criminal law the end justifies the means -- to
declare that the Government may commit crimes in order to secure the conviction
of a private criminal -- would bring terrible retribution. Against that pernicious
doctrine this Court should resolutely set its face.
(9). Murdock v. Pennsylvania 319 US 105 (1942)
“A state may not impose a charge for the enjoyment of a right granted by the
federal constitution . . . A license tax applied to activities guaranteed by the First
Amendment would have the same destructive effect. It is true that the First
Amendment, like the commerce clause, draws no distinction between license
taxes, fixed sum taxes, and other kinds of taxes. But that is no reason why we
should shut our eyes to the nature of the tax and its destructive influence. The
power to impose a license tax on the exercise of these freedoms is indeed as
potent as the power of censorship which this Court has repeatedly struck down.”
Lovell v. Griffin, 303 U.S. 444 (1938), 58 S.Ct. 666; Schneider v. State, 308 U.S.
147 (1939); Cantwell v. Connecticut, 310 U.S. 296, 306 (1940), 60 S.Ct. 900,
904, 128 A.L.R. 1352; Largent v. Texas, 318 U.S. 418 (1943), 63 S.Ct. 667, 87
L.Ed. --; Jamison v. Texas, 318 U.S. 413 (1943). It was for that reason that the
dissenting opinions in Jones v. Opelika, 316 U.S. 584 (1942), stressed the nature
of this type of tax. 316 U.S. at pages 607-609, 620, 623, 62 S.Ct. at pages 1243,
1244, 1250, 1251, 141 A.L.R. 514.)
(10). West Virginia State Board of Education v. Barnette 319 U.S. 624, 638-
639 (1943)
Justice Robert H. Jackson:
The very purpose of a Bill of Rights was to withdraw certain subjects from the
vicissitudes of political controversy, to place them beyond the reach of majorities
and officials and to establish them as legal principles to be applied by the courts.
One’s right to life, liberty, and property, to free speech, a free press, freedom of
worship and assembly, and other fundamental rights may not be submitted to
418
The combined effect of the federal courts blocking my cases from going to trial with the U.S. Marshals Service, the U.S.
Marshals Service, and the U.S. Coast Guard as principal parties to harassment and obstructions of justice were malicious acts
in law, and therefore actionable. Meaning that I can proceed to trial.

vote; they depend on the outcome of no elections. In weighing arguments of the

parties it is important to distinguish between the due process clause of the
Fourteenth Amendment as an instrument for transmitting the principles of the
First Amendment and those cases in which it is applied for its own sake. The test
of legislation which collides with the Fourteenth Amendment, because it also
collides with the principles of the First, is much more definite than the test when
only the Fourteenth is involved. Much of the vagueness of the due process clause
disappears when the specific prohibitions of the First become its standard.
(11). American Communications Association, C.I.O., et al v. Douds, Regional
Director of the National Labor Relations Board, 339 U.S. 382, 442-443 (1950)
Justice Robert H. Jackson, concurring and dissenting, each in part to Chief Justice Fred M. Vinson’s opinion
delivered to the Court:
“It is not the function of our Government to keep the citizen from falling into
error; it is the function of the citizen to keep the Government from falling into
error.”
(12). Lucas v. Colorado General Assembly 377 U.S. 713, 736-737 (1964)
Chief Justice Warren:
A citizen’s constitutional rights can hardly be infringed simply because a
majority of the people choose that it be.
(13). Jordan v. Gardner 986 F.2d 1521 (9th Cir. 1993)
Official knowledge of risk of harm and failure to act to prevent the harm
constitute deliberate indifference which is established by showing knowledge of
risk of impending harm that is easily preventable and the failure to prevent it.
(14). People v. Banks 6 Cal.4th 926, 949 (1993)
Justice Panelli, dissenting:
If we abandon constitutional protections to combat every abhorrent crime which
has captured the public’s attention, we will find ourselves naked and unprotected
in a hurry.
G. Case Law on the Private Right of Action (Sorted by Year)
(1). United States v. Lee, 106 U.S. 196, at 220 (1882)
“No man in this country is so high that he is above the law. No officer of the law
may set that law at defiance with impunity. All the officers of the government,
from the highest to the lowest, are creatures of the law and are bound to obey it.
It is the only supreme power in our system of government, and every man who
by accepting office participates in its functions is only the more strongly bound
to submit to that supremacy, and to observe the limitations which it imposes upon
the exercise of the authority which it gives.”
(2). Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370 (7th Cir.
1985)
(Treaties made by the United States are the law of the land, U.S. Const. art. VI,
but if not implemented by appropriate legislation they do not provide the basis
215
for a private lawsuit unless they are intended to be self-executing. Tel-Oren v.

Libyan Arab Republic, 726 F.2d 774, 808 (D.C.Cir.1984) (Bork, J., concurring),
cert. denied, --- U.S. ----, 105 S.Ct. 1354, 84 L.Ed.2d 377 (1985); Dreyfus v. Von
Finck, 534 F.2d 24, 30 (2d Cir.), cert. denied, 429 U.S. 835, 97 S.Ct. 102, 50
L.Ed.2d 101 (1976). Whether a treaty is self-executing is an issue for judicial
interpretation, RESTATEMENT (SECOND) OF FOREIGN RELATIONS LAW OF THE
UNITED STATES, Sec. 154(1) (1965), and courts consider several factors in
discerning the intent of the parties to the agreement:
(1) the language and purposes of the agreement as a whole;
(2) the circumstances surrounding its execution;
(3) the nature of the obligations imposed by the agreement;
(4) the availability and feasibility of alternative enforcement mechanisms;
(5) the implications of permitting a private right of action;419 and
(6) the capability of the judiciary to resolve the dispute.
Tel-Oren, 726 F.2d at 808-10 (Bork, J., concurring); United States v. Postal, 589 F.2d 862, 876-77 (5th Cir.), cert.
denied, 444 U.S. 832, 100 S.Ct. 61, 62 L.Ed.2d 40 (1979); People of Saipan v. United States Dept. of Interior,
502 F.2d 90, 97 (9th Cir.1974), cert. denied, 420 U.S. 1003, 95 S.Ct. 1445, 43 L.Ed.2d 761 (1975); Sei Fujii v.
State, 38 Cal.2d 718, 721-24, 242 P.2d 617, 620-22 (1952). Of course, if the parties’ intent is clear from the
treaty’s language courts will not inquire into the remaining factors. See, e.g., Cardenas v. Smith, 733 F.2d 909,
918 (D.C.Cir.1984)).
(3). Robert A. Buell, v. Betty Mitchell, Warden, No. 99-4271, 6th Cir., 274 F.3d
at 373 (December 4, 2001)
The court’s discussion in [Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929, 935,
940 (D.C. Cir. 1988)] of when a rule becomes a customary and, later, peremptory norm, or jus cogens, is
instructive:
[C]ustomary international law is continually evolving. At a crucial stage of that
process, ‘[w]ithin the relevant states, the will has to be formed that the rule will
become law if the relevant number of states who share this will is reached.’
Meijers, HOW IS INTERNATIONAL LAW MADE?, 9 Netherlands Y.B. Int’l L. 3, 5
(1978). As to what constitutes the necessary number of ‘relevant states,’ the
[International Court of Justice] has said that ‘State practice . . . should have been
both extensive and virtually uniform in the sense of the provision invoked.’ The
North Sea Continental Shelf Case (Judgment), 1969 I.C.J. 12, 43. Finally, in
order for such a customary norm of international law to become a peremptory
norm, there must be a further recognition by ‘the international community . . . as
a whole [that this is] a norm from which no derogation is permitted.’ VIENNA
CONVENTION [ON THE LAW OF TREATIES,] art. 53 (emphasis added).
419

(4). Robert A. Buell, v. Betty Mitchell, Warden, No. 99-4271, 6th Cir., 274 F.3d
at 373 (December 4, 2001)
Courts that have determined that private rights of actions exist under customary
norms of international law have done so where acts were committed on a foreign
citizen or acts were committed by a foreign government or government official.
See Hawkins, 33 F. Supp. 2d at 1255 (citing cases). “There is no reported case of
a court in the United States recognizing a cause of action under jus cogens norms
of international law for acts committed by United States government officials
against a citizen of the United States.” Ibid; . . . Christenson further notes that
“[w]hile some language in several decisions of courts of appeal states that U.S.
courts have recognized the concept of jus cogens as part of U.S. law, not a single
case has been decided on that basis alone without having been overturned.” Ibid.
(citing Princz v. F.R.G., 26 F.3d 1166 (D.C. Cir. 1994) (reversing district court’s
reliance on jus cogens in claim of American citizen and Holocaust survivor who
sued the Federal Republic of Germany for damages based on having been a
prisoner in Nazi concentration camps)). ¶ We believe that the same logic applies
in this case, though Buell, a United States citizen, is not asserting a private right
of action, but instead is using international law as a defense against actions taken
by Ohio’s government that comply fully with the United States Constitution. He
is attempting to interpose customary international law as a defense against “acts
committed by . . . government officials against a citizen of the United States.”
Hawkins, 33 F. Supp. 2d at 1255. If anything, the standards for implying a
civil private right of action under international law should be less than those
for using international law as a defense against otherwise lawful government
action under the Constitution. 420).
(5). Robert A. Buell, v. Betty Mitchell, Warden, No. 99-4271, 6th Cir. (December
4, 2001)
It is a long-standing principle under United States law that “[i]nternational law is
part of our law, and must be ascertained and administered by the courts of justice
of appropriate jurisdiction as often as questions of right depending upon it are
duly presented for their determination.” The Paquete Habana, 175 U.S. 677, 700
(1900). In order to define what is a “rule of international law,” the Restatement
(Third) of Foreign Relations Law instructs us:
(1) A rule of international law is one that has been accepted as
such by the international community of states:
(a) in the form of customary law;
(b) by international agreement; or
(c) by derivation from general principles common to the
major legal systems of the world.
RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW 102(1) (1987).).
420
217
(6). Diana Renkel v. United States 6th Circuit, No. 05-3420; 456 F.3d 640 (6th
Cir. 2006)
[Footnotes omitted]:
Renkel squarely presents us with one issue on appeal: whether she has an
actionable claim for relief under the Convention Against Torture. This is a purely
legal question, which we review de novo. Singleton v. United States, 277 F.3d
864, 870 (6th Cir. 2002).
Under the federal Constitution, all international treaties in which the United
States enters become part of the “supreme Law of the Land.” U.S. Const. art. VI,
cl. 2. “[T]reaties have the same legal effect as statutes.” United States v.
Emuegbunam, 268 F.3d 377, 389 (6th Cir. 2001) (citing Whitney v. Robertson,
124 U.S. 190, 194 (1888); United States v. Page, 232 F.3d 536, 540 (6th Cir.
2000)). Yet, treaties, like some statutes, do not always directly create rights that a
private citizen can enforce in court. Tel-Oren v. Libyan Arab Republic, 726 F.2d
774, 808 (D.C. Cir. 1984) (Bork, J., concurring). As we explained in
Emuegbunam,
A treaty is primarily a compact between independent nations. It depends for the
enforcement of its provisions on the interest and honor of the governments which
are parties to it. If these fail, its infraction becomes the subject of international
negotiations and reclamation, so far as the injured parties choose to seek redress,
which may in the end be enforced by actual war. It is obvious that with all this
the judicial courts have nothing to do and can give no redress.
Emuegbunam, 268 F.3d at 389 (quoting Head Money Cases, 112 U.S. 580, 598
(1884)); see also Foster v. Neilson, 27 U.S. (2 Pet.) 253, 307 (1829) (“The
judiciary is not that department of the government, to which the assertion of its
interests against foreign powers is confided; and its duty commonly is to decide
upon individual rights, according to those principles which the political
departments of the nation have established.”), overruled in part on other
grounds, United States v. Percheman, 32 U.S. (7 Pet.) 51 (1833). “In fact, courts
presume that the rights created by an international treaty belong to a state and
that a private individual cannot enforce them.” Emuegbunam, 268 F.3d at 389
(emphasis added, citations omitted).
Some treaties may, however, directly provide for private rights of action. “Self-
executing treaties” are those treaties which do not require domestic legislation to
give them the full force of law. See TWA v. Franklin Mint Corp., 466 U.S. 243,
252 (1984); Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 968 (4th Cir.
1992). Such treaties can create private rights enforceable in court. On the other
hand, “non-self-executing” treaties do require domestic legislation to have the
force of law. Auguste v. Ridge, 395 F.3d 123, 133 n.7 (3d Cir. 2005). For a non-
self-executing treaty, any private claim must be based on a violation of the
domestic law implementing the provisions of that treaty. Raffington v. Cangemi,
399 F.3d 900, 903 (8th Cir. 2005). In other words, federal courts “are bound to
give effect to international law and to international agreements, except that a
‘non-self-executing’ agreement will not be given effect as law in the absence of
necessary authority.” Buell v. Mitchell, 274 F.3d 337, 372 (6th Cir. 2001)
(quoting Restatement (Third) of Foreign Relations Law § 111 (1987)).

“Whether a treaty is self-executing is an issue for judicial interpretation . . . .”

Frolova v. U.S.S.R., 761 F.2d 370, 373 (7th Cir. 1985) (citation omitted). In
general, we first look to the express terms of the treaty, and then to “the treaty as
a whole” to determine whether it evidences an intent to be self-executing and to
create a private right of action. See Tel-Oren, 726 F.2d at 808 (Bork, J.,
concurring) (citation omitted).
H. Case Law on Constitutional Rights (Sorted by Year)
(1). United States v. Lee, 106 U.S. 196, at 220 (1882)
“No man in this country is so high that he is above the law. No officer of the law
may set that law at defiance with impunity. All the officers of the government,
from the highest to the lowest, are creatures of the law and are bound to obey it.
It is the only supreme power in our system of government, and every man who
by accepting office participates in its functions is only the more strongly bound
to submit to that supremacy, and to observe the limitations which it imposes upon
“It is the only supreme power in our system of government, and every man who,
by accepting office participates in its functions, is only the more strongly bound
to submit to that supremacy, and toobserve the limitations which it imposes on
(2). Juliard v. Greeman, 110 U.S. 421 (1884)
Supreme Court Justice Field, “There is no such thing as a power of inherent
sovereignty in the government of the United States... In this country, sovereignty
resides in the people, and Congress can exercise power which they have not, by
their Constitution, entrusted to it. All else is withheld.”
(3). Kentucky Railroad Tax Cases, 115 U.S. 321, 337 (1885)
“The rule of equality... requires the same means and methods to be applied
impartially to all the constitutents of each class, so that the law shall operate
equally and uniformly upon all persons insimilar circumstances”.
(4). Boyd v. United States, 116 U.S. 616 at 635 (1885)
Justice Bradley, “It may be that it is the obnoxious thing in its mildest form; but
illegitimate and unconstitutional practices get their first footing in that way;
namely, by silent approaches and slight deviations from legal modes of
procedure. This can only be obviated by adhering to the rule that constitutional
provisions for the security of persons and property should be liberally construed.
A close and literal construction deprives them of half their efficacy, and leads to
gradual depreciation of the right, as if it consisted more in sound than in
substance. It is the duty of the Courts to be watchful for the Constitutional Rights
of the Citizens, and against any stealthy encroachments thereon. Their motto
should be Obsta Principiis.”
(5). Logan v. United States 144 US 263 (1892)
“When those fundamental rights which are recognized and declared, but not
granted or created, by the Constitution, are thereby guaranteed only against
violation or abridgment by the United States or by the states, and cannot
219
therefore be affirmatively enforced by Congress against unlawful acts of

individuals, yet every right created by, arising under, or dependent upon, the
Constitution of the United States, may be protected and enforced by Congress by
such means and in such manner as it may deem best.”
(6). Duncan v. Missouri, 152 U.S. 377, 382 (1894)
“[T]he privileges and immunities of citizens of the United States protected by the
fourteenth amendment are privileges and immunities arising out of the nature and
essential character of the federal government, and granted or secured by the
constitution; and due process of law and the equal protection of the laws are
secured if the laws operate on all alike, and do not subject the individual to an
arbitrary exercise of the powers of government; . . .”
(7). Mountain Timber Co. v. Washington, 243 US 219 (1917)
“If not warranted by any just occasion, the least imposition is oppressive.”
(8). Miller v. United States 230 F 486 at 489 (1913)
“The claim and exercise of a Constitutional right shall not be converted into a crime.”
(9). Davis v. Wechler, 263 U.S. 22, 24 (1923)
“. . .the assertion of federal rights, when plainly and reasonably made, are not to
be defeated under the name of local practice.”
(10). Olmstad v. United States, 277 U.S. 438 (1928)
“Crime is contagious. If the Government becomes a lawbreaker, it breeds
contempt for law; it invites every man to become a law unto himself; it invites
anarchy.”
(11). Lawrence v. State Tax Commission, 286 US 276, at 282 (1932)
[T]he Constitution, which guarantees rights and immunities to the citizen,
likewise insures to him the privilege of having those rights and immunities
judicially declared and protected when such judicial action is properly invoked.
(12). Perry v. United States, 294 U.S. 330, 358 (1935)
“I do not understand the government to contend that it is any less bound by the
obligation than a private individual would be...” “It is not the function of our
government to keep the citizen from falling into error; it is the function of the
citizen to keep the government from falling into error.”
(13). Smith v. Allwright, 321 U.S. 649 at 664 (1944)
“Constitutional rights would be of little value if they could be . . . indirectly
denied.”
(14). Kent v. Dulles, 357 U.S. 116, 125 (1958)
“The right to travel is a part of the liberty of which the citizen cannot be deprived
without due process of law under the Fifth Amendment.”

(15). Walter Process Equipment v. Food Machinery, 382 U.S. 172 (1965)
In a “motion to dismiss, the material allegations of the complaint are taken as
admitted”. From this vantage point, courts are reluctant to dismiss complaints
unless it appears the plaintiff canprove no set of facts in support of his claim
which would entitle him to relief (see Conley v. Gibson, 355 U.S. 41 (1957)).
(16). Simmons v. United States, 390 U.S. 377 (1968)
“The claim and exercise of a Constitution right cannot be converted into a
crime”... “a denial of them would be a denial of due process of law”.
(17). Chandler v. Judicial Council, 398 U.S. 74, at 140 (1970)
Chief Justice Berger:
“If [judges] break a law, they can be prosecuted.”
(18). Chandler v. Judicial Council, 398 U.S. 74, at 140 (1970)
Justice Black and Douglas in their dissenting opinion, 398 U.S. 74, at 141-142, agreed with Chief Justice
Berger on the point above:
“While judges, like other people, can be tried, convicted, and punished for crimes . . .”
(19). Sherar v. Cullen, 481 F. 2d 946 (1973)
“There can be no sanction or penalty imposed upon one because of his exercise
of constitutional rights.”
(20). Goss v. Lopez, 419 US 565 (1975)
“The due process clause forbids arbitrary deprivations of liberty; where a
person’s good name, reputation, honor, or integrity is at stake because of what
the government is doing to him, the minimal requirements of the clause must be
satisfied.”
(21). United States v. Chadwick, 433 U.S. 1, at 16 (1976)
“ . . . it is deeply distressing that the Department of Justice, whose mission is to
protect the constitutional liberties of the people of the United States, should even
appear to be seeking to subvert them by extreme and dubious legal arguments. It
is gratifying that the Court today unanimously rejects the Government’s
position.”
(22). Owen v. City of Independence 445 U.S. 622, 657 1980)
“The innocent individual who is harmed by an abuse of governmental authority is
assured that he will be compensated for his injury.”
(23). Forrester v. White, 484 U.S. 219, at 227-229 (1988)
This Court has never undertaken to articulate a precise and general definition of
the class of acts entitled to immunity. The decided cases, however, suggest an
intelligible distinction between judicial acts and the administrative, legislative, or
executive functions that judges may on occasion be assigned by law to perform.
Thus, for example, the informal and ex parte nature of a proceeding has not been
thought to imply that an act otherwise within a judge’s lawful jurisdiction was
221
deprived of its judicial character. See Stump v. Sparkman, 435 U.S. 349, 363 , n.
12 (1978). Similarly, acting to disbar an attorney as a sanction for contempt of
court, by invoking a power “possessed by all courts which have authority to
admit attorneys to practice,” does not become less judicial by virtue of an
allegation of malice or corruption of motive. Bradley v. Fisher, 13 Wall., at 354.
[484 U.S. 219, 228] As the Bradley Court noted: “Against the consequences of
[judges’] erroneous or irregular action, from whatever motives proceeding, the
law has provided for private parties numerous remedies, and to those remedies
they must, in such cases, resort.” Ibid.
Administrative decisions, even though they may be essential to the very
functioning of the courts, have not similarly been regarded as judicial acts. In Ex
parte Virginia, 100 U.S. 339 (1880), for example, this Court declined to extend
immunity to a county judge who had been charged in a criminal indictment with
discriminating on the basis of race in selecting trial jurors for the county’s courts.
The Court reasoned:
“Whether the act done by him was judicial or not is to be determined by its
character, and not by the character of the agent. Whether he was a county judge
or not is of no importance. The duty of selecting jurors might as well have been
committed to a private person as to one holding the office of a judge. . . . That the
jurors are selected for a court makes no difference. So are court-criers, tipstaves,
sheriffs, &c. Is their election or their appointment a judicial act?” Id., at 348.
Although this case involved a criminal charge against a judge, the reach of the
Court’s analysis was not in any obvious way confined by that circumstance.
Likewise, judicial immunity has not been extended to judges acting to
promulgate a code of conduct for attorneys. Supreme Court of Virginia v.
Consumers Union of United States, Inc., 446 U.S. 719 (1980). In explaining why
legislative, rather than judicial, immunity furnished the appropriate standard, we
said: “Although it is clear that under Virginia law the issuance of the Bar Code
was a proper function of the Virginia Court, propounding the Code was not an
act of adjudication but one of rulemaking.” Id., at 731. Similarly, in the same
case, we held that judges acting to enforce the Bar Code would be treated like
prosecutors, and thus would [484 U.S. 219, 229] be amenable to suit for
injunctive and declaratory relief. Id., at 734-737. Cf. Pulliam v. Allen, 466 U.S.
522 (1984). Once again, it was the nature of the function performed, not the
identity of the actor who performed it, that informed our immunity analysis.
(24). Mireles v. Waco, 502 U.S. 9, at 11-12 (1991)
Like other forms of official immunity, judicial immunity is an immunity from
suit, not just from ultimate assessment of damages. Mitchell v. Forsyth, 472 U.S.
511, 526 (1985). Accordingly, judicial immunity is not overcome by allegations
of bad faith or malice, the existence of which ordinarily cannot be resolved
without engaging in discovery and eventual trial. Pierson v. Ray, 386 U.S., at
554 (“[I]mmunity applies even when the judge is accused of acting
maliciously and corruptly”). See also Harlow v. Fitzgerald, 457 U.S. 800, 815 -
819 (1982) (allegations of malice are insufficient to overcome qualified
immunity).
Rather, our cases make clear that the immunity is overcome in only two sets
of circumstances. First, a judge is not immune from liability for nonjudicial

actions, i.e., actions not taken in the judge’s judicial capacity. Forrester v.
White, 484 U.S., at 227 -229 (1988); Stump v. Sparkman, 435 U.S. 349, at 360
(1978).
(25). Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993)
“[A] complaint should not be dismissed unless ìt appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.’” McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 246
(1980) (quoting Conley v. Gibson, 355 U.S. 41, 45 -46 (1957)).
223

PART 8. PLAINTIFF’S RELIGIOUS RIGHTS DECLARATIONS

Part 19. The Claims
Part 25. Damages
PART 8. PLAINTIFF’S RELIGIOUS

A. God, Guns, & Freedom

There is a direct connection between religious freedom of the First Amendment and armed self-defense of
the Second Amendment that gun control activists refuse to admit or acknowledge. The Second Amendment is a
religious right! Congress is prohibited from enacting legislation by the First Amendment in that “Congress shall
make no law respecting an establishment of religion”, “or, the right of the people peaceably to assemble”. Gun
control laws are laws against God and Christianity and violates our religious freedom. Some say this
connection is a very weak link or there is no connection to the Second Amendment at all. The history of the world
is prima facie evidence that this connection is real and still applies very strongly today.
B. What Rights Do We Have?
(1). Natural Rights (Black’s Law Dictionary)
Those which grow out of nature of man and depend upon his personality and are distinguished from those which
are created by positive laws enacted by a duly constituted government to create an orderly civilized society.
(2). Civil Rights (Civil Liberties) (Black’s Law Dictionary)
Personal, natural rights guaranteed and protected by the Constitution; e.g. freedom of speech, press, freedom from
discrimination, etc. Body of law dealing with natural liberties, shorn of excesses which invade equal rights of
others. Constitutionally, they are restraints on government. (Black’s Law Dictionary)
(3). Religious Freedom (Black’s Law Dictionary)
Within the Constitution (First Amendment) embraces not only the right to worship God according to the dictates
of one’s conscience, but also the right to do, or forbear to do, any act, for conscience sake, the doing or
forbearing of which is not inimical to the peace, good order, and morals of society.
C. Second Amendment As A Religious Right Explained
(1). Inherent Rights Defined
CORPUS JURUS SECUNDUM - Volume 14 - Civil Rights
Section II: Rights Protected and Discrimination Prohibited Generally
A. IN GENERAL
§ 12. General Considerations “Apart from Constitutional or statutory provisions, inherent rights will be
upheld by the courts against any action which would result in discrimination between persons of different races,
creeds, or color.”
Black’s Law Dictionary defines inherent rights as “One which abides in a person and is not given from
something or someone outside of itself. A right which a person has because he is a person. See inalienable rights.
(2). Inalienable Rights Defined
Continuing in Black’s Law Dictionary, inalienable rights are defined as “are rights which are not
capable of being surrendered or transferred without the consent of the one possessing such rights; e.g., freedom
of speech or religion, duke process, and equal protection of the laws;. See Bill of Rights.
The Bill of Rights, defined by Black’s Law Dictionary, are the first ten amendments to the United States
Constitution providing for individual rights, freedoms, and protections.” Notice that the Second Amendment is
within those first ten amendments as being an “individual right.”
(3). Inherent human right includes creeds
CORPUS JURUS SECUNDUM (continued Under Library Reference section.)
PART 8. PLAINTIFF’S RELIGIOUS226

RIGHTS DECLARATIONS
It is recognized, without reference to Constitutional or statutory provisions, that an inherent human right will be
upheld by the courts against action by any person or department of government that would destroy such a right or
result in discrimination in the manner in which enjoyment is to be permitted as between persons of different races,
creeds, or color.
(4). Creed Defined as Confession or Articles of Faith, i.e. The Bible
Black’s Law Dictionary defines creed as “confession or articles of faith, formal declaration of religious
belief, any formula or confession of religious faith and a system of religious belief.” The King James Bible fits
this definition for creed as it was the predominant system of religious belief at the time of the debate over the
United States Constitution.
D. The Unrecognized And Denied Religious Connection To The Second Amendment
The Second Amendment has a religious origin, the right of self-defense with arms of equal effectiveness
of the standing army’s weapons. In Biblical times they were rocks, sticks, clubs, spears, and swords. Today it
encompasses full-automatic and semi-automatic weapons. Prior to prohibition of alcohol possession and use of
full-automatic weapons for lawful purposes was not prohibited. It was the governments interference and
intervention in morality and through the unwritten law of unintended consequences, this country has taken the
slippery slope of gun control. Such a slope has had disastrous results in every country on Earth throughout
recorded history, especially in this century, of which the result was genocide committed by the country’s own
government. The United States is not exempt from this disastrous “cause and effect” equation. Remember Waco
and Ruby Ridge for recent history. Remember the Indian wars of the early 1800s, and Kent State and the
Veterans’ Bonus March on Washington DC. (See Appendix X, p. 93)
The Jews for the Preservation of Firearms Ownership have published two books worth reading.421 These
two books points out that the path our country is presently taking with gun control has only disaster in its future.
These facts must not be ignored. In addition to these references the United States Code already has provisions to
reverse the trend of gun control in place that the United States legally recognizes genocide as unlawful. Yet where
it is proven that genocide cannot occur in a nation where its citizens are lawfully armed but only occurs in nations
where full gun control exists, gun confiscation soon followed does genocide eventually occur. For the United
States to recognize genocide as a crime against humanity and yet actively pursue the very path that leads to
genocide, incrementally increasing the number of gun control laws is a schizoidism of law, A.K.A. Conflict
of Law.
421
Simkin, Jay, Aaron Zelman, and Alan M. Rice, Lethal Laws: “Gun Control” is the Key to Genocide:
Documentary Proof: Enforcement of “Gun Control” Laws Clears the Way for Governments to Commit
Genocide and Jay Simkin & Aaron Zelman, “Gun Control” Gateway to Tyranny: The Nazi Weapons
Law, 18 March 1938: Original German Text and Translation, with an Analysis that Shows U.S. “Gun
Control” Laws Have Nazi Roots. Jews for the Preservations of Firearms Ownership, Inc., Milwaukee,
Wisconsin.

(1). The Sword and The Bible as Articles of Faith, A System of Religious
Belief
Sword Joshua 24:12 2 Samuel 23:10 Psalms 37:15
Genesis 3:24 Judges 1:8 2 Samuel 24:9 Psalms 42:10
Genesis 27:40 Judges 1:25 1 Kings 1:51 Psalms 44:3
Genesis 34:26 Judges 7:14 1 Kings 3:24 +(2) Psalms 57:4
Exodus 5:3 Judges 7:20 1 Kings 19:10 Psalms 64:3
Exodus 15:9 Judges 8:10 1 Kings 19:17 +(2) Psalms 78:62
Leviticus 26:6 Judges 20:15 2 Kings 11:20 Proverbs 5:4
Leviticus 26:25 Judges 20:35 1 Chronicles 5:18 Song of Solomon 3:8
Leviticus 26:33 Judges 20:37 1 Chronicles 10:4 +(2) Isaiah 1:20
Leviticus 26:36 Judges 20:46 1 Chronicles 10:5 Isaiah 2:4
Leviticus 26:37 Judges 20:48 1 Chronicles 21:5 +(2) Isaiah 3:25
Numbers 14:3 Judges 21:10 1 Chronicles 21:12 +(2) Isaiah 13:15
Numbers 14:43 1 Samuel 13:22 1 Chronicles 21:16 Isaiah 14:19
Numbers 22:23 1 Samuel 17:39 2 Chronicles 21:4 Isaiah 31:8 +(3)
Deuteronomy 13:15 +(2) 1 Samuel 17:51 2 Chronicles 32:21 Isaiah 37:38
Deuteronomy 20:13 1 Samuel 18:4 2 Chronicles 36:17 Isaiah 41:2
Deuteronomy 28:22 1 Samuel 21:8 +(2) 2 Chronicles 36:20 Isaiah 49:2
Deuteronomy 32:25 1 Samuel 21:9 Ezra 9:7 Isaiah 51:19
Deuteronomy 32:41 1 Samuel 21:10 Nehemiah 4:18 Isaiah 65:12
Deuteronomy 32:42 1 Samuel 21:13 Esther 9:5 Isaiah 66:16
Deuteronomy 32:29 1 Samuel 22:19 +(2) Job 1:15 Jeremiah 2:30
Joshua 5:13 1 Samuel 25:13 +(3) Job 1:17 Jeremiah 4:10
Joshua 6:21 1 Samuel 31:4 +(2) Job 5:15 Jeremiah 5:12
Joshua 8:24 +(2) 1 Samuel 31:5 Job 5:20 Jeremiah 5:17
Joshua 10:11 2 Samuel 1:12 Job 15:22 Jeremiah 6:25
Joshua 10:28 2 Samuel 1:22 Job 19:29 +(2) Jeremiah 9:16
Joshua 10:39 2 Samuel 12:9 +(2) Job 39:22 Jeremiah 14:15 +(2)
Joshua 11:12 2 Samuel 18:8 Psalms 7:12 Jeremiah 15:2 +(2)
Joshua 11:14 2 Samuel 20:8 Psalms 17:13 Jeremiah 15:3

RIGHTS DECLARATIONS
Jeremiah 18:21 +(2) Exekiel &:15 +(2) Exekiel 33:6 +2) Revelation 6:4
Jeremiah 19:7 Exekiel 11:8 +(2) Exekiel 33:26 Revelation 6:8
Jeremiah 20:4 +(2) Exekiel 11:10 Exekiel 33:27 Revelation 13:10 +(2)
Jeremiah 21:7 +2) Exekiel 12:14 Exekiel 35:5 Revelation 13:14
Jeremiah 21:9 Exekiel 12:16 Exekiel 35:8 Revelation 19:15
Jeremiah 24:10 Exekiel 14:17 +(2) Exekiel 38:8 Revelation 19:21
Jeremiah 25:16 Exekiel 14:21 Exekiel 38:21 +(2)
Jeremiah 25:27 Exekiel 17:21 Exekiel 39:23 Defend
Jeremiah 25:29 Exekiel 21:3 Daniel 11:33 Judges 10:1
Jeremiah 25:31 Exekiel 21:4 Hosea 1:7 2 Kings 19:34
Jeremiah 26:23 Exekiel 21:5 Hosea 2:18 2 Kings 20:6
Jeremiah 27:8 Exekiel 21:9 +(2) Hosea 7:16 Psalms 20:1
Jeremiah 27:13 Exekiel 21:11 Hosea 11:6 Psalms 59:1
Jeremiah 29:17 Exekiel 21:12 Hosea 13:16 Psalms 82:3
Jeremiah 29:18 Exekiel 21:13 Joel 2:8 Isaiah 31:5
Jeremiah 31:2 Exekiel 21:14 +(3) Amos 1:11 Isaiah 37:35
Jeremiah 32:24 Exekiel 21:15 Amos 4:10 Isaiah 38:6
Jeremiah 32:36 Exekiel 21:19 Amos 7:9 Zechariah 9:15
Jeremiah 33:4 Exekiel 21:20 Amos 7:11 Zechariah 12:8
Jeremiah 34:4 Exekiel 21:28 +(2) Amos 7:17
Jeremiah 34:17 Exekiel 23:10 Amos 9:1
Jeremiah 41:2 Exekiel 25:13 Micah 4:3
Jeremiah 42:22 Exekiel 26:11 Nahum 2:13
Jeremiah 43:11 +(2) Exekiel 28:23 Nahum 3:3
Jeremiah 44:12 +(2) Exekiel 29:8 Nahum 3:15
Jeremiah 44:13 Exekiel 30:4 Zephaniah 2:12
Jeremiah 44:18 Exekiel 30:5 Haggai 2:22
Jeremiah 44:27 Exekiel 30:6 Zechariah 9:13
Jeremiah 46:14 Exekiel 30:22 Matthew 10:34
Jeremiah 46:16 Exekiel 30:24 Matthew 26:51
Jeremiah 47:6 Exekiel 30:25 Matthew 26:52 +(3)
Jeremiah 48:2 Exekiel 31:17 Mark 14:47
Jeremiah 48:10 Exekiel 31:18 Luke 2:35
Jeremiah 50:35 Exekiel 32:20 +(2) Luke 22:49
Jeremiah 50:36 +(2) Exekiel 32:21 John 18:10
Jeremiah 50:37 +(2) Exekiel 32:22 John 18:11
Jeremiah 51:50 Exekiel 32:23 Acts 12:2
Lamentations 1:20 Exekiel 32:24 Acts 16:27
Lamentations 2:21 Exekiel 32:25 Romans 8:35
Lamentations 4:9 Exekiel 32:26 Romans 13:4
Lamentations 5:9 Exekiel 32:28 Ephesians 6:17
Exekiel 5:2 Exekiel 32:29 Hebrews 4:12
Exekiel 5:12 +(2) Exekiel 32:30 Hebrews 4:12
Exekiel 6:8 Exekiel 33:2 Revelation 1:16

(2). Selected Bible Verses Application to Plaintiff’s Case

(a). Warnings of Government Genocide -- 2nd Kings 19:32-34
“Therefore thus saith the LORD concerning the king of Assyria, He shall not come into this city, nor
shoot an arrow there, nor come before it with shield, nor cast a bank against it. By the way that he came,
by the same shall he return, and shall not come into this city, saith the LORD. For I will defend this city,
to save it, for mine own sake, and for my servant David’s sake.”
(b). Corruption -- Ecclesiastes 3:16-17
“And moreover I saw under the sun the place of judgment, that wickedness was there; and the place of
righteousness, that iniquity was there. I said in mine heart, God shall judge the righteous and the wicked:
for there is a time there for every purpose and for every work.”
(c). Corruption/Bribery -- Isaiah 1:23-26
“Thy princes are rebellious, and companions of thieves: every one loveth gifts, and followeth after
rewards: they judge not the fatherless, neither doth the cause of the widow come unto them.” Therefore
saith the LORD, the LORD of hosts, the mighty One of Israel, Ah, I will ease me of mine adversaries, and
avenge me of mine enemies: And I will turn my hand upon thee, and purely purge away thy dross, and
take away all thy tin: And I will restore thy judges as at the first, and thy counselors as at the beginning:
afterward thou shalt be called, The city of righteousness, the faithful city.”
(d). The Corrupted Receives Justice – Job 20:24-25
“He shall flee from the iron weapon, and the bow of steel shall strike him through. It is drawn, and
cometh out of the body; yea, the glittering sword cometh out of his gall: terrors are upon him.”
(e). Defending Against Government Abuses -- Jeremiah 5:20-31
“Declare this in the house of Jacob, and publish it in Judah, saying Hear now this, O foolish people, and
without understanding; which have eyes, and see not, which have ears, and hear not: Fear ye not me?
saith the LORD: will ye not tremble at my presence, which have placed the sand for the bound of the sea
by a perpetual decree, that it cannot pass it: and though the waves thereof toss themselves, yet can they
not prevail; though they roar, yet can they not pass over it? But this people hath a revolting and a
rebellious heart; they are revolted and gone. Neither say they in their heart, Let us now fear the LORD or
God, that giveth rain, both the former and the latter, in his season: he reserveth unto us appointed weeks
of the harvest. Your iniquities have turned away these things, and your sins have withholden good things
from you. For among my people are found wicked men: they lay wait, as he that setteth snares; they set a
trap, they catch men. As a cage is full of birds, so are their houses full of deceit: therefore they are
become great, and waxen rich. They are waxen fat, they shine: yea, they overpass the deeds of the
wicked: they judge not the cause, the cause of the fatherless, yet they prosper; and the right of the needy
do they not judge. Shall I not visit for these things? Saith the LORD: shall not my soul be avenged on
such a nation as this? A wonderful and horrible thing is committed in the land; the prophets prophesy
falsely, and the priests bear rule by their means; and my people love to have it so: and what will ye do in
the end thereof?”
(f). Malicious Prosecution -- Psalms 59:1-5
“Deliver me from mine enemies, O my God: defend me from them that rise up against me. Deliver me
from the workers of iniquity, and save me from bloody men. For, lo, they lie in wait for my soul: they
mighty are gathered against me; not for my transgression, nor for my sin, O LORD. They run and prepare
themselves without my fault: awake to help me, and behold. Thou therefore, O LORD God of hosts, the
god of Israel, awake to visit all the heathen: be not merciful to any wicked transgressors. Selah.”

RIGHTS DECLARATIONS
(g). Illegal Use of Weapons -- Numbers 35:18

“Or if he smite him with an hand weapon of wood, wherewith he may die, and he die, he is a murderer:
the murderer shall surely be put to death.”
(h). Militias -- Ecclesiastes 4:12-13
“And if one prevail against him, two shall withstand him; and a threefold cord is not quickly broken.
Better is a poor and a wise child than an old and foolish king, who will no more be admonished.”
(i). Defending the Church with Weapons -- 2 Chronicles 23:10
“And he set all the people, every man having his weapon in his hand, from the right side of the temple to
the left side of the temple, along by the altar and the temple, by the king round about.”
(j). Weapons in the Workplace -- Nehemiah 4:17
“They which builded on the wall, and they that bare burdens, with those that laded, every one with one of
his hands wrought in the work, and with the other hand held a weapon.”
(k). Lawlessness Without The Sword -- Deuteronomy 32:25.
“The sword without, and terror within, shall destroy both the young man and the virgin, the suckling also,
with the man of grey hairs.”
(l). Weapons Making & Defense Against Persecution - Isaiah 54:16-17
“Behold, I have created the smith that bloweth the coals in the fire, and that bringeth forth an instrument
for his work; and I have created the waster to destroy. No weapon that is formed against thee shall
prosper; and every tongue that shall rise against thee in judgment thou shalt condemn. This is the heritage
of the servants of the LORD, and their righteousness is of me, saith the LORD.”
(m). The Slaughter Weapon - (Sword v. Full-Auto Firearms) -- Ezekiel 9:1-2
“He cried also in mine ears with a loud voice, saying, Cause them that have charge over the city to draw
near, even every man with his destroying weapon in his hand. And behold, six men came from the way of
the higher gate, which lieth toward the north, and every man a slaughter weapon in his hand; and one man
among them was clothed with linen, with a writer’s inkhorn by his side: and they went in, and stood
beside the brasen altar.”
(n). Facing Your Enemy -- Deuteronomy 20:1
When thou goest out to battle against thine enemies, and seest horses, and chariots, and a people more
than thou, be not afraid of them: for the Lord thy God is with thee, which brought thee up out of the land
of Egypt.
(o). War -- Exodus 15:3
“The LORD is a man of war : the LORD is his name.”
(p). The Lord as a Warrior -- Joshua 5:13
“And it came to pass, when Joshua was by Jericho, that he lifted up his eyes and looked, and, behold,
there stood a man over against him with his sword drawn in his hand: and Joshua went unto him, and said
unto him, Art thou for us, or for our adversaries? And he said, Nay; but as captain of the host of the
LORD am I now come. And Joshua fell on his face to the earth, and did worship and said unto him, What
saith my lord unto his servant? And the captain of the LORD’s host said unto Joshua, Loose thy shoe
from off thy foot; for the place whereon thou standest is holy. And Joshua did so. “
231
(q). Standing Watch -- Zechariah 9:8

“And I will encamp about mine house because of the army, because of him that passeth by, and because
of him that returneth: and no oppressor shall pass through them any more: for now have I seen with mine
eyes.”
(3). The Story of David and Goliath: Keeping Firearms Out of the Hands of
Children (Teens) Defies Religious Teachings of the Bible
(a). Weapons Training For Children - 1 Samuel 17:39-40
“And David girded his sword upon his armour, and he assayed to go; for he had not proved it.
And David said unto Saul, I cannot go with these; for I have not proved them. And David put
them off him. And he took his staff in his hand, and chose him five smooth stones out of the
brook, and put them in a shepherd’s bag which he had, even in a scrip; and his sling* was in his
hand: and he drew near to the Philistine.”; 1 Samuel 17:49 “And David put his hand in his bag,
and took thence a stone, and slang it, and smote the Philistine in his forehead, that the stone sunk
into his forehead; and he fell upon his face to the earth.”**
*And his sling. In Adam Clarke’s Commentary: “The sling, both among the Greeks and
Hebrews, has been a powerful offensive weapon. See what has been said on Judg. XX.
16. It is composed of two strings and a leathern strap; the strap is in the middle, and is
the place where the stone or bullet lies. The string on the right end of the strap is firmly
fastened to the hand; that on the left is held between the thumb and middle joint of the
fore finger. It is then whirled two or three times round the head; and when discharge,
the finger and thumb let go their hold of the left end string. The velocity and force of the
sling are in proportion to the distance of the strap, where the bullet lies, from the
shoulder joint. Hence the ancient Baleares, or inhabitants of Majorca and Minorca, are
said to have had three slings of different lengths, the longest they used when the enemy
was at the greatest distance; the middle one, on their nearer approach; and the shortest,
when they came into the ordinary fighting distance in the field. The shortest is the most
certain, though not the most powerful. The Balearians are said to have had one of their
slings constantly bound about the head, to have used the second as a girdle, and to have
carried the third always in their hand.
In the use of the sling it requires much practice to hit the mark; but when once this
dexterity is acquired, the sling is nearly as fatal as the musket or bow; see on ver. 49.
David was evidently an expert marksman; and his sling gave him greatly the advantage
over Goliath; an advantage of which the giant does not seem to have been aware. He
could hit him within any speaking distance; if he missed once, he had as many chances
as he had stones; and after all, being unencumbered with armour, young, and athletic,
he could have saved his life by flight. Against him the Philistine could do but little,
except in close fight; it is true he appears to have had a javelin or missile spear, (see on
ver. 6, ) but David took care to prevent the use of all such weapons, by giving him the
first blow.”
**In Adam Clarke’s Commentary, . . . “The Baleares, in time of war, sling greater
stones than any other people, and with such force, that they seem as if projected from a
catapult. . . . Therefore, in assaults made on fortified towns, they grievously wound the
besieged; and in battle they break in pieces, the shields, helmets, and every species of
armour, by which the body is defended. And they are such exact marksmen that they
scarcely ever miss that at which they aim.”

RIGHTS DECLARATIONS
The historian accounts for their great accuracy and power in the use of the sling, from
this circumstance: . . . “They attain to this perfection by frequent exercise from
their childhood; for while they are young and under their mother’s care, they are
obliged to learn to sling; for they fasten bread for a mark at the top of a pole; and
till the child hit the bread he must remain fasting; and when he has hit it, the
mother gives it to him to eat.”
“I [Adam Clarke] have given these passages at large, because they contain several
curious facts, and sufficiently account for the force and accuracy with which David
slung his stone at Goliath. We find also in the . . ., not miss the mark, of the historian,
the true notion of . . ., to sin, which I have contended for elsewhere. He who sins,
though he aims thereby at his gratification and profit, misses the mark of present and
eternal felicity.”
(b). The Hypocrites – Isaiah 32:14-15, 18.
“The sinners in Zion are afrain; fearfulness hath surprised the hypocrites. Who among us shall
dwell with the devouring fire? Who among us shall dwell with everlasting burnings? He that
walketh righteously, and speaketh uprightly; he that despiseth the gain of oppressions, that
shaketh his hands from holding of bribes, that stoppeth his ears from hearing of blood, and
shutteth his eyes from seeing evil; . . . Thine heart shall meditate terror. Where is the scribe?
Where is the receiver? Where is he that counted the towers?
Adam Clarke’s Commentary: [The sinners in Zion are afraid] Zion has been generally
considered as a type of the Church of God. Now all the members of God’s Church should be
holy, and given to good works; sinners in Zion therefore, are portentous beings! But, alas! Where
are they not? The Targum on this verse is worthy of notice: “The sinners in Zion are broken
down; fear hath seized the ungodly, who are suffering for their ways. They say, Who among us
shall dwell in Zion, where the splendour of the Divine Majesty is like a consuming fire? Who of
us shall dwell in Jerusalem, where the ungodly are judged and delivered into hell for an eternal
burning?”
[Where is the scribe?] The person appointed by the king of Assyria to estimate their number
and property in reference to their being heavily taxed. [Where is the receiver?] Or he who
was to have collected this tribute. [Where is he that counted the towers?] That is, the
commander of the enemy’s forces, who surveyed the fortifications of the city, and took an
account of the height, strength, and situation of the walls and towers that he might know where
to make the assault with the greatest advantage; . . . .”
(4). The Takings Clause of the Fifth Amendment includes Non-Physical

Takings
The strongest evidence that the Takings Clause originally was intended to cover
regulatory takings are the Framers’ strong leanings in favor of protection for
property rights, James Madison’s post-ratification statements, and the just
compensation philosophy contained in the writings of Blackstone, Locke, and
Grotius. Although Madison’s statements do not carry the same weight as pre-
ratification commentary, they should carry some weight because of Madison’s
role in drafting the Takings Clause and the fact that he published the Property
essay so shortly after ratification. Madison’s view supports the jurisprudential
233
position taken by Grotius and Blackstone and clearly extends the Takings Clause
to non-physical takings.422
422
Gold, Andrew S., REGULATORY TAKINGS AND ORIGINAL INTENT: THE DIRECT, PHYSICAL TAKINGS THESIS “GOES TOO FAR,”
49 Am. U.l. Rev. 181, 241 (1999)

RIGHTS DECLARATIONS
PART 9. PLAINTIFF’S MARITIME DECLARATIONS

Part 19. The Claims
Part 25. Damages
235
A. Heller impacts the Vienna Convention on the Law of Treaties 1969 and the
Vienna Convention on the Law of Treaties between States and International
Organizations or between International Organizations 1986
Citing the VIENNA CONVENTION ON THE LAW OF TREATIES 1969 and the VIENNA CONVENTION ON THE LAW
OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS
1986 the U.S. Supreme Court’s Heller opinion on the Second Amendment includes and protects the right of
armed self-defense as part of the “right to life” provision in international human rights treaties and presents a
“fundamental change of circumstances” (Article 62 of both Vienna Conventions) for the “emergence of a new
peremptory norm of general international law” (“jus cogens”), (Article 64 of both Vienna Conventions) for the
“right to life” provisions in international human rights treaties through the treaty clause in Article II, Section 2 of
the CONSTITUTION OF THE UNITED STATES.
B. Heller impacts the American Declaration of the Rights and Duties of Man
The Heller opinion also impacts the AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN under
Articles I, II, IV, V, VI, VII, VIII, IX, gun culture under Articles XIII, XV, XVII, XVIII, XXI, XXII, XXIII,
XXIV, XXV, XXVI, and duties to society under Article XXIX to which the INTER-AMERICAN COMMISSION ON
HUMAN RIGHTS and the INTER-AMERICAN COURT ON HUMAN RIGHTS have jurisdiction.
C. Second Amendment Rights of U.S. Seamen to “Open Carry Handgun” in

Intrastate, Interstate, and Maritime Travel under the First, Fourth, Fifth, Ninth,
Tenth, Thirteenth, and Fourteenth Amendments.
(1) American civilian seamen have their Second Amendment right to openly keep and bear arms in
intrastate, interstate, and maritime travel supported by the First, Fourth, Fifth, Ninth, Tenth, Thirteenth, and
Fourteenth Amendments upto and including standing at the gangway of U.S. flag vessels in the United States.
Second Amendment rights of United States seamen include the right of armed personal security and armed self-
defense aboard United States flag vessels under Maritime Law subject to discretion of the master, but especially
so when transitting known pirate waters.
(2). The Second Amendment right to “openly” keep and bear arms extends to able seamen in intrastate
and interstate travel to and from U.S. flag vessels in U.S. ports is the constitutional norm under the First, Fourth,
Fifth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments even though it may be long suppressed under United
States law.
(3). The Second Amendment right to “openly” keep and bear arms extends to able seamen aboard U.S.
flag vessels transitting known pirate waters subject to Maritime Law even though it may be suppressed by the
International Maritime Organization in violation of the “right to life” provisions of human rights treaties.
D. Second Amendment Rights of Seamen under 33 U.S.C. § 383 Resistance of Pirates

by Merchant Vessels (Suppression of Piracy)
The exercise of Second Amendment rights in intrastate, interstate, and maritime travel to and from a U.S.
flagged vessel in the United States are required under 33 U.S.C. § 383. Resistance of Pirates by Merchant Vessels
(Suppression of Piracy) and under the U.S. Code, Title 10–Armed Forces; Subtitle A—General Military Law;
Part I—Oganization and General Military Powers; Chapter 17—Arming of American Vessels, 10 U.S. Code §
351. During War or Threat to National Security
236 DECLARATIONS
PART 9. PLAINTIFF’S MARITIME
(1). 33 USC § 383. Resistance of pirates by merchant vessels (Suppression of

Piracy)
The commander and crew of any merchant vessel of the United States, owned wholly, or in part, by a
citizen thereof, may oppose and defend against any aggression, search, restraint, depredation, or seizure,
which shall be attempted upon such vessel, or upon any other vessel so owned, by the commander or crew of any
armed vessel whatsoever, not being a public armed vessel of some nation in amity with the United States, and
may subdue and capture the same; and may also retake any vessel so owned which may have been captured
by the commander or crew of any such armed vessel, and send the same into any port of the United States.
237
(2). 10 U.S. Code § 351. During War or Threat to National Security

(a) The President, through any agency of the Department of Defense designated by him, may arm, have
armed, or allow to be armed, any watercraft or aircraft that is capable of being used as a means of transportation
on, over, or under water, and is documented, registered, or licensed under the laws of the United States.
(b) This section applies during a war and at any other time when the President determines that the security
of the United States is threatened by the application, or the imminent danger of application, of physical force by
any foreign government or agency against the United States, its citizens, the property of its citizens, or their
commercial interests.
(c) Section 16 of the Act of March 4, 1909 (22 U.S.C. 463) does not apply to vessels armed under this
section.
238 DECLARATIONS
PART 9. PLAINTIFF’S MARITIME
PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT

Part 19. The Claims
Part 25. Damages
239
A. Heller and Incorporation of the Second Amendment

On June 27, 2008 Dale Carpenter posted the following information concerning the Heller opinion’s hint
of incorporating the Second Amendment through the Privileges and Immunites clause of the Fourteenth
Amendment on Eugene Volokh’s blog, THE VOLOKH CONSPIRARY:423
Along with many others, I noted yesterday that the Supreme Court expressly left open the
question whether the individual right to keep and bear arms in the Second Amendment should be
incorporated into the Fourteenth Amendment to apply against the states. Here is the relevant
passage reserving the issue:
With respect to [the nineteenth-century case of U.S. v.] Cruikshank’s continuing validity on
incorporation, a question not presented by this case, we note that Cruikshank also said that the
First Amendment did not apply against the States and did not engage in the sort of Fourteenth
Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois (1886)
and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal
Government.
Op. at 48 n. 23.
The footnote is a whipsaw;424 it reads like one person originally wrote the first line and, seeing it,
another came along and insisted on adding the second. The first sentence suggests that just as
Cruikshank was wrong (and under-theorized) on First Amendment incorporation it was also
wrong (and under-theorized) on Second Amendment incorporation. But the second sentence notes
two post-Cruikshank opinions confirming that the Second Amendment limits only federal power.
There’s been some speculation that Justice Scalia may not have had five votes for a more
unequivocal pro-incorporation statement. The generally more cautious, incrementalist, and
minimalist tendencies of Chief Justice Roberts may have prevailed here, as did minimalism on
other important questions the Court avoided (noted in a post yesterday by Orin425).
423
http://www.volokh.com/posts/1214582490.shtml
424
Definition of whipsaw:
[noun]: lumberman’s saw with handles at both ends; intended for use by two people.
[verb] to victimize, especially in gambling or negotiations, cheat, rip off, chisel - deprive somebody of something by deceit.
425
http://volokh.com/archives/archive_2008_06_22-2008_06_28.shtml#1214512710 [Orin Kerr, June 26, 2008 post on The
Volokh Conspiracy]:
The Minimalist Court:
The major theme of the October 2007 Term, it seems to me, is that we have a minimalist Court with no surprises. There were
no major revolutions this Term. Even the big cases were narrow and interstitial. The Court mostly took baby steps.
It may not seem that way this week, with big cases like Boumediene, Heller, and Kennedy v. Louisiana. But step back a bit.
Even these big cases were actually really narrow. Boumediene went where the Court very strongly hinted it was going in
Rasul v. Bush back in 2004: The Court’s reasoning was limited to the few hundred detainees at Guantanamo Bay, and did not
order anyone’s release. Kennedy v. Louisiana filled in a detail hinted at in Coker v. Georgia. The Court’s opinion only deals
with child rape capital cases, of which Kennedy’s own case was (as far as I know) the only conviction. And Heller
establishes an individual right without answering the degree of scrutiny or incorporation, and while indicating that traditional
gun control laws are all constitutional.
This isn’t to say that there were no important cases this Term. But on a historical scale, the 2007 Term is revealing a
minimalist Court: It intervenes rarely, doesn’t say much when it speaks, and leaves most battles for another day.
240
Nevertheless, on re-reading the decision, I noticed a passage that seems relevant to future
litigation on the incorporation question. In the middle of his review of post-Civil War enactments,
Justice Scalia highlights the importance to the newly freed slaves of the right to keep and bear
arms in the home. He also reviews how federal authorities took steps to prevent vengeful and
racist southern legislators from infringing this right. Mike O’Shea at Concurring Opinions426 also
points to this discussion as significant on the incorporation issue. It is, as he notes, exactly the
kind of evidence that scholars have relied upon to support incorporation.
Especially significant are these sentences from Heller discussing congressional understanding of
the Civil Rights Act of 1871 and the Fourteenth Amendment:
Similar discussion attended the passage of the Civil Rights Act of 1871 and the Fourteenth
Amendment. For example, Representative Butler said of the Act: “Section eight is intended to
enforce the well-known constitutional provision guaranteeing the right of the citizen to ‘keep and
bear arms,’ and provides that whoever shall take away, by force or violence, or by threats and
intimidation, the arms and weapons which any person may have for his defense, shall be deemed
guilty of larceny of the same.” H. R. Rep. No. 37, 41st Cong., 3d Sess., pp. 7–8 (1871). With
respect to the proposed Amendment, Senator Pomeroy described as one of the three
“indispensable” “safeguards of liberty . . . under the Constitution” a man’s “right to bear arms for
the defense of himself and family and his homestead.” Cong. Globe, 39th Cong., 1st Sess., 1182
(1866). Representative Nye thought the Fourteenth Amendment unnecessary because “[a]s
citizens of the United States [blacks] have equal right to protection, and to keep and bear arms for
self-defense.” Id., at 1073 (1866). It was plainly the understanding in the post-Civil War Congress
that the Second Amendment protected an individual right to use arms for self-defense.
Op. at 43-44.
Interestingly, the quote from Rep. Nye supports incorporation through the Citizenship Clause,
rather than through due process, though Nye himself believed blacks already enjoyed the right in
common with all citizens. The right to keep and bear arms for self-defense could be considered an
426
http://www.concurringopinions.com/archives/2008/06/meet_your_secon_2.html [Mike O’Shea, Concurring Opinions
(blog), June 26, 2008]:
9. Hints About Incorporation: Another punt to the lower courts, though the Supreme Court included somewhat more pro-
incorporation discussion than I expected. In its historical analysis of evidence of the public understanding of the Second
Amendment, the Court discussed at length the legislative treatment of the right to arms in the aftermath of the Civil War. See
Maj. Op. at 41-44 (discussing, inter alia, the history of black disarmament in the Reconstruction South, and the references to
the right to arms in the Freedmen’s Bureau Act of 1866). This is precisely the sort of historical evidence relied upon by
scholars and researchers who argue that the Fourteenth Amendment was intended to incorporate the right to arms against the
states. The Court’s one express mention of the incorporation issue comes in an exquisitely ambiguous footnote:
With respect to [the nineteenth-century case of U.S. v.] Cruikshank’s continuing validity on incorporation, a question not
presented by this case, we note that Cruikshank also said that the First Amendment did not apply against the States and did
not engage in the sort of Fourteenth Amendment inquiry required by our later cases. Our later decisions in Presser v. Illinois
(1886) and Miller v. Texas (1894) reaffirmed that the Second Amendment applies only to the Federal Government.
Id. at 48 n.23 (emphasis added) (citations omitted). So on the one hand the Court says that the Fourteenth Amendment
inquiry is “required” by its later (20th century) incorporation decisions, yet it also noted that post-Cruikshank, 19th-century
cases reaffirmed that the Second was not incorporated -- but those cases did not perform the “required” inquiry either! I read
this as a very comprehensive punt to the lower courts; they can either take up anew the question of Second Amendment
incorporation in coming cases -- “the Court instructed us that this inquiry is ‘required’!” -- or they can defer to Presser et al.
and refuse to apply the “selective incorporation” framework to the Second Amendment until the Supremes officially overrule
those cases -- “the Court noted that later decisions ‘reaffirmed’ Cruikshank!” A district court judge or circuit court panel
could choose either path, and still plausibly claim to be following Heller.
241
implicit and indispensable aspect of “citizenship” protected by the first sentence of the
Amendment. Others might argue that the right is a privilege or immunity protected against state
intrusion.
Add to all of this the fact that the Court repeatedly compares the incorporated First Amendment
to the unincorporated Second Amendment as a guarantee of important individual rights. A court
that believes the Second Amendment is comparable to the hallowed First Amendment is unlikely
to leave protection of the right to the mercy of legislative majorities in states and cities.
Whichever specific route the lower courts now choose — the Citizenship Clause, the Privileges
and Immunities Clause, the Due Process Clause — it seems the Supreme Court is providing a
road map and is strongly suggesting that the ultimate destination is incorporation.
B. Human rights interpretation of Michael Anthony Lawrence, Second Amendment

Incorporation through the Fourteenth Amendment Privileges and Immunities and
Due Proceess Clauses, Missouri Law Review, Vol. 72, No. 1 (Winter 2007)
Presuming that “natural rights,” as used in the Heller opinion by Justice Scalia and as used in Lawrence’s
article above,427 can also mean “human rights” as being one in the same then it is reasonable and logical to claim
that the Second Amendment is also a human right under the “right to life” provision of international human rights
treaties.
The following excerpts from Lawrence’s article contain the the phrase “natural rights. Exhibit the
excerpts here I ask that the phrase “natural rights” be read as to mean “human rights” to better understand the
connection to the “right to life” provision in international human rights treaties.
(1). Excerpts From Heller with the Phrase “Natural Rights”
Page 3:
The enactment and ratification of the privileges or immunities clause, together with the rest of the
Fourteenth Amendment, was a monumental achievement in American history. With this radical
act, We the People moved to counteract American government’s time-proven discriminatory
modus operandi by strictly prohibiting any exercise of governmental power that would “abridge
the privileges or immunities,” meant to be broadly read as “individual natural rights,” including
the Bill of Rights and other enumerated and unenumerated rights of all American citizens.428
Page 8, Footnote 23:
The landscape depicted is one of a limited government.[Footnote 23]
[Footnote 23]: See, e.g., Leonard W. Levy, ORIGINS OF THE BILL OF RIGHTS 3-4 (1999) (“Over a
period of a century and a half [before the founding], America became accustomed to the idea that
government existed by consent of the governed, . . . that the compact reserved their natural
rights, and that it constituted a fundamental law to which the government was subordinate.”).
Barnett qualifies traditional social contract (i.e., “consent of the governed”) theory this way:
427
http://law.missouri.edu/lawreview/docs/72-1/Lawrence.pdf
428
The Fourteenth Amendment Framers’ desire for freedom and independence was at the core of the Constitution’s founders’
desire to abolish the culture of pervasive dependence that existed from the earliest colonial days up until the Revolution. See
generally Gordon S. Wood, THE RADICALISM OF THE AMERICAN REVOLUTION (1992).
242
[W]e are asked to accept the proposition that merely by virtue of living in the town in which we
were born, or by failing to leave the country, we have “consented” to obey nearly any command
that is enacted by the reigning legal system. And the consent of a majority is supposed to bind not
only themselves, but dissenters and future generations as well.
BARNETT, [RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY (2004)], at 24.
Additionally, he adds that “in the absence of actual consent [i.e., acquiescence is not enough], to
be legitimate, an existing legal system must provide assurances that the laws it imposes are both
necessary [to protect the rights of others] and proper [insofar as they do not violate the preexisting
rights of the persons on whom they are imposed].” Id. “If a lawmaking process provides these
assurances, then it is ‘legitimate’ and the commands it issues are entitled to a benefit of the doubt.
They are binding in conscience unless shown to be unjust.” Id. at 45.
Page 50, Footnote 213:
That the reasonable regulation of natural rights is essential to their efficacious exercise and
enforcement in civil society does not entail that these rights are surrendered completely to the
government. . . . The [unwritten] “police power” to enforce or regulate a retained right is not the
power to confiscate, prohibit, infringe, abridge its exercise.
Pages 58-59:
English Conceptions. The right to have arms for self-defense and selfpreservation was one of
thirteen “true, ancient, and indubitable” liberties protected in the 1689 English Bill of
Rights,429260 with origins extending back to Magna Carta and even earlier.430261 As William
Blackstone explained in Commentaries on the Laws of England, the King’s English subjects
possessed a constitutional right to bear arms, opining that the “three great and primary
[constitutional] rights, of personal security, personal liberty, and private property,” 431 would be
“in vain” if not for the existence of a set of “auxiliary subordinate rights” to protect them:
The fifth and last auxiliary right . . . is that of having arms for their defence
suitable to their condition and degree, and such as are allowed by law. . . .432 [I]t
429
Joyce Lee Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT 115 (1994). See also P.
Halbrook, THAT E VERY MAN BE ARMED: THE E VOLUTION OF A CONSTITUTIONAL RIGHT at 39 (1984), (citing S. Thorne et al.,
THE GREAT CHARTER 137-41 (1965)); David T. Hardy, ORIGINS AND DEVELOPMENT OF THE SECOND AMENDMENT 24-40 (1986)
(describing the events of “The Crucial Half-Century: 1639-1689,” citing various ordinances and documents).
430
Stephen P. Halbrook, THAT E VERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT at 37-39 (1984). “The
laws of the ancient English kings [such as the laws of Alfred and the Laws of Cnut] proscribed violent acts with arms . . . but
recognized as rightful the mere possession and carrying of arms.” Id. at 37. Later, in the twelfth century, because “of the
preference that an armed people, rather than a standing army, be entrusted with the power of defense, the keeping and bearing
of arms came to be considered as not simply a right but a duty.” Id. at 38. Leonard Levy explains:
In the twelfth century Henry II had obligated all freemen to possess certain arms, and in the next century Henry III required
every subject aged fifteen to fifty, including landless farmers, to own a weapon other than a knife. . . . [I]n the absence of a
regular army and a police force, . . . every man had to do his duty at watch and ward . . . . Every subject also had an
obligation to protect the king’s peace and assist in the suppression of riots. In the event of a crime, every man had to join in
the “hue and cry” – summoning aid and joining the pursuit of anyone who resisted arrest or escaped from custody.
Levy, ORIGINS OF THE BILL OF RIGHTS 136 (1999). See also David T. Hardy, ORIGINS AND DEVELOPMENT OF THE SECOND
AMENDMENT at 12-14 (1986); Joyce Lee Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT at
x. (1994),
431
William Blackstone, 1 COMMENTARIES *141.
432
Blackstone explained,
243
is indeed a public allowance under due restrictions, of the natural right of

resistance and selfpreservation, when the sanctions of society and laws are found
insufficient to restrain the violence of oppression.
. . . [T]o vindicate these rights, . . . the subjects of England are entitled . . . to the
right of having and using arms for selfpreservation and defence. 433
Page 63-64:
Another article cited the English Bill of Rights, natural law, and William Blackstone as proof of
the individual’s right to have firearms. “It is a natural right which the people have reserved to
themselves, confirmed by the Bill of Rights, to keep arms for their defence; and as Mr.
Blackstone observes, it is to be made use of when the sanctions of society and law are found
insufficient to restrain the violence of oppression.”434
After the British reinforced their military presence in Boston in 1768, A Journal of the Times
“urged Americans to retain their arms and reminded them that the English Bill of Rights had
recognized the ‘privilege of possessing arms,’ . . . declar[ing], ‘It is a natural right which the
people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own
defence.’”
(2). Excerpts with Phrases the Include the Word “Human”
“human affairs” page 4:
It is helpful to recall Publius’s conception of government’s subordinate role in the constitutional
design, as explained in Federalist 51 in the New York Packet on February 8, 1788, urging
ratification of the new Constitution:
In framing a government which is to be administered by men over men, the great difficulty lies in
this: you must first enable the government to control the governed; and in the next place oblige it
to control itself. A dependence on the people is, no doubt, the primary control on the government;
but experience has taught mankind the necessity of auxiliary precautions. This policy of
[correcting], by opposite and rival interests, the defect of better motives, might be traced through
the whole system of human affairs, private as well as public. We see it particularly displayed in
all the subordinate distributions of power, where the constant aim to divide and arrange the
Referring to the words “suitable to their condition and such as are allowed by law,” St. George Tucker distinguished the
Second Amendment of the U.S. Constitution, whereby the right of the people to keep arms exists “without any qualification
as to their condition or degree, as in the case of the British government.”
Stephen P. Halbrook, THAT E VERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT at 45, n.56. (1984).
433
William Blackstone, 1 COMMENTARIES at *143-44. See also Michael Dalton, THE COUNTRY JUSTICE: CONTAINING THE
PRACTICE OF THE JUSTICES OF THE PEACE OUT OF THEIR SESSIONS 308, 356 (1697) (quoting virtually the same language as
Blackstone). See also Joyce Lee Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT at 142
(1994) (noting that Blackstone’s impact on revolutionary-era Americans was profound); LEVY, supra note 261, at 138. Levy
notes that another influential English book with Americans in 1774 was Political Disquisitions by James Burgh, who
wrote most elaborately about the right to be armed. . . . focus[ing] on the history and values of an armed public in preference
to a standing army. . . . “A militia-man,” he observed, “is a free citizen; a soldier, a howslave for life. . . .” [and] arms, he
wrote, “are the only true badges of liberty.”
Id
434
Joyce Lee Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-A MERICAN RIGHT at 145 (1994) (quoting N.Y. J.
Supplement, Apr. 13, 1769, reprinted in BOSTON UNDER MILITARY RULE, 1768-69, AS REVEALED IN A JOURNAL OF THE TIMES 79
(Oliver Morton Dickerson ed., 1936)).
244
several offices in such a manner as that each may be a check on the other that the private interest
of every individual may be a sentinel over the public rights.435
The damage done by the Supreme Court to this expressed ideal in two cases less than a decade
after ratification of the Fourteenth Amendment —which had, after all, been designed and ratified
with the purpose of restoring the primacy of “the private interest of every individual” over an out-
of-control (in this case, State) government — cannot be overstated. The Court effectively
nullified the privileges or immunities clause in the Slaughter-House Cases,436 and in United
States v. Cruikshank,437 the Court held that the Bill of Rights, including the Second Amendment
right to keep and bear arms, did not apply to the States. In these two rulings, the Court betrayed
the will of the people as it had been expressed and ratified in section one. Moreover, by failing to
correct its mistakes thereafter, the Court betrays the will of the people still, some 130 years later.
“human rights” page 28:
B.THE SUPREME COURT’S ABDICATION:
THE SLAUGHTER-HOUSE CASES AND CRUIKSHANK
Just four years after the Fourteenth Amendment’s ratification, the Supreme Court nullified the
privileges or immunities clause, holding in the Slaughter-House Cases that the clause protects
only a certain very narrow list of privileges or immunities attending to National — as opposed to
State — citizenship. 438 According to the Court, any protection of the broad fundamental rights
of State citizenship would be left up to the States themselves to provide.439 This interpretation of
section one — almost-laughable, were it not so damaging — by effectively placing the fox in
charge of the henhouse, “flew in the face of [the] legislative history. . . . [and] turned the plan for
the Fourteenth Amendment on its head.”440 No matter that there was (or is) little evidence that
the Republicans or Democrats in the proposing Congress or the conventions in the ratifying
States had considered the distinction between State and National citizenship to be especially
435
THE FEDERALIST No. 51 (James Madison) (emphasis added)
436
83 U.S. 36, 78-79 (1872).
437
92 U.S. 542 (1875).
438
See Slaughter-House Cases, 83 U.S. (16 Wall.) 36, at 74 (1872).
439
Id. at 75.
If, then, there is a difference between the privileges and immunities belonging to a citizen of the United States as such, and
those belonging to the citizen of the State as such, the latter must rest for their security and protection where they have
heretofore rested; for they are not embraced by this paragraph of the amendment.
Id.
440
Michael Kent Curtis, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS at 175-76 (1986).
The Slaughter-House Court’s “studied distinction between the privileges deriving from state and national citizenship[] should
have been seriously doubted by anyone who read the Congressional debates of the 1860s.” Eric Foner, RECONSTRUCTION at
530 (1988).
The obvious inadequacy of Miller’s opinion – on virtually any reading of the Fourteenth Amendment – powerfully reminds
us that interpretations offered in 1873 can be highly unreliable evidence of what was in fact agreed to in 1866-68. . . . By
1873 some of the justices were ignoring some of the core commitments of the Fourteenth Amendment, ratified only five
years earlier.
AMAR, supra note 35, at 213 n.*. Slaughter-House “strangl[ed] the privileges-orimmunities clause in its crib.” Id. at 213.
Additionally, the Slaughter-House Cases “is probably the worst holding, in its effect on human rights, ever uttered by the
Supreme Court.” Charles L. Black, Jr., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS, NAMED & UNNAMED 55 (1997)
245
relevant; instead, in a neat bit of textual sophistry the Court gave meaning to the distinction, 441
thereby turning “what was meant [to be] bread into a stone,”442 and causing grievous harm to
Americans’ long-term prospects for freedom. 443
“human nature” page 39:
[W]hy the Court has failed in the intervening 130 years to correct the mistakes it made in
Slaughter-House and Cruikshank — is a real head-scratcher. In a way, the Court has “covered”
itself by subsequently developing a plausible, though tortured, substantive due-process and equal
protection jurisprudence, 444 which for practical purposes has provided some of the same
protections as if the Fourteenth Amendment had been properly recognized from the beginning.445
Moreover, the longer a particular holding is on the books, the more firmly entrenched it becomes
in the judiciary’s lexicon, and accordingly, under stare decisis, the more difficult it is to
overcome. 446 Another possible explanation, more basic still and no doubt better left to the work
of behavioral scientists, may be found in human nature itself. One of the first things one will
notice upon observing behavior on any grade-school playground is the tendency of some
children to want to make the rules and control the behavior of others. As personality traits
demonstrably carry through into adulthood,447 one may surmise that these particular
441
The Court explained,
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.
Slaughter-House Cases, 83 U.S. (16 Wall.) at 74.
442
Id. at 129 (Swayne, J., dissenting).
443
Slaughter-House did not explicitly address the particular question of incorporation of the Bill of Rights to the States
through the Fourteenth Amendment, leaving resolution of that issue (ultimately decided in the negative) to United States v.
Cruikshank, three years later. For a discussion involving United States v. Cruikshank see [Lawrence] notes 146-50 and
accompanying text.
444
The suggestion that the proper case simply has never come before the Court is implausible; any number of cases decided
on due process and equal protection grounds could easily have been decided on privileges or immunities grounds. See
[Lawrence] notes 205-09. In any event, the issue of Second Amendment incorporation now presents a means for the Court to
address the issue.
445
See generally AMAR, supra note 35.
446
There is always a place within the doctrine of stare decisis not to abide by earlier opinions that are themselves
fundamentally flawed. See also 1 TRIBE, supra note 5, at 1320-31. For example,
It would have been perfectly proper in 1953 to argue that because the Supreme Court had not recognized the right to
integrated schools, such a right did not exist, at least as a legally enforceable matter [after Plessy, b]ut such an argument
would hardly have stated an eternal truth about the Constitution, or even (as the following year proved) about the Supreme
Court’s view of the question.
Glenn Harland Reynolds, A CRITICAL GUIDE TO THE SECOND AMENDMENT, 62 Tenn. L. Rev. 461, 464 (1995) (footnotes
omitted). That said, interpreting the privileges or immunities clause anew according to its originally-intended expansive
terms would force a massive change to the status quo in the common law regarding the government’s role vis-à-vis the
individual. See infra notes 199-202 and accompanying text. See also, e.g., William Van Alstyne, THE SECOND AMENDMENT
AND THE PERSONAL RIGHT TO ARMS, 43 Duke L.J. 1236, 1254-55 (1994).
447
See, e.g., Avshalom Caspi & Brent W. Roberts, PERSONALITY DEVELOPMENT ACROSS THE LIFE COURSE: THE ARGUMENT
FOR CHANGE AND CONTINUITY, 12 Psychol. Inquiry 49 (2001) (demonstrating some continuity of personality from childhood
to adulthood).
246
desire-for-control characteristics may manifest themselves among politicians and jurists

whose legislation and jurisprudence may seek excessively to control others’ lives.448
Unsubstantiated pop psychology aside, the views of the Supreme Court are not ultimately
dispositive. 449 While the Court decides the law450 and thus exerts profound practical
influence, in the larger sense the final word is found only in the Constitution.451 In this
regard, Supreme Court holdings contradicting the dictates of the Constitution are,
paradoxically, themselves unconstitutional.
“human art and sophistry” page 63:
About the same time as Charles II passed legislation to disarm Englishmen in 1671, an act which
led ultimately to the Glorious Revolution of 1688 and the 1689 English Bill of Rights, Bacon’s
rebellion in Virginia responded to royal governor Sir William Berkeley’s similar legislation to
disarm indigenous Americans. Bacon’s rebellion prompted Berkeley’s memorable comment,
“‘[h]ow miserable that man who governs a people when six parts of seaven at least are Poore
Endebted Discontented and Armed.’”452 Halbrook reports,
While Berkeley eventually crushed Bacon’s Rebellion, he passed only feeble legislation
restricting the right to bear arms. . . . [S]o fundamental was the right to have arms that to
assemble with arms in numbers of five persons or more was the only offense decreed.
....
. . . [S]o fundamental were firearms to the lives and livelihoods of the individual subjects that the
royal administration conceded the right of every man to possess arms as an individual.453
448
Naturally some number of grade-school playground-controllers grow into legislators, government officials, and jurists —
including Supreme Court justices — who continue to scratch their control-itch by enacting laws, developing policies, and
handing down decisions that direct the behavior of others.
449
Curtis comments that
unless one surrenders entirely to positivism, the Constitution is not simply what the judges say it is. The law in a particular
case is what the judges say it is. The Constitution is a different matter. The document has a text, history, and tradition of its
own. There is nothing anomalous about the argument that the judges were misreading it.
The argument that the Supreme Court had misread and perverted the Constitution was made by leading Republicans [before
the Civil War]. Probably the most notable case was Abraham Lincoln’s response to the Dred Scott decision. Lincoln thought
the decision was wrong and refused to accept it as a rule of political action. “We propose,” he said, “so resisting it as to have
it reversed if we can, and a new judicial rule established in its place.”
Michael Kent Curtis, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS at 215 (1986).
450
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
451
Id. at 178 (“[T]he constitution is to be considered, in court, as a paramount law.”). See also [Lawrence] note 14 and
accompanying text.
452
Stephen P. Halbrook, THAT E VERY MAN BE ARMED: THE E VOLUTION OF A CONSTITUTIONAL RIGHT at 55-56 (1984) (quoting
H. Miller, THE CASE FOR LIBERTY 76 (1965)).
453
Id. at 57. Bissell wrote,
Private arms ownership for personal necessities was indeed an absolute right in colonial times and in the early days of the
republic. . . . In that society, people hunted for food. They protected themselves from the dangers of the frontier, including
Indians and wild animals. They traveled for long periods of time on lonely roads and shared accommodations with strangers
in taverns and boarding houses. Of course, there was limited police presence in the dark streets of their towns and even less
on the roadways.
247
Nearly one hundred years later, several newspapers, responding to English charges of sedition for
the colonials’ call to arms, wrote:
“[f]or it is certainly beyond human art and sophistry to prove the British subjects, to whom the
priviledge of possessing arms is expressly recognized by the Bill of Rights, and, who live in a
province where the law requires them to be equip’d with arms, etc. are guilty of an illegal act, in
calling upon one another to be provided with them, as the law directs.”454
“tyranny” (in the second footnote) page 48:
It is not as if the principles underlying the framers’ intent for the privileges or immunities clause
are unfamiliar to the Court. In fact it would be impossible for the Court to be so unaware, for the
clause itself is nothing more than the clearest, most direct and unadorned manifestation of the
very core idea that radiates from the Declaration, the Constitution, and the concept of America
itself: namely, Freedom. 455 Freedom positively permeates the founding documents, and the Court
could no more eliminate the idea of Freedom envisioned by the clause by closing the privileges or
immunities window for 130 years than by scrapping America itself.456
(3). “Oath” for federal judges, pages 42-44 (in last footnote)
1. Justice Black’s Adamson v. California dissent
457
Justice Hugo Black fought this battle for decades on the Court. Arguing in favor of the “total
incorporation” of the Bill of Rights, Justice Black said,
My study of the historical events that culminated in the Fourteenth Amendment, and the
expressions of those who sponsored and favored, as well as those who opposed its submission
and passage, persuades me that one of the chief objects that the provisions of the Amendment’s
first section, separately, and as a whole, were intended to accomplish was to make the Bill of
John Bissell, BENCH OPINION ON THE SECOND AMENDMENT, 10 Seton Hall Const. L.J. at 811 (2000).
454
Joyce Lee Malcolm, TO KEEP AND BEAR ARMS: THE ORIGINS OF AN ANGLO-AMERICAN RIGHT at 144-45 (1994) (quoting
BOSTON EVENING POST, Feb. 6, 1769, reprinted in BOSTON UNDER MILITARY RULE, 1768-1769, AS REVEALED IN A JOURNAL OF
THE TIMES 61 (Oliver Morton Dickerson ed., 1936)).
455
See, e.g., Eric Foner, THE STORY OF AMERICAN FREEDOM at xiii (1998).
No idea is more fundamental to Americans’ sense of themselves as individuals and as a nation than freedom. . . . or “liberty,”
with which it is almost always used interchangeably . . . . The Declaration of Independence lists liberty among mankind’s
inalienable rights; the Constitution announces as its purpose to secure liberty’s blessings. . . . If asked to explain or justify
their actions, public or private, Americans are likely to respond, “It’s a free country.” “Every man in the street, white, black,
red or yellow,” wrote the educator and statesman Ralph Bunche in 1940, “knows that this is ‘the land of the free’ . . . ‘the
cradle of liberty.’”
Id. (fourth omission in original).
456
The very foundation of the Founders’ and Framers’ political theory was to “free the individual from the oppressive misuse
of power, [and] from the tyranny of the state.” Bernard Bailyn, THE IDEOLOGICAL ORIGINS OF THE AMERICAN REVOLUTION at
vi (1967).
457
[Justice Black] was a textualist, and he took his text from the Constitution, particularly the Bill of Rights. He often read the
provisions with a literalism that was disarming or infuriating, depending on one’s views. For Black, precedent occupied a
secondary position. His approach to application of the Bill of Rights to the states is an example. The fact that case after case
had rejected total application of the Bill of Rights to the states did not deter Justice Black.
Michael Kent Curtis, NO STATE SHALL ABRIDGE: THE FOURTEENTH AMENDMENT AND THE BILL OF RIGHTS at 201 (1986).
248
Rights applicable to the states. With full knowledge of the import of the Barron decision, the
framers and backers of the Fourteenth Amendment proclaimed its purpose to be to overturn the
constitutional rule that case had announced. This historical purpose has never received full
consideration or exposition in any opinion of this Court interpreting the Amendment.458
Justice Black points out that in construing section one on the issue of incorporation, over time the
Court had unexplainedly departed from its almost uniform “salutary practice” of “plac[ing]
[itself] as nearly as possible in the condition of the men who framed” the Constitution;459 and
observed that none of the briefs or opinions in any of the cases, except one, used to support the
Court’s refusal to apply the Bill of Rights to the States, consider at all the Fourteenth
Amendment’s legislative or contemporaneous history. 460
In Maxwell v. Dow, 461 which, according to Justice Black, was the one case that did that
acknowledge contemporary history,462 the Court merely “acknowledged that counsel had ‘cited
from the speech of one of the Senators,’ but indicated that it was not advised what other speeches
were made in the Senate or in the House.”463
Justice Black adds,
[t]he Maxwell Court considered, moreover, that “[w]hat individual Senators or Representatives
may have urged in debate, in regard to the meaning to be given to a proposed constitutional
amendment, or bill, or resolution, does not furnish a firm ground for its proper construction, nor is
it important as explanatory of the grounds upon which the members voted in adopting it.”464
Justice Black further notes “[t]he [Twining] Court admitted that its action had resulted in giving
‘much less effect to the 14th Amendment than some of the public men active in framing it’ had
intended it to have,”465 in holding that the question of whether section one was intended to apply
the Bill of Rights to the states was “‘no longer open’ because of previous decisions of this Court
which, however, had not appraised the historical evidence on that subject.”466
Well, as Justice Black implies, the Court’s position on these points is unsupportable.467 The
approach runs counter to common-sense principles of construction that, in seeking to interpret the
intended scope of a writing, one should look first to the text, then to the meaning expressed and
assigned to it by the person(s) who actually did the writing in order to illuminate the text. For the
458
Adamson v. California, 332 U.S. 46, 71-72 (1947) (Black, J., dissenting) (footnote omitted). Although Justice Black’s
“total incorporation” approach has never been vindicated by the Court, the practical effect has been almost the same, with
most (but not all – hence, this article) of the Bill of Rights applied to the states through the Court’s due process “selective”
incorporation approach.
459
Id. at 72-73 (Black, J., dissenting).
460
Id. at 73.
461
176 U.S. 581 (1900).
462
Specifically, counsel for the appellant in Maxwell cited the speech by Senator Jacob Howard which “so emphatically
stated the understanding of the framers of the Amendment . . . that the Bill of Rights was to be made applicable to the states
by the Amendment’s first section.” Adamson, 332 U.S. at 73 (Black, J., dissenting).
463
Id.
464
Id.
465
Id. at 74 (quoting Twining v. New Jersey, 211 U.S. 78, 96 (1908)).
466
Id.(quoting Twining, 211 U.S. at 98).
467
See [Lawrence] note 66 and accompanying text.
249
Court thus to ignore, in case after case, decade after decade,468 the relevant official statements of
numerous members of Congress involved in drafting and passing the Fourteenth Amendment 469
is simply a failure of the Court’s institutional responsibility to interpret faithfully the
Constitution. Moreover, it is a failure of the individual justices’ sworn commitment to “faithfully
. . . discharge . . . duties . . . under the Constitution.”470
C. The Stare Decisis Doctrine in Planned Parenthood v. Casey 505 U.S. 833 at 854-
855 (Part III. A.) (1992); 120 L. Ed.2d. 674, 700 (1992).
O’Connor, J., plurality joint opinion with J.J. Kennedy and Souter, speaking, in part three, for the Court:
The obligation to follow precedent begins with necessity, and a contrary necessity marks its outer
limit. With Cardozo, we recognize that no judicial system could do society’s work if it eyed each
issue afresh in every case that raised it. See B. Cardozo, THE NATURE OF THE JUDICIAL PROCESS
149 (1921). Indeed, the very concept of the rule of law underlying our own Constitution requires
such continuity over time that a respect for precedent is, by definition, indispensable. See Powell,
Stare Decisis and Judicial Restraint, 1991 JOURNAL OF SUPREME COURT HISTORY 13, 16. At the
other extreme, a different necessity would make itself felt if a prior judicial ruling should come to
be seen so clearly as error that its enforcement was, for that very reason, doomed.
Even when the decision to overrule a prior case is not, as in the rare, latter instance, virtually
foreordained, it is common wisdom that the rule of stare decisis is not an “inexorable command,”
and certainly it is not such in every constitutional case, see Burnet v. Coronado Oil & Gas Co.,
285 U.S. 393, 405 -411 (1932) (Brandeis, J., dissenting). See also Payne v. Tennessee, 501 U.S.
808, 842 (1991) (Souter, J., joined by Kennedy, J., concurring); Arizona v. Rumsey, 467 U.S. 203,
212 (1984). Rather, when this Court reexamines a prior holding, its judgment is customarily
informed by a series of prudential and pragmatic considerations designed to test the consistency
of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of
reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has
proven to be intolerable simply in defying practical workability, Swift & Co. v. Wickham, 382
U.S. 111, 116 (1965); whether the rule is subject to a kind of reliance that would lend a special
hardship to the consequences of overruling and add inequity to the cost of repudiation, e.g.,
468
Curtis notes that
[b]y 1892 six people who sat as Justices on the Supreme Court had concluded that the privileges or immunities clause of the
Fourteenth Amendment applied the Bill of Rights to the states: Justice Woods, before his elevation to the Court; Justices
Bradley and Swayne in the Slaughter-House Cases [dissent]; and Justices Field, Brewer, and Harlan in the case of O’Neil v.
Vermont. Unfortunately, they did not sit and reach their conclusions at the same time.
Michael Kent Curtis, NO STATE SHALL ABRIDGE: THE FOURTEENTH A MENDMENT AND THE BILL OF RIGHTS at 191 (1986)
(footnotes omitted).
469
These statements include those of Representative John Bingham, who, as Justice Black says, “may, without extravagance,
be called the Madison of the first section of the Fourteenth Amendment.” Adamson, 332 U.S. at 74 (Black, J., dissenting).
470
The oath administered to federal judges reads,
I, ______, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the
poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as
[judge/justice] under the Constitution and laws of the United States. So help me God.
28 U.S.C § 453 (2000).
250
United States v. Title Ins. & Trust Co., 265 U.S. 472, 486 (1924); whether related principles of
law have so far developed as to have left the old rule no more than a remnant of abandoned
doctrine, see Patterson v. McLean Credit Union, 491 U.S. 164, 173-174 (1989); or whether facts
have so changed, or come to be seen so differently, as to have robbed the old rule of significant
application or justification, e.g., Burnet, supra, 285 U.S. at 412 (Brandeis, J., dissenting).
251
252
PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT

Part 19. The Claims
Part 25. Damages
253
A. Law Review Articles for 2008

(1). Suja A. Thomas, WHY SUMMARY JUDGMENT IS STILL UNCONSTITUTIONAL: A REPLY TO PROFESSORS
BRUNET AND NELSON, Iowa Law Review, Vol. 93, No. 5, (2008) (University of Cincinnati College of Law)
(2). Suja A. Thomas, WHY THE MOTION TO DISMISS IS NOW UNCONSTITUTIONAL, Minnesota Law Review,
Vol. 92, (2008) (University of Cincinnati College of Law: U of Cincinnati Public Law Research Paper No. 07-15)
(3). Suja A. Thomas, The UNCONSTITUTIONALITY OF SUMMARY JUDGMENT: A STATUS REPORT, Iowa Law
Review, Vol. 93, No. 5, (2008) (University of Cincinnati College of Law)
B. Law Review Articles from 2007
(1). John Bronsteen, AGAINST SUMMARY JUDGMENT, 75 George Washington Law Review 522 (April
2007) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=925158
(2). Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Virginia Law Review, 139
(2007) (University of Cincinnati College of Law: University of Cincinnati Public Law Research Paper No. 06-04)
(3). Suja A. Thomas, THE CIVIL JURY: THE DISREGARDED CONSTITUTIONAL ACTOR, U of Cincinnati Public
Law Research Paper No. 07-30, (November 12, 2007)
(4). Suja A. Thomas, THE SEVENTH AMENDMENT, MODERN PROCEDURE AND THE ENGLISH COMMON LAW,
Washington University Law Quarterly, Vol. 82, p. 687, (2004) (University of Cincinnati College of Law)
C. Professor Suja Thomas discusses the Seventh Amendment Right to a Jury Trial
at the University of Cincinnati College of Law (November 8, 2007)
http://www.law.uc.edu/news/news/thomas.shtml
Cincinnati, OH: University of Cincinnati College of Law Professor Suja Thomas [presented]
“The Civil Jury: The Disregarded Constitutional Actor,” a discussion on the Seventh Amendment
right to a jury trial and the role of the jury in relationship to other constitutional actors on
Thursday, November 8, 2007 at 12:00 p.m. The lecture, [was] held in Room 114 at the law
school, [] followed by a question and answer session. Application [was] made for 1 hour of CLE
credit for Ohio.
“The civil jury enjoys constitutional protection,” said Professor Thomas. “The constitution
establishes the civil jury as a separate constitutional actor, like the judiciary, the executive, the
legislature and the states under the separation of powers and federalism. The Seventh Amendment
sets forth in what circumstances a right to a jury trial occurs and in what circumstances the right
can be circumscribed.”
She continued, “Despite this protection, through devices such as summary judgment, remittitur
and arbitration enforcements, another constitutional actor, the judiciary, exercises significant
unchecked power over the power of the civil jury with the result that few civil jury trials occur
any longer. If we are to maintain a role for the civil jury in our constitutional structure, the
254
judiciary itself should play a special role of modesty in its exercise of power over the jury which
itself cannot protect its power.”
Professor Thomas, Professor of Law, earned her BA in mathematics from Northwestern
University and her JD from New York University School of Law. Following a federal clerkship
in Chicago and practice in New York City, she began teaching law at the University of Cincinnati
College of Law. She is the recipient of the Harold C. Schott Scholarship Award, which
recognizes outstanding research and scholarly achievement by a member of the law school
faculty, and the Jerome Goldman Prize for Teaching Excellence. Professor Thomas also received
the Schott Law Review Award for her article “WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL,”
published by the Virginia Law Review, 471 featured in the New York Times, and cited by Judge
Jack Weinstein for the proposition that “[t]he increasing use of bench trials, Daubert hearings,
summary judgments, and directed verdicts-as authorized by rules of practice and appellate courts-
to limit jury fact finding and set aside verdicts poses a threat to the continued viability of the
Seventh Amendment jury trial.”
Her work on the civil jury is published in the Virginia Law Review, the Washington University
Law Quarterly, the Colorado Law Review and the Ohio State Law Journal. Her most recent
article “WHY THE MOTION TO DISMISS IS NOW UNCONSTITUTIONAL” will be published next year in
the Minnesota Law Review, 472 and her further work on the Seventh Amendment will be
discussed and published in a symposium by the Iowa Law Review. 473
471
93 Virginia Law Review, 139 (2007)
472
92 Minnesota Law Review, (2008)
473
Suja A. Thomas, WHY SUMMARY JUDGMENT IS STILL UNCONSTITUTIONAL: A REPLY TO PROFESSORS BRUNET AND
NELSON, Iowa Law Review, Vol. 93, No. 5, (2008)
255
D. New York Times Sidebar: Cases Keep Flowing In, But The Jury Pool Is Idle
(April 30, 2007)
Sidebar:
CASES KEEP FLOWING IN, BUT THE JURY POOL IS IDLE
by Adam Liptak
The New York Times
April 30, 2007
Trials are on the verge of extinction. They have been Professor Galanter elaborated in an interview.
replaced by settlements and plea deals, by “Summary judgments are being asked for in about
mediations and arbitrations and by decisions from 17 percent of cases and granted in about 9 percent,”
judges based only on lawyers’ written submissions. he said, citing recent data from the Federal Judicial
Center. That is a big jump from 1960, when no more
Federal courts conducted about 3,600 trials in civil
than 1.8 percent of federal civil cases ended in
cases last year, down from 5,800 in 1962. That is not
summary judgment, according to data from the
an enormous drop— until you consider that the
administrative office of the federal courts analyzed
number of cases has quintupled in the meantime.
in a 1961 law review article.
In percentage terms, only 1.3 percent of federal civil
“We’ve moved in a way to a more European way of
cases ended in trials last year, down from 11.5
decision-making, by looking at the court file rather
percent in 1962.
than through encounters with living witnesses whose
The trends in criminal cases and in the state courts testimony is tested by cross-examination,” Professor
are broadly similar, though not always quite as Galanter said.
striking. But it is beyond dispute that even as the
In criminal cases, the vast majority of prosecutions
number of lawyers has grown twice as fast as the
end in plea bargains. In an article called “Vanishing
population and even as the number of lawsuits has
Trials, Vanishing Juries, Vanishing Constitution” in
exploded, actual trials have become quite rare.
the Suffolk University Law Review last year, a
Instead of hearing testimony, ruling on objections federal judge questioned the fairness of the choices
and instructing jurors on the law, judges spend most confronting many criminal defendants.
of their time supervising the exchange of
Those who have the temerity to “request the jury
information, deciding pretrial motions and dealing
trial guaranteed them under the U.S. Constitution,”
with settlements and plea bargains.
wrote the judge, William G. Young of the Federal
There is, of course, nothing wrong with settlements, District Court in Boston, face “savage sentences”
at least when they are the product of reasoned and that can be five times as long as those meted out to
sensible compromise between evenly matched defendants who plead guilty and cooperate with the
adversaries. But trials are not disappearing simply government.
because more cases are being settled. Instead, they
The movement away from jury trials is not just a
are increasingly being replaced by summary
societal reallocation of resources or a policy choice.
judgments, in which judges evaluate evidence
Rather, as Judge Young put it, it represents a
submitted to them on paper.
disavowal of “the most stunning and successful
“During the last years of the 20th century, summary experiment in direct popular sovereignty in all
judgment in the federal courts moved from a small history.”
fraction of dispositions by trial to a magnitude
Indeed, juries were central to the framers of the
several times greater than the number of trials,”
Constitution, who guaranteed the right to a jury trial
Marc Galanter, who teaches law at the University of
in criminal cases, and to the drafters of the Bill of
Wisconsin and the London School of Economics and
Rights, who referred to juries in the Fifth, Sixth and
Political Science, wrote last year in The Journal of
Seventh Amendments. Jury trials may be expensive
Dispute Resolution.
256
and time-consuming, but the jury, local and populist, a court officer, with mixed pride and hyperbole, said
is a counterweight to central authority and is as his was the busiest courthouse in America.
important an element in the constitutional balance as
I never saw so much as the inside of a courtroom.
the two houses of Congress, the three branches of
After a couple of days of milling around in an
government and the federal system itself.
assembly room with more than 100 other potential
In an article titled “WHY SUMMARY JUDGMENT IS jurors, the State of New York thanked us for our
UNCONSTITUTIONAL,” published last month in the service and sent us home.
Virginia Law Review, Suja A. Thomas, a law
professor at the University of Cincinnati, makes the
perfectly plausible argument474 that the procedure
violates the Seventh Amendment, which reserves the
job of determining the facts in civil cases to juries.
When judges decide summary judgment motions,
Professor Thomas wrote, they intrude on that job.
The theory of summary judgment is that judges may
rule for one side or the other only after finding that
no “genuine” issues of “material” fact are in dispute.
They must determine, as the Supreme Court has put
it, whether “a reasonable jury could return a verdict”
for the party defending against a motion for
summary judgment.
All of that pushes judges right up to and sometimes
across the constitutional line of determining the facts
for themselves.
In 2004, in the process of revitalizing the role of the
jury in criminal cases, Justice Antonin Scalia of the
Supreme Court wrote that there were good
arguments for “leaving justice entirely in the hands
of professionals.” But that is not the theory of the
Constitution, he continued, which enshrined “the
common-law ideal of limited state power
accomplished by strict division of authority between
judge and jury.”
The jury trial is a distinctively American tradition in
a cultural sense, too. Almost all civil jury trials in
the world take place here, and 90 percent of the
criminal ones. But that tradition, which Prof. Paul
Butler of George Washington University calls “as
fundamental a part of our culture as jazz or rock ‘n’
roll,” is dying.
I was on jury duty last week, in a state criminal court
in Manhattan. During the orientation on Wednesday,
474
Plainitiff’s emphasis to correspond with the new
“Plausible Standard” of stating a claim in Bell Atlantic
Corp. v. Twombly, 550 U.S. __, __, 127 S. Ct. 1955, at
1974 (May 21, 2007).
257
258
E. Dissenting Opinions Exposing Too Many Summary Judgments

“In a number of cases dissenting opinions have in time become the law.” Charles Evans Hughes, THE SUPREME
COURT OF THE UNITED STATES, Chapter 1: The Court at Work – Organization – Methods. p. 68; A Columbia
Paperback. Columbia University Press. 1966.
(1). Melvin v. Cal-Freshener Corp., 8th Circuit, No. 06-1279 (2006)
Circuit Judge Lay dissenting:
Too many courts in this circuit, both district and appellate, are utilizing summary judgment in
cases where issues of fact remain. This is especially true in cases where witness credibility will be
determinative. In these instances, a jury, not the courts, should ultimately decide whether the
plaintiff has proven her case. Summary judgment should be the exception, not the rule. It is
appropriate “only . . . where it is quite clear what the truth is, . . . for the purpose of the rule is not
to cut litigants off from their right of trial by jury if they really have issues to try.” Poller v.
Columbia Broad. Sys., Inc., 368 U.S. 464, 467 (1962) (emphasis added) (citation and internal
quotations omitted).
It is undeniable that summary judgment is a valuable tool, the use of which allows overextended
courts to remove cases that lack merit from their dockets. See Celotex Corp. v. Catrett, 477 U.S.
317, 327 (1986). However, in accomplishing this goal, we have an obligation not to “overlook[]
considerations which make . . . summary judgment an inappropriate means to that very desirable
end.” Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944). As Justice Black
explained,
The right to confront, cross-examine and impeach adverse witnesses is one of the most
fundamental rights sought to be preserved by the Seventh Amendment provision for jury trials in
civil cases. The advantages of trial before a live jury with live witnesses, and all the possibilities
of considering the human factors, should not be eliminated by substituting trial by affidavit and
the sterile bareness of summary judgment.
(2). Adickes v. S.H. Kress & Co., 398 U.S. 144, 176 (1970)
Black, J., concurring:
I express no opinion as to whether Melvin would ultimately be able to convince a jury in this
case. However, she and all other similarly-situated plaintiffs should be afforded the opportunity
to do so.
(3). Montana v. Hall, 481 U.S. 400, 406-410 (1987)
In Justice Marshall’s dissenting opinion:
For years, I have been troubled by our disposition of appeals and petitions for certiorari through
summary per curiam opinions, without plenary briefing on the merits of the issues decided. 475
Other Justices have registered similar objections, disputing the Court’s application of the criteria
475
See, e. g., Allen v. Hardy, 478 U.S. 255, 261 (1986) (MARSHALL, J., dissenting); Maggio v. Fulford, 462 U.S. 111, 120
(1983) (MARSHALL, J., dissenting); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 62 (1982) (MARSHALL, J.,
dissenting); Wyrick v. Fields, 459 U.S. 42, 50 (1982) (MARSHALL, J., dissenting); Harris v. Rivera, 454 U.S. 339, 349
(1981) (MARSHALL, J., dissenting); Schweiker v. Hansen, 450 U.S. 785, 791 (1981) (MARSHALL, J., dissenting); Harris
v. Rosario, 446 U.S. 651, 652 (1980) (MARSHALL, J., dissenting); Smith v. Arkansas State Highway Employees, 441 U.S.
463, 466 (1979) (MARSHALL, J., dissenting).
259
that supposedly determine when a summary disposition is clearly justified.476 Our persistent
indulgence in this practice over the objections of our colleagues has tarnished what has long been
considered one of this judicial institution’s greatest qualities, the fairness and integrity of its
decisionmaking process.
Through summary dispositions, we deprive the litigants of a fair opportunity to be heard on the
merits. Our Rules tell the petitioner and respondent that we will grant review on writ of certiorari
“when there are special and important reasons therefor.” 477 In listing the considerations that are
important in deciding whether review should be granted, we mention such things as conflicting
decisions from other courts and unsettled questions of federal law. We do not indicate that the
parties should address the merits of the lower court’s decision beyond what is necessary to
demonstrate whether the case is important enough to receive plenary review.478 Our 30-page
limit for petitions and responses, and the command that they be “as short as possible,” 479
unmistakably indicate that these papers should not contain detailed discussions of the merits. If
we find the case sufficiently important, the Rules inform the parties that the petition will be
granted and “[t]he case then will stand for briefing and oral argument.”480 Yet when we issue a
summary disposition we ignore these instructions and proceed to decide the case as if it has been
fully briefed on the merits. In my view, simply put, this is not fair.481
Admittedly, the Rules indicate that summary dispositions on the merits are possible,482 but in
light of our instructions regarding the preparation of petitions and responses this places the
litigants in a difficult dilemma. If they venture beyond arguments for granting or denying
certiorari, they risk violating the Rules; but if they fail to cover the merits of the lower court’s
decision in full, they risk summary disposition without having been heard.483 In response to these
pressures, counsel may tend to extend their arguments in petitions and responses beyond the
purposes defined in the Rules. Apart from increasing the litigants’ costs, this tendency can only
increase our workload, thereby giving those who favor uncounseled summary dispositions
additional justification for not allowing full briefing on the merits.484
476
See, e. g., Board of Education of Rogers, Ark. v. McCluskey, 458 U.S. 966, 971 -972 (1982) (STEVENS, J., dissenting);
United States v. Hollywood Motor Car Co., 458 U.S. 263, 271 (1982) (BLACKMUN, J., dissenting); Hutto v. Davis, 454
U.S. 370, 387 (1982) (BRENNAN, J., dissenting); Stone v. Graham, 449 U.S. 39, 47 (1980) (REHNQUIST, J., dissenting);
Oregon State Penitentiary v. Hammer, 434 U.S. 945, 947 (1977) (STEVENS, J., dissenting); Eaton v. Tulsa, 415 U.S. 697,
707 (1974) (REHNQUIST, J., dissenting); cf. Shipley v. California, 395 U.S. 818, 821 (1969) (WHITE, J., dissenting).
477
This Court’s Rule 17.1.
478
At our direction the respondent focuses instead on “disclosing any matter or ground why the cause should not be
reviewed.” Rule 22.1.
479
Rules 21.4 and 22.2. In this case, petitioner devoted 12 pages to the merits of the double jeopardy issue decided by the
Court today, respondent only 7. Pet. for Cert. 10-21; Respondent’s Brief in Opposition 8-14. An amicus curiae brief
submitted on behalf of 17 States devoted a total of five pages to the merits. Brief for the States and Commonwealths of
Indiana et al. as Amici Curiae 2-6.
480
Rule 23.2.
481
This lack of fairness has not escaped the notice of commentators. See, e. g., E. Brown, The Supreme Court 1957 Term -
Forward: Process of Law, 72 Harv. L. Rev. 77, 80, 82, (1958); R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice
284-285 (6th ed. 1986).
482
Rule 23.1. This Rule was not codified until 1980. Stern, Gressman, & Shapiro, Supreme Court Practice, supra, at 277.
483
Cf. United States v. Hollywood Motor Car Co., supra, at 271 (BLACKMUN, J., dissenting).
484
See Hutto v. Davis, supra, at 387, n. 6 (BRENNAN, J., dissenting); Stern, Gressman, & Shapiro, Supreme Court Practice,
supra, at 286.
260
Not only do we reach these summary dispositions without the benefit of thorough briefing, but
the Court often acts without obtaining the complete record of the proceedings below. Records are
no longer automatically certified and delivered to us for every petition.485 In fact, we expressly
discourage transmission of the record at this stage of the proceedings, 486 which again indicates
that the focus of certiorari is on whether a case is important enough to warrant plenary review and
not whether, after abbreviated review, we are able to conclude that the case was rightly or
wrongly decided below. Of course, we may call for the record where we think a summary
disposition might be proper, and our Clerk notifies the parties of this development, but we do not
provide for supplemental briefing on the merits.487 All too often, as in the case decided today, the
Court does not even bother to call for the record. Again, counsel face a dilemma: they may
routinely request that records be transmitted, thus protecting the interests of their clients at the
risk of violating the Rules, or they may fail to request transmission and risk summary disposition
based on less than complete review.
I cannot accept the proposition that additional briefing and review of the full record will increase
the workload of this Court unbearably. Our duty to litigants today is to consider carefully every
petition and response filed in this Court. But our duty extends to future litigants as well, and it is
heightened when we issue written opinions. To reduce the incidence of mistakes and to avoid
delivering conflicting or confusing opinions, our decisions in these cases should be made only
after we have had an opportunity to consider comprehensive briefs and review the records in their
entirety. We are not infallible, as is evidenced, for example, by the number of cases each Term
that are dismissed after plenary briefing and oral argument as having been improvidently granted.
The time and effort required to read supplemental briefs in cases for which we are considering
summary dispositions would be minimal,488 and the relative gains substantial.
More is at stake, however, than offsetting the litigants’ entitlement to be heard on the merits
against our desires to avoid increasing the workload. Summary dispositions often do not accord
proper respect for the judgments of the lower courts, particularly when these judgments are
reversed. 489 The judges below have had the benefit of full briefing on the merits and review of the
entire record. They must perceive - correctly - that our cavalier reversals are inherently less well
informed.
I believe, moreover, that summary dispositions in many instances display insufficient respect for
the views of dissenting colleagues on this Court. The tendency is to forget that we are equally
uninformed. What troubles a single Justice about a particular case may become, after full
briefing, a decisive factor in the judgment of the Court. As it is, we forge ahead issuing per
curiam opinions as if the issue were crystal clear, at times over objection from as many as four
485
See generally Stern, Gressman, & Shapiro, Supreme Court Practice, supra, at 329-333.
486
Rule 19.1.
487
A party may, at any time, file a supplemental brief not exceeding 10 pages, but these briefs can only address a “new
matter” not available at the time of the party’s last filing. Rule 22.6. This Rule does not envision supplemental briefing when
the Court calls for the record. See also Rule 21.3 (supplemental brief in support of petition will not be received).
488
To put matters in perspective, were we to shorten the acceptable length of petitions and responses merely by one-fifth of a
single page, it would free up at least 2,000 pages worth of our reading time to consider full briefs for the relatively few
summary dispositions we issue each year. That comes to 40 briefs, at 50 pages each, or 20 cases decided in which the parties
and the Court would have the benefit of full briefing. This assumes that 5,000 petitions are filed each year, and that on the
average litigants use the complete 30 pages allowed. The former assumption is conservative and is a matter of record; based
on my personal observation the latter assumption is more than fair.
489
See, e. g., Stone v. Graham, 449 U.S., at 47 (REHNQUIST, J., dissenting); Oregon State Penitentiary v. Hammer, 434
U.S., at 947 (STEVENS, J., dissenting).
261
other Justices. 490 It is not unreasonable to believe, as I do, that the integrity of a summary
decision from a divided Court would benefit from additional briefing on the merits by those who
have litigated the issues of the case from its inception.
“Per curiam” is a Latin phrase meaning “[b]y the court,”491 which should distinguish an opinion
of the whole Court from an opinion written by any one Justice. Our use of a lengthy per curiam
opinion, over the dissent of those who would set the case for briefing, to resolve the merits of a
case without devoting the usual time or consideration to the issues presented, is wrong. Such an
opinion does not speak for the entire Court on a matter so clear that the Court can and should
speak with one voice. Instead, it speaks for a majority of Justices who take it upon themselves to
resolve the merits of a dispute solely on the basis of preliminary petitions and responses.
I can think of no compelling reason, and to date none has been suggested, why we should nurture
a practice that can only foster resentment, uncertainty, and error. Rather, I believe that when the
Court contemplates a summary disposition it should, at the very least, invite the parties to file
supplemental briefs on the merits, at their option. This simple accommodation to the reasonable
expectations of the litigants, to the integrity of the lower courts, and to the desires of other
Justices for a more studied decision would go a long way toward achieving the fairness and
accuracy that the Nation rightfully expects from its Court of last resort. Until this, or some other,
reasonable accommodation is implemented, I remain in dissent.
490
See, e. g., Newport v. Iacobucci, 479 U.S. 92 (1986).
491
Black’s Law Dictionary 1023 (5th ed. 1979) (emphasis added).
262
PART 13. CHALLENGING THE FEDERAL COURT RULING

Part 19. The Claims
Part 25. Damages
263
A. Capt. J. P. Brusseau Violated his Oath of Office when he ascribed a Personal

Ideology against the Second Amendment as a Basis for the Denial Letter, April 19,
2002
That Don Hamrick’s cause of action arose in 2002 from a judicial review of the U.S. Coast Guard’s final
agency action denial, (46 C.F.R. § 1.01–30),492 of his application for an endorsement on his Merchant Mariner’s
Document, such endorsement to read, “National Open Carry Handgun” for which there were and still are no
federal laws or regulations for or against that particular endorsement. The reason given for the denial is found in
the U.S. Coast Guard’s letter dated April 19, 2002:
Dated April 19, 2002

Dear Mr. Hamrick:
This is to address your appeal of a decision by the Commanding Officer, Coast Guard National
Maritime Center concerning your Merchant Mariner’s Document.
In your letter of 19 January 2002, you applied to have your Merchant Mariner’s Document
endorsed “National Open Carry Handgun.” The Commanding Officer, Coast Guard National
Maritime Center replied to you in his letter of 22 February, denying your application. You
appealed that decision in your letter of 16 March to Secretary of Transportation Norman Y.
Mineta, and supplemented your appeal with your letter 29 March, also to Secretary Mineta. Your
appeal was forwarded to me for final agency action as outlined in 46 CFR 1.03-15(j).
I am impressed with your scholar ship and zeal in formulating arguments in support of your
application for a “National Open Carry Handgun” endorsement on your Merchant Mariner’s
Document, but I am not persuaded to agree with you. 493 As you have noted, the laws and
regulations do not provide for such an endorsement nor do they prohibit it. Instead, the matter is
left to my judgment.494 My decision, after considering all the material your have submitted, is
that it would not be in the best interest of marine safety or security495 to initiate the
endorsement you have applied for. Your appeal is therefore denied and the Commanding Officer,
National Maritime Center is directed not to place any endorsements regarding firearms on any
merchant mariner’s licenses or documents.
This decision constitutes final agency action as cited above.
Capt. J. P. Brusseau
Director of Field Activities
Marine Safety, Security and Environmental Protection
492
Plaintiff’s Note: 46 CFR 1.01-30(a) Judicial Review states: “Nothing in this chapter shall be construed to prohibit any
party from seeking judicial review of any Commandant’s decision or action taken pursuant to the regulations in this part or
part 5 of this chapter with respect to suspension and revocation proceedings arising under 46 U.S.C. chapter 77.
493
Emphasis added.
494
Emphasis added.
495
Emphasis added.
PART 13. CHALLENGING THE F264

EDERAL COURT RULING

Part 19. The Claims
Part 25. Damages
265
A. Hamrick v. President George W. Bush, U.S. District Court for DC, No. 02-1435
(2002)
On June 26, 2008 Justice Scalia of the U.S. Supreme Court, in District of Columbia, et al, v. Heller, No.
07-290 held that “[t]he Second Amendment protects an individual right to possess a firearm unconnected with
service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
The Heller opinion overrules Judge Ellen Segal Huvelle’s Memorandum on the Second Amendment in
Don Hamrick v. George W. Bush, U.S. District Court for the District of Columbia, No. 02-1435 (2002). I am here
for a rematch under my Seventh Amendment right to a civil jury and under 42 U.S.C. § 1988 PROCEEDINGS IN
VINDICATION OF CIVIL RIGHTS; 42 U.S.C. § 1986 ACTION FOR NEGLECT TO PREVENT CONSPIRACIES TO INTERFERE
WITH CIVIL RIGHTS (42 U.S.C. § 1985); and 42 U.S.C. § 1983 CIVIL ACTION FOR DEPRIVATION OF CIVIL RIGHTS.
And by such conspiracies to interfere with my civil rights, statutory rights, constitutional rights, and human rights
under international human rights treaties through the treaty clause of the U.S. Constitution I seek a Civil Remedy
as a PRIVATE ATTORNEY GENERAL for my claims against the United States of engaging in racketeering activity
under the RICO Act in accordance with 18 U.S.C. § 1964 threefold damages that I have sustained in the original
wrongful 12-day detention in Lithuania by the U.S. Coast Guard in 2002 ($14 million) plus additional damages
for obstructions of justice by they U.S. Coast Guard, the U.S. Marshals Service, the FBI, the U.S. Department of
Justice, and federal judges from 2002 to the present through FRAUD AND FALSE STATEMENTS under 18 U.S.C. §
1001(a)(1), (2), and (3); and the cost of the suit during the 6-year span, including a reasonable attorney’s fee (even
though I never been represented by an attorney in this 6-year litigious journey for justice), which includes
extortion of exempted filing fees from a seaman (18 U.S.C. § 872) in violation of the Seamen’s Suit law, 28
U.S.C. § 1916 as a predicate act of RACKETEERING ACTIVITY under 18 U.S.C. § 1961(1)(A) – EXTORTION – as
well as under 18 U.S.C. § 1961(1)(B) – OBSTRUCTION OF JUSTICE – as defined under 18 U.S.C. § 1503(a).
In regard to the Heller opinion that the Second Amendment is an individual right and not exclusively or
collaterally a State’s right to arm a militia I cite Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)
([W]here intervening Supreme Court authority is clearly irreconcilable with our prior circuit authority[,] ... a
three-judge panel of this court and district courts should consider themselves bound by the intervening higher
authority and reject the prior opinion of this court as having been effectively overruled.”)

EDERAL COURT RULING
Hamrick v. President George W. Bush

U.S. District Court for the District of Columbia
No. 02-1435 (2002)
[OVERRULED]
MEMORANDUM
On July 18, 2002, petitioner filed a pro se Petition for A Writ of Mandamus, requesting
this Court, inter alia, to compel the President of the United States to protect the constitutional
rights of sailors in the U.S. Merchant Marine to carry handguns while ashore in the United States,
to strike various federal statutes and regulations restricting individuals’ right to transport firearms
across state lines on the grounds that they violate the Second, Ninth, and Thirteenth Amendments
of the U.S. Constitution, and to compel the U.S. Coast Guard to approve petitioner’s application
for “National Open Carry Handgun” endorsement on his Merchant Marine document. Petitioner
has not served a complaint and summons on any of the parties he has named as respondents,
seeking instead to use a petition-show cause order approach for the resolution of his grievances.
Regardless of whether such an approach is appropriate in light of Rule 81(b) of the Federal Rules
of Civil Procedure, it is clear that petitioner cannot satisfy the stringent standards for mandamus
relief and therefore that his petition must be dismissed.
The remedy of mandamus is an extraordinary one, and is reserved for extraordinary
situations. See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988).
Under well-established Circuit law, mandamus relief is available only if three conditions are met:
(1) the plaintiff has a clear right to relief;
(2) the defendant has a clear duty to act; and
(3) there is no other adequate remedy available to the plaintiff.
Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002); see also In re Bluewater Network, 234
F.3d 1305, 1315 (D.C. Cir. 2000) (mandamus issued “only for the most transparent violations of a
clear duty to act”). The present petition falls far short of satisfying these stringent requirements.
The asserted legal bases for the relief sought by petitioner are the Second, Ninth, and
Thirteenth Amendments of the Constitution, which, he claims, guarantee the right to carry
firearms openly and without a license in interstate and intrastate travel. Petitioner argues that the
Second Amendment’s “right of the people to keep and bear arms” renders invalid any federal or
state law restricting what he calls “National Open Carry Handgun” and requires the President and
the Coast Guard to take the actions he has demanded. Moreover, according to petitioner, federal
and state gun control laws create a form of “legislated slavery” in violation of the Thirteenth
Amendment.
Taking the latter claim first, no court has ever so much as suggested that the Thirteenth
Amendment confers any right to bear arms, and it is entirely fanciful to suggest that its
prohibition of involuntary servitude somehow unambiguously requires the overturning of a whole
variety of gun control legislation. As for the Second Amendment, while it is true that the precise
meaning of this provision continues to be in dispute in both judicial and academic circles, c.f.
United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the very existence and intensity of that
controversy make mandamus relief a decidedly inappropriate vehicle for fulfilling petitioner’s
demands. Mandamus is reserved for circumstances in which the claimant’s entitlement to relief
and the defendant’s obligation to provide such relief are unambiguous and undebatable. The
Second Amendment simply offers no such clarity.
267
Moreover, the established law on this subject hardly supports petitioner’s cause. In
United States v. Miller, 307 U.S. 174, 178 (1939), the Supreme Court found that “absent some
reasonable relationship to the preservation or efficiency of a well regulated militia,” the
possession of a weapon (a short-barreled shotgun) could be proscribed without running afoul of
the Second Amendment. Miller remains the most authoritative modern pronouncement on the
amendment’s meaning and its conclusion that the right to bear arms is limited by the needs of an
organized militia has subsequently been echoed by the Supreme Court and followed in this and
other circuits. See United States v. Lewis, 445 U.S. 55, 65 n.8 (1980); Fraternal Order of Police
v. United States, 173 F.3d 898, 905-06 (D.C. Cir. 1999); accord United States v. Haney, 264 F.3d
1161, 1165 (10th Cir. 2001) (holding that “a federal criminal gun control law does not violate the
Second Amendment unless it impairs the state’s ability to maintain a well-regulated militia”).
Under this interpretation, petitioner’s claims appear largely without merit.
In sum, given the breadth of petitioner’s demands and the narrowness of the
constitutional provision that he relies on to justify those demands – more specifically, the lack of
apparent connection between his right to keep and bear an unlicenced firearm and the needs of
any organized militia – petitioner can establish neither that he has a clear right to relief nor that
any of the named respondents has a clear duty to act. However the Second Amendment may
ultimately come to be interpreted, the current understanding of that text certainly provides no
obvious basis either for the wholesale negation of federal and state gun laws or for the open carry
endorsement that petitioner seeks.
Since mandamus is clearly unavailable here, the Court must dismiss the petition with
prejudice. Therefore, the Court need not address petitioner’s claims for declaratory judgment or
for injunctive relief. But if petitioner wishes pursue these claims, he is required to use the
ordinary procedures of complaint and summons described in Rules 3 and 4 of the Federal Rules
of Civil Procedure. See Flatow v. Islamic Republic of Iran, 2002 WL 31245261, at *2 (D.C. Cir.
Oct. 8, 2002) (“The Federal Rules of Civil Procedure provide that there shall be one form of
action to be known as ‘civil action’ and such an action shall be commenced by filing a complaint
with the court, with related service, answer, and motions obligations thereafter.”) (internal
quotation marks omitted).
________________________________
ELLEN SEGAL HUVELLE
United States District Judge
DATE: October 9, 2002

EDERAL COURT RULING
B. Did Judge Ellen Segal Huvelle commit a fraud or make false statements (18
U.S.C. § 1001) in her Memorandum and Order?
(1). Excerpts from the U.S. Attorney’s Manual, Title 9: Criminal Resource
Manual.
Section 902: 1996 Amendments to 18 U.S.C. § 1001 Statements or Entries Generally[Chapter 47: Fraud and False
Statements]
Section 904 Purpose of Statute.
Section 907 Statements Warranting Prosecution.
Section 908 Elements of 18 U.S.C. § 1001.
Section 909 False Statement.
Section 910 Knowingly and Willfully.
Section 911 Materiality.
Section 912 Falsity.
Section 914 Concealment--Failure to Disclose.
Section 915 False Statements as to Future Actions.
Section 919 Multiplicity, Duplicity, Single Document Policy.
Section 923: 18 U.S.C. § 371 -- Conspiracy to Defraud the United States.
Section 925 Obstructing or Impairing Legitimate Government Activity.
Section 930 Major Fraud Against the United States.
269

EDERAL COURT RULING
PART 14. CHALLENGING SELECTED FEDERAL LAWS

Part 19. The Claims
Part 25. Damages
271SELECTED FEDERAL LAWS

PART 14. CHALLENGING
A. Interstate Transportation of Firearms 18 U.S.C. § 926A.

Notwithstanding any other provision of any law or any rule or regulation of a State or any
political subdivision thereof, any person who is not otherwise prohibited by this chapter from
transporting, shipping, or receiving a firearm shall be entitled to transport a firearm for any lawful
purpose from any place where he may lawfully possess and carry such firearm to any other place
where he may lawfully possess and carry such firearm if, during such transportation the
firearm is unloaded, and neither the firearm nor any ammunition being transported is readily
accessible or is directly accessible from the passenger compartment of such transporting vehicle:
Provided, That in the case of a vehicle without a compartment separate from the driver’s
compartment the firearm or ammunition shall be contained in a locked container other than the
glove compartment or console.
B. Registration of Certain Organizations 18 U.S.C. § 2386.

18 U.S.C. § 2386(B)(1)The following organizations shall be required to register with the Attorney
General:
. . . “Every organization which engages both in civilian military activity and in political activity”
C. The Merchant Marine Act of 1936

(1). 46 U.S.C. Appendix § 1101. Fostering Development and Maintenance of
Merchant Marine
It is necessary for the national defense and development of its foreign and domestic commerce
that the United States shall have a merchant marine
(a) sufficient to carry its domestic water-borne commerce and a substantial portion of the
water-borne export and import foreign commerce of the United States and to provide
shipping service essential for maintaining the flow of such domestic and foreign
waterborne commerce at all times,
(b) capable of serving as a naval and military auxiliary in time of war or national
emergency,
(c) owned and operated under the United States flag by citizens of the United States,
insofar as may be practicable,
(d) composed of the best-equipped, safest, and most suitable types of vessels, constructed
in the United States and manned with a trained and efficient citizen personnel, and
(e) supplemented by efficient facilities for shipbuilding and ship repair.
It is declared to be the policy of the United States to foster the development and encourage
the maintenance of such a merchant marine.
D. Maritime Problems; Cooperation With Others; Cargo Carriage;

Recommendations 46 U.S.C Appendix § 1122.
The Secretary of Transportation is authorized and directed -
272 FEDERAL LAWS

PART 14. CHALLENGING SELECTED
(a) Study of maritime problems

To study all maritime problems arising in the carrying out of the policy set forth
in subchapter I of this chapter;
(g) Recommendations for further legislation
To make recommendations to Congress, from time to time, for such further
legislation as he deems necessary better to effectuate the purpose and policy of
this chapter.
E. Maritime Education and Training under the Merchant Marine Act of 1936
(1). 46 U.S.C. Appendix § 1295. Congressional Declaration Of Policy
It is the policy of the United States that merchant marine vessels of the United States should be
operated by highly trained and efficient citizens of the United States and that the United States
Navy and the merchant marine of the United States should work closely together to promote the
maximum integration of the total seapower forces of the United States. In furtherance of this
policy -
(1) the Secretary of Transportation is authorized to take the steps necessary to
provide for the education and training of citizens of the United States who are
capable of providing for the safe and efficient operation of the merchant marine
of the United States at all times and as a naval and military auxiliary in time of
war or national emergency; and (2) the Secretary of Navy, in cooperation with
the Maritime Administrator and the head of each State maritime academy, shall
assure that the training of future merchant marine officers at the United States
Merchant Marine Academy and at the State maritime academies includes
programs for naval science training in the operation of merchant marine vessels
as a naval and military auxiliary and that naval officer training programs for the
training of future officers, insofar as possible, be maintained at designated
maritime academies consistent with United States Navy standards and needs.
F. Secretary of Transportation May Provide Additional Training on Maritime

Subjects 46 U.S.C. Appendix § 1295d.
(a) In general
The Secretary [of Transportation] may provide additional training on maritime subjects, as the Secretary deems
necessary, to supplement other training opportunities and may make any such training available to the personnel
of the merchant marine of the United States and to individuals preparing for a career in the merchant marine of the
United States.
G. Powers and Duties of Secretary of Transportation 46 U.S.C. Appendix § 1295g.
46 U.S.C. Appendix § 1295g
(a) Rules and regulations
The Secretary [of Transportation] shall establish such rules and regulations as may be necessary
to carry out this subchapter.
(b) Excess vessels and equipment

The Secretary [of Transportation] may cooperate with and assist the Academy, any State
maritime academy, and any nonprofit training institution which has been jointly approved by the
Secretary and the Secretary of the department in which the United States Coast Guard is
operating as offering training courses which meet Federal regulations for maritime training, by
making vessels, shipboard equipment, and other marine equipment, owned by the United States
which have been determined to be excess or surplus, available by gift, loan, sale, lease, or charter
to such institution for instructional purposes on such terms as the Secretary deems appropriate.
(c) Securing of information, facilities, or equipment; detailing of personnel
(1) The Secretary [of Transportation] may secure directly from any department or agency of the
United States any information, facilities, or equipment, on a reimbursable basis, necessary to
carry out this subchapter.
(2) Upon the request of the Secretary [of Transportation], the head of any department or agency
of the United States (including any military department of the United States) may detail, on a
reimbursable basis, any of the personnel of such department or agency to the Secretary to assist in
carrying out this subchapter.
(d) Employment of personnel
To carry out this subchapter, the Secretary may employ at the Academy any individual as a professor,
lecturer, or instructor, without regard to the provisions of title 5 (governing appointments in the
competitive service), and may pay such individual without regard to the provisions of chapter 51 and
subchapter III of chapter 53 of such title (relating to classification and General Schedule pay rates).
H. U.S. Coast Guard Merchant Mariner’s Document Pilot Program Public Law No.
108-293. Section 611
On August 9, 2004 THE COAST GUARD AND MARITIME TRANSPORTATION ACT OF 2004 (hr 2443) became
Public Law No. 108-293. Section 611 of that law authorizes and establishes the MERCHANT MARINERS
DOCUMENTS PILOT PROGRAM. That section states:
“The Secretary of [Homeland Security] may conduct a pilot program to demonstrate methods to
improve processes and procedures for issuing merchant mariners’ documents.”
Section 217 of that law adds new Subsection (y) to 14 U.S.C. § 93 for “GENERAL POWERS OF THE
COMMANDANT” which states:
“after informing the Secretary, make such recommendations to the Congress relating to the Coast
Guard as the Commandant considers appropriate.”
I. Seafarers International Union’s Small Arms Range and Courses Approved by

Military Sealift Command
February 2003
http://www.seafarers.org/log/2003/022003/smallarms.xml
The Paul Hall Center for Maritime Training and Education has added two new courses and opened a new facility
next to its fire fighting and safety school in Piney Point, Md.
274 FEDERAL LAWS

Last month, the U.S. Military Sealift Command (MSC) approved the Paul Hall Center’s small arms range along
with two new curriculums. The first course, MSC Initial Small Arms Instruction and Qualification, lasts 21 hours.
The second, MSC Annual Small Arms Instruction and Re-Qualification, is a seven-hour class. Each combines
classroom instruction with hands-on training, and each has a 16-student limit.
The range itself has different shooting stations beginning as close as three yards to the targets and extending to a
top distance of 80 yards. It is bordered on three sides by 15-foot berms. The computer-operated target system is
state-of-the-art. (It also may be operated manually.)
Opposite the target area is a 30-by-70-foot building which includes a classroom, an office and an adjacent,
outdoor area for cleaning the training weapons. The classroom also includes gun-cleaning stations. A built-in
vault-safe combination with steel-reinforced concrete and motion detectors will be used to store the arms.
The classes involve the following weapons: 9MM pistol, 12-gauge shotgun, and M-14 rifle. Topics in the 21-hour
course include rules of conduct and safety; the Lautenberg Amendment to the Brady Gun Control Act of 1996;
personal protective equipment; use of force and deadly force; and fundamentals of marksmanship, among other
subjects. The class ends with a lengthy practical evaluation.
The seven-hour course— designed for students whose certificate of qualification or re-qualification is not more
than two years old—includes many of the same topics found in the lengthier one.
Both classes are intended to help students meet U.S. Navy standards for mariners who are directly involved in
shipboard security.
In order to enroll in the 21-hour class, a student must be at least 18 years old; possess a valid merchant mariner’s
document (MMD, also called a z-card); be capable of speaking and understanding verbal orders in English in
accordance with 46 CFR 12.05-3; provide documented proof of fulfilling the physical examination requirements
in accordance with 46 CFR 12.05-7; and meet the requirements of the “Qualification to Possess Firearms or
Ammunition” form that is required for contracted mariners. For the re-qualification course, the only additional
requirement is that the student must hold a current certificate of qualification not more than two years old for the
pistol, rifle and shotgun.
Paul Hall Center Vice President Don Nolan and Safety Director Jim Hanson visited several approved sites along
the East Coast when planning for the new range. “Our site was built completely in-house, and obviously we
followed not only the proper building guidelines but also all the Navy and MSC guidelines for the range,” noted
Nolan. “It’s another step forward for the school in terms of offering virtually every type of training that may be
required for U.S. mariners.
“Given the war against terrorism,” he added, “it certainly seems possible that some of the current small arms
security requirements may expand.”
J. Brief Legislative History of Civil Defense (50 U.S.C. § 2251 et. seq.)
On January 12, 1951: H.R. 9798, The Federal Civil Defense Act of 1950, became Pub.L. 920 (64 Stat.
1228). It authorized a Federal civil defense program.
On August 8, 1958: H.R. 7576 became Pub.L. 85-606 (72 Stat. 532). It amended the Federal Civil
Defense Act of 1950 adding the thermonuclear provisions.
On October 5, 1994: Pub.L. 103-337 (108 Stat. 3101) repealed the Federal Civil Defense Act of
1950.
In 5 U.S. Code Cong. And Adm. News 2182-2183 (1994) TITLE XXXIV CIVIL DEFENSE:
Civil defense programs were originally designed to protect “life and property in
the United States from attack.” In 1981, the law was amended to permit states to

use civil defense funds to prepare for natural disasters “in a manner that . . . .
does not detract from attack-related civil defense preparedness.”
Section 3402 of the National Defense Authorization Act for Fiscal Year 1994 (Pub.L. 103-160)
eliminated this restriction. The Civil Defense Act now reflects the “all-hazard” approach to
emergency management, i.e., states are permitted to use the funds for all kinds of emergencies
and disasters.
The committee believes that it should get out of the civil defense business for two reasons. First,
the program has lost its defense emphasis. The threat of attack is no longer the driving force
behind the program. Rather, the chief threats today come from tornadoes, earthquakes, floods,
chemical spills, and the like.
Civil Defense gave way to FEMA. And we all know how well FEMA performs their duties. Hurricane
Katrina is a testament for the restoration of the decentralized Civil Defense
Seven years later on September 11, 2001 the United States was attacked by terrorists. President Clinton
dropped the guard abolishing Civil Defense. Instead of resurrecting Civil Defense President Bush created the U.S.
Department of Homeland Security to which precipitated relentless thefts of constitutional rights, powers, and
duties of citizenship as evidence in this Private Bill. The U.S. Department of Homeland Security is the exact
centralization of the federal government that was feared at the Constitutional Convention and in The Federalist
Papers.
Further evidence of a grave need for the restoration of Second Amendment rights to its full constitutional
limits, i.e., National Open Carry Handgun, is found in the growing epidemic of single-shooter suicidal mass
murders in Gun-Free Terrorist Zones in schools, malls, and now churches.
K. 10 U.S.C. § 311. Militia: Composition and Classes

(a) The militia of the United States consists of all able-bodied males at least 17 years of age and,
except as provided in section 313 of title 32 [age limitations on appointments and enlistments to
the National Guard], under 45 years of age who are, or who have made a declaration of intention
to become, citizens of the United States and of female citizens of the United States who are
members of the National Guard.
(b) The classes of the militia are—
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not
members of the National Guard or the Naval Militia.
The “Unorganized Militia” under 10 U.S.C. § 311(b)(2) is criminalized by 18 U.S.C. § 2386(B)(1) which
requires registration of every organization which engages both in civilian military activity and political activity
criminalizes the Unorganized Militia of 18 U.S.C. § 311.
Justice Joseph Story said “[t]he militia is the natural defence of a free country against sudden foreign
invasions, domestic insurrections, and domestic usurpations of power by rulers.”496 This fact was cited by
Justice Scalia in the Heller Opinion, pages 25-26:
496
Justice Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, § 1890, vol. 3 at pp. 746-747 (1833).
276 FEDERAL LAWS

“Security of a Free State.” The phrase “security of a free state” meant “security of a free
polity,” not security of each of the several States as the dissent below argued, see 478 F. 3d,
at 405, and n. 10. Joseph Story wrote in his treatise on the Constitution that “the word ‘state’ is
used in various senses [and in] its most enlarged sense, it means the people composing a
particular nation or community.” 1 Story §208; see also 3 id., §1890 (in reference to the
Second Amendment’s prefatory clause: “The militia is the natural defence of a free country”).
It is true that the term “State” elsewhere in the Constitution refers to individual States, but the
phrase “security of a free state” and close variations seem to have been terms of art in 18th-
century political discourse, meaning a “ ‘free country’ “ or free polity. See Volokh,
“Necessary to the Security of a Free State,” 83 Notre Dame L. Rev. 1, 5 (2007); see, e.g., 4
Blackstone 151 (1769); Brutus Essay III (Nov. 15, 1787), in The Essential Antifederalist 251, 253
(W. Allen & G. Lloyd eds., 2d ed. 2002). Moreover, the other instances of “state” in the
Constitution are typically accompanied by modifiers making clear that the reference is to the
several States—”each state,” “several states,” “any state,” “that state,” “particular states,” “one
state,” “no state.” And the presence of the term “foreign state” in Article I and Article III shows
that the word “state” did not have a single meaning in the Constitution. There are many reasons
why the militia was thought to be “necessary to the security of a free state.” See 3 Story
§1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it
renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor
of federal control over the militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed. 1961) (A.
Hamilton). Third, when the able-bodied men of a nation are trained in arms and organized,
they are better able to resist tyranny.
Citing Justice Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES, § 1890, vol. 3
at pp. 746-747 (1833).
The importance of this article will scarcely be doubted by any persons, who have duly reflected
upon the subject. The militia is the natural defence of a free country against sudden foreign
invasions, domestic insurrections, and domestic usurpations of power by rulers. It is against
sound policy for a free people to keep up large military establishments and standing armies in
time ofanding armies in time of peace, both from the enormous expenses, with which they are
attended, and the facilee means, which they afford to ambitious and unprincipled rulers, to
subvert the government, or trample upon the rights of the people. The right of the citizens to keep
and bear arms has justly been considered, as the palladium of the liberties of a republic; since it
offers a strong moral check against the usurpation and arbitrary power of rulers; and will
generally, even if these are successful in the first instance, enable the people to resist and triumph
over them. 497 And yet, thought this truth would seem so clear, and the importance of a well
regulated militia would seem so undeniable, it cannot be disguised, that among the American
people there is a growing indifference to any system of militia discipline, and a strong
disposition, from a sense of its burthens, to be rid of all regulations. How is it practicable to keep
the people duly armed without some organization, it is difficult to see. There is certainly no small
danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually
undermine all the protection intended by this clause of our national bill of rights. 498
It is the establishment of unconstitutional conditions that the conflict of federal laws between 10 U.S.C. §
311. MILITIA: COMPOSITION AND CLASSES and 18 U.S.C. § 2386. REGISTRATION OF CERTAIN ORGANIZATIONS that
497
1 Tucker’s Black. Comm. App.300; Rawle on Const. ch.10, p.125; 2 Lloyd’s Debates, 219,220.
498
It would be well for Americans to reflect upon the passage in Tacitus, (Hist.IV ch.74): “Nam neque quies sine armis,
neque arma sine stipendis, neque stipendia tributis, haberi queunt.” Is there any escape from a large standing army, but in a
well disciplined militia? There is much wholesome instruction on this subject in 1. Black.Comm. ch.13, p.408 to 417.

citizens between the ages of 17 and 45 must surrender there First Amendment right of association as the
unorganized militia and to participate in unorganized militia (civilian military) activity in order to exercise their
rights to political activity. This particular unconstitutional conditions situation is the classic Catch 22 – damned if
you do and damned if you don’t situation for every American between the ages of 17 and 45. See Homes
Insurance Company v. Morse, 20 Wall. 445-451, 22 Lawyers ed. 365-368 (1874) (Every citizen is entitled to
resort to all the courts of the country, and to invoke the protection which all the laws or all those courts may
afford him. A man may not barter away his life or his freedom, or his substantial rights.); The U.S. Supreme
Court used the term “unconstitutional conditions” for the first time in Doyle v. Continental Insurance Company,
94 U.S. 535 (1876) (Justice Bradley, with whom concurred Justice Swayne and Justice Miller, dissenting. “I feel
obliged to dissent from the judgment of the Court in this case. The following is a brief statement of the reasons for
my opinion: Though a state may have the power, if it sees fit to subject its citizens to the inconvenience, of
prohibiting all foreign corporations from transacting business within its jurisdiction, it has no power to impose
unconstitutional conditions upon their doing so. Total prohibition may produce suffering and may manifest a
spirit of unfriendliness towards sister states, but prohibition, except upon conditions derogatory to the jurisdiction
and sovereignty of the United States, is mischievous and productive of hostility and disloyalty to the general
government. If a state is unwise enough to legislate the one, it has no constitutional power to legislate the other.
The citizens of the United States, whether as individuals or associations, corporate or incorporate, have a
constitutional right in proper cases to resort to the courts of the United States. . . .”). Cited by Frost v. Railroad
Commission of State of California, 271 U.S. 583, 594, 46 S.Ct. 605, 70 L. Ed. 1101, 47 A.L.R. 457 (1926);
278 FEDERAL LAWS

PART 15. CHALLENGING SELECTED FEDERAL REGULATIONS

Part 19. The Claims
Part 25. Damages
279FEDERAL REGULATIONS
A. 46 CFR §12.05-3(a)(4) General Requirements (for Able Seamen)

(a) To qualify for certification as able seaman an applicant must:
(1) Be at least 18 years of age;
(2) Pass the prescribed physical examination;
(3) Meet the sea service or training requirements set forth in this part;
(4) Pass an examination demonstrating ability as an able seaman and lifeboatman; and,
(5) Speak and understand the English language as would be required in performing the general duties of
able seaman and during an emergency aboard ship.
B. 46 CFR §12.05-3(b)(4) General Requirements (for Able Seamen)
(b) An STCW endorsement valid for any period on or after February 1, 2002, will be issued or renewed only
when the candidate for certification as an able seaman also produces satisfactory evidence, on the basis of
assessment of a practical demonstration of skills and abilities, of having achieved or maintained within the
previous 5 years the minimum standards of competence for the following 4 areas of basic safety:
(1) Personal survival techniques as set out in table A-VI/1-1 of the STCW Code (incorporated by
reference in Sec. 12.01-3).
(2) Fire prevention and fire-fighting as set out in table A-VI/1-2 of the STCW Code.
(3) Elementary first aid as set out in table A-VI/1-3 of the STCW Code.
(4) Personal safety and social responsibilities as set out in Table A-VI/1-4 of the STCW Code.
(c) An STCW endorsement valid for any period on or after February 1, 2002, will be issued or renewed only
when the candidate for certification as able seamen meets the requirements of STCW Regulation II/4 and of
Section A-II/4 of the STCW Code, if the candidate will be serving as a rating forming part of the navigational
watch on a seagoing ship of 500 GT or more.
280 REGULATIONS
PART 15. CHALLENGING SELECTED FEDERAL
http://www.uscg.mil/nmc/stcw_code_atoc.asp
TABLE A-VI/1-4
http://www.uscg.mil/nmc/stcw_code_ach6.asp#1
Specification of minimum standard of competence in personal safety and social responsibilities

KNOWLEDGE, METHODS FOR CRITERIA FOR
COMPETENCE UNDERSTANDING AND DEMONSTRATING EVALUATING
PROFICIENCY COMPETENCE COMPETENCE
Comply with Types of emergency which may Assessment of evidence Initial action on becoming
emergency occur, such as collision, fire, obtained from approved aware of an emergency
procedures foundering instruction or during conforms to established
Knowledge of shipboard attendance at an approved emergency response
contingency plans for response to course procedures
emergencies Information given on
raising alarm is prompt,
Emergency signals and specific accurate, complete and
duties allocated to crew members clear
in the muster list; muster stations;
correct use of personal safety
equipment
Action to take on discovering

potential emergency, including
fire, collision, foundering and
ingress of water into the ship
Action to take on hearing

emergency alarm signals
Value of training and drills
Knowledge of escape routes

and internal communication
and
alarm systems
Take precautions to Importance of adhering to safe Assessment of evidence Safe working practices are
prevent pollution of working practices at all times obtained from approved observed and appropriate
the marine Safety and protective devices instruction or during safety and protective
environment available to protect against attendance at an approved equipment is correctly
potential hazards aboard ship course used at all times
Precautions to be taken prior to

entering enclosed spaces
Familiarization with international

measures concerning accident
prevention and occupational
health*
KNOWLEDGE, METHODS FOR CRITERIA FOR

COMPETENCE UNDERSTANDING AND DEMONSTRATING EVALUATING
Observe safe working Importance of adhering to safe Assessment of evidence Safe working practices are
practices working practices at all times obtained from approved observed and appropriate
Safety and protective devices instruction or during safety and protective
available to protect against attendance at an approved equipment is correctly used
potential hazards aboard ship course at all times
Precautions to be taken prior to

entering enclosed spaces
Familiarization with
international measures
concerning accident prevention
and occupational health*
Understand orders and Ability to understand orders Assessment of evidence Communications are clear
be understood in and to communicate with obtained from approved and effective at all times
relation to shipboard others in relation to shipboard instruction or during
duties duties attendance at an approved
course
Contribute to effective Importance of maintaining Assessment of evidence Expected standards of work
human relationships good human and working obtained from approved and behavior are observed
on board ship relationships aboard ship instruction or during at all times
Social responsibilities; attendance at an approved
employment conditions; course
individual rights and
obligations; dangers of drug
and alcohol abuse
C. 27 C.F.R. § 478.38 Transportation of Firearms

Notwithstanding any other provision of any law or any rule or regulation of a State or any political subdivision
thereof, any person who is not otherwise prohibited by this chapter from transporting, shipping, or receiving a
firearm shall be entitled to transport a firearm for any lawful purpose from any place where such person may
lawfully possess and carry such firearm to any other place where such person may lawfully possess and carry
such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition
being transported is readily accessible or is directly accessible from the passenger compartment of such
transporting vehicle: Provided, That in the case of a vehicle without a compartment separate from the driver’s
compartment the firearm or ammunition shall be contained in a locked container other than the glove
compartment or console.
282 REGULATIONS
D. 33 CFR § 104.220 Company or Vessel Personnel with Security Duties

Company and vessel personnel re-sponsible for security duties must maintain a TWIC, and must have knowledge,
through training or equivalent job experience, in the following, as appropriate:
(b) Recognition and detection of dan-gerous substances and devices;
(c) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security;
(j) Inspection, control, and moni-toring techniques;
(l) Methods of physical screening of persons, personal effects, baggage, cargo, and vessel stores; and
(m) The meaning and the consequen-tial requirements of the different Maritime Security (MARSEC) Levels.
(n) Relevant aspects of the TWIC program and how to carry them out.
[USCG–2003–14749, 68 FR 39302, July 1, 2003, as amended by USCG–2006–24196, 72 FR 3580, Jan. 25,
2007]
E. 33 CFR § 104.230 Drill and exercise requirements

(a) General.
(1) Drills and exercises must test the proficiency of vessel personnel in assigned security duties at
all Maritime Security (MARSEC) Levels and the effective implementation of the Vessel Security
Plan (VSP). They must enable the Vessel Security Officer (VSO) to identify any related security
deficiencies that need to be addressed.
(2) A drill or exercise required by this section may be satisfied with the im-plementation of
security measures re-quired by the Vessel Security Plan as the result of an increase in the
MARSEC Level, provided the vessel reports attainment to the cognizant COTP (Captain of the
Port).
(b) Drills.
(1) The VSO must ensure that at least one security drill is con-ducted at least every 3 months,
except when a vessel is out of service due to repairs or seasonal suspension of operation provided
that in such cases a drill must be conducted within one week of the vessel’s reactivation. Security
drills may be held in conjunction with non-security drills where appropriate.
(2) Drills must test individual elements of the VSP, including response to security threats and
incidents. Drills should take into account the types of operations of the vessel, vessel personnel
changes, and other relevant circumstances. Examples of drills include unauthorized entry to a
restricted area, response to alarms, and notification of law enforcement authorities.
(3) If the vessel is moored at a facility on the date the facility has planned to conduct any drills,
the vessel may, but is not required to, participate in the facility’s scheduled drill.
(4) Drills must be conducted within one week from whenever the percentage of vessel
personnel with no prior participation in a vessel security drill on that vessel exceeds 25 percent.
(5) Not withstanding paragraph (b)(4) of this section, vessels not subject to SOLAS [Safety of
Life at Sea] may conduct drills within 1 week from whenever the percentage of vessel personnel
with no prior participation in a vessel security drill on a vessel of similar design and owned or
operated by the same company exceeds 25 percent.
(c) Exercises.
(1) Exercises must be conducted at least once each calendar year, with no more than 18 months
between exercises.
(2) Exercises may be:
(i) Full scale or live;
(ii) Tabletop simulation or seminar;
(iii) Combined with other appropriate exercises; or
(iv) A combination of the elements in paragraphs (c)(2)(i) through (iii) of this section.
(3) Exercises may be vessel-specific or part of a cooperative exercise program to exercise
applicable facility and vessel security plans or comprehensive port exercises.
(4) Each exercise must test communication and notification procedures, and elements of
coordination, resource availability, and response.
(5) Exercises are a full test of the security program and must include the substantial and active
participation of relevant company and vessel security personnel, and may include facility security
personnel and government au-thorities depending on the scope and the nature of the exercises.
[USCG–2003–14749, 68 FR 39302, July 1, 2003, as amended at 68 FR 60513, Oct. 22, 2003]
284 REGULATIONS
PART 16. CHALLENGING SELECTED STATE CODES, STATUTES AND MUNICIPAL CODES
Part 16. Challenging Selected State Laws

Part 19. The Claims
Part 25. Damages
285 CODES, STATUTES AND MUNICIPAL CODES

PART 16. CHALLENGING SELECTED STATE
A. Federal Preemption of State Laws

Robert Marchant, UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 8 AND 10; ARTICLE 6; AND THE
10TH AMENDMENT: FEDERAL PREEMPTION OF STATE LAW, Legislative Attorney for the Wisconsin Legislative
Reference Bureau, Constitutional Highlights, May 2003, Vol. III, No. 1172.499
United States Constitution
Article I, Sections 8 and 10; Article 6; and the 10th Amendment
FEDERAL PREEMPTION OF STATE LAW
Wisconsin Legislative Reference Bureau
May 2003, Vol. III, No. 1
History and purposes of these sections
A primary concern of the framers in drafting the U.S. Constitution was to balance power between
the states and the federal government. One method of striking this balance was to give the states
a measure of control over the selection of federal officers and, as a result, the operation of the
federal government. Thus, article I, section 2 gives the states an active role in determining
electoral qualifications for purposes of electing members of the U.S. House of Representatives;
article I, section 3, as originally ratified, gave each state equal representation in the U.S. Senate
and required each senator to be selected by the state legislature; and article II, section 1 gives
the states an active role in selecting presidential electors.
Another method of striking the balance between state and federal power was to provide certain
powers to the federal government, specifically divest states of certain powers, and reserve certain
powers to the states. Thus, article I, section 8 lays out the specific powers, called the “enumerated
powers,” of the U.S. Congress. Article 6, called the “Supremacy Clause,” provides that the U.S.
Constitution, the laws of the United States, and all treaties made under the authority of the United
States, are “the supreme law of the land.” In addition, article I, section 10 prohibits the states
from engaging in numerous activities, including coining money, passing ex post facto laws or
laws impairing the obligation of contracts, and, with certain exceptions, engaging in war. Finally,
the 10th Amendment further provides that “the powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the
people.” These provisions establish the boundaries of federal preemption of state laws. Under the
Supremacy Clause, if a state law is preempted by the U.S. Constitution or a federal law or treaty,
the state law cannot be enforced.
How the courts interpret these sections
The courts have recognized three types of preemption: conflict preemption, express preemption,
and implied preemption. In determining whether any of these types of preemption exist, the
courts are guided by a presumption against preemption if the federal law in question regulates an
area traditionally regulated by the states. Hillsborough County v. Automated Medical
Laboratories, Inc., 471 U.S. 707, 716 (1985).
Conflict Preemption
Under the Supremacy Clause, any state law that conflicts with a federal law is
preempted.Gibbons v. Ogden, 22 U.S. 1 (1824).A conflict exists if a party cannot comply with
499
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286, STATUTES AND MUNICIPAL CODES

PART 16. CHALLENGING SELECTED STATE CODES
both state law and federal law (for example, if state law forbids something that federal law
requires). Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963).In
addition, even in the absence of a direct conflict between state and federal law, a conflict exists if
the state law is an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372-73 (2000).
In determining whether a state law is a sufficient obstacle, the courts examine the federal statute
as a whole and identify its purpose and intended effects and then determine the impact of the
challenged law on congressional intent.An interesting conflict preemption case from Wisconsin
illustrates this analysis. In Wisconsin Public Intervenor v. Mortier, 501 U.S. 597 (1991), Mortier
challenged an ordinance of the town of Casey (described by the U.S. Supreme Court as “a small
rural community located in Washburn County, Wisconsin, several miles northwest of Spooner, on
the road to Superior”) after the town denied him a permit to spray pesticides on his lands.Among
other things, Mortier asserted that the ordinance was an obstacle to full implementation of the
Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), which was ostensibly enacted to
promote pesticide regulation that is coordinated solely at the federal and state levels. Mortier
presented legislative history stating that FIFRA established a coordinated federal-state
administrative system and, as described by the court, “raising the specter of gypsy moth hordes
safely navigating through thousands of contradictory and ineffective municipal regulations.” But
the court was more interested in the language of FIFRA itself.In upholding the town’s ordinance,
the court found that FIFRA itself implied a regulatory partnership among federal, state, and local
authorities.
Express Preemption
Express preemption exists if a federal statute explicitly states that it preempts state law (and if
Congress, in passing the statute, was exercising authority granted to it under the U.S.
Constitution).Although express preemption can be unambiguous, often federal statutes expressing
an intent to preempt are quite complicated and difficult to apply. In addition, like any statute, a
federal statute expressing an intent to preempt is subject to interpretation by administrative
agencies and the courts.For example:
The federal Employee Retirement Income Security Act of 1974 (ERISA) preempts all state laws
“insofar as they may now or hereafter relate to any employee benefit plan,” except that state
“laws . . . which regulate insurance, banking, or securities” are saved from preemption.29 U.S.C.
1144 (a) and (b) (2) (A).These statutes have spawned numerous ERISA preemption cases under
which the courts determined which state laws “relate to” an employee benefit plan, which state
laws “regulate” insurance, banking, or securities, and what activities qualify as insurance,
banking, or securities.
The Interstate Commerce Commission Termination Act preempts state laws concerning price,
routes, or services of motor carriers, except that “the safety regulatory authority of a state” with
respect to motor vehicles is saved from preemption. A case originating in Columbus, Wisconsin,
is among the cases interpreting this provision.In City of Columbus v. Ours Garage and Wrecker
Service, Inc., 536 U.S. 424 (2002), the U.S. Supreme Court held that “safety regulatory authority
of a state” includes the regulatory authority of municipalities, so that municipalities are allowed
to regulate tow truck safety.
Implied Preemption
Even without a conflict between federal and state law or an express provision for preemption, the
courts will infer an intention to preempt state law if the federal regulatory scheme is so pervasive
as to “occupy the field” in that area of the law. For example, the courts have held that the
National Labor Relations Act (NLRA) preempts state laws directed at conduct actually or

arguably prohibited or protected by the NLRA or conduct Congress intended to leave

unregulated.San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 244 (1959); Machinists v.
Wisconsin Emp. Rel. Commission, 427 U.S. 132, 140-48 (1976).
Strategies for reconciling legislation with these sections
Be Consistent with Federal Law
A state law has a greater chance of avoiding a claim of conflict preemption if the state law
complements the federal law. A legislative attorney should understand how federal law operates
in the area a bill proposes to regulate. The requester may want to consider structuring the bill in a
way that avoids frustrating the intended purpose of the federal law. If the legislature obviously is
unaware of or disregards federal law, a court, in turn, may more easily disregard the actions of the
legislature.
Tailor the State Law to Avoid Express Preemption
Avoid express preemption by taking advantage of exceptions provided in the federal statute. If
the federal statute reserves certain subjects for state regulation, draft the bill to fit within those
subjects. Also, even if the federal statutes do not specifically reserve subjects for state regulation,
attempt to draft the bill so that it falls outside of the category of state laws that are expressly
preempted. If the bill deals with an area of traditional state authority, the courts may be less
inclined to find preemption.
Use a Statement of Legislative Purpose
If a federal statute expressly preempts state laws that are enacted for a specific purpose, include a
statement of legislative purpose in a bill to demonstrate that the bill is enacted for a different
purpose.Of course, the stated purpose must be rational, given the proposed legal effect of the bill.
B. The List of Named State Laws:

A separate inspection of individual state laws will be necessary to determine their individual and
collective impact upon the right to travel intrastate and interstate while lawfully armed with a handgun for the
lawful purpose of personal safety and security under the protection of the Second Amendment. The inspection
should not be limited to just the Titles listed below:
Alabama Code Kentucky Revised Statutes
Alaska Statutes Louisiana Revised Statutes Annotated
Arizona Revised Statutes Maine Revised Statutes
Arkansas Code Annotated Maryland Code Annotated
California Penal Code Massachusetts General Laws
Colorado Revised Statutes Michigan Compiled Laws Annotated
Connecticut General Statutes Minnesota Statutes Annotated
Delaware Code Annotated Mississippi Code
District of Columbia Code Missouri Revised Statutes
Florida Statutes Annotated Montana Code Annotated
Georgia Code Nebraska Revised Statutes
Hawaii Revised Statutes Nevada Revised Statutes
Idaho Statutes New Hampshire Rev. Statutes Annotated
Illinois Compiled Statutes New Jersey Statutes Annotated
Indiana Code New Mexico Statutes Annotated
Iowa Code New York Consolidated Laws
Kansas Statutes Annotated North Carolina General Statutes

North Dakota Century Code Texas Penal Code

Ohio Revised Code Annotated Utah Code
Oklahoma Statutes Vermont Statutes Annotated
Oregon Revised Statutes Virginia Code
Pennsylvania Consolidated Statutes Washington Revised Code
Rhode Island General Laws West Virginia Code
South Carolina Code Annotated Wisconsin Statutes
South Dakota Codified Laws Wyoming Statutes
Tennessee Code
C. Online Research Sites for Open & Concealed Carry

Opencarry.org “A Right Unexercised is a Right Lost”
http://opencarry.org/maps.html
Handgunlaw.us (Concealed Carry)

http://www.handgunlaw.us/state-link.htm
NRA Compendium of State Firearms Laws 2008

http://www.nraila.org/GunLaws/Federal/Read.aspx?id=74
http://www.nraila.org/media/PDFs/Compendium.pdf
TSA Regulations: Traveling with Special Items: Firearms & Ammunition

http://www.tsa.gov/travelers/airtravel/assistant/editorial_1666.shtm
Airline Transportation of Firearms500
Travelers should be aware that New Jersey, New York and Massachusetts do not follow the
regulations established for interstate transport.501
To answer questions new airline security procedures have raised for NRA members transporting
firearms in their checked baggage, NRA-ILA staff contacted the Office of Security Regulation
and Policy at the Transportation Security Administration (TSA).
You can transport a firearm in your checked baggage subject to state and local restrictions, but
you should first check with your airline or travel agent to see if firearms are permitted in checked
baggage on the airline you are flying. Ask about limitations or fees that may apply at this time.
NRA-ILA is working toward achieving uniformity and fairness in the rules and regulations that
law-abiding gun owners face in their travels.
While surely few NRA members could forget this, the Transportation Security Administration
(TSA) wants to remind all travelers that attempting to bring firearms onto a plane in carry-on
luggage is a serious federal violation. This is a “strict liability” offense, and TSA says violators
can be, and have been, convicted regardless of criminal intent, or even if they simply forgot they
possessed a firearm. TSA is obliged to enforce all the existing laws within its jurisdiction and will
do so vigorously.
Firearms carried as checked baggage must be unloaded, packed in a locked hard-sided container
and declared to the airline at check-in. Only the passenger may have the key or combination.
500
501

Small arms ammunition must be placed in an appropriate container: “securely packed in fiber,
wood, or metal boxes, or other packaging specifically designed to carry small amounts of
ammunition. “ Under TSA regulations, ammunition may be packed in the same locked container
as the unloaded firearm, but airline rules may differ.
Some airlines, as private businesses, have imposed additional restrictions or requirements, such as
limiting the number of guns that can be transported in a single case, or providing different
standards under which gun cases may or may not be exempt from excess baggage limitations.
Especially for international flights, many airlines follow industry guidelines that limit
ammunition to 11 lbs. per passenger. Again, NRA-ILA is working to secure fair and uniform
rules.
Following Congress’s mandate that all checked baggage must be screened for explosives, many
travelers have become concerned by announcements that passengers should leave bags unlocked
to allow hand inspection. This suggestion, the TSA made clear, does not apply to baggage
containing firearms. All gun containers must still be locked after they are declared at the ticket
counter.
Checked bags—including those containing firearms—will then be screened for explosives by
various means. Depending on the airport, methods may include high-tech “sniffers” that analyze
chemical vapors, X-ray machines, trained bomb detection dogs or a combination of these
systems. Not all of these methods can differentiate explosives from the gunpowder residues on a
fired gun or in loaded ammunition.
If the screening detects explosive materials other than those associated with ammunition, or if
screeners can’t determine the exact nature of the alarm, and if all means available (such as X-
rays) cannot rule out the possible presence of explosives, TSA screeners, working with airline
representatives, will make every effort to contact the passenger so that the passenger can supply
the key or combination to open the case, eliminating the need to break locks.
Cases will not be labeled as containing firearms. That practice was outlawed almost 10 years ago.
Federal law now states: “No common or contract carrier shall require or cause any label, tag, or
other written notice to be placed on the outside of any package, luggage, or other container that
such package, luggage, or other container contains a firearm.” [18 USC Sec. 922(e)] TSA will
warn any airline that is marking cases that it is in violation of the law.
As always, since some airline counter clerks may have little training or experience in these
procedures, gun owners should contact the airline in advance, obtain a written copy of the airline
policy from a reservation clerk or the airline’s website, and bring it to the airport in order to
answer any questions that arise at check-in. For further information, see: www.tsa.gov.
NRA Compendium of State Firearms Laws 2008

Compiled by NRA Institute for Legislative Action 11250 Waples Mill Road Fairfax, Virginia
22030
--------------------------------------------------------------------------------
Since state laws are subject to frequent change, this chart is not to be considered legal advice or a
restatement of the law.
--------------------------------------------------------------------------------
With over 20,000 “gun control” laws on the books in America, there are two challenges facing
every gun owner. First, you owe it to yourself to become familiar with the federal laws on gun
ownership. Only by knowing the laws can you avoid innocently breaking one.

Second, while federal legislation receives much more media attention, state legislatures and city
councils make many more decisions regarding your right to own and carry firearms. NRA
members and all gun owners must take extra care to be aware of anti-gun laws and ordinances at
the state and local levels.
The following chart lists the main provisions of state firearms laws as of the date of publication.
In addition to the state provisions, the purchase, sale, and, in certain circumstances, the
possession and interstate transportation of firearms are regulated by the Federal Gun Control Act
of 1968 as amended by the Firearms Owners` Protection Act of 1986. Also, cities and localities
may have their own gun ordinances in addition to federal and state restrictions. Details may be
obtained by contacting local law enforcement authorities or by consulting your state`s firearms
law digest compiled by the NRA Institute for Legislative Action.
--------------------------------------------------------------------------------
All fifty states have passed sportsmen`s protection laws to halt harrassment.

Exemptions to State Waiting License or Permit to

State Gun Ban Registration
NICS2 Period-Number of Days Purchase or Other Prerequisite
Handguns Longguns Handguns Longguns Handguns Longguns
Alabama -- -- -- -- -- -- -- --
Alaska -- RTC -- -- -- -- -- --
Arizona -- RTC -- -- -- -- -- --
Arkansas -- RTC3 -- -- -- -- -- --
California X1 -- 105 105,6 10, 11 -- X X 13
Colorado -- -- -- -- -- -- -- --
Connecticut X1 -- 145,6 145,6 X9, 11 -- -- X 13
Delaware -- -- -- -- -- -- -- --
Florida -- -- 36 -- -- -- -- --
Georgia -- RTC -- -- -- -- -- --
Hawaii X1 L, RTC -- -- X9, 11 X9 X12 X12
Idaho -- RTC -- -- -- -- -- --
Illinois 1,7 -- 3 2 X9 X9 X 14 X 14
Indiana -- -- -- -- -- -- -- --
Iowa -- L, RTC -- -- X9 -- -- --
Kansas -- -- -- -- -- -- -- --
Kentucky -- -- -- -- -- -- -- --
Louisiana -- -- -- -- -- -- -- --
Maine -- -- -- -- -- -- -- --
Maryland X1 -- 75 74,5 X 10, 11 -- -- --
Massachusetts X1 -- -- -- X9 X9 -- --
Michigan -- L -- -- X9, 11 -- X --
Minnesota -- -- 79 X9 X9 X9 -- --
Mississippi -- RTC3 -- -- -- -- -- --
Missouri -- -- -- -- X9 -- -- --
Montana -- RTC -- -- -- -- -- --
Nebraska -- L -- -- X -- -- --
Nevada -- RTC 7 -- -- -- 7 --
New Hampshire -- -- -- -- -- -- -- --
New Jersey X1 -- -- -- X9 X9 -- X 13
New Mexico -- -- -- -- -- -- -- --
New York X1 L, RTC -- -- X9, 11 9 X X 15
North Carolina -- L, RTC -- -- X9 -- -- --
North Dakota -- RTC -- -- -- -- -- --
Ohio 7 -- 7 -- 7 -- 7 --
Oklahoma -- -- -- -- -- -- -- --
Oregon -- -- -- -- -- -- -- --
Pennsylvania -- -- -- -- -- -- -- --
Rhode Island -- -- 75 75 X 11 -- -- --
South Carolina -- RTC -- -- -- -- -- --
South Dakota -- -- 26 -- -- -- -- --
Tennessee -- -- -- -- -- -- -- --
Texas -- RTC -- -- -- -- -- --
Utah -- RTC -- -- -- -- -- --
Vermont -- -- -- -- -- -- -- --
Virginia X1 -- -- -- X10 -- -- --
Washington -- -- 58 -- -- -- -- --
West Virginia -- -- -- -- -- -- -- --
Wisconsin -- -- 2 -- -- -- -- --
Wyoming -- RTC -- -- -- -- -- --
DC X1 L -- -- X9 X9 X9 X

Record of Sale Carrying

State Provision for OwnerID Firearm Rights State Firearms Range
Reported to
State
State or Local
Right-to-Carry Openly Cards or Constitutional Preemption Protection
Concealed Prohibited Licensing Provision Laws Law
Govt.
Alabama -- M X19 -- X X X
Alaska -- R17 -- -- X X X
Arizona -- R -- -- X X X
Arkansas -- R X20 -- X X X
California X L X21 -- -- X X
Colorado -- R X22 -- X X22 X
Connecticut X M X -- X X24 X
Delaware -- L -- -- X X X
Florida -- R X -- X X X
Georgia -- R X -- X X X
Hawaii X L X X X -- --
Idaho -- R -- -- X X X
Illinois X D X X X -- X
Indiana -- R X -- X X25 X
Iowa -- M X -- -- X X
Kansas -- R -- -- X X X
Kentucky -- R -- -- X X X
Louisiana -- R -- -- X X X
Maine -- R -- -- X X X
Maryland X L X -- -- X X
Massachusetts X L X X X X24 X
Michigan X R X19 -- X X X
Minnesota -- R X -- -- X --
Mississippi -- R -- -- X X X
Missouri X R -- -- X X X
Montana -- R -- -- X X X
Nebraska -- R -- -- X -- --
Nevada -- R -- -- X X X
New Hampshire -- R -- -- X X X
New Jersey X L X X -- X24 X
New Mexico -- R -- -- X X X
New York X L X X -- X24,26 X
North Carolina X R -- -- X X X
North Dakota -- R X21 -- X X X
Ohio 7 R 7,18 7 X X X
Oklahoma -- R X21 -- X X X
Oregon X R -- -- X X X
Pennsylvania X R X19 -- X X X
Rhode Island X L X -- X X X
South Carolina X R X -- X X X
South Dakota X16 R -- -- X X X
Tennessee -- R X20 -- X X X
Texas -- R X -- X X X
Utah -- R X21 -- X X X
Vermont -- R17 X20 -- X X X
Virginia -- R -- -- X X X
Washington X R X23 -- X X --
West Virginia -- R -- -- X X X
Wisconsin -- D -- -- X X X
Wyoming -- R -- -- X X X
DC X D X X NA -- --

Notes:
1. “Assault weapons” are prohibited in Connecticut, New Jersey and New York. Some local
jurisdictions in Ohio also ban “assault weapons.” Hawaii prohibits “assault pistols.” California bans
“assault weapons”, .50BMG caliber firearms, some .50 caliber ammunition and “unsafe handguns.”
Illinois: Chicago, Evanston, Oak Park, Morton Grove, Winnetka, Wilmette, and Highland Park prohibit
handguns; some cities prohibit other kinds of firearms. Maryland prohibits “assault pistols”; the sale or
manufacture of any handgun manufactured after Jan. 1, 1985, that does not appear on the Handgun
Roster; and the sale of any handgun manufactured after January 1, 2003 that is not equipped with an
“integrated mechanical safety device.” Massachusetts: It is unlawful to sell, transfer or possess “any
assault weapon or large capacity feeding device” [more than 10 rounds] that was not legally possessed
on September 13, 1994 and the sale of handguns not on the Firearms Roster. The City of Boston has a
separate “assault weapons” law. The District of Columbia prohibits new acquisition of handguns and
any semi-automatic firearm capable of using a detachable ammunition magazine of more than 12 rounds
capacity and any handgun not registered after February 5, 1977. Virginia prohibits “Street Sweeper”
shotguns. (With respect to some of these laws and ordinances, individuals may retain prohibited firearms
owned previously, with certain restrictions.) The sunset of the federal assault weapons ban does not
affect the validity of state and local “assault weapons” bans.
2. National Instant Check System (NICS) exemption codes:
RTC-Carry Permit Holders Exempt From NICS
L-Holders of state licenses to possess or purchase or firearms ID cards exempt from NICS.
3. NICS exemption notes: Arkansas: Those issued on and after 4/1/99 qualify. Mississippi: Permits
issued to security guards do not qualify. North Dakota: Those issued on or after 12/1/1999 qualify.
4. Maryland subjects purchases of “assault weapons” to a 7-day waiting period.
5. Waiting period for all sales. California: 10 days; sales, transfers and loans of handguns must be made
through a dealer or through a sheriff`s office. Maryland: 7 days; purchasers of regulated firearms must
undergo background checks performed by the State Police, either through a dealer or directly through
the State Police. Rhode Island: 7 days; private sales can be made through a dealer or the seller must
follow the same guidelines as a sale from a dealer.
6. The waiting period does not apply to a person holding a valid permit or license to carry a firearm. In
Connecticut, a certificate of eligibility exempts the holder from the waiting period for handgun
purchases; a hunting license exempts the holder for long gun purchasers. California: transfers of a long
gun to a person`s parent, child or grandparent are exempt from the waiting period.
7. In certain cities or counties.
8. May be extended by police to 30 days in some circumstances. An individual not holding a driver`s
license must wait 60 days.
9. Connecticut: A certificate of eligibility or a carry permit is required to obtain a handgun and a carry
permit is required to transport a handgun outside your home. District of Columbia: No handgun may be
possessed unless it was registered prior to Sept. 23, 1976 and re-registered by Feb. 5, 1977. A permit to
purchase is required for a rifle or shotgun. Hawaii: Purchase permits are required for all firearms
Illinois: A Firearm Owner`s Identification Card (FOI) is required to possess or purchase a firearm, must
be issued to qualified applicants within 30 days, and is valid for 5 years. Iowa: A purchase permit is
required for handguns, and is valid for one year. Massachusetts: Firearms and feeding devices for

firearms are divided into classes. Depending on the class, a firearm identification card (FID) or class A
license or class B license is required to possess, purchase, or carry a firearm, ammunition thereof, or
firearm feeding device, or “large capacity feeding device.” Michigan: A handgun purchaser must obtain
a license to purchase from local law enforcement, and within 10 days present the license and handgun to
obtain a certificate of inspection. Minnesota: A handgun transfer or carrying permit, or a 7-day waiting
period and handgun transfer report, is required to purchase handguns or “assault weapons” from a
dealer. A permit is valid for one year, a transfer report for 30 days. Missouri: A purchase permit is
required for a handgun, must be issued to qualified applicants within 7 days, and is valid for 30 days.
New Jersey: Firearm owners must possess a FID, which must be issued to qualified applicants within 30
days. To purchase a handgun, a purchase permit, which must be issued within 30 days to qualified
applicants and is valid for 90 days, is required. An FID is required to purchase long guns. New York:
Purchase, possession and/or carrying of a handgun require a single license, which includes any
restrictions made upon the bearer. New York City also requires a license for long guns. North Carolina:
To purchase a handgun, a license or permit is required, which must be issued to qualified applicants
within 30 days. Persons with a Right-to-Carry license are exempt.
10. A permit is required to acquire another handgun before 30 days have elapsed following the
acquisition of a handgun. In Virginia, those with a permit to carry a concealed weapon are exempt from
this prohibition.
11. Requires proof of safety training for purchase. California: Must have Handgun Safety Certificate
receipt, which is valid for five years. Connecticut: To receive certificate of eligibility, must complete a
handgun safety course approved by the Commissioner of Public Safety. Hawaii: Must have completed
an approved handgun safety course. Maryland: Must complete an approved handgun safety course.
Michigan: A person must correctly answer 70% of the questions on a basic safety review questionnaire
in order to obtain a license to purchase. New York: Some counties require a handgun safety training
course to receive a license. Rhode Island: Must receive a state-issued handgun safety card.
12. Every person arriving in Hawaii is required to register any firearm(s) brought into the State within 3
days of arrival of the person or firearm(s), whichever occurs later. Handguns purchased from licensed
dealers must be registered within 5 days.
13. “Assault weapon” registration. California had two dates by which assault weapons had to be
registered or possession after such date would be considered a felony: March 31, 1992 for the named
make and model firearms banned in the 1989 legislation and December 31, 2000 for the firearms
meeting the definition of the “assault weapons in the 1999 legislation. In Connecticut, those firearms
banned by specific make and model in the 1993 law had to be registered by October 1, 1994 or
possession would be considered a felony. A recent law requires registration of additional guns by
October 1, 2003. In New Jersey, any “assault weapon” not registered, licensed, or rendered inoperable
pursuant to a state police certificate by May 1, 1991, is considered contraband.
14. Chicago only. No handgun not already registered may be possessed.
15. New York City only.
16. Purchasers of handguns who do not possess a permit to carry a pistol must file an application for
purchase, which will be retained by the chief of police or sheriff for one year. However state law
prohibits the establishment of a centralized registry of gun owners.
17. Vermont and Alaska law respect your right to carry without a permit. Alaska also has a permit to
carry system to establish reciprocity with other states.

18. A person with a concealed handgun license may transport a loaded handgun in a vehicle if it is in a
holster.
19. Carrying a handgun openly in a motor vehicle requires a license.
20. Arkansas prohibits carrying a firearm “with a purpose to employ it as a weapon against a person.”
Tennessee prohibits carrying “with the intent to go armed.” Vermont prohibits carrying a firearm “with
the intent or purpose of injuring another.”
21. Loaded.
22. Municipalities may prohibit open carry in government buildings if such prohibition is clearly posted.
23. Local jurisdictions may opt of the prohibition.
24. Preemption through judicial ruling. Local regulation may be instituted in Massachusetts if ratified by
the legislature.
25. Except Gary and East Chicago and local laws enacted before January 1994.
26. Preemption only applies to handguns.
Concealed carry codes:
R: Right-to-Carry “Shall issue” or less restrictive discretionary permit system (Ala., Conn.) (See also
note #21.)
M: Reasonable May Issue; the state has a permissive may issue law, but the authorities recognize the
right to keep and bear arms.
L: Right-to-Carry Limited by local authority`s discretion over permit issuance.
D: Right-to-Carry Denied, no permit system exists; concealed carry is prohibited.

PART 17. CHALLENGING SELECTED MARTIME CONVENTIONS AND TREATIES

Part 19. The Claims
Part 25. Damages
297
A. PIRACY AND ARMED ROBBERY AGAINST SHIPS: Guidance to Shipowners

and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of
Piracy and Armed Robbery Against Ships (International Maritime Organization’s
Maritime Safety Committee (MSC) Circular 623 Rev. No. 3, dated May 29, 2002)
Firearms
¶45. The carrying and use of firearms for personal protection or protection of a ship is strongly
discouraged.
¶46. Carriage of arms on board ship may encourage attackers to carry firearms thereby escalating an
already dangerous situation, and any firearms on board may themselves become an attractive target for an
attacker. The use of firearms requires special training and aptitudes and the risk of accidents with firearms
carried on board ship is great. In some jurisdictions, killing a national may have unforeseen consequences
even for a person who believes he has acted in self defense.
B. Maritime Labour Convention, 2006 502

“Considering that, given the global nature of the shipping industry, seafarers need special
protection, and Mindful also of the international standards on ship safety, human security and
quality ship management in the INTERNATIONAL CONVENTION FOR THE SAFETY OF LIFE AT
SEA, 1974, as amended, the Convention on the International Regulations for Preventing
Collisions at Sea, 1972, as amended, and the seafarer training and competency requirements in
the INTERNATIONAL CONVENTION ON STANDARDS OF TRAINING, CERTIFICATION AND
WATCHKEEPING FOR SEAFARERS, 1978, as amended, . . .”
“Regulation 2.7 – Manning levels

Purpose: To ensure that seafarers work on board ships with sufficient personnel for the safe,
efficient and secure operation of the ship
1. Each Member shall require that all ships that fly its flag have a sufficient number of seafarers
employed on board to ensure that ships are operated safely, efficiently and with due regard to
security under all conditions,503 taking into account concerns about seafarer fatigue and the
particular nature and conditions of the voyage.”
“Standard A2.7 – Manning levels
1. Each Member shall require that all ships that fly its flag have a sufficient number of seafarers
on board to ensure that ships are operated safely, efficiently and with due regard to security.
Every ship shall be manned by a crew that is adequate, in terms of size and qualifications, to
502
Not ratified by the United States. Ratified by Bahamas Feb. 11, 2008; Marshal Islands, Sep. 25, 2007; Liberia, June 7,
2006.
503
“Security under all conditions” includes the right of armed self-defense against attacks by pirates under the Second
Amendment. The right of armed self-defense must be construed as an absolute right albeit subject to “positive” regulation
with the intent to accommodate that right as much as possible and as is reasonable under maritime law. This includes the
right of the American seafarer to bring his own firearms (handgun and/or rifle) for safe keeping under the master’s control to
be issued as safety and security conditions dictate.
298 CONVENTIONS AND TREATIES

PART 17. CHALLENGING SELECTED MARTIME
ensure the safety and security of the ship and its personnel, under all operating conditions, 504
in accordance with the minimum safe manning document or an equivalent issued by the
competent authority, and to comply with the standards of this Convention.
C. International Maritime Organization (IMO) Convention for the Suppression of
Unlawful Acts Against the Safety of Maritime Navigation, 1988.505
Concern about unlawful acts which threaten the safety of ships and the security of their
passengers and crews grew during the 1980s, with reports of crews being kidnapped, ships being
hi-jacked, deliberately run aground or blown up by explosives. Passengers were threatened and
sometimes killed.
In November 1985 the problem was considered by IMO’s 14th Assembly and a proposal by the
United States that measures to prevent such unlawful acts should be developed by IMO was
supported.
504
“Under all operating conditions” include operating in congested international waters with known pirate activities. Any
seaman assigned security watch in known pirate waters must be issued the appropriate firearms for personal safety and
security and for the security of the ship and its crew.
505
PROTOCOL OF 2005 TO THE CONVENTION FOR THE SUPPRESSION OF UNLAWFUL ACTS AGAINST THE SAFETY OF MARITIME
NAVIGATION (the “2005 SUA Protocol”) and the PROTOCOL OF 2005 TO THE PROTOCOL FOR THE SUPPRESSION OF UNLAWFUL
ACTS AGAINST THE SAFETY OF FIXED PLATFORMS LOCATED ON THE CONTINENTAL SHELF (the “2005 Fixed Platforms Protocol”),
adopted by the International Maritime Organization Diplomatic Conference in London October 14, 2005, and signed by the
United States of America February 17, 2006 (Treaty Doc. 110-8); submitted to Senate October 1, 2007. Not yet ratified.
299
Resolution A.584(14)
The Assembly adopted resolution A.584(14) Measures to prevent unlawful acts which threaten
the safety of ships and the security of their passengers and crew which notes “with great concern
the danger to passengers and crews resulting from the increasing number of incidents involving
piracy, armed robbery and other unlawful acts against or on board ships, including small craft,
both at anchor and under way.”
The IMO Assembly directed the Maritime Safety Committee to develop, on a priority basis,
detailed and practical technical measures, including both shoreside and shipboard measures, to
ensure the security of passengers and crews on board ships. The measures were to take into
account the work of the International Civil Aviation Organization (ICAO) in the development of
standards and recommended practices for airport and aircraft security.
In December 1985 further support came from the United Nations General Assembly which called
upon IMO “to study the problem of terrorism aboard or against ships with a view to making
recommendations on appropriate measures.”
MSC Circular
The MSC in 1986 issued a Circular (MSC/Circ.443) on Measures to prevent unlawful acts against
passengers and crews on board ships - which states that Governments, port authorities,
administrations, shipowners, shipmasters and crews should take appropriate measures to prevent
unlawful acts which may threaten passengers and crews. The Circular gives guidelines on
measures that can be taken - with application to passenger ships engaged on international voyages
of 24 hours or more and port facilities which service them.
In November 1986 the Governments of Austria, Egypt and Italy proposed that IMO prepare a
convention on the subject of unlawful acts against the safety of maritime navigation ‘to provide
for a comprehensive suppression of unlawful acts committed against the safety of maritime
navigation which endanger innocent human lives, jeopardize the safety of persons and property,
seriously affect the operation of maritime services and thus are of grave concern to the
international community as a whole.”
Convention aims
The proposal was supported, and in March 1988 a conference was held in Rome which adopted
the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation.
The main purpose of the convention is to ensure that appropriate action is taken against persons
committing unlawful acts against ships. These include the seizure of ships by force; acts of
violence against persons on board ships; and the placing of devices on board a ship which are
likely to destroy or damage it.
D. Chapter XI-2 - Special Measures to Enhance Maritime Security of The

International Convention for Safety of Life at Sea (1974 as amended) (SOLAS)
The Chapter was adopted in December 2002 and entered into force on July 1, 2004. Regulation
XI-2/3 of the new chapter enshrines the INTERNATIONAL SHIP AND PORT FACILITIES SECURITY
CODE (ISPS Code). Part A of the Code is mandatory and part B contains guidance as to how best
to comply with the mandatory requirements. The regulation requires Administrations to set
security levels and ensure the provision of security level information to ships entitled to fly
their flag. Prior to entering a port, or whilst in a port, within the territory of a Contracting

Government, a ship shall comply with the requirements for the security level set by that
Contracting Government, if that security level is higher than the security level set by the
Administration for that ship.
Regulation XI-2/8 confirms the role of the Master in exercising his professional judgement over
decisions necessary to maintain the security of the ship. It says he shall not be constrained by the
Company, the charterer or any other person in this respect.
Regulation XI-2/5 requires all ships to be provided with a ship security alert system, according
to a strict timetable that will see most vessels fitted by 2004 and the remainder by 2006. When
activated the ship security alert system shall initiate and transmit a ship-to-shore security alert
to a competent authority designated by the Administration, identifying the ship, its location and
indicating that the security of the ship is under threat or it has been compromised. The system
will not raise any alarm on-board the ship. The ship security alert system shall be capable of
being activated from the navigation bridge and in at least one other location.
Regulation XI-2/6 covers requirements for port facilities, providing among other things for
Contracting Governments to ensure that port facility security assessments are carried out and that
port facility security plans are developed, implemented and reviewed in accordance with the ISPS
Code.
Other regulations in this chapter cover the provision of information to IMO, the control of ships
in port, (including measures such as the delay, detention, restriction of operations including
movement within the port, or expulsion of a ship from port), and the specific responsibility of
Companies.
E. International Ship and Port Facility Security Code (ISPS Code)506
In essence, the Code takes the approach that ensuring the security of ships and port facilities is
basically a risk management activity and that to determine what security measures are
appropriate, an assessment of the risks must be made in each particular case.
The purpose of the Code is to provide a standardized, consistent framework for evaluating risk,
enabling governments to offset changes in threat with changes in vulnerability for ships and port
facilities.
This risk management concept will be embodied in the Code through a number of minimum
functional security requirements for ships and port facilities.
For ships, these requirements will include:
· ship security plans
· ship security officers
· company security officers
· certain onboard equipment
For port facilities, the requirements will include:
· port facility security plans
· port facility security officers
· certain security equipment
506
http://www.imo.org/Newsroom/mainframe.asp?topic_id=583&doc_id=2689#code
301
In addition the requirements for ships and for port facilities include:
· monitoring and controlling access
· monitoring the activities of people and cargo
· ensuring security communications are readily available
F. Chapter II: Master-Deck Department of the International Convention on
Standards of Training, Certification and Watchkeeping for Seafarers, 1978
The 1978 STCW Convention was the first to establish basic requirements on training,
certification and watchkeeping for seafarers on an international level. Previously the standards of
training, certification and watchkeeping of officers and ratings were established by individual
governments, usually without reference to practices in other countries. As a result standards and
procedures varied widely, even though shipping is the most international of all industries.
The Convention prescribes minimum standards relating to training, certification and
watchkeeping for seafarers which countries are obliged to meet or exceed.
The Convention did not deal with manning levels: IMO provisions in this area are covered by a
regulation in Chapter V of the International Convention for the Safety of Life at Sea (SOLAS),
1974, whose requirements are backed up by resolution A.890(21) Principles of safe manning,
adopted by the IMO Assembly in 1999, as amended by Resolution A.955(23) Amendments to the
Principles of Safe Manning (Resolution A.890(21)).
The Articles of the Convention include requirements relating to issues surrounding certification
and port State control.
One especially important feature of the Convention is that it applies to ships of non-party States
when visiting ports of States which are Parties to the Convention. Article X requires Parties to
apply the control measures to ships of all flags to the extent necessary to ensure that no more
favourable treatment is given to ships entitled to fly the flag of a State which is not a Party than is
given to ships entitled to fly the flag of a State that is a Party.
The difficulties which could arise for ships of States which are not Parties to the Convention is
one reason why the Convention has received such wide acceptance. By December 2000, the
STCW Convention had 135 Parties, representing 97.53 percent of world shipping tonnage.
Chapter II: Master-Deck Department
The Chapter establishes basic principles to be observed in keeping a navigational watch, covering
such matters as watch arrangements, fitness for duty, navigation, navigational equipment,
navigational duties and responsibilities, the duties of the look-out, navigation with a pilot on
board and protection of the marine environment.
The regulations include mandatory minimum requirements for certificating masters and chief
mates; for certification of officers in charge of a navigational watch; and for certification of deck
ratings forming part of a navigational watch. The regulations also include basic principles to be
observed in keeping watch in port and mandatory minimum requirements for a watch in port on
ships carrying hazardous cargo.
The 1995 amendments, adopted by a Conference, represented a major revision of the Convention,
in response to a recognized need to bring the Convention up to date and to respond to critics who
pointed out the many vague phrases, such as “to the satisfaction of the Administration”, which
resulted in different interpretations being made.

The 2006 amendments (Adopted May 2006; Entered into force January 1, 2008) add new
minimum mandatory training and certification requirements for persons to be designated as ship
security officers (SSOs). The amendments to the STCW Convention and to parts A and B of the
STCW Code include Requirements for the issue of certificates of proficiency for Ship Security
Officers; Specifications of minimum standards of proficiency for ship security officers; and
Guidance regarding training for Ship Security Officers.
Further amendments to part A of the STCW Code add additional training requirements for the
launching and recovery of fast rescue boats. The amendments have been prepared in response to
reports of injuries to seafarers in numerous incidents involving the launching and recovery of fast
rescue boats in adverse weather conditions.
303

PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES
Part 18. Racketeering and Treason Against the Constitution by Federal Judges

Part 19. The Claims
Part 25. Damages
PART 18. RACKETEERING AND TREASON 305

AGAINST THE CONSTITUTION BY FEDERAL JUDGES
A. The RICO Act Includes the United States Government

If the State of Illinois can be held as a RICO Enterprise then most assuredly under the equal justice under
the law doctrine and the Tenth Amendment the United States can be held as a RICO Enterprise in regard to the
Second Amendment. Citing the Brief of the United States in United States v. Lawrence E. Warner & George H.
Ryan, Sr., 7th Circuit, Nos. 06-3517 and 06-3528
IV. The RICO Charge Was Legally Sound and the Instructions were Correct.
B. Analysis
1. The State of Illinois Is a Proper RICO Enterprise.
Count One charged appellants with racketeering conspiracy, in violation of 18 U.S.C. § 1962(d).
R110:Ct1,¶8(JA240). It alleged that the defendants, acting through Ryan’s governmental offices,
used the State of Illinois as the “enterprise” for their illegal activity. R110: Ct1, ¶¶ 1, 2, 5, 8
(JA228, 233, 239, 240). Although the statute defines “enterprise” to include “any legal entity”
(18 U.S.C. § 1961(4)), Ryan argues that states cannot be enterprises for purposes of the RICO
statute. Br56-58. Ryan’s argument overlooks well-established authority, in this Circuit and others,
holding “enterprise” is broadly construed to include governmental and public entities.
More than twenty-five years ago, in United States v. Grzywacz, 603 F.2d 682, 685-87 (7th Cir.
1979), this Court held that a public entity (in that case, the Madison, Illinois police
department) could be charged as the “enterprise” for racketeering activity. This Court has
reaffirmed that the racketeering statute should be construed broadly and that public and
governmental entities may be charged as “enterprises.” United States v. Hocking, 860 F.2d
769, 778 (7th Cir. 1988) (state Department of Treasury), overruled on other grounds, United
States v. Levy, 955 F.2d 1098, 1103n.5 (7th Cir. 1992); United States v. Conn, 769 F.2d 420, 424-
25 (7th Cir. 1985) (Cook County Circuit Court); United States v. Kovic, 684 F.2d 512, 516 (7th
Cir. 1982) (Chicago Police Department); United States v. Lee Stoller Enterprises, Inc., 652 F.2d
1313, 1316-19 (7th Cir. 1981) (Sheriff’s Office of Madison County, Illinois). See also United
States v. Genova, 187 F. Supp. 2d 1015, 1028-29 (N.D. Ill. 2002) (Calumet City), rev’d on other
grounds, 333 F.3d 750 (7th Cir. 2003); United States v. Lobue, 751 F.Supp. 748, 755 (N.D. Ill.
1990) (Chicago Heights). This Court’s interpretation of “enterprise” as including public and
governmental entities is consistent with that of other circuits. Lee Stoller Enterprises, 652
F.2d at 1318n.9 (collecting cases). See also United States v. Turkette, 452 U.S. 576, 580 (1981)
(“[t]here is no restriction upon the associations embraced by the definition” of
“enterprise”).
Faced with this overwhelming precedent, appellants rely on United States v. Mandel, 415 F.
Supp. 997, 1022 (D. Md. 1976), a district court decision pre-dating virtually all of the circuit
court decisions on the issue. Br57. In Mandel, the court concluded that the State of Maryland
could not be a valid enterprise. Id. at 1022. But Mandel did not differentiate between the naming
of sovereign States and the naming of any other public entities as enterprises; by its reasoning, no
public entities could be “enterprises”under the racketeering statute.
Mandel has been discredited by all courts that have considered the issue, including the Fourth
Circuit, which includes the District of Maryland. See United States v. Angelilli, 660 F.2d 23, 33
n.10 (2d Cir. 1981); United States v. Long, 651 F.2d 239, 241 (4th Cir.1981); United States v.
Clark, 646 F.2d 1259, 1261-67 (8th Cir. 1981).
In arguing that states may not be considered “legal entities” under the racketeering statute,
appellants miscast a straightforward issue of statutory interpretation into an issue of federalism.
Br58. Their reliance on cases dealing with federalism or state sovereignty, such as Alden v.
Maine, 527 U.S. 706, 748 (1999), is misplaced. Nothing in RICO precludes the states from
PART 18. RACKETEERING AND TREASON AGAINST306

THE CONSTITUTION BY FEDERAL JUDGES
addressing corruption or infringes in any way on the legitimate functioning of state

government or on its sovereignty.
Appellants overlook the fundamental principle that the racketeering enterprise, whether it be a
legitimate business, governmental entity or association in fact, is merely the vehicle through
which defendants conduct alleged racketeering activities. See United States v. McDade, 28 F.3d
283, 296 (3d Cir.1995) (proper to charge Congressional committee as enterprise, since
“major purpose of the RICO statute was to protect legitimate enterprises by attacking and
removing those who had infiltrated them for unlawful purposes”) (citations omitted). To
define a governmental unit as an enterprise does not impugn its employees or subjects, nor
disadvantage the entity.
Ryan argues that Congress did not intend for sovereign states to be enterprises because RICO
authorizes statutory remedies like “dissolution or reorganization.” Br57. That argument was
rejected by this Court in Grzywacz, 603 F.2d at 685-86, and further repudiated by the Supreme
Court in Turkette, 452 U.S. at 585, which noted:
Even if one or more of the civil remedies might be inapplicable to a particular illegitimate
enterprise, this fact would not serve to limit the enterprise concept. Congress has provided civil
remedies for use when the circumstances so warrant. It is untenable to argue that their existence
limits the scope of the criminal provisions.
The statute does not mandate the imposition of any particular remedy, but rather, depending on
the situation, offers an array of possible remedies. Governmental units may be enterprises
under the RICO statute. The indictment properly charged the State of Illinois as being the
racketeering enterprise used by the defendants.

B. The Civil RICO Act Includes the United Nations

(1). Michael Goldsmith and Vicki Rinne, CIVIL RICO, FOREIGN DEFENDANTS,
AND “ET”, 73 Minn. L. Rev. 1023, (April, 1989)
II.
JURISDICTIONAL BARRIERS TO EXTRATERRITORIAL RICO SUITS
Although courts have held that RICO applies to foreign as well as to United States defendants, no
extraterritorial RICO case has resulted in a judgment.507 Jurisdictional requirements have
raised serious obstacles.508 To accept an extraterritorial RICO case, a court must have
prescriptive, adjudicative, and enforcement jurisdiction.509 Although lack of adjudicative
507
Plaintiffs have filed approximately one dozen extraterritorial RICO cases in United States courts, four of which were
dismissed for failure to prove jurisdiction. See Michelson v. Merrill Lynch, Pierce, Fenner & Smith, 709 F. Supp. 1270, 1285
(S.D.N.Y. 1989) (finding no jurisdiction over foreign defendants); Huang v. Sentinel Gov’t Sec., 657 F. Supp. 485, 491-92
(S.D.N.Y. 1987) (same); Ancilla Domini Health Servs. v. Communications Assocs., No. 84-C-2771a (N.D. Ill. Nov. 5, 1985)
(LEXIS, Genfed library, Dist file) (same); Nordic Bank PLC v. Trend Group, L., 619 F. Supp. 542, 564 (S.D.N.Y. 1985)
(same); Soltex Polymer Corp. v. Fortex Indus., 590 F. Supp. 1453, 1460 (E.D.N.Y. 1984) (same), aff’d, 832 F.2d 1325 (2d
Cir. 1987). In another five cases, plaintiffs established jurisdiction, but their RICO claims were stayed or dismissed. See
Republic of Phil. v. Marcos, 818 F.2d 1473, 1490 (9th Cir. 1987) (holding RICO claims barred by act of state and political
question doctrines); S.A. Mineracao da Trinidade-Samitri v. Utah Int’l, Inc., 745 F.2d 190, 191 (2d Cir. 1984) (staying “non-
arbitrable” RICO claims pending arbitration of other claims); FMC Corp. v. Varonos, No. 87-C-9640 (N.D. Ill. Oct. 20,
1988) (LEXIS, Genfed library, Dist file) (finding RICO claims insufficient); Selman v. American Sports Underwriters, No.
84-0099-C (W.D. Va. Oct. 4, 1988) (LEXIS, Genfed library, Dist file) (same); Chisholm & Col. v. Bank of Jamaica, 643 F.
Supp. 1393, 1404-05 (S.D. Fla. 1986) (same).
Courts have maintained RICO causes of action against foreign defendants in only four cases. See In re All Terrain Vehicles
Litig., No. 88-237 (E.D. Pa. Feb. 23, 1989) (LEXIS, Genfed library, Dist file) (denying foreign defendant’s motion to
dismiss); Chamarac Properties, N.V. v. Pike, Fed. Sec. L. Rep. (CCH) 93,761 (S.D.N.Y. 1988) (same); North Carolina v.
Alexander & Alexander Servs., 680 F. Supp. 746, 750 (E.D.N.C.), certification for immediate appeal denied, 685 F. Supp.
114, 117 (E.D.N.C. 1988) (same); Shulton, Inc. v. Optel Corp., 1987-1 Trade Cas. (CCH) 67,436 (D.N.J. 1986) (same).
508
See, e.g., Michelson v. Merrill Lynch, Pierce, Fenner & Smith, 709 F. Supp. 1270, 1285 (S.D.N.Y. 1989) (finding no
jurisdiction over foreign defendants because foreign service of process lacking); Huang v. Sentinel Gov’t Sec., 657 F. Supp.
485, 491-92 (S.D.N.Y. 1987) (finding no jurisdiction over foreign defendants because minimum contacts lacking); Ancilla
Domini Health Servs. v. Communications Assocs., No. 84nC-2771 (N.D. Ill. Nov. 5, 1985) (LEXIS, Genfed library, Dist file)
(finding no jurisdiction over foreign defendants because personal jurisdiction lacking); Nordic Bank PLC v. Trend Group, L.,
619 F. Supp. 542, 564 (S.D.N.Y. 1985) (denying jurisdiction over foreign defendants because foreign service of process
lacking); Soltex Polymer Corp. v. Fortex Indus., 590 F. Supp. 1453, 1460 (E.D.N.Y. 1984) (same), aff’d, 832 F.2d 1325 (2d
Cir. 1987).
509
Traditionally, discussions on international law divide jurisdiction into the right 73 to prescribe rules and the right to
enforce them. J. Sweeney, C. Oliver & N. Leech, CASES AND MATERIALS ON THE INTERNATIONAL LEGAL SYSTEM 89 (2d ed.
1981). The RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES considers jurisdiction in three
categories:
(a) jurisdiction to prescribe, i.e., the authority of a state to make its law applicable to persons or activities;
(b) jurisdiction to adjudicate, i.e., the authority of a state to subject particular persons or things to its judicial process; and
(c) jurisdiction to enforce, i.e., the authority of a state to use the resources of government to induce or compel compliance
with its law.
RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES Part IV, introductory note (1988) [hereinafter
RESTATEMENT]. The Restatement recognizes that adjudication deals primarily with judicial function while enforcement often
encompasses executive or administrative action in addition to the judicial process. Id.

jurisdiction appears to be the most frequent basis for rejecting an extraterritorial case, each
jurisdictional predicate merits careful consideration.
A. JURISDICTION TO PRESCRIBE
Jurisdiction to prescribe, also known as subject matter jurisdiction, 510 provides judicial
authority over the topic of a dispute. 511 Under international law, prescriptive authority may derive
from territorial, nationality, passive personality, universality, or protective principles. 512
These principles often work together in practice,513 but are best understood when treated
separately.
Citing Footnote 59 in Michael Goldsmith and Vicki Rinne, CIVIL RICO, FOREIGN DEFENDANTS, AND
“ET”, 73 Minn. L. Rev. 1023, at 1039 (April, 1989):514
Plaintiffs have filed approximately one dozen extraterritorial RICO cases in United States courts,
four of which were dismissed for failure to prove jurisdiction. See Michelson v. Merrill Lynch,
Pierce, Fenner & Smith, 709 F. Supp. 1270, 1285 (S.D.N.Y. 1989) (finding no jurisdiction over
foreign defendants); Huang v. Sentinel Gov’t Sec., 657 F. Supp. 485, 491-92 (S.D.N.Y. 1987)
(same); Ancilla Domini Health Servs. v. Communications Assocs., No. 84-C-2771a (N.D. Ill.
Nov. 5, 1985) (LEXIS, Genfed library, Dist file) (same); Nordic Bank PLC v. Trend Group, L.,
619 F. Supp. 542, 564 (S.D.N.Y. 1985) (same); Soltex Polymer Corp. v. Fortex Indus., 590 F.
Supp. 1453, 1460 (E.D.N.Y. 1984) (same), aff’d, 832 F.2d 1325 (2d Cir. 1987).
In another five cases, plaintiffs established jurisdiction, but their RICO claims were stayed or
dismissed. See Republic of Phil. v. Marcos, 818 F.2d 1473, 1490 (9th Cir. 1987) (holding RICO
claims barred by act of state and political question doctrines); S.A. Mineracao da Trinidade-
Samitri v. Utah Int’l, Inc., 745 F.2d 190, 191 (2d Cir. 1984) (staying “non-arbitrable” RICO
510
The RESTATEMENT uses the term jurisdiction to prescribe to avoid confusion with the term subject matter jurisdiction as
used in a national context. Jurisdiction to prescribe addresses transnational activity. RESTATEMENT, supra note 73, § 401
comment c; see also Moessle, THE BASIC STRUCTURE OF THE UNITED STATES SECURITIES LAW ENFORCEMENT IN INTERNATIONAL
CASES, 16 Cal. W. Int’l l.J. 1, 7 (1986) (stating that jurisdiction to prescribe is preferable term); see generally Lowenfeld,
ANTITRUST, INTEREST ANALYSIS, AND THE NEW CONFLICT OF LAWS (Book Review), 95 Harv. L. Rev. 1976, 1980-84 (1982)
(reviewing J. Atwood & K. Brewster, ANTITRUST AND A MERICAN BUSINESS ABROAD (2d ed. 1981)).
511
See supra note [86]. Prescriptive jurisdiction occurs when a nation, by legislative action, executive decree, administrative
regulation, or judicial decision, declares a principle or legal norm. J. Sweeney, C. Oliver & N. Leech, supra note [86], at 89.
In practice, a court considering an extraterritorial case first must ask if national law applies to the conduct in dispute.
512
United States v. King, 552 F.2d 833, 851 (9th Cir. 1976), cert. denied, 430 U.S. 966 (1977); Rocha v. United States, 288
F.2d 545, 549 n.4 (9th Cir.), cert. denied, 366 U.S. 948 (1961); 1 NAT. COMM’N ON THE REFORM OF FEDERAL CRIMINAL LAWS,
Working Papers 72-73 (1970); see also United States v. Pizzarusso, 388 F.2d 8, 10 (2d Cir.) (stating that “International law
has recognized, in varying degrees, five bases of jurisdiction” (citing HARVARD RESEARCH IN INTERNATIONAL LAW,
JURISDICTION WITH RESPECT TO CRIME, 29 Am. J. Int’l l. Spec. Supp. 435, 445 (1935))), cert. denied, 392 U.S. 936 (1968);
RESTATEMENT, supra note 73, § 402 (same). Some scholars recognize as a sixth basis for extraterritorial jurisdiction crimes
under international law, including war crimes and crimes against humanity. See Attorney General of Isr. v. Eichmann, 36
I.L.R. 277 (Isr. Sup. Ct. 1962). Most authorities, however, treat this category as encompassed by the universality principle.
Cf. I. Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 305 (3d ed. 1979) (noting distinction between universality and
crimes under international law).
513
The passive personality principle, for example, is similar to the protective principle, and the nationality, territorial, and
protective principles also interrelate. I. Brownlie, supra note [89], at 306; see, e.g., King, 552 F.2d at 851-52 (finding
jurisdiction established under both nationality and territorial principles); United States v. Daniszewski, 380 F. Supp. 113,
115-16 (E.D.N.Y. 1974) (finding jurisdiction established under nationality principle and indicating court was prepared to rely
on protective principle as well).
514
Full download available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=890366

claims pending arbitration of other claims); FMC Corp. v. Varonos, No. 87-C-9640 (N.D. Ill.
Oct. 20, 1988) (LEXIS, Genfed library, Dist file) (finding RICO claims insufficient); Selman v.
American Sports Underwriters, No. 84-0099-C (W.D. Va. Oct. 4, 1988) (LEXIS, Genfed library,
Dist file) (same); Chisholm & Col. v. Bank of Jamaica, 643 F. Supp. 1393, 1404-05 (S.D. Fla.
1986) (same).
Courts have maintained RICO causes of action against foreign defendants in only four cases. See
In re All Terrain Vehicles Litig., No. 88-237 (E.D. Pa. Feb. 23, 1989) (LEXIS, Genfed library,
Dist file) (denying foreign defendant’s motion to dismiss); Chamarac Properties, N.V. v. Pike,
Fed. Sec. L. Rep. (CCH) 93,761 (S.D.N.Y. 1988) (same); North Carolina v. Alexander &
Alexander Servs., 680 F. Supp. 746, 750 (E.D.N.C.), certification for immediate appeal denied,
685 F. Supp. 114, 117 (E.D.N.C. 1988) (same); Shulton, Inc. v. Optel Corp., 1987-1 Trade Cas.
(CCH) 67,436 (D.N.J. 1986) (same).
Although courts have held that RICO applies to foreign as well as to United States defendants, no
extraterritorial RICO case 70 has resulted in a judgment. 71 Jurisdictional requirements have
raised serious obstacles. 72 To accept an extraterritorial RICO case, a court must have
prescriptive, adjudicative, and enforcement jurisdiction. 73 Although lack of adjudicative
jurisdiction appears to be the most frequent basis for rejecting an extraterritorial case, each
jurisdictional predicate merits careful consideration.515
# No extraterritorial RICO case has resulted in a judgment.
# Plaintiffs have filed approximately one dozen extraterritorial RICO cases in United States courts, four of which
were dismissed for failure to prove jurisdiction.
# In another five cases, plaintiffs established jurisdiction, but their RICO claims were stayed or dismissed.
(1) See Republic of Phil. v. Marcos, 818 F.2d 1473, 1490 (9th Cir. 1987) (holding RICO claims barred by
act of state and political question doctrines);
(2) S.A. Mineracao da Trinidade-Samitri v. Utah Int’l, Inc., 745 F.2d 190, 191 (2d Cir. 1984) (staying
“non-arbitrable” RICO claims pending arbitration of other claims);
(3) FMC Corp. v. Varonos, No. 87-C-9640 (N.D. Ill. Oct. 20, 1988) (LEXIS, Genfed library, Dist file)
(finding RICO claims insufficient);
(4) Selman v. American Sports Underwriters, No. 84-0099-C (W.D. Va. Oct. 4, 1988) (LEXIS, Genfed
library, Dist file) (same);
(5) Chisholm & Col. v. Bank of Jamaica, 643 F. Supp. 1393, 1404-05 (S.D. Fla. 1986) (same).
# Courts have maintained RICO causes of action against foreign defendants in only four cases.
(1) See In re All Terrain Vehicles Litig., No. 88-237 (E.D. Pa. Feb. 23, 1989) (LEXIS, Genfed library,
Dist file) (denying foreign defendant’s motion to dismiss);
(2) Chamarac Properties, N.V. v. Pike, Fed. Sec. L. Rep. (CCH) 93,761 (S.D.N.Y. 1988) (same);
(3) North Carolina v. Alexander & Alexander Servs., 680 F. Supp. 746, 750 (E.D.N.C.), certification for
immediate appeal denied, 685 F. Supp. 114, 117 (E.D.N.C. 1988) (same);
(4) Shulton, Inc. v. Optel Corp., 1987-1 Trade Cas. (CCH) 67,436 (D.N.J. 1986) (same).
515
Id. at 1042-1043

C. The United Nations, the United States and the States are Racketeering
Enterprises Over the Second Amendment
(1). Definition of Enterprise under the RICO Act. 516
The term “enterprise” includes “any individual, partnership, corporation, association, or other legal entity, and any
union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4). For a full
discussion of the enterprise’s required relationship to interstate and foreign commerce, see [U.S. Department of
Justice, RACKETEER INFLUENCED & CORRUPT ORGANIZATIONS: A MANUAL FOR FEDERAL
PROSECUTORS, Fourth Edition, July 2000,] Section III(C)(3)) [Effect on Interstate Commerce]. It is now settled
that the term “enterprise” encompasses both legitimate and illegitimate enterprises. United States v. Turkette, 452
U.S. 576 (1981).517 Prosecution under RICO, however, does not require proof that either the defendant or the
enterprise was connected to organized crime.518
(2). Types of Enterprises. 519
The courts have given a broad reading to the term “enterprise.” Noting that Congress mandated a liberal
construction of the RICO statute in order to effectuate its remedial purposes and pointing to the expansive use of
516
U.S. Department of Justice, RACKETEER INFLUENCED & CORRUPT ORGANIZATIONS: A MANUAL FOR FEDERAL
PROSECUTORS, Fourth Edition, July 2000, (pp. 37-38).
Available online at:, http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/rico.pdf.
517
See also United States v. Doherty, 867 F.2d 47, 68 (1st Cir. 1989); United States v. Blackwood, 768F.2d 131 (7th Cir.),
cert. denied, 474 U.S. 1020 (1985); United States v. Ruggiero, 726 F.2d 913, 923 (2d Cir.), cert. denied, 469 U.S. 831 (1984);
United States v. Cauble, 706 F.2d 1322, 1330 (5th Cir. 1983), cert. denied, 465 U.S. 1005 (1984); United States v. Lemm,
680 F.2d 1193, 1198 (8th Cir. 1982), cert. denied, 459 U.S. 1110 (1983); United States v. Bledsoe, 674 F.2d 647, 662 (8th
Cir. 1982), cert. denied, 459 U.S. 1040 (1983); United States v. Thevis, 665 F.2d 616, 626 (5th Cir.), cert. denied, 456 U.S.
1008 (1982); United States v. Griffin, 660 F.2d 996, 999 (4th Cir. 1981), cert. denied, 454 U.S. 1156 (1982); United States v.
Martino, 648 F.2d 367, 380-81 (5th Cir. 1981), rev’d in part on other grounds, 681 F.2d 952 (5th Cir.) (en banc), cert. denied,
456 U.S. 949 (1982); United States v. Clark, 646 F.2d 1259, 1267 n.7 (8th Cir. 1981); United States v. Sutton, 642 F.2d 1001,
1006-09 (6th Cir. 1980) (en banc), cert. denied, 453 U.S. 912 (1981); United States v. Errico, 635 F.2d 152, 155 (2d Cir.
1980), cert. denied, 453 U.S. 911 (1981); United States v. Provenzano, 620 F.2d 985, 992-93 (3d Cir.), cert. denied, 449 U.S.
899 (1980); United States v. Aleman, 609 F.2d 298, 304-05 (7th Cir. 1979), cert. denied, 445 U.S. 946 (1980); United States
v. Rone, 598 F.2d 564, 568-69 (9th Cir. 1979), cert. denied, 445 U.S. 946 (1980); United States v. Swiderski, 593 F.2d 1246,
1248-49 (D.C. Cir. 1978), cert. denied, 441 U.S. 993 (1979). An enterprise, however, cannot be an inanimate object such as a
bank account, Guidry v. Bank of LaPlace, 954 F.2d 278, 283 (5th Cir. 1992), or an apartment building, Elliott v. Foufas, 867
F.2d 877, 881 (5th Cir. 1989).
518
See National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 260 (1994); H.J. Inc. v. Northwestern Bell
Telephone Co., 492 U.S. 229, 245, 248-49 (1989); United States v. Aucoin, 964 F.2d 1492, 1496 (5th Cir.), cert. denied, 506
U.S. 1023 (1992); United States v. Ruiz, 905 F.2d 499, 502 (1st Cir. 1990); Plains Resources, Inc. v. Gable, 782 F.2d 883,
886-87 (10th Cir. 1986); United States v. Hunt, 749 F.2d 1078, 1088 (4th Cir. 1984), cert. denied, 472 U.S. 1018 (1985);
United States v. Romano, 736 F.2d 1432, 1441 (11th Cir. 1985); United States v. Cauble, 706 F.2d 1322, 1330 (5th Cir.
1983), cert. denied, 465 U.S. 1005 (1984). See also United States v. Gottesman, 724 F.2d 1517, 1521 (11th Cir. 1984); Moss
v. Morgan Stanley, Inc., 719 F.2d 5, 21 (2d Cir. 1983), cert. denied, 465 U.S. 1025 (1984); Bennett v. Berg, 685 F.2d 1053,
1063 (8th Cir.), aff’d in part, rev’d in part, 710 F.2d 1361 (8th Cir. 1982), cert. denied, 464 U.S. 1008 (1983); United States
v. Bledsoe, 674 F.2d 647, 663 (8th Cir. 1982), cert. denied, 459 U.S. 1040 (1984); United States v. Uni Oil, Inc., 646 F.2d
946, 953 (5th Cir. 1981), cert. denied, 455 U.S. 908 (1982); United States v. Aleman, 609 F.2d 298, 303 (7th Cir. 1979), cert.
denied, 423 U.S. 946 (1980); United States v. Campanale, 518 F. 1975), cert. denied, 423 U.S. 1050 (1976).
519
U.S. Department of Justice, RACKETEER INFLUENCED & CORRUPT ORGANIZATIONS: A MANUAL FOR FEDERAL
PROSECUTORS, Fourth Edition, July 2000, (pp. 39-46).
Available online at:, http://www.usdoj.gov/usao/eousa/foia_reading_room/usam/title9/rico.pdf.

the word “includes” in the statutory definition of the term, courts have held that the list of enumerated entities in
Section 1961(4) is not exhaustive but merely illustrative.520 Thus public and governmental entities521 as well as
private entities may constitute a RICO “enterprise”,522 including commercial entities such as corporations 523 or
groups of corporations524 (both foreign and domestic), 525 partnerships,526 sole proprietorships 527 and
cooperatives;528 benevolent and non-profit organizations such as unions and union benefit funds,529 schools, 530 and
520
See United States v. London, 66 F.3d 1243-44 (1st Cir. 1995) (association-in-fact enterprise consisting of bar and check
cashing business), cert. denied, 116 S. Ct. 1542 (1996); United States v. Aimone, 715 F.2d 822, 828 (3d Cir. 1983), cert.
denied, 468 U.S. 1217 (1984); United States v. Thevis, 665 F.2d 616, 625 (5th Cir.), cert. denied, 456 U.S. 1008 (1982);
United States v. Angelilli, 660 F.2d 23, 31 (2d Cir. 1981), cert. denied, 455 U.S. 945 (1982). See also United States v. Huber,
603 F.2d 387, 394 (2d Cir. 1979), cert. denied, 445 U.S. 927 (1980); United States v. Perkins, 596 F. Supp. 528, 530-31
(E.D. Pa.), aff’d, 749 F.2d 28 (3d Cir. 1984), cert. denied, 471 U.S. 1015 (1985). Cf. United States v. Turkette, 452 U.S. 576,
580 (1981) (“[t]here is no restriction upon the associations embraced by the definition [of enterprise]”).
521
522
See United States v. Lee Stoller Enterprise, 652 F.2d 1313, 1318 (7th Cir.), cert. denied, 517 U.S. 1155 (1981); United
States v. Clark, 646 F.2d 1259, 1263 (8th Cir. 1981); United States v. Frumento, 563 F.2d 1083, 1090-92 (3d Cir. 1977), cert.
denied, 434 U.S. 1072 (1978); see also United States v. Brown, 555 F.2d 407, 415-16 (5th Cir. 1977), cert. denied, 435 U.S.
904 (1978); United States v. Barber, 476 F. Supp. 182 (S.D. W. Va. 1979), aff’d, 668 F.2d 778 (4th Cir.), cert. denied, 459
U.S. 829 (1982).
523
See United States v. Kravitz, 738 F.2d 102, 113 (3d Cir. 1984) (health care delivery corporation), cert. denied, 470 U.S.
1052 (1985); United States v. Hartley, 678 F.2d 961, 988 n.43 (11th Cir. 1982) (corporation producing seafood products),
cert. denied, 459 U.S. 1170 (1983); United States v. Webster, 639 F.2d 174, 184 n.4 (4th Cir.) (tavern and liquor store), cert.
denied, 454 U.S. 857 (1981); United States v. Zemek, 634 F.2d 1159, 1167 (9th Cir. 1980) (taverns), cert. denied, 450 U.S.
916 (1981); United States v. Weisman, 624 F.2d 1118, 1120 (2d Cir.) (theater), cert. denied, 449 U.S. 871 (1980); United
States v. Swiderski, 593 F.2d 1246, 1248 (D.C. Cir. 1978) (restaurant serving as front for narcotics trafficking), cert. denied,
441 U.S. 933 (1979); United States v. Brown, 583 F.2d 659, 661 (3d Cir. 1978) (auto dealership), cert. denied, 440 U.S. 909
(1979); United States v. Forsythe, 560 F.2d 1127, 1135-36 (3d Cir. 1977) (bail bond agency).
524
See Securitron Magnalock Corp. v. Schnabolk, 65 F.3d 256, 262-64 (2d Cir. 1995) (defendant and two corporations
constituted the RICO enterprise), cert. denied, 516 U.S. 1114 (1996); United States v. Kirk, 844 F.2d 660, 664 (9th
Cir.)(group of corporations), cert. denied, 488 U.S. 890 (1988); United States v. Huber, 603 F.2d 387, 394 (2d Cir. 1979)
(group of corporations can be an enterprise within meaning of RICO), cert. denied, 445 U.S. 927 (1980); United States v.
Perkins, 596 F. Supp. 528, 530-31 (E.D. Pa.), aff’d, 749 F.2d 28 (3d Cir. 1984) (group of corporations set up by defendant to
defraud government constituted a RICO enterprise), cert. denied, 471 U.S. 1015 (1985); United States v. Pryba, 674 F. Supp.
1504, 1508 (E.D. Va. 1987) (enterprise could consist of group of individuals and corporations); Snider v. Lone Star Art
Trading Co., 659 F. Supp. 1249, 1253 (E.D. Mich. 1987)(combination of individuals and corporations meets enterprise
definition); Trak Microcomputer Corp. v. Wearne Bros., 628 F. Supp. 1089, 1094-95 (N.D. Ill. 1985) (group of corporations
can constitute RICO enterprise).
525
See United States v. Parness, 503 F.2d 430, 439 (2d Cir. 1974) (foreign corporation can constitute a RICO enterprise),
cert. denied, 419 U.S. 1105 (1975).
526
See United States v. Cauble, 706 F.2d 1322, 1331 (5th Cir. 1983) (limited partnership), cert. denied, 465 U.S. 1005
(1984); United States v. Zang, 703 F.2d 1186, 1194 (10th Cir. 1982) (partnership), cert. denied, 464 U.S. 828 (1983); United
States v. Griffin, 660 F.2d 996, 999 (4th Cir. 1981) (partnership may be enterprise), cert. denied, 454 U.S. 1156 (1982);
Eisenberg v. Gagnon, 564 F. Supp. 1347, 1353 (E.D. Pa. 1983) (limited partnership); United States v. Jannotti, 501 F. Supp.
1182, 1185-86 (E.D. Pa. 1980), rev’d on other grounds, 673 F.2d 578 (3d Cir.) (en banc) (law firm operated through payment
of bribes), cert. denied, 457 U.S. 1106 (1982).
527
See United States v. Benny, 786 F.2d 1410, 1414-15 49 (9th Cir.), cert. denied, 479 U.S. 1017 (1986); McCullough v.
Suter, 757 F.2d 142 (7th Cir. 1985); United States v. Tille, 729 F.2d 615, 618 (9th Cir.), cert. denied, 471 U.S. 1064 (1984);
United States v. Melton, 689 F.2d 679, 685 (7th Cir. 1982); State Farm Fire & Casualty Co. v. Estate of Caton, 540 F. Supp.
673, 676 (N.D. Ind. 1982). However, the sole proprietorship is not favored as a RICO enterprise. See cases infra at pp. 73-75.
528
See United States v. Bledsoe, 674 F.2d 647, 660 (8th Cir. 1982) (dicta), cert. denied, 459 U.S. 1040 (1983).

political associations;531 governmental units such as the offices of governors, state and congressional
legislators,532 courts and judicial offices, 533 police departments and sheriffs’ offices,534 county prosecutors’
529
See United States v. Norton, 867 F.2d 1354, 1359 (11th Cir. 1989) (the Laborers International Union of North America, its
subordinate local unions and its affiliated employee benefit funds); United States v. Robilotto, 828 F.2d 940, 947 (2d Cir.
1987) (Local 294 of the International Brotherhood of Teamsters), cert. denied, 484 U.S. 1011 (1988); United States v.
Provenzano, 688 F.2d 194, 199-200 (3d Cir.) (Local 560 of the Teamsters Union), cert. denied, 459 U.S. 1071 (1982); United
States v. LeRoy, 687 F.2d 610, 616-17 1982) (Local 214 of Laborers International Union of North America), cert. denied, 459
U.S. 1174 (1983); United States v. Scotto, 641 F.2d 47, 51, 54 (2d Cir. 1980) (Local 1814 of the International
Longshoremen’s Association), cert. denied, 452 U.S. 961 (1981); United States v. Rubin, 559 F.2d 975, 989 (5th Cir. 1977)
(unions and employees welfare benefit plans), vacated and remanded, 439 U.S. 810 (1978), aff’d in part and rev’d in part on
other grounds, 591 F.2d 278 (5th Cir.), cert. denied, 444 U.S. 864 (1979); United States v. Kaye, 556 F.2d 855, 861-62 (7th
Cir.) (Local 714 of the International Brotherhood of Teamsters), cert. denied, 434 U.S. 921 (1977); United States v.
Campanale, 518 F.2d 352, 355 (9th Cir. 1975) (applying RICO without discussion to Local 626 of the International
Brotherhood of Teamsters), cert. denied, 423 U.S. 1050 (1976); United States v. Local 560, International Brotherhood of
Teamsters, 581 F. Supp. 279, 335 (D.N.J. 1984), aff’d, 780 F.2d 267 (3d Cir. 1985) (Local 560 and its benefit fund), cert.
denied, 476 U.S. 1140 (1986); United States v. Field, 432 F. Supp. 55, 57-58 (S.D.N.Y. 1977) (International Longshoremen’s
Association), aff’d, 578 F.2d 1371 (2d Cir.), cert. denied, 439 U.S. 801 (1978); United States v. Ladmer, 429 F. Supp. 1231
(E.D.N.Y. 1977) (applying RICO without discussion to the International Production Service & Sales Employees Union, but
dismissing action for failure to establish a pattern of racketeering activity); United States v. Stofsky, 409 F. Supp. 609
(S.D.N.Y. 1973) (applying RICO to a union representing workers in New York’s fur garment manufacturing industry), aff’d,
527 F.2d 237 (2d Cir. 1975), cert. denied, 429 U.S. 819 (1976).
530
See United States v. Weatherspoon, 581 F.2d 595, 597-98 (7th Cir. 1978) (beauty college approved for veterans’
vocational training by the Veterans Administration).
531
See Hudson v. LaRouche, 579 F. Supp. 623, 628 (S.D.N.Y. 1983) (unincorporated national political association affiliated
with a political candidate).
532
See United States v. Blandford, 33 F.3d 685, 703 (6th Cir.) (Office of the Representative for House District 14 together
with individuals employed therein), cert. denied, 514 U.S. 1095 (1995); United States v. McDade, 28 F.3d 283, 295-96 (3d
Cir.) (Congressman McDade and his Congressional offices in Washington, D.C. and in the 10th Congressional District
of Pennsylvania), cert. cert. denied, 514 U.S. 1003 (1995); United States v. Freeman, 6 F.3d 586, 596-97 (9th Cir.
1993)(Offices of the 49th Assembly District), cert. denied, 511 U.S. 1077 (1994); United States v. Thompson, 685 F.2d 993
(6th Cir. 1982) (en banc) (applying RICO to the Tennessee Governor’s Office, but questioning the wisdom of not defining
the enterprise in the indictment as a “group of individuals associated in fact that made use of the office of Governor of the
State of Tennessee”), cert. denied, 459 U.S. 1072 (1983); United States v. Long, 651 F.2d 239, 241 (4th Cir.) (office of
Senator in the South Carolina legislature), cert. denied, 454 U.S. 896 (1981); United States v. Sisk, 476 F. Supp. 1061, 1062-
63 (M.D. Tenn. 1979), aff’d, 629 F.2d 1174 (6th Cir. 1980) (Tennessee Governor’s Office), cert. denied, 449 U.S. 1084
(1981); see also United States v. Gillock, 445 U.S. 360, 373 n.11 (1979) (“[o]f course, even a member of Congress would
not be immune under the federal Speech or Debate Clause from prosecution for the acts which form the basis of the . .
. [RICO] charges here”). But see United States v. Mandel, 415 F. Supp. 997, 1020-22 (D. Md. 1976), rev’d on other
grounds, 591 F.2d 1347 (4th Cir.), aff’d on reh’g, 602 F.2d 653 (4th Cir. 1979) (en banc) (state of Maryland not an
“enterprise” for RICO purposes), cert. denied, 445 U.S. 961 (1980). Mandel, however, has been discredited by all
courts that have considered the issue, including the Fourth Circuit. See, e.g., United States v. Angelilli, 660 F.2d 23, 33
n.10 (2d Cir. 1981), cert. denied, 455 U.S. 945 (1982); United States v. Long, 651 F.2d 239, 241 (4th Cir.), cert. denied,
454 U.S. 896 (1981); United States v. Clark, 646 F.2d 1259, 1261-67 (8th Cir. 1981); United States v. Altomare, 625 F.2d
5, 7 n.7 (4th Cir. 1980); United States v. Baker, 617 F.2d 1060, 1061 (4th Cir. 1980); see also United States v. Powell, No.
87 CR 872-3 (N.D. Ill. February 27, 1988) (City of Chicago proper enterprise for purposes of RICO); State of New
York v. O’Hara, 652 F. Supp. 1049 (W.D.N.Y. 1987) (in civil RICO suit, City of Niagara Falls proper enterprise);
Commonwealth v. Cianfrani, 600 F. Supp. 1364 (E.D. Pa. 1985) (Pennsylvania Senate).
533
See United States v. Grubb, 11 F.3d 426, 438 (4th Cir. 1993)(55 Office of the 7th Judicial Circuit); United States v. Conn,
769 F.2d 420, 424-25 (7th Cir. 1985) (Cook County Circuit Court); United States v. Blackwood, 768 F.2d 131, 137-38 (7th
Cir.) (Cook County Circuit Court), cert. denied, 474 U.S. 1020 (1985); United States v. Angelilli, 660 F.2d 23, 30-34 (2d Cir.
1981) (New York City Civil Court), cert. denied, 455 U.S. 945 (1982); United States v. Sutherland, 656 F.2d 1181 (5th Cir.
1981) (applying RICO without discussion to Municipal Court of El Paso, Texas), cert. denied, 455 U.S. 949 (1982); United

offices,535 tax bureaus,536 fire departments,537 and executive departments and agencies.538 An enterprise may
also be comprised of a combination of entities539 called an association-in-fact.540
States v. Stratton, 649 F.2d 1066, 1074-75 (5th Cir. 1981) (judicial circuit); United States v. Bacheler, 611 F.2d 443, 450 (3d
Cir. 1979) (Philadelphia Traffic Court); United States v. Joseph, 526 F. Supp. 504, 507 (E.D. Pa. 1981) (Office of the Clerk
of Courts of Lehigh County, Pennsylvania); United States v. Vignola, 464 F. Supp. 1091 (E.D. Pa.), aff’d, 605 F.2d 1199 (3d
Cir. 1979) (same), cert. denied, 444 U.S. 1072 (1980).
534
See United States v. DePeri, 778 F.2d 963 (3d Cir. 1985) (Philadelphia Police Department), cert. denied, 475 U.S. 1109
(1986); United States v. Alonso, 740 F.2d 862, 870 (11th Cir. 1984) (Dade County Public Safety Department, Homicide
Section), cert. denied, 469 U.S. 1166 (1985); United States v. Ambrose, 740 F.2d 505, 512 (7th Cir. 1984) (Chicago Police
Department), cert. denied, 472 U.S. 1017 (1985); United States v. Davis, 707 F.2d 880, 882-83 (6th Cir. 1983) (Sheriff’s
Office of Mahoning County, Ohio); United States v. Lee Stoller Enterprise, Inc., 652 F.2d 1313, 1316-19 (7th Cir.) (Sheriff’s
Office of Madison County, Illinois), cert. denied, 454 U.S. 1082 (1981); United States v. Bright, 630 F.2d 804, 829 (5th Cir.
1980) (Sheriff’s Office of DeSoto County, Mississippi); United States v. Karas, 624 F.2d 500, 504 (4th Cir. 1980) (Office of
County Law Enforcement Officials), cert. denied, 449 U.S. 1078 (1981); United States v. Baker, 617 F.2d 1060, 1061 (4th
Cir. 1980) (Sheriff’s Department of Wilson County, North Carolina); United States v. Grzywacz, 603 F.2d 682, 685-87 (7th
Cir. 1979) (Police Department of Madison, Illinois), cert. denied, 446 U.S. 935 (1980); United States v. Burnsed, 566 F.2d
882 (4th Cir. 1977) (applying RICO without discussion to the Vice Squad of the Charleston, South Carolina Police
Department), cert. denied, 434 U.S. 1077 (1978); United States v. Brown, 555 F.2d 407, 415-16 (5th Cir. 1977) (Macon,
Georgia Municipal Police Department), cert. denied, 435 U.S. 904 (1978); United States v. Cryan, 490 F. Supp. 1234, 1239-
44 (D.N.J.) (applying RICO to Sheriff’s Office of Essex County, New Jersey, but limiting RICO culpability to only those
defendants who actually committed or authorized the acts charged in the indictment), aff’d, 636 F.2d 1211 (3d Cir. 1980).
535
See United States v. Goot, 894 F.2d 231, 239 (7th Cir.), cert. denied, 498 U.S. 811 (1990); United States v. Yonan, 800
F.2d 167-68 (7th Cir. 1986) (Cook County State’s Attorney’s Office), cert. denied, 479 U.S. 1055 (1987); United States v.
Altomare, 625 F.2d 5, 7 n.7 (4th Cir. 1980) (Office of Prosecuting Attorney of Hancock County, West Virginia).
536
See United States v. Burns, 683 58 F.2d 1056, 1059 n.2 (7th Cir. 1982) (Cook County, Illinois, Board of Tax Appeals),
cert. denied, 459 U.S. 1173 (1983); United States v. Frumento, 563 F.2d 1083, 1089-92 (3d Cir. 1977) (Pennsylvania
Department of Revenue’s Bureau of Cigarette and Beverage Taxes), cert. denied, 434 U.S. 1072 (1978).
537
See United States v. Balzano, 916 F.2d 1273, 1290 (7th Cir. 1990)(Chicago Fire Department).
538
See United States v. Hocking, 860 F.2d 769, 778 (8th Cir. 1988) (Illinois Department of Transportation); United States v.
Dozier, 672 F.2d 531, 543 and n.8 (5th Cir.) (Louisiana Department of Agriculture), cert. denied, 459 U.S. 943 (1982);
United States v. Angelilli, 660 F.2d 23, 33 n.10 (2d Cir. 1981), cert. denied, 455 U.S. 945 (1982); United States v. Long, 651
F.2d 239, 241 (4th Cir.), cert. denied, 454 U.S. 896 (1981); United States v. Clark, 646 F.2d 1259, 1261-67 (8th Cir. 1981);
United States v. Altomare, 625 F.2d 5, 7 n.7 (4th Cir. 1980); United States v. Baker, 617 F.2d 1060, 1061 (4th Cir. 1980);
United States v. Davis, 576 F.2d 1065, 1067 (3d Cir.) (warden of county prison), cert. denied, 439 U.S. 836 (1978); State of
Maryland v. Buzz Berg Wrecking Co., 496 F. Supp. 245, 247-48 (D. Md. 1980) (Construction and Building Inspection
Division of the Department of Housing and Community Development for the City of Baltimore); United States v. Barber,
476 F. Supp. 182, 191 (S.D. W. Va. 1979) (West Virginia Alcohol Beverage Control Commission).
539
See United States v. Parise, 159 F.3d 790, 794-95 (3d Cir. 1998) (enterprise consisted of four organizations); United
States v. London, 66 F.3d 1227, 1243-44 (1st Cir. 1995)(two or more legal entities), cert. denied, 511 U.S. 1155 (1996);
United States v. Console, 13 F.3d 641, 652 (3d Cir. 1993)(law firm and medical practice), cert. denied, 511 U.S. 1076 (1994);
United States v. Blinder, 10 F.3d 1468, 1473 (9th Cir. 1993)(six corporations); United States v. Butler, 954 F.2d 114, 120 (2d
Cir. 1992)(broad enterprise consisting of Local 200, the pension funds, and Local 362); United States v. Collins, 927 F.2d
605 (6th Cir.)(Table)(group of corporations), cert. denied, 502 U.S. 858 (1991); United States v. Masters, 924 F.2d 1362,
1366 (7th Cir.)(law firm, two police departments, and three individuals who are defendants), cert. denied, 500 U.S. 919
(1991); United States v. Stolfi, 889 F.2d 378, 379-80 (2d Cir. 1989) (local union and its welfare benefit fund); United States
v. Feldman, 853 F.2d 648, 655-59 (9th Cir. 1988) (association of five corporations and two individuals, including the
defendant), cert. denied, 489 U.S. 1030 (1989); United States v. Perholtz, 842 F.2d 343, 352-54 (D.C. Cir.) (group of
individuals, corporations, and partnerships), cert. denied, 488 U.S. 821 (1988); United States v. Pryba, 674 F. Supp. 1504,
1508 (E.D. Va. 1987) (enterprise could consist of group of individuals and corporations); Snider v. Lone Star Art Trading
Co., 659 F. Supp. 1249, 1253 (E.D. Mich. 1987) (group of individuals and corporations proper enterprise); United States v.

D. The Private Attorney General and the Human Rights Defender

The PRIVATE ATTORNEY GENERAL, is defined by Black’s Law Dictionary, Sixth Edition, as the concept [ ]
that a successful private party plaintiff is entitled to recovery of his legal expenses, including attorney fees, if he
has advanced the policy inherent in public interest legislation on behalf of a significant class of persons. Dasher
v. Housing Authority of City of Atlanta, Ga., D.C.Ga., 64 F.R.D. 720, 722. See also EQUAL ACCESS TO JUSTICE
ACT.
Citing the conclusion in Pamela S. Karlan, DISARMING THE PRIVATE ATTORNEY GENERAL, Illinois Law
Review, Vol. 2003, No.1, 183-210:541
The overriding theme that links together the Supreme Court’s decisions on a range of issues—
from the scope of Eleventh Amendment immunity to the scope of congressional power under
section 5 of the Fourteenth Amendment, and from when to find implied rights of action to when
to award attorney’s fees—can be stated quite simply: The current Court is creating an ever-
greater regulation-remedy gap. It has left Congress free to regulate a wide range of subjects, but it
is engaged in a form of court stripping that reduces the possibilities for judicial enforcement of
statutory commands. Thus, I would argue that a “virulent variety of freewheeling interventionism
lies at the core of [the Court’s] devices of restraint.”542
The Congress and Supreme Court of an earlier era constructed the institution of the private
attorney general because they recognized that, without private attorneys general, it would be
impossible to realize some of our most fundamental constitutional and political values. The
current Court seems bent on dismantling this centerpiece of the Second Reconstruction. For all its
invocations of Marbury’s declaration that it “is emphatically the province and the duty of the
judicial department to say what the law is,”543179 the current Court seems to have forgotten
Marbury’s equally important acknowledgment—that “the government of the United States has
been emphatically termed a government of laws, and not of men,” but “will certainly cease to
deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal
Dellacroce, 625 F. Supp. 1387, 1390 (E.D.N.Y. 1986) (two “crews” of the Gambino Crime Family and their supervisor
sufficient RICO enterprise); United States v. Aimone, 715 F.2d 822, 826 (3d Cir. 1983) (enterprise may be comprised of a
combination of “illegal” entities and a group of individuals associated in fact), cert. denied, 468 U.S. 1217 (1984); United
States v. Thevis, 665 F.2d 616, 625-26 (5th Cir.), cert. denied, 456 U.S. 1008 (1982); United States v. Huber, 603 F.2d 387,
393-94 (2d Cir. 1979), cert. denied, 445 U.S. 927 (1980); United States v. Campanale, 518 F.2d 352, 357 n.11 (9th Cir.
1975) (enterprise composed of two corporations and a union), cert. denied, 423 U.S. 1050 (1976).
540
See United States v. Turkette, 452 U.S. 576, 581 (1981); United States v. Nabors, 45 F.3d 238 (8th Cir. 1995)
(association-in-fact consisting of the defendants); United States v. Stefan, 784 F.2d 1093, 1103 (11th Cir.) (enterprise
consisting of a group of individuals associated in fact sufficient where individuals identified by name), cert. denied, 479 U.S.
1009 (1986); United States v. Mitchell, 777 F.2d 248, 259 (5th Cir. 1985) (group of individuals associated together for the
purpose of importing marijuana sufficient for RICO enterprise), cert. denied, 476 U.S. 1184 (1986); United States v. Local
560, Int’l Brotherhood of Teamsters, 780 F.2d 267, 273 (3d Cir. 1985) (“Provenzano group,” group of individuals, could
constitute enterprise), cert. denied, 476 U.S. 1140 (1986); United States v. Santoro, 647 F. Supp. 153, 176 (E.D.N.Y. 1986)
(“Luchese Family” alleged as association-infact enterprise), aff’d, 880 F.2d 1319 (2d Cir. 1989); Van Dorn Co. v.
Howington, 623 F. Supp. 1548, 1554 (N.D. Ohio 1985) (unnamed association of defendants could constitute proper
enterprise).
541
http://home.law.uiuc.edu/lrev/publications/2000s/2003/2003_1/Karlan.pdf
542
Gerald Gunther, THE SUBTLE VICES OF THE “PASSIVE VIRTUES”—A COMMENT ON PRINCIPLE AND EXPEDIENCY IN JUDICIAL
REVIEW, 64 Colum. L. Rev. 1, at 25 (1964). The quoted text summarizes Gunther’s assessment of Alexander M. Bickel’s
article, The Passive Virtues.
543
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

right.”544 When the law furnishes no remedy because the Supreme Court has cast out the remedies
that the political branches have tried to provide, then the courts threaten to become the most
dangerous branch “to the political rights of the Constitution,”545181 and not the least.
The United States’ PRIVATE ATTORNEY GENERAL DOCTRINE and the United Nations’ HUMAN
RIGHTS DEFENDER serve essentially the same public policies inherent in public interest legislation
on behalf of a significant class of persons that are in the interest of justice. A PRIVATE ATTORNEY
GENERAL may appear in court “ex rel.” on behalf of the “United States” or the “People of the
United States of America.”
Both statutes [RICO and Clayton Act] bring to bear the pressure of [“PRIVATE ATTORNEYS
GENERAL”] on a serious national problem for which public prosecutorial resources are deemed
inadequate; the mechanism chosen to reach the objective in both the Clayton Act and RICO is the
carrot of treble damages. Agency Holding Corp. v. Malley-Duff & Associates, 107 S.Ct. 2759,
483 U.S. 143, 151 (1987).
Citing Rotella v. Wood et al., 528 U.S. 549, 557-558 (2000):
“. . . [T]here is a clear legislative record of congressional reliance on the Clayton Act when RICO
was under consideration, see Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 489 (1985), and we
have recognized before that the Clayton Act’s injury-focused accrual rule was well established by
the time civil RICO was enacted. Klehr , 521 U. S., at 189 . In rejecting a significantly different
focus under RICO, therefore, we are honoring an analogy that Congress itself accepted and relied
upon, and one that promotes the objectives of civil RICO as readily as it furthers the objects of
the Clayton Act. Both statutes share a common congressional objective of encouraging civil
litigation to supplement Government efforts to deter and penalize the respectively
prohibited practices. The object of civil RICO is thus not merely to compensate victims but
to turn them into prosecutors, [“PRIVATE ATTORNEYS GENERAL,”] dedicated to eliminating
racketeering activity. 546 Id.,547 at 187 (citing Malley-Duff , 483 U. S., at 151 ) (civil RICO
specifically has a “further purpose [of] encouraging potential private plaintiffs diligently to
investigate”). The provision for treble damages is accordingly justified by the expected benefit of
suppressing racketeering activity, an object pursued the sooner the better. It would, accordingly,
be strange to provide an unusually long basic limitations period that could only have the effect of
postponing whatever public benefit civil RICO might realize. The Clayton Act avoids any such
policy conflict by its accrual rule that “generally, a cause of action accrues and the statute begins
to run when a defendant commits an act that injures a plaintiff’s business,” Zenith Radio Corp. v.
Hazeltine Research, Inc., 401 U. S., at 338 , and the Clayton Act analogy reflects the clear intent
of Congress to reject a potentially longer basic rule under RICO.
544
Marbury, 5 U.S. at 163.
545
THE FEDERALIST NO. 78, supra note 3, at 465.
546
This objective of encouraging prompt litigation to combat racketeering is the most obvious answer to Rotella’s argument
that the injury and pattern discovery rule should be adopted because “RICO is to be read broadly” and “‘liberally construed to
effectuate its remedial purposes,’” Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 497-498 (1985) (quoting Pub. L. 91-452,
§ 904(a), 84 Stat. 947).
547
Emphasis mine.

E. Disarming the Private Attorney General

DISARMING THE PRIVATE ATTORNEY GENERAL
Pamela S. Karlan*
Stanford Law School
Research Paper No. 36 (2002)
http://ssrn.com/abstract_id=308220
The two great Alexanders of constitutional law – Hamilton and Bickel – saw courts as essentially
reactive institutions. The judiciary, Hamilton wrote in the Federalist Paper that gave Bickel’s
book its title, is “the least dangerous branch” because it can “take no active resolution whatever ...
and must ultimately depend upon the aid of the executive arm even for the efficacy of its
judgments.”548 Bickel applied this general proposition even to the fundamental constitutional
principle of equality expressed in Brown v. Board of Education,549 suggesting that the Supreme
Court might properly decline to grant an immediate remedy because realistic enforcement would
require enlisting Congress and the President.550 The Alexandrian view depends on a model of
adjudication in which the courts announce a rule and then rely on the political branches to obey or
enforce it.551 But Marbury shows that the converse can also be true. There is an important class of
cases in which the legislature and the executive must depend on the judiciary for the efficacy of
their judgments. In these cases, it is judicial refusals to act that pose a danger “to the political
rights of the Constitution.”552
Marbury itself recognized this threat, when Chief Justice Marshall observed that the government
of the United States could no longer be “termed a government of law, and not of men .... if the
laws furnish no remedy for a vested legal right.”553 As the Court stated last Term, although there
are “vital limits on judicial authority,” when “contending parties invoke the process of the courts,
... it becomes our unsought responsibility to resolve the federal and constitutional issues the
judicial system has been forced to confront.”554 What makes that declaration so ironic is the
context. As in Marbury, an aspirant for federal office sought the Court’s assistance. But unlike
William Marbury, George W. Bush managed to procure a sweeping remedial order from the
Supreme Court without ever identifying any vested legal right that the remedy he requested
would actually vindicate.555 Moreover, the same Court that provided George W. Bush with an
548
See The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed. 1961); this passage appears as the epigraph
to Bickel’s book.
549
347 U.S. 483 (1954).
550
See Alexander M. Bickel, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS 247-54, 267-72.
(1962).
551
Even when it comes to straightforward constitutional adjudication, however, as Gerald Gunther explained in a classic
article, there can be substantial costs to a court’s refusal to address properly presented claims. See Gerald Gunther, THE
SUBTLE VICES OF THE “PASSIVE VIRTUES” – A COMMENT ON PRINCIPLE AND EXPEDIENCY IN JUDICIAL REVIEW, 64 Colum. L.
Rev. 1 (1964).
552
THE FEDERALIST, No. 78, supra note 3, at 465.
553
5 U.S. at 163.
554
Bush v. Gore, 531 U.S. 98, 111 (per curiam).
555
I explore this point at substantial length in Pamela S. Karlan, Nothing Personal:

unprecedented remedy in the service of an expansive, if evanescent, equal protection claim has
shown itself strikingly resistant to judicial remedies for civil-rights plaintiffs raising more
traditional equality-based claims.
There are two ways a court might retrench on civil rights protections. First, a court might
explicitly redefine an underlying right in narrower terms. For example, in City of Mobile v.
Bolden,556 the Supreme Court redefined the preexisting jurisprudence of racial vote dilution,
embodied in such decisions as White v. Regester,557 to forbid only those electoral structures that
were adopted or maintained for racially discriminatory purposes, rather than prohibiting also
those that had a disparate impact on minority voters.558 Similarly, in Patterson v. McLean Credit
Union,559 the Supreme Court offered a cramped interpretation of 42 U.S.C. § 1981’s protection
against racial discrimination in the right “to make and enforce contracts.”560 It held that section
1981 “extends only to the formation of a contract, but not to problems that may arise later from
the conditions of continuing employment,”561 and thus that racial harassment of employees was
not actionable under section 1981.
The other approach, which is more insidious, is for the court to leave the formal right in place, but
to constrict the remedial machinery. At best, this will dilute the value of the right, since some
violations will go unremedied. At worst, it may signal potential wrongdoers that they can infringe
the right with impunity.
Remedial abridgment is a pervasive tool of the contemporary Supreme Court. In criminal
procedure, for example, Carol Steiker has shown that while the Burger and Rehnquist Courts
have left in place most of the Warren Court’s restrictions on police activity, they have developed
new “inclusionary” rules that allow the introduction of unconstitutionally obtained evidence,
thereby dampening the effect of “conduct” rules directed at law enforcement personnel. 562
Similarly, in structural reform litigation, Daryl Levinson has pointed to ways in which the Court’s
retrenchment on the scope of appropriate remedies has backwashed into the definition of the
underlying rights.563
The Evolution of the Newest Equal Protection from Shaw v. Reno to Bush v. Gore, 79 N.C.L. Rev. 1345 (2001), and Pamela
S. Karlan, Equal Protection: Bush v. Gore and the Making of a Precedent, in The Unfinished Election of 2000, at 159, 185-95
(Jack N. Rakove ed. 2001).
556
446 U.S. 55 (1980).
557
412 U.S.755 (1973).
558
For discussions of this retrenchment, see, e.g., Samuel Issacharoff, Pamela S. Karlan & Richard H. Pildes, THE LAW OF
DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS 708-10, 729-45 (2d ed. 2001); James U. Blacksher & Larry T.
Menefee, FROM REYNOLDS V. SIMS TO CITY OF MOBILE V. BOLDEN: HAVE THE WHITE SUBURBS COMMANDEERED THE FIFTEENTH
AMENDMENT?, 34 Hastings L.J. 1, 4, 28 (1982).
559
491 U.S. 164 (1989).
560
42 U.S.C. § 1981 provided, at the time, that “[a]ll persons within the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens ....” Congress subsequently
amended § 1981 to overturn the Court’s decision in Patterson, declaring that “[f]or purposes of this section, the term ‘make
and enforce contracts’ includes the making, performance, modification, and termination of contracts, and the enjoyment of
all benefits, privileges, terms, and conditions of the contractual relationship.” 42 U.S.C. § 1981(b) (1994).
561
491 U.S. at 176.
562
See Carol S. Steiker, COUNTER-REVOLUTION IN CRIMINAL PROCEDURE?: TWO AUDIENCES, TWO ANSWERS, 94 Mich. L. Rev.
2466 (1996).
563
See Daryl J. Levinson, RIGHTS ESSENTIALISM AND REMEDIAL EQUILIBRATION, 99 Colum. L. Rev. 857 (1999).

***
In this article, I shall discuss how several of the Supreme Court’s civil rights decisions from last
Term reflect this strategy as well. For the most part, the Court has left the political branches’
power to regulate relatively unconstrained. That is, the Court assumes that Congress and the
Executive can prohibit various forms of primary conduct. At the same time, however, the Court
has launched a wholesale assault on one of the primary mechanisms Congress has used for
enforcing civil rights: the private attorney general.
The idea behind the “private attorney general” can be stated relatively simply: Congress can
vindicate important public policy goals by empowering private individuals to bring suit. While
one can imagine a regime in which Congress simply delegates the government’s own right to
enforce its laws to private bounty hunters – that is essentially what qui tam lawsuits envision564 –
the current reliance on private attorneys general is more modest. It consists essentially of
providing a cause of action for individuals who have been injured by the conduct Congress
wishes to proscribe, usually with the additional incentive of attorney’s fees for a prevailing
plaintiff.
Virtually all modern civil rights statutes rely heavily on private attorneys general. As the Court
explained in Newman v. Piggie Park Enterprises,565 one of the earliest cases construing the Civil
Rights Act of 1964, which forbids various kinds of discrimination in public accommodations,
federally funded programs, and employment, Congress recognized that it could not achieve
compliance solely through lawsuits initiated by the Attorney General:
A [public accommodations] suit is thus private in form only. When a plaintiff brings an action ...,
he cannot recover damages. If he obtains an injunction, he does so not for himself alone but also
as a “private attorney general,” vindicating a policy that Congress considered of the highest
priority. 566
Thus, Piggie Park recognized the piggybacking function of the Act: Congress harnessed private
plaintiffs to pursue a broader purpose of obtaining equal treatment for the public at large. Later,
the Court explained that this public function exists even when a civil rights plaintiff asks for
compensatory damages rather than injunctive relief. “Unlike most private tort litigants,” the civil
rights plaintiff “seeks to vindicate important civil and constitutional rights that cannot be valued
solely in monetary terms.... Regardless of the form of relief he actually obtains, a successful civil
rights plaintiff often secures important social benefits.”567 Thus, when “his day in court is denied
him,” the congressional policy which a civil rights plaintiff “seeks to assert and vindicate goes
unvindicated; and the entire Nation, not just the individual citizen, suffers.”568
In this article, I explore four decisions from October Term 2000 in which the Supreme Court
sharply abridged the ability of private attorneys general to get their day in court. In two cases, the
Court denied private plaintiffs the ability to bring lawsuits altogether. In Board of Regents v.
564
And what Judge Jerome Frank, who apparently coined the phrase “private attorney general” in his 1943 opinion in
Associated Industries v. Ickes, 134 F.2d 694, 704 (1943), imagined. For discussions of qui tam lawsuits, see, e.g., Vermont
Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765 (2000); Evan Caminker, Comment, THE
CONSTITUTIONALITY OF QUI TAM ACTIONS, 99 Yale L.J. 341 (1989).
565
390 U.S. 400 (1968) (per curiam).
566
Id. at 401-02.
567
City of Riverside v. Rivera, 477 U.S. 561, 574 (1986).
568
Id. (internal quotation marks omitted).

Garrett,569 the Court underscored its narrow reading of congressional enforcement power under
section 5 of the Fourteenth Amendment, holding that Congress cannot authorize private damages
lawsuits against state governments that discriminate against the disabled. And in Alexander v.
Sandoval,570 the Court held that there is no private right of action to enforce disparate-impact
regulations promulgated under Title VI of the Civil Rights Act of 1964, which forbids racial
discrimination in federally funded programs or activities. In each of these cases, the Court left
open (perhaps only for the time being) the possibility of other forms of congressional or
administrative enforcement, but the elimination of private attorneys general altogether will surely
decrease overall enforcement of the underlying rights.
In two other cases, the Court left open the formal availability of private lawsuits, but created
substantial practical barriers to private vindication of public policy. In Circuit City v. Adams, 571
the Court construed the Federal Arbitration Act in a way that permits employers to compel
workers to arbitrate claims under federal fair-employment laws. And in Buckhannon Board and
Care Home v. West Virginia Department of Health and Human Resources,572 the Court rejected
the preexisting “catalyst theory” for attorney’s fees. Under that theory, courts had awarded
plaintiffs attorney’s fees when their lawsuits led the defendant to change the challenged practice
voluntarily. The Supreme Court, however, held that fees can be awarded only if there is a
judicially sanctioned change in the parties’ legal relationship. These decisions will cut down both
on the amount of civil rights enforcement and on the development of the law through the creation
of binding precedent.
Conclusion
The overriding theme that links together the Supreme Court’s decisions on a range of issues –
from the scope of Eleventh Amendment immunity to the scope of congressional power under
section 5 of the Fourteenth Amendment, and from when to find implied rights of action to when
to award attorney’s fees – can be stated quite simply: The current Court is creating an ever-
greater regulation-remedy gap. It has left Congress free to regulate a wide range of subjects, but it
is engaged in a form of courtstripping that reduces the possibilities for judicial enforcement of
statutory commands. To paraphrase my colleague Gerry Gunther, a “virulent variety of free-
wheeling interventionism lies at the core of [the Court’s] devices of restraint.”573
The Congress and Supreme Court of an earlier era constructed the institution of the private
attorney general because they recognized that, without private attorneys general, it would be
impossible to realize some of our most fundamental constitutional and political values. The
current Court seems bent on dismantling this centerpiece of the Second Reconstruction. For all its
invocations of Marbury’s declaration that it “is emphatically the province and the duty of the
judicial department to say what the law is,”574 the current Court seems to have forgotten
Marbury’s equally important acknowledgment – that “the government of the United States has
been emphatically termed a government of laws, and not of men,” but “will certainly cease to
deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal
569
531 U.S. 356 (2001).
570
532 U.S. 275 (2001).
571
532 U.S. 105 (2001).
572
532 U.S. 598 (2001).
573
Gerald Gunther, THE SUBTLE VICES OF THE “PASSIVE VIRTUES” – A COMMENT ON PRINCIPLE AND EXPEDIENCY IN JUDICIAL
REVIEW, 64 Colum. L. Rev. at 25 (1964).
574
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

right.”575 When the law furnishes no remedy because the Supreme Court has cast out the remedies
that the political branches have tried to provide, then the courts threaten to become the most
dangerous branch “to the political rights of the Constitution,”576 and not the least.
575
5 U.S. at 163.
576
The Federalist, No. 78, supra note 3, at 465.


PART 19. THE CLAIMS
Part 19 The Claims

Part 19. The Claims
Part 25. Damages
323THE CLAIMS
PART 19.
PART 19. THE CLAIMS
A. The U.S. Coast Guard Final Agency Action Denial was Wrongfully Based Upon a
Personal Ideology in Violation of the Oath of Office
That Don Hamrick’s cause of action arose in 2002 from a judicial review of the U.S. Coast Guard’s final agency
action denial (46 C.F.R. § 1.01–30) of his application for an endorsement on his Merchant Mariner’s Document,
such endorsement to read, “National Open Carry Handgun” for which there were and still are no federal laws or
regulations for or against that particular endorsement. The reason given for the denial is found in the U.S. Coast
Guard’s letter dated April 19, 2002:
Dated April 19, 2002
Dear Mr. Hamrick:
This is to address your appeal of a decision by the Commanding Officer, Coast Guard National Maritime Center
concerning your Merchant Mariner’s Document.
In your letter of 19 January 2002, you applied to have your Merchant Mariner’s Document endorsed “National
Open Carry Handgun.” The Commanding Officer, Coast Guard National Maritime Center replied to you in his
letter of 22 February, denying your application. You appealed that decision in your letter of 16 March to Secretary
of Transportation Norman Y. Mineta, and supplemented your appeal with your letter 29 March, also to Secretary
Mineta. Your appeal was forwarded to me for final agency action as outlined in 46 CFR 1.03-15(j).
I am impressed with your scholar ship and zeal in formulating arguments in support of your application for a
“National Open Carry Handgun” endorsement on your Merchant Mariner’s Document, but I am not persuaded
to agree with you.577 As you have noted, the laws and regulations do not provide for such an endorsement nor do
they prohibit it. Instead, the matter is left to my judgment.578 My decision, after considering all the material
your have submitted, is that it would not be in the best interest of marine safety or security579 to initiate the
endorsement you have applied for. Your appeal is therefore denied and the Commanding Officer, National
Maritime Center is directed not to place any endorsements regarding firearms on any merchant mariner’s licenses
or documents.
This decision constitutes final agency action as cited above.
Capt. J. P. Brusseau
Director of Field Activities
Marine Safety, Security and Environmental Protection
Outline of the U.S. Coast Guard’s Administrative Process Denying Plaintiff’s Application for National Open
Carry Handgun.
February 22, 2002 Capt. Fink, Commanding Officer, National Maritime Center, Arlington,
Virginia issued the initial denial of Petititoner’s application for National
Open Carry Handgun” endorsement on his Merchant Mariner’s
Document in his letter dated February 22, 2002.
Capt. Fink stated in the above letter:
“This is in response to your application dated January 10, 2002, for an
endorsement on your merchant mariner’s document that would entitle
577
Emphasis added.
578
Emphasis added.
579
Emphasis added.
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CLAIMS
PART 19. THE CLAIMS
you to carry a handgun. MMDs serve the purposes of identifying the

mariner and providing evidence of his or her professional qualifications.
An endorsement authorizing carriage of a handgun is beyond the scope
of the professional requirements for the crew on board a merchant vessel
and is not authorized by regulation.”
Capt. Fink did not cite the regulation he referred to in his letter to
Petitioner because there is no Coast Guard regulation in existence that
prohibits authorizing my endorsement for “National Open Carry
Handgun” but the Second Amendment to the U.S. Constitution.
I relied on email as his primary means of correspondence with the Coast
Guard for its expediency and the Coast Guard knew this.
The Coast Guard was still operating under the U.S. Department of
Transportation. I appealed the denial to Norman Mineta, Secretary of the
Department of Transportation, in a letter dated March 16, 2002. In that
letter in referring to Capt. Fink’s letter above, stated:
“Considering the omission of the very regulation Capt. Fink cited casts
doubt on his familiarity with all extendable laws and its constitutional
repercussions. I noted that Capt. Fink had unfortunately used the word
entitle in his letter. The definition of that word is, “To give a right or
legal title to : qualify (one) for something : furnish with proper grounds
for seeking or claiming something.”580
The U.S. Coast Guard does not have the right nor the power to entitle me
to own, possess, or carry a firearms or even to deny me that right without
due process extending from cause of offense. The Second Amendment to
the U.S. Constitution is the authorizing document protecting my right to
keep and bear arms from infringement, which is superior to any Coast
Guard regulation. I have searched the CFRs, the U.S. Code, and studied
the U.S. Constitution and the Bill of Rights and the remaining
Amendments. I can find no Coast Guard regulation or law that positively
prohibits the Coast Guard from endorsing my Merchant Mariner’s
Document for National Open Carry Handgun (for personal security
ashore in the United States).
The Coast Guard can oversee our private lives ashore with access to the
NATIONAL DRIVER’S REGISTER for matters concerning our MERCHANT
MARINER’S DOCUMENT as required by 46 CFR § 12.02 through 12.02-
4(d)(5). I construe 46 CFR § 12.02 through 12.02-4(d)(5) to be a
duplication of government service, pursuing the same purpose as the
BUREAU OF ALCOHOL, TOBACCO, AND FIREARMS FORM ATF F 4473,
FIREARMS TRANSACTION RECORD as both essentially investigates the
same background information. This “government waste of efficiency” is
like blinders on a horse. This shortfall in respecting Merchant Mariners’
human rights have been outside the Coast Guard’s range of tunnel vision.
I seek to bring this human right of self-preservation through armed self-
defense and personal security to within the Coast Guard’s vision and
compel the Coast Guard to amend their regulations concerning the
580
Merriam-Websgter, Inc., Webster’s Third New International Dictionary.
325THE CLAIMS
PART 19.
PART 19. THE CLAIMS
Merchant Mariner’s Document, acknowledging the Merchant Mariners’

Second Amendment rights while ashore.
My appeal to the Department of Transportation was referred back to the
Coast Guard without comment for final determination.
Capt. J. P. Brusseau mailed his 46 CFR § 1.03-15(j) “final agency
action” letter of April 19, 2002 but did not give notice of denial by email
to Petitioner. This error upon the Coast Guard caused Capt. Brusseau to
use poor judgment in interpreting the intent and purpose of an article
Appellant had emailed to Capt. Brusseau, after he mailed his denial
letter, erroneously assuming the email was intended to be a personal
threat to coerce his approval for the endorsement, he initiated a criminal
investigation through the Naval Criminal Investigative Service in Europe
because Appellant was employed aboard a government pre-positioned
ship, anchored off the coast of Klaepeda, Lithuania. Appellant has a
pending federal civil rights lawsuit for damages and defamation in the
lower court. This is my claim for damages against the U.S. Coast
Guard.
May 7, 2002 The President of the United States, through the Department of Justice
formally reversed a longstanding policy on the Second Amendment, now
stating the Second Amendment is, in fact, a constitutional right of the
individual. The Department of Justice filed their U.S. Supreme Court
brief in the Emerson case stating this new policy change.
May 10, 2002 I filed via email an appeal for reconsideration, relying on 46 CFR § 1.03-
15(a) through (g), on faith of received a fair review.
May 24, 2002 Capt. Brusseau affirmed his own 46 CFR § 1.03-15(j) “final agency
action” denial. Again, he mailed his letter without emailing me his action
as I had primarily used email for correspondence with Capt. Brusseau.
In that letter of May 24, 2002 Capt. Brusseau recited his authority for the
denial stating:
My letter to you of April 19, 2002, constitutes final agency action under
subpart 1.03 of title 46 Code of Federal Regulations (CFR). See 46 CFR
§ 1.03-15(j). The authority to take action has been delegated by the
Secretary of Transportation to the Commandant of the Coast Guard
pursuant to 46 CFR § 1.45(a)(2) and subsequently delegated by the
Commandant to this office and the Commanding Officer, National
Maritime Center, pursuant to 46 CFR § 1.03-15(g) and (h)(3). Because
the Commanding Officer, National Maritime Center, took initial action
on your request, the appeal was handled by this office. As a consequence
of the foregoing, you have exhausted all administrative remedies
available to you by the Department of Transportation and the Coast
Guard.
Capt. Brusseau exceeded his authority when he states Appellant has
exhausted all administrative remedies available to Appellant by the
Department of Transportation and the Coast Guard. The Coast Guard
regulation, 46 CFR § 1.03-15(j) Final Agency Action refers to an
“agency.” An agency is subordinated to a department of the United
States government. The Final Agency Action only referes to the appeals
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CLAIMS
PART 19. THE CLAIMS
process within the U.S. Coast Guard. It is not a barrier to appeals to the
Department of Transportation because 49 U.S.C. § 2103 says:
The Secretary [of the Department of Transportation] has general
superintendence over the merchant marine of the United States and of
merchant marine personnel insofar as the enforcement of this subtitle is
concerned and insofar as those vessels and personnel are not subject,
under other law, to the supervision of another official of the United
States Government. In the interests of marine safety and seamen’s
welfare, the Secretary shall enforce this subtitle and shall carry out
correctly and uniformly administer this subtitle. The Secretary may
prescribe regulations to carry out the provisions of this subtitle.
My requested endorsement was for National Open Carry Handgun while
ashore in the United States. This situation place me outside the
jurisdiction of the Coast Guard and under the jurisdiction of the
Department of Transportation. The Department of Transport has the
authority to instruct the Coast Guard to implement regulations supporting
and protecting seamen’s Second Amendment rights, especially after the
President of the United States as set official government policy that the
Second Amendment is an individual right, hence Appellant’s individual
right to keep and bear arms for personal security, hence the National
Open Carry Handgun” endorsement Appellant has requested for his
Merchant Mariner’s Document. [NOTE: The U.S. Coast Guard is now
operating under the U.S. Department of Homeland Security]
Capt. Brusseau, in his letter of May 24, 2002, relied on his letter of April
19, 2002, and the Commanding Officer, National Maritime Center’s
letter of February 22, 2002 in affirming the denial. He states in that letter
of May 24, 2002:
The points of law relied upon for the determination made by
Commanding Officer, National Maritime Center, in connection with your
initial request are contained in his letter to you dated February 22, 2002.
Essentially, his point was that endorsements on merchant mariner
documents authorizing the carriage of handguns is beyond the scope of
professional requirements for crews on merchant vessels and is not
authorized. The points of law relied upon for the determination made by
this office on the appeal are contained in the letter dated April 19, 2002.
Capt. Brusseau’s and Capt. Fink’s statements that “carriage of handguns
is beyond the scope of professional requirements for crews on merchant
vessels and is not authorized is a fraudulent lie. Appellant was required
to attend a Small Arms Recertification Course as a “professional
requirement for crews on a merchant vessel,” a U.S. government ammo
ship, such training authorized by Military Sealift Command, and
OPNAVINST 3591.1C, “Watch Stander Small Arms Re-certification
Course and 46 U.S.C. § 7306(a)(3) “General requirements and
classifications for able seamen: is qualifed professionally as
demonstrated by an applicable examination or educational requirements.
Capt. Fink and Capt Brusseau have broken the law with their denying
Appellant’s application. Additionally, it is at the Master’s discretion to
327THE CLAIMS
PART 19.
PART 19. THE CLAIMS
issue firearms to the crew for any given circumstances endangering the
ship or its crew which is authorized under Maritime Law.
Capt. Fink’s (Commanding Officer, National Maritime Center) letter of
February 22, 2002 does not cite which Coast Guard regulation or law he
relied on in denying Appellant’s application. The failure to disclose
Coast Guard regulations by name and number when denying an
applications implies a predilection, a partiality, a prejudice, or a bias in
judgment. An abuse of authority, in other words. The letter only
“claims,” without any supporting basis in law or regulation.
In relying on Capt. Fink’s letter of February 22, 2002, Capt. Brusseau, in
fact, based his final agency action not on Coast Guard regulation but on
Capt. Fink’s predilection, partiality, prejudice, or bias in judgment in
violation of the Oath of Office to support and defend the Constitution of
the United States which includes the Second Amendment rights of U.S.
seamen. Capt. Brusseau even acknowledges in his letter of April 19,
2002, stating, “As you have noted, the laws and regulations do not
provide for such an endorsement nor do they prohibit it. Instead, the
matter is left to my judgment. My decision, after considering all the
material you have submitted, is that it would not be in the best interest
of marine safety or security to initiate the endorsement you have
applied for.”
THE COAST GUARD’S DELIBERATE INDIFFERENCE TO MY
FIRST AND SECOND AMENDMENT RIGHTS BECAME
ACTIONABLE FOR TORT DAMAGES
May 25, 2002 While aboard a U.S. Government vessel anchored off the coast of
Lithuania and for due cause and failure of Capt. Brusseau to notify me by
email of his official letter from the day before (May 24, 2002) affirming
the final agency action denial, I emailed an article titled, “IN THE NEWS!
WHO DO YOU WANT HOLDING THIS GUN? THE CRIMINAL/TERRORIST IN
OFFENSIVE USE? OR, THE INNOCENT LAW-ABIDING CITIZEN (MERCHANT
SEAMAN WHILE ASHORE) IN DEFENSIVE USE?” I used a dramatic literary
style to convey the fear law-abiding citizens live with everyday of their
lives of being murdered because they do not have immediate access or
possession of firearms for self-defense. Because I realized the intensity
of the topic I included disclaimers to prevent misperceptions of alleged
threats of harm. Capt. Brusseau failed to comprehend these disclaimers.
Upon receipt of my email of May 25, 2002, or at some point in time
thereafter, Capt. Brusseau initiated a criminal investigation calling into
service the Naval Criminal Investigative Service (NCIS) against me.
Capt. Brusseau’s action caused me to be pulled off the vessel, a U.S.
government pre-position ship anchored off the coast of Klaipeda,
Lithuania on the eve of the vessel’s departure for a scheduled 10-day
exercise at sea with the U.S. Navy, causing me to miss the vessel’s
departure, causing the vessel to sail short-handed one Able Seaman in
violation of the Coast Guard’s own regulations, causing me to be
unlawfully detained at the Hotel Klaipeda in Lithuania waiting for two
days for two civil special agents of the NCIS to arrive to conduct their
two-hour interview. I had to wait at the hotel for an addition ten days for
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CLAIMS
PART 19. THE CLAIMS
the vessels next port of call, Tallinn, Estonia. On July 18, 2002 I filed my
first federal civil rights lawsuit for damages and defamation which was
dismissed.
The NCIS determine me to be innocent of all charges brought by Capt.
Brusseau. Capt. Brusseau’s action causing two special agents of the
NCIS to go on a wild goose chase, chasing phantom threats, endangered
national security when those two special agents could have made better
use of their time chasing after real threats against the United States.
I was employed aboard the S/S Major Stephen W. Pless, a government
contracted RO/RO & Container ship with vehicular and containerized
cargo for the U.S. Marines in the pre-position fleet of the United States
Government.
I was and had been corresponding with the U.S. Coast Guard and other
branches of the U.S. government concerning the Second Amendment
rights of the U.S. Merchant Seaman while ashore in the United States
while not employed aboard any vessel of the United States while aboard
the Pless and prior to employment aboard the Pless.
I initiated an application with the U.S. Coast Guard for a National Open
Carry Handgun endorsement on his Merchant Mariner’s Document (I.D.
card), and once denied, initiated the U.S. Coast Guard appeals process.
I was culturally isolated in a foreign country during the 12-day “false
detention/imprisonment.”
At one point soon after the interview Petitioner received a phone call
from the ship’s agent advising Petitioner that arrangements have been
made to fly Petitioner back to the United States. This implied Petitioner
was fired. In a subsequent telephone call from the ship’s company
immediately following that call an effort was made to sort the matter and
return Petitioner to the ship. This effort was successful.
Whatever Capt. Brusseau claimed or alleged, either verbally or in written
orders to the U.S. Navy and/or to the U.S. Naval Criminal Investigative
Service was false, misleading, disparaging and defamatory placing Capt.
Brusseau in a vulnerable position for slander and/or libel.
B. Teetering on Judicial Tyranny and Despotism
It should be noted that the Heller opinion came to us on a 5-4 vote. I characterize that vote as a threat to
the United States guarantee of a Republican form of government teetering on judicial tyranny and despotism.
What we have today in the federal courts is a modern day Praetorian Guard protecting the U.S. Government from
the People’s First Amendment right to petition the government for redress of grievances and from the the People’s
Seventh Amendment right to a civil jury trial in response to the U.S. Government’s progressive encroachments
and wrongs upon the People’s constitutional rights and their human rights. Justice Stevens’ dissenting opinion in
Heller at 9-10 would restrict the First Amendment right to petition on his belief that “petitions must involve
groups of individuals acting in concert.”
Justice Stevens’ dissenting opinion in Heller:
“The Court also overlooks the significance of the way the Framers used the phrase “the people”
in these constitutional provisions. In the First Amendment, no words define the class of
individuals entitled to speak, to publish, or to worship; in that Amendment it is only the right
329THE CLAIMS
PART 19.
PART 19. THE CLAIMS
peaceably to assemble, and to petition the Government for a redress of grievances, that is
described as a right of “the people.” These rights contemplate collective action. While the right
peaceably to assemble protects the individual rights of those persons participating in the
assembly, its concern is with action engaged in by members of a group, rather than any single
individual. Likewise, although the act of petitioning the Government is a right that can be
exercised by individuals, it is primarily collective in nature. For if they are to be effective,
petitions must involve groups of individuals acting in concert.”
I cite Ayn Rand’s quotation:

“We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do
anything it pleases, while the citizens may act only by permission; which is the stage of the darkest periods of
human history, the stage of rule by brute force.”
Four of the nine Justices would have us in another dark period of human history but for that teetering
swing vote.
C. Most Federal Judges are Mad Hatters on the Wrong Side of the Looking Glass
Justice Scalia describes Stevens’ view that “bear Arms” is restricted to military usage as worthy of the
Mad Hatter. A very colorfull way of describing lunacy.
From Judge Huvelle’s Memorandum dismissing my Case No. 02-1435 with prejudice she wrote thar “no
court has ever so much as suggested that the Thirteenth Amendment confers any right to bear arms, and it
is entirely fanciful to suggest that its prohibition of involuntary servitude somehow requires the overturning of a
whole variety of gun control legislation.”
But now the Supreme Court has held that “[t]he handgun ban and the trigger-lock requirement (as applied
to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home
amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful
purpose of self-defense.”
This case is Plaintiff’s first post-Heller lawsuit for not only his Second Amendment right to openly keep
and bear arms in interstate and maritime travel under state, federal, and maritime law but now for his Seventh
Amendment right under constitutional law and human rights law. Plaintiff’s case presents
Judge Ellen Segal Huvelle’s Memorandum, in Hamrick v. President George W. Bush, U.S. District Court
for the District of Columbia, No. 02-1435 (2002), asserted that “Miller remains the most authoritative modern
pronouncement on the amendment’s meaning and its conclusion that the right to bear arms is limited by the needs
of an organized militia has subsequently been echoed by the Supreme Court and followed in this and other
circuits” is completely debunked by Justice Scalia’s opinion in Heller.
Judge Huvelle’s views on the Second Amendment are mirrored expansively by Justice Stevens’
dissenting opinion in Heller. In debunking Justice Stevens’ dissenting opinion Justice Scalia has collaterally
debunked Judge Huvelle’s Memorandum above. Note Scalia’s opinion, pages 15-16:
JUSTICE STEVENS points to a study by amici supposedly showing that the phrase “bear arms”
581
was most frequently used in the military context. See post, at 12–13, n. 9; Linguists’ Brief 24.
Of course, as we have said, the fact that the phrase was commonly used in a particular context
does not show that it is limited to that context, and, in any event, we have given many sources
where the phrase was used in nonmilitary contexts. Moreover, the study’s collection appears to
include (who knows how many times) the idiomatic phrase “bear arms against,” which is
581
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CLAIMS
PART 19. THE CLAIMS
irrelevant. The amici also dismiss examples such as “ ‘bear arms . . . for the purpose of killing
game’ “ because those uses are “expressly qualified.” Linguists’ Brief 24. (JUSTICE STEVENS
uses the same excuse for dismissing the state constitutional provisions analogous to the Second
Amendment that identify private-use purposes for which the individual right can be asserted. See
post, at 12.) That analysis is faulty. A purposive qualifying phrase that contradicts the word or
phrase it modifies is unknown this side of the looking glass 582 (except, apparently, in some
courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a
modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war
against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying
of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The
right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter. 583
Thus, these purposive qualifying phrases positively establish that “to bear arms” is not limited to
military use.
Scalia’s use of the phrase “unknown this side of the looking glass” and “the mad hatter” are insightful
metaphors for my RULE 9 PLEADING SPECIAL MATTERS OF FRAUD, MISTAKE AND CONDITIONS of Mind of federal
judges holding to the states right to arm a militia interpretation of the Second Amendment.
In Lewis Carroll’s, “THROUGH THE LOOKING GLASS” Alice ponders what the world is like on the other
side of a mirror, and to her surprise, is able to pass through to experience the alternate world. She discovers a
book with looking-glass poetry, “Jabberwocky,” which she can read only by holding it up to a mirror.584 This
corresponds to psychiatric term “projection” as used in Sarah Thompson, M.D., “RAGING AGAINST SELF-
DEFENSE: A PSYCHIATRIST EXAMINES THE ANTI-GUN MENTALITY.” 585
Therefore, Judge Ellen Segal Huvelle is apparently a Mad Hatter on the wrong side of the looking glass
along with every other judge holding to the debunked interpretation of the Second Amendment.
Citing from William W. Van Alstyne, THE DEMISE OF THE RIGHT-PRIVILEGE DISTINCTION IN
CONSTITUTIONAL LAW, Harvard Law Review, Vol. 81:1439, on the Doctrine of Unconstitutional Conditions:
“It would be a palpable incongruity to strike down an act of state legislation which, by words of
express divestment, seeks to strip the citizens of rights guaranteed by the federal Constitution, but
to uphold an act by which the same result is accomplished under the guise of a surrender of a
right in exchange for a valuable privilege which the state threatens otherwise to withhold. . . . If
the state may compel the surrender of one constitutional right as a condition of its favor, it may,
in like manner; compel a surrender of all. It is inconceivable that guarantees embedded in the
Constitution of the United States may thus be manipulated out of existence.” Frost & Frost
Trucking Co. v. Railroad Comm’n, 271 U.S. 583, 593-94 (1926). Essentially, this doctrine
declares that whatever an express constitutional provision forbids government to do directly it
equally forbids government to do indirectly. . . . The unconstitutional conditions doctrine has
been applied, for example, to forbid a state to discontinue unemployment benefits to a person
refusing Saturday employment for religious reasons. Sherbert v. Verner, 376 U.S. 398, 404
(1963) (“It is to late in the day to doubt that the liberties of religion and expression may be
infringed by the denial of or placing of conditions upon a benefit or privilege.”) And it has been
employed to protect the status of state college students from summary termination, against the
argument that the privilege of attendance had been conditioned upon their acceptance of a rule
582
583
Plaintiff’s emphasis
584
http://en.wikipedia.org/wiki/Through_the_Looking-Glass
585
See http://www.jpfo.org/filegen-n-z/ragingagainstselfdefense.htm
331THE CLAIMS
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permitting summary dismissal. Dixon v. Alabama State Bd. Of Educ., 294 F.2d 150, 156 (5th
Cir.), cert. denied, 368 U.S. 930 (1961) (“the State cannot condition the granting of even a
privilege upon the renunciation of the constitutional right to procedural due process”). For other
applications see, e.g., Speiser v. Randall, 357 U.S. 513, 519-20 (1958) (special veterans’
exemption from state tax cannot be conditioned on a loyalty oath); Standard Airlines, Inc. v.
CAB, 177 F.2d 18, 20 (D.C. Cir 1949) (CAB cannot condition a flying permit on consent to
discretionary summary revocation); Lawson v. Housing Authority, 270 Wis. 269, 275, 70 N.W.2d
605, 608-09, cert. denied, 350 U.S. 882 (1955) (tenant in public housing may challenge
regulation requiring certification of nonmembership in certain “subversive” organizations as
conditions of continued occupancy). The doctrine would appear to apply equally well to every
other case where the enjoyment of a government-connected interest is conditioned upon a rule
requiring that one abstain from the exercise of some right protected by an express clause in the
Constitution.
The doctrine of unconstitutional conditions is highly attractive for two quite practical reasons. First, it preserves
the appearance of judicial objectivity. A court need not “weigh” or “balance”; it need simply apply the literal
mandate of a given constitutional provision flatly to forbid government from conditioning its largess on any
waiver of such a provision regardless of the circumstances. A court may thus avoid any unseemly appearance of
acting as a superlegislature. - Second, the doctrine greatly expedites decision making and provides clear
guidelines in cases which might otherwise be especially difficult to resolve. Instead of canvassing a host of
variables in a quasi-legislative fashion on the strength of a barely adequate record, a court may seem to have but a
single straightforward question to resolve: did the regulation in question condition the petitioner’s privilege upon
the waiver of a named constitutional right?
D. Judge Edith Jones of the Fifth Circuit, “The American legal system has been
corrupted almost beyond recognition.”
told the Federalist Society of Harvard Law School on February 28, 2003,
Excerpted from MassNews.com March 7, 2003 report by Geraldine Hawkins Judge Edith Jones said:
" The question of what is morally right is routinely sacrificed to what is politically expedient.
The change has come because legal philosophy has descended to nihilism.
" “The integrity of law, its religious roots, its transcendent quality are disappearing.
" “The first 100 years of American lawyers were trained on Blackstone, who wrote that: ‘The
law of nature . . . dictated by God himself . . . is binding . . . in all counties and at all times; no
human laws are of any validity if contrary to this; and such of them as are valid derive all
force and all their authority . . . from this original.’ The Framers created a government of
limited power with this understanding of the rule of law - that it was dependent on
transcendent religious obligation,” said Jones.
" The business about all of the Founding Fathers being deists is “just wrong,” or “way
overblown.” They believed in “faith and reason,” and this did not lead to intolerance.
" Having lost sight of the moral and religious foundations of the rule of law, we are vulnerable to
the destruction of our freedom, our equality before the law and our self-respect. It is my
fervent hope that this new century will experience a revival of the original understanding of
the rule of law and its roots.
(1) Three Contemporary Threats to the Rule of Law
The first contemporary threat to the rule of law comes from within the legal system itself.
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The second threat to the rule of law comes from government, which is encumbered with agencies
that have made the law so complicated that it is difficult to decipher and often contradicts itself.
“Agencies have an inherent tendency to expand their mandate,” says Jones. “At the same time,
their decision-making often becomes parochial and short-sighted. They may be captured by the
entities that are ostensibly being regulated, or they may pursue agency self-interest at the
expense of the public welfare. Citizens left at the mercy of selective and unpredictable agency
action have little recourse.”586
The third and most comprehensive threat to the rule of law arises from contemporary legal
philosophy.
“Throughout my professional life, American legal education has been ruled by theories like
positivism, the residue of legal realism, critical legal studies, post-modernism and other
philosophical fashions,” said Jones. “Each of these theories has a lot to say about the ‘is’ of law,
but none of them addresses the ‘ought,’ the moral foundation or direction of law.”
Jones quoted Roger C. Cramton, a law professor at Cornell University, who wrote in the 1970s
that “the ordinary religion of the law school classroom” is “a moral relativism tending toward
nihilism,587 a pragmatism tending toward an amoral instrumentalism, a realism tending toward
cynicism, an individualism tending toward atomism, and a faith in reason and democratic
processes tending toward mere credulity and idolatry.”
(2) No ‘Great Awakening’ In Law School Classrooms
The judge said ruefully, “There has been no Great Awakening in the law school classroom since
those words were written.” She maintained that now it is even worse because faith and
democratic processes are breaking down.
“The problem with legal philosophy today is that it reflects all too well the broader post-
Enlightenment problem of philosophy,” Jones said. She quoted Ernest Fortin, who wrote in Crisis
magazine: “The whole of modern thought . . . has been a series of heroic attempts to reconstruct
a world of human meaning and value on the basis of . . . our purely mechanistic understanding of
the universe.”
Jones said that all of these threats to the rule of law have a common thread running through them,
and she quoted Professor Harold Berman to identify it:
“The traditional Western beliefs in the structural integrity of law, its ongoingness, its religious
roots, its transcendent qualities, are disappearing not only from the minds of law teachers and
law students but also from the consciousness of the vast majority of citizens, the people as a
whole; and more than that, they are disappearing from the law itself. The law itself is becoming
more fragmented, more subjective, geared more to expediency and less to morality. ... The
historical soil of the Western legal tradition is being washed away . . . and the tradition itself is
threatened with collapse.”
Judge Jones concluded with another thought from George Washington:
586
Emphasis added due to the quote having direct application to the U.S. Coast Guard final agency action denying Don
Hamrick’s Second Amendment application to the Merchant Mariner’s Document for an endorsement for “National Open
Carry Handgun” as a matter of a constitutional right.
587
Emphasis added. Judge Jones view of a nihilistic form of government inspired Don Hamrick to write a political poem
titled “A Nihilistic Form of Government, This United States.” See page ___.
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“Of all the dispositions and habits which lead to prosperity, religion and morality are
indispensable supports. In vain would that man claim the tribute of patriotism who should labor
to( subvert these great pillars of human happiness – these firmest props of the duties of men and
citizens.”
(3) Judge Edith Jones declares that the Rule of Law has religious origins.
The King James Bible
Deuteronomy 16:18-20,
18: Judges and officers shalt thou make thee in all thy gates, which the LORD thy God giveth
thee, throughout thy tribes; and they shall judge the people with just judgment.
19: Thou shalt not wrest judgment; thou shalt not respect persons, neither take a gift; for a gift
doth blind the eyes of the wise, and pervert the words of the righteous.
20: That which is altogether just shalt thou follow, that thou mayest live, and inherit the land
which the LORD thy God giveth thee.
E. Extortion Under Color of Official Right - Hobbs Act: Title 9 U.S. Attorneys’
Manual: Criminal Resource Manual § 2404
In addition to the “wrongful use of actual or threatened force, violence, or fear,”588 the Hobbs Act
(18 U.S.C. § 1951) defines extortion in terms of “the obtaining of property from another, with his
consent . . . under color of official right.” In fact, the under color of official right aspect of the
Hobbs Act derives from the common law meaning of extortion. As the Supreme Court explained
in a recent opinion regarding the Hobbs Act,
“[a]t common law, extortion was an offense committed by a public official who took ‘by color of
his office’ money that was not due to him for the performance of his official duties. . . . Extortion
by the public official was the rough equivalent of what we would now describe as ‘taking a
bribe.’” Evans v. United States, 504 U.S. 255 (1992).
In order to show a violation of the Hobbs Act under this provision, the Supreme Court recently
held that “the Government 589 need only show that a public official has obtained a payment to
which he was not entitled, knowing that the payment was made in return for official acts.”590
While the definition of extortion under the Hobbs Act with regard to force, violence or fear
requires the obtaining of property from another with his consent induced by these means, the
under color of official right provision does not require that the public official take steps to induce
the extortionate payment: It can be said that “the coercive element is provided by the public office
itself.” Evans v. United States, 504 U.S. 255 (1992); see United States v. Margiotta, 688 F.2d
108, 130 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) (“[t]he public officer’s misuse of his
office supplies the necessary element of coercion . . . .”).
588
Includes the fear of being denied justice for wrongful acts of the U.S. Coast Guard, the U.S. Coast Guard, the U.S.
Marshals Service, the U.S. Department of Justice, and the judges themselves.
589
Emphasis added. Don Hamrick presumes that Equal Justice Under the Law includes an unrepresented civil plaintiff with a
civil RICO Act case acting in the capacity of a Private Attorney General the right and the duty to apply the Hobbs Act against
federal judges and against the Chief Justice of the U.S. Supreme Court and their court clerks.
590
This includes the federal courts compelling payment of filing fees from Don Hamrick, a seaman, in violation of the
Seamen’s Suit law, 28 U.S.C. § 1916.
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This theory of extortion under color of official right has resulted in the successful prosecution of a
wide range of officials, including those serving on the federal,591 state and local levels. For
example: United States v. O’Connor, 910 F.2d 1266 (7th Cir. 1990), cert. denied, 111 S. Ct. 953
(1991) (police officer accepts payments from FBI agents posing as crooked auto parts dealers);
United States v. Stephenson, 895 F.2d 867 (2d Cir. 1990) (international trade official in
Department of Commerce accepts payments to influence ruling); United States v. Spitler, 800
F.2d 1267 (4th Cir. 1986) (state highway administrator accepts money from road building
contractor); United States v. Wright, 797 F.2d 245 (5th Cir. 1986), cert. denied, 481 U.S. 1013
(1987) (city prosecutors accept money for not prosecuting drunk drivers); United States v.
Greenough, 782 F.2d 1556 (11th Cir. 1986) (city commissioner accepts money for awarding city
concession); United States v. Murphy, 768 F.2d 1518 (7th Cir. 1985), cert. denied, 475 U.S. 1012
(1986) (judges accept payments to fix cases); United States v. Mazzei, 521 F.2d 639 (3d Cir.) (en
banc), cert. denied, 423 U.S. 1014 (1975) (state senator accepts money from landlord seeking
government office lease). In United States v. Stephenson, 895 F.2d at 871-73, the defendant, who
was a federal official, unsuccessfully contended that the Hobbs Act only applied to state and local
officials and that prosecution of federal official for extortion would have to be exclusively
brought under 18 U.S.C. § 872: extortion by officers and employees of the United States. The
court found that the government could seek a charge under whichever of these two overlapping
statutes it thought appropriate. Moreover, “it is not a defense to a charge of extortion under color
of official right that the defendant could also have been convicted of bribery.” Evans v. United
States, 504 U.S. 255 (1992).
GENERAL RULE: The usual fact situation for a Hobbs Act charge under color of official right is
a public official trading his/her official actions in a area in which he/she has actual authority in
exchange for the payment of money.
Some cases under certain fact situations, however, have extended the statute further. For example:
" Some courts have held that a Hobbs Act violation does not require that the public official have
de jure power to perform any official act paid for as long as it was reasonable to believe that
he/she had the de facto power to perform the requested act. See United States v. Nedza, 880 F.2d
896, 902 (7th Cir. 1989) (victim reasonably believed state senator had the ability to impact a local
business); United States v. Bibby, 752 F.2d 1116, 1127-28 (6th Cir. 1985); United States v.
Sorrow, 732 F.2d 176, 180 (11th Cir. 1984); United States v. Rindone, 631 F.2d 491, 495 (7th
Cir. 1980) (public official can extort money for permit beyond control of his office, so long as
victim has a reasonable belief that he could affect issuance); United States v. Rabbitt, 583 F.2d
1014 (8th Cir. 1978), cert. denied, 439 U.S. 1116 (1979); United States v. Harding, 563 F.2d 299
(6th Cir. 1977), cert. denied, 434 U.S. 1062 (1978); United States v. Brown, 540 F.2d 364 (8th
Cir. 1976); United States v. Hall, 536 F.2d 313 (10th Cir.), cert. denied, 429 U.S. 919 (1976);
United States v. Hathaway, 534 F.2d 386 (1st Cir.), cert. denied, 429 U.S. 819 (1976); United
States v. Mazzei, 521 F.2d 639, 643 (3rd Cir.) (en banc), cert. denied, 423 U.S. 1014 (1975);
United States v. Price, 507 F.2d 1349 (4th Cir. 1974).
" Most courts have held that a Hobbs Act violation does not require that the public official be the
recipient of the benefit of the extortion, and that a Hobbs Act case exists where the corpus of the
corrupt payment went to a third party. However, consistent with the federal offenses of bribery
and gratuities under 18 U.S.C. § 201 (see 9 U.S.A.M. §§ 85.101 through 85.105), where the
corpus of the corrupt payment inures to the benefit of a person or entity other than the public
official most courts have also required proof of a quid pro quo understanding between the private
corrupter and the public official. See United States v. Haimowitz, 725 F.2d 1561, 1577 (11th
591
Emphasis added.
335THE CLAIMS
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Cir.), cert. denied, 469 U.S. 1072 (1984) (“a Hobbs Act prosecution is not defeated simply
because the extorter transmitted the extorted money to a third party.”); United States v. Margiotta,
688 F.2d 108 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) (insurance agency made kickbacks
to brokers selected by political leader of town); United States v. Scacchetti, 668 F.2d 643 (2d
Cir.), cert. denied, 457 U.S. 1132 (1982); United States v. Forszt, 655 F.2d 101 (7th Cir. 1981);
United States v. Cerilli, 603 F.2d 415 (3rd Cir. 1979), cert. denied, 444 U.S. 1043 (1980); United
States v. Trotta, 525 F.2d 1096 (2d Cir. 1975), cert. denied, 425 U.S. 971 (1976); United States v.
Brennan, 629 F.Supp. 283 (E.D.N.Y.), aff’d, 798 F.2d 581 (2d Cir. 1986). But see McCormick v.
United States, 500 U.S. 257 (1991)(allegedly corrupt payment made in the form of a campaign
contribution to a third party campaign organization was insufficient to support a Hobbs Act
conviction absent evidence of a quid pro quo).
" Some courts have held that the Hobbs Act can be applied to past or future public officials, as
well as to ones who presently occupy a public office at the time the corrupt payment occurs. See
United States v. Meyers, 529 F.2d 1033, 1035-38 (7th Cir.), cert. denied, 429 U.S. 894 (1976)
(court answered affirmatively the question “whether, within the meaning of the Hobbs Act, it is a
crime for candidates for political office to conspire to affect commerce by extortion induced
under color of official right during a time frame beginning before the election but not ending until
after the candidates have obtained public office.”); United States v. Lena, 497 F.Supp. 1352, 1359
(W.D. Pa. 1980), aff’d mem., 649 F.2d 861 (3rd Cir. (1981); United States v. Barna, 442 F.Supp.
1232, 1235 (M.D.Pa. 1978), aff’d mem., 578 F.2d 1376 (3rd Cir.), cert. denied, 439 U.S. 862
(1978).
" Some courts have held that private persons who are not themselves public officials can be
convicted under this provision if they caused public officials to perform official acts in return for
payments to the non-public official. United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert.
denied, 461 U.S. 913 (1983) (court upheld conviction of head of local Republican Party under
color of official right where defendant could be said to have caused, under 18 U.S.C. §2(b),
public officials to induce a third party to pay out money); see United States v. Haimowitz, 725
F.2d 1561, 1572-73 (11th Cir.), cert. denied, 469 U.S. 1072 (1984) (private attorney’s conviction
of Hobbs Act violation upheld due to complicity with state senator); United States v. Marcy, 777
F.Supp. 1398, 1399-400 (N.D.Ill. 1991); United States v. Barna, 442 F.Supp. 1232 (M.D. Pa.),
aff’d mem., 578 F.2d 1376 (3rd Cir.), cert. denied, 439 U.S. 862 (1978). But see United States v.
McClain, 934 F.2d 822, 829-32 (7th Cir. 1991) (“we believe that, as a general matter and with
caveats as suggested here, proceeding against private citizens on an ‘official rights’ theory is
inappropriate under the literal and historical meanings of the Hobbs Act, irrespective of the actual
‘control’ that citizen purports to maintain over governmental activity.”).
" Some courts have also held that private individuals who make payments to a public official can
be charged under the Hobbs Act, either as an aider and abettor or co-conspirator, if he or she is
truly the instigator of the transaction. See United States v. Torcasio, 959 F.2d 503, 505-06 (4th
Cir. 1992); United States v. Spitler, 800 F.2d 1267, 1276-79 (4th Cir. 1986) (conviction affirmed
for aiding and abetting extortion under color of official right even though defendant, who paid
kickbacks from corporate coffers, was an officer of the victim corporation); United States v.
Wright, 797 F.2d 245 (5th Cir. 1986). But see United States v. Tillem, 906 F.2d 814, 823-24 (2d
Cir 1990) (consultant employed to help restaurants obtain approvals from corrupt health
inspectors had no stake in the conspiracy and was not promoting the outcome).
" Finally, in a federal prosecution of a state legislator, there is no legislative privilege barring the
introduction at trial of evidence of the defendant’s legislative acts. The Supreme Court has held
that in such a prosecution a speech or debate type privilege for state legislators cannot be made
applicable through Fed.R.Evid. 501. The Court said such privilege is not required by separation
of powers considerations or by principles of comity, the two rationales underlying the Speech or
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Debate Clause of the U.S. Constitution, art. I, §6, cl. 1. United States v. Gillock, 445 U.S. 360,
368-74 (1980).
F. Evidence of Habit/Routine Practice (Rule 406, Fed.R.Ev.) Leads to Presumptions
in General in This Civil Action of Corruption, Racketeering, and Judicial Treason
Against the Constitution (Rule 301, Fed.R.Ev.)
Federal Rules of Evidence: Rule 406 Habit/Routine Practice of Unconstitutional Summary Judgements
Constitutes Rule 301 Presumption in General in this Civil Action of Article III Treason Against the Constitution
and Against the Common Law Right to a Civil Jury Trial under the Seventh Amendment in an Unlawful and an
Unconstitutional Racketeering Scheme over the Second Amendment if Equal Justice Under the Law and the Rule
Of Law is to Mean Anything to the American People (see American Bar Association’s Model Code of Judicial
Conduct)
I am submitting evidence ender Rule 406 Habit; Routine Practice, Federal Rules Of Evidence, that the
federal courts unconstitutionally denied my seventh amendment right to a civil jury trial from bias against my
second amendment cases and from bias against my status as an unrepresented civil plaintiff with a constitutional
rights case against the United States Government.
Rule 406 reads:
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and
regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on
a particular occasion was in conformity with the habit or routine practice.
The following is the list of my cases that were dismissed (mostly with prejudice) on Summary Judgment
from Motion to Dismiss. Attached to the list of cases is the statutory right of exemption from filing fees afforded
a seaman under the Seamen’s Suit Law, 28 U.S.C. § 1916. The U.S. District Courts in the District of Columbia
and Charlotte, North Carolina rightfully obey but to which the U.S. Supreme Court, the DC Circuit, the 8th
Circuit, and the U.S. Court in Little Rock, Arkansas all apparently conspired to obstruct my Seventh Amendment
right to a civil jury trial by economic means by unlawfully compelling me to pay their respective filing fees that
have now accumulated in the amount of $1,465.00. I have exhausted all judicial, executive, and legislative
remedies. I even attempted the Citizen’s Arrest Warrant as a remedy of last resort seeking assistance from the
U.S. Marshals Service but was treated as a criminal suspect with a regional manhunt. I was intercepted and
interrogated for 2 hours by the agents of the U.S. Marshals Service Washington, DC office at the Greyhound Bus
Station in Richmond, Virginia even though I clearly stated to an agent of the U.S. Marshals Service, Little Rock,
Arkansas office, that my trip to Washington, DC was intended to visit the U.S. Marshals Service in Washington,
DC for help in apply the “citizen’s arrest” law of the DC Code, § 23.582(b)(1)(A). Resorting to physical hands-on
citizen’s arrest under the Law of Citizen’s Arrest under DC Code, § 23.582(d) was unnecessary for the commons
sense fact of the extreme availability of federal law enforcement in the federal courts such that you couldn’t help
but to bump shoulders with a “fed” in the hallways. Regardless of my expressed lawful intent and procedure I was
put on a watchlist just because I made inquiries about the common law right of citizen’s arrest and constitutional
rights as applied against federal judges under the auspice of the Checks and Balance System of Government
implied by the Tenth Amendment and by the Guarantee of a Republican Form of Government in the Constitution
of the United States). This is compelling evidence of an out-of-control federal judiciary with the U.S. Marshals
Service to protect federal judges in their commission of administrative felonies to which they have no immunities.
U.S. District Court/Charlotte, NC), No. 04-0065 (OBEYED 28 U.S.C. § 1916)
337THE CLAIMS
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! DC Circuit, No. 02-5334 (VIOLATED THE LAW)
! 8th CIRCUIT, CASE NO. 07-2400 (VIOLATED THE LAW)
! U.S. District Court/Little Rock, No. 06-0044. (VIOLATED THE LAW)
! U.S. Supreme Court, Nos. 03-145 (VIOLATED THE LAW)
! U.S. Supreme Court, Nos. 04M56 (VIOLATED THE LAW)
G. Evidence of U.S. Supreme Court Bias Against Second Amendment Cases and
Against Pro Se Plaintiffs with a Second Amendment Case
Sean Silveira, et al. v. Bill Lockyer, Atty. General
of California, et al.
Hamrick v. President George W. Bush, et al,
U.S. Supreme Court
U.S. Supreme Court
Case No. 03-51
Case No. 03-145
Docketed: July 8, 2003
Lower Ct: United States Court of Appeals for the Ninth
Circuit AUGUST 19, 2003 Waiver of right of
respondent George W. Bush, President of the
Case Nos.: (01-15098) United States, et al. to respond filed.
Decision Date: December 5, 2002
AUGUST 20, 2003 DISTRIBUTED for
Rehearing Denied: May 6, 2003 Conference of September 29, 2003.
Date Proceedings and Orders OCTOBER 6, 2003 Petition DENIED.
Jul 3 2003 Petition for writ of certiorari filed. (Response
due August 7, 2003)
Jul 30 2003 Brief amicus curiae of Pink Pistols filed.
Jul 30 2003 Brief amicus curiae of Women Against Gun
Control filed.
Jul 30 2003 Brief amicus curiae of Jews for the
Preservation of Firearms Ownership filed.
Aug 6 2003 Brief amicus curiae of Second Amendment
Sisters, Inc. filed.
Aug 7 2003 Brief amicus curiae of National Rifle
Association filed.
Aug 7 2003 Brief amicus curiae of Doctors for Sensible
Gun Laws filed.
Aug 7 2003 Waiver of right of respondent Bill
Lockyer, Attorney General of California to respond
filed.
Aug 20 2003 DISTRIBUTED for Conference of
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CLAIMS
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September 29, 2003.

Sep 22 2003 Response Requested . (Due October 22,
2003)
Oct 22 2003 Brief of respondents Bill Lockyer,
Attorney General of California, and Gray Davis,
Governor in opposition filed.
Oct 27 2003 Reply of petitioners Sean Silveira, et al.
filed.
Nov 5 2003 DISTRIBUTED for Conference of
November 26, 2003.
Dec 1 2003 Petition DENIED.
Hamrick v. President George W. Bush, et al,

U.S. Supreme Court, No. 03-145
DENIED!
REASONS FOR GRANTING THE WRIT
Petitioner’s is a Second Amendment case as a federal civil rights case for U.S. seamen’s rights. The case has
reached the U.S. Supreme Court under Rule 11 and under Compelling Reasons under Rule 10(a) of the Rules
of the Supreme Court of the United States. 592 The “compelling reasons” to grant the Petition for Writ
of Certiorari are from an unprecedented double-Circuit split decisions on the Second Amendment
that the United States Court of Appeals for the Ninth Circuit in Silveira, et al v. Lockyer, No. 01-
15098, (9th Cir. Dec. 5, 2002) has entered a decision on the Second Amendment that is opposite in
meaning to the decision of the United States Court of Appeals for the Fifth Circuit in United States
v. Emerson, No. 99-10331 (5th Cir. Oct. 16, 2001, Revised Oct. 18, 2001).593 The Ninth Circuit ruled
that “the Second Amendment does not confer an individual right to own or possess arms.” The Fifth Circuit ruled:
“We agree with the district court that the Second Amendment protects the right of individuals to privately keep
and bear their own firearms that are suitable as individual, personal weapons and are not of the general kind or
type excluded by Miller, regardless of whether the particular individual is then actually a member of a militia.”
It is now under Rule 9(c) of the Federal Rules of Civil Procedure for Conditions Precedent in that not only did the
Ninth Circuit create a Circuit Split on the Second Amendment with the Fifth Circuit but the Ninth Circuit is now a
Circuit Split in and of itself. On February 18 the Ninth Circuit handed down an opinion in Nordyke v. King, 2003
WL 347009 (9th Cir. 2003).
Nordyke sharply criticized the [Silveira] decision . . . which went into great detail in an attempt to refute Emerson
and the individual rights view: “We feel that the Silveira’s panel’s exposition of the connecting interpretations of
the Second Amendment was both unpersuasive and, even more importantly, unnecessary . . . There was simply no
need for the Silveira panel’s broad digression. . . . The Silveira panel’s decision to re-examine the scope and
purpose of the Second Amendment was improper. . . We ignore the Silveira panel’s unnecessary historical
disquisition as the dicta that is . . . .” In a special concurrence, Judge Gould wrote that Hickman was “wrongly
decided,” that the remarks in Silveira v. Lockyer about the ‘collective rights’ theory of the Second Amendment
592
My emphasis showing that the 53 U.S. Supreme Court ignores its own rules on split-circuit opinions when it comes to a
Second Amendment case espousing an individual right.
593
Emphasis is the Plaintiff’s.
339THE CLAIMS
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PART 19. THE CLAIMS
are not persuasive,” and that the individual-rights view of Emerson should be adopted. Further, contrary to other
Ninth Circuit precedent (Fresno Rifle & Pistol Club v. Van de Kamp), States cannot violate the Second
Amendment, for “maintenance of an armed citizenry might be argued to be implicit in the concept of ordered
liberty and protected by the Due Process Clause of the Fourteenth Amendment.”594
The Ninth Circuit’s double-Circuit Split with itself and with the Fifth Circuit resulted from the Supreme Court’s
64-year55 aversion to Second Amendment cases and must come to an end.
It cannot be overstated that Petitioner’s case “is of such imperative public importance as to justify deviation
from normal appellate practice and to require immediate determination in this Court. See 28 U.S.C. § 2101(e)”
of Rule 11 that burdens and compels the Supreme Court to correct its own error of silence on the Second
Amendment that Justice Thomas had speculated in the Printz case. Justice Thomas stated:
Perhaps, at some future date, this Court will have the opportunity to determine whether Justice Story was correct
when he wrote that the right to bear arms “has justly been considered, as the palladium of the liberties of a
republic.” 3 J. Story, Commentaries §1890, p. 746 (1833).595
That some future date is now!
Petitioner has not exhausted all of the available documentation asserting the fact that the Second Amendment
right to keep to keep and bear arms is an individual right and that right has been unconstitutionally denied to the
Petitioner not only by the U.S. Coast Guard, but also by the collective effect of State and Federal laws standing in
repugnance to the United States Constitution effectively nullifying the Second Amendment for the purposes of
traveling the United States while armed for the purpose of personal security.
In reiterating Joseph Story’s commentary on the common defense clause of the Preamble to the Constitution, “No
one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for
the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive,
the other more liberal, and each of them is consistent with the words, but is, and ought to be governed by the
intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon
the soundest principles of interpretation, to be adopted?596
Petitioner disagrees with State Oil Co. v. Khan 522 U.S. 3, 118 S.Ct. 275, 139 L. Ed. 2d 199, where in that case it
was said that, “The doctrine of stare decisis reflects a policy judgment that in most matters it is more important
that the applicable rule of law be settled than that it be settled right.” On the contrary, Petitioner asserts that it is
more important that the applicable rule of law be settled right than that it be just simply and expediently settled
lest we introduce tyranny as a component to the rule of law.
The Petitioner, Don Hamrick, respectfully prays that his Petition for Writ of Certiorari be accepted on reason that
the case has imperative public importance having certain constitutional questions that require immediate
determination in the Supreme Court of the United States.
Pleading Rule 9(b) Special Matters of Fraud, Mistake and Conditions of Mind, FEDERAL RULES OF CIVIL
PROCEDURE: The collective right the state to arm a militia version of the second amendment was a fraudulent
political ideology that replaced the rule of law
594
NRA INSTITUTE FOR LEGISLATIVE ACTION. Updates and Alerts: Ninth Circuit Disputes Silveira Decision, Judge Calls
Second Amendment an Individual Rights. No longer available online at original URL but a similar article, if not the same
article, is available at: http://www.nraila.org/issues/Articles/Read.aspx?ID=103
595
Referring to the United States v. Miller case of 1939.
596
Printz v. United States (95-1478), 521 U.S. 98 (1997). Nos. 95-1478 and 95-1503. Jay Printz, Sheriff/Coroner, Ravalli
County, Montana, Petitioner 95-1478 v. United States, Richard Mack, Respondent No. 95-1503 on writs of certiorari to the
united states court of appeals for the ninth circuit [June 27, 1997] Justice Thomas, concurring.
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PART 19. THE CLAIMS
Pleading includes Rule 9 Pleading Special Matters of Fraud, Mistake and Conditions of Mind of U.S.
District Court for the District of Columbia Judge Ellen Segal Huvelle’s Memorandum, Case No. 02-1435
(October 9, 2002) dismissing my Second Amendment case with prejudice. Extracted from that Memorandum:
“Moreover, the established law on this subject hardly supports petitioner’s cause. In United States v. Miller, 307
U.S. 174, 178 (1939), the Supreme Court found that “absent some reasonable relationship to the preservation or
efficiency of a well regulated militia,” the possession of a weapon (a short-barreled shotgun) could be proscribed
without running afoul of the Second Amendment. Miller remains the most authoritative modern pronouncement
on the amendment’s meaning and its conclusion that the right to bear arms is limited by the needs of an organized
militia has subsequently been echoed by the Supreme Court and followed in this and other circuits. See United
States v. Lewis, 445 U.S. 55, 65 n.8 (1980); Fraternal Order of Police v. United States, 173 F.3d 898, 905-06
(D.C. Cir. 1999); accord United States v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001) (holding that “a federal
criminal gun control law does not violate the Second Amendment unless it impairs the state’s ability to maintain a
well-regulated militia”). Under this interpretation, petitioner’s claims appear largely without merit.”
On June 26, 2008 Justice Scalia of the U.S. Supreme Court, in District of Columbia, et al, v. Heller, No.
07-290 held that:
“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia,
and to use that arm for traditionally lawful purposes, such as self-defense within the home.”
Under the Heller opinion’s interpretation and in accordance with simple logic contradicting Judge
Huvelle’s interpretation my Second Amendment claims do have merit in fact and law.
Therefore, it is my claim under Rule 9 of the Federal Rules of Civil Procedure that the judicial doctrince
that the Second Amendment was a collective right of the State to maintain a well-regulated militia, i.e., the
collective right standard, was a criminally fraudulent political ideology that was substituted for the Rule of Law. It
is also my claim specifically that Judge Ellen Segal Huvelle of the U.S. District Court for the District of Columbia
and generally that any federal judge dismissing Second Amendment civil cases for the individual right on the
basis of the collective right standard is evidence for a Rule 9 Pleading Special Matters of Fraud and “Conditions
of Mind” impuning the competency of Judge Huvelle and other federal judges under the “Good Behaviour
Clause” of Section 1, Article III, of the Constitution of the United States and violations of:
CANON 1.
A JUDGE SHALL UPHOLD AND PROMOTE THE INDEPENDENCE, INTEGRITY, AND
IMPARTIALITY OF THE JUDICIARY, AND SHALL AVOID IMPROPRIETY AND THE
APPEARANCE OF IMPROPRIETY.
RULE 1.1 Compliance with the Law
A judge shall comply with the law,* including the Code of Judicial Conduct.
RULE 1.2 Promoting Confidence in the Judiciary
A judge shall act at all times in a manner that promotes public confidence in the independence,*
integrity,* and impartiality* of the judiciary, and shall avoid impropriety and the appearance of
impropriety.
COMMENT
[1] Public confidence in the judiciary is eroded by improper conduct and conduct
that creates the appearance of impropriety. This principle applies to both the
professional and personal conduct of a judge.
[3] Conduct that compromises or appears to compromise the independence,
integrity, and impartiality of a judge undermines public confidence in the
341THE CLAIMS
PART 19.
PART 19. THE CLAIMS
judiciary. Because it is not practicable to list all such conduct, the Rule is
necessarily cast in general terms.
[5] Actual improprieties include violations of law, court rules or provisions of
this Code. The test for appearance of impropriety is whether the conduct would
create in reasonable minds a perception that the judge violated this Code or
engaged in other conduct that reflects adversely on the judge’s honesty,
impartiality, temperament, or fitness to serve as a judge.
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CLAIMS
PART 19. THE CLAIMS
CANON 2
A JUDGE SHALL PERFORM THE DUTIES OF JUDICIAL OFFICE IMPARTIALLY,
COMPETENTLY, AND DILIGENTLY.
RULE 2.2 Impartiality and Fairness
A judge shall uphold and apply the law,* and shall perform all duties of judicial office fairly and
impartially.*
COMMENT
[1] To ensure impartiality and fairness to all parties, a judge must be objective
and open-minded.
[2] Although each judge comes to the bench with a unique background and
personal philosophy, a judge must interpret and apply the law without regard to
whether the judge approves or disapproves of the law in question.
RULE 2.3 Bias, Prejudice, and Harassment
(A) A judge shall perform the duties of judicial office, including administrative duties, without
bias or prejudice.
COMMENT
[1] A judge who manifests bias or prejudice in a proceeding impairs the fairness
of the proceeding and brings the judiciary into disrepute.
RULE 2.11 Disqualification
(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s
impartiality* might reasonably be questioned, including but not limited to the following
circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal
knowledge* of facts that are in dispute in the proceeding.
343THE CLAIMS
PART 19.
PART 19. THE CLAIMS
H. Calendar Committee and Judge Reggie B. Walton of the U.S. District Court for
DC Violated Court Order of Judge Richard W. Roberts.
ORDER OF RECUSAL REVISED ORDER OF RECUSAL
January 13, 2004 January 20, 2004
Plaintiff Don Hamrick has filed an action against United States Plaintiff Don Hamrick has filed an action against United States
Attorney General John Ashcroft and others, and the action Attorney General John Ashcroft and others, and the action
was randomly assigned to me. Plaintiff has filed a motion for was randomly assigned to me. Plaintiff has filed a motion for
recusal, alleging that an appearance of impropriety exists recusal, alleging that an appearance of impropriety exists
because I was appointed by former President Clinton. Plaintiff because I was appointed by former President Clinton. Plaintiff
offers no evidence that could reasonably call into question my offers no evidence that could reasonably call into question my
impartiality in these proceedings on the basis of my status as impartiality in these proceedings on the basis of my status as
a Clinton appointee. a Clinton appointee. Accordingly, his motion will be
denied.
However, there is now pending in the United States Court of
Federal Claims a class action lawsuit filed by a class of However, there is now pending in the United States Court of
present and former Department of Justice attorneys seeking Federal Claims a class action lawsuit filed by a class of
damages against the United States for alleged violations of the present and former Department of Justice attorneys seeking
Federal Employees Pay Act, 5 U.S.C. §§ 5541-97 (1994). See damages against the United States for alleged violations of the
John Doe, et al., on behalf of themselves and all other Federal Employees Pay Act, 5 U.S.C. §§ 5541-97 (1994). See
similarly situated v. United States, Civil Action No. 98-896C. I John Doe, et al., on behalf of themselves and all other
am currently a member of that class. Since Canon 3C(1) of the similarly situated v. United States, Civil Action No. 98-896C. I
Code of Conduct for United States Judges requires a judge to am currently a member of that class. Since Canon 3C(1) of the
“disqualify himself . . . in a proceeding in which the judge’s Code of Conduct for United States Judges requires a judge to
impartiality might reasonably be questioned,” the Committee “disqualify himself . . . in a proceeding in which the judge’s
on Codes of Conduct of the Judicial Conference of the United impartiality might reasonably be questioned,” the Committee
States has opined that recusal is required from any on Codes of Conduct of the Judicial Conference of the United
proceeding in which the Attorney General appears as a real States has opined that recusal is required from any
party in interest, unless a waiver of such disqualification proceeding in which the Attorney General appears as a real
pursuant to Canon 3D1 is submitted by all parties involved in party in interest, unless a waiver of such disqualification
the suit. pursuant to Canon 3D1 is submitted by all parties involved in
the suit.
Plaintiff’s motion for recusal makes plain that he would not
waive my disqualification under Canon 3C(1). Thus, my Plaintiff’s motion for recusal makes plain that he would not
recusal from this case is now appropriate. For the reasons waive my disqualification under Canon 3C(1). Thus, my
stated above, it is therefore recusal from this case is now appropriate. For the reasons
stated above, it is therefore ORDERED that plaintiff’s motion
ORDERED that plaintiff’s motion for recusal [4] be, and hereby
for recusal [4] be, and hereby is, DENIED. However, I am
is, GRANTED. The Clerk of the Court is directed to
recusing myself sua sponte. The Clerk of the Court is
reassign this matter to the Calendar Committee. Because
directed to reassign this matter to the Calendar
United States District Judge Ellen Segal Huvelle of this Court
Committee. Because United States District Judge Ellen Segal
is also a named defendant in this suit, I recommend to the
Huvelle of this Court is also a named defendant in this suit, I
Calendar Committee that it seek to have a judge from another
recommend to the Calendar Committee that it seek to have a
district assigned to this matter.
judge from another district assigned to this matter.
When 1. the general provisions of Canon 3C(1) serve as the
1. When the general provisions of Canon 3C(1) serve as the
basis for disqualification, Canon 3D permits a judge to
basis for disqualification, Canon 3D permits a judge to
continue to participate in a proceeding if all of the parties and
continue to participate in a proceeding if all of the parties and
lawyers, after notice of the basis for the disqualification, agree
lawyers, after notice of the basis for the disqualification, agree
in writing to waive the disqualification under a procedure
in writing to waive the disqualification under a procedure
independent of the judge’s participation.
independent of the judge’s participation.
SIGNED this 13th day of January, 2004.
SIGNED this 20th day of January, 2004.
RICHARD W. ROBERTS
RICHARD W. ROBERTS
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CLAIMS
PART 19. THE CLAIMS
Emphasis added.
Judge Richard W. Roberts was originally assigned to my RICO Act case. I filed a motion for recusal and
he granted Don Hamrick’s motion for recusal on January 13, 2004. But one week later, on January 20, 2004, he
revised that motion to deny Don Hamrick’s motion so that he could recuse himself sua sponte. In that motion
Judge Roberts recommended to the Calendar Committer that a judge from another district be assigned to Don
Hamrick’s case remained unchanged.
However, Judge Reggie B. Walton, a judge in that same U.S. District Court as Judge Roberts, was
assigned to Don Hamrick’s civil RICO Act case under questionable circumstances that imply judicial misconduct
at the administrative level where Judge Reggie B. Walton is not protected by absolute immunity because Calendar
Committee assignments are not judicial acts.
On January 15, 2004, Judge Walton was assigned to Don Hamrick’s civil RICO Act case for the Second
Amendment (No. 03-2160) while still presiding over another Second Amendment case, Seegars v. Ashcroft, (No.
03-0834).
On January 29, 2004, a full two weeks after being assigned to Don Hamrick’s case for the Second
Amendment, Judge Walton ruled in the Seegars case “that the Second Amendment does not apply to the District
of Columbia.” Under the Canons and under 28 U.S.C. § 455, he was not qualified to preside over Don Hamrick’s
case. This fact implies judicial misconduct on the parts of the (1) Court Clerk, (3) Judge Walton himself and (3)
the Calendar Committee for not complying with Judge Richard W. Roberts Court Order that, “The Clerk of the
Court is directed to reassign this matter to the Calendar Committee.”
By whatever the circumstances were that Judge Walton got assigned to Don Hamrick’s case there is the
distinct appearance that Judge Walton had a pre-disposed opinion on the merits of Don Hamrick’s case to dismiss
his case with prejudice. The following are allegations of violations of the Canons that Don Hamrick presents to
Congress on Judge Reggie B. Walton:
Canon 1: Judge Walton did not uphold the integrity and independence of the judiciary.
Canon 2A. Judge Walton did not act in a manner that promotes public confidence in the integrity and
impartiality of the judiciary.
Canon 3: Judge Walton did not perform his duties of judicial office impartially nor diligenly.
Canon 3B(1) & (5): Judge Walton presided over and decided Don Hamrick case in which is was not
qualified by reason of bias or prejudice from the Seegars case.
Canon 3B(2): While Judge Walton was not swayed by a fear of criticism as evidenced in his Seegars
opinion that the Second Amendment does not apply to the District of Columbia he was apparently swayed by
partisan politics and public clamor whether of his own political ideology on the Second Amedment or was
misinformed by the politicalization of the U.S. Department of Justice over the then upcoming presidential election
in 2004 as evidenced by the U.S. Department of Justice failure or refusal to inform Judge Walton of the Justice
Department’s imminent internal release on August 24, 2004, of their Memorandum Opinion for the Attorney
General [John Ashcroft] titled Whether the Second Amemdment Secures an Individual Right, in which the
conclusion was, “The Second Amendment secures a right of individuals general, not a right of States or a right
restricted to persns serviing in militias.” The politicalization of the U.S. Department of Justice is evidenced in that
the Memorandum Opinion was not only withheld as evidence from Don Hamrick’s case vindicating the merits of
his case but that the Memorandum Opinion was not released to the public until mid-December, well after the
November presidential elections. These two events are sufficient to proof Judge Walton was externally swayed by
partisan politics and personally swayed by his Seegars opinion.
The Docket Report shows that Judge Walton denied or ignored nearly all of Don Hamrick’s motions,
judicial notices of adjudicative facts, and other pleadings while he granted every motion and pleading by the
Government Defense Attorney, Dennis Barghaan. Judge Walton denied Don Hamrick’s case with prejudice.
345THE CLAIMS
PART 19.
PART 19. THE CLAIMS
On Appeal the DC Circuit affirmed Judge Walton’s dismissal of my RICO Act claims but remanded my
case for further proceedings on Second Amendment grounds. Judge Walton, response to the DC Circuit’s
Mandate issued a dirty trick of a so called “Scheduling Order” that resembled more like a repeat of Rule 7
pleadings than a Rule 16 Scheduling Order in anticipation of Rule 26 Discovery Order.
CLAIM No. (1): Human Rights Violations

BY JUDICIAL FIAT, BY EXECUTIVE ACTION, AND BY WRONGFUL DENIAL OF A LEGISLATIVE REMEDY BY
PRIVATE BILL THE U.S. GOVERNMENT WRONGFULLY STRIPPED THE PLAINTIFF OF HIS STATUS AS A FREE
CITIZEN IN VIOLATION OF THE THIRTEENTH AND FOURTEENTH AMENDMENTS BY LEAVING THE PLAINTIFF
WITH NO ENFORCEABLE STATUTORY, CONSTITUTIONAL, OR HUMAN RIGHTS TO PETITION THE
GOVERNMENT FOR REDRESS OF GRIEVANCES. THE FEDERAL COURTS WRONGFULLY DISMISSED
PLAINTIFF’S CASES FROM 2002 TO 2008, IN PART, ON THE BASIS OF SOVEREIGN IMMUNITY, ABSOLUTE
IMMUNITY, AND/OR QUALIFIED IMMUNITY, AMONG OTHER WRONGFUL REASONS FOR DISMISSAL BY
IGNORING THE CONGRESSIONALLY LEGISLATED BY DELEGATION OF AUTHORITY FOR FEDERAL
REGULATIONS FOR STATUTORY WAIVER OF SOVEREIGN IMMUNITY FOR JUDICIAL REVIEW (46 C.F.R. §
1.01–30(A)) OF THE U.S. COAST GUARD’S FINAL AGENCY ACTION OF PLAINTIFF’S CLAIM OF WRONGFUL
DENIAL OF SECOND AMENDMENT RIGHTS.
The wrongful denial of Don Hamrick’s Second and Seventh Amendment rights violate international
human rights treaties on access to the courts for judicial remedy of the U.S. Coast Guard’s denial of his Second
Amendment rights by way of final agency action.
Even if the U.S. Supreme Court refuses to incorporate the Second Amendment through the Fourteenth
Amendment as applying to the States under the Incorporation Doctrine the States still cannot legislate against the
Second Amendment rights of U.S. citizens under the Fourteenth Amendment because U.S. Citizens do not give
up their Second Amendment rights just because they travel interstate. Therefore, State gun control laws that
places out-of-state citizen’s in jeopardy of arrest for possession of a handgun or other firearms when all else is
relating to the possession is law makes those State laws unconstitutional, let alone the human right to life and the
human right of self-defense under international human rights treaties.
In 2002 the U.S. Coast Guard denied Don Hamrick his Second Amendment right to “NATIONAL OPEN
CARRY HANDGUN” endorsement on Don Hamrick’s Merchant Mariner’s Document in recognition of federally
required occupational training in small arms in accordance with OPNAVINST 3591.1C: SMALL ARMS TRAINING
AND QUALIFICATION, dated May 13, 2002; ENCLOSURE (3) QUALIFICATION CRITERIA FOR SECURITY PERSONNEL
(AFLOAT) dated May 13, 1992,597 through the Military Sealift Command, shipping companies, and the Seafarers
International Union. The small arms training falls under the GENERAL REQUIREMENTS AND CLASSIFICATIONS FOR
ABLE SEAMEN, 46 U.S.C. § 7306(a)(3):
“To qualify for an endorsement as able seaman authorized by this section, an applicant must provide satisfactory
proof that the applicant is qualified professionally as demonstrated by an applicable examination or educational
requirements .”
597
PART 19. THE 346

CLAIMS
PART 19. THE CLAIMS
The small arms training was a fulfilling requirement for 33 C.F.R. § 104.220 COMPANY OR VESSEL
PERSONNEL WITH SECURITY DUTIES:
Company and vessel personnel responsible for security duties must have knowledge, through training or
equivalent job experience, in the following, as appropriate:
(b) Recognition and detection of dangerous substances and devices;
(c) Recognition of characteristics and behavioral patterns of persons who are likely to threaten security;
(j) Inspection, control, and monitoring techniques;
(l) Methods of physical screening of persons, personal effects, baggage, cargo, and vessel stores; and
(m) The meaning and the consequential requirements of the different Maritime Security (MARSEC) Levels.
There are no federal laws or regulations for or against the “National Open Carry Handgun” endorsement
and the security regulation does not provide for arming watchstanding Able Seamen (STCW) or dayworking Able
Seamen while the vessel is transiting known pirate waters or at other times requiring extra security. The federal
regulation, 33 C.F.R. § 104.22, places unarmed company and vessel personnel with security duties at grave risk of
personal injury or death when security duties require that they approach and confront suspicious persons. It is
unrealistic and suicidal to expect crew members to comply with 33 C.F.R. § 104.22 without the security of
firearms.
The U.S. Coast Guard did not support and defend the Second Amendment of the Bill of Rights as part of
the Constitution as required by the Oath of Office. Instead the U.S. Coast Guard followed the International
Maritime Organization’s Maritime Safety Committee policy on, PIRACY AND ARMED ROBBERY AGAINST SHIPS:
GUIDANCE TO SHIPOWNERS AND SHIP OPERATORS, SHIPMASTERS AND CREWS ON PREVENTING AND SUPPRESSING
ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS, MSC/Circ.623/ Rev.3, dated May 29, 2002, paragraphs 45
and 46 states:
Firearms
45 The carrying and use of firearms for personal protection or protection of a ship is strongly
discouraged.
46 Carriage of arms on board ship may encourage attackers to carry firearms thereby escalating an
already dangerous situation, and any firearms on board may themselves become an attractive
target for an attacker. The use of firearms requires special training and aptitudes and the risk of
accidents with firearms carried on board ship is great. In some jurisdictions, killing a national
may have unforeseen consequences even for a person who believes he has acted in self
defence.
347THE CLAIMS
PART 19.
PART 19. THE CLAIMS
CLAIM No. (2): Retaliation by the The U.S. Coast Guard

UNLAWFULLY RETALIATED AGAINST THE PLAINTIFF FOR BEING NAMED AS A DEFENDANT IN HIS PREVIOUS
CIVIL RICO ACT COMPLAINT BY MALICIOUSLY, WILFULLY AND WITHOUT JUST CAUSE CONSPIRED WITH
MICHAEL PRENDERGAST, ASSOCIATE DIRECTOR FOR SECURITY OPERATIONS OF THE U.S. DEPARTMENT OF
TRANSPORTATION TO ISSUE AND DID ISSUE TWO BAR NOTICES (2004 AND 2006) PROHIBITING THE
PLAINTIFF FROM VISITING ANY U.S. COAST GUARD, U.S. DEPARTMENT OF TRANSPORATION, OR FAA
FACILITIES IN THE DISTRICT OF COLUMBIA WITHOUT PRIOR PERMISSION OF MICHAEL PRENDERGAST.
These Bar Notices are a violation of my Seventh Amendment right to a civil jury trial as an unrepresented
civil plaintiff and a violation of my due process rights to notice and my right to appeal of said Bar Notices. The
Plaintiff was lawfully pursuing his case as an unrepresented civil plaintiff and as Private Attorney General, (and at
the time he was unaware that he was also acting as a Human Rights Defender). The Bar Notices did not detail any
alleged offenses. The Bar Notices did NOT include any administrative appeal procedures to contest the Bar
Notices. This omission violates the ADMINISTRATIVE PROCEDURES ACT, 5 U.S.C § 551-559; NEGOTIATED
RULEMAKING PROCEDURE, 5 U.S.C § 560-570a; ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE
ADMINISTRATIVE PROCESS 5 U.S.C § 571-584; and JUDICIAL REVIEW 5 U.S.C § 701-706. The Bar Notices are
clearly an abuse of authority in retaliation for my application of the Rule of Law against the U.S. Coast Guard in
the pursuit of equal rights and equal justice under the law.
CLAIM No. (3): Judicial Treason Against the Constitution & Bill of Rights
EVIDENCE OF JUDICIAL CONSPIRACY TO ABOLISH THE FIRST AMENDMENT RIGHT TO PETITION THE
GOVERNMENT FOR REDRESS OF GREIVANCES AND THE SEVENTH AMENDMENT RIGHT TO A CIVIL JURY
TRIAL UNDER 42 U.S.C. § 1983 RENDERS RES JUDICATA INAPPLICABLE BECAUSE (1) SUMMARY JUDGMENT
IS UNCONSTITUTIONAL; (2) PLAINTIFF’S RIGHTS WERE IMPROPERLY ADJUDICATED AND IGNORED; (3) NEW
EVIDENCE IS PRESENTED IN DEFENSE OF PLAINTIFF’S SEVENTH AMENDMENT RIGHT TO A CIVIL JURY
TRIAL; AND (4) INFRINGEMENTS OF NOT ONLY THE SAME CONSTITUTIONAL RIGHTS WRONGFULLY
ADJUDICATED BUT ALSO INFRINGEMENTS OF DIFFERENT CONSTITUTIONAL AND STATUTORY RIGHTS AND
CORRESPONDING HUMAN RIGHTS ARISING FROM A CONTINUING TIME-BASED ACCUMULATION OF
TRANSACTIONAL NUCLEUS OF FACTS ARE PRESENTED IN THIS AMENDED COMPLAINT AMOUNTING TO AN
UNCONSTITUTIONAL DENIAL OF THE SEVENTH AMENDMENT RIGHT TO A CIVIL JURY TRIAL.
AFFECTED CASES
! 8th CIRCUIT, CASE NO. 07-2400 (VIOLATED THE LAW)
! U.S. District Court/Little Rock, No. 06-0044. (VIOLATED THE LAW)
! U.S. Supreme Court, Nos. 04M56 (VIOLATED THE LAW)
PART 19. THE 348

CLAIMS
PART 19. THE CLAIMS
CLAIM No. (4): Obstructions of Justice

MEMBERS OF THE FEDERAL COURTS, THE U.S. DEPARTMENT OF JUSTICE, THE U.S. MARSHALS SERVICE,
THE FBI, AND THE U.S. COAST GUARD WILFULLY OBSTRUCTED JUSTICE PREVENTING THE PLAINTIFF
FROM LAWFULLY ACTING IN THE CAPACITY OF A PRIVATE ATTORNEY GENERAL IN THE PROSECUTION OF
HIS CIVIL RICO ACT CASE AND THEREBY WILFULLY AND WRONGFULLY DENIED MY SEVENTH
AMENDMENT RIGHT TO A CIVIL JURY TRIAL.
(1). Federal judges employing unconstitutional summary judgments to dismiss my Second Amendment
cases from 2002 to 2008 are construed as obstructions of justice.
(2). The U.S. Coast Guard maliciously initiated a criminal investigation of me through the Naval Criminal
Investigative Service (NCIS) in retaliation for persuing Second Amendment rights where the NCIS found me to
be innocent of the wrongful allegations made by the U.S. Coast Guard.
(3). The U.S. Marshals Service and the FBI refused to investigate my evidence of extortion, 18 U.S.C. §
872, of filing fees of the federal courts that are exempt for seamen such as I, 28 U.S.C. § 1916. When pressed to
act in face of my Citizen’s Arrest Warrant for federal judges and court clerks for such extortions amounting to
$1,465.00 I was threated with arrest by the U.S. Marshals Service. The U.S. Marshals Service twice visited my
elderly mother in a beligerent disregard to the fact that the U.S. Marshals Service could have sent emails to me in
lieu of a criminal investigation because I have be emailing the U.S. Marshals Service on a regular basis while
traveling around the United States. The U.S. Marshals Service deliberately chose to pay visits to my elderly
mother in order to harass and apply family pressures to me in order to get me to cease and decist pursuing my
statutory and constitutional rights as applied to federal judges and court personnel. All inquiries I made with the
U.S. Department of Justice and the U.S. Marshals Service as to way I cannot enforce the Seamen’s Suit law, 28
U.S.C. § 1916 were ignored. It was not until recently that I learned that the Seamen’s Suit law does not have an
explicit provision for a private right of action. The actions I have been taking in regard to my Citizen’s Arrest
Warrant were based on an implied private right of action when all available legislative, executive, and judicial
remedies were and are exhausted.
Citing Paul B. Stephan in Section III Private Enforcement of Federal Statutes: An Evolving Jurisprudence
in PRIVATE REMEDIES FOR TREATY VIOLATIONS AFTER SANCHEZ-LLAMAS, 11 Lewis & Clark L. Rev. 65 (2007)
598
Justice Brennan, writing for the Court in Cort v. Ash 422 U.S. 66 (1975), “offered a four-point test for
determining whether courts could infer a power of private enforcement from a statute that did not expressly
address the issue.”
598
Available online at http://www.lclark.edu/org/lclr/objects/LCB_11_1_Stephan.pdf.
349THE CLAIMS
PART 19.
PART 19. THE CLAIMS
“In determining whether a private remedy is implicit in a statute not expressly providing one, several
factors are relevant.” Stylizing the text from the above law review by Stephan, p. 71 for display here:
TEST (1). “[am I, as the plaintiff] “one of the class for whose especial benefit the statute was enacted,”—
that is, does the statute create a federal right in favor of the plaintiff?”
ANSWER: Yes. I am a merchant seaman. The Seamen’s Suit Law, 28 U.S.C. § 1916 is specificly directed to
merchant seamen.
TEST (2). “[Is] there any indication of legislative intent, explicit or implicit, either to create such a remedy
or to deny one?”
ANSWER: Citing Isbrandtsen Co. v. Johnson, 343 U.S. 779, 782-784 (1952):
Whenever congressional legislation in aid of seamen has been considered here since 1872, this Court has
emphasized that such legislation is largely remedial and calls for liberal interpretation in favor of the seamen. The
history and scope of the legislation is reviewed in Aguilar v. Standard Oil Co., 318 U.S. 724, 727 -735 (1943),
and notes. “Our historic national policy, both legislative and judicial, points the other way [from burdening
seamen]. Congress has generally sought to safeguard seamen’s rights.” Garrett v. Moore-McCormack Co., 317
U.S. 239, 246 (1942). “[T]he maritime law by inveterate tradition has made the ordinary seaman a member of a
favored class. He is a ‘ward of the admiralty,’ often ignorant and helpless, and so in need of protection against
himself as well as others. . . . Discrimination may thus be rational in respect of remedies for wages.” Warner v.
Goltra, 293 U.S. 155, 162 (1934); Cortes v. Baltimore Insular Line, 287 U.S. 367, 375, 377 (1932); Wilder v.
Inter-Island Navigation Co., 211 U.S. 239, 246-248 (1908); Patterson v. Bark Eudora, 190 U.S. 169 (1903);
Brady v. Daly, 175 U.S. 148, 155-157 (1899). “The ancient characterization of seamen as ‘wards of admiralty’ is
even more accurate now than it was formerly.” Robertson v. Baldwin, 165 U.S. 275, 287 (1897); Harden v.
Gordon, 11 Fed. Cas. No. 6,047, 2 Mason (Cir. Ct. Rep.) 541, 556.
Statutes which invade the common law or the general maritime law are to be read with a presumption favoring
the retention of longestablished and familiar principles, except when a statutory purpose to the contrary is evident.
No rule of construction precludes giving a natural meaning to legislation like this that obviously is of a remedial,
beneficial and amendatory character. It should be interpreted so as to effect its purpose. Marine legislation, at least
since the Shipping Commissioners Act of June 7, 1872, 17 Stat. 262, should be construed to make effective its
design to change the general maritime law so as to improve the lot of seamen. “The rule that statutes in derogation
of the common law are to be strictly construed does not require such an adherence to the letter as would defeat an
obvious legislative purpose or lessen the scope plainly intended to be given to the measure.” Jamison v.
Encarnacion, 281 U.S. 635, 640 (1900); Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437 (1907),
440. The direction of the current of maritime legislation long has been evident on its face.
“In this country these notions were reflected early, and have since been expanded, in legislation designed to
secure the comfort and health of seamen aboard ship, hospitalization at home and care abroad. . . . The legislation
. . . gives no ground for making inferences adverse to the seaman or restrictive of his rights. . . . Rather it furnishes
the strongest basis for regarding them broadly, when an issue concerning their scope arises, and particularly when
it relates to the general character of relief the legislation was intended to secure.” Aguilar v. Standard Oil Co., 318
U.S. 724, 728-729 (1943).
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Citing Nicholas Schreiber v. K-Sea Transportation Corp. New York, Supreme Court, Appellate Division,
April 25, 2006; 5410N Index 104992/04 107571/04:
Petitioner, as a ward of the admiralty, is entitled to heightened protection from the courts. There is a long-standing
policy to safeguard the rights of seamen, whose contracts are traditionally viewed with solicitude:
They are emphatically the wards of the admiralty; and though not technically incapable of entering into a valid
contract, they are treated in the same manner, as courts of equity are accustomed to treat young heirs, dealing with
their expectancies, wards with their guardians, and cestuis que trust with their trustees. . . . If there is any undue
inequality in the terms, any disproportion in the bargain, any sacrifice of rights on one side, which are not
compensated by extraordinary benefits on the other, the judicial interpretation of the transaction, is that the
bargain is unjust and unreasonable, that advantage has been taken of the situation of the weaker party, and that pro
tanto the bargain ought to be set aside as inequitable. (Garrett v. Moore-McCormack Co., 317 U.S. at 246, 1942
AMC at 1650, quoting Harden v. Gordon, 2000 AMC 893, 902, 11 Fed Cas 480, 485 [1823])
TEST (3). “[Is] it consistent with the underlying purposes of the legislative scheme to imply such a remedy
for the plaintiff?”
ANSWER: Yes, by the fact that seamen are wards of the Admiralty.
TEST (4). [Is] the cause of action one traditionally relegated to state law, in an area basically the concern of
the States, so that it would be inappropriate to infer a cause of action based solely on federal law?
ANSWER: The cause of action is strictly for the federal courts. But when the judicial, the executive, and the
legislative branch denies all available remedies under the First Amendment right to petitition the government for
redress of grievances and the Seventh Amendment right to a civil jury trial under the aggregate effect of appearing
to be generalized corruption and obstructions of justice then the only remedy left is the Ninth Amendment right
and the Tenth Amendment power reserved to the People to make citizen’s arrests with the Citizen’s Arrest
Warrant with accompanying evidence of felony violations of federal law, as in my case, the Seamen’s Suit Law,
28 U.S.C. § 1916. But because the Seamen’s Suit Law does not explicitly provide for such a private right of
action such as the Citizen’s Arrest remedy as a remedy of last resort or even the traditional Seventh Amendment
right to a civil jury trial the victim must present a civil case against the United States for a civil jury trial for a
judicial determination on the implied private right of action in the Seamen’s Suit Law.
See also, We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia,
No. 04-1211 (August 31, 2005):
465 (1979).
Id. We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No.
04-1211 (August 31, 2005). Affirmed, DC Circuit, No. 05-5359 (May 8, 2007) (Certiorari denied, January 7,
2008; Petition for Rehearing denied, February 25, 2008):
See also, Justice Harlan’s Dissent in Downes v. Bidwell, 182 U.S. 244 at 376-382 (1901)
351THE CLAIMS
PART 19.
PART 19. THE CLAIMS
In Martin v. Hunter, 1 Wheat. 304, 324, 326, 331, 4 L. ed. 97, 102, 104, this court speaking by Mr. Justice Story,
said that ‘the Constitution of the United States was ordained and established, not by the states in their sovereign
capacities but emphatically, as the preamble of the Constitution declares, by ‘the People of the United States.”
In McCulloch v. Maryland, 4 Wheat. 316, 403-406, 4 L. ed. 579, 600, 601, Chief Justice Marshall, speaking for
this court, said: ‘The government proceeds directly from the people; is ‘ordained and established’ in the name of
the people; and is declared to be ordained ‘in order to form a more perfect union, establish justice, insure domestic
tranquillity, and secure the blessings of liberty to themselves and to their posterity.’ The assent of the states, in
their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But
the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and
could not be negatived, by the state governments. The Constitution, when thus adopted, was of complete
obligation, and bound the state sovereignties. . . . The government of the union, then (whatever may be the
influence of this fact on the case) is emphatically and truly a government of the people. In form and in substance
it emanates from them. Its powers are granted by them, and are to be exercised directly on them and for their
benefit. This government is acknowledged by all to be one of enumerated powers. . . . It is the government of all;
its powers are delegated by all; it represents all, and acts for all.’
Although the states are constituent parts of the United States, the government rests upon the authority of the
people of the United States, and not on that of the states. Chief Justice Marshall, delivering the unanimous
judgment of this court in Cohen v. Virginia, 6 Wheat. 264, 413, 5 L. ed. 257, 293, said: ‘That the United States
form, for many and for most important purposes, a single nation, has not yet been denied. In war, we are one
people. In making peace, we are one people. . . . In many other respects, the American people are one; and the
government which is alone capable of controlling and managing their interests . . . is the government of the
Union. It is their government, and in that character they have no other. America has chosen to be, in many
respects and to many purposes, a nation; and for all these purposes her government is complete; to all these
objects it is competent. The people have declared that in the exercise of all powers given for those objects it is
supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the
American territory.’
In reference to the doctrine that the Constitution was established by and for the states as distinct political
organizations, Mr. Webster said: ‘The Constitution itself in its very front refutes that. It declares that it is ordained
and established by [182 U.S. 244, 378] the People of the United States. So far from saying that it is established
by the governments of the several states, it does not even say that it is established by the people of the several
states. But it pronounces that it was established by the people of the United States in the aggregate. Doubtless, the
people of the several states, taken collectively, constitute the people of the United States. But it is in this their
collective capacity, it is as all the people of the United States, that they established the Constitution.’
In view of the adjudications of this court I cannot assent to the proposition, whether it be announced in express
words or by implication, that the national government is a government of or by the states in union, and that the
prohibitions and limitations of the Constitution are addressed only to the states. That is but another form of saying
that, like the government created by the Articles of Confederation, the present government is a mere league of
states, held together by compact between themselves; whereas, as this court has often declared, it is a government
created by the People of the United States, with enumerated powers, and supreme over states and individuals with
respect to certain objects, throughout the entire territory over which its jurisdiction extends. If the national
government is in any sense a compact, it is a compact between the People of the United States among themselves
as constituting in the aggregate the political community by whom the national government was established. The
Constitution speaks, not simply to the states in their organized capacities, but to all peoples, whether of states or
territories, who are subject to the authority of the United States. Martin v. Hunter, 1 Wheat. 327, 4 L. ed. 103.
...
Although from the foundation of the government this court has held steadily to the view that the government of
the United States was one of enumerated powers, and that no one of its branches, nor all of its branches combined,
could constitutionally exercise powers not granted, or which were not necessarily implied from those expressly
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granted (Martin v. Hunter, 1 Wheat. 326, 331, 4 L. ed. 102, 104) . . . This nation is under the control of a written
constitution, the supreme law of the land and the only source of the powers which our government, or any branch
or officer of it, may exert at any time or at any place. . . .To say otherwise is to concede that Congress may, by
action taken outside of the Constitution, engraft upon our republican institutions a colonial system such as exists
under monarchical governments. Surely such a result was never contemplated by the fathers of the Constitution. If
that instrument had contained a word suggesting the possibility of a result of that character it would never have
been adopted by the people of the United States. . . .
The idea prevails with some-indeed, it found expression in agruments at the bar-that we have in this country
substantially or practically two national governments; one to be maintained under the Constitution, with all its
restrictions; the other to be maintained by Congress outside and independently of that instrument, by exercising
such powers as other nations of the earth are accustomed to exercise. It is one thing to give such a latitudinarian
construction to the Constitution as will bring the exercise of power by Congress, upon a particular occasion or
upon a particular subject, within its provisions. It is quite a different thing to say that Congress may, if it so elects,
proceed outside of the Constitution. The glory of our American system [182 U.S. 244, 381] of government is
that it was created by a written constitution which protects the people against the exercise of arbitrary, unlimited
power, and the limits of which instrument may not be passed by the government it created, or by any branch of it,
or even by the people who ordained it, except by amendment or change of its provisions. ‘To what purpose,’
Chief Justice Marshall said in Marbury v. Madison, 1 Cranch, 137, 176, 2 L. ed. 60, 73, ‘are powers limited, and
to what purpose is that limitation committed to writting, if these limits may, at any time, be passed by those
intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if
those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of
equal obligation.’
The wise men who framed the Constitution, and the patriotic people who adopted it, were unwilling to depend for
their safety upon what, in the opinion referred to, is described as ‘certain principles of natural justice inherent in
Anglo-Saxon character, which need no expression in constitutions or statutes to give them effect or to secure
dependencies against legislation manifestly hostile to their real interests.’ They proceeded upon the theory-the
wisdom of which experience has vindicated- that the only safe guaranty against governmental oppression was to
withhold or restrict the power to oppress. They well remembered that Anglo- Saxons across the ocean had
attempted, in defiance of law and justice, to trample upon the rights of Anglo-Saxons on this continent, and had
sought, by military force, to establish a government that could at will destroy the privileges that inhere in liberty.
They believed that the establishment here of a government that could administer public affairs according to its
will, unrestrained by any fundamental law and without regard to the inherent rights of freemen, would be ruinous
to the liberties of the people by exposing them to the oppressions of arbitrary power. Hence, the Constitution
enumerates the powers which Congress and the other departments may exercise,-leaving unimpaired, to the states
or the People, the powers not delegated to the national government nor prohibited to the states. That instrument so
expressly declares in [182 U.S. 244, 382] the 10th Article of Amendment. It will be an evil day for American
liberty if the theory of a government outside of the supreme law of the land finds lodgment in our constitutional
jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all violation of the
principles of the Constitution.
Citing Leeper v. Texas, 139 U.S. 462, 463 (1891), 11 Sup. Ct. Rep. 577.
“By the Fourteenth Amendment, the powers of states in dealing with crime within their borders are not limited,
except that no state can deprive particular persons or classes of persons of equal and impartial justice under the
law, that law in its regular course of administration through courts of justice is due process, and when secured by
the law of the state, the constitutional requirement is satisfied, and that due process is so secured by laws
operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government
unrestrained by the established principles of private right and distributive justice.”)
353THE CLAIMS
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PART 19. THE CLAIMS
common law:
8th CIRCUIT, CASE NO. 07-2400 (VIOLATED 28 U.S.C. § 1916W)
U.S. District Court/Little Rock, No. 06-0044. (VIOLATED 28 U.S.C. § 1916)
U.S. Supreme Court, Nos. 04M56 (VIOLATED 28 U.S.C. § 1916)
CLAIM No. (5): My Human Right to a Civil Jury Trial Violated

The Wrongful Denial of My Seventh Amendment Right to a Civil Jury Trial Violated My Human Rights Under
International Human Rights Treaties
Wisconsin v. Constantineau, 400 U.S. 433 (January 19, 1971).
The police chief of Hartford, Wisconsin, pursuant to a state statute, caused to be posted a notice in all retail liquor
outlets in Hartford that sales or gifts of liquor to appellee, a resident of that city, were forbidden for one year. The
statute provides for such “posting,” without notice or hearing, with respect to any person who “by excessive
drinking” produces certain conditions or exhibits specified traits, such as exposing himself or family “to want” or
becoming “dangerous to the peace” of the community. On appellee’s suit seeking, inter alia, injunctive relief, a
three-judge federal court held the statute unconstitutional as violative of procedural due process. Held:
1. The label or characterization given an individual by “posting,” though a mark of serious illness to some, is to
others such a stigma or badge of disgrace that procedural due process requires notice and an opportunity to be
heard. Pp. 436-437.
2. Since here the state statute is unambiguous and there is no uncertain issue of state law, the federal court
properly proceeded to determine the federal constitutional claim. Zwickler v. Koota, 389 U.S. 241, 250 -251. Pp.
437-439.
Citing David Sloss’ law review article, “When Do Treaties Create Individually Enforceable Rights?
The Supreme Court Ducks the Issue in Hamdan and Sanchez-Llamas,” 45 Columbia Journal of Transnational
Law 20 (2006), I will invoke my right to enforce my Seventh Amendment right to a civil jury trial through 28
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U.S.C. § 1331 Federal Question (“The district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States”) in reference to the above noted cases in their
individual and in their aggregate effect of unconstitutional summary judgment dismissals under the following
human rights treaties:
United Nations DECLARATION ON HUMAN RIGHTS DEFENDERS

Article 9 The Right to Effective Remedy of Human Rights Violations
THE INTER-AMERICAN CONVENTION AGAINST CORRUPTION
Article III.1. Abuse of Authority, (Equivalent to 18 U.S.C. § 4. Misprision of Felony).
Article III.11. Obstruction of Justice.
Article IV. Acts of Corruption (18 U.S.C. § 872 Extortion Under Color of Law)
United Nations CONVENTION AGAINST CORRUPTION
Article 11. Measures Relating to the Judiciary and Prosecution Services;
Article 19. Abuse of Functions;
Article 24. Concealment;
Article 25. Obstruction of Justice;
Article 27. Participation and Attempt;
Article 28. Knowledge, Intent and Purpose as Elements of an Offence;
Article 30. Prosecution, Adjudication and Sanctions;
Article 32. Protection of . . . Victims;
Article 33. Protection of Reporting Persons;
Article 34. Consequences of Acts of Corruption [“Citizen’s Arrest Warrant”]
Article 39. Cooperation Between National Authorities and the Private Sector.
NOTE:
United States Declaration No. (2) The United States declares that the provisions of the Convention (with
the exception of Articles 44 and 46) are non-self-executing. None of the provisions of the Convention
creates a private right of action.
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
Article 14.1. Denial of Equal Justice Under the Law
Article 15.1. Threatened False Arrest (As applied against U.S. Marshals Service)
Article 16. Denial of Equal Justice Under the Law
NOTE:
United States Declaration No. (1) “That the United States declares that the provisions of articles 1
through 27 of the Covenant are not self-executing.” The Senate declared in 138 Cong. Rec. S4781-84
(1992) that “the provisions of Article 1 through 27 of the Covenant are not self- executing”, and in S.
Exec. Rep., No. 102-23 (1992) stated that the declaration was meant to “clarify that the Covenant will not
create a private cause of action in U.S. Courts.”
UNIVERSAL DECLARATION OF HUMAN RIGHTS
Article 6. Denial of Equal Justice Under the Law (Treated without rights).
Article 7. Denial of Equal Justice Under the Law (Unrepresented Civil Plaintiff)
Article 8. Denial of Effective Remedy. Obstruction of Justice.
Article 9. Threatened False Arrest (As applied against U.S. Marshals Service)
355THE CLAIMS
PART 19.
PART 19. THE CLAIMS
Article 10. Wrongfully Denied a Jury Trial (Violation of my Seventh Amendment)

AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN
Article II. Denial of Equal Justice Under the Law
Article XVIII. Denial of a Fair Civil Trial (Seventh Amendment)
Article XXIV. Denial of Right to Petition for Redress (First Amndment)
Article XXVI. Denial of Due Process Rights (Fifth & Fourteenth Amendments)
The Federal Question here is whether the United States violates the U.S. Constitution by adding Reservations,
Understandings, and Declarations (RUDs) to human rights treaties that mirror constitutional rights of U.S. citizens
as individuals and thereby violating the human rights of U.S. citizens.
CLAIM No. (6): U.S. Marshals Service Committed Obstructions of Justice and
Conspiracies to Obstruct Justice
Claims Against William Jessup of the U.S. Marshals Service for Unlawfully Obstructing, Blocking, Ignoring, and
Threatening Arrest of the Plaintiff in His Lawful Exercise of Citizen’s Arrest of Federal Judges and Their Court
Clerks for Extortion of Exempted Filing Fees 28 U.S.C. § 1916 Under Color of Law 18 U.S.C. § 872 and Under
Color of Official Right (RICO) 18 U.S.C. § 1951(a) and § 1951(b)(2) of Judges of the DC Circuit and of the
Chief Justice of the U.S. Supreme Court and their Court Clerks as Fugitives from Justice
“In order to prove Hobbs Act extortion ‘under color of official right,’ ‘the [plaintiff / prosecutor] need only show
that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in
return for official acts.” United States v. Urban, 404 F.3d 754, 768 (3d Cir. 2005) (quoting Evans v. United
States, 504 U.S. 255, 268 (1992)).
The Seamen’s Suit law, 28 U.S.C. § 1916 provides:
“In all courts of the United States, seamen may institute and prosecute suits and appeals in their own names and
for their own benefit for wages or salvage or the enforcement of laws enacted for their health or safety without
prepaying fees or costs or furnishing security therefor.”
Appended to this Private Bill are annotated copies of Court Orders from the U.S. Court of Appeals for the
District of Columbia Circuit unlawfully compelling payment of that Court’s filing fee from Don Hamrick, who,
being a seaman, is exempt from paying their filing fee. Other documents including the August 30, 2007 letter
from the Krista Jaffe, Private First Class, Supreme Court of the United States Police, Threat Assessment Unit,
confirming the U.S. Supreme Court received $600 in filing fees from Don Hamrick. That letter it stated:
The purpose of this letter is to advise why you have not received reimbursement from the Supreme Court of the
United States for your filings.
In No. 03-145 (Hamrick v. Bush, et al.), you submitted the docket fee of $300.00. The petition for a writ of
certiorari was denied October 6, 2003. In No. 04-1150 (Hamrick v. Bush, et al.), the motion for leave to proceed
as a seamen was denied. The docket fee of $300.00 was also submitted in this case, and the petition for a writ of
certiorari is denied by this Court, the petitioner is not reimbursed the docket fee.
Why a letter from the U.S. Supreme Court Police Threat Assessment Unit? I submit that the U.S.
Supreme Court Police, U.S. Marshals Service, and other federal law enforcement agencies perceive “equal justice
under the law,” applying the law equally to judges and court clerks when evidence of felony activity exists against
federal judges and their court clerks, and presented under color of the right to make citizen’s arrest in accordance
with D.C. Code § 23-582 as criminal activity.
“We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do
anything it pleases, while the citizens may act only by permission; which is the stage of the darkest periods of
human history, the stage of rule by brute force.” Ayn Rand
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Because Don Hamrick visited the staff of Arkansas U.S. Senator Mark Pryor at the U.S. Senate seeking
congressional assistance in obtaining the return of the extorted under color of law $600 in filing fees from the
U.S. Supreme Court by way of a Citizen’s Arrest Warrant for the Chief Justice of the U.S. Supreme Court, John
G. Roberts and the Court Clerk.
The staff promptly called the U.S. Supreme Court Police for assistance. The Capitol Police and the U.S.
Marshals Service arrived with the U.S. Supreme Court Police as though Don Hamrick had committed a criminal
act. Although no arrests were made by anyone that day the incident triggered the U.S. Supreme Court Police to
investigate my claims of Extortion Under the Color of Law, 18 U.S.C.§ 872 of filing fees from a seaman, Don
Hamrick, in violation of the Seamen’s Suit law, 28 U.S.C. § 1916.
Krista Jaffe of the U.S. Supreme Court Police made no references to the Seamen’s Suit law and addressed
the matter in all absence to the allegation of Extortion Under Color of Law. The letter was essentially a coverup of
the extortion because if Krista Jaffe did mention Don Hamrick’s statutory right of exemption from the U.S.
Supreme Court’s filing fee the letter would, be necessity, trigger official investigations by the U.S. Supreme Court
Police, the U.S. Marshals Service, the FBI, and the U.S. Department of Justice and in strong probability would
cascadingly trigger congressional investigations by the House and Senate Judiciary Committees. So, Krista Jaffe
committed the criminal act of covering up the extortion.
Don Hamrick would latter file a Petition for Writ of Certiorari that would have all the incriminating Court
Orders from the DC Circuit as admissible evidence proving just cause for the self-styled Citizen’s Arrest
Warrants for the Chief Justice and the Court Clerk. The requisite Motion to Proceed as a Seaman accompanied the
Petition for Writ of Certiorari. Both were filed with the U.S. Supreme Court. The Motion to Proceed as a Seaman
was given “No. 07M24.”
357THE CLAIMS
PART 19.
PART 19. THE CLAIMS
The U.S. Supreme Court Docket Report for No. 07M24

No. 07M24
Title: Don Hamrick, Petitioner
v.
George W. Bush, President of the United States, et al.
Docketed: November 13, 2007
Lower Ct: United States Court of Appeals for the Eighth Circuit
Case Nos.: (07-2400)
~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~

Nov 5 2007 Motion of petitioner for leave to proceed as a seaman filed.
Nov 14 2007 DISTRIBUTED for Conference of November 30, 2007.
Dec 3 2007 Motion Denied.
Under the strict interpretation of the Rule of Law it is Don Hamrick’s understanding that if the law on
Extortion Under Color of Law, 18 U.S.C. § 872 and the Seamen’s Suit law 28 U.S.C.§ 1916 are clear, and his
case for Second Amendment rights of seamen under U.S. law and maritime law are construed to fall under the
safety clause of the Seamen’s Suit law then Don Hamrick, in fact and law, has the statutory right to proceed as a
seaman in any court of the United States. The Court Orders of the U.S. Court of Appeals for the District of
Columbia compelling Don Hamrick to pay that Court’s filing fee and the above denial of the Motion to Proceed
as a Seaman are unlawful administrative acts that are not protected by absolute immunity nor any other
immunities.
In the matter of the denied Motion to Proceed as a Seaman the Petition for Writ of Certiorari with its
evidence of extortion under color of law and the Citizen’s Arrest Warrants for the Chief Justice and the Court
Clerk it can now be substantiated that the Chief Justice and the Court Clerk have unlawfully resisted Citizen’s
Arrest, escaped Citizen’s Arrest, and by strict interpretation of the Rule of Law, they are now fugitives from
justice.
Revision to the Rules of the Supreme Court of the United States

July 17, 2007
http://www.supremecourtus.gov/ctrules/2007revisedrules.pdf
Rule 40.2 as of 2007
A seaman suing under 28 U.S.C. § 1916 may proceed without prepayment of fees
or costs or furnishing security therefor, but is not entitled to proceed under Rule
33.2, except as authorized by the Court on separate motion under Rule 39.
Revised Rule 40.2
A seaman suing under 28 U.S.C. § 1916 may proceed without prepayment of fees
or costs or furnishing security therefor and may file a motion for leave to proceed
on papers prepared as required by Rule 33.2. The motion shall ask leave to
proceed as a seaman and be accompanied by an affidavit or declaration setting
out the moving party’s seaman status. A copy of the motion shall precede and be
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PART 19. THE CLAIMS
attached to each copy of the petition for writ of certiorari or other substantive
document filed by the seaman.
[CLERK’S COMMENT: . . . THE REVISED RULE ALSO EXTENDS THE

EXEMPTION FROM THE PREPARATION OF BOOKLET-FORMAT
DOCUMENTS TO SEAMEN. IF THE REASON FOR THE STATUTORY
EXEMPTIONS IS TO REMOVE COST BARRIERS, THE EXEMPTION OF
THE PRINTING REQUIREMENT REMOVES THE BIGGEST COST
BARRIER TO FILING IN THIS COURT.]
CLAIM No. (7): Don Hamrick has a Right to a Private Bill Remedy Citing as
Precedence Wilke v. Robbins, 551 U.S. ____; 433 F. 3d 755; 1127 S.Ct. 2588 (June 25,
2007).
The U.S. Supreme Court’s opinion in Wilkie v. Robbins directs Don Hamrick by manner of precedence, to
seek relief from the U.S. Congress with a PRIVATE BILL as a remedy to patterns of wrongful behavior of U.S.
Government employees that has otherwise been denied by final agency action and denied Bivens and RICO Act
remedies by the federal courts. In Robbins, the Court said:
We think accordingly that any damages remedy for actions by Government employees who push too hard for the
Government’s benefit may come better, if at all, through legislation. “Congress is in a far better position than a
court to evaluate the impact of a new species of litigation” against those who act on the public’s behalf. Bush, 462
U. S., at 389. And Congress can tailor any remedy to the problem perceived, thus lessening the risk of raising a
tide of suits threatening legitimate initiative on the part of the Government’s employees. Ibid. (“[Congress] may
inform itself through factfinding procedures such as hearings that are not available to the courts”); cf. Harlow v.
Fitzgerald, 457 U. S. 800, 814 (1982) (recognizing “the danger that fear of being sued will dampen the ardor of
all but the most resolute, or the most irresponsible public officials, in the unflinching discharge of their duties”
(internal quotation marks and brackets omitted)).
Id. at 22 (last paragraph in II. C.)
In Don Hamrick’s case, as in Robbins, the federal courts and federal agencies have employed a systematic
pattern of wrongful and malicious behavior amounting to not only constitutional violations but also violations of
human rights of access to the courts, to a civil jury trial, and to a judicial remedy consisting “of an episodic series
of small events—events that in isolation may verge on the trivial. But—as the metaphor “death by a thousand
cuts” suggests—a series of small harms, in unison or in sequence, can add up to one very large harm indeed.”599
The combined effect of the Judicial Branch, the Executive Branch, and the Legislative Branch unilaterally
restricting available remedies has created unconstitutional conditions of a nihilistic form of Government
repugnant to our guaranteed Republican form of Government were remedies are all but abolished. This is, by
definition, tyranny most rampant.
This type of abuse of authority and abuse of office, in matters where firearms are included under the
umbrella of property rights (physical taking) and included under the Second Amendment (non-physical,
legislative takings) of the Fifth Amendment ought to be included in Title 18, Part I – Crimes, Chapter 65 –
Malicious Mischief; in Title 5, Government Organization and Employees, Part I, The Agencies Generally,
Chapter 7, Judicial Review, § 704 Actions Reviewable; in The Federal Tort Claims Act; in Title 28, Part I,
Organization of the Courts, Chapter 16 – Complaints Against Judges and Judicial Discipline.
599
Citing Laurence H. Tribe, DEATH BY A THOUSAND CUTS: CONSTITUTIONAL WRONGS WITHOUT REMEDIES A FTER WILKIE V.
ROBBINS [1127 S. CT. 2588 (2007)].
359THE CLAIMS
PART 19.
PART 19. THE CLAIMS
Justice Souter delivered the opinion to the Court in Wilkie v. Robbins 551 U.S. ____; 433 F. 3d 755; 1127
S.Ct. 2588 (June25, 2007)
Officials of the Bureau of Land Management stand accused of harassment and intimidation aimed at extracting an
easement across private property. The questions here are whether the landowner has either a private action for
damages of the sort recognized in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), or a claim
against the officials in their individual capacities under the Racketeer Influenced and Corrupt Organizations Act
(RICO), 18 U. S. C. §§1961-1968 (2000 ed. and Supp. IV). We hold that neither action is available.
Don Hamrick’s case survives Wilkie v Robbins closure of Bivens and RICO Act remedies because Don
Hamrick’s case is a literal case of extortion under color of law, 18 U.S.C. § 872 in violation of a seman’s statutory
right under 28 U.S.C. § 1916. Citing Wilkie v. Robbins:
But even assuming that defendants’ conduct would be “chargeable under State law and punishable by
imprisonment for more than one year,” 18 U. S. C. § 1961(1)(A), it cannot qualify as a predicate offense for a
RICO suit unless it is “capable of being generically classified as extortionate,”600 Scheidler, 537 U. S., at 409,
410; accord, United States v. Nardello, 393 U. S. 286, 296 (1969).
But yet, the U.S. Supreme Court denied Don Hamrick’s Motion to Proceed as a Seaman, (No. 07M24),
which accompanied his Petition for Writ of Cetiorari on the vary same category of a pattern of racketeering
activity under the RICO Act as Robbins claimed but with Hamrick’s additional Hobbs Act claim of extortion as a
predicate act for RICO liability. The strict interpretation of the Rule of Law dictates that Don Hamrick’s case
should have been heard by the U.S. Supreme Court and the denial of his Motion to Proceed as a Seaman non
sequitur 601 to the Rule of Law.
The U.S. Supreme Court affirms the public suspicion about formulating opinions to a pre-conceived
decision before weighing in all the evidence with the remark in Robbins
“The point here is not to deny that Government employees sometimes overreach, for of course they do, and they
may have done so here if all the allegations are true. The point is the reasonable fear that a general Bivens cure
would be worse than the disease.”
Ib. at 23. (last paragraph in Section II. B. 1.).
Congressional remedy for Don Hamrick is compelling.
CLAIM No. (8) Civil RICO Act Treble Damages in the amount of $14 Million
Because of the U.S. Coast Guard’s wrongful detention, harassment, and defamation of Don Hamrick for
exercising his First Amendment and Second Amendment rights and for involving the U.S. Coast Guard as a
Defendant in his federal litigation Don Hamrick and the 5-year ordeal of obstructive federal litigation by the
federal courts and the U.S. Department of Justice Don Hamrick seeks damages from the U.S. Congress in this
Private Bill.
Don Hamrick used a 2003 TSA wrongful detention case602 with a settlement of $50,000 for 3 hours of
wrongful detention to arrive at his $14 million amount. That mathematical equation worked out as follows:
$50,000 for 3 hours of wrongful detention ÷ 3 hours = $16,666.67/hour
$16,666.67 x 24 hours = $40,0000/day
600
Emphasis added.
601
Latin: “it does not follow” inference or conclusion that does not logically follow from the premises.
602
http://www.cnsnews.com/Nation/archive/200308/NAT20030801b.html (Still available as of December 14, 2007).
PART 19. THE 360

CLAIMS
PART 19. THE CLAIMS
$40,0000/day x 12 days of wrongful detention by U.S. Coast Guard = $4.8 million

$4.8 million x RICO Act Treble Damages = $14.4 Million
The U.S. Coast Guard in Washington, DC had Don Hamrick taken off a U.S. Government Pre-Position
vessel anchored off the coast of Lithuania and placed in a hotel for what turned out to be 12 days, and under
orders of the Coast Guard, was told to wait for the arrival of two civilian special agents of the U.S. Naval
Criminal Investigative Service to be criminally interviewed. The ship left the very next day for a 10-day exercise
with the U.S. Navy stranding Don Hamrick in Lithuania at company’s expense for the hotel bill and his own
expenses for meals and other miscellaneous expenses which were never reimbursed. To cause the Coast Guard’s
wrath Don Hamrick emailed a Second Amendment advocacy article in support of his application for the
endorsement. The article cover had a photo of someone aiming a handgun at the viewer point-blank with the
caption, “Who do you want holding this gun? The criminal? Or, the law-abiding citizen.” Don Hamrick had been
emailing the U.S. Coast Guard officer in Washington, DC on a recurring basis for 6 months prior to the emailing
of that Second Amendment article on May 25, 2002. The day before, on May 24, 2002, the U.S. Coast Guard
officer mailed a letter to Don Hamrick’s home address affirming the April 19, 2002 (coincidentally on Patriot’s
Day) Final Agency Action denying the endorsement. The Coast Guard did not email Don Hamrick about that
letter to which the Coast Guard officer knew full well Don Hamrick was aboard ship anchored off the coast of
Lithuania. The U.S. Coast Guard maliciously perceived this as a threat in retaliation for the May 24, 2002 letter
without taking into consideration that Don Hamrick was not aware of the May 25, 2002 Coast Guard letter.
The U.S. Congress statutorily waived sovereign immunity for U.S. seamen disputing Final Agency
Actions of the U.S. Coast Guard under 46 C.F.R. § 1.01–30(a) which states:
“Nothing in this chapter shall be construed to prohibit any party from seeking judicial review of any
Commandant’s decision . . .”
The U.S. Coast Guard retaliated against Don Hamrick for bringing suit against the Coast Guard in
addition to others, including the President of the United States, George W. Bush on a Petition for Writ of
Mandamus followed by five years of abusive of judicial procedures by the federal courts and the U.S. Department
of Justice. The most egregious of these is the U.S. Department of Justice claiming the United States did not waive
sovereign immunity from a suit such as this with the federal courts agreeing to that convenience in defiance of the
actual waiver of sovereign immunity under 46 C.F.R. § 1.01–30(a). That is only the tip of the troubles Don
Hamrick has experience with the federal courts and the U.S. Department of Justice.
CLAIM No. (9) $1 Million in Compensatory Damages
Don Hamrick’s pursuit of his Second Amendment right through the U.S. Coast Guard’s administrative
appeals process and through judicial review in the federal courts for an agonizing five years has not been without
adversity or injury. has incurred medical injury to his health in the form of high blood pressure causing the end of
his 19-year career as a seamen with the Seafarers International Union because by the act of
Because Don Hamrick was fired off a U.S. container ship in Europe for high blood pressure that
unexpected event knocked him out of his financial juggling act of putting his wages earned toward the expenses
of pursuing his Second Amendment rights in the federal courts has financially ended his membership with the
Seafarers International Union. Don Hamrick, at age 52, must start his life financially from scratch.
Because Don Hamrick devoted his life from 2002 to the present pursuing and defending the constitutional
rights of American seamen through the administrative process with the U.S. Coast Guard and through the judicial
review process in the federal courts on his own initiative without an attorney and faced insurmountable obstacles
Don Hamrick rightfully claims that the Commandant of the U.S. Coast Guard should provide honorary
recognition under 14 U.S.C. § 93(a)(22) for his significant contribution to the recognition of rights and duties of
U.S. Merchant Marine personnel as a vital component to the Common Defence clause of the Preamble to the U.S.
Constitution which consists of not only the National Defense but also the Common Defence of actual freedom for
361THE CLAIMS
PART 19.
PART 19. THE CLAIMS
the people of the United States through the Second Amendment right to keep and bear arms as an additional part
of compensatory damages..
PART 19. THE 362

CLAIMS
PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS)
Part 20. Statement of Proposed RICO Charges (Claims)

Part 19. The Claims
Part 25. Damages
PART 20. STATEMENT OF P363

ROPOSED RICO CHARGES (CLAIMS)
There is sufficient federal actions violating my First Amendment right to petition the Government for redress of
grievances, my Seventh Amendment right to a civil jury trial under the common law, my human right to a fair
trial under Article XVIII of the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN 1948, in this case to
sustain a cause of action under the following remedies:
(1) 42 U.S.C. § 1983 CIVIL ACTION FOR DEPRIVATION OF RIGHTS;
(2) U.S.C. § 1986 ACTION FOR NEGLECT TO PREVENT DEPRIVATION OF RIGHTS;
(3) 42 U.S.C § 1988 PROCEEDINGS IN VINDICATION OF CIVIL RIGHTS,
(4) 18 U.S.C. § 242 DEPRIVATION OF RIGHTS UNDER COLOR OF LAW; and,
(5) the RICO Act provision, 18 U.S.C. § 1964(c)
for civil remedies providing threefold the amount of damages originally sustained. This includes the issuance of
the petitioned WRIT OF MANDAMUS (or COURT ORDER), WRIT OF PROHIBITION, DECLARATORY
JUDGMENT, and INJUNCTIVE RELIEF in my favor.
Charge
Michael Chertoff Violating Second Amendment rights and duties of U.S. seafarers by neglect,
by overt acts, by failure to act, and/or by omission (42 U.S.C. § 1983, 1985,
1986) because the U.S. Department of Homeland Security has general
superintendence of the U.S. Merchant Marine (46 U.S.C. § 2103) and has not
made provisions for the Second Amendment rights and duties of U.S.
Seafarers in the Code of Federal Regulations or legislated such rights and
duties through the U.S. Congress.
Michael Prendergast Malicious Retaliation against the Plaintiff whether on his own initiative or at
the request of the U.S. Coast Guard, by issuing a Bar Notice twice, one on
September 17, 2004 and the second time on August 11, 2006, circumstances
described in Plaintiff’s Motion for Permanent Injunction.
Commandant, USCG Violating Second Amendment rights and duties of U.S. seafarers by neglect,
by overt acts, by failure to act, and/or by omission (42 U.S.C. § 1983, 1985,
1986) for allowing the continued state of no provisions in the Code of
Federal Regulations or the U.S. Code addressing the Second Amendment
rights and duties of U.S. Seafarers and their role in homeland security under
the U.S. Department of Homeland Security.
Judge Reggie B. Walton RICO Obstruction of Justice by Retaliating Against the Plaintiff/Victim 18
U.S.C. § 1513. Obstruction of Justice by Fraud and False Statements (18
U.S.C. § 455; 18 U.S.C. § 455(b)(1); and 18 U.S.C. § 1001). Violating my
right to due process by accepting my case when the U.S. District Court for
DC did not have jurisdiction (28 U.S.C. § 1402(a)(1)).
Judge Ellen Segal Huvelle RICO Obstruction of Justice by Fraud and False Statements (18 U.S.C. §
455; 18 U.S.C. § 455(b)(1); and 18 U.S.C. § 1001). RICO Obstruction of
Justice by Retaliating Against the Plaintiff/Victim 18 U.S.C. § 1513.
Violating my right to due process by accepting my case when the U.S.
District Court for DC did not have jurisdiction (28 U.S.C. § 1402(a)(1)).
Judge Elle Segal Huvelle in Plaintiff’s original cases, and Judge Reggie B.
Walton in Plaintiff’s Round-2 case employing the RICO Act, and the
counsels for the Government made false representations of the facts of the
364
Plaintiff’s cases or concealed material facts from the Plaintiff and/or that
counsels for the Government in league with the U.S. Department of Justice
made false representations or concealed material facts from the Court. The
Plaintiff presents the following chronology to support his claims:
OCTOBER 26, 2002. Judge Ellen Segal Huvelle stated in her Memorandum
dismissing Plaintiff’s case with prejudice that:
FALSE REPRESENTATION:
“Miller remains the most authoritative modern pronouncement on the
amendment’s meaning and its conclusion that the right to bear arms is
limited by the needs of an organized militia has subsequently been echoed by
the Supreme Court and followed in this and other circuits. See United States
v. Lewis, 445 U.S. 55, 65 n.8 (1980); Fraternal Order of Police v. United
States, 173 F.3d 898, 905-06 (D.C. Cir. 1999); accord United States v.
Haney, 264 F.3d 1161, 1165 (10th Cir. 2001) (holding that “a federal
criminal gun control law does not violate the Second Amendment unless it
impairs the state’s ability to maintain a well-regulated militia”).”
THE CONCEALED MATERIAL FACT:
The often-cited Miller case from 1939 is inconclusive, which is why gun-
rights and gun-control advocates both claim it supports their position. The
record shows that the Court actually remanded this case back to the
lower court for retrial and a hearing on the evidence, since there was no
evidence presented. Because Miller had been murdered by that time and
his co-defendant had taken a plea agreement, no retrial or evidentiary
hearing was ever held. 603
On the basis of this particular Concealed Material Fact the Plaintiff has
fulfilled the requirement for Equitable Estoppel against the U.S.
Government.
Dennis Barghaan Obstruction of Justice (18 U.S.C. § 1505). Withholding evidence produced
by the U.S. Department of Justice that vindicated my case for the Second
Amendment as an individual right.
OCTOBER 21, 2003. I filed my RICO Act case for the Second Amendment
at the U.S. District Court for DC (No. 03-2160). Alan Burch, Assistant U.S.
Attorney from the U.S. Attorney’s Office in Washington, DC (555 4TH ST.,
NW).
JUNE 2, 2004. Almost 7.5 months since I filed my case Alan Burch is
“Terminated” (word used in the Docket Report) and was replaced by Dennis
Barghaan, “Special Attorney” from the U.S. Attorney’s Office for the
Western District of Virginia in Alexandria under 28 U.S.C. 515 (out of
jurisdiction U.S. Attorney). The Plaintiff alleges that the switch of defense
attorneys has a direct bearing on the impending internal release of the Justice
Department’s Memorandum Opinion titled, Whether the Second Amendment
Secures an Individual Right on August 24, 2004, just 83 days away.
603
http://w 12 ww.gunlaws.com/SCGC-News.html

Something had to be done to prevent the Plaintiff from using that

Memorandum Opinion as evidence in the District Court. So, the Justice
Department brounght in a hatchet man to expedite the dismissal of Plaintiff’s
case before the expected release date of the Memorandum Opinion. This
implies a conspiracy against the due process rights of the Plaintiff in
violation of 18 U.S.C. § 241. Plaintiff alleges that the sole purpose for the
switch in defense attorneys is to effectively deny the Plaintiff his right to use
the Justice Department’s upcoming Memorandum Opinion on the Second
Amendment as evidence supporting his case.
JUNE 21, 2004. Dennis Barghaan filed the Motion to Dismiss just 19 days
after replacing Alan Burch. Plaintiff notes that the Department of Justice was
going to internally release their Memorandum Opinion on August 24, 2004
which is just 64 days from June 21. Plaintiff has 60 days to respond to the
Motion to Dismiss. If Dennis Barghaan had prior knowledge of the
Department of Justice’s Memorandum Opinion it is the Appellant’s belief
that he had a duty to inform the court of the impending release of this
Memorandum Opinion because it had a direct impact upon the case at hand.
If Dennis Barghaan did not have prior knowledge then the duty fell upon the
Department of Justice to inform Dennis Barghaan of the impending release
of the Memorandum Opinion because it was and is admissible evidence
affecting the integrity of the governments argument against the
Plaintiff/Appellant. The fact that the existence of the Memorandum Opinion
was never made known to the District Court or to the DC Circuit or even to
the Plaintiff, that the Plaintiff learned of the Memorandum Opinion through
his Internet news links implies a deliberate attempt to subvert justice. The
Appellant alleges that the timing of Dennis Barghaan’s Motion to Dismiss
occurring just 64 days before the internal release of the Memorandum
implies prior knowledge calculated to unjustly defeat Appellant’s case at the
District Court. The Appellant further alleges that Dennis Barghaan’s
obstructive tactics are meant to harass or to cause unnecessary delay or
needless increase in the cost of litigation and Dennis Barghaan’s denials of
factual contentions are not warranted on the evidence or, if specifically so
identified, are not reasonably based on a lack of information or belief
because the Appellant has now identified the Memorandum Opinion as
admissible evidence and there can be no lack of information on the Second
Amendment as an individual right because it was the duty of the Justice
Department to inform Dennis Barghaan of the Memorandum Opinion. That
fact that this was not done implies an intentional violation of Rule 11(b)(1)
and Rule 11(b)(4) of the Federal Rules of Evidence.
JULY 12, 2004. The Justice Department issues a press release stating that
Paul D. Clement was will serve as acting Solicitor General.
JULY 15, 2004. The judge, Reggie B. Walton, denies my Motion for Change
of Venue.
AUGUST 10, 2004. My Objection to Motion to Dismiss filed out of time
(because Kinkos lost my emailed Objection due to a virus attack. But Dennis
Barghaan in a footnote in his rebuttal did not oppose my filing out of time).
AUGUST 16, 2004. Dennis Barghaan files his rebuttal to my objection.
366
AUGUST 16, 2004. Wasting no time Judge Reggie B. Walton grants Motion
to Dismiss just 8 days before the internal release of the Justice Department’s
Memorandum Opinion. A job well done by Dennis Barghaan. Does Judge
Walton actually read these motions?
AUGUST 24, 2004. RELEVANT EVIDENCE CONCEALED FROM
THE COURT & PLAINTIFF. 604 U.S. Department of Justice internally
published their Memorandum Opinion for the Attorney General John
Ashcroft titled, Whether the Second Amendment Secures an Individual
Right. The Department of Justice did not release the Memorandum Opinion
to the public until mid-December 2004, for obvious political gain until well
after the presidential election in November. That Memorandum Opinion is
documentary evidence, a government record under 28 U.S.C. § 1733 and is
admissible as evidence because under Rule 704 of the Federal Rules of
Evidence the Memorandum Opinion becomes an Opinion on an Ultimate
Issue because it embraces an ultimate issue to be decided by the trier of fact.
[Rule 406 Habit/Routine Practice]
AUGUST 27, 2004. Plaintiff filed Notice of Appeal.
AUGUST 27, 2004. On this date President Bush issues Executive Order
13353 ESTABLISHING THE PRESIDENT’S BOARD ON
SAFEGUARDING AMERICANS’ CIVIL LIBERTIES. The Deputy
Attorney General James Comey is appointed as Chairman. However, there
may exist a conflict of interest with this appointment. In the May 21, 2001
edition of U.S. News & World Report then U.S. Attorney James Comey is
reported to have said “To us gun possession itself is a crime of violence” in
discussing Virginia’s Project Exile program. James Comey’s position against
the Second Amendment as an individual right back then does not exactly
square with his appointment to the President’s Board on Safeguarding
American Civil Liberties. At best it compares more accurately to a Trojan
Horse tactic for an undisclosed agenda.
SEPTEMBER 9, 2004. Appellant filed his Appellant’s Brief at the DC
Circuit.
SEPTEMBER 14, 2004. Appellant filed MOTION FOR PERMISSIVE
INTERVENTION BY THE PRESIDENT’S BOARD ON
SAFEGUARDING AMERICANS’ CIVIL LIBERTIES AND OTHER
THIRD PARTIE S & MOTION FOR APPEAL CONFERENCE. The DC
Circuit has not yet ruled on this motion or any motion for judicial notice of
adjudicative facts or presumptions in general that the Plaintiff has filed. Copy
of this motion was FedEx’d to the Deputy Attorney General James Comey as
Chairman of that civil liberties board. No response has yet been received.
This is not a very good track record for the Government on protecting the
civil liberties of the American people when the federal courts and the
Executive Branch treats a pro se Plaintiff in such a manner.605
604
Plaintiff’s Emphasis. “THE SMALL CAPS” segment 13 was not part of the email but was included herein for
clarification of its importance to Plaintiff’s allegation of misconduct.
605
Plaintiff’s Note: This entry was not in the original email. It is 14 provided herein for clarification on the apparent
reluctance on the DC Circuit to rule on motions by the Plaintiff when the judicial history of Plaintiff’s cases continues the

MID-DECEMBER 2004: The U.S. Department of Justice Memorandum

Opinion for the Attorney General titled, WHETHER THE SECOND
AMENDMENT SECURES AN INDIVIDUAL RIGHT, August 24, 2005,
emerges in the public arena.
The Memorandum Opinion concludes that:
For the foregoing reasons, we conclude that the Second Amendment secures
an individual right to keep and to bear arms. Current case law leaves open
and unsettled the question of whose right is secured by the Amendment.
Although we do not address the scope of the right, our examination of the
original meaning of the Amendment provides extensive reasons to
conclude that the Second Amendment secures an individual right, and
no persuasive basis for either the collective-right or quasi-collective-
right views. The text of the Amendment’s operative clause, setting out a
“right of the people to keep and bear Arms,” is clear and is reinforced by the
Constitution’s structure. The Amendment’s prefatory clause, properly
understood, is fully consistent with this interpretation. The broader history of
the Anglo-American right of individuals to have and use arms, from
England’s Revolution of 1688-1689 to the ratification of the Second
Amendment a hundred years later, leads to the same conclusion. Finally, the
first hundred years of interpretations of the Amendment, and especially the
commentaries and case law in the pre-Civil War period closest to the
Amendment’s ratification, confirm what the text and history of the Second
Amendment require.606
OBSERVATION FROM TIMELINE: Alan Burch was almost 7.5 months (225 days) as defense counsel and
hadn’t filed the Motion to Dismiss. He was under Ted Olson as Solicitor General. Dennis Barghaan took a fast 2
months, 3 weeks, 4 days (75 days total) to get Judge Reggie B. Walton to dismissed the Plaintiff’s case with
prejudice. It is the Appellant’s understanding that if evidence does not get admitted into the record at the District
Court then that evidence cannot be submitted at the Appellant level. However, the ethical conduct of Dennis
Barghaan and the Justice Department can be submitted as evidence of a conspiracy to subvert justice and for other
allegations which can lead the DC Circuit in overturning the District Courts dismissal with prejudice.
A. RICO charges: U.S. Attorney’s Manual, Title 4 Civil Resource Manual § 109
It is unlawful for anyone employed by or associated with any enterprise engaged in, or the activities of which
affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such
enterprise’s affairs through a pattern of racketeering activity or collection of unlawful debt. 18 U.S.C.A. § 1962(c)
(West 1984). The Racketeer Influenced and Corrupt Organization Act (RICO) was passed by Congress with the
declared purpose of seeking to eradicate organized crime in the United States. Russello v. United States, 464 U.S.
16, 26-27, 104 S. Ct. 296, 302-303, 78 L. Ed. 2d 17 (1983); United States v. Turkette, 452 U.S. 576, 589, 101 S.
Ct. 2524, 2532, 69 L. Ed. 2d 246 (1981). A violation of Section 1962(c), requires (1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496, 105 S. Ct.
3275, 3285, 87 L. Ed. 2d 346 (1985).
A more expansive view holds that in order to be found guilty of violating the RICO statute, the government must
prove beyond a reasonable doubt: (1) that an enterprise existed; (2) that the enterprise affected interstate
pattern of the federal courts favor granting motions from the Government by deny motions from the Plaintiff. This implies a
judicial bias against the Plaintiff.
606
http://www.usdoj.gov/olc/secondamendment2.htm.
368
commerce; (3) that the defendant was associated with or employed by the enterprise; (4) that the defendant
engaged in a pattern of racketeering activity; and (5) that the defendant conducted or participated in the conduct of
the enterprise through that pattern of racketeering activity through the commission of at least two acts of
racketeering activity as set forth in the indictment. United States v. Phillips, 664 F. 2d 971, 1011 (5th Cir. Unit B
Dec. 1981), cert. denied, 457 U.S. 1136, 102 S. Ct. 1265, 73 L. Ed. 2d 1354 (1982).
An “enterprise” is defined as including any individual, partnership, corporation, association, or other legal entity,
and any union or group of individuals associated in fact although not a legal entity. 18 U.S.C.A. § 1961(4) (West
1984). Many courts have noted that Congress mandated a liberal construction of the RICO statute in order to
effectuate its remedial purposes by holding that the term “enterprise” has an expansive statutory definition. United
States v. Delano, 825 F. Supp. 534, 538-39 (W.D.N.Y. 1993), aff’d in part, rev’d in part, 55 F. 3d 720 (2d Cir.
1995), cases cited therein.
“Pattern of racketeering activity” requires at least two acts of racketeering activity committed within ten years of
each other. 18 U.S.C.A. § 1961(5) (West 1984). Congress intended a fairly flexible concept of a pattern in mind.
H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 239, 109 S. Ct. 2893, 2900, 106 L. Ed. 2d 195 (1989). The
government must show that the racketeering predicates are related, and that they amount to or pose a threat of
continued criminal activity. Id. Racketeering predicates are related if they have the same or similar purposes,
results, participants, victims, or methods of commission, or otherwise are interrelated by distinguishing
characteristics and are not isolated events. Id. at 240, 109 S. Ct. at 2901; Ticor Title Ins. Co. v. Florida, 937 F. 2d
447, 450 (9th Cir. 1991). Furthermore, the degree in which these factors establish a pattern may depend on the
degree of proximity, or any similarities in goals or methodology, or the number of repetitions. United States v.
Indelicato, 865 F. 2d 1370, 1382 (2d Cir.), cert. denied, 493 U.S. 811, 110 S. Ct. 56, 107 L. Ed. 2d 24 (1989).
Continuity refers either to a closed period of repeated conduct, or to past conduct that by its nature projects into
the future with a threat of repetition. H.J., Inc., 492 U.S. at 241-42, 109 S. Ct. at 2902. A party alleging a RICO
violation may demonstrate continuity over a closed period by proving a series of related predicates extending over
a substantial period of time. Id. Predicate acts extending over a few weeks or months and threatening no future
criminal conduct do not satisfy this requirement as Congress was concerned with RICO in long-term criminal
conduct. Id.
As to the continuity requirement, the government may show that the racketeering acts found to have been
committed pose a threat of continued racketeering activity by proving: (1) that the acts are part of a long-term
association that exists for criminal purposes, or (2) that they are a regular way of conducting the defendant’s
ongoing legitimate business, or (3) that they are a regular way of conducting or participating in an ongoing and
legitimate enterprise. Id.
When a RICO action is brought before continuity can be established, then liability depends on whether the threat
of continuity is demonstrated. Id. However, Judge Scalia wrote in his concurring opinion that it would be absurd
to say that “at least a few months of racketeering activity. . .is generally for free, as far as RICO is concerned.” Id.
at 254, 109 S. Ct. at 2908. Therefore, if the predicate acts involve a distinct threat of long-term racketeering
activity, either implicit or explicit, a RICO pattern is established. Id. at 242, 109 S. Ct. at 2902.
The RICO statute expressly states that it is unlawful for any person to conspire to violate any of the subsections of
18 U.S.C.A. § 1962. The government need not prove that the defendant agreed with every other conspirator, knew
all of the other conspirators, or had full knowledge of all the details of the conspiracy. Delano, 825 F. Supp. at
542. All that must be shown is: (1) that the defendant agreed to commit the substantive racketeering offense
through agreeing to participate in two racketeering acts; (2) that he knew the general status of the conspiracy; and
(3) that he knew the conspiracy extended beyond his individual role. United States v. Rastelli, 870 F. 2d 822, 828
(2d Cir.), cert. denied, 493 U.S. 982, 110 S. Ct. 515, 107 L. Ed. 2d 516 (1989).

B. RICO-related Charges: U.S. Attorney’s Manual, Title 9 Criminal Resource

Manual § 110
A major focus in curbing gang violence should be the consideration of prosecuting the gangs for the RICO-related
charges of Violent Acts in Aid of Racketeering Activity under 18 U.S.C.A. § 1959. Originally designated 18
U.S.C.A. § 1952B, it was redesignated as 18 U.S.C.A. § 1959 in 1988. This statute can be a key law in
prosecuting gang activity. The pertinent portion of 18 U.S.C.A. § 1959 provides:
Whoever . . . for the purpose of gaining entrance to or maintaining or increasing position in an enterprise engaged
in racketeering activity, murders, kidnaps, maims, assaults with a dangerous weapon, commits assault resulting in
serious bodily injury upon, or threatens to commit a crime of violence against any individual in violation of the
laws of any State or the United States, or attempts or conspires so to do, shall be punished . . . 18 U.S.C.A. § 1959
(West Supp. 1995).
“Enterprise” is defined under 18 U.S.C.A. § 1959(b)(2) (West Supp. 1995), to include “. . . any . . . group of
individuals associated in fact although not a legal entity, which is engaged in, or the activities which affect,
interstate or foreign commerce.”
“Racketeering activity” is described in 18 U.S.C.A. § 1959(b)(1) as having the same meaning as Section 1961
under the RICO chapter found at 18 U.S.C.A. § 1961. Under that section, “racketeering activity” includes
kidnapping, robbery, and dealing in narcotic drugs, which are chargeable under state law and punishable by
imprisonment for more than one year.
Proving these elements can be difficult but not impossible. “Enterprise” can be proven with evidence that the
gang’s activities concentrated around cocaine, an item grown in South America and which must be moved in
interstate and foreign commerce to be present in the United States. It can be argued that the gang’s receipt and use
of firearms which were manufactured in other states, to commit their crimes, also adds to proof of the interstate or
foreign commerce nexus which must be shown when proving an enterprise. Evidence shows that the participation
by the gang members in crimes are required by of them to either become members, or continue or increase their
membership in the gang. This is another element required to be proven under Section 1959.
IMPORTANT NOTE: Prosecutions under RICO and RICO related statutes must be approved by the Criminal
Division of the Department of Justice. United States Attorneys’ Manual, Title 9-110.101. The Department of
Justice lawyers should prove immeasurably helpful in their advice and guidance in preparing for prosecution
under this complex statute.
C. Extortion: Hobbs Act – Generally: U.S. Attorney’s Manual, Title 9 Criminal
Resource Manual § 2402
The Hobbs Act prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce “in any
way or degree.” Section 1951 also proscribes conspiracy to commit robbery or extortion without reference to the
conspiracy statute at 18 U.S.C. § 371. The statutory prohibition of “physical violence to any person or property in
furtherance of a plan or purpose to do anything in violation of this section” is confined to violence for the purpose
of committing robbery or extortion. United States v. Franks, 511 F.2d 25, 31 (6th Cir. 1975) (rejecting the view
that the statute proscribes all physical violence obstructing, delaying, or affecting commerce as contrasted with
violence designed to culminate in robbery or extortion).
The extortion offense reaches both the obtaining of property “under color of official right” by public officials and
the obtaining of property by private actors with the victim’s “consent, induced by wrongful use of actual or
threatened force, violence, or fear,” including fear of economic harm. See this Manual at 2405 and Evans v.
United States, 504 U.S. 255, 265, 112 S.Ct. 1181, 1188 (1992) (only a private individual’s extortion of property
by the wrongful use of force, violence, or fear requires that the victim’s consent be induced by these means;
extortion of property under color of official right does not require that a public official take steps to induce the
extortionate payment).
370
Although the Hobbs Act was enacted in 1946 to combat racketeering in labor-management disputes, the extortion
statute is frequently used in connection with cases involving public corruption, commercial disputes, and
corruption directed at members of labor unions. Proof of “racketeering” as an element of Hobbs Act offenses is
not required. United States v. Culbert, 435 U.S. 371, 98 S.Ct. 1112 (1978). However, a violation of the Hobbs Act
may be part of a “pattern of racketeering activity” for purposes of prosecution under the Racketeer Influenced and
Corrupt Organizations (RICO) statute (18 U.S.C. § 1961, et seq.).
D. Extortion By Force or Fear – U.S. Attorney’s Manual, Title 9 Criminal Resource
Manual § 2403
In order to prove a violation of Hobbs Act extortion by the wrongful use of actual or threatened force, violence, or
fear, the following questions must be answered affirmatively:
(1). Did the defendant induce or attempt to induce the victim to give up
property or property rights?
“Property” has been held to be “any valuable right considered as a source of wealth.” United States v. Tropiano,
418 F.2d 1069, 1075 (2d Cir. 1969) (the right to solicit garbage collection customers). “Property” includes the
right of commercial victims to conduct their businesses. See United States v. Zemek, 634 F.3d 1159, 1174 (9th
Cir. 1980) (the right to make business decisions and to solicit business free from wrongful coercion) and cited
cases). It also includes the statutory right of union members to democratically participate in union affairs. See
United States v. Debs, 949 F.2d 199, 201 (6th Cir. 1991) (the right to support candidates for union office); United
States v. Teamsters Local 560, 550 F. Supp. 511, 513-14 (D.N.J. 1982), aff’d, 780 F.2d 267 (3rd Cir. 1985)
(rights guaranteed union members by the Labor-Management Reporting and Disclosure Act, 29 U.S.C. § 411).
(2). Did the defendant use or attempt to use the victim’s reasonable fear of
physical injury or economic harm in order to induce the victim’s consent to
give up property?
A defendant need not create the fear of injury or harm which he exploits to induce the victim to give up property.
See United States v. Duhon, 565 F.2d 345, 349 and 351 (5th Cir. 1978) (offer by employer to pay union official
for labor peace held to be “simply planning for inevitable demand for money” by the union official under the
circumstances); United States v. Gigante, 39 F.3d 42, 49 (2d Cir. 1994), vacated on other grounds and superseded
in part on denial of reh’g, 94 F.3d 53 (2d Cir. 1996) (causing some businesses to refuse operations with the victim
sufficiently induced the victim’s consent to give up property, consisting of a right to contract freely with other
businesses, as long as there were other businesses beyond defendants’ control with whom the victim could do
business).
Moreover, attempted extortion may include an attempt to instill fear in a federal agent conducting a covert
investigation or a defendant “made of unusually stern stuff.” See United States v. Gambino, 566 F.2d 414, 419
(2d Cir. 1977) (argument that FBI agent pretending to be extortion victim could not be placed in fear is not a
defense to attempted extortion of the agent); see also United States v. Ward, 914 F.2d 1340, 1347 (9th Cir. 1990)
(an attempt to instill fear included a demand for money from a victim who knew that the defendant was only
pretending to be a federal undercover agent when he threatened the victim with prosecution unless money was
paid).
However, the payment of money in response to a commercial bribe solicitation, that is, under circumstances
where the defendant does not threaten the victim with economic harm, but only offers economic assistance in
return for payment to which the defendant is not entitled, is not sufficient to prove extortion by fear of economic
loss. United States v. Capo, 817 F.2d 947, 951-52 (2d Cir. 1987) (solicitation of money from job applicants by
persons having no decisionmaking authority in return for favorable influence with employment counselors was
insufficient evidence of inducement by fear); but see United States v. Blanton, 793 F.2d 1553, 1558 (11th Cir.
1986) (inducement by fear was proven by the defendant’s solicitation of a labor consulting contract, to help

employer stop outside union organizing, when the solicitation was accompanied by defendant’s threat to form
another union and begin organizing employees if the consulting contract was not accepted).
(3). Did the defendant’s conduct actually or potentially obstruct, delay, or
affect interstate or foreign commerce in any (realistic) way or degree?
The Hobbs Act regulates extortion and robbery, which Congress has determined have a substantial effect on
interstate and foreign commerce by reason of their repetition and aggregate effect on the economy. Therefore, the
proscribed offenses fall within the category of crimes based on the Commerce Clause whose “de minimis
character of individual instances arising under [the] statute is of no consequence.” United States v. Bolton, 68
F.3d 396, 399 (10th Cir. 1995) (upholding Hobbs Act convictions for robberies whose proceeds the defendant
would have used to purchase products in interstate commerce), quoting, United States v. Lopez, --- U.S. ---, 115
S.Ct. 1624, 1630 (1995); material in brackets added; see also United States v. Atcheson, 94 F.3d 1237, 1243 (9th
Cir. 1996) (robbery of out-of-state credit and ATM cards); United States v. Farmer, 73 F.3d 836, 843 (8th Cir.
1996) (robbery of commercial business); United States v. Stillo, 57 F.3d 553, 558 n.2 (7th Cir. 1995).
Hobbs Act violations may be supported by proof of a direct effect on the channels or instrumentalities of
interstate or foreign commerce, as for example, where the threatened conduct would result in the interruption of
the interstate movement of goods or labor. See United States v. Taylor, 92 F.3d 1313, 1333 (2d Cir. 1996)
(extortion of money, unwanted labor, and subcontracts on construction projects by threatened shutdowns and
labor unrest); United States v. Hanigan, 681 F.2d 1127, 1130-31 (9th Cir. 1982) (robbery of three undocumented
alien farm workers while they were traveling from Mexico to the United States in search of work); United States
v. Capo, 791 F.2d 1054, 1067-68 (2d Cir. 1986), vacated on other grounds, 817 F.2d 947 (2d Cir. 1987) (scheme
to extort local job applicants had a potential effect on interstate applicants who might otherwise be hired).
Indirect effects on such commerce are also sufficient, as for example, where the obtaining of property and
resulting depletion of the victim’s assets decreases the victim’s ability to make future expenditures for items in
interstate commerce.
Taylor, supra (depletion of contractors’ assets). However, the Seventh Circuit has distinguished Hobbs
Act cases involving depletion of a business’ assets from those involving the depletion of an individual employee’s
assets which, the court has ruled, are not as likely to satisfy the jurisdictional requirement of the Hobbs Act.
United States v. Mattson, 671 F.2d 1020 (7th Cir. 1982); United States v. Boulahanis, 677 F.2d 586, 590 (7th Cir.
1982). Other circuits have agreed where the extortion or robbery of an individual has only an “attenuated” or
“speculative” effect on some entity or group of individuals engaged in interstate commerce thereby diminishing
the “realistic probability” that such commerce will be affected. See United States v. Collins, 40 F.3d 95, 100 (5th
Cir. 1994) (conviction for robbery of a computer company employee reversed on grounds that theft of victim’s
automobile with cellular phone had an insufficient effect on his employer’s business); United States v. Quigley,
53 F.3d 909 (8th Cir. 1995) (upholding the acquittal, following guilty verdict, of defendants who beat and robbed
two individuals in route to buy beer at a liquor store).
(4). Was the defendant’s actual or threatened use of force, violence or fear
wrongful?
Generally, the extortionate obtaining of property by the wrongful use of actual or threatened force or violence in a
commercial dispute requires proof of a defendant’s intent to induce the victim to give up property. No additional
proof is required that the defendant was not entitled to such property or that he knew he had no claim to the
property which he sought to obtain. See United States v. Agnes, 581 F.Supp. 462 (E.D. Pa. 1984), aff’d, 753 F.2d
293, 297-300 (3d Cir. 1985) (rejecting claim of right defense to defendant’s use of violence to withdraw property
from a business partnership).
However, the Supreme Court has recognized a claim-of-right defense to Hobbs Act extortion in labor-
management disputes.
372
In a 1973 decision, the Court reversed the conviction of union-member defendants who had used violence
against an employer’s property, during an otherwise legitimate economic labor strike, in order “to achieve
legitimate union objectives, such as higher wages in return for genuine services which the employer seeks.”
United States v. Enmons, 410 U.S. 396, 400 (1973). The Court reasoned that the legislative history of the Hobbs
Act disclosed that Congress had been concerned with attempts by union officials to extort wages for unwanted
and fictitious labor, to which employees were not entitled, as contrasted with the policing of legitimate labor
strikes in general.
Therefore, the Court concluded that the union members’ use of violence during the strike was not “wrongful” for
purposes of Hobbs Act extortion. The Supreme Court also made a broadly worded statement that
“wrongful” has meaning in the Act only if it limits the statute’s coverage to those instances where the obtaining of
the property would itself be “wrongful” because the alleged extortionist has no lawful claim to that property.
Id.
In its labor-management context, the claim-of-right defense is not applicable where defendants do not have
legitimate labor objectives. The labor claim-of-right defense has been held not to excuse the following kinds of
coercive demands:
! payoffs to union officials and employee representatives in violation of the federal labor laws (29 U.S.C. § 186);
United States v. Quinn, 514 F.2d 1250, 1259 (5th Cir. 1975) (solicitation of church donation in return for removal
of labor pickets); United States v. Gibson, 726 F.2d 869 (1st Cir. 1984) (request for payoff to remove pickets);
! sham fees which labor unions are not entitled to collect under the labor laws; United States v. Wilford, 710
F.2d 439, 444 (8th Cir. 1983) (economic coercion of dues and initiation fees from truck drivers who were self-
employed or who were told they would receive no member benefits);
! employee payments which violate existing labor contracts; United States v. Russo, 708 F.2d 209, 215 (6th Cir.
1983) (under threat of job loss, employees’ payment of health and pension contributions which labor contract
required employer to pay);
! employer payments to labor unions which are not included in existing labor contracts; United States v. Traitz,
871 F.2d 368, 381-82 (3d Cir. 1989) (violence used to collect fines on employers for non-compliance with union
rules which were not made part of the labor contract);
! demands that a non-union employer cease business operations during a sham union organizing campaign;
United States v. Edgar Jones, 766 F.2d 994, 1002-03 (6th Cir. 1985) (violent campaign by union officials and
union-represented competitor to drive the non-union employer out of business under the pretext of persuading
employees to join the union and enforce area wage standards);
! employer payments for labor consulting to establish a bogus “sweetheart union” and thereby discourage
legitimate organizing by other unions; United States v. Blanton, 793 F.2d 1553 (11th Cir. 1986).
! construction contractors’ payments of money, wages for unwanted and superfluous employees, and
subcontracts with employee representatives which were unrelated to the hiring of employees. United States v.
Taylor, 92 F.3d 1313, 1319 and 1333 (2d Cir. 1996) (extortion of contractors by leaders of minority labor
coalitions).
Several courts of appeals have limited the claim-of-right defense to the context of labor-management disputes by
refusing to extend the defense to extortionate violence and economic fear in commercial disputes and public
corruption cases. United States v. Debs, 949 F.2d 199, 201 (6th Cir. 1991) (violence against union members in
retaliation for support of opposition candidate for union office); United States v. Castor, 937 F.2d 293, 299 (7th
Cir. 1991) (violent threats to obtain consent to enter into business arrangement); United States v. Zappola, 677
F.2d 264, 269 (2d Cir. 1982) (beating of debtor to coerce repayment of purported debt); United States v. Porcaro,
648 F.2d 753, 760 (1st Cir. 1981) (franchisor’s violence to compel franchisee to vacate premises); United States
v. French, 628 F.2d 1069, 1075 (8th Cir.1980) (public official’s kickbacks on bail bond settlements); United

States v. Cerilli, 603 F.2d 415, 419 (3d Cir. 1979) (solicitation of political contributions); United States v.
Warledo, 557 F.2d 721, 729-730 (10th Cir. 1977) (violence by Native Americans to compel railroad to pay
reparations for tribal lands).
However, other courts have held that the extortionate use of fear of economic harm in commercial disputes is
subject to a claim-of-right defense on the grounds that, unlike violence, the use of economic fear is not inherently
“wrongful.” See United States v. Kattar, 840 F.2d 118, 123-24 (1st Cir. 1988) (threat to expose church to
litigation unless purported “award” for information was paid to defendant was not a legitimate use of economic
fear where the information was false and defamatory); United States v. Clemente, 640 F.2d 1069, 1077-78 (2d
Cir. 1981) (extortion of bogus consulting payments from subcontractor coerced by the threat of labor unrest
against the subcontractor’s principal).
Where the claim-of-right defense applies, courts have generally held that the Government must prove that the
defendant knew that he was not entitled to receive the property which he sought to obtain. United States v.
Arambasich, 597 F.2d 609, 611 (7th Cir. 1979) (demand by labor union official on employer that the official and
others be hired for no-show employment using threat of labor unrest); United States v. Sturm, 870 F.2d 769, 774
(1st Cir. 1989) (in prosecution involving debtor’s withholding of property from a creditor-bank, “the term
‘wrongful’ requires the government to prove, in cases involving extortion based on economic fear, that the
defendant knew that he was not legally entitled to the property that he received.”); United States v. Dischner, 974
F.2d 1502, 1515 (9th Cir. 1992) (failure to instruct that defendant must know he had no entitlement to property he
sought by use of economic fear did not rise to the level of plain error; but “knowledge of the extortion
encompasses knowledge of the lack of lawful claim to the property.”).
E. Extortion Under Color of Official Right - Hobbs Act USAM 9 Criminal.R.M. §
2404
In addition to the “wrongful use of actual or threatened force, violence, or fear,” the Hobbs Act (18 U.S.C. §
1951) defines extortion in terms of “the obtaining of property from another, with his consent . . . under color of
official right.” In fact, the under color of official right aspect of the Hobbs Act derives from the common law
meaning of extortion. As the Supreme Court explained in a recent opinion regarding the Hobbs Act, “[a]t
common law, extortion was an offense committed by a public official who took ‘by color of his office’ money
that was not due to him for the performance of his official duties. . . . Extortion by the public official was the
rough equivalent of what we would now describe as ‘taking a bribe.’” Evans v. United States, 504 U.S. 255
(1992).
In order to show a violation of the Hobbs Act under this provision, the Supreme Court recently held that “the
Government need only show that a public official has obtained a payment to which he was not entitled, knowing
that the payment was made in return for official acts.” While the definition of extortion under the Hobbs Act with
regard to force, violence or fear requires the obtaining of property from another with his consent induced by these
means, the under color of official right provision does not require that the public official take steps to induce the
extortionate payment: It can be said that “the coercive element is provided by the public office itself.” Evans v.
United States, 504 U.S. 255 (1992); see United States v. Margiotta, 688 F.2d 108, 130 (2d Cir. 1982), cert.
denied, 461 U.S. 913 (1983) (“[t]he public officer’s misuse of his office supplies the necessary element of
coercion . . . .”).
This theory of extortion under color of official right has resulted in the successful prosecution of a wide range of
officials, including those serving on the federal, state and local levels. For example: United States v. O’Connor,
910 F.2d 1266 (7th Cir. 1990), cert. denied, 111 S. Ct. 953 (1991) (police officer accepts payments from FBI
agents posing as crooked auto parts dealers); United States v. Stephenson, 895 F.2d 867 (2d Cir. 1990)
(international trade official in Department of Commerce accepts payments to influence ruling); United States v.
Spitler, 800 F.2d 1267 (4th Cir. 1986) (state highway administrator accepts money from road building contractor);
United States v. Wright, 797 F.2d 245 (5th Cir. 1986), cert. denied, 481 U.S. 1013 (1987) (city prosecutors accept
money for not prosecuting drunk drivers); United States v. Greenough, 782 F.2d 1556 (11th Cir. 1986) (city
374
commissioner accepts money for awarding city concession); United States v. Murphy, 768 F.2d 1518 (7th Cir.
1985), cert. denied, 475 U.S. 1012 (1986) (judges accept payments to fix cases); United States v. Mazzei, 521
F.2d 639 (3d Cir.) (en banc), cert. denied, 423 U.S. 1014 (1975) (state senator accepts money from landlord
seeking government office lease). In United States v. Stephenson, 895 F.2d at 871-73, the defendant, who was a
federal official, unsuccessfully contended that the Hobbs Act only applied to state and local officials and that
prosecution of federal official for extortion would have to be exclusively brought under 18 U.S.C. §872: extortion
by officers and employees of the United States. The court found that the government could seek a charge under
whichever of these two overlapping statutes it thought appropriate. Moreover, “it is not a defense to a charge of
extortion under color of official right that the defendant could also have been convicted of bribery.” Evans v.
United States, 504 U.S. 255 (1992).
GENERAL RULE: The usual fact situation for a Hobbs Act charge under color of official right is a public official
trading his/her official actions in a area in which he/she has actual authority in exchange for the payment of
money.
Some cases under certain fact situations, however, have extended the statute further. For example:
! Some courts have held that a Hobbs Act violation does not require that the public official have de jure power to
perform any official act paid for as long as it was reasonable to believe that he/she had the de facto power to
perform the requested act. See United States v. Nedza, 880 F.2d 896, 902 (7th Cir. 1989) (victim reasonably
believed state senator had the ability to impact a local business); United States v. Bibby, 752 F.2d 1116, 1127-28
(6th Cir. 1985); United States v. Sorrow, 732 F.2d 176, 180 (11th Cir. 1984); United States v. Rindone, 631 F.2d
491, 495 (7th Cir. 1980) (public official can extort money for permit beyond control of his office, so long as
victim has a reasonable belief that he could affect issuance); United States v. Rabbitt, 583 F.2d 1014 (8th Cir.
1978), cert. denied, 439 U.S. 1116 (1979); United States v. Harding, 563 F.2d 299 (6th Cir. 1977), cert. denied,
434 U.S. 1062 (1978); United States v. Brown, 540 F.2d 364 (8th Cir. 1976); United States v. Hall, 536 F.2d 313
(10th Cir.), cert. denied, 429 U.S. 919 (1976); United States v. Hathaway, 534 F.2d 386 (1st Cir.), cert. denied,
429 U.S. 819 (1976); United States v. Mazzei, 521 F.2d 639, 643 (3rd Cir.) (en banc), cert. denied, 423 U.S. 1014
(1975); United States v. Price, 507 F.2d 1349 (4th Cir. 1974).
! Most courts have held that a Hobbs Act violation does not require that the public official be the recipient of the
benefit of the extortion, and that a Hobbs Act case exists where the corpus of the corrupt payment went to a third
party. However, consistent with the federal offenses of bribery and gratuities under 18 U.S.C. § 201 (see 9
U.S.A.M. §§ 85.101 through 85.105), where the corpus of the corrupt payment inures to the benefit of a person or
entity other than the public official most courts have also required proof of a quid pro quo understanding between
the private corrupter and the public official. See United States v. Haimowitz, 725 F.2d 1561, 1577 (11th Cir.),
cert. denied, 469 U.S. 1072 (1984) (“a Hobbs Act prosecution is not defeated simply because the extorter
transmitted the extorted money to a third party.”); United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert.
denied, 461 U.S. 913 (1983) (insurance agency made kickbacks to brokers selected by political leader of town);
United States v. Scacchetti, 668 F.2d 643 (2d Cir.), cert. denied, 457 U.S. 1132 (1982); United States v. Forszt,
655 F.2d 101 (7th Cir. 1981); United States v. Cerilli, 603 F.2d 415 (3rd Cir. 1979), cert. denied, 444 U.S. 1043
(1980); United States v. Trotta, 525 F.2d 1096 (2d Cir. 1975), cert. denied, 425 U.S. 971 (1976); United States v.
Brennan, 629 F.Supp. 283 (E.D.N.Y.), aff’d, 798 F.2d 581 (2d Cir. 1986). But see McCormick v. United States,
500 U.S. 257 (1991)(allegedly corrupt payment made in the form of a campaign contribution to a third party
campaign organization was insufficient to support a Hobbs Act conviction absent evidence of a quid pro quo).
! Some courts have held that the Hobbs Act can be applied to past or future public officials, as well as to ones
who presently occupy a public office at the time the corrupt payment occurs. See United States v. Meyers, 529
F.2d 1033, 1035-38 (7th Cir.), cert. denied, 429 U.S. 894 (1976) (court answered affirmatively the question
“whether, within the meaning of the Hobbs Act, it is a crime for candidates for political office to conspire to affect
commerce by extortion induced under color of official right during a time frame beginning before the election but
not ending until after the candidates have obtained public office.”); United States v. Lena, 497 F.Supp. 1352, 1359

(W.D. Pa. 1980), aff’d mem., 649 F.2d 861 (3rd Cir. (1981); United States v. Barna, 442 F.Supp. 1232, 1235
(M.D.Pa. 1978), aff’d mem., 578 F.2d 1376 (3rd Cir.), cert. denied, 439 U.S. 862 (1978).
! Some courts have held that private persons who are not themselves public officials can be convicted under this
provision if they caused public officials to perform official acts in return for payments to the non-public official.
United States v. Margiotta, 688 F.2d 108 (2d Cir. 1982), cert. denied, 461 U.S. 913 (1983) (court upheld
conviction of head of local Republican Party under color of official right where defendant could be said to have
caused, under 18 U.S.C. §2(b), public officials to induce a third party to pay out money); see United States v.
Haimowitz, 725 F.2d 1561, 1572-73 (11th Cir.), cert. denied, 469 U.S. 1072 (1984) (private attorney’s conviction
of Hobbs Act violation upheld due to complicity with state senator); United States v. Marcy, 777 F.Supp. 1398,
1399-400 (N.D.Ill. 1991); United States v. Barna, 442 F.Supp. 1232 (M.D. Pa.), aff’d mem., 578 F.2d 1376 (3rd
Cir.), cert. denied, 439 U.S. 862 (1978). But see United States v. McClain, 934 F.2d 822, 829-32 (7th Cir. 1991)
(“we believe that, as a general matter and with caveats as suggested here, proceeding against private citizens on an
‘official rights’ theory is inappropriate under the literal and historical meanings of the Hobbs Act, irrespective of
the actual ‘control’ that citizen purports to maintain over governmental activity.”).
! Some courts have also held that private individuals who make payments to a public official can be charged
under the Hobbs Act, either as an aider and abettor or co-conspirator, if he or she is truly the instigator of the
transaction. See United States v. Torcasio, 959 F.2d 503, 505-06 (4th Cir. 1992); United States v. Spitler, 800
F.2d 1267, 1276-79 (4th Cir. 1986) (conviction affirmed for aiding and abetting extortion under color of official
right even though defendant, who paid kickbacks from corporate coffers, was an officer of the victim
corporation); United States v. Wright, 797 F.2d 245 (5th Cir. 1986). But see United States v. Tillem, 906 F.2d
814, 823-24 (2d Cir 1990) (consultant employed to help restaurants obtain approvals from corrupt health
inspectors had no stake in the conspiracy and was not promoting the outcome).
! Finally, in a federal prosecution of a state legislator, there is no legislative privilege barring the introduction at
trial of evidence of the defendant’s legislative acts. The Supreme Court has held that in such a prosecution a
speech or debate type privilege for state legislators cannot be made applicable through Fed.R.Evid. 501. The
Court said such privilege is not required by separation of powers considerations or by principles of comity, the
two rationales underlying the Speech or Debate Clause of the U.S. Constitution, art. I, §6, cl. 1. United States v.
Gillock, 445 U.S. 360, 368-74 (1980).
CAVEAT: The Hobbs Act and Campaign Contributions. The Supreme Court has held that, when an allegedly
corrupt payment masquerades as a campaign contribution, and when there is no evidence that the corpus of the
“contribution” inured to the personal benefit of the public officer in question or was a product of force or duress,
the Hobbs Act requires proof of a quid pro quo agreement between the contributor and the public officer.
McCormick v. United States, 500 U.S. 257 (1991). However, the Court has also held that proof that a quid pro
quo agreement existed in a corruption case brought under the Hobbs Act may be proven circumstantially. Evans
v. United States, 504 U.S. 255 (1992). This interpretation of the dimensions of the hobbs Act in corruption
scenarios is consistent with the parameters of the facts needed to prove the federal crimes of bribery and gratuities
under 18 U.S.C. § 201. See United States v. Brewster, 50-6 F.2d 62 (D.C. Cir. 1972), 9 U.S.A.M. §§ 85.101
through 85.105, supra.
CAVEAT: The Hobbs Act and evidence of a quid pro quo. When the Hobbs Act is applied to public corruption
scenarios that lack evidence of actual “extortionate” duress, some courts have interpreted the Hobbs Act very
strictly to require proof of a quid pro quo relationship between the private and the public parties to the transaction,
even where the corpus of the payment inured to the personal benefit of the public official. See United States v.
Martinez, 14 F.3d. 543 (11th Cir. 1994)(Hobbs Act did not apply to pattern of in-kind payments given personally
to Florida mayor in the absence of evidence of a quid pro quo relationship between the mayor and alleged private
corrupter); United States v. Taylor, 993 F.2d 382 (4th Cir. 1993)(same); United States v. Montoya, 945 F.2d 1086
(9th Cir. 1991)(same); contra United States v. Brandford, 33 F.3d 685 (6th Cir. 1994)(Hobbs Act does not require
proof of quid pro quo where corpus of corrupt payment inured to the personal benefit of public officer). In
376
addition, some courts require that corruption cases brought under the “color of official right” clause of the Hobbs
Act be accompanied by proof that the public official induced the payment. See Montoya, supra.
At the very least, the courts will probably not extend the “color of official right” clause of the Hobbs Act beyond
the parameters of crimes of bribery and gratuities in relation to federal officials that are described in 18 U.S.C. §
201. See United States v. Brewster, 506 F.2d 62 (D.C. Cir. 1974), 9 U.S.A.M. §§ 85.101 through 85.105, supra.
This means that where the corpus of the alleged corrupt payment passed to someone or something other than the
public official personally (including those where it passed to a political committee), the Hobbs Act probably does
not apply unless there is also evidence of a quid pro quo. And even then, some Circuits, such as the Ninth, require
additional proof that the payment was induced by the public official.
PRACTICE TIP: The Public Integrity Section possesses considerable expertise in using the Hobbs Act to
prosecute public corruption. While not required, AUSAs are strongly urged to consult with the Public Integrity
Section in the investigation and prosecution of corruption cases under this statutory theory. Public Integrity can be
reached at 202-514-1412, or by fax at 202-514-3003.
Plaintiff’s case is one of a simple request for official recognition for mandatory occupational training in small
arms imposed upon Able Seamen aboard U.S. government vessels of the preposition fleet in accordance with 46
U.S.C. § 7306(a)(3) states:
“General requirements and classifications for able seamen to qualify for an endorsement as able seaman
authorized by this section, an applicant must provide satisfactory proof that the applicant is qualified
professionally as demonstrated by an applicable examination or educational requirements.
The small arms training is required by OPNAVINST 3951.1C, Small Arms Training and Qualifications. The
applicability statement from that naval instruction reads:
This instruction applies to all active and reserve, Navy personnel, all Navy law enforcement and security
personnel including Navy Absentee Collection Units, military and civilian, ashore and afloat, per [OPNAVINST
5530.14B, OPNAVINST 5580.1, OPNAVINST C8126.1 (NOTAL), and to all personnel whose duties require
them to be armed.
Plaintiff, being an Able Seaman, reported aboard a U.S. government ammunition vessel in Norfolk, Virginia. As a
new crew member Plaintiff was required to attend small arms receritification training and Lynnhaven Shooting
Range, a range approved by Military Sealift Command and the U.S. Navy, while the vessel was docked in
Norfolk, Virginia.
The Merchant Mariner’s Document is a federal document governed by federal regulations of the U.S. Coast
Guard. The OPNAVINST training manual is a federal document of the U.S. Navy. The vessel Plaintiff was
employed aboard was a vessel leased to and controlled by the Military Sealift Command, a federal operation of
the U.S. government. The small arms training was a requirement by military regulations and federal laws.
Plaintiff had every right to expect and to demand official recognition of that training in the form of an
endorsement for “National Open Carry Handgun” on his Merchant Mariner’s Document in recognition of the
original Second Amendment right to openly keep and bear arms.
It was not the Coast Guard’s responsibility to be concerned with the Conflict of Laws Doctrine in regard to
Plaintiff’s request for the contested endorsement. The Coast Guard, however, does have an oath of affirmation to
support and defend to U.S. Constitution. That oath includes the act of supporting and defending the Bill of Rights
to which the Second Amendment is included. The Coast Guard had a sworn duty by oath of office and by federal
law to endorse Plaintiff’s Merchant Mariner’s Document.
The Coast Guard’s action and the federal courts’ inaction in Plaintiff’s related case are the underpinnings of an
incremental prelude to genocide. At anytime when a military officer openly denies a citizen of its own nation the
right to possess, to wear, to carry, a firearm it is the introduction to an impending genocide upon its people at
some time in the future. The Coast Guard’s final agency action denying Plaintiff’s Second Amendment
application for the contested endorsement opens the door to a future genocide in the United States. Plaintiff

alleges that the final agency action denial of a Second Amendment application falls under the crime of genocide,
citing 18 U.S.C. § 1091(a)(4) in that the initial beginning of an era of genocide as the Basic Offense always begins
when “whoever, whether in time of peace or in time of war, in a circumstance described in subsection (d) and
with the specific intent to destroy, in whole or in substantial part, a national, ethnic, racial, or religious group as
such, subjects the group to conditions of life that are intended to cause the physical destruction of the group in
whole or in part.
It is Plaintiff’s argument that by the Coast Guard denying a free U.S. Citizen his Second Amendment right to
openly keep and bear arms in intrastate interstate travel under color of law subjects the group, (free, law-abiding
U.S. citizens), to conditions of life that are intended to cause the physical destruction of the group in whole or in
part because the U.S. government is beating the drums of homeland security and ever expanding its use of the
PATRIOT Act and demanding more power from Congress to fight the war on terrorism is ignoring the First
Amendment right of the people to freely assembly while armed under the Second, Fifth Ninth, Tenth, Thirteenth,
and Fourteenth Amendment rights of the People to arm themselves against the common criminal and now against
the terrorists in our open society sets up those genocidal conditions of 18 U.S.C. § 1091(a)(4).
F. The RICO Claims

[At] the pleading stage of civil RICO actions, a plaintiff must plead damages to business or property in a
manner consistent with Rule 8 to show standing and is not required to plead with the particularity required by
Rule 9(b). See NOW, 510 U.S. at 256
(1). Robbins v. Wilkie, et al, 10th Circuit, No. 01-8037, (August 21, 2002):
II. RICO claim
To successfully state a RICO claim, a plaintiff must allege four elements:
(1) conduct
(2) of an enterprise
(3) through a pattern
(4) of racketeering activity.”
Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985); BancOklahoma Mortgage Corp. v. Capital Title
Co. Inc., 194 F.3d 1089, 1100 (10th Cir. 1999).
...
Plaintiffs who bring civil RICO claims pursuant to 18 U.S.C. § 1962 must show damage to their business or
property as a result of defendants’ conduct. See Sedima, 473 U.S. at 496 (RICO plaintiff only has standing if “he
has been injured in his business or property by the conduct constituting the violation”).
...
In NOW v. Scheidler, 510 U.S. 249, 256 (1994), the Supreme Court stated, “We have held that at the pleading
stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for on a motion to
dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.”
Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992))
...
378
Following the direction of the Supreme Court, we hold that at the pleading stage of civil RICO actions, a plaintiff
must plead damages to business or property in a manner consistent with Rule 8 to show standing and is not
required to plead with the particularity required by Rule 9(b). See NOW, 510 U.S. at 256.
III. Bivens claim
The district court granted Defendants’ Motion to Dismiss Appellant’s Bivens claim holding that the availability of
remedies under the Administrative Procedures Act and the Federal Tort Claims Act precluded Appellant’s Bivens
cause of action
The Supreme Court has held that a plaintiff’s ability to pursue a Bivens claim is precluded in two specific
instances. See Carlson v. Green, 446 U.S. 14, 18 (1980). Bivens claims are precluded when defendants can
demonstrate “special factors counselling hesitation in the absence of affirmative action by Congress,” or when
defendants can prove “that Congress has provided an alternative remedy which it explicitly declared to be a
substitute for recovery directly under the Constitution and viewed as equally effective.” Id. (quotations omitted)
(emphasis in original).
...
However, the [Administrative Procedures Act (APA)] contains no remedy whatsoever for constitutional
violations committed by individual federal employees unrelated to final agency action. Because Appellant
cannot hold Defendants personally liable for allegedly violating his constitutional rights under the APA, the
APA is an ineffective remedy. In this case, the APA does not preclude Appellant’s Bivens.
...
Neither can Appellant’s Bivens claim be precluded by potential claims under the FTCA. We have
specifically held that the FTCA and a Bivens claim are alternative remedies.
When a federal law enforcement officer commits an intentional tort, the victim has two avenues of redress:
1) he may bring a Bivens claim against the individual officer based on the constitutional violation, or 2) he
may bring a common law tort action against the United States pursuant to the FTCA. These are separate
and distinct causes of action arising out of the same transaction.
Engle v. Mecke, 24 F.3d 133, 135 (10th Cir. 1994) (citation omitted) (emphasis added). This statement is also
consistent with Supreme Court holdings. “Plainly FTCA is not a sufficient protector of the citizens’ constitutional
rights, and without a clear congressional mandate we cannot hold that Congress relegated [plaintiffs] exclusively
to the FTCA remedy.” Carlson, 446 U.S. at 23. Thus, the existence of a potential FTCA claim is an insufficient
basis for the district court to preclude Appellant’s Bivens claim.
We hold that Appellant’s allegations that Defendants violated his constitutional rights through conduct unrelated
to final agency decisions appealable pursuant to the APA are sufficient to state a cognizable Bivens claim.
Because some of Appellant’s Bivens claims are not precluded by either the APA or the FTCA, we reverse the
district court’s grant of Defendants’ Rule 12(b)(6) Motion to Dismiss Appellant’s Bivens claim.
G. Obstructions of Justice (18 U.S.C. § 1505)

(1) Fraud and False States by the federal bench and bar under 18 U.S.C. §
1001.
Ellen Segal Huvelle, October 9, 2002, denying with prejudice my PETITION FOR WRIT OF MANDAMUS, WRIT
OF PROHIBITION, DECLARATORY JUDGMENT, AND INJUNCTIVE RELIEF
Hamrick v. Admiral Thomas H. Collins, USCG, et al, U.S. District Court for the District of Columbia, No. 02-
1434, Judge Ellen Segal Huvelle, December 26, 2002, denying with prejudice my COMPLAINT FOR

DEFAMATION AND DAMAGES, LIBEL AS A MATTER OF PRIVATE CONCERN, INJURY TO REPUTATION,

UNLAWFUL INTERFERENCE WITH THE LAWFUL OPERATION OF A MERCHANT VESSEL, UNLAWFUL
INTERFERENCE WITH A SEAMAN’S EMPLOYMENT ABOARD A MERCHANT VESSEL, WRONGFUL
DETENTION/FALSE IMPRISONMENT OF A U.S. MERCHANT SEAMAN IN A FOREIGN COUNTRY,
HARASSMENT, EMOTIONAL DISTRESS, AND SUBJECTION TO A MALICIOUS CRIMINAL INVESTIGATION
EXTENDING FROM PETITIONER’S EXERCISE OF FIRST AMENDMENT RIGHTS TO FREE SPEECH AND
TO PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES PURSUING SECOND AMENDMENT
RIGHTS
Reggie B. Walton, August 16, 2004, denied with prejudice my CIVIL RIGHTS COMPLAINT OF
RACKETEERING AND FRAUD UNDER THE RICO ACT FOR AN UNCONSTITUTIONAL PROTECTION
SCHEME UNDER COLOR OF
H. Corruption in the U.S. Department of Justice

(1). Justice Department Witheld Evidence from the Court
I filed my RICO Act case for the Second Amendment at the U.S. District Court for DC (No. 03-2160). Alan
Burch, Assistant U.S. Attorney from the U.S. Attorney’s Office in Washington, DC (555 4TH ST., NW).
Almost 7.5 months since I filed my case Alan Burch is “Terminated” (word used in the Docket Report) and was
replaced by Dennis Barghaan, “Special Attorney” from the U.S. Attorney’s Office for the Western District of
Virginia in Alexandria under 28 U.S.C. 515 (out of jurisdiction U.S. Attorney). The Plaintiff alleges that the
switch of defense attorneys has a direct bearing on the impending internal release of the Justice Department’s
MEMORANDUM OPINION TITLED, WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL
RIGHT ON AUGUST 24, 2004, just 83 days away. Something had to be done to prevent the Plaintiff from using
that Memorandum Opinion as evidence in the District Court. So, the Justice Department brounght in a hatchet
man to expedite the dismissal of Plaintiff’s case before the expected release date of the Memorandum Opinion.
This implies a conspiracy against the due process rights of the Plaintiff in violation of 18 U.S.C. § 241. Plaintiff
alleges that the sole purpose for the switch in defense attorneys is to effectively deny the Plaintiff his right to use
the Justice Department’s upcoming Memorandum Opinion on the Second Amendment as evidence supporting his
case.
Dennis Barghaan filed the Motion to Dismiss just 19 days after replacing Alan Burch. Plaintiff observes that the
Department of Justice was going to internally release their Memorandum Opinion on August 24, 2004 which is
just 64 days from June 21. Plaintiff has 60 days to respond to the Motion to Dismiss. If Dennis Barghaan had
prior knowledge of the Department of Justice’s Memorandum Opinion it is the Appellant’s belief that he had a
duty to inform the court of the impended release of this Memorandum Opinion because it had a direct impact
upon the case at hand. If Dennis Barghaan did not have prior knowledge then the duty fell upon the Department of
Justice to inform Dennis Barghaan of the impending release of the Memorandum Opinion because it was and is
admissible evidence affecting the integrity of the governments argument against the Plaintiff/Appellant. The fact
that the existence of the Memorandum Opinion was never made known to the District Court or to the DC Circuit
or even to the Plaintiff, that the Plaintiff learned of the Memorandum Opinion through his Internet news links
implies a deliberate attempt to subvert justice. The Appellant alleges that the timing of Dennis Barghaan’s Motion
to Dismiss occurring jut 64 days before the internal release o the Memorandum implies prior knowledge
calculated to unjustly defeat Appellant’s case at the District Court. The Appellant further alleges that Dennis
Barghaan’s obstructive tactics are meant to harass or to cause unnecessary delay or needless increase in the cost of
litigation and Dennis Barghaan’s denials of factual contentions are not warranted on the evidence or, if
specifically so identified, are not reasonably based on a lack of information or belief because the Appellant has
now identified the Memorandum Opinion as admissible evidence and there can be no lack of information on the
Second Amendment as an individual right because it was the duty of the Justice Department to inform Dennis
380
Barghaan of the Memorandum Opinion. That fact that this was not done implies an intentional violation of Rule
11(b)(1) and Rule 11(b)(4) of the Federal Rules of Evidence.
04. The Justice Department issues a press release stating that Paul D. Clement was will serve as acting Solicitor
General.
04. The judge, Reggie B. Walton, denies my Motion for Change of Venue.
2004. My Objection to Motion to Dismiss filed out of time (because Kinkos lost my emailed Objection due to a virus
attack. But Dennis Barghaan in a footnote in his rebuttal did not oppose my filing out of time).
2004. Dennis Barghaan files his rebuttal to my objection.
2004. Wasting no time Judge Reggie B. Walton grants Motion to Dismiss just 8 days before the internal release of the
Justice Department’s Memorandum Opinion. A job well done by Dennis Barghaan. Does Judge Walton actually
read these motions?
2004. THE U.S. DEPARTMENT OF JUSTICE WITHHELD EVIDENDCE FROM THE COURT &
PLAINTIFF.76 U.S. Department of Justice internally published their Memorandum Opinion for the Attorney
General John Ashcroft titled, WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT, August 24,
2004. The Department of Justice did not release the Memorandum Opinion to the public until mid-December
2004, for obvious political gain until well after the presidential election in November. That Memorandum Opinion
is documentary evidence, a government record under 28 U.S.C. § 1733 and is admissible as evidence because
under Rule 704 of the Federal Rules of Evidence the Memorandum Opinion becomes an Opinion on an Ultimate
Issue because it embraces an ultimate issue to be decided by the trier of fact. [Rule 406 Habit/Routine Practice]
2004. Plaintiff filed Notice of Appeal.
2004. On this date President Bush issues Executive Order 13353 ESTABLISHING THE PRESIDENT’S BOARD ON
SAFEGUARDING AMERICANS’ CIVIL LIBERTIES . The Deputy Attorney General James Comey is
appointed as Chairman. However, there may exist a conflict of interest with this appointment. In the May 21,
2001 edition of U.S. News & World Report then U.S. Attorney James Comey is reported to have said “To us gun
possession itself is a crime of violence” in discussing Virginia’s Project Exile program. James Comey’s position
against the Second Amendment as an individual right back then does not exactly square with his appointment to
the President’s Board on Safeguarding American Civil Liberties. At best it compares more accurately to a Trojan
Horse tactic for an undisclosed agenda.
R 9, 2004. Appellant filed his Appellant’s Brief at the DC Circuit.
R 14, 2004. Appellant filed MOTION FOR PERMISSIVE INTERVENTION BY THE PRESIDENT’S BOARD ON
SAFEGUARDING AMERICANS’ CIVIL LIBERTIES AND OTHER THIRD PARTIES & MOTION FOR
APPEAL CONFERENCE. The DC Circuit has not yet ruled on this motion or any motion for judicial notice of
adjudicative facts or presumptions in general that the Plaintiff has filed. Copy of this motion was FedEx’d to the
Deputy Attorney General James Comey as Chairman of that civil liberties board. No response has yet been
received. This is not a very good track record for the Government on protecting the civil liberties of the American
people when the federal courts and the Executive Branch treats a pro se Plaintiff in such a manner.77
OBSERVATION FROM TIMELINE:
Assistant U.S. Attorney Alan Burch was almost 7.5 months (225 days) as defense counsel and hadn’t
filed the Motion to Dismiss. He was under Ted Olson as Solicitor General. Dennis Barghaan took a fast 2 months,
3 weeks, 4 days (75 days total) to get Judge Reggie B. Walton to dismissed the Plaintiff’s case with prejudice.

(2). Federal and State Gun Control Laws Violate the Thirteenth and
Fourteenth Amendments
(a). “Actual Freedom” in Abraham Lincoln’s Emancipation Proclamation:
“That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons
held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against
the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United
States, including the military and naval authority thereof, will recognize and maintain the freedom of such
persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their
actual freedom.”607
(b) “Actual Freedom” Defined in Dred Scott v. Sanford, 60 US (19 How.) 393, 417 (1857)
“[If blacks were] entitled to the privileges and immunities of citizens... It would give to persons of the negro race,
who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they
please, singly or in companies...; and it would give the full liberty of speech...; to hold meetings upon public
affairs, and to keep and carry arms wherever they went.”608
DEPARTMENT OF HOMELAND SECURITY

Coast Guard
[USCG–2004–17238]
Small Business Non-Retaliation Policy.609
AGENCY: Coast Guard, DHS.
ACTION: Notice.
SUMMARY: The Coast Guard announces adoption of a small business
nonretaliation policy. If a small business questions or lodges a complaint regarding
a Coast Guard policy or action, or seeks outside help in dealing with a Coast Guard
policy or action, the Coast Guard will not retaliate in any fashion. The full policy is
set out in the body of this notice.
DATES: The Commandant of the Coast Guard approved the small business nonretaliation policy
on February 11, 2004. The policy remains in effect until modified or rescinded by the
Commandant.
ADDRESSES: Although we are not requesting them, you may make comments on this notice.
To make sure that your comments and related material are not entered more than once in the
docket, please submit them by only one of the following means:
(1) Electronically through the Web site for the Docket Management System at http://dms.dot.gov.
(2) By mail to the Docket Management Facility, (USCG–2004–17238), U.S. Department of
Transportation, room PL–401, 400 Seventh Street, SW., Washington, DC 20590–0001.
(3) By fax to the Docket Management Facility at 202–493–2251.
607
Emphasis added.
608
Emphasis added.
609
Available Online at http://www.uscg.mil/legal/NonRet_Policy_3-18-04.pdf
382
(4) By delivery to room PL–401 on the Plaza level of the Nassif Building, 400 Seventh Street,
SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. The telephone number is 202–366–9329.
The Docket Management Facility maintains the public docket for this notice. Comments and
material received from the public will become part of this docket and will be available for
inspection or copying at room PL–401 on the Plaza level of the Nassif Building, 400 Seventh
Street, SW., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. You may also find this docket on the Internet at http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: If you have questions on this notice, call Rich
Walter, Office of Regulations and Administrative Law (G–LRA), U.S. Coast Guard, telephone
202–267–1534. If you have questions on viewing or submitting material to the docket, call
Andrea M. Jenkins, Program Manager, Docket Operations, telephone 202–366–0271.
SUPPLEMENTARY INFORMATION: The Office of the National Ombudsman of the U.S.
Small Business Administration (SBA) has asked each Federal agency to adopt a policy that the
agency will not retaliate against small businesses that question or complain about the way the
agency does business. On February 11, 2004, the head of our agency, the Commandant of the
Coast Guard, approved the following statement of Coast Guard policy:
If you question or lodge a complaint regarding a Coast Guard policy or action, to us or to anyone
else, or if you seek outside help in dealing with a Coast Guard policy or action, the Coast Guard
will not retaliate against you in any fashion. The Coast Guard wants you to be able to comment,
question, or lodge a complaint about our policies or actions without fear that we will retaliate or
try to discourage future questions or complaints. If you think the Coast Guard has broken this
promise, we will investigate, take appropriate action, and make sure that mistakes are not
repeated. You may comment, ask questions, or file a complaint about Coast Guard policies or
actions by contacting your local Coast Guard office, or you can also contact the Small Business
Administration Office of the National Ombudsman at 888–REG–FAIR (734–3247), fax: 202–
481–5719, email: [email protected].
Small businesses generally are independently owned and operated and are not dominant in their
field. If you need help determining whether or not your business qualifies as a “small business”,
contact the SBA’s Office of the National Ombudsman using the information given in the
preceding paragraph.
Dated: March 11, 2004.
John E. Crowley, Jr.,
Rear Admiral, U.S. Coast Guard, Judge
Advocate General.
[FR Doc. 04–6037 Filed 3–17–04; 8:45 am]
BILLING CODE 4910–15–P
I. Exemptions to Foreign Sovereign Immunities Act of 1976 Apply to my Case

Against the United Nations
It is my claim that the U.S. Coast Guard’s declaration of their denial of my application for “NATIONAL
OPEN CARRY HANDGUN” endorsement on my MERCHANT MARINER’S DOCUMENT as a FINAL AGENCY ACTION is
part and partial to my civil RICO Act claim against the United States of racketeering an unlawful and an
unconstitutional protection scheme over the Second Amendment and subsequently my claim against the United

Nations for their War of Aggression against the Second Amendment as violating United Nations declarations,
conventions, and covenants on human rights. I claim my right to sue the United Nations as a U.S. citizen under
the exemptions to the FOREIGN SOVEREIGN IMMUNITIES ACT OF 1976, codified in 28 U.S.C. § 1605, et seq.
28 U.S.C. § 1605(a) General Exceptions to the Jurisdictional Immunity of a Foreign

State
A foreign state shall not be immune from the jurisdiction of courts of the United States or of the
States in any case—
(1) in which the foreign state has waived its immunity either explicitly or by implication,
notwithstanding any withdrawal of the waiver which the foreign state may purport to effect
except in accordance with the terms of the waiver;
(2) in which the action is based upon a commercial activity carried on in the United States by
the foreign state; or upon an act performed in the United States in connection with a
commercial activity of the foreign state elsewhere; or upon an act outside the territory of the
United States in connection with a commercial activity of the foreign state elsewhere and
that act causes a direct effect in the United States;
(6) in which the action is brought, either to enforce an agreement made by the foreign state
with or for the benefit of a private party to submit to arbitration all or any differences
which have arisen or which may arise between the parties with respect to a defined legal
relationship, whether contractual or not, concerning a subject matter capable of settlement
by arbitration under the laws of the United States, or to confirm an award made pursuant to
such an agreement to arbitrate, if
(A) the arbitration takes place or is intended to take place in the United States,
(B) the agreement or award is or may be governed by a treaty or other international
agreement in force for the United States calling for the recognition and enforcement
of arbitral awards,
(C) the underlying claim, save for the agreement to arbitrate, could have been brought in
a United States court under this section or section 1607, or (D) paragraph (1) of this
subsection is otherwise applicable.
J. Dennis Barghaan, Assistant U.S. Attorney from Alexandria, Virginia, acting as

Special Attorney for the U.S. Department of Justice, and persons or persons
unknown in the U.S. Department of Justice criminally withheld evidence
(Memorandum Opinion for the Attorney General, Whether the Second Amendment
Secures an Individual Right, dated August 24, 2004)610 vital to my Second
Amendment case at the U.S. District Court for DC, Case No. 03-2160.
610
384
(3) Judge Reggie B. Walton abused the Federal Rules of Civil Procedure and criminally obstructed justice
when he dismissed my Civil Rico Act case with prejudice and subsequently issued a abusive Scheduling Order
after remand from the DC Circuit (judicial misconduct).

PART 22. PETTITION FOR WRIT OF PROHIBITION
PART 21. PETITION FOR WRIT OF MANDAMUS (MY DEMANDS FOR JUSTICE)

Part 19. The Claims
Part 25. Damages
PART 22. PETTITION FOR W386

RIT OF PROHIBITION
A. Writ of Mandamus for Negotiated Rulemaking with the U.S. Coast Guard, the
BATFE and the Maritime Advisory Committee for Occupational Safety and Health
(MACOSH) of the U.S. Department of Labor as Special Procedures Under Rule
16(C)(9) Federal Rules Of Civil Procedure, 33 C.F.R. § 1.05-60, 5 U.S.C. § 561-
570a, and 5 U.S.C. Appendix - Federal Advisory Committee Act.
Under the U.S. Code, Title 5 GOVERNMENT ORGANIZATION AND EMPLOYEES, § 569. ENCOURAGING
NEGOTIATED RULEMAKING the President has the authority to designate an agency or designate or establish an
interagency committee under 5 U.S.C. § 563. DETERMINATION OF NEED FOR NEGOTIATED RULEMAKING
COMMITTEE to facilitate and encourage agency use of negotiated rulemaking. An agency that is considering,
planning, or conducting a negotiated rulemaking may consult with such agency or committee for information and
assistance. There is a need to determine the Second Amendment rights of American civilian seafarers to openly
keep and bear arms in intrastate, interstate, and maritime travel.
The U.S. Department of Labor’s MARITIME ADVISORY COMMITTEE FOR OCCUPATIONAL SAFETY AND
HEALTH (MACOSH) under the Occupational Safety and Health Administration was reestablished in 2006 as duly
published by the FEDERAL REGISTER, June 5, 2006, Vol. 71, No. 107, Notices Section: NOTICE OF RE-
ESTABLISHMENT OF MACOSH, Page 32374. From that notice:
In accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended (5 U.S.C., App.
2), and after consultation with the General Services Administration (GSA), the Secretary of Labor has determined
that the re-establishment of the Maritime Advisory Committee for Occupational Safety and Health (MACOSH) is
in the public interest. The Committee will better enable OSHA to perform the duties imposed by the Occupational
Safety and Health Act of 1970 (OSH Act), 84 Stat. 1590, 29 U.S.C. 651 et seq.) Authority to establish this
Committee is found in sections 6(b) and 7(b) of the OSH Act; Section 41 of the Longshore and Harbor Workers’
Compensation Act (33 U.S.C. 941), and other general agency authority in Title 5 of the United States Code, and
29 CFR part 1912.
The Committee will advise OSHA on matters relevant to the safety and health of workers in the maritime
industry. This includes advice on maritime issues that will result in more effective enforcement, training, and
outreach programs, and streamlined regulatory efforts. The maritime industry includes employers in the
shipbuilding, ship repair, shipbreaking, longshoring, and marine terminal industries. The committee will function
solely as an advisory body and in compliance with the provisions of the Federal Advisory Committee Act and
OSHA’s regulations covering advisory committees (29 CFR part 1912). The Committee charter will be filed 15
days from the date of this publication.
The MARITIME ADVISORY COMMITTEE FOR OCCUPATIONAL SAFETY AND HEALTH (MACOSH) is perfectly
situated to conduct the negotiated rulemaking with the plaintiff for a National Open Carry Handgun endorsement
for the MERCHANT MARINER’S DOCUMENT under the MERCHANT MARINERS’ DOCUMENTS PILOT PROGRAM 611
which is found in the Notes Section of 46 U.S.C. § 7302. ISSUING MERCHANT MARINERS’ DOCUMENTS AND
CONTINUOUS DISCHARGE BOOKS and supported by the U.S. Navy’s current OPNAVINST 3591.1E – SMALL ARMS
TRAINING AND QUALIFICATION, dated February 20, 2007, through the Military Sealift Command’s agreement with
the U.S. Coast Guard and the Seafarers International Union612 for said training in accordance with 14 U.S.C. §
148. MARITIME INSTRUCTION and other federal laws.
611
Pub. L. 108–293, title VI, § 611, Aug. 9, 2004, 118 Stat. 1058, provided that: “The Secretary of the department in which
the Coast Guard is operating may conduct a pilot program to demonstrate methods to improve processes and procedures for
issuing merchant mariners’ documents.” [Plaintiff’s note: The U.S. Coast Guard operates under the U.S. Department of
Homeland Security begging the question of what role does the U.S. Merchant Marine and American civilian seafarers have in
Homeland Security.]
612
http://www.seafarers.org/log/2003/022003/smallarms.xml
387
Maritime Advisory Committee for Occupational Safety and Health (MACOSH)

Joseph V. Daddura,
Acting Director, Office of Maritime
U.S. Department of Labor
Occupational Safety & Health Administration
200 Constitution Avenue
Washington, D.C. 20210
Phone: (202) 693-2086
1-800-321-OSHA (6742)
The Maritime Advisory Committee for Occupational Safety and Health (“MACOSH” or “Committee”) was
established to advise the Assistant Secretary of Labor for OSHA on issues relating to occupational safety and
health in the maritime industries.
Current Membership
Government Interests
Stephen D. Hudock - National Institute for Occupational Safety and Health
CAPT. Lorne Thomas – U.S. Coast Guard
Charles Lemon - Washington State Department of Labor and Industry
Jim Maddux - Designated Federal Official
Employer Interests
James Thornton – Northrop Grumman Newport News Shipbuilding
CAPT. Teresa Preston – Atlantic Marine/ Alabama Shipyard, Inc.
Marc MacDonald – Pacific Maritime Association
Jim Burgin - National Maritime Safety Association
Donald Raffo - General Dynamics
Stewart Adams - Naval Sea Systems Command
Employee Interests
Michael Flynn - International Association of Machinists and Aerospace Workers
David Tubman, Jr. - Marine Engineers’ Beneficial Association
Robert Gleason - International Longshoremen’s Association, AFL-CIO
John Castanho - International Longshore and Warehouse Union
Earnest Whelan - International Union of Operating Engineers, Local 25
T. Warren Fairley, Jr. - International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths,
Forger and Helpers
B. Writ of Mandamus for Negotiated Rulemaking with the U.S. Coast Guard in
Cooperation with other Agencies, States, Territories, and Political Subdivisions in
Accordance with 14 U.S.C. § 141.
The Commandant of the U.S. Coast Guard has the authority under 14 U.S.C. § 2; 93(a); § 141; § 631; §
632; § 633; and 33 C.F.R. § 1.05–1; § 1.05–5; § 1.05–10; § 1.05–60; to not only issue the Merchant Mariner’s
Document with the “National Open Carry Handgun/Small Arms and Light Weapons” endorsement but to initiate
NEGOTIATED RULEMAKING, under the authority of 5 U.S.C. § 569, and 33 C.F.R. § 1.05-60 with the
Plaintiff and with representatives from the:

RIT OF PROHIBITION
Executive Office of the President

Assistant to the President for Homeland Security and Counterterrorism FRANCES F.
TOWNSEND
Assistant to the President for Legislative Affairs CANDIDA PEROTTI WOLFF
Assistant to the President and Deputy Chief of Staff for Policy JOEL D. KAPLAN
Assistant to the President for Domestic Policy, Walter Karl Zinsmeister
Assistant to the President for Domestic Policy WALTER KARL ZINSMEISTER
Deputy Assistant to the President for Domestic Policy TEVI D. TROY
Deputy Assistant to the President and Deputy Director of Communications for Policy and
Planning CATHERINE J. MARTIN
Deputy Assistant to the President and Director, Intergovernmental Affairs MARGARET M.
GRANT
Deputy Assistants to the President for Legislative Affairs WILLIAM DOUGLAS BADGER,
BRIAN C. CONKLIN, SEAN B. O’HOLLAREN
The Domestic Policy Council
U.S. Senate
Legislative Counsel (2 U.S.C. 271),
Committee on Foreign Relations
Committee on Homeland Security & Governmental Affairs
Committee on the Judiciary
Subcommittee on the Constitution
Subcommittee on Crime and Drugs
Subcommittee on Human Rights and the Law
Subcommittee on Terrorism, Technology and Homeland Security
Committee on Commerce, Science & Transportation
Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and
Security
Subcommittee on Oceans, Atmosphere, Fisheries, and Coast Guard
Subcommittee on Interstate Commerce, Trade, and Tourism
U.S. House of Representatives

Legislative Counsel (2 U.S.C. § 281),
Office of the Law Revision Counsel (2 U.S.C. § 285).
Committee on Foreign Affairs
Subcommittee on International Organizations, Human Rights, and Oversight
Committee on Homeland Security
Subcommittee on Border, Maritime and Global Counterterrorism
Subcommittee on Transportation Security and Infrastructure Protection
Subcommittee on Emergency Communications, Preparedness, and Respon
Committee on the Judiciary
Subcommittee on Courts, the Internet, and Intellectual Property
Subcommittee on Crime, Terrorism, and Homeland Security
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
Committee on Oversight and Government Reform
Subcommittee on Domestic Policy
Committee on Standards of Official Conduct
Committee on Transportation and Infrastructure
Subcommittee on Coast Guard and Maritime Transportation.
Subcommittee on Economic Development, Public Buildings, and Emergency Management
389
Subcommittee on Highways and Transit
U.S. Department of Homeland Security

Secretary of Homeland Security
Deputy Secretary of Homeland Security
Commandant, United States Coast Guard
U.S. Coast Guard Marine Safety and Security Council
FEMA: Deputy Administrator, National Preparedness
FEMA: National Protection and Programs Under Secretary
POLICY: Assistant Secretary
POLICY: Executive Director, Homeland Security Advisory Council
POLICY: Assistant Secretary, Office of International Affairs
POLICY: Assistant Secretary, Private Sector Coordination
POLICY: Director, International Programs
POLICY: Director, Special Programs
POLICY: Director, Innovation/Homeland Security Advanced Research Projects Agency
POLICY: Director, Transition
COMPONENTS: Civil Rights and Civil Liberties Officer
COMPONENTS: Director, Federal Law Enforcement Training Center
COMPONENTS: Assistant Secretary, Office of Legislative Affairs
COMPONENTS: Chief Privacy Officer
COMPONENTS: Assistant Secretary, Transportation Security Administration
COMPONENTS: White House Liaison
U.S. Department of Transportation

White House Liaison
Deputy Secretary
Under Secretary for Policy
Assistant Secretary for Governmental Affairs
Assistant Secretary for Transportation Policy
Maritime Administration
Administrator
Deputy Administrator for Inland Waterways and Great Lakes
Deputy Administrator
Associate Administrator for National Security
Associate Administrator for Port, Intermodal, and Environmental Activities
Director of Congressional and Public Affairs
Director, Office of Maritime Labor, Training, and Safety
Superintendent, United States Merchant Marine Academy
Federal Motor Carrier Safety Administration

Administrator
Deputy Administrator
Assistant Administrator (Chief Safety Officer)
Regulatory Ombudsman
Associate Administrator for Policy and Program Development
Chief Counsel
Director, Office of Civil Rights

RIT OF PROHIBITION
U.S. Department of Justice

The Attorney General
Deputy Attorney General
Associate Attorney General
Senior Counsel, Office of Dispute Resolution
Solicitor General
Assistant Attorney General, Office of Legal Counsel
Assistant Attorney General, Office of Legislative Affairs
Assistant Attorney General, Office of Legal Policy
Assistant Attorney General for Administration, Justice Management Division
Assistant Attorney General, Civil Division
Assistant Attorney General, Civil Rights Division
Assistant Attorney General, Criminal Division
Assistant Attorney General, Office of Justice Programs
Director, Office of Intergovernmental and Public Liaison
Director, Community Relations Service
Director, Community Oriented Policing Services
U.S. Department of State

Secretary of State
Deputy Secretary of State
Assistant Secretary for Legislative Affairs
Director of the Office of Civil Rights
Under Secretary for Political Affairs
Permanent Representative of the United States of America to the Organization of American
States
Coordinator, International Information Programs
United States Mission to the United Nations

United States Permanent Representative to the United Nations and Representative in the Security
Council
Deputy United States Representative to the United Nations
United States Representative for Special Political Affairs in the United Nations
United States Representative on the Economic and Social Council
United States Representative for U.N. Management and Reform
BATF
Director
Deputy Director
Office of Public and Governmental Affairs
Office of Enforcement Programs and Services
Office of Field Operations
Office of Training and Professional Development
Office of Professional Responsibility and Security Operations
Non-Governmental Organizations
National Governors Association
National Association of Counties
National Rifle Association
391
Jews for the Preservation of Firearms Ownership

Second Amendment Sisters
Second Amendment Foundation
Gunowners of America
Seafarers International Union and other seafaring labor unions.
C. Writ of Mandamus for Negotiated Rulemaking with the International Maritime

Organization through the U.S. State Department in accordance with 14 U.S.C. §
142.
The Coast Guard, through the Secretary [of Homeland Security], may exchange information, through the
Secretary of State, with foreign governments [i.e., the International Maritime Organization of the United Nations]
and suggest to the Secretary of State international collaboration and conferences on all matters dealing with the
safety of life and property at sea, other than radio communication [i.e., such as ratifying the Maritime Labour
Convention, adding the human right to armed self-defense and personal security to human rights treaties
containing “right to life” provisions to effect United Nations recognition of the Second Amendment as a human
right].
46 U.S.C. § 7306(a)(3) GENERAL REQUIREMENTS AND CLASSIFICATIONS FOR ABLE SEAMEN and the corresponding
46 CFR §12.05-3(a)(3) GENERAL REQUIREMENTS (FOR ABLE SEAMEN)
12 U.S.C. § 12.05–3(b)(1) GENERAL REQUIREMENTS (FOR ABLE SEAMEN) - Personal survival techniques as set out
in table A-VI/1-1 of the STCW Code613 (incorporated by reference in § 12.01–3).614
613
http://www.uscg.mil/nmc/stcw_code_ach6.asp#1
614
http://www.seafarers.org/phc/courses/upgrading.xml

RIT OF PROHIBITION
TABLE A-VI/1-1
Specification of minimum standard of competence in personal survival techniques
(Plaintiff’s Note: No mention of defending against or surviving armed pirate attacks at sea!)
KNOWLEDGE,
CRITERIA FOR EVALUATING
COMPETENCE UNDERSTANDING AND METHODS FOR DEMONSTRATING COMPETENCE
COMPETENCE
PROFICIENCY
Survive at sea in the Types of emergency situations Assessment of evidence obtained from approved Action taken on identifying muster signals
event of ship which may occur, such as instruction or during attendance at an approved is appropriate to the indicated emergency
abandonment collision, fire, foundering course or approved in-service experience and and complies with established procedures
Types of life-saving appliances examination, including practical demonstration of The timing and sequence of individual
normally carried on ships competence to: actions are appropriate to the prevailing
.1 don a life-jacket circumstance and conditions and minimize
Equipment in survival craft potential dangers and threats to survival
.2 don and use an immersion suit
Location of personal life-saving Method of boarding survival craft is
appliances .3 safely jump from a height into the water appropriate and avoids dangers to other
survivors
Principles concerning survival .4 right an inverted liferaft while wearing a life-jacket
including: Initial actions after leaving the ship and
.5 swim while wearing a life-jacket procedures and actions in water minimize
.1 value of training and drills threats to survival
.6 keep afloat without a life-jacket
.2 personal protective clothing
and equipment .7 board a survival craft from ship and water while
wearing a life-jacket
.3 need to be ready for any
emergency
.4 actions to be taken when

called to survival craft stations

required to abandon ship
.6 actions to be taken when in

the water

aboard a survival craft
.8 main dangers to survivors

Survive at sea in the .8 take initial actions on boarding survival craft to
event of ship enhance chance of survival
abandonment .9 stream a drogue or sea anchor
(continued)
.10 operate survival craft equipment
.11 operate location devices, including radio

equipment
393
12 U.S.C. § 12.05–3(b)(4) GENERAL REQUIREMENTS (FOR ABLE SEAMEN) (4) Personal safety and social
responsibilities as set out in table A-VI/1-4 of the STCW Code.615
TABLE A-VI/1-4 (Page 1 of 2)
(Plaintiff’s Note: No mention of personal safety and social responsibilities for the
Second Amendment right to keep and bear arms in intrastate, interstate, and maritime travel)
KNOWLEDGE, UNDERSTANDING AND METHODS FOR DEMONSTRATING CRITERIA FOR EVALUATING

COMPETENCE
Comply with emergency Types of emergency which may occur, such Assessment of evidence obtained from Initial action on becoming aware of an
procedures as collision, fire, foundering approved instruction or during emergency conforms to established
Knowledge of shipboard contingency plans for attendance at an approved course emergency response procedures
response to emergencies Information given on raising alarm is
prompt, accurate, complete and clear
Emergency signals and specific duties allocated
to crew members in the muster list; muster
stations; correct use of personal safety
equipment
Action to take on discovering potential

emergency, including fire, collision, foundering
and ingress of water into the ship
Action to take on hearing emergency alarm

signals
Value of training and drills
Knowledge of escape routes and internal

communication and
alarm systems
Take precautions to Importance of adhering to safe working practices Assessment of evidence obtained from Safe working practices are observed
prevent pollution of the at all times approved instruction or during and appropriate safety and protective
marine environment Safety and protective devices available to attendance at an approved course equipment is correctly used at all
protect against potential hazards aboard ship times
Precautions to be taken prior to entering

enclosed spaces
Familiarization with international measures

concerning accident prevention and
occupational health*
615
http://www.uscg.mil/nmc/stcw_code_ach6.asp#1 and http://www.seafarers.org/phc/courses/upgrading.xml

RIT OF PROHIBITION
TABLE A-VI/1-4 (Page 2 of 2)

(Plaintiff’s Note: No mention of personal safety and social responsibilities for the
Second Amendment right to keep and bear arms in intrastate, interstate, and maritime travel)
KNOWLEDGE, UNDERSTANDING AND METHODS FOR DEMONSTRATING CRITERIA FOR EVALUATING

COMPETENCE
Observe safe working Importance of adhering to safe working Assessment of evidence obtained from Safe working practices are observed
practices practices at all times approved instruction or during and appropriate safety and protective
Safety and protective devices available to attendance at an approved course equipment is correctly used at all times
protect against potential hazards aboard
ship
Precautions to be taken prior to entering

enclosed spaces
Familiarization with international measures

concerning accident prevention and
occupational health*
Understand orders and be Ability to understand orders and to Assessment of evidence obtained from Communications are clear and effective
understood in relation to communicate with others in relation to approved instruction or during at all times
shipboard duties shipboard duties attendance at an approved course
Contribute to effective Importance of maintaining good human Assessment of evidence obtained from Expected standards of work and
human relationships on and working relationships aboard ship approved instruction or during behavior are observed at all times
board ship Social responsibilities; employment attendance at an approved course
conditions; individual rights and
obligations; dangers of drug and alcohol
abuse
The MARITIME ADVISORY COMMITTEE FOR OCCUPATIONAL SAFETY AND HEALTH (MACOSH) can submit
its report to the Court under the SPECIAL PROCEDURES of Rule 16(C)(9) FEDERAL RULES OF CIVIL PROCEDURE.
395

Part 19. The Claims
Part 25. Damages

RIT OF PROHIBITION
A. Writ of Prohibition to Prohibit My Arrest by the U.S. Marshals Service or any

other federal or district law enforcement agency for Exercising My Right to Make
Citizen’s Arrests of Federal Judges and court clerks for felony EXTORTION UNDER
COLOR OF LAW 18 U.S.C. § 872, and felony racketeering EXTORTION UNDER COLOR OF
OFFICIAL RIGHT 18 U.S.C. § 1951(a) and § 1951(b)(2) of their respective court’s
filing fees in violation of the Seamen’s Suit Law 28 U.S.C. § 1916 in accordance with
D.C. Code § 23-582(b)(2) and § 23-582(c).
B. Petition for Writ of Prohibition in Defence of Citizen’s Arrest Warrant of

Federal Judges and Court Clerks for Felony Extortion
I am demanding my Ninth Amendment right and Tenth Amendment power to enforce my rights under the
Seamen’s Suit Law 28 U.S.C. § 1916 by Invoking the Registration of Judgments for Enforcement in Other
Districts under 28 U.S.C. § 1963 by Writ of Mandamus or by Writ of Prohibition against the U.S. Marshals
Service, the FBI, the Capitol Police, the U.S. Supreme Court Police, and any other federal law enforcement or any
other law enforcement agencies and officials and officers thereof from interfering with, obstructing, or preventing
me by arrest or threat of arrest for executing my Citizen’s Arrest Warrant of Federal Judges and their court clerks
for felony racketeering Extortion Under Color of Law 18 U.S.C. § 872, and felony Extortion Under Color of
Official Right 18 U.S.C. § 1951(a) and § 1951(b)(2) of their respective court’s filing fees in violation of the
Seamen’s Suit Law 28 U.S.C. § 1916 in accordance with D.C. Code § 23-582(b)(2) and § 23-582(c).
Hamrick v. George, US District Court for the Western District of NC, Charlotte Division, Case No. 03-cv-0344-
W, ORDER, November 9, 2006. Judge Frank D. Whitney: “If Plaintiff elects to exercise his appeal rights, the
Court finds that 28 U.S.C. § 1916 waives the requirement of prepayment of docket fees or furnishing security
therefor , and the Clerk of Court is so instructed.”
Congress did not explicitly express a private right of action (i.e. civil jury trial under the Seventh
Amendment are the Citizen’s Arrest method to a Sixth Amendment criminal trial as a remedy of last resort in the
face of a hostile federal judicial system who would appear to be abandoning or seamen as wards of the Admiralty)
in the Seamen’s Suit Law, 28 U.S.C. § 1916 to prevent the federal courts from extorting the exempted filing fees
of the courts of the United States, 18 U.S.C. § 872 Extortion Under Color of Law and 18 U.S.C. § 1651(b)(c)
Extortion Under Color of Official Right (Racketeering).
397
23. PETTITION FOR DECLARATORY JUDGMENT
PART 23. PETITION FOR DECLARATORY JUDGMENT

Part 19. The Claims
Part 25. Damages
398
A. The Second Amendment Right to Openly Keep and Bear Arms in Intrastate,
Interstate, and Maritime Travel is a Human Right
B. The Second Amendment Right to Openly Keep and Bear Arms in Intrastate,
Interstate, and Maritime Travel is a Constitutional Right.
C. The Plaintiff is Not a Prohibited Person under 18 U.S.C. 18 U.S.C. 922 et seq
From Owning or Possessing Firearms.
D. The Plaintiff has a Seventh Amendment Right to a Civil Jury Trial.
E. The Merits of Plaintiffs Case Warrants a Civil Jury Trial.
F. The Federal Courts Wrongfully Collected Exempted Filing Fees from the
Plaintiff in the Total Amount of $1,465.00 in Violation of the Seamen’s Suit Law, 28
U.S.C. § 1916.
G. Pacer Service Center of the Administrative Office of the U.S. Courts Wrongfully
Collected Docket Access Fees in the Total Amount of $393.00 in Violation of the
Seamen’s Suit Law, 28 U.S.C. § 1916.
23. PETTITION FOR399

DECLARATORY JUDGMENT
24. PETTITION FOR INJUNCTIVE RELIEF
PART 24. PETITION FOR INJUNCTIVE RELIEF

Part 19. The Claims
Part 25. Damages
PART 24. PETTITION FOR I400

NJUNCTIVE RELIEF
24. PETTITION FOR INJUNCTIVE RELIEF
A. Permanent Injunctive Relief Against the U.S. Department of Transportation and

U.S. Coast Guard Bar Notice of 2004 and 2006.
B. Permanent Injunctive Relief Against the The Executive Branch from any Further
Harassment in connection with his First Amendment right to Petition the
Government for Redress of Grievances and is Seventh Amendment right to a Civil
Jury Trial.
C. Permanent Injunctive Relief Against All Federal Courts of the United States
from Requiring Payment of Filing Fees from U.S. Merchant Seaman with Second
Amendment Cases qualifying under the Safety Clause of the Seamen’s Suit Law, 18
U.S.C. § 1916
D. Permanent Injunctive Relief Against Pacer Service Center of the of the

Administrative Office of the U.S. Courts from Collecting Docket Access Fees from
U.S. Merchant Seamen with Second Amendment Cases qualifying under the Safety
Clause of the Seamen’s Suit Law, 18 U.S.C. § 1916
401FOR INJUNCTIVE RELIEF

PART 24. PETTITION
PART 25. DAMAGES
Part 25. Damages

Part 19. The Claims
Part 25. Damages
402
PART 25. DAMAGES
PART 25. DAMAGES
Pro se litigants may be entitled to Attorney fees and costs under the Civil Rights Attorney’s Fee Award
Act of 1976, 90 Stat. 2641, as amended 42 USC 1988
(1) RICO Act Damages for Wrongful Detention by the U.S. Coast Guard
RICO Act damages in the amount of $14.4 million for the 12-day wrongful detention in Lithuania by the
U.S. Coast Guard is a reasonable calculation based upon the Settlement Order in Rajcoomar v. United States, et al
U.S. District Court for the Eastern District of Pennsylvania, No. 03-2294, (June 30, 2003).616 The United States
and the Transportation Security Administration agreed to pay $50,000 for the 3-hour wrongful detention and issue
a written apology to both Dr. Bob Rajcoomar and Dorothy Rajcoomar for the wrongful detention of August 31,
2002.
Calculating the Damages

For 12-days of Wrongful Detention
(1) $50,000 ÷ 3 hours = $1,666.67 per hour.
(2) $1,666.67 x 24 hours = $400,000.00 per day.
(3) $400,000 x 12 days = $4.8 million
(4) $4.8 million x 3 RICO Damages = $14.4 million
Plus Damages for the obstructions of justice and denial of my Seventh Amendment right to a civil jury
trial from 2002 to 2008 in an amount equl to the above damages of $14.4 million.
616
http://www.aclufl.org/pdfs/Legal%20PDfs/Rajcoomar%20settlement%20order.pdf
PART403
25. DAMAGES
PART 25. DAMAGES
The CNSNews report of the settlement below as the highlights of the case:
TSA Settles Lawsuit by Illegally Detained Passenger

By Jeff Johnson
CNSNews.com Congressional Bureau Chief
August 01, 2003
Capitol Hill (CNSNews.com) - The identified as an “unruly passenger.” The two men
Transportation Security Administration (TSA) has ordered a passenger to move and placed the third man
agreed to settle a racial profiling lawsuit filed by a in the seat next to Rajcoomar. The men then produced
naturalized American who was illegally detained by badges and identified themselves as Federal Air
Federal Air Marshals who claimed he was “watching Marshals.
too closely” as they restrained an unruly passenger.
Fearful for his own safety, Rajcoomar asked a
Limited details of the settlement were disclosed
flight attendant to reseat him, which she did.
Thursday.
While one marshal handcuffed the unruly
Retired U.S. Army physician Bob Rajcoomar told
passenger, the other, 29-year-old Shawn B. McCullers,
the Philadelphia Inquirer Thursday that he was
began issuing orders over the aircraft’s public address
pleased the ordeal had finally come to a close.
system.
“The end is here,” he said from his home in Lake
“The other marshal took over the aircraft as if he
Worth, Fla.
was a commando and then whisked out his gun and
“Our objective was to make a statement that started pointing it at almost 200 Americans in the
something is not right here. Let’s correct it for all the aircraft,” Rajcoomar said following the incident. “And
people. Let’s make America better,” Rajcoomar added. they started shouting at everyone to stay quiet, not to
“And I think the judge agreed.” move, don’t take any pictures, etcetera, or they would
be going to jail.”
Airline security analyst Andrew Thomas, author of
“Aviation Insecurity: The New Challenges of Air Passengers thought marshals were terrorists
Travel,” was astonished at the settlement. hijacking the plane.
“It’s the first time that I’ve been able to discern The plain-clothed marshals held more than 180
that the TSA has actually admitted that it was wrong in passengers - some of whom feared they had been
doing something, especially with regard to the air hijacked by armed terrorists - at gunpoint for the
marshals program,” he told CNSNews.com Friday. remainder of the flight. When the plane landed, they
removed the unruly passenger and then returned with
In an official statement, the TSA initially defended
several uniformed Philadelphia Airport Police
the actions of the marshals involved and denied that
Officers.
race had anything to do with the incident.
“Suddenly, behind me, out of nowhere somebody,
“Our marshals are trained to respond to actions
one of these marshals, says, ‘Head down, head
and behavior, not skin tones,” the TSA statement said.
between your legs, hands up,’ and before long I was in
“Based on our review of the Flight 442 incident we are
handcuffs,” Rajcoomar recalled. “And the next thing I
confident they did just that.”
knew, with the help of police they dragged me out of
Doctor: Marshal acted ‘as if he was a commando’ the airplane and forced me into a police van on the
Rajcoomar and his wife Dorothy were flying from tarmac.”
Atlanta to Philadelphia on Aug. 31, 2002. Because the Rajcoomar was held for three to four hours
flight was overbooked, Dr. Rajcoomar was seated in without being allowed to contact an attorney or even
the first class section while his wife was in coach. notify his wife of his whereabouts. Initially, he
claimed, the marshals would not even tell him why he
Approximately 30 minutes prior to landing in
Philadelphia, two men entered the first class section of was under arrest.
the plane dragging a third man, who was later
404
PART 25. DAMAGES
PART 25. DAMAGES
“Three hours [later], they told me that they didn’t “Certainly, bad training on the part of TSA of its
like the way I looked and they didn’t like the way I air marshals was the primary factor here leading to the
looked at them,” said the Guyana-born ethnic Asian incident that occurred,” Thomas observed. “[By] TSA
Indian who is now a naturalized American. submitting its training protocols and procedures to the
federal judge ... TSA readily admits that its training
The family practice physician believes his race
was inadequate.”
was the sole provocation for the marshals’ actions.
Neither the judge nor the TSA would comment on
“Plain and simple,” he told Fox News Channel, “I
the changes made to the agency’s training, passenger
am a, you know, a tan-colored fellow.”
detention or other procedures.
Thomas agreed.
Political demands may have played a tertiary role
“They’ve gone out of their way at every moment in the inadequate training, Thomas added.
since 9/11 to say, ‘We’re not going to racially profile
“The normal six- to eight-week program that the
anybody,’” he explained, “when, in fact, this
air marshals used to pride themselves on, this intense
individual was clearly chosen only because of race, no
training, was scaled back in response to the
other reason.”
congressional mandate to get thousands of air marshals
In his lawsuit, Rajcoomar sought an apology, up into the skies after 9/11,” he explained.
court-ordered changes to the marshals’ training
“As a result, individuals who had [law
and procedures and $250,000 in compensatory
enforcement] firearms training, were placed in a
damages. U.S. District Judge John P. Fullam accepted
program sometimes as short as five days before they
the terms of the settlement agreed to by Rajcoomar
were given the opportunity to go up and fly,” Thomas
and TSA, which included a $50,000 payment and a
said.
written apology from TSA director, Adm. James
Loy, and training and procedures changes. “Again, rushing this out there, trying to do things
to make us feel safer about air travel, rather than doing
Fullam certified, after reading a classified report
it the right way,” Thomas concluded. “They really,
from the TSA, that the needed changes, made evident
really screwed up on this one.”
by Dr. Rajcoomar’s mistreatment, had been initiated.
Brian Turmail, spokesman for the TSA, told
Analyst says poor TSA training to blame for
CNSNews.com Friday that the lawsuit is not
mistakes.
“technically” settled because the agreement has not
Thomas believes the willingness on the part of been approved by the U.S. Attorney’s Office. Until
TSA to submit its training program, even in a that happens, he said, the agency will be unable to
classified setting, to the scrutiny of a federal judge make any public comment.
means the agency knew it had problems in that area.
(2) RICO Act Damages for Obstructions of Justice by the U.S. Department of
Justice
(3) RICO Act Damages for Obstructions of Justice by the U.S. Marshals Service
(4) RICO Act Damages for the Denial of my Seventh Amendment right to a Civil
Jury Trial by the Federal Judiciary
PART405
25. DAMAGES
EXHIBIT 1. U.S. DEPARTMENT OF STATE GIVES AWAY 8 ISLANDS OF ALASKA TO RUSSIA
EXHIBIT 1. State Department Gives Away 8 Islands of Alaska to Russia
Oil? Ah, Let Russia Have It

State Department Gives Away 125,000 Square Miles of Alaskan Ocean Floor
WorldNetDaily: Black-Gold Blues
http://worldnetdaily.com/index.php?fa=PAGE.view&pageId=70902
July 29, 2008
Even if Congress follows President Bush’s lead a million square miles available for American oil
in opening off-shore oil exploration, there exist over exploration.”
125,000 square miles of sea bottom that won’t be
Alaska state Rep. John B. Coghill told WND
explored, because the State Department – amid
earlier, “The issues involve not only state
controversy and against the will of Alaskans – has
sovereignty over vital territories but also significant
surrendered the land to Russia.
national defense concerns and substantial economic
Eight islands and their surrounding sea floors losses over fisheries and petroleum.”
were ceded to the former Soviet Union as part of the
The Alaskan legislature and a sympathetic
U.S.-U.S.S.R. Maritime Boundary Treaty in 1991, a
California legislature have both passed resolutions
treaty signed by the U.S. Senate and President
asking Congress to allow Alaska at the bargaining
George Bush but never ratified by the Soviets.
table with Russia to resolve the islands’ ownership.
Nonetheless, an executive agreement enforcing the
After almost 20 years of official protests, the U.S.
terms of the treaty until ratification has been in place
State Department has yet to acknowledge Alaska’s
through three presidencies, meaning the State
arguments.
Department officially recognizes the islands as
Russian territory. “It’s totally anti-public, anti-Congress, anti-state
actions – but unfortunately the State Department
Alaskan legislators, who were given no input or
thinks it has the power to adopt this boundary line
authority on the island giveaway, have long
with the Russians without anybody’s consent outside
protested the treaty, declaring it null and void
themselves, “ Olson told WND. “The State
without Russian ratification.
Department is basically chopping off a piece of
And since last week’s U.S. Geological Survey Alaska and giving it to a foreign government
estimating that 90 billion barrels of oil lie without Alaska having any say in it.”
undiscovered and technically recoverable above the
The lands in dispute include the islands of
Arctic Circle, those 125,000 square miles of seabed
Herald, Bennett, Henrietta, Jeanette, Copper Island,
have taken on newly appreciated value. Five of the
Sea Lion Rock, Sea Otter Rock, and Wrangel, which
islands lie north of the Artic Circle, and the other
is the largest of the eight, roughly the size of Rhode
three sit at the western end of Alaska’s Aleutian
Island and Delaware combined.
island chain.
The U.S. purchased Alaska from Russia in 1867,
Carl Olson, a retired U.S. Navy Lieutenant
including the Aleutian Islands, which presumably
Commander and chairman of State Department
would include Copper Island, Sea Otter Rock and
Watch, a nonpartisan foreign policy watchdog
Sea Lion Rock. In 1881, U.S. Captain Calvin L.
group, explained to WND the significance of the
Hooper landed on Wrangel Island and claimed it for
State Department’s stance: “The area off the coast of
the U.S. Also in 1881, the U.S. Navy claimed the
an island that a nation may use is called the
islands of Bennett, Jeannette, and Henrietta. The
exclusive economic zone. The group in charge of
British held Herald Island, but they gave up that
defining that is the State Department. So (the
claim, permitting the U.S. to take it.
president and Congress) can say the off-shore areas
are opened up, but still not recognize these quarter of American citizens had occupied Wrangel Island
EXHIBIT 1. U.S. DEPARTMENT OF STATE GIVES 406

AWAY 8 ISLANDS OF ALASKA TO RUSSIA
EXHIBIT 1. U.S. DEPARTMENT OF STATE GIVES AWAY 8 ISLANDS OF ALASKA TO RUSSIA
from approximately 1881 to 1924, when Russian

soldiers landed and forcibly removed the American
occupants from its shores. The Russians then
reportedly used the island as a concentration camp.
Many Alaskan legislators believe the islands
were part of their state, even after the Wrangel
invasion, though the U.S. State Department
officially disagrees. Without a ratified treaty
designating them as Russian, those same legislators
and Carl Olson believe the islands still are American
territory and can be reverted to the U.S. easily.
The only thing binding the islands to Russia is
“in the form of an executive agreement,” Olson told
WND, “which means it can be changed with the
stroke of a pen by the president, because it has no
force of law.”
“We have been steadily maintaining the
pressure,” said Olson. “It’s just a matter of finding
sympathetic people in Washington and the other
states to go for it. There’s plenty of organizations
who have endorsed our efforts, so we keep up the
drumbeat.”
Coghill has also sought the support of other
states, claiming that the federal State Department has
overstepped its authority in giving away a state’s
land. “If they can do this to Alaska,” he warns, “they
can do this to any state.”
U.S. State Department officials did not return
WND telephone calls to discuss the matter, but a
State Department webpage devoted to the island
controversy denies that islands were ever claimed by
the United States and explains that though the treaty
between the U.S. and Russian Federation was never
fully ratified, “In a separate exchange of diplomatic
notes, the two countries agreed to apply the
agreement provisionally.”
The webpage concludes, “The U.S. has no
intention of reopening discussion of the 1990
Maritime Boundary Treaty.”
EXHIBIT 1. U.S. DEPARTMENT OF STATE407

GIVES AWAY 8 ISLANDS OF ALASKA TO RUSSIA
EXHIBIT 2 - NO RIGHT TO POLICE PROTECTION DOCTRINE
EXHIBIT 2. No Right to Police Protection Doctrine
IT’S JUST THE LAW: Police Protection Law

K.L. Jamison
Kevin L. Jamison is an attorney in the Kansas City, Missouri area
concentrating in the area of weapons and self-defense.
Saturday, June 7, 2008
http://newsgroups.derkeiler.com/Archive/Alt/alt.politics/2008-06/msg01248.html
The law allows a policeman to command a citizen to come to his aid.617 The reverse is not true. In 1849,
Jonathan W. Pottle was held captive and forced to pay $2,500 for his release. Mr. Pottle thought that this was
unreasonable because the sheriff was present during the extortion and refused to assist him. As a loyal American,
Mr. Pottle sued over this failure to act, and lost. In an 1855 decision the United States Supreme Court
perfunctorily recited the facts, and ruled that there is no right to police protection and no right to sue over its lack.
Since that decision, there has been no right to police protection recognized in the United States.618 It
could have been worse. More recently, women in a Washington D.C. home were raped and tortured while other
women, hidden upstairs, twice called for help. Twice officers drove past the house without investigating. The
hidden women were then discovered and tortured over a fourteen hour period. They sued. The court was
sympathetic, but ruled there was no cause of action.619
The states have the same philosophy. In a Missouri case, an outraged community sued their sheriff
demanding that the court order him to perform his duty. The requested order was to force the sheriff to close a
facility that did not measure up to community standards; or at least those members of the loyal American
community that filed lawsuits.620 The court refused to issue the order. A long chain of federal and state cases
state that police have a responsibility to protect the community as a whole, but no duty to protect any individual
within that whole. It may help to visualize the metaphysics of the philosophy to realize that the point is to prevent
victims of crime from suing the police.
The courts have allowed that the police must protect persons with a “special relationship” to the police.
Such relationships are so special as to be nearly extinct. In my early years at the bar,621 the courts found special
relationships in cases involving drunk drivers and protective orders. Federal courts have put an end to these
special relationships. On May 16, 2006, the First Circuit Court of Appeals ruled in McCloskey v Mueller III,
finding that the FBI had no duty to arrest a violent criminal. The criminal in question, Gary Lee Sampson, had
called the FBI and advised them that he wanted to surrender on an armed robbery warrant. The FBI did not
oblige. Reacting badly to the perceived snub, Mr. Sampson murdered three people. Their estates sued, but the
court ruled that the FBI had no duty to the victims.
Protective orders in adult abuse cases typically require police action to protect the subject. However, the
Supreme Court has put an end to this fuzzy thinking. In Town of Castle Rock v Gonzales, Jessica Gonzales had
617
We shall take up the institution of the Posse some other time.
618
South v Maryland, 59 U.S. (How) 396; 15 L.Ed. 433 (1855).
619
Warren v District of Columbia, 444 A.2d 1 (D.C. App. En banc 1987).
620
Parker v Sherman, 456 S.W.2d 577 (Mo. 1970).
621
This is the legal bar, not the alcohol bar; they are often confused.
408
obtained a protective order against her husband. The order contained a “Notice to Law Enforcement Officials”
which stated:
You shall use every reasonable means to enforce this restraining order. You shall arrest, or . . . seek a
warrant for the arrest of the restrained person when . . . the restrained person has violated or attempted to violate
any provision of this order . . .”622
The husband violated the order by kidnapping the couple’s three children. Ms. Gonzales notified the
police repeatedly, alerting them to the protective order and even the location of her husband. Mr. Gonzales
subsequently murdered the children. The Court ruled that the explicit language of the order did not require the
police to do anything and provided no cause of action.
There is not even the right to have the police patrol one’s neighborhood. In 1972, Kansas City, Missouri
conducted a patrol experiment to discover the impact of vehicle patrols on crime rates. Some neighborhoods
received increased patrols, some the same level, some none at all. The neighborhoods involved were not informed
they were part of a test, much less given a choice as to which group they could join.623 The experimenters were
surprised to find that vehicle patrols made no difference in crime rates or citizen satisfaction. A later withdrawal
of patrols was less popular. On June 1, 1996, drug dealers in the area of 27th and Benton in Kansas City became
outraged at the arrest of one of their guild and rioted. Police units were withdrawn from the area in order to allow
emotions to burn themselves out. While doubtless good operational practice, it was a trifle hard on the citizens at
27th and Benton. The rioters burned a passing car and attacked the owner.
It might have been worse. During the April 1980 riots in Miami, police headquarters was under siege by
the rioters.6248 It could be a great deal worse. National Guard troops assigned to guard airports after 9-11 carried
unloaded weapons in many cases. 625 It appears that some commanders were more concerned about a John Wayne
mentality among their troops than they were about terrorists in the airport. It might have been a very great deal
worse. In 1919, the Boston police went on strike for 102 days and Home Guard units formed for WW I had to be
called in. 626
One can never be certain of police response. There are regular “blackouts” in Kansas City when no police
officer is available for any call. 627 When they are available, there is no guarantee they can be called. The Kansas
City emergency communications system is notorious for dead spots, areas where it functions badly or not at all.
Even the Plaza, a fashionable shopping district less than five miles from the communications building, has
numerous dead spots endangering police, firefighters, and citizens.628
A Kansas City police officer, while vainly radioing for backup, was shot and wounded by a drug dealer.
Officers were a minute away, but the radio crackled and hummed ineffectively, telling the assailant that the
622
Town of Castle Rock v Gonzales, 545 U.S. 748 (2005).
623
Wilson, THINK ABOUT CRIME, Basic Books, Inc N.Y. 1983 at 66-8.
624
Buchanan, THE CORPSE HAD A FAMILIAR FACE, Charter Books N.Y. 1989 at 311.
625
“Some guardsmen carried empty weapons at airports” Kansas City Star 27 May, 2002 at A9, clm 1.
626
_____ U.S. Home Defense Forces NOVA Publications McLean VA 1981 at 33. [Plaintiff’s Note: As of June 28, 2008: US
Home Defense Forces (1981). This study was performed for the Assistant Secretary of Defense (MRA&L). The study
provides the first and only detailed account of the forces raised by the states to maintain order when their National Guard
units were mobilized into federal service during World War I, World War II, and the Korean War. 127 pages. $15.00, No.
NP083. NOVA Publications, 7342 Lee Highway, No. 201, Falls Church, VA 22046 Order online at
http://members.aol.com/novapublic/prod02.htm]
627
Cindy Eberting, “Police too busy to answer all calls” Kansas City Star 26 June, 1996 at A-1, clm 6.
628
Kansas City Star 20 March, 1997 page C-1, clm 1, and page 2, clm 1.
EXHIBIT 2 - NO RIGHT 409

TO POLICE PROTECTION DOCTRINE
officer was alone and vulnerable. The officer sued the radio system builders.629 It is possible to sue such outside
parties, but not possible to sue the police.
When police are available and can be called, they may not respond. A New York City woman pressed a
silent alarm when an armed robber entered her business. The alarm company called 911; the operator, however,
garbled the name of the business. The lady was murdered while the authorities put it down as a false alarm. After
her funeral, the company received a letter threatening no response if there were further such alarms.630
A Kansas City businessman was alerted to a burglary by his alarm company. He went to his business,
expecting to be met by the police, only to find himself pursuing the burglar alone. The alarm company had called
911, but the dispatcher refused to send police officers because the business’ alarm permit had expired. In fact, the
alarm permit had not expired.631 A permit system intended to limit false alarms has instead been used to limit
police protection.
The ACLU has provided video cameras to residents of a crime-ridden St. Louis neighborhood. The
cameras are not to provide evidence of crime, but to document police brutality. While police brutality does occur,
the effort is not likely to speed officers to calls in the neighborhood.
The problem of “de-policing” has arisen since the Cincinnati riots of 2000. The term describes a
demoralized police force which no longer initiates action out of fear of criticism, police discipline, civil suits, and
even criminal charges. 632 In the last twenty years, “community policing” has relied on aggressive enforcement of
seemingly minor laws on the theory that lack of enforcement indicates a tolerance of serious crime. With
criminals filing bogus criminal charges against aggressive officers, and wild charges of racism (some both wild
and true) many officers are reluctant to exercise the requisite aggression.
When the system functions, and an officer is available, and an officer responds, it may still not be enough.
One department’s policy is to wait for backup when responding to domestic violence reports. This sensible
practice had a woman stabbed to death while a police officer sat in his car three doors away, waiting for
backup.633
Police response is directly related to police contact. This contact is tied to cell phone coverage and the
911 system. Cell phone coverage can be eccentric and dependent on the reliability of electronic devices. Even
today, not all of Missouri is covered by the 911 system, and there is no map of the places that are not covered (for
those who like surprises). Some places have the equipment to locate a 911 call from a cell phone to within 75
yards, but most can only narrow it down to the nearest cell phone tower. A Missouri cell phone user can dial *55
and be linked to a Highway Patrol headquarters, but not necessarily the nearest headquarters.634
Police are recruited from “Type A” aggressive personalities. They want to rescue people and charge into
danger; it is their nature. However, they are ruled by bureaucrats and politicians both in and out of uniform. If
these rulers decide that a person or persons shall not receive police protection, there is no recourse. One federal
629
Kansas City Star, 25 September, 1997 page C-1, clm 5. Ironically, it was later discovered that the failure of the system
was due to requirements imposed by the city over the objections of the company.
630
Kopel “THE 911 GAMBLE” Blue Press, October, 1998 at 10.
631
Lila LaHood “Records flawed; alarm goes unanswered” Kansas City Star, August 8, 1998 at C-1, clm2.
632
“Wary of racism complaints” Seattle Times 26 June, 2001 and “Three tales prove job is impossible” N. Y. Post August 6,
2001.
633
“Superior says officer acted right” Kansas City Star 20 May, 1987 page 1, clm 5.
634
Author’s conversation with 911 Coordinator, Emergency Management Agency, Missouri Department of Public Safety, 7
June, 1999.
410
court has proclaimed that “there is no constitutional right to be protected by the state against being murdered by
criminals or madmen.”635 Fortunately, there is a constitutional right to the means to defend ourselves.
635
Bowers v DeVito, 686 F.2d 61
EXHIBIT 2 - NO RIGHT 411

TO POLICE PROTECTION DOCTRINE
EXHIBIT 3 –HELLE’S FUTURE IN THE LOWER COURTS
EXHIBIT 3. Heller’s Future in the Lower Courts

HELLER’S FUTURE IN THE LOWER COURTS
102 Northwestern University Law Review Colloquy 406 (2008)
Glenn H. Reynolds
Beauchamp Brogan Distinguished Professor of Law
University of Tennessee.
Brannon P. Denning
Professor of Law and Director of Faculty Development
Cumberland School of Law, Samford University.
The Supreme Court has released its long-awaited opinion in District of Columbia v. Heller, No. 07-290,
slip op. (U.S. June 26, 2008) (link).636 and the buzz has been considerable. Though much has been made of the
majority’s historic ruling and of the narrowness of that majority, many commentators have missed an important
point. What Heller is most notable for is its complete and unanimous rejection of the “collective rights”
interpretation that for nearly seventy years held sway with pundits, academics, and—most significantly—lower
courts.
The repudiation of this extensive body of case law637 suggests that the real test of Heller will occur once
the lower courts, traditionally hostile to an individual rights interpretation of the Second Amendment, face the in-
evitable follow-up cases challenging other restrictive gun laws. Experience with other seemingly groundbreaking
Supreme Court decisions in recent years, such as United States v. Lopez, suggests that lower-court foot-dragging
may limit Heller’s reach, though this time around there will likely be considerably more scrutiny and more
vigorous litigation efforts. If the lower courts present a challenge to the implementation of Heller, they also
provide litigants with an opportunity. Given the fact that the Heller majority declined to give a detailed
accounting of the proper standard of review to be used in subsequent Second Amendment cases, litigants have a
rare opportunity to write on a tabula much more rasa than is ordinarily the case in constitutional litigation,
making use of recent scholarship on the crafting of constitutional decision rules that implement constitutional
provisions.
In the pages that follow, we take a look at these aspects of Heller. The triumph of the Standard Model of
the Second Amendment is examined in Part I. Part II asks whether Heller is merely the opening volley in the
coming judicialization of the gun control debate, or whether like the Court’s attempt to rein in congressional
power under the Commerce Clause, Heller will ultimately be seen as largely symbolic. Finally, in Part III, we
discuss the possibility that recent scholarship on constitutional doctrine might play a role in separating permissible
from impermissible gun controls post-Heller.
I. INDIVIDUAL AND COLLECTIVE RIGHTS
Pre-Heller discussions of the Second Amendment noted the conflict between an individual rights model
in which the Amendment confers a right to arms on individual citizens, who are entitled to use the courts to resist
infringements in the same fashion as other constitutional rights such as free speech or privacy, and a collective
rights model in which they are not. Under the formulation of this individual right arrived at by a large number of
Second Amendment scholars (often referred to as the “Standard Model” of Second Amendment individual rights
636
No. 07-290, slip op. [(554 U.S. ___ )] (U.S. June 26, 2008)
available at http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf.
637
See Brannon P. Denning, CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES V.
MILLER AND THE SECOND AMENDMENT, 26 CUMB. L. REV. 961 (1996) (criticizing the case law citing United States v. Miller
as authority for rejecting an individual rights interpretation).
412
interpretation), the right is not absolute, but is extensive: “[t]he purpose of the right to bear arms is twofold: to
allow individuals to protect themselves and their families, and to ensure a body of armed citizenry from which a
militia could be drawn, whether that militia’s role was to protect the nation or to protect the people from a
tyrannical government.”638
Set against this individual rights view was the so-called collective rights interpretation, under which the
Second Amendment protects only the right of states to maintain an organized militia (often characterized as the
modern-day National Guard) and gives rise to no judicially enforceable right to bear arms on the part of
individuals. This theory characterized virtually all writing on the subject from the federal courts of appeals after
the Supreme Court’s 1939 opinion in United States v. Miller,639 though the Miller opinion itself did not adopt a
collective rights approach. 640 Under the collective rights theory, the Second Amendment, if it were susceptible to
judicial enforcement at all, could only be invoked by a state government whose state militia was impaired by
federal action. Individuals, even those claiming membership in a state’s “unorganized” militia, could not
challenge federal gun laws.641
Shortly after Miller was decided, federal courts of appeals began to overread it and to cite it for the
proposition that only arms borne with the intent of participating in or contributing to the efficacy of a militia were
protected. 642 These courts essentially equated the Miller Court’s refusal to hold that a sawed-off shotgun was
protected by the Second Amendment with a refusal to recognize any individual right under the Amendment that
was not, first and foremost, concerned with the maintenance of an organized and government-regulated military
body.643
638
Glenn Harlan Reynolds, A CRITICAL GUIDE TO THE SECOND AMENDMENT, 62 Tenn. L. Rev. 461, 475 (1995), available at
639
307 U.S. 174 (1939); see, e.g., Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942) (stating that the Second
Amendment was designed to foster “the efficiency of the well regulated militia . . . as necessary to the security of a free
state”); United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942) (stating that the Second Amendment “was not adopted with
individual rights in mind”).
640
See Brannon P. Denning and Glenn H. Reynolds, TELLING MILLER’S TALE: A REPLY TO DAVID YASSKY, 65 L. & Contemp.
Probs. Spring 2002, at 113, available at
http://www.law.duke.edu/shell/cite.pl?65+Law+&+Contemp.+Probs.+113+(Spring+2002) (discussing holding in Miller in
light of briefs and arguments) .
641
“Unorganized” militia, by statute, designate able-bodied males within a certain age range as members. Unorganized
militia are contrasted with the “select” militia of a state, which correspond roughly to the state’s National Guard. See, e.g., 10
U.S.C. § 311 (2000) (classifying the able-bodied male population aged 17–45 as the unorganized militia of the United States)
http://www.law.cornell.edu/uscode/10/311.html. State rules are similar, except that many states include women. See, e.g.,
Kan. Stat. Ann. § 48-904(e) (1983) (“ ‘[U]norganized militia’ means all able-bodied male and female persons between the
ages of 16 and 50 years.”); Ohio Const. art. IX, § 1 (1994) (authorizes “all citizens” to serve); Or. Rev. Stat. § 396.105(3)
(1994) (“The unorganized militia shall consist of all able-bodied residents of the state between the ages of 18 and 45 who are
not serving in any force of the organized militia or who are not on the state retired list and who are or who have declared their
intention to become citizens of the United States; subject, however, to such exemptions from military duty as are created by
the laws of the United States.”).
642
MILLER AND THE SECOND AMENDMENT, 26 CUMB. L. REV. at 981-87 (1996) (discussing early cases applying Miller).
643
See, e.g., Cases, 131 F.2d at 923; Tot, 131 F.2d at 266; Brannon P. Denning, CAN THE SIMPLE CITE BE TRUSTED?: LOWER
COURT INTERPRETATIONS OF UNITED STATES V. MILLER AND THE SECOND AMENDMENT, 26 CUMB. L. REV. at 981-87
(discuss-ing Cases and Tot). But see District of Columbia v. Heller, No. 07-290, slip op. at 49–50 [(554 U.S. ___ )] (U.S.
June 26, 2008) (“It is entirely clear that the [Miller] Court’s basis for saying that the Second Amendment did not apply was
not that the defendants were ‘bear[ing] arms’ not ‘for . . . military purposes’ but for ‘nonmili-tary use’ . . . . Rather, it was that
the type of weapon at issue was not eligible for Second Amendment protection . . . . Beyond that, the opinion provided no
explanation of the content of the right.”).
EXHIBIT 2 –HELLE’S F413

UTURE IN THE LOWER COURTS
Subsequent courts went further, stating that Miller held that the Second Amendment did not guarantee an
individual right.644 Reading those opinions closely, however, it is clear that many simply relied on what other
courts had said about Miller, and some judicial characterizations of Miller’s facts are so inaccurate that it is
difficult to believe that the judge writing the opinion could have actually read the Miller decision itself. 645 Lower
court discussions of Miller resembled a game of judicial Telephone, with the actual holding of Miller becoming
less and less recognizable as the years progressed. Prior to Heller, only the Fifth Circuit in United States v.
Emerson646 held that the Second Amendment creates an individual right, although it found the right was not
violated by the facts at hand.
II. THE LOWER COURTS AND THE HELLER DECISION
It is impossible to review the Second Amendment jurisprudence from the federal courts of appeals
(excepting only Parker v. District of Columbia,647 the lower-court version of Heller, and United States v.
Emerson) without noting two things: a significant hostility toward individual rights arguments, and a surprisingly
deep investment in their own case law, despite its rather tenuous anchor in the Supreme Court’s decisions. This
raises the question: what will they do when presented with gun-rights cases post-Heller?
There is some reason to expect that the answer will be “not much.” The last constitutional revolution led
by the Supreme Court—via its Lopez and Morrison648 decisions limiting Congressional power—essentially
petered out in the face of lower-court resistance.649 In light of Gonzales v. Raich,650 which upheld the application
of federal drug control laws to local, non-commercial, medical marijuana, lower court reluctance to read Lopez
and Morrison looked prescient. Will that happen again with the Second Amendment?
Congress’s enumerated power to regulate commerce among the several states. In the years following Lopez,
hundreds of cases flooded the lower courts, most brought by defendants convicted of violating various federal
criminal statutes, claiming that those laws also exceeded Congress’s commerce power.651 In the five years after
Lopez, however, only one law—the civil suit provision eventually invalidated in Morrison—was struck down by a
federal appellate court.652 Even after Morrison, when the Court not only reaffirmed Lopez but seemed to add,
644
MILLER AND THE SECOND AMENDMENT, 26 CUMB. L. REV. 988-98 (1996) (discussing lower court cases).
645
See id. at 997–98 (discussing Hickman v. Block, 81 F.3d 98 (9th Cir. 1996)).
646
270 F.3d 203 (5th Cir. 2001).
647
478 F.3d 370, 395 (D.C. Cir. 2007) (concluding “that the Second Amendment protects an individual right to keep and bear
arms”), aff’d sub nom. District of Columbia v. Heller, No. 07-290 (June 29, 2008).
648
United States v. Morrison, 529 U.S. 598 (2000) (invalidating the civil-suit provision of the Violence Against Women Act
as beyond Congress’s commerce power). http://supreme.justia.com/us/529/598/
649
HELD A CONSTITUTIONAL REVOLUTION AND NOBODY CAME? 2000 WIS. L. REV. 369 (2000) [hereinafter Reynolds & Denning,
CONSTITUTIONAL REVOLUTION]; Brannon P. Denning & Glenn H. Reynolds, RULINGS AND RESISTANCE: THE NEW COMMERCE
CLAUSE JURISPRUDENCE ENCOUNTERS THE LOWER COURTS, 55 Ark. L. Rev. 1253 (2003) [hereinafter Denning & Reynolds,
RULINGS AND RESISTANCE] (discussing lower court cases following Morrison).
650
possessed for local, medicinal use under state law) http://supreme.justia.com/us/536/545/.
651
Several of these challenges are discussed in Glenn H. Reynolds & Brannon P. Denning, LOWER COURT READINGS OF
LOPEZ, OR WHAT IF THE SUPREME COURT HELD A CONSTITUTIONAL REVOLUTION AND NOBODY CAME? 2000 WIS. L. REV. 369
(2000).
652
v. Morrison, 529 U.S. 598 (2000).
414
“and we mean it,” courts were still reluctant to rigorously analyze federal statutes using the Lopez-Morrison
framework. Though before Raich signaled a retreat, lower courts were beginning to uphold as-applied challenges
to particular federal statutes.653 Will Heller suffer Lopez’s fate, serving more as casebook fodder than as actual
authority? On the surface, there are some analogies between the Commerce Clause and the Second Amendment
that suggest that, like Lopez, Heller itself may end up as so much sound and fury, signifying nothing—or at least
nothing much.
First, there are the institutional prejudices of the courts of appeals, favoring the status quo and possessing
a desk-clearing mentality. Like the bureaucrats they increasingly resemble, the members of the appellate judiciary
do not like to rock the boat. In addition, the courts of appeals have a history of more-or-less open hostility to
claims of a private right to arms. The vast majority of cases to date suggest that, to the extent they can, they will
try to rule against such a right. Second, as was true following Lopez, there are few federal firearms laws that are
vulnerable under Heller. Indeed, Justice Scalia’s opinion took some pains to make clear what the Court was not
calling into question:
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of
arms.654 Indeed the very enumeration of “presumptively lawful regulatory measures” seemed calculated to reduce
expectations among, for example, felons convicted of possessing firearms in violation of federal law that Heller
represented a “Get Out of Jail Free” card.
Third, the Heller majority’s refusal to be pinned down on a specific standard of review might also leave
an opening for lower courts to confine Heller to its facts.655 For example, a court might read Heller as standing
for the proposition that anything less than an absolute ban could pass muster. Even if a reviewing court adopts the
kind of intermediate standard of review urged by the Solicitor General,656 it might simply apply the standard in a
way that defers to governmental judgments about the necessity of regulation. A more explicit articulation of the
standard to be employed could have discouraged lower court evasion of Heller, or at least made such evasion
somewhat easier to detect, if the Court was inclined to monitor lower courts for compliance, something that it did
not do following Lopez.657
Fourth, because the majority preemptively (perhaps “peremptorily” is a better word) signaled its view
that a number of federal gun control laws would not be called into question by Heller,658 the most promising
targets—local gun bans similar to the District’s and restrictive state gun laws—lie beyond the immediate scope of
Heller because the Second Amendment remains outside those provisions of the Bill of Rights that have been
653
See Brannon P. Denning & Glenn H. Reynolds, RULINGS AND RESISTANCE: THE NEW COMMERCE CLAUSE JURISPRUDENCE
ENCOUNTERS THE LOWER COURTS, 55 Ark. L. Rev. 1253 (2003) (describing these as-applied challenges).
654
District of Columbia v. Heller, No. 07-290, slip op. at 54–55 (U.S. June 26, 2008) available at
http://www.supremecourtus.gov/opinions/07pdf/07-290.pdf.. A foot-note added, for good measure, that the Court’s list of
“these presumptively lawful regulatory measures . . . does not purport to be exhaustive.” Id. at 55 n.26.
655
656
content/uploads/2008/01/us-heller-brief-1-11-08.pdf .
657
Whatever one thinks of the substance of his test or how well that test implements the right guar-anteed by the Second
8–12 (Breyer, J., dissenting) (describing the “interest-balancing” approach he would employ in Second Amendment cases).
658
See supra note 654 and accompanying text.

incorporated through the Fourteenth Amendment and applied to states.659 Thus, the true test of Heller’s reach will
turn on whether the Court will be willing to entertain one of the proliferating number of cases challenging these
laws.660 If the Court does not, then, like Lopez, Heller may end up having all the robustness of a “but see” cite. 661
On the other hand, there are several important differences that ought not be overlooked between the
situation following Lopez and that likely to follow Heller. Perhaps most important is the fact that there was
virtually no coordinated follow-up litigation to Lopez on the part of the public interest bar. Most of the litigation
was opportunistic: Lopez was cited in just about every appeal on behalf of those convicted of federal criminal
offenses, who, as a group, rarely present the most sympathetic face. By contrast, several lawsuits were filed
challenging gun control laws in other communities within hours of the Heller opinion’s publication. 662 Given the
stakes, interest groups challenging local laws have greater incentive than individual criminal defense attorneys to
ensure that only the best cases with the cleanest facts are brought.
Moreover, there was relatively little public interest in Lopez or the Commerce Clause. The Second
Amendment, on the other hand, is among the most significant provisions of the Bill of Rights from the standpoint
of public engagement.663 The public interest groups sponsoring follow-up litigation will have every incentive to
publicize lower court attempts to evade or blunt the effect of Heller and can try to choose cert-worthy cases from
among those to be litigated. Given popular interest, the media and elected officials will have an incentive to
monitor lower court implementation of Heller. It is also possible that the lower courts’ hostility to an individual
right to arms was largely a product of the zeitgeist of an earlier era, carried forward as much by habit and stare
decisis as by any institutional interest. With the individual right theory of the Second Amendment now not only
endorsed by the Supreme Court, but also, thanks to extensive scholarship, academically respectable (and, of
course, popular with a very large majority of citizens) it may be that today’s federal judiciary will be less hostile
to the right than past courts. A related point is that lower court judges may perceive the stakes differently in
Heller than they did in Lopez. Following Lopez to its logical conclusions suggested rethinking the foundations of
the modern New Deal state, if not mandating the unwinding of that state. At the very least, it presented an
opportunity for hundreds of criminal defendants to escape the consequences of their convictions. Neither was an
appealing option for even the most ardent advocate for limiting federal power, so judges strenuously resisted
following Lopez wherever it might lead—especially if it meant revisiting the constitutional legitimacy of statutes
like the 1964 Civil Rights Act. By contrast, even reading Heller for all that it is worth, it is clear that significant
regulations of private firearms ownership—including various licensing regimes—are not necessarily
presumptively unconstitutional.
Finally, despite the unanimity of the Court in its conclusion that the Second Amendment protected some
individual right, the alternative limiting implementations of that right were expressed as dissents, as opposed to
659
United States v. Cruikshank, 92 U.S. 542 (1875) (refusing to apply the First and Second Amendments to the states)
http://supreme.justia.com/us/92/542/case.html. For Heller’s discussion of Cruikshank and its continued significance in light
of the Court’s incorporation of most provisions of the Bill of Rights to the states, see Heller, No. 07-290, slip op. at 47–49 &
nn.22–23.
660
661
Cf. John Copeland Nagle, THE COMMERCE CLAUSE MEETS THE DELHI SANDS FLOWER-LOVING FLY, 97 Mich. L. Rev. 174,
176 (1998) (“Whether Lopez marks a dramatic shift in Commerce Clause jurisprudence or is instead destined to be a ‘but see’
citation remains to be seen.”).
662
See, e.g., Maura Dolan, The 2nd Amendment: Reaction to the Court Ruling, L.A. Times, June 27, 2008, at A19, available
at http://www.latimes.com/news/nationworld/nation/la-na-legal27-2008jun27,0,3173451.story.
663
See Jeffrey M. Jones, Public Believes Americans Have Right to Own Guns, Gallup, Mar. 27, 2008,
73%, believes the Second Amendment to the Constitution guarantees the rights of Americans to own guns.”).
416
partial concurrences.664 Thus, there are not any narrow concurring opinions whose authors essentially control the
outcome of future cases; the alternative approaches of the dissenters are, well, dissents. Imagine a situation,
though, in which Justice Breyer’s “interest-balancing” approach was a concurring opinion; lower courts seeking
to limit Heller might choose Justice Breyer’s standard of review in the absence of anything definite in the
In Lopez, for example, though the Court listed a number of factors bearing on whether a given local
activity “substantially affected” interstate commerce or not, the Court did not make clear whether all factors had
to be satisfied, or just some, or whether some factors were indispensible to a finding that regulated activity had a
substantial effect on interstate commerce. In response, many lower court judges interpreted the opinion narrowly.
The presence of any factor distinguishing the statute under review from the Gun Free School Zones Act was
deemed sufficient to turn back the constitutional challenge.666 Which set of forces will prevail? It’s impossible to
say for certain, so we’ll equivocate and say, “it depends.” Bureaucrats tend to take the path of least resistance, and
least controversy. Though some foot-dragging is likely, it’s equally likely that the kind of resistance demonstrated
in response to Lopez won’t manifest itself in response to Heller, as such resistance would likely produce far more
controversy.
III. HELLER AND DECISION RULES
Because of its reticence on the subject, Heller presents litigants with an opportunity to sell lower courts
on a standard of review largely unencumbered by binding precedent. Subsequent litigation, then, might be a good
test subject for examining the role that “decision rules” play in the “implementation” of constitutional rights.667
Given the considerable discretion that courts have in fashioning rules to implement constitutional guarantees,668
and the variety of doctrinal tests the Court has employed over the years to enforce various constitutional
provisions,669 it is clear that older discussions framing the choice as between individual rights/strict scrutiny vs.
states’ or collective rights/rational basis embodied a false choice.
664
665
Likewise, Justice Stevens’s primary dissent is, if anything, less clear than Justice Scalia’s majority opinion on the
666
See See Glenn H. Reynolds & Brannon P. Denning, Lower Court Readings of Lopez, or What if the Supreme Court Held a
Constitutional Revolution and Nobody Came? 2000 Wis. L. Rev. 369 at 385-91 (2000) (discussing several such cases).
667
What one of us has elsewhere called the “new doctrinalism” is concerned with judicial generation of rules that implement
or enforce constitutional meaning. See generally Brannon P. Denning, THE NEW DOCTRINALISM IN CONSTITUTIONAL
SCHOLARSHIP AND DISTRICT OF COLUMBIA V. HELLER, 75 Tenn. L. Rev. (forth-coming 2008); Kermit Roosevelt III, THE
MYTH OF JUDICIAL ACTIVISM 22–36 (2006); Mitchell N. Berman, CONSTITUTIONAL DECISION RULES, 90 Va. L. Rev. 1 (2004)
(link); Richard H. Fallon, Jr., IMPLEMENTING THE CONSTITUTION 76–101 (2001).
668
See, e.g., Kermit Roosevelt III, THE MYTH OF JUDICIAL ACTIVISM 22–36 (2006); Mitchell N. Berman, CONSTITUTIONAL
DECISION RULES, 90 Va. L. Rev. at 23-36 (2004); Mitchell N. Berman, CONSTITUTIONAL DECISION RULES, 90 Va. L. Rev. 1
(2004) (link); Richard H. Fallon, Jr., IMPLEMENTING THE CONSTITUTION at 92-100 (2001) (describing factors influencing
choices of decision rules).
669
See Richard H. Fallon, Jr., IMPLEMENTING THE CONSTITUTION 77–79 (2001) (listing “A Catalogue of Constitutional
Tests”).

As scholars such as Adam Winkler, and the Solicitor General’s brief made clear, recognition of an
individual right does not doom all gun control regulations to constitutional oblivion.670 Subsequent litigation
offers an opportunity for litigants to educate lower courts about the choices they have and offer the guidance the
Court declined to provide about crafting rules that implement the guarantee Heller recognized. Scholars, too, have
an opportunity to enter into the sort of dialogue with courts that both academics and judges agree is far too rare.
This will be especially true of cases involving state and local restrictions—laws whose constitutionality was not
squarely presented in Heller. Litigants ought to study and develop responses to Justice Breyer’s “interest-
balancing” standard of review. Likewise, those defending existing or proposed gun controls—especially those that
do not go as far as the District’s did—have another opportunity to argue against categorical rules and
presumptions of unconstitutionality. In truth, this is probably the debate that we should have been having all these
years: which regulations of private firearms are the “reasonable” ones that most people—including most of those
who support an individual rights reading of the Second Amendment—can support. At the very least, the Court’s
interring of the “collective rights” or “military purpose” interpretation of the Second Amendment has cleared the
way for that debate to begin.
CONCLUSION
Though the civics-book formulation provides that the Supreme Court establishes clear principles which
lower courts should conscientiously apply, reality is considerably more complex and frequently less satisfying.
Unfortunately, as many lawyers can attest, the Supreme Court often formulates principles that are not clear, and
sometimes it fails to establish principles at all. Lower courts, meanwhile, are not always conscientious in
following the Supreme Court’s lead, whether for reasons of bureaucratic rigidity or because they have their own
agendas. Given the Supreme Court’s light caseload, and the enormous number of cases in the lower courts, the
path taken by the federal judiciary can diverge considerably from that established by the Supreme Court.671 Will
Heller be such a case? As we have noted before, this depends—upon the behavior of litigants, upon the
predilections of lower court judges, and upon the degree and nature of scrutiny that the process receives. For us, at
least, it offers an opportunity to continue our study of how Supreme Court precedent influences lower courts in an
entirely new context, for which we are properly grateful.
670
See generally Adam Winkler, Scrutinizing the Second Amendment, 105 MICH. L. REV. 683 (2007); Brief for the United
States as Amicus Curiae, supra note 21. But see Glenn Harlan Reynolds, Guns and Gay Sex: Some Notes on Firearms, the
Second Amendment, and “Reasonable Regulation”, 75 TENN. L. REV. 137 (2007) (comparing “reasonable regulation” in
Second Amendment context to reason-able regulation in the context of the Supreme Court’s unenumerated rights
jurisprudence).
671
See Glenn Harlan Reynolds, LOOKING AHEAD: OCTOBER TERM 2007, 2007 CATO SUP. CT. REV. 335, 350–52
(describing the Supreme Court’s reduced influence on federal courts of appeals).
418
EXHIBIT 4 – THE LAW OF CITIZEN’S ARREST
EXHIBIT 4. The Law of Citizen’s Arrest 65 Columbia L.Rev. 502 (March 1965)
The Law of Citizen’s Arrest

65 Columbia Law Review, 502-513 (March 1965)
I. The Arrest
A. Nature of the Crime
B. Time of the Arrest
C. Presence During Commission of the Crime
D. Notice of Arrest
E. Detention of thbe Person Arrested
F. Use of Force [Not Needed in This Instance]
The Article Outline Above Adapted to the Case at Hand.
“The role of the private person in the apprehension of criminals is defined by the law of citizen’s arrest -- an
outgrowth of stagnated common-law rules that were derived from English practices of the Middle Ages. The
inadequacy of existing law is perhaps suggested by the scant protection currently afforded the responsble citizen
voluntarily participating in law enforcement. . . .”
“If the private citizen is to assume his proper responsibility in the enforcement of the criminal law, the immunities
and limitations of citizen’s arrest must be clerarly defined. If professional enforcement authorities are to receive
necessary assistance from private individuals, the scope of citizen’s arrest must be adapted to the conditions and
problems of modern soceity.”
A. Nature of the Crime
Felony extortion under color of law & official right, 18 U.S.C. § 872 versus the Seamen’s Suit law, 28
U.S.C. § 1916
B. Time of the Arrest
Citizen’s Arrests have been obstructed under threat of my own arrest by the U.S. Marshals Service. I
waited patiently for the U.S. Attorney, the U.S. Marshals Service, the FBI, or the U.S. Department of Justice to
review my Citizen’s Arrest Warrants and to begin corresponding with me to achieve a proper remedy. They
remain silent. Time has run out. This is their final notice. Citizen’s Arrest is now imminent.
C. Presence During Commission of the Crime
The U.S. Marshals Service claims that I was not present during the alleged extortion, i.e., in the presence
of the judges signing their court orders compelling me to pay the filing fees.
However, the Online (Internet) Docket Report is the lawful substitute for presence during the commission
of the crime. Citing from the Columbia Law Review article:
“. . . the [presence] requirement has been held satisfied in cases of perception by artificial means. For example,
where a concealed radio transmitter conveyed sounds indicating the commision of a crime inside a house, the
listener was deemed present at the crime for purposes of effecting a valid citizen’s arrest. People v. Burgess, 170
Cal. App. 2d 36, 338 P.2d 524 (Dist. Ct. App. 1959).
“An exception to the observation requirement has been recognized in cases where a crime has been committed
earlier and the supposed offender threatens to renew his criminal conduct. In this situation, the private citizen can
make an arrest without having witnessed the commission of a crime. . . .
EXHIBIT 4 – THE LAW OF419

CITIZEN’S ARREST
“The traditional requirement of firsthand observation of a crime may well have outlived its usefulness as an
appropriate limitation on citizen’s arrest. The purpose of the requirement is presumably to prevent the danger and
imposition involved in mistaken arrests based upon uncorroborated or second-hand information. Its principal
impact is in cases wherre the citizen learns of the commission of a crime and assumes the responsibility of
preventing the escape of the offender. . . .
“. . . In view of the already stringent temporal limitations that insure close proximity to commission of the crime,
it would seem preferable to lower the incidence of mistaken arrests not through an arbitrary requirement of
firsthand observation but by application of a standard of probable cause -- namely, that the apprehension be
justified by probable cause for believing a crime had been committed.” Cf. Cal. Pen. Code § 836 (police arrest
without a warrant) [Cal. Pen. Code § 836 still current today] Wis. Stat. Ann. § 954.02 (1958) (same) [Wis. Stat.
Ann. for arrest without a warrant today is § 23.57]
D. Notice of Arrest
“Because every man was privileged to resist unlawful attempts to restrict his freedom, the common law required
notice to be given that an apprehension represented a citizen’s arrest. An arrester was obliged to make
known his intent and the cause of the arrest. The notice requirement, however, was subject to a number of
significant exceptions -- as where the arrester reasonably believed that notice woulde either be futile or
unnecessary, endanger himself or others, or compromise the success of the arrest.” (See People v. Marendi,
213 N.Y. 600, 608-610, 107 N.E. 1058, 1060-61 (1915); Perkins, THE LAW OF ARREST, 25 Iowa L. Rev. 201, 250;
Ali, CODE OF CRIMINAL PROCEDURE § 26, comment at 167 (Tent. Draft No. 1, 1928).)
“The traditional notice requirement has been adopted by statute in the majority of states. In general the
notification must aqccurately point to criminal conduct actually committed, and be communicated prior to the
arrest.”
E. Detention of the Person Arrested
“Once proper notice has been given, the citizen must restrain the apprehended person by force or the threat of
force for the arrest to be valid. Mere compliance by the arrestee with a request to voluntarily submit to custody is
insufficient. Although at common law a restraining touch would of itself effect an arrest even if the arrestee was
never brought under physical control, actual detention is generally required by modern statutes.”
“The requirement of actual detention provides a necessary condition for determining the liability both of the
arrester for commission of false arrest and of the criminal for unlawful escape from custody.”
F. Use of Force
There is no need for me to resort to the use of force because the federal judges, the Chief Justice of the U.S.
Supreme Court and their court clerks have the U.S. Marshals Service, the Capitol Police, and the U.S . Supreme
Court Police to perform the taking into physical custody aspect of citizen’s arrest in accordance with DC Code
23-582(c). I do not have to bring the arrestee to a federal law enforcement agent. The federal law enforcement
agent will be present at my request to effect taking into physical custody aspect of the citizen’s arrest.
(7) To discover, clarify and/or establish lawful remedies to violations of federal laws and constitutional
rights by the three branches of the United States Government under constitutional law, human rights law, and the
Law of Nations when all available normative remedies become exhausted by the victim or ignored by the federal
courts through perpetual dismissals, or ignored by the executive and legislative branches (i.e., rejection of my
proposed Private Bill by the staff of U.S. Senator Mark Pryor of Arkansas and U.S. Representative Marion Berry
of Arkansas, the Plaintiff’s home state) up to and including the Law of Citizen’s Arrest, civil disobedience to
create a criminal remedy under the Sixth Amendment, the role of the unorganized militia in constitutional law;
and other means of enforcing the Checks and Balance System as implied by the “guarantee to every State in this
Union a Republican Form of Government.”
420
EXHIBIT 5 – DAVE KOPEL, U.N. TO THE WORLD: YOU HAVE NO HUMAN RIGHT TO SELF-DEFENSE
EXHIBIT 5. Dave Kopel: U.N. To World: You Have No Human Right to Self-
Defense
U.N. To World: You Have No Human Right to Self-Defense
Thwarted by the demise of its global gun ban treaty, the United
Nations declares the human right of self-defense null and void.
by Dave Kopel
Second Amendment Project
A Research Center for the Independence Institute
Published in the NRA Magazine “America’s 1st Freedom”
November 2006, pp. 26-29, 62-63.
http://www.davekopel.com/2A/Foreign/UN-To-World.htm
Self-defense is a privilege that governments may choose to grant or withdraw. You have no human right to
self-defense. If a government does not impose repressive restrictions on gun ownership—more severe than even
the laws in New York City or Washington, D.C.—then that government is guilty of violating international human
rights.
So says the United Nations in its latest assault on the Second Amendment.
This July, the National Rifle Association and other pro-freedom groups won a tremendous victory at the U.N.
Small Arms Review Conference when they helped block the creation of a global gun control treaty. Winning a
very important battle, though, is not the same as winning a war. Since then, the global gun prohibition movement
has already opened up a major new front in the war on our rights.
This fall, the General Assembly of the United Nations will be considering a new Arms Trade Treaty. The
treaty is backed by many governments, as well as by the world’s leading gun prohibition group, International
Action Network on Small Arms (IANSA). Once the final language of the treaty is approved by the General
Assembly, the treaty will be open for signature and ratification by all nations.
At the highest level of generality, the Arms Trade Treaty is based on a very good idea: prohibiting the sale of
arms to countries that use them to violate human rights. It would be a good idea, for example, if all nations
refused to sell arms to the dictatorships in Burma, Zimbabwe or Cuba, all of which have an atrocious record of
human rights violations. (And all of which, like other modern nations that are extreme violators of human rights,
have extreme laws against citizen gun ownership.)
However, any nation that has a conscience can already ban arms exports to such evil governments.
Conversely, nations such as China, which currently supply arms to human rights abusers all over the world, have
a long record of flouting the treaties they sign, so it would be foolish to expect that a new treaty would stop their
arms exports to their favorite tyrannical allies.
The Arms Trade Treaty will, however, increase international pressure to cut off arms sales to Israel. Although
Israel’s human rights record is far superior to any of its neighbors (and superior to the large majority of U.N.
members), the United Nations condemns Israel much more than any other nation for supposed violations of
human rights.
The Arms Trade Treaty can also be used to attempt to suppress the sale of civilian, police or military arms to
the United States. The reason is that the U.N. is working to declare that all American gun laws, as well as the right
to self-defense, are violations of human rights.
THE U.N. HAS appointed University of Minnesota Law Professor Barbara Frey as its “Special Rapporteur on
the prevention of human rights violations committed with small arms and light weapons.” A “Special Rapporteur”
is a U.N.-designated expert and researcher on a subject.
421 TO PROCEED PRO SE

EXHIBIT 6 – THE RIGHT OF A LITIGANT
Notably, the title the U.N. gave to Frey required her to look exclusively at how small arms are used to violate
human rights—and to ignore how small arms are used to protect human rights, such as when used to resist
genocide. But the one-sided nature of Frey’s research mission was consistent with her own views; Frey is a
member of IANSA and participated in a 2005 strategy meeting in Brazil designed to support the gun prohibition
referendum in that nation.
On July 27, Frey issued her final report, declaring that there is no human right to self-defense and that
insufficient gun control is a violation of human rights. (The report, “Prevention of human rights violations
committed with small arms and light weapons,” is available on IANSA’s website,
www.iansa.org/un/documents/salw_hr_report_2006.pdf.)
On Aug. 21, the U.N. Human Rights Council’s Sub-Commission on the Promotion and Protection of Human
Rights endorsed the Frey report in total and recommended that the full Human Rights Council (HRC) do so.
It’s important to note that the U.N. Human Rights Council, despite its name, is composed of some of the
worst human rights violators in the world, such as Cuba and Saudi Arabia. The U.N. rejected efforts by the United
States to join the Human Rights Council, and instead allowed dictatorships such as China and Pakistan to join.
It is all but certain that the Human Rights Council will follow the lead of its sub-commission and adopt the
Frey Report as an official statement of HRC policy on human rights. At that point, the global and American gun
prohibition lobbies can then begin to attack American gun laws because they “violate human rights.”
According to Frey, governments have an affirmative human rights obligation to protect their subjects from
violence. This obligation includes much more than simply making and enforcing laws against crime. According to
Frey, the “due diligence” obligations means that:
“It is reasonable for international human rights bodies to require States to enforce a minimum licensing
requirement designed to keep small arms and light weapons out of the hands of persons who are likely to misuse
them. … The criteria for licensing may vary from State to State, but most licensing procedures consider the
following: (a) minimum age of applicant; (b) past criminal record including any history of interfamilial violence;
(c) proof of a legitimate purpose for obtaining a weapon; and (d) mental fitness. Other proposed criteria include
knowledge of laws related to small arms, proof of training on the proper use of a firearm and proof of proper
storage. Licences should be renewed regularly to prevent transfer to unauthorized persons.”
BY THE FREY/HRC standards, every American jurisdiction is a human rights violator because its gun laws
are not severe enough. Even in New York City or Washington, D.C., the government does not require a gun
license applicant to prove that he or she has “a legitimate purpose.” Once New York City or D.C. finally let you
buy a shotgun, you can use it for any legitimate purpose—sporting clays, gunsmithing practice, collecting or even
self-defense (assuming that you somehow can retrieve the locked gun in time to use it against a home invader).
At every gun store in the United States, buyers must pass a background check under the National Instant
Check System (or a state equivalent). Most states do not require a separate license for handgun purchases and
even fewer require a license for long gun purchases. Only a few states mandate that a person who simply wants to
continue owning the guns he already has must renew a license from the government every few years. The absence
of mandatory, periodic licensing for continued possession of one’s own guns is another human rights violation,
according to Frey.
Similarly, the vast majority of American states allow children, under parental supervision, to use firearms; the
family, not the government, decides when a particular child is ready to take his or her first shots with the family’s
.22 pistol or rifle. Yet this, too, is a human rights violation, according to Frey and the HRC, since the government
has not specified a minimum age for a gun license.
The Frey/HRC rules declare almost all American self-defense laws to be human rights violations. The Frey
report declares: “When small arms and light weapons are used for self-defence, for instance, unless the action was
422
EXHIBIT 6 – THE RIGHT OF A LITIGANT TO PROCEED PRO SE
necessary to save a life or lives and the use of force with small arms is proportionate to the threat of force, self-
defence will not alleviate responsibility for violating another’s right to life.”
Moreover, “Because of the lethal nature of these weapons and the jus cogens (a mandatory norm of general
international law from which no two or more nations may exempt themselves or release one another) human
rights obligations imposed upon all States and individuals to respect the right to life, small arms and light
weapons may be used defensively only in the most extreme circumstances, expressly, where the right to life is
already threatened or unjustifiably impinged.”
Under international law, a jus cogens standard supersedes any contrary rule. Thus, Frey and the HRC are
declaring that their restrictive view of self-defense trumps any contrary state, national or international law.
The laws of all American states allow the use of deadly force against certain violent felonies (include rape,
torture and mayhem) when the person being attacked reasonably believes that no lesser force will suffice. Yet
Frey and the HRC will allow the use of deadly force only against a life-threatening attack, and not against other
violent felonies.
Thanks to NRA leadership, 14 states this year have adopted “Castle Doctrine” laws that state that a person
may use a firearm (that is, deadly force) against a violent felon without having to calculate whether lesser force
might suffice. The large majority of American jurisdictions state that a person who is attacked in his home need
not retreat when attacked, and some jurisdictions also apply the no-retreat rule in public spaces. Yet all of these
American protections of the right of self-defense are violations of human rights, according to the adopted report
of the U.N.’s Special Rapporteur.
YOU MIGHT WONDER HOW the U.N.’s claim that gun control is a human right, and that suppression of
self-defense is a human right, can be reconciled with the actual human right of self-defense. Such a reconciliation
is impossible, so the U.N., speaking through its Special Rapporteur, has simply declared that THERE IS NO
HUMAN RIGHT TO SELF-DEFENSE.
The Frey report admits that most criminal justice systems acknowledge self-defense, but the report claims that
self-defense is merely a government-granted exemption to criminal liability, and that this exemption must be very
narrowly construed.
Frey and the U.N. assert that the traditional sources of international law do not support the existence of a right
to self-defense. However, this premise is false.
The United Nations’ own Universal Declaration of Human Rights recognizes, in its preamble, a last-resort
right of self-defense against tyranny: “Whereas it is essential, if man is not to be compelled to have recourse, as a
last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.”
To list all the sources of human rights law that recognize the right of self-defense would take many thousands
of words, but the error of Frey’s assertion can easily be seen simply by looking to three of the great philosophers
universally regarded as founders of international law.
Hugo Grotius (Dutch, On the Law of War and Peace): “When our lives are threatened with immediate danger,
it is lawful to kill the aggressor, if the danger cannot otherwise be avoided … We must observe that this kind of
defence derives its origin from the principle of self preservation, which nature has given to every living creature.”
Emerich de Vattel (Swiss, The Law of Nations): “Every nation, as well as every man, has, therefore, a right
… to preserve herself from all injuries: and this right is a perfect one, since it is given to satisfy a natural and
indispensable obligation … It is this right to preserve herself from all injury that is called the right to security.”
Francisco Suárez (Spanish, 26 volumes, including De Legibus ac Deo Legislatore): Self-defense is “the
greatest of rights,” encompassing individual protection against criminals, as well as community self-defense
against tyrants.

The only way that the United Nations can use international law to deny the right to self-defense is to ignore
the fundamental sources of international law itself. Yet many American officials, including some Supreme Court
justices, have taken to using international law in defining the scope of the rights guaranteed by the United States
Constitution.
Professor Frey and the misnamed U.N. Human Rights Council are creating the tools that could, in the hands
of judges or other government officials who are hostile to the Second Amendment, be used to decimate both our
right to arms and our right to self-defense.
424
EXHIBIT 6. The Right of a Litigant to Proceed Pro Se: Amicus Curiae Brief in
Andrew Pickholtz v. Rainbow Technologies, Inc.and Software Security, Inc.
Amicus Curiae Brief of Halt – an Organization of Americans for Legal Reform Supporting Reversal of
the District Court in Andrew Pickholtz v. Rainbow Technologies, Inc. and Software Security, Inc., U.S. Court of
Appeals for the Federal Circuit, No. 01-1173; Appeal from the United States District Court for the Northern
District of California in 98-CV-2661, Judge Charles R. Breyer [EXCERPTED] has direct relevance to Plaintiff’s
case:
Introduction
The key issue presented in this case is whether the federal courts can treat a pro se litigant as a second
class citizen. In circumstances where an award of attorneys fees is an appropriate sanction for discovery abuse,
they should be awarded to a litigant proceeding pro se, just as they would be awarded to a litigant who is
represented by counsel. Amicus curiae HALT -- An Organization of Americans for Legal Reform submits that the
court below erred in its sweeping ruling that attorneys fees can never be awarded to a pro se litigant.
For tens of millions of Americans who cannot afford to hire a lawyer, litigating pro se is often their only
option. There is an overriding public interest in ensuring that these pro se litigants have full access to the
protections of our judicial system. Particularly in the context of discovery, where the award of attorneys fees is an
integral component of the prophylactic system that protects a party against misconduct by another party, the
courts cannot deny attorneys fees solely on the ground that a party is proceeding pro se.
Finally, failing to apply full sanctions against parties who have committed discovery abuses, simply
because the opposing party is not represented by counsel, perversely undermines the entire system of sanctions. If
a party knows that it can commit discovery abuses against a pro se litigant with a large degree of impunity, the
courts are actually fostering the kind of dilatory misconduct that occurred in this case.
I.
There is a fundamental right to proceed pro se in a civil case.
The Judiciary Act of 1789 provides that: “In all courts of the United States the parties may plead and
conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to
manage and conduct cases therein.” 28 U.S.C. § 1654. This ancient protection is rooted in the fundamental
principles of our jurisprudence. As the Eleventh Circuit said,
[T]he right to proceed pro se under 28 U.S.C. § 1654, is a fundamental statutory right that is afforded the
highest degree of protection. It is a right which is deeply rooted in our constitutional heritage, and although
statutory in origin, “its constitutional aura is underscored by the proposal the very next day of the Sixth
Amendment” to the U.S. Constitution.
Reshard v. Britt, 819 F.2d 1573, 1579 (11th Cir. 1987) (vacated on other grounds) (quoting United States
v. Dougherty, 473 F.2d 1113, 1123 (D.C. Cir. 1972)).
The Supreme Court underscored the historical importance of the right to selfrepresentation in Faretta v.
California, 422 U.S. 806 (1975), noting that
Thomas Paine, arguing in support of the 1776 Pennsylvania Declaration of Rights said: “Either party …
has a natural right to plead its own cause; this right is consistent with safety, therefore it is retained; but the parties
may not be able, … therefore the civil right of pleading by proxy, that is, by a council [sic], is an appendage to the
natural right [of self-representation] ….”
Faretta, 422 U.S. at 830 n.39, quoting Thomas Paine on a Bill of Rights, 1777, reprinted in 1 B.
Schwartz, The Bill of Rights: A Documentary History 316 (1971).

If, as Faretta holds, a criminal defendant has the right to proceed pro se, the right applies with even
greater force in a civil context. This is because, while impecunious criminal defendants are entitled to
representation by counsel at no charge, Gideon v. Wainwright, 372 U.S. 335 (1963), no comparable right exists
for civil litigants. However, civil litigants, like criminal defendants, often cannot afford counsel. The American
Bar Association estimates that thirty-eight million American households are actually denied access to the civil
justice system because they cannot afford a lawyer. See American Bar Association Consortium on Legal Services
and the Public, Agenda for Access: The American People and Civil Justice – Final Report on the Implications of
the Comprehensive Legal Needs Study (1996). For such persons to have access to the courts, their fundamental
right to self-representation in civil cases must be afforded the greatest protection.
PLAINTIFF’S NOTE:
On August 7, 2006, the American Bar Association’s House of Delegates (Task Force
on Access to Civil Justice) unanimously approved “Civil Gideon Representation”
“RESOLVED, That the American Bar Association urges federal, state, and territorial
governments to provide legal counsel as a matter of right at public expense to low
income persons in those categories of adversarial proceedings where basic human
needs are at stake, such as those involving shelter, sustenance, safety, health or child
custody, as determined by each jurisdiction.”
http://www.abanet.org/legalservices/sclaid/downloads/06A112A.pdf
On August 24, 2006 I filed my Motion for Civil Gideon Representation with the U.S.
District Court in Little Rock, Arkansas, No. 1:06mc0025.
On September 18, 2006 Judge William R. Wilson denied my Motion for Civil
Gideon court appointed attorney.
II.
Pro se litigants must have equal access to the discovery process.
Given that a party to a civil action has the right to proceed pro se, it follows that these litigants must be
given the same procedural protections and devices that are afforded to a litigant who is represented by counsel.
Without the benefit of those same procedural safeguards, the right to proceed pro se is rendered meaningless. The
Second Circuit noted as much when it stated that “[i]mplicit in the right to self-representation is an obligation on
the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of
important rights because of a lack of legal training.” Tragath v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983).
Because a civil litigant is not afforded an absolute right to counsel, Lassiter v. Dep’t of Soc. Serv., 452
U.S. 18, 26-27 (1981), a pro se litigant in a civil court must be given an equity of arms or she will be denied any
effective opportunity to vindicate her rights in court. Degan v. United States, 517 U.S. 820 (1996). Julie M.
Bradlow, Procedural Due Process Rights of Pro Se Litigants, 55 U. Chi. L. Rev. 659 (1988). Fundamental to
one’s ability to litigate is the ability to obtain discovery of the opposing party’s evidence. Without access to
sanctions of an equal deterrent effect as those afforded a represented party, a pro se litigant cannot effectively
obtain discovery and therefore is denied the tools necessary to litigate. Tragath, 710 F.2d at 95.
A. Equal access to discovery is inherent in the right to procedural due process.
426
Procedural due process requires that no one be denied a liberty or property interest without both notice
and the opportunity to be heard. Mullane v. Cent. Hanover Bank and Trust Co., 339 U.S. 306, 313 (1950). The
doctrine is not rote in application. As stated by Chief Justice Burger in Little v. Streater, 452 U.S. 1, 5 (1981):
Due process, “unlike some legal rules, is not a technical conception with a fixed content unrelated to time,
place and circumstances.” Joint Anti-Facist Refugee Comm. v. McGrath, 341 U.S. 123, 162 (1951) (concurring
opinion). Rather, it is “flexible and calls for such procedural protections as the particular situation demands.”
Morrissey v. Brewer, 408 U.S. 471, 481 (1972).
In this case, denial of sufficient sanctions interfered with the appellant Pickholtz’s ability to vindicate his
rights. Indeed, without discovery, any litigant would find himself incapable of successfully pursuing his rights in
court. As noted in Montalvo v. Hutchison, 837 F. Supp. 576 (S.D.N.Y. 1993), “discovery is a particularly critical
means of securing justice when information is exclusively in the hands of an adversary,” as are the circumstances
in this case. Because of the critical role played by discovery in the litigation process, courts readily impose
sanctions upon parties that fail to comply with proper discovery requests. For a litigant’s ability to prove her case
almost invariably depends on court-moderated cooperation from the opposing party. In its absence, most cases ––
if not all –– would collapse.
As the Supreme Court noted in Logan v. Zimmerman Brush Co., “due process has been interpreted as
preventing the States from denying potential litigants use of established adjudicatory procedures, when such an
action would be ‘the equivalent of denying them an opportunity to be heard’….” 455 U.S. 422, 437 (1982) citing
Boddie v. Connecticut, 401U.S. 371, 380 (1971). In this case, defendant’s misconduct denied appellant
Pickholtz’s “opportunity to be heard” for one full year, and sanctions must be applied with full force to vindicate
this right.
The district court is asked to do nothing more than to sanction with the same force as it does when a
similar request is made by a party represented by counsel. The court should respond to requests for sanctions
without regard for whether the requesting party is pro se or not. In addition, under Haines v. Kerner, 404 U.S. 519
(1972), courts are required to liberally construe the pleadings of pro se litigants. In the present case, though, the
court is not even asked to apply a more lenient standard to a request for discovery sanctions by a pro se litigant –
only to apply an equal one. That is, the court need only treat a request for sanctions by a pro se litigant the same
as it would any sanction request by a represented party. Particularly in light of the Supreme Court’s recognition in
Haines of the judiciary’s special obligation to protect the rights of pro se litigants, this court must maintain equity
between parties during the course of discovery process. See also Tragath, 710 F.2d at 95 (2d Cir. 1983).
B. Pro se litigants must have access to sanctions of equal deterrent effect as those afforded to litigants
represented by counsel.
It is not enough that a court impose sanctions when a party fails to comply with a discovery request. For
procedural due process rights to be fully protected, the court must swing the procedural hammer with sufficient
force to compel compliance and deter future noncompliance –– and both to the same degree for pro se litigants as
for represented parties. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976) (per
curiam). To do less affords litigants with the relative luxury to be represented in court greater power to compel
discovery than their pro se counterparts. Such unequal treatment of parties to a litigation wholly undermines the
essential purpose of Rule 37, “to hold the scales of justice even.” See 8A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure, §2284, at 614-615 (1994).
III.
The district court abused its discretion by failing to impose a sanction
sufficient to deter misconduct by those litigating against a pro se party.
Since pro se litigants have a fundamental right to self-representation which includes access to meaningful
sanctions in the case of misconduct by their opponents, it is the duty of the courts to impose sanctions sufficient to

deter misconduct against them. A failure to apply meaningful sanctions allows such litigation abuse to go
unpunished, and invites its continuation. A sweeping denial of one of the most potent sanctions to pro se litigants,
solely because they are not represented by counsel, constitutes a denial of their due process rights as well as a
clear abuse of a court’s discretion.
A. The sanctions imposed by the district court were insufficient to deter discovery misconduct
committed against an unrepresented party.
In imposing sanctions upon the defendants-appellees, the magistrate judge found that “[n]o substantial
justification exists for the approximate year that it took defendants to produce the source code and supporting
documentation in electronic format.” Order Imposing Sanctions (April 24, 2000) (hereinafter, “Order”), p. 1, J.A.
at 0032. Despite this twelve-month delay in producing documents that were subject to initial disclosure
requirements, the sole sanctions imposed by the magistrate judge upon defendants-appellees were (1) to order the
production of documents (whose production was previously required); and (2) to order an award of “reasonable
expenses and costs” (excluding attorney’s fees) to appellant Pickholtz. Id. at 2-4, J.A. at 0033-0035. As noted
above, the court has an obligation to “hold the scales of justice even” between litigants. Pro se litigants are held
accountable for discovery abuses by imposition of monetary sanctions, including attorneys fees. Robinson v. Eng,
148 F.R.D. 635 (D. Neb. 1993). The threat of such a sanction acts as an effective deterrent to discovery
misconduct. If appellant Pickholtz had engaged in discovery abuse similar to that committed by opposing counsel,
there would be no basis for summarily rejecting an application for attorneys fees. In sharp contrast, the minimal
sanction against defendants-appellees has no significant deterrent effect. Granting a pro se litigant the right to
discovery without enforcing that right with the same sanctions available to protect parties who are represented
eviscerates and effectively nullifies that right. Amicus curiae HALT submits that this inequality of sanctions
violates the due process right of appellant Pickholtz to equal access to discovery.
B. Failure to grant attorneys fees to a pro se litigant for discovery abuses committed by an opposing
party violates the due process rights of the pro se party.
There is no sanction that fulfills the deterrent goal of Rule 37 of the Federal Rules of Civil Procedure
more effectively than the imposition of attorneys fees. The Advisory Committee Notes on the most recent 1970
amendment to the Rule explicitly state that the goal of the amendment to Rule 37(a)(4) was to require courts to
impose monetary sanctions that will effectively deter future discovery abuses.
“And the potential or actual imposition of expenses is virtually the sole formal sanction in the rules to
deter a party from pressing to a court hearing frivolous requests for or objections to discovery.” Fed. R. Civ. P.
37(a)(4) advisory committee’s note. The lion’s share of such expenses inescapably consists of attorneys fees.
Moreover, Rule 37 “requires that expenses be awarded unless the conduct of the losing party or person is
found to have been substantially justified.” Id. (emphasis supplied).
The magistrate in this case found that the opposing party presented no substantial justification for its
misconduct, and ordered the production of discovery and an award of expenses. Nevertheless, the court failed to
award attorneys fees to pro se plaintiff Pickholtz, solely because he was not represented by counsel. Order, p. 1,
J.A. at 0032. However, absent an award of attorneys fees, the nominal expenses imposed against opposing
counsel fail to fulfill the deterrent objectives of Rule 37.
In addition to inadequately deterring future misconduct, the court’s decision infringes upon pro se
litigants’ due process rights to self-representation by depriving them of the most effective sanctioning mechanism
to ensure discovery compliance. In other cases between represented parties, courts have awarded attorneys fees
for failure to timely respond to written interrogatories, National Hockey League v. Metropolitan Hockey Club,
Inc., 427 U.S. 639 (1976); for failing to inquire into the accuracy of discovery documents, Business Guides v.
Chromatic Communications Enters., 498 U.S. 533 (1991); and have even awarded amounts upwards of $1 million
428
dollars against a party engaging in a series of meritless motions and depositions and refusing to permit discovery,
Chambers v. NASCO, 501 U.S. 32 (1991).
The abusive conduct in this instance is no less egregious than that which required an award of attorneys
fees in National Hockey League, Business Guides and Chambers. Appellant Pickholtz was forced to wait for a full
year before opposing counsel produced the requested evidence. Order, p. 1, J.A. 0032. Further, opposing counsel
deliberately and in bad faith produced dozens of boxes of computer encoded print-outs, when the request for the
computer code itself (in electronic form) was clear and unambiguous. Plaintiff’s Motion Requesting Sanctions,
J.A. 0131-32. In addition, opposing counsel attempted to preclude experts and consultants from reviewing the
discovery material handed over to plaintiff by sending letters to Mr. Pickholtz’s technical experts and consultants,
falsely claiming that Mr. Pickholtz could not legally disclose the facts of the case to them in anticipation of
litigation. Plaintiff’s Motion Requesting Sanctions, J.A. 0133-34.
Had appellant Pickholtz been represented by an attorney when he was forced by the defendant’s
misconduct to secure court intervention to compel discovery, his request for an award of attorneys fees would not
have been summarily denied by the court below. Amicus curiae HALT respectfully submits that this disparity of
treatment between pro se parties and represented parties deprives pro se litigants of meaningful due process
during the critical discovery phase of litigation.
In denying attorneys fees, the magistrate judge asserted that there was “no authority that would permit
[him] to award plaintiff, as a pro se litigant, attorney’s fees.” Order, p. 2, J.A. at 0033. Not only is there such
authority under the broad sanctions provisions of Rule 37 discussed above, but federal courts also exercise
inherent power to control the course of litigation before them and to punish misconduct that abuses the judicial
process. Chambers, 501 U.S. at 43-46.
A court cannot simply throw up its hands and claim that no remedy is available to the pro se litigant when
his rights have been violated. It is the duty of the trial court to exercise its authority and to even-handedly apply
the same sanctions to protect the due process rights of its litigants whether they are represented by counsel or are
proceeding pro se. That is precisely the course followed by the Northern District of Illinois in In re Napier, Bank.
No. 34 96 B 00559 (N.D. Ill. 1997), where the court imposed monetary sanctions against a represented party for
discovery violations, including compensation to the pro se plaintiff for his time spent preparing motions before
the court.
In sum, the court below clearly erred when it concluded that there was “no authority that would permit it
to award plaintiff, as a pro se litigant, attorney’s fees” (Order, p. 2, J.A. at 0033), and abused its discretion in
denying attorneys fees on this erroneous basis.
CONCLUSION
For the foregoing reasons, amicus curiae HALT – An Organization of Americans for Legal Reform
respectfully requests that this Court reverse the decision of the United States District Court for the Northern
District of California denying attorney fees to plaintiff Andrew Pickholtz, and remand this case with instructions
to determine an appropriate attorneys fees award.

EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT PRO SE TASK FORCE REPORT
EXHIBIT 7. Comments on the Ninth Circuit pro se Task Force Report

COMMENTS ON THE NINTH CIRCUIT PRO SE TASK FORCE REPORT
By Charles W. Heckman, Dr. Sci.,
A Matter of Justice Coalition (AMOJ)
Committee for the Ninth Circuit
Submitted in behalf of: A Matter of Justice Coalition
Formatted and uploaded to American Family Rights Association website on January 3, 2005
(Excerpted Portions that Apply to Don Hamrick)
III.
PROBLEMS NOT ADDRESSED IN THE REPORT
A. THE ROLE OF BIAS
One of the many serious complaints often voiced by litigants but not seriously addressed in the report of
the Task Force is bias by the judge. However, the report clearly expresses a common attitude toward pro se
litigants, starting of p. 6 of the report:
“Some judges and lawyers are convinced, for example, that pro se litigants as a class generally bring
meritless claims, and that any program designed to educate or assist them would only increase the number of
meritless claims in the court system. This point of view is doubtless influenced by those pro se cases that are
brought by individuals suffering from a mental disability or for purposes of harassment. Closely related to that
thought is the belief that appointing attorneys for pro se clients is a waste of resources and in the long run simply
complicates efforts to keep the system clear of meritless cases.”
The Task Force fails to identify who holds this opinion, but both lawyers and judges have frequently
expressed it or opinions very much like it. The main focus of this task force should not be with methods by which
unbiased judges can make the submissions of pro se litigants easier for the court to deal with but rather with
developing methods to assist a pro se litigant who has been the victim of a judge with the preconception that
whatever he submits to the court is without merit, and his lawsuit must be dismissed before any unnecessary time
of the court is wasted.
If all judges were perfect human beings, we could assume that the private opinion of a lawyer or a judge
would not be reflected the judge’s rulings. However, we know that few people approach perfection, and prejudice
by decision-makers against members of certain groups has been the cause of continuous, bitter conflict since the
civil rights movement first brought the effects of biases of many kinds to public view.
Prejudices often have a greater impact on the outcome of administrative hearings and lawsuits than parties
with an obligation to be impartial like to admit. Whether the prejudice is deliberate and malicious or entirely
unintended, decisions colored by personal biases can be just as devastating to the victims of the resulting injustice.
An even more enlightening articulation of the prejudice litigants often face appeared in numerous
discussions on the decision of a Washington State appeals court in Hill v. BCTI Income Fund, 97 Wn. App. 657
(1999), later upheld by the Washington State Supreme Court. Although it is the decision of a state court, it draws
on the en banc opinion of the U. S. Court of Appeals for the Second Circuit in Fisher v. Vassar College, 70 F.3d
1420, 1437 (2d Cir.). The opinion in Hill v. BCTI defends a school of thought within the legal profession,
which has been having a revolutionary effect on American jurisprudence. It parallels the controversial theory of a
“living constitution,” which condones the “updating” of the United States Constitution by the courts to conform to
the personal opinion of judges concerning what the public wants and will accept. On a more mundane level, this
revolution in judicial theory is interpreted by many judges as a mandate to quickly dismiss any lawsuit that can be
dismissed without causing a public outcry, regardless of the merits of the case.
EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT PRO430

SE TASK FORCE REPORT
One of the main innovations introduced by the decision in Fisher v. Vassar is the acceptability and utility
of lying to the court. This was discussed at length in a dissenting opinion by the Chief Judge of the Court of
Appeals of the Second Circuit, who pointed out the implications of the decision reached by his colleagues.
Briefly stated, a jury of the trial court had determined that the spokesmen for Vassar had lied about the reason
Fisher was denied tenure. It therefore concluded that the prima facie case Fisher had established had not been
rebutted, and the relief she had demanded was granted. The Second Circuit, en banc, reversed the decision of the
trial court by a single vote, ruling that the non-discriminatory reason given for not granting Fisher tenure had
eliminated her prima facie case, even though the reason was shown unequivocally to be a lie. With the case in
favor of Fisher eliminated, the court opined that she was required to meet a higher level of proof, which was not
defined by the court and was apparently not humanly possible to meet, at least without the services of a certified
mind-reader.
Expanding on this legal opinion, the Washington State courts in Hill v. BCTI set an unattainable burden
of proof on a plaintiff who has alleged discrimination as soon as the defendant lies to the court and alleges that the
motivation was not to discriminate against the plaintiff. According to the opinion of the Washington courts,
proving conclusively that the defendant’s allegation was a lie is not enough for a plaintiff to prevail. He must
prove that the motive of the plaintiff was to discriminate against him for the reason alleged in the complaint.
Hence, if age discrimination is alleged, the plaintiff must prove that the real reason for the discriminatory action
and the subsequent lie by the defendant was actually the age of the plaintiff and not, for example, his religion,
race, or gender. The judges of the Washington State Court of Appeals were well aware of the fact that the
opposite decision had been reached by the United States Supreme Court, but they reasoned that the Supreme
Court was wrong and the State of Washington was free to decide contrary to the highest Federal court because the
State of Washington has its own constitution and its courts are therefore not bound by the United States
Constitution, as interpreted by the Federal judiciary.
What is interesting about this case in the context of pro se litigation is not the decision itself but rather the
opinion of an author who defended the decision as vital to preserve the integrity of the judicial system. He stated
clearly in his article that if one person came to a court with a discrimination complaint and obtained relief, this
would encourage other litigants to file similar lawsuits, and there are already too many lawsuits being filed.
There is a strong undercurrent within the legal profession, as well as among corporations that are frequently sued,
propagating the opinion that filing civil lawsuits is somehow sinister and un-American. They wish to discourage
most lawsuits by denying justice to litigants and thereby discouraging other litigants from seeking justice in a
court.
While there is a tradition from the Old West that a man settles his disputes by shooting it out with his
adversary or settles lesser disputes with his fists, it was long thought that this was a less desirable alternative to
letting a jury decide which party should prevail. Apparently, some members of the legal profession think
otherwise and wish to close off the courts to ordinary citizens, returning dispute resolution to the means available
in the “Wild West.” It would be well to determine how closely the decrease in justice provided in civil suits has
paralleled the increase in crimes of violence between people with no civilized means available to settle their
dispute. How many of the civil disputes wrongfully dismissed or inequitably settled come back to the court as a
criminal case?
The treatment of pro se litigants reflects the desire expressed by many politicians and judges that the
number of lawsuits be reduced. Showing litigants who lack strong financial resources, the services of a first-class
law firm, backing by an influential organization, or attention in the press that they have no chance of prevailing in
a lawsuit or even of presenting their cases to a jury might well discourage other litigants from seeking redress in
the courts but it also encourages persons in positions of authority to deliberately break the law, knowing that there
is almost no chance that the victim would be able to obtain redress in a court of law.
It seems obvious to me that the flood of lawsuits is the result of a massive increase in white collar crime
in the United States, most of which is ignored by law enforcement authorities on the excuse that their time is
431 PRO SE TASK FORCE REPORT

EXHIBIT 7 –COMMENTS ON NINTH CIRCUIT
needed to combat crimes of violence. The victims are therefore forced to attempt to obtain redress in a civil
lawsuit, and most are unable to obtain legal counsel. A recent estimate made by a group in Iowa suggested that
70% of the population of that state did not have enough money to retain the services of an attorney. Because most
white collar criminals have learned the applicable law very well before embarking on their criminal careers and
many seem to have the active assistance of local civil servants or even judges, attorneys do not see much chance
of immediate success before a court and will therefore refuse to represent an indigent litigant on a contingency
basis. Furthermore, many attorneys working out of small offices without a major law firm behind them hardly do
better in court than pro se litigants. Therefore, as the white collar criminals, deliberate abusers of civil rights,
unscrupulous business firms, and corrupt public officials become bolder, the victims have no way of protecting
their property and livelihoods other than by representing themselves in a lawsuit. Even though an increasing
number of pro se litigants see the courts as hostile to them and their needs for redress under the law, the flood of
lawsuits grows because of the massive increase in the crimes that the current attitude of the courts has
engendered.
Missing from the report by the Task Force is any adequate remedy for the actions of judges who adhere to
the belief that pro se litigants do not deserve full consideration by the court. This can be justified by the
self-fulfilling prophesy that pro se litigants never win. As a result, many judges believe that any time given to a
lawsuit in which a litigant represents himself is wasted. Therefore, pro se litigants really do not win simply
because the prophesy that they will lose is self-fulfilling.
B. REMEDIES THAT FAIL
If a district judge summarily dismisses the civil lawsuit of a pro se plaintiff without reviewing any of the
facts and writes a short opinion that fails to address the fundamental complaint, indicating that the judge barely
knew what issues the complaint addressed, the plaintiff can appeal the dismissal to the court of appeals. In a great
many cases, the plaintiff receives a brief affirmation of the district judge’s opinion, which also fails to address the
issues in the complaint and almost always contains the notation that the opinion cannot be cited as a precedent and
should not be published.
The plaintiff can then file an appeal with the United States Supreme Court with near certainty that
certiorari will not be denied. Many litigants lack the money to have their petitions for certiorari correctly printed
and bound to the satisfaction of the clerk, and others fail to present the legal issues in an understandable manner.
Even if all submissions are perfect, however, the petition will almost certainly be denied in favor of appeals that
are given considerable publicity in the press, are promoted by major organizations, or are otherwise likely to bring
fame and praise to the justices. The problems of ordinary citizens, no matter how devastating to them and their
families, are ignored, and they find that they would have little more chance of success in getting a justified
complaint before a jury than they would have of winning a lottery.
For example, after the courts in several circuits had summarily dismissed hundreds and perhaps thousands
of lawsuits alleging employment discrimination at the complaint stage because the plaintiff had failed to provide
enough hard evidence to establish a prima facie case when the complaint was submitted, the United States
Supreme Court agreed to hear one of the appeals from the Second Circuit. In Swierkiewicz v. Sorema N.A., 534
U.S. (2002), it decided unanimously that it is a gross violation of procedures to dismiss a lawsuit at this stage of
the proceedings. Among the points the justices made were that a plaintiff can prevail without establishing a prima
facie case at all, that a judge’s opinion of whether or not a litigant will prevail before a jury is irrelevant to
decision to dismiss a lawsuit, and that it is fundamentally unfair to dismiss a lawsuit before the whole body of
facts can be revealed through discovery. While this decision provided the plaintiff with a chance to have his
lawsuit heard by a jury on the merits, it affirmed that thousands of litigants whose lawsuits had been improperly
dismissed over the many years during which the appeals courts had been violating procedures had been left
without any access to justice.

Still more perverse was the continued dismissal of lawsuits at the complaint stage, even after the Supreme
Court had denounced this practice. It was well known to the judges guilty of this practice that any subsequent
petitions for certiorari citing this issue would be denied on the grounds that the Supreme Court had already
decided the issue and would not agree to decide it again. This would leave a litigant no way of redressing
violations of his civil rights just because he had the bad luck of coming before a judge who is trying to discourage
lawsuits by issuing non-precedential dismissals at the complaint stage and appeals court judges who affirm
decisions of the lower court with a rubber stamp. Citing the clear opinion of the U.S. Supreme Court in
Swiercewicz v. Sorema N.A. would have no effect on the outcome before a judge who assumes that anything filed
pro se is without merit.
In case of particularly severe violations of the law, procedures, or ethics by a judge, a litigant is limited to
filing a complaint with a judicial board established for hearing such complaints. Other avenues of redress are
closed off because judicial immunity from civil liability was made absolute during the 1990s, even if corruption
or malice motivated the judge’s actions. Experience shows that the boards investigating misconduct by judges
move extremely slowly, and a litigant has roughly one chance in a thousand of having a rogue judge censured,
even mildly.
It can be concluded that a litigant whose lawsuit has been dismissed because of the bias of a judge against
him, a class to which he belongs, pro se litigants in general, or the kind of lawsuit he has filed has almost no
chance of redress, either on appeal or in complaint proceedings against a judge. Human nature clearly dictates
that when members of any group are permitted to perform illegal, immoral, and unjust actions against other
persons with complete impunity, many of them will do so, some because of laziness, others because of malice,
and still others in anticipation of gratuities from a favored party. A pro se litigant has no recourse against a judge
who does not want his complaint heard due to bias of any kind, and the fact that a judge has the power to deny
him access to a jury effectively eliminates an important civil right supposedly guaranteed by Amendment VII of
the United States Constitution.
C. COMMON EXPERIENCES OF PRO SE LITIGANTS
The solutions proposed by the Task Force presume good will by the judges and conformity with the
standards of ethics and behavior traditionally held by our society. Unfortunately, in speaking and corresponding
with many pro se litigants, I have learned that there are common problems that reflect an erosion of human values
and are often accompanied by abusive behavior by judges. These problems are less likely to arise when a litigant
is represented by a lawyer, whose status as an “insider” in the legal profession might tend to restrain the opposing
attorney and presiding judge from improper conduct. Such conduct is difficult for pro se litigants to cope with,
but it is readily recognized when it occur. Eventually, pro se litigants make their opinions of the court public, and
the increasing criticism leads to a general loss of faith in courts. The growing dissatisfaction of the public with
the judicial system is rooted in the negative opinions developed by many litigants who know they have been
improperly or illegally treated. Losing a lawsuit is fundamentally different from being denied due process and a
fair hearing, and even pro se litigants without formal education in a law school can immediately tell the
difference.
The most common complaints by litigants of misconduct by the courts include the following:
1. Perjury is tolerated by the judge
This complaint has been made by the great majority of pro se litigants with whom I have spoken. Very
often, the false testimony is given by one or more government employees. Even when parts of the testimony are
shown to be false, judges continue to give full credence to the witness in the remaining parts of the testimony.
The judge then dismisses the lawsuit of a pro se litigant citing the perjured testimony as evidence that the lawsuit
has no merit. Usually there are documents in the file clearly showing that the testimony was false, but these are
simply disregarded by the judge.

Prosecutions for perjury have become rare to non-existent. Government employees have been given
complete immunity for perjury they commit “in the line of duty,” even if it is given with malice. Government
prosecutors may suborn witnesses to perjury by promising them immunity for crimes they have been accused of.
It has even been alleged that government employees can be fired for refusing to give false testimony at the behest
of their supervisors. Many cases are known where civil servants have advanced their own careers by deliberately
misleading courts, administrative boards, and even Congress to advance a political agenda espoused by the their
supervisors.
2. Records submitted to the court disappear from the files
This complaint has frequently been made. Some litigants note that the entries of the documents are still in
the court records but the documents themselves have disappeared. Even if copies of the records are retained by
the litigant, they usually cannot be added to a record on appeal unless they are still in the file of the lower court.
3. Judges’ opinions fail to address the issues of the lawsuit
Many litigants complain that orders for dismissal address issues that were never raised in the lawsuit and
fail to address the issues that were. In light of the fact that most judges have earned a law degree, some decisions
have convinced the litigants that the legal issues were deliberately misconstrued by the judge. For example, if a
plaintiff seeks injunctive relief pursuant to the Administrative Procedures Act and monetary relief citing the
Federal Tort Claim Act, a judge may deny the injunctive relief on the grounds that there are no provisions for
such relief in the Federal Tort Claim Act and that the Administrative Procedures Act does not authorize monetary
relief. Similarly, a lawsuit alleging failure of the Department of Labor to investigate a discrimination complaint
against a private university was dismissed on the grounds that the plaintiff was seeking Federal employment
through the courts. Even a law professor from Hofstra University complained in a speech that he was tired of
reading decisions that did not address the issues of the case. At best, this means that the law professor was able to
understand the issues of the lawsuit from the submissions, while the judge allegedly was not. At worst, this
indicates that the judge was deliberately falsifying the issues in order to justify an obviously faulty decision.
According to the law professor, after he finished his speech, a judge leaned over to him and said, “You don’t
know the half of it.”
4. Certain litigants must always win
One of the most harmful practices of the courts becomes most evident when statistical surveys of the
outcomes of litigation are conducted. Some judges have apparently developed strong biases for or against certain
kinds of lawsuit or litigant and lose sight of the fact that each case deserves a separate analysis. The outcomes of
these lawsuits most frequently favor government agencies as defendants and major special interest groups, such as
the American Civil Liberties Union, as representatives of a plaintiff. Decisions are reached without jury trial to
assure that the favored litigant wins. The trend to summarily dismiss lawsuits without trials is reflected in surveys
showing that more than 11% of all civil lawsuits were decided by juries in the early 1960s, while less than 2%
reach a jury now.
It is not only the courts that are guilty of denying due process to protect favored litigants. Congress has
also established special means of adjudication to remove the proceedings against certain agencies from the normal
judicial channels. Some of the agencies established for administrative adjudication have earned a reputation for
extreme bias in favor of the government agencies they are supposed to treat impartially. For example, the Merit
System Protection Board (MSPB), which adjudicates complaints filed by veterans because their preference rights
in the civil service have been violated, has never decided in favor of a veteran in any appeal. The United States
Court of Appeals for the Federal Circuit, which is the only court with jurisdiction over appeals from the MSPB,
has never decided in favor of a whistleblower, after hearing 71 appeals citing the Whistleblowers’ Protection Act.
It is also doubtful whether it has ever decided in favor of a veteran, although I have yet to find records on this
point. It is noteworthy that under the law, the burden of proof is on the agency, and in the case of appeals filed by

whistleblowers, clear and convincing evidence is required, giving whistleblowers a clear benefit of the doubt.
Nevertheless, the agency always wins in such appeals, as well as those brought under veterans’ laws.
The Veterans’ Employment and Training Service (VETS) accepts employment discrimination complaints
from veterans. All complaints it receives are not maintained in the agency files, but of 1029 complaints it did
place in its records in 2001, five were brought to the courts, but only one was adjudicated as a civil lawsuit.
Any lawsuits brought by a plaintiff pro per fall into the category of “thousand to one shots,” but so do
discrimination lawsuits brought against government agencies with the assistance of “B” or “C-class” lawyers.
Similarly, civil rights and employment discrimination lawsuits routinely fail, unless a major special interest group
supports one of the parties.
Any time lawsuits that depend on an individual interpretation of the facts are decided so preponderantly in
favor of one party without the assistance of a jury, suspicion of bias is justified. In conflicts between human
beings, rank, job title, or affiliation do not determine which party has followed the law and which party has
broken it. If the supervisor prevails one thousand times in whistleblower appeals for every time the whistleblower
prevails, it is clear that the adjudication has not been impartial. This conclusion is given great support by the
findings of Congress that reprisal against whistleblowers is a problem of massive proportions in the civil service,
requiring several amendments to make the Whistleblowers’ Protection Act considerably stronger. That the efforts
of Congress have been consistently undermined by the judges on the United States Court of Appeals for the
Federal Circuit reflects an imbalance that has been developing between the powers of the legislative and judicial
branches in recent years.
5. Different standards are applied to different litigants
Powerful plaintiffs seek to delay litigation until the opponent dies or is forced to end the litigation for
financial reasons. Some well-represented litigants do not respond to the summons until a motion for default has
been entered, and judges routinely excuse the failure and refuse to enter a default judgment. The same judges are
quick to dismiss lawsuits because a pro se plaintiff has missed a deadline by one or two days, even when the
cause of the delay was beyond the control of the litigant. The lack of impartiality is plainly evident when one
party is permitted unlimited delays, in spite of the fact that the United States Department of Justice or a major law
firm with a large staff of lawyers is representing that party, while a pro se litigant forced to act alone is held to the
strictest standards stipulated in the FRCP and local rules. Allowing one litigant unlimited delays while the other
is facing severe financial difficulties as long as the lawsuit remains unsettled is a tactic that clearly violates
judicial fairness and at least the spirit of the United States Constitution, which demands a speedy trial in criminal
matters and, by implication, reasonable speed in settling civil disputes, as well.
6. Recent handling of civil lawsuits by the courts have instigated a white collar
crime wave
Many successful white collar criminals have obtained the cooperation of local courts to defraud private
citizens out of large sums of money, often leaving the victim destitute. A few of the methods frequently used
include abuse of bankruptcy procedures to loot estates, illegal foreclosures on real estate, seizure of cash or
property without due process, and fraud during divorce proceedings.
Federal courts should have jurisdiction over obvious frauds perpetrated by state courts under the RICO
statute and civil rights laws. However, failure of effective action by Federal judges to stop obvious fraud
perpetrated by colleagues employed by state and local government encourages larcenous state officials, including
judges, to conclude that their positions allow them to illegally enrich themselves at the expense of selected
victims with complete impunity.
Litigants who have sought protection from state and local criminal gangs in Federal courts have
encountered many years of delays, denial of jury trials, and refusals to issue decisions justified by the facts of the

case. Many abuses have come to public attention in recent years, but the crime wave has grown so rapidly, many
of the practices have not received sufficient publicity to warn potential victims. Crimes like identity theft,
fraudulent foreclosure, fraud in stating fees and interest charges, and abuses of eminent domain have become
epidemic throughout the United States. They can financially ruin victims, who have not found effective
protection through either criminal or civil procedures.
7. Court orders go unheeded
Failure of courts to enforce their own orders granting relief to litigants may eventually result in more
difficulties than adjudicating the initial petition for relief. Plaintiffs may prevail but gain no redress from the
decision because judges refuse to issue effective orders mandating the remedies demanded by a jury. This is a
problem that often arises when the delinquent party is a government agency. Common examples of deliberate
resistance to court orders include ignoring orders to produce documents requested under the Freedom of
Information or Privacy Act and failure of public officials to obey orders to return money or property unlawfully
taken from citizens by law enforcement agencies.
8. Judges give orders contrary to law and accepted standards of behavior
Opposite the failure to enforce just orders for relief is issuing orders demanding illegal or obviously
impractical relief from litigants. Examples of practices that have become common during the past few years
include demands for support payments from one party to divorce proceedings that exceed the total earnings of the
person ordered to pay, jailing of indigent litigants who cannot pay what the court has demanded of them for other
reasons, removal of children from their natural parents without due process, and imposition of medical treatment
on minor children without informing their parents.
9. Judges refuse to take actions required by law
Many routine actions required of judges have created barriers to the enforcement of laws as intended by
Congress. An excellent example of this is the action usually taken after a litigant complaints that he cannot obtain
documents requested pursuant to the Freedom of Information Act. This law was passed by Congress because of
the great resistance shown by Federal civil servants to making their unclassified documents available to the
general public. Records created through the use of tax money should belong to the public and be made available
on request.
Congress obviously intended that documents formally requested be made available immediately. It
therefore specified a waiting period of no more than ten working days and permitted a person who requested the
records to file a lawsuit to obtain the documents if the agency is not forthcoming. It requires agencies to assist
people making requests to identify the documents and to provide the documents after charging only minimal
copying fees.
Obviously, to uphold this law as Congress intended, a judge must order immediate release of the records
to the court for distribution to the plaintiff after the court has ruled on any objections the agency has made to their
release. Because obtaining records as quickly as possible is often necessary for a litigant to obtain some benefit to
which he is entitled, complete an article for publication in a newspaper or periodical, or protect himself of a
relative from the consequences of false information about him being distributed with official records, the rapid
availability of records is vital.
Instead of upholding the high standards demanded by the Freedom of Information Act, judges have
consistently permitted lawsuits to obtain public information to drag on for several years, often making the
intended use of the documents impossible. Judges seem to attempt to avoid issuing orders to government
agencies, even when the law mandates this. They fail to review contested records in camera, as provided for in
the law, and simply hope the plaintiff will eventually withdraw his demand for the documents. Although
obtaining documents often costs plaintiffs excessive amounts of money for the litigation, judges seldom offer the

monetary relief specified in the law. They also fail to impose the requirement of the law that photocopy fees be
reasonable. While private shops provide photocopies for 5 cents or less, agencies may charge exorbitant amounts
to copy their documents. For example, about two years ago, one agency demanded 31 cents for each copy, or
more than 6 times the price on the private market.
The failure of the courts to impose sanctions on civil servants who make it a sport to defy the Freedom of
Information Act has led to the development of procedures to keep public documents out of the hands of citizens
who want to obtain them.
10. Courts have become inconsistent and arbitrary
Courts have recently begun to establish very confusing precedents, reverse their own decisions, and
ignore real issues rather than settling them. In recent years, different Courts of Appeals have issued opposite
interpretations of the same law, making one action legal under the jurisdiction of one circuit and illegal under the
jurisdiction of another. Because the United States Supreme Court denied certiorari each time a litigant attempted
to obtain a definitive decision on some of these matters, Federal law can mean one thing in one circuit and the
opposite in another. For example, whether or not Federal law permits factory workers to speak with each other in
a language other than English depends upon the area of the country in which the factory is located.
Changing public opinion or even an unusual personal opinion held by the judge to whom the case has
been assigned may result in a lawsuit being decided in a manner contrary to other recent decisions in nearly
identical cases. When judicial opinions on the interpretation of a law are continually fluctuating because one
judge approves of the law while another does not, whichever litigant loses will feel cheated by the court because
other litigants in exactly in the same position won their lawsuits. This situation causes more litigants to risk a
lawsuit rather than settling the dispute out of court because winning or losing depends only on the whim of the
judge hearing the case rather than on a consistent and unambiguous interpretation of the law. An advantage of
being represented by counsel is often the knowledge he brings concerning which judges will be sympathetic to the
litigant’s case and which will favor the other party. In an impartial system, such considerations would not be a
factor. The founding fathers hoped to eliminate this problem by insisting that decisions be rendered by juries, but
by increasingly usurping the duties of the jurors, judges have permitted their own beliefs on the wisdom of
individual laws to override the stated intentions of Congress. Because all judges do not hold the same opinions,
an increasing inconsistency in decisions is becoming an increasing problem for pro se litigants and lawyers, alike.
11. Federalism theory interferes with practical justice
In recent history, Federal courts have intervened in many disputes between citizens and individual states,
where the state court system was clearly violating or assisting in the violation of civil rights. Since the first Civil
Rights statutes were passed in 1871, Congress has shown a clear intent to place the guarantees in Amendments
XIII, XIV, and XV above the limitations on suits against states in Amendment XI. Federal courts belatedly struck
down state laws deliberately passed to bar Americans of African descent from voting, attending schools with
white children, and using public facilities. These rulings have clearly focused the attention of the nation on the
fact that states are prone to commit actions against their citizens that violate Federal guarantees defined as civil
and human rights by our Constitution.
Recently, the theory of federalism has been revived, and Federal courts have become less willing to
interfere with the actions of state courts, no matter how unjust and reprehensible. One of the most important
reasons for Federal courts to exist is to provide citizens with a final recourse against clearly illegal actions
committed by state and local government, which are much more likely to fall under the influence of criminal
conspirators than the much more diverse Federal system. If the Federal courts disqualify themselves from settling
disputes between citizens and state governments, they have clearly left the citizens vulnerable to losing their civil
rights through clearly illegal actions by small, corrupt political machines.

EXHIBIT 8 – DAVE KOPEL – MEDELLION AND THE SECOND AMENDMENT
EXHIBIT 8. Dave B. Kopel, Medellin and the Second Amendment

MEDELLIN AND THE SECOND AMENDMENT
Dave B. Kopel,
Posted on Eugene Volokh’s blog, The Volokh Conspiracy
October 10, 2007
(The same day as the U.S. Supreme Court heard oral arguments on Medellin)
http://volokh.com/posts/1192051881.shtml
http://www.supremecourtus.gov/docket/06-984.htm
The Supreme Court’s oral argument today in Medellin v. Texas has interesting implications for Second
Amendment rights. The rationale promoted by the Bush administration, and which apparently has support from at
least some of the Supreme Court, offers a roadmap for how a future U.S. President could evade Congress to
impose highly restrictive gun controls.
The Bush position is that when the Senate has adopted a non-self-enforcing treaty, the treaty becomes
self-enforcing if: 1. The World Court issues a ruling under the treaty in a case in which the United States accepts
jurisdiction, and 2. The President then, exercising his foreign policy discretion, decides that the World Court order
must be implemented. The position of Medellin’s lawyers is even broader, that a World Court ruling is sufficient
in itself.
Now let’s see how this could work in a gun control hypothetical:
1. President Hillary Rodham Clinton strongly believes in gun control. (Consider that as Senator, she,
unlike Senator Obama, actually voted against an appropriations rider to prevent federal funds
from being used to fund gun confiscation during/after a natural disaster or similar emergency,
even when the confiscation had no legal basis, or was formally prohibited by state law.)
2. She can’t get 60 votes in the Senate to pass her domestic anti-gun proposals, much less the 2/3
support necessary for ratification of the new UN international gun control treaty. (Without U.S.
Ambassadors to the U.N. like John Bolton, a new U.N. gun control treaty is a certainty within a
few years. Indeed, it is doubtful that any U.S. delegation can block the forthcoming Arms Trade
Treaty.)
3. The United States has ratified the International Covenant on Civil and Political Rights, along with
a reservation stating that the Covenant is not self-executing.
4. United Nations Special Rapporteur Barbara Frey (a University of Minnesota law professor) has
written a report for the United Nations Human Rights Council. The report has been adopted by
the Human Rights Council’s subcommission on the Promotion and Protection of Human Rights,
which claims that the Report accurately describes existing mandatory international law.
5. Under the report’s standards, U.S. gun control laws are in massive violation of the international
law obligation (contained, inter alia, in the International Covenant) not to violate “the right to
life.” For example, most states do not require a periodically-renewed license for the possession of
handguns, and hardly any do so for long guns. All states allow ordinary citizens, and the police,
to use deadly force against certain felonies (e.g., rape, arson, armed robbery, serious assaults),
even when the person using deadly force does not believe that deadly force is necessary to save a
life. Even New York City’s gun laws are deficient, for they allow licensed owners of rifles and
shotguns to use their guns for any lawful purpose (e.g., target shooting, hunting, collecting, self-
defense in the home) rather than only for a specified purpose. (For details, see pages 12-14 of my
438SECOND AMENDMENT
EXHIBIT 8 – DAVE KOPEL – MEDELLION AND THE
forthcoming article in the BYU Journal of Public Law, “THE HUMAN RIGHT OF SELF-
DEFENSE.”) [See next item below!]
6. In collusion with the Clinton administration, a foreign government brings suit in before the World
Court. The suit might be premised on the dangers to the foreign government’s nationals when
they visit or work in the United States. The Clinton administration accepts the World Court’s
jurisdiction.
7. The World Court issues a ruling consistent with the standards of the UN Human Rights Council.
8. President Clinton, exercising her foreign policy discretion, declares that all state governments
must implement the ruling, by enacting gun licensing systems, and sharply restricting the use of
guns for self-defense.
9. We are now at the same point as Medellin v. Texas, with one or more state governments claiming
that the President cannot force them to obey a World Court ruling about a non-self-implementing
treaty.
10. Based on the October 10 oral argument, it appears that there are currently some Justices on the
court who think that the President can. By President Clinton’s second term, there might be a
majority of Justices, in a Court whose membership was appointed almost entirely by one Clinton
or another, who might agree.
11. What if some states refused to obey a direct order from the Supreme Court? Well, there are lots of
ways to pressure the states, including withholding their appropriated federal funding for state and
local criminal justice agencies. Would a Supreme Court that upheld President Clinton on the
substantive issue be likely to declare it illegal for President Clinton to temporarily suspend the
payment of money to states which are attempting to nullify a Supreme Court ruling?
12. There is an even simpler approach. Every firearms retailer holds a Federal Firearms License, and
is subject to the regulatory control of the Bureau of Alcohol, Tobacco, Firearms and Explosives.
No FFL may sell a gun to a customer without complying with the National Instant Check System,
which is administered by the Department of Justice and FBI. President Clinton simply issues an
order that no FFL may sell a gun, and NICS may not approve any transfers in any state which has
not brought its laws into conformity with the World/Supreme Court rulings. Alternatively,
President Clinton just orders administrative changes, so that the federal Form 4473 (which must
be filled out by all retail gun buyers) states that it must be renewed every five years. A new line
on the 4473 requires the buyer to make a multiple choice selection for one (and only one) purpose
for which the gun will be used. Further, BATFE issues regulations under the federal Gun Control
Act declaring that internationally-illegal uses of guns (e.g., against a rapist) constitute use of a
gun “in a crime of violence”, which is a federal crime under the Gun Control Act. President
Clinton directs the US Attorneys to prosecute accordingly.
The federal statutes creating BATFE, requiring FFLs, and setting up NICS do not give the President any
authority to issue such orders. But President Clinton could argue that she may issue such orders, based on her
Article II foreign policy powers, in order to comply with the World and Supreme Court decisions. Moreover, the
Senate ratification of the International Covenant implicitly gave her such powers, pursuant to the Supremacy
Clause, to implement mandatory U.S. obligations arising from the Covenant.
Would U.S. courts, and, eventually, the Supreme Court, uphold President Clinton’s actions regarding FFLs
and NICS? It would be unrealistic to be confident that courts would not.
Of course my suggestions about how a U.S. President might proceed after point 10 are just guesses. What is
clear, is that with the right President having the opportunity to make a few Supreme Court appointments, getting
439
to point 10 would be quite easy. After that, U.S. history shows that when a determined U.S. President wants to
make recalcitrant states obey a U.S. Supreme Court ruling, the President eventually wins, one way or another.
440SECOND AMENDMENT
EXHIBIT 8 – DAVE KOPEL – MEDELLION AND THE
EXHIBIT 9 – FEDERAL J.A.I.L. FOR JUDGGES
EXHIBIT 9. Federal Judicial Accountability & Integrity Legislation (J.A.I.L.)

FEDERAL JUDICIAL ACCOUNTABILITY & INTEGRITY LEGISLATION (J.A.I.L.)
Reforms for the Federal Judiciary
(a) PREAMBLE
The House of Representatives and Senate Assembled find that an inordinate and ever-growing number of
complaints of willful misconduct have been lodged with Congress involving federal judges across this
nation; that the current Title 28 U.S.C. §372(c) (Judicial Misconduct and Disability Act) is in many cases
inadequate because of conflicts of interest in judges judging themselves; that judicial integrity is of major
importance and affects all areas of our American society. Be it therefore resolved that the House of
Representatives and Senate Assembled hereby enact the following legislation which shall be known as the
“Judicial Accountability and Integrity Legislation.”
(b) DEFINITIONS
For purposes of this legislation:
1. The term “blocking” shall mean any act that impedes the lawful conclusion of a
case, to include unreasonable delay and willful rendering of a void judgment or
order.
2. The term “federal judge” or “judge” shall mean any federal justice, judge, magistrate, commissioner,
or any person shielded by judicial immunity.
3. The term “Juror” shall mean a Special Federal Grand Juror.
4. The term “strike” shall mean an adverse immunity decision based upon bad behavior as set forth in
paragraph (c), or a criminal conviction as set forth in paragraph (r).
5. Where appropriate, the singular shall include the plural.
(c) IMMUNITY
Notwithstanding common law or any other provision to the contrary, no immunity shall be extended to
any federal judge except as is specifically set forth in this statute. Preserving the purpose of protecting
judges from frivolous and harassing actions, no immunity shielding a federal judge shall be construed to
extend to any deliberate violation of law, fraud or conspiracy, intentional violation of due process of law,
deliberate disregard of material facts, judicial acts without jurisdiction, blocking of a lawful conclusion of
a case, or any deliberate violation of the Constitution of these United States, all violations of which shall
constitute bad behavior.
(d) SPECIAL FEDERAL GRAND JURY
There is hereby created within the District of Columbia a twenty-five member Special Federal Grand Jury
with full federal geographical jurisdiction, having power to judge on both law and fact. Their
responsibility shall be limited to determining, on an objective standard, whether a civil suit against a
federal judge would be frivolous and harassing or fall within the exclusions of immunity as set forth
herein, and whether there is probable cause of criminal conduct by the federal judge complained of.
(e) PROFESSIONAL COUNSEL
The Special Federal Grand Jury shall have exclusive power to retain non-governmental advisors, special
prosecutors, and investigators, as needed, who shall serve no longer than two years, after which term said
officers shall be ineligible. However, with permission of the Special Federal Grand Jury, a special
441 FOR JUDGGES

EXHIBIT 9 – FEDERAL J.A.I.L.
prosecutor may prosecute their current cases through all appeals and any applicable complaints to the
Special Federal Grand Jury.
(f) ESTABLISHMENT OF SPECIAL FEDERAL GRAND JURY SEAT
A Special Federal Grand Jury seat is hereby created, which seat shall be located in excess of one mile of
any federal judicial body.
(g) FILING FEES
Attorneys representing a client filing a civil complaint or answer before the Special Federal Grand Jury,
shall at the time of filing pay a fee equal to the filing fee due in a civil appeal to the United States
Supreme Court. Individuals filing a civil complaint or answer before the Special Federal Grand Jury in
their own behalf as a matter of right, shall, at the time of filing, post a fee of one hundred dollars, or file a
declaration, which shall remain confidential, stating they are impoverished and unable to pay and/or
object to such fee.
(h) ANNUAL FUNDING
Should this statute lack sufficient funding through its filing fees under paragraph (g) and fines imposed
under paragraph (q), which amount shall be deposited regularly into the exclusive trust account created by
this statute in paragraph (j) for its operational expenses, Congress may impose appropriate surcharges
upon the civil court filing fees of corporate litigants as necessary to make this statute self-supporting, or
they may appropriate any and all necessary funds for the full implementation of this statute by legislation.
(i) COMPENSATION OF JURORS
Each Juror shall receive a salary commensurate to fifty percent of a federal district judge prorated
according to the number of days actually served.
(j) ANNUAL BUDGET
The Special Federal Grand Jury shall have an annual operating budget commensurate to twenty times the
combined salaries of the twenty-five Jurors serving full time, which sum shall be initially deposited by
Congress into an exclusive trust account to be annually administered by the Controller. Should the trust
balance within any budget year drop to less than an amount equivalent to the annual gross salaries of fifty
federal district judges, the Controller shall so notify Congress, which shall replenish the account, prorated
based on actual average expenditures during the budget year. Should the trust balance in any subsequent
year exceed the annual operational budget at the beginning of a new budget year, the Controller shall
return such excess to the United States Treasury.
(k) JURISDICTION
The Special Federal Grand Jury shall have exclusive power to establish rules assuring their attendance, to
provide internal discipline, and to remove any of its members on grounds of misconduct. The Special
Federal Grand Jury shall immediately assign a docket number to each complaint brought before it. Except
as provided in paragraph (r), no complaint of judicial misconduct shall be considered by the Special
Federal Grand Jury unless the complainant shall have first attempted to exhaust all judicial remedies
available in the federal courts within the immediately preceding six-month period. Such six-month period,
however, shall not commence in complaints of prior fraud or blocking of a lawful conclusion until after
the date the Special Federal Grand Jury becomes functional. This provision is intended to apply
remedially and retroactively.
442
(l) QUALIFICATIONS OF JURORS

A Juror shall have attained to the age of thirty years, and have been nine years a citizen of the United
States, and an inhabitant of Washington, D.C. Those not eligible for Special Federal Grand Jury service
shall include elected and appointed officials, members of the Bar, judges (active or retired), judicial,
prosecutorial and law enforcement personnel, without other exclusion except previous adjudication of
mental incapacity, imprisonment, or parole from a conviction of a felonious crime against persons.
(m) SELECTION OF JURORS
The Jurors shall serve without compulsion and shall be drawn by public lot by the Secretary of State from
names on voters’ rolls and any citizen submitting his/her name to the Secretary of State for such drawing.
(n) SERVICE OF JURORS
Excluding the establishment of the initial Special Federal Grand Jury, each Juror shall serve one year. No
Juror shall serve more than once. On the first day of each month, two persons shall be rotated off the
Special Federal Grand Jury and new citizens seated, except in January it shall be three. Vacancies shall be
filled on the first of the following month in addition to the Jurors regularly rotated, and the Juror chosen
to fill a vacancy shall complete only the remainder of the term of the Juror replaced.
(o) PROCEDURES
The Special Federal Grand Jury shall serve a copy of the filed complaint upon the subject judge and
notice to the complainant of such service. The judge shall have thirty days to serve and file an answer.
The complainant shall have twenty days to reply to the judge’s answer. (Upon timely request, the Special
Federal Grand Jury may provide for extensions for good cause.) The Special Federal Grand Jury shall
have power to subpoena witnesses, documents, and other tangible evidence, and to examine witnesses
under oath. The Special Federal Grand Jury shall determine the causes properly before it with their
reasoned findings in writing within one hundred twenty (120) calendar days, serving on all parties their
decision on whether immunity shall be barred as a defense to any civil action that may thereafter be
pursued against the federal judge. A rehearing may be requested of the Special Federal Grand Jury within
twenty days with service upon the opposition. Twenty days shall be allowed to reply thereto. Thereafter,
the Special Federal Grand Jury shall render final determination within thirty days. All allegations of the
complaint shall be liberally construed in favor of the complainant. The Jurors shall keep in mind, in
making their decisions, that they are entrusted by the people of these United States with the duty of
restoring a perception of justice and accountability of the federal judiciary, and are not to be swayed by
artful presentation by the federal judge. They shall avoid all influence by judicial and government entities.
The statute of limitations on any civil suit brought pursuant to this statute against a federal judge shall not
commence until the rendering of a final decision by the Special Federal Grand Jury. Special Federal
Grand Jury files shall always remain public record following their final determination. A majority of
thirteen shall determine any matter.
(p) REMOVAL
Whenever any federal judge shall have received more than three strikes, the federal judge shall
automatically be brought up on charges before Congress for Articles of Impeachment by the Special
Federal Grand Jury through its special prosecutor for bad behavior and willful misconduct. Congress
thereafter shall commence to a vote on such Articles of Impeachment. Upon a conviction, the federal
judge shall be permanently removed from office. He may also be held liable under any other appropriate
criminal or civil proceeding.
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EXHIBIT 9 – FEDERAL J.A.I.L.
(q) INDICTMENT
Should the Special Federal Grand Jury also find probable cause of criminal conduct on the part of any
federal judge against whom a complaint is docketed, it shall have the power to indict such federal judge
except where double jeopardy attaches. The Special Federal Grand Jury shall, without voir dire beyond
personal relationship, cause to be impaneled special trial jurors, plus alternates, which trial jurors shall be
instructed that they have power to judge both law and fact. The Special Federal Grand Jury shall also
select a non-governmental special prosecutor and a federal judge with no more than four years on the
bench from a state other than that of the defendant judge (or outside of the District of Columbia, if the
case so be). The trial jury shall be selected from the same pool of jury candidates as any regular federal
jury. The special prosecutor shall thereafter prosecute the cause to a conclusion, having all the powers of
any other prosecutor within these United States. Upon conviction, the special trial jury shall have
exclusive power of sentencing (limited to incarceration, fines and/or community service), which shall be
derived by an average of the sentences of the trial jurors.
(r) CRIMINAL PROCEDURES.
In addition to any other provisions of this statute, a complaint for criminal conduct of a federal judge may
be brought directly to the Special Federal Grand Jury upon all the following prerequisites: (1) an affidavit
of criminal conduct has been lodged with the appropriate prosecutorial entity within ninety (90) days of
the commission of the alleged conduct; (2) the prosecutor declines to prosecute, or one hundred twenty
(120) days has passed following the lodging of such affidavit and prosecution has not commenced; (3) an
indictment, if sought, has not been specifically declined on the merits by a Grand Jury; and (4) the
criminal statute of limitations has not run. Any criminal conviction (including a plea bargain) under any
judicial process shall constitute a strike.
(s) PUBLIC INDEMNIFICATION
No federal judge complained of, or sued civilly by a complainant pursuant to this statute, shall be
defended at public expense or by any elected or appointed public counsel, nor shall any federal judge be
reimbursed from public funds for any losses sustained under this statute.
(t) REDRESS
The provisions of this statute are in addition to other redress that may exist and are not mutually
exclusive.
(u) PREEMINENCE
Preeminence shall be given to this statute in any case of conflict with any other federal statute, case law,
or common law to the contrary. The foreperson of the Special Federal Grand Jury shall read, or cause to
be read, this statute to the respective Jurors semi-annually during the first week of business in January and
July.
444
EXHIBIT 10 – U.S. DEPT. OF STATE – INTERNATIONAL LEGAL AUTHORITIES
EXHIBIT 10. U.S. Department of State - International Legal Authorities

U.S. DEPARTMENT OF STATE - INTERNATIONAL LEGAL AUTHORITIES
http://www.state.gov/s/l/treaty/authorities/international/
Treaties are governed by international law and are a primary source of international law. Treaties play an
important role in the orderly conduct of relations among states, particularly following World War II. In order for
treaties to perform this role, internationally recognized rules concerning treaties have been developed.
The VIENNA CONVENTION ON THE LAW OF TREATIES, concluded at Vienna on May 23, 1969 (VCLT), sets forth
rules concerning the making, operation, suspension, and termination of treaties. The VCLT opened for signature
in Vienna in May 1969, and it entered into force on January 27, 1980. Currently, over 90 countries have signed or
acceded to the VCLT.
The VCLT was signed for the United States on April 24, 1970, and President Nixon transmitted the treaty to the
Senate for its advice and consent to ratification on November 22, 1971. The VCLT remains before the Senate
Foreign Relations Committee. The United States has not ratified the VCLT and thus is not legally bound by
its provisions. Nevertheless, the United States follows many of the rules in the VCLT in the conduct of its
day-to-day work on treaties.
States enter into treaties not only with other states, but also with other subjects of international law (in particular,
international organizations). International organizations enter into treaties with each other. These treaties are not
covered by the VCLT, but are the subject of the VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES
AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS, 1986 (VCLTSIO). This treaty
is not yet in force, although many of its provisions are based on those in the VCLT and have been adapted
for international organizations.
445
EXHIBIT 10 – U.S. DEPT. OF STATE – INTERNATIONAL LEGAL AUTHORITIES
EXHIBIT 11 – REPORT OF THE U.N. SECRETARY-GENERAL ON HUMAN RIGHTS DEFENDERS
EXHIBIT 11. Report of the U.N. Secretary-General on Human Rights Defeenders
HUMAN RIGHTS DEFENDERS

Report of the [United Nations] Secretary-General672
Available Online at http://www.un.org/documents/ga/docs/55/a55292.pdf
Human rights questions:
Human rights questions, including alternative approaches for improving
the effective enjoyment of human rights and fundamental freedoms.
11 August 2000
Fifty-fifth session
Item 116 (b) of the provisional agenda673
I. Introduction
1. The present report is submitted pursuant to General Assembly resolution 54/170 of 17 December 1999, in
which the Assembly called upon Governments, specialized agencies and relevant intergovernmental and non-
governmental organizations to submit, at the request of the Secretary-General, on the basis of Commission on
Human Rights resolution 1999/66 of 28 April 1999,674 proposals and ideas that should contribute substantially to
further work on the implementation of the Declaration on the Right and Responsibility of Individuals, Groups and
Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms.675
The Assembly also called upon the Commission on Human Rights to consider at its fifty-sixth session the report
to be prepared by the Secretary-General pursuant to Commission resolution 1999/66, and requested the Secretary-
General to report to the Assembly at its fifty-fifth session on measures to implement the Declaration.
2. In his report to the Commission on Human Rights at its fifty-sixth session (E/CN.4/2000/95), the Secretary-
General summarized the views of the Governments, specialized agencies and intergovernmental organizations on
the implementation of the Declaration and presented possible ways for its implementation. These included (a) the
widespread dissemination of the Declaration in order to popularize it; (b) the incorporation of monitoring its
implementation into existing United Nations mandates; (c) the establishment of a new United Nations mandate to
monitor its implementation; (d) the active promotion of the Declaration by the Secretary-General, the United
Nations High Commissioner for Human Rights and the United Nations human rights mechanisms; and (e) the
effective promotion and implementation of the Declaration by all Member States.
3. By resolution 2000/61 of 26 April 2000,676 the Commission, inter alia, requested the Secretary-General to
appoint, for a period of three years, a special representative who shall report on the situation of human rights
defenders in all parts of the world and on possible means to enhance their protection in full compliance with the
672
In accordance with General Assembly resolution 54/248, sect. C, para. 1, this report is being submitted on 11 August 2000
so as to include as much updated information as possible.
673
A/55/150.
674
See OFFICIAL RECORDS OF THE ECONOMIC AND SOCIAL COUNCIL, 1999, SUPPLEMENT NO. 3 (E/1999/23), chap. II, sect. A.
675
General Assembly resolution 53/144, annex.
676
446
EXHIBIT 11 – REPORT OF THE U.N. SECRETARY-G ENERAL ON HUMAN RIGHTS DEFENDERS
Declaration. That request was endorsed by the Economic and Social Council in its decision 2000/220 of 16 June
2000.
II. Role and Risks of Human Rights Defenders
4. Article 1 of the Declaration proclaims that “Everyone has the right, individually and in association with others,
to promote and to strive for the protection and realization of human rights and fundamental freedoms at the
national and international levels”. The legislative, administrative and other steps necessary to ensure that the
rights and freedoms referred to in the Declaration are effectively guaranteed should be adopted by each State. In
accordance with the fourth preambular paragraph of the Declaration, human rights defenders are persons acting
alone or in association with others in contributing to the effective elimination of all violations of human rights and
fundamental freedoms of peoples and individuals, including in relation to mass, flagrant or systematic violations
such as those resulting from apartheid, all forms of racial discrimination, colonialism, foreign domination or
occupation, aggression or threats to national sovereignty, national unity or territorial integrity and from the refusal
to recognize the right of peoples to self-determination and the right of every people to exercise full sovereignty
over its wealth and natural resources. They may belong to different professions, be members of governmental and
non-governmental institutions, including civil servants, for example, law enforcement officers or prison officials.
The activities of human rights defenders concern all categories of human rights: civil, cultural, economic,
political, and social. Inspired and guided by human rights standards, human rights defenders act against the
serious problems that affect the life of people throughout the world, such as hunger and poverty, intolerance and
discrimination, abuse of power and corruption, insecurity, conflicts and repression, injustice and deprivation of
liberty. They assist victims of human rights violations. In the work of human rights defenders, the concept of
prevention takes a prominent place since, though just and necessary, compensation of victims always comes too
late.
5. Human rights defenders are at the core of the human rights movement the world over. They work at democratic
transformation in order to increase the participation of people in the decision-making that shapes their lives.
Human rights defenders contribute to the improvement of social, political and economical conditions, the
reduction of social and political tensions, the building-up of a peaceful environment, domestically and
internationally, and the nurturing of national and international awareness of human rights. They form the base that
regional and international human rights organizations and mechanisms, including those within the United Nations,
build upon in the promotion and protection of human rights.
6. For their involvement in the struggle for human rights, the defenders are often the first victims of human rights
violations perpetrated by State officials or non-State entities. Violence against them ranges from the most outright
attacks against life, physical integrity and personal security and dignity, to more subtle and often diffuse forms of
violence such as social disqualification through the association of human rights work with criminal activities, for
example, terrorism or national treason. Legal restrictions imposed on freedom of association, assembly,
information and movement are used to make human rights activities illegal. Judicial repression and physical
violence are also used to hinder human rights advocacy. Human rights defenders can be the victims of
harassment, threats, intimidation and restrictions on living conditions, such as loss of employment, denial of the
right to work, of medical care or education for their children, loss of housing, land or citizenship. Violence also
affects the relatives of human rights defenders and other persons associated with them.
7. Some human rights defenders are at greater risk because of the nature of the rights that they are seeking to
protect. This is particularly true with regard to women who are human rights defenders. In many situations,
women are at the front line of the struggle, not only for their own rights but also for those of their families and
communities. In the midst of these struggles, many of these women are also personally at risk, for example, when
they challenge the structures of societies that perpetuate discrimination against women, in particular where they
relate to issues of sexuality and reproductive rights. Many women face additional discrimination because of their
447 -GENERAL ON HUMAN RIGHTS DEFENDERS

EXHIBIT 11 – REPORT OF THE U.N. SECRETARY
race, ethnicity, language, culture, religion or sexual orientation. In these circumstances, the call in the Beijing
Platform for Action677 for Governments to ensure the protection of women engaged in the defence of human
rights is of particular importance.
8. In resolution 54/170 of 17 December, the General Assembly, noting with deep concern that, in many countries,
persons and organizations engaging in promoting and defending human rights and fundamental freedoms are
facing threats, harassment and insecurity as a result of those activities and reiterating the importance of the
Declaration, called for proposals and ideas that should contribute substantially to further work on the
implementation of the Declaration. The importance of the Declaration and its promotion and implementation was
also reiterated by the Commission in resolution 2000/61.
9. By resolutions 1998/3 of 20 August 1998 and 1999/3 of 20 August 1999,678 the Subcommission on the
Promotion and Protection of Human Rights noted with deep concern that, in many countries, in contradiction to
the commitments and obligations of Governments, persons and organizations engaged in promoting and
defending human rights were facing threat, harassment and insecurity. It expressed concern at the increasing
number of cases brought to its attention, concerning human rights defenders who, because of their activities in
favour of the recognition, promotion and defence of human rights, had been persecuted, either by being arrested,
convicted or imprisoned, or by being the victims of unresolved killings, or by being suspended or prohibited from
exercising their professional activities, or by threat of suppression or actual suppression of the legal personality of
the organization to which they belonged.
10. In view of this situation, the Subcommission urged each State to take measures to ensure the effective respect
of its obligation in the field of human rights in accordance with the provisions of international instruments,
including the Declaration, and to guarantee to individuals, groups, associations, organizations and organs of
society the necessary conditions to exercise fully their activities in favour of the recognition, promotion and
defence of human rights, and to ensure the security of all persons covered by the Declaration who were being
persecuted because of their human rights activities.
11. In the same resolutions, the Subcommission also condemned the murders of 17 named human rights
defenders. It called upon the Governments concerned to carry out thorough investigations to identify perpetrators
and bring them to justice, and to ensure that crimes committed against human rights defenders do not go
unpunished. It also requested the High Commissioner for Human Rights to undertake inquiries about the security
of 18 other named individual human rights defenders whose life or security was deemed to be at risk and to
inform the Subcommission of the results of her inquiries. The High Commissioner is providing the requested
information to the Subcommission.
12. United Nations organs also express concern about continuing reports on repressive measures taken against
private individuals and groups that cooperate with the United Nations in human rights matters. This is a problem
closely related to human rights defenders. In resolution 2000/22 of 18 April 2000,6796 the Commission on Human
Rights urged Governments to refrain from all acts of intimidation or reprisal against those who seek to cooperate
or have cooperated with representatives of United Nations human rights bodies; those who avail or have availed
themselves of procedures established under United Nations auspices for the protection of human rights and
fundamental freedoms and all those who have provided legal assistance to them for that purpose; those who
submit or have submitted communications under procedures established by human rights instruments; and those
677
REPORT OF THE FOURTH WORLD CONFERENCE ON WOMEN, BEIJING, 4-15 SEPTEMBER 1995 (United Nations publication,
Sales No. E.96.IV.13), chap. I, resolution 1, annex II.
678
See, respectively, E/CN.4/1999/4, chap. II, sect. A, and E/CN.4/2000/2, chap. II, sect. A.
679
448
who are relatives of victims of human rights violations. Further, the Commission requested all representatives of
United Nations human rights bodies, as well as treaty bodies to help prevent the hampering of access to United
Nations human rights procedures in any way and to report on such cases to the relevant United Nations organs.
13. The technical cooperation programmes of the Office of the United Nations High Commissioner for Human
Rights and other agencies in the areas relevant to human rights offer support to Governments and civil society in
creating conditions for the work of human rights defenders. The adoption of national plans of action in the field of
human rights, as a participatory process involving both governmental bodies and nongovernmental organizations,
provides a good framework for strengthening human rights advocacy. In many countries, the establishment and
functioning of independent national human rights institutions significantly contributes to the same end. Projects in
the area of human rights education provide another example of the assistance offered by the United Nations in line
with the Declaration.
14. The Assisting Communities Together (ACT) project, implemented by the Office of the High Commissioner in
cooperation with the United Nations Development Programme in more than 20 countries, launched in 1998 on the
occasion of the fiftieth anniversary of the Universal Declaration of Human Rights, is intended to support practical
human rights activities at the grass-roots level. This project is based on a bottom-up approach which emphasizes
the role of civil society in the promotion and protection of human rights. It aims, through the provision of small
grants to bona fide human rights defenders working individually or in association with others, at empowering
people locally to raise human rights awareness and resolve local human rights problems. Thus, the ACT project
also contributes to strengthening partnerships between United Nations and local human rights constituencies.
Initially financed from voluntary contributions provided by Governments, the ACT project is now supported by
the United Nations Fund for International Partnerships.
15. The Secretary-General has consistently underlined the importance of the Declaration and the need to promote
its effective implementation.680 He has also drawn attention to the importance of cooperation between non-
governmental organizations and United Nations human rights bodies in order to advance its implementation. In
particular, the Secretary-General has highlighted the important role in the campaign for the implementation of the
Declaration of organizations, such as the Observatory for the Protection of Human Rights Defenders, a joint
programme of the World Organization against Torture and the International Federation of Human Rights Leagues.
The High Commissioner has also consistently urged the effective implementation of the Declaration. In her
speech at the opening of the fifty-sixth session of the Commission on Human Rights, the High Commissioner
emphasized the compelling need to take further measures to protect human rights defenders, and stated that the
human rights community was looking to the Commission to implement the Declaration with practical measures.
Human rights treaty bodies, as well as such United Nations entities as the United Nations Children’s Fund, have
also focused on the Declaration.
III. Special Representative for Human Rights Defenders
16. The Commission on Human Rights, by resolution 2000/61, requested the Secretary-General to appoint, for a
period of three years, a special representative who shall report on the situation of human rights defenders in all
parts of the world and on possible means to enhance their protection in full compliance with the Declaration. In
accordance with the decision of the Commission, which was endorsed by the Economic and Social Council in its
decision 2000/220, the main activities of the special representative shall be:
(a) To seek, receive, examine and respond to information on the situation and the rights of anyone, acting individually
or in association with others, to promote and protect human rights and fundamental freedoms;
680
See, for example, E/CN.4/2000/95 and A/54/280.
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EXHIBIT 11 – REPORT OF THE U.N. SECRETARY
(b) To establish cooperation and conduct dialogue with Governments and other interested actors on the promotion and
effective implementation of the Declaration;
(c) To recommend effective strategies better to protect human rights defenders and follow up on these
recommendations.
17. The Special Representative is expected to submit annual reports on his or her activities to the Commission on
Human Rights and to the General Assembly, and to make suggestions and recommendations enabling him or her
better to carry out his or her tasks and activities.
18. In its resolution 2000/61, the Commission urged all Governments to cooperate with and assist the Special
Representative and to furnish all information in the fulfillment of his or her mandate upon request. Further, it
requested the Secretary-General to provide the Special Representative with all necessary assistance, in particular
in terms of staff and resources, and requested the Special Representative to report annually on his or her activities
to the Commission and the General Assembly and to make any suggestions and recommendations enabling him or
her better to carry out his or her tasks and activities.
19. The establishment of the implementation mechanism for the Declaration on the Right and Responsibility of
Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and
Fundamental Freedoms is a further milestone in the international efforts made since 1948 to recognize the vital
role of human rights defenders in the improvement of the situation of human rights throughout the world, and to
look for ways to provide more effective international protection to them and to their activities. This will be a
central international mechanism for making the rights and responsibilities of human rights defenders, as laid down
in the Declaration, a reality.
450
EXHIBIT 12 – U.N. DECLARATION ON HUMAN RIGHTS DEFENDERS
EXHIBIT 12. U.N. Declaration on Human Rights Defenders

DECLARATION ON THE RIGHT AND RESPONSIBILITY OF
INDIVIDUALS, GROUPS AND ORGANS OF SOCIETY TO PROMOTE
AND PROTECT UNIVERSALLY RECOGNIZED HUMAN RIGHTS
AND FUNDAMENTAL FREEDOMS
A/RES/53/144
8 March 1999
Fifty-third session
Agenda item 110 (b)
RESOLUTION ADOPTED BY THE GENERAL ASSEMBLY
[on the report of the Third Committee (A/53/625/Add.2)]
53/144. Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to
Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms
The General Assembly,
Reaffirming the importance of the observance of the purposes and principles of the Charter of the United Nations
for the promotion and protection of all human rights and fundamental freedoms for all persons in all countries of
the world,
Taking note of Commission on Human Rights resolution 1998/7 of 3 April 1998,681 in which the Commission
approved the text of the draft declaration on the right and responsibility of individuals, groups and organs of
society to promote and protect universally recognized human rights and fundamental freedoms,
Taking note also of Economic and Social Council resolution 1998/33 of 30 July 1998, in which the Council
recommended the draft declaration to the General Assembly for adoption,
Conscious of the importance of the adoption of the draft declaration in the context of the fiftieth anniversary of
the Universal Declaration of Human Rights,682
1. Adopts the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to
Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, annexed to the present
resolution;
2. Invites Governments, agencies and organizations of the United Nations system and intergovernmental and non-
governmental organizations to intensify their efforts to disseminate the Declaration and to promote universal
respect and understanding thereof, and requests the Secretary-General to include the text of the Declaration in the
next edition of Human Rights: A Compilation of International Instruments.
85th plenary meeting
9 December 1998
681
See Official Records of the Economic and Social Council, 1998, Supplement N 1 o. 3 (E/1998/23), chap. II, sect. A.
682
Resolution 217 A (III).
451 ON HUMAN RIGHTS DEFENDERS

EXHIBIT 12 – U.N. DECLARATION
ANNEX
Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and
Protect Universally Recognized Human Rights and Fundamental Freedoms
The General Assembly,
Reaffirming the importance of the observance of the purposes and principles of the Charter of the United
Nations for the promotion and protection of all human rights and fundamental freedoms for all persons in all
countries of the world,
Reaffirming also the importance of the Universal Declaration of Human Rights683 and the International
Covenants on Human Rights684 as basic elements of international efforts to promote universal respect for and
observance of human rights and fundamental freedoms and the importance of other human rights instruments
adopted within the United Nations system, as well as those at the regional level,
Stressing that all members of the international community shall fulfill, jointly and separately, their solemn
obligation to promote and encourage respect for human rights and fundamental freedoms for all without
distinction of any kind, including distinctions based on race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status, and reaffirming the particular importance of
achieving international cooperation to fulfil this obligation according to the Charter,
Acknowledging the important role of international cooperation for, and the valuable work of individuals,
groups and associations in contributing to, the effective elimination of all violations of human rights and
fundamental freedoms of peoples and individuals, including in relation to mass, flagrant or systematic violations
such as those resulting from apartheid, all forms of racial discrimination, colonialism, foreign domination or
occupation, aggression or threats to national sovereignty, national unity or territorial integrity and from the refusal
to recognize the right of peoples to self-determination and the right of every people to exercise full sovereignty
over its wealth and natural resources,
Recognizing the relationship between international peace and security and the enjoyment of human rights
and fundamental freedoms, and mindful that the absence of international peace and security does not excuse non-
compliance,
Reiterating that all human rights and fundamental freedoms are universal, indivisible, interdependent and
interrelated and should be promoted and implemented in a fair and equitable manner, without prejudice to the
implementation of each of those rights and freedoms,
Stressing that the prime responsibility and duty to promote and protect human rights and fundamental
freedoms lie with the State,
Recognizing the right and the responsibility of individuals, groups and associations to promote respect for
and foster knowledge of human rights and fundamental freedoms at the national and international levels,
Declares:
Article 1
Everyone has the right, individually and in association with others, to promote and to strive for the protection and
realization of human rights and fundamental freedoms at the national and international levels.
683
684
Resolution 2200 A (XXI), annex.
EXHIBIT 12 – U.N. DECLARATION ON452

Article 2
1. Each State has a prime responsibility and duty to protect, promote and implement all human rights and
fundamental freedoms, inter alia, by adopting such steps as may be necessary to create all conditions necessary in
the social, economic, political and other fields, as well as the legal guarantees required to ensure that all persons
under its jurisdiction, individually and in association with others, are able to enjoy all those rights and freedoms in
practice.
2. Each State shall adopt such legislative, administrative and other steps as may be necessary to ensure that the
rights and freedoms referred to in the present Declaration are effectively guaranteed.
Article 3
Domestic law consistent with the Charter of the United Nations and other international obligations of the State in
the field of human rights and fundamental freedoms is the juridical framework within which human rights and
fundamental freedoms should be implemented and enjoyed and within which all activities referred to in the
present Declaration for the promotion, protection and effective realization of those rights and freedoms should be
conducted.
Article 4
Nothing in the present Declaration shall be construed as impairing or contradicting the purposes and principles of
the Charter of the United Nations or as restricting or derogating from the provisions of the UNIVERSAL
DECLARATION OF HUMAN RIGHTS,685 the INTERNATIONAL COVENANTS ON HUMAN R3IGHTS and other international
instruments and commitments applicable in this field.
Article 5
For the purpose of promoting and protecting human rights and fundamental freedoms, everyone has the right,
individually and in association with others, at the national and international levels:
(a) To meet or assemble peacefully;
(b) To form, join and participate in non-governmental organizations, associations or groups;
(c) To communicate with non-governmental or intergovernmental organizations.
Article 6
Everyone has the right, individually and in association with others:
(a) To know, seek, obtain, receive and hold information about all human rights and fundamental freedoms,
including having access to information as to how those rights and freedoms are given effect in domestic
legislative, judicial or administrative systems;
(b) As provided for in human rights and other applicable international instruments, freely to publish, impart or
disseminate to others views, information and knowledge on all human rights and fundamental freedoms;
(c) To study, discuss, form and hold opinions on the observance, both in law and in practice, of all human rights
and fundamental freedoms and, through these and other appropriate means, to draw public attention to those
matters.
685

Article 7
Everyone has the right, individually and in association with others, to develop and discuss new human rights ideas
and principles and to advocate their acceptance.
Article 8
1. Everyone has the right, individually and in association with others, to have effective access, on a
nondiscriminatory basis, to participation in the government of his or her country and in the conduct of public
affairs.
2. This includes, inter alia, the right, individually and in association with others, to submit to governmental bodies
and agencies and organizations concerned with public affairs criticism and proposals for improving their
functioning and to draw attention to any aspect of their work that may hinder or impede the promotion, protection
and realization of human rights and fundamental freedoms.
Article 9
1. In the exercise of human rights and fundamental freedoms, including the promotion and protection of human
rights as referred to in the present Declaration, everyone has the right, individually and in association with others,
to benefit from an effective remedy and to be protected in the event of the violation of those rights.
2. To this end, everyone whose rights or freedoms are allegedly violated has the right, either in person or through
legally authorized representation, to complain to and have that complaint promptly reviewed in a public hearing
before an independent, impartial and competent judicial or other authority established by law and to obtain from
such an authority a decision, in accordance with law, providing redress, including any compensation due, where
there has been a violation of that person’s rights or freedoms, as well as enforcement of the eventual decision and
award, all without undue delay.
3. To the same end, everyone has the right, individually and in association with others, inter alia:
(a) To complain about the policies and actions of individual officials and governmental bodies with
regard to violations of human rights and fundamental freedoms, by petition or other appropriate means, to
competent domestic judicial, administrative or legislative authorities or any other competent authority
provided for by the legal system of the State, which should render their decision on the complaint without
undue delay;
(b) To attend public hearings, proceedings and trials so as to form an opinion on their compliance with
national law and applicable international obligations and commitments;
(c) To offer and provide professionally qualified legal assistance or other relevant advice and assistance in
defending human rights and fundamental freedoms.
4. To the same end, and in accordance with applicable international instruments and procedures, everyone has the
right, individually and in association with others, to unhindered access to and communication with international
bodies with general or special competence to receive and consider communications on matters of human rights
and fundamental freedoms.
5. The State shall conduct a prompt and impartial investigation or ensure that an inquiry takes place whenever
there is reasonable ground to believe that a violation of human rights and fundamental freedoms has occurred in
any territory under its jurisdiction.

Article 10
No one shall participate, by act or by failure to act where required, in violating human rights and fundamental
freedoms and no one shall be subjected to punishment or adverse action of any kind for refusing to do so.
Article 11
Everyone has the right, individually and in association with others, to the lawful exercise of his or her occupation
or profession. Everyone who, as a result of his or her profession, can affect the human dignity, human rights and
fundamental freedoms of others should respect those rights and freedoms and comply with relevant national and
international standards of occupational and professional conduct or ethics.
Article 12
1. Everyone has the right, individually and in association with others, to participate in peaceful activities against
violations of human rights and fundamental freedoms.
2. The State shall take all necessary measures to ensure the protection by the competent authorities of everyone,
individually and in association with others, against any violence, threats, retaliation, de facto or de jure adverse
discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the
rights referred to in the present Declaration.
3. In this connection, everyone is entitled, individually and in association with others, to be protected effectively
under national law in reacting against or opposing, through peaceful means, activities and acts, including those by
omission, attributable to States that result in violations of human rights and fundamental freedoms, as well as acts
of violence perpetrated by groups or individuals that affect the enjoyment of human rights and fundamental
freedoms.
Article 13
Everyone has the right, individually and in association with others, to solicit, receive and utilize resources for the
express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means, in
accordance with article 3 of the present Declaration.
Article 14
1. The State has the responsibility to take legislative, judicial, administrative or other appropriate measures to
promote the understanding by all persons under its jurisdiction of their civil, political, economic, social and
cultural rights.
2. Such measures shall include, inter alia:
(a) The publication and widespread availability of national laws and regulations and of applicable basic
international human rights instruments;
(b) Full and equal access to international documents in the field of human rights, including the periodic
reports by the State to the bodies established by the international human rights treaties to which it is a
party, as well as the summary records of discussions and the official reports of these bodies.
3. The State shall ensure and support, where appropriate, the creation and development of further independent
national institutions for the promotion and protection of human rights and fundamental freedoms in all territory
under its jurisdiction, whether they be ombudsmen, human rights commissions or any other form of national
institution.

Article 15
The State has the responsibility to promote and facilitate the teaching of human rights and fundamental freedoms
at all levels of education and to ensure that all those responsible for training lawyers, law enforcement officers,
the personnel of the armed forces and public officials include appropriate elements of human rights teaching in
their training programme.
Article 16
Individuals, non-governmental organizations and relevant institutions have an important role to play in
contributing to making the public more aware of questions relating to all human rights and fundamental freedoms
through activities such as education, training and research in these areas to strengthen further, inter alia,
understanding, tolerance, peace and friendly relations among nations and among all racial and religious groups,
bearing in mind the various backgrounds of the societies and communities in which they carry out their activities.
Article 17
In the exercise of the rights and freedoms referred to in the present Declaration, everyone, acting individually and
in association with others, shall be subject only to such limitations as are in accordance with applicable
international obligations and are determined by law solely for the purpose of securing due recognition and respect
for the rights and freedoms of others and of meeting the just requirements of morality, public order and the
general welfare in a democratic society.
Article 18
1. Everyone has duties towards and within the community, in which alone the free and full development of his or
her personality is possible.
2. Individuals, groups, institutions and non-governmental organizations have an important role to play and a
responsibility in safeguarding democracy, promoting human rights and fundamental freedoms and contributing to
the promotion and advancement of democratic societies, institutions and processes.
3. Individuals, groups, institutions and non-governmental organizations also have an important role and a
responsibility in contributing, as appropriate, to the promotion of the right of everyone to a social and
international order in which the rights and freedoms set forth in the Universal Declaration of Human Rights and
other human rights instruments can be fully realized.
Article 19
Nothing in the present Declaration shall be interpreted as implying for any individual, group or organ of society or
any State the right to engage in any activity or to perform any act aimed at the destruction of the rights and
freedoms referred to in the present Declaration.
Article 20
Nothing in the present Declaration shall be interpreted as permitting States to support and promote activities of
individuals, groups of individuals, institutions or non-governmental organizations contrary to the provisions of the
Charter of the United Nations.

EXHIBIT 13 – CASTLE ROCK, COLORADO. V. JESSICA GONZALES
EXHIBIT 13. Castle Rock, CO. vs Jessica Gonzales 545 U.S. 748 (2005) (No
Individual Right to Police Protection Killed 3 Little Girls)
Town Of Castle Rock, Colorado
v.
Jessica Gonzales,
Individually and a Next Best Friend Of Her
Deceased Minor Children, Gonzales et al.,
545 U.S. 748 (2005)
Certiorari To The United States Court Of Appeals For The Tenth Circuit
No. 04-278. June 27, 2005
Respondent filed this suit under 42 U. S. C. §1983 alleging that petitioner violated the Fourteenth
Amendment.s Due Process Clause when its police officers, acting pursuant to official policy or custom, failed to
respond to her repeated reports over several hours that her estranged husband had taken their three children in
violation of her restraining order against him. Ultimately, the husband murdered the children. The District Court
granted the town’s motion to dismiss, but an en banc majority of the Tenth Circuit reversed, finding that
respondent had alleged a cognizable procedural due process claim because a Colorado statute established the state
legislature’s clear intent to require police to enforce retraining orders, and thus its intent that the order.s recipient
have an entitlement to its enforcement. The court therefore ruled, among other things, that respondent had a
protected property interest in the enforcement of her restraining order.
Held: Respondent did not, for Due Process Clause purposes, have a property interest in police
enforcement of the restraining order against her husband. Pp. 6.19.
(a) The Due Process Clause.s procedural component does not protect everything that might be described
as a government .benefit”: “To have a property interest in a benefit, a person . . . must . . . have a legitimate claim
of entitlement to it.. Board of Regents of State Colleges v. Roth, 408 U. S. 564, 577. Such entitlements are created
by existing rules or understandings stemming from an independent source such as state law. E.g., ibid. Pp. 6.7.
(b) A benefit is not a protected entitlement if officials have discretion to grant or deny it. See, e.g.,
Kentucky Dept. of Corrections v. Thompson, 490 U. S. 454, 462.463. It is inappropriate here to defer to the Tenth
Circuit.s determination that Colorado law gave respondent a right to police enforcement of the restraining order.
This Court therefore proceeds to its own analysis. Pp. 7.9.
(c) Colorado law has not created a personal entitlement to enforcement of restraining orders. It does not
appear that state law truly made such enforcement mandatory. A well-established tradition of police discretion
has long coexisted with apparently mandatory arrest statutes. Cf. Chicago v. Morales, 527 U. S. 41, 47, n. 2, 62,
n. 32. Against that backdrop, a true mandate of police action would require some stronger indication than the
Colorado statute.s direction to .use every reasonable means to enforce a restraining order. or even to .arrest . . . or
. . . seek a warrant.. A Colorado officer would likely have some discretion to determine that.despite probable
cause to believe a restraining order has been violated.the violation.s circumstances or competing duties counsel
decisively against enforcement in a particular instance. The practical necessity for discretion is particularly
apparent in a case such as this, where the suspected violator is not actually present and his whereabouts are
unknown. In such circumstances, the statute does not appear to require officers to arrest but only to seek a
warrant. That, however, would be an entitlement to nothing but procedure, which cannot be the basis for a
property interest. Pp. 9.15.
(d) Even if the statute could be said to make enforcement .mandatory, . that would not necessarily mean
that respondent has an entitlement to enforcement. Her alleged interest stems not from common law or contract,
but only from a State.s statutory scheme. If she was given a statutory entitlement, the Court would expect to see
EXHIBIT 13 – CASTLE457
ROCK V. JESSICA GONZALES
EXHIBIT 13 – CASTLE ROCK, COLORADO. V. JESSICA GONZALES
some indication of that in the statute itself. Although the statute spoke of .protected person[s]. such as respondent,
it did so in connection with matters other than a right to enforcement. Most importantly, it spoke directly to the
protected person.s power to .initiate. contempt proceedings if the order was issued in a civil action, which
contrasts tellingly with its conferral of a power merely to .request. initiation of criminal contempt proceedings.and
even more dramatically with its complete silence about any power to .request. (much less demand) that an arrest
be made. Pp. 15.17.
(e) Even were the Court to think otherwise about Colorado.s creation of an entitlement, it is not clear that
an individual entitlement to enforcement of a restraining order could constitute a .property. interest for due
process purposes. Such a right would have no ascertainable monetary value and would arise incidentally, not out
of some new species of government benefit or service, but out of a function that government actors have always
performed.arresting people when they have probable cause. A benefit.s indirect nature was fatal to a due process
claim in O.Bannon v. Town Court Nursing Center, 447 U. S. 773, 787. Here, as there, .[t]he simple distinction
between government action that directly affects a citizen.s legal rights . . . and action that is directed against a
third party and affects the citizen only . . . incidentally, provides a sufficient answer to. cases finding government-
provided services to be entitlements. Id., at 788. Pp. 17.19.
366 F. 3d 1093, reversed.
SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and O.CONNOR, KENNEDY,
SOUTER, THOMAS, and BREYER, JJ., joined. SOUTER, J., filed a concurring opinion, in which BREYER, J.,
joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined.
EXHIBIT 13 – CASTLE ROCK 458

V. JESSICA GONZALES
EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES
EXHIBIT 14. Human Rights Complaint: Jessica Gonzales v. United States
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

Organizations of American States
REPORT Nº 52/07 on PETITION 1490-05
ADMISSIBILITY
JESSICA GONZALES AND OTHERS
UNITED STATES (*)
July 24, 2007
(*) Commission Member Professor Paolo Carozza did not take part in the discussion and voting on this
case, pursuant to Article 17(2) of the Commission’s Rules of Procedure.
I. SUMMARY
1. On December 27, 2005 the Inter-American Commission on Human Rights (hereinafter the
“Commission” or “IACHR”) received a petition submitted by Caroline Bettinger-Lopez, Emily J. Martin, Lenora
Lapidus, Steven Macpherson Watt, and Ann Beeson, attorneys-at-law with the American Civil Liberties Union686
(hereinafter the “Petitioners”) against the Government of the United States (hereinafter the “State” or “U.S.”).
The petition was presented on behalf of Ms. Jessica Gonzales (Lenahan), a U.S. national who claims that the
police failed to respond to her repeated and urgent calls over several hours informing that her estranged husband
had taken their three minor daughters (ages 7, 8 and 10) in violation of a restraining order issued against him,
which resulted in their death. The United States Supreme Court allegedly validated the law enforcement officials’
conduct, by holding that Ms. Gonzales was not entitled under the United States Constitution to have the
restraining order enforced by the police.
2. The petition alleges that the preventable deaths of Ms. Gonzales’ children and the harm she suffered
violated their rights to life and personal security under Article I, their right to protection of private and family life
under Article V, their right to protection of the family under Article VI, their right to special protection for
mothers and children under Article VII, and their right to the inviolability of the home under Article IX of the
American Declaration on the Rights and Duties of Man (hereinafter “the American Declaration”). Petitioners
further allege that the United States’ failure to investigate Ms Gonzales’ complaint and provide her with a remedy
violated her right to resort to the courts under Article XVIII, and her right to obtain a prompt decision from the
authorities under Article XXIV. Finally, the petition claims that the United States’ failure to ensure the
substantive rights under the above articles violated Ms. Gonzales’ right to equality under Article II. In response
to the petition, the State argues that the Petitioners’ claims are inadmissible because the alleged victim has failed
to exhaust domestic remedies.
3. As set forth in this Report, having examined the contentions of the parties on the question of
admissibility, and without prejudging the merits of the matter, the Commission decided to declare the Petitioners’
claims admissible with respect to Articles I, II, V, VI, VII, XVIII and XXIV of the American Declaration, to
continue with the analysis of the merits of the case, to transmit the report to the parties, and to publish the report
and include it in its Annual Report to the General Assembly of the Organization of American States.
II. PROCEEDINGS BEFORE THE COMMISSION
686
By note dated October 26, 2006, the Human Rights Clinic of Columbia University Law School was accredited as a joint
petitioner.
459 : JESSICA GONZALES V. UNITED STATES

EXHIBIT 14 – HUMAN RIGHTS COMPLAINT
4. Following the lodging of the Petitioners’ complaint, dated December 27, 2005, received by the
Executive Secretariat on December 27, 2005, and a revision thereof with formatting corrections received on
January 13, 2006, on April 17, 2006, the Commission transmitted the pertinent parts of the complaint to the State
and requested information within two months as established by the Commission’s Rules of Procedure.
5. In a communication dated June 21, 2006, the State requested an extension of thirty days to prepare its
response. On June 26, 2006, the Commission granted the State’s request for an extension. In a communication
dated September 18, 2006 and received by the Commission on September 20, 2006, the State delivered its
observations on the Petitioners’ complaint. By note dated September 22, 2006, the Commission transmitted the
State’s response to the Petitioners and requested any additional information on the State’s response within one
month.
6. In a communication dated November 27, 2006, the Petitioners provided information in connection with
the complaint and requested the Secretariat’s assistance with obtaining all non-privileged documents relating to
this matter that are in possession, custody, or control of the United States government. Subsequently, in a note
dated November 27, 2006, the Commission requested the State to deliver to the Commission within one month
copies of any documentation referred to in its response to the petition in this matter that have not previously been
provided to the Commission together with any other documentation or other information that the State may
consider relevant to the admissibility stage of the this proceeding before the Commission.
7. In a note dated December 11, 2006, and another one dated December 12, 2006, received by the
Commission on December 12, 2006, the Petitioners delivered their reply to the response of the State dated
September 18, 2006. The Commission transmitted the pertinent parts of the Petitioner’s reply to the State on
January 3, 2007, with any observations requested within one month. In a note dated March 5, 2007, the State
acknowledged receipt of the Commission’s note of January 3, 2007 and September 22, 2006. As a response to the
latter, the State informed that, regarding the Petitioner’s request for additional documentation, there are no
provisions in the rules of the Commission providing for requests of this kind and recommended that the
Petitioners seek such documentation through appropriate state and federal procedures.
8. A hearing before the Inter-American Commission on Human Rights to address matters related to this
case was convened on Friday, March 2, 2007, during the Commission’s 127th ordinary period of sessions. In a
communication dated May 14, 2007, the Petitioners provided observations concerning the March 2, 2007 hearing
of the case. By note dated May 17, 2007, the Commission transmitted the Petitioners’ observations to the State
and requested a State’s response within one month.
9. In a communication dated July 6, 2007, Katherine Caldwell and Andrew Rhys Davies, attorneys of the
firm Allen & Overy LLP, submitted an Amici Curiae brief in favor of the allegations of the petitioners in this
case. The Amici Curiae brief was also submitted on behalf of 29 organizations, entities and international and
national networks dedicated to the protection of the rights of women and children.687 By note dated July 20, 2007,
the Commission transmitted a copy of this brief to the parties, for their information.
687
Center for Justice and International Law (CEJIL); The Latin American and Caribbean Committee for the Defense of
Women’s Rights (CLADEM); Asociación Civil por la Igualdad y la Justicia (ACIJ), Argentina; Asociación por los Derechos
Civiles (ADC), Argentina; Centro de Estudios Legales y Sociales (CELS), Argentina; Fundación Mujeres en Igualdad,
Argentina; Fundación para Estudio e Investigación de la Mujer, Argentina; Instituto de Derechos Humanos, Facultad de
Ciencias Jurídicas y Sociales, Universidad Nacional de La Plata, Argentina; Tracy Robinson, Faculty of Law, University of
the West Indies, Barbados; La Oficina Jurídica Para la Mujer, Cochabamba, Bolivia; Constance Backhouse, Professor of
Law and University Research Chair, University of Ottawa, Canada; Canadian Association of Sexual Assault Centres, British
Columbia, Canada; Harmony House, Ottawa, Ontario, Canada; Professor Elizabeth Sheehy, University of Ottawa Faculty of
Law, Canada; Centro de Derechos Humanos y Litigio Internacional (CEDHUL), Colombia; Corporación Sisma - Mujer,
EXHIBIT 14 – HUMAN RIGHTS COMPLAINT: J460

ESSICA GONZALES V. UNITED STATES
III. POSITIONS OF THE PARTIES

A. Position of the Petitioners
10. The Petitioners allege that Ms. Gonzales and her husband lived in Castle Rock, Colorado and had
married in 1990. In 1996, her husband began adopting abusive behavior towards her and her three minor
daughters (ages 7, 8 and 10). In 1999, after he attempted to commit suicide, Ms. Gonzales filed for divorce and
started living separately from him. In May of that year, she requested the issuance of a restraining order from the
State of Colorado to protect her and her daughters. The order was granted in May (temporary) and in June 1999
(permanent). The order granted Ms. Gonzales the sole physical custody of her three minor daughters and allowed
Mr. Gonzales occasional visitation or “parenting time.” The order provided that family visits could only occur
once a week and during dinner time - “mid-week dinner visit” – and they had to be previously arranged between
Simon and Jessica Gonzales.
11. The Petitioners claim that on June 22, 1999, Mr. Gonzales took the children with him in violation of
the restraining order, as time for visitation had not been previously arranged. At approximately 5:50 p.m. on that
same day, Ms. Gonzales called the Castle Rock Police Department to report the alleged abduction. In her call to
the police department, the Petitioners allege that she informed them of the existence of the restraining order and
that there had been no pre-arranged visitation with the children planned for that day. The Petitioners state that
later that day she called the police again (7:30 p.m.) and approximately at 8:00 p.m. two officers arrived at her
house. After showing them a copy of the restraining order, the Petitioners allege that the police officers informed
Ms. Gonzales that there was nothing they could do to enforce it since her ex-husband was entitled to some
“parenting time”. They also told her to wait until 10:00 p.m. to call the police again.
12. The Petitioners allege that Ms. Gonzales reported to the police a call she received from her husband
around 8:30 p.m., who, upon her refusal to “rekindle” their relationship, communicated that he “[knew] what he
needed to do.” They also allege that Ms. Gonzales reported an alarming call received that evening from Mr.
Gonzales’ girlfriend, Rosemary Young, who expressed concern about whether Mr. Gonzales might harm himself
or his children. She allegedly told Ms. Gonzales that her ex-husband had threatened to drive off a cliff earlier that
day.
13. According to the Petitioners, the police dismissed all of Ms Gonzales’s calls. The latter simply
replied that the father of the children had the right to spend time with them, even though she repeatedly mentioned
the restraining order against him and that no visitation time had been agreed upon. She was only advised to wait
until 10:00 p.m., and when she called at that time, her pleas were dismissed and she was again told to wait, until
12:00 a.m. According to the Petitioners, inaction and indifference persisted in the response even after Ms.
Gonzales went to the Castle Rock police department and filed an incident report.
14. At approximately 3:30 a.m. the Petitioners allege that Mr. Gonzales appeared at the police station and
opened fire at the police officers, who shot him dead on the scene. Subsequently the police found the bodies of
the three murdered girls in the back of Mr. Gonzales’ truck.
Colombia; Liga de Mujeres Desplazadas, Colombia; Fundación Paniamor, Costa Rica; La Fundación PROCAL (Promoción,
Capacitación y Acción Alternativa), Costa Rica; Centro de Apoyo Aquelarre (CEAPA), Dominican Republic; Movimiento de
Mujeres Dominico - Haitiana (MUDHA), Dominican Republic; Núcleo de Apoyo a la Mujer (NAM), Dominican Republic;
Jacqueline Sealy-Burke, Director, Legal Aid and Counseling Clinic (LACC), Grenada; Comisión Mexicana de Defensa y
Promoción de los Derechos Humanos, A.C. (CMDPDH), México; Organización Popular Independiente, A.C., Cd. Juárez,
México; Organización Red de Mujeres Contra la Violencia, Nicaragua; Centro de la Mujer Panameña (CEMP), Panamá;
Asociación Pro Derechos Humanos (APRODEH), Lima, Perú; Red Nacional De Casas De Refugio Para Mujeres y Niñas
Victimas De Violencia Familiar y Sexual, Perú.

15. The allegations indicate that after hearing about the shooting, Ms. Gonzales drove to the police
station. 688 As she attempted to approach Mr. Gonzales’ truck, she was stopped by the police and taken to the local
sheriff’s office. The petitioners allege that the officers refused to offer Ms. Gonzales any information on whether
the girls were alive or not, and ignored her pleas to see the girls and identify them. She allegedly was detained in
a room for 12 hours and interrogated, without any outside contact. The allegations indicate that she felt
revictimized and was traumatized by the experience. Around 8:00 a.m. she was informed by state officials that
Mr. Gonzales had murdered their daughters before he arrived at the police station. Allegedly, she was not
permitted by the authorities to identify her daughters’ bodies until six days later, in their caskets at the moment of
the burial. She also alleges that the authorities never allowed her to approach Mr. Gonzales’ truck and allegedly
disposed of the truck three weeks after the death of her daughters.
16. The petitioners finally claim that Ms. Gonzales never learned any details of how, when and where her
daughters died, their death certificates do not state this information, and therefore, she is still unable to include
this information on their grave stones. 689 She allegedly has requested this information from the Castle Rock police
and it has been denied. Overall, Ms. Gonzales alleges she was denied a factual investigation of the events
surrounding the death of her daughters.
17. The Petitioners stress that at no time did the police appear concerned over the safety of her children,
and that her repeated calls were met with disinterest. On one instance, a police officer allegedly dismissed her
pleas, telling her that he “didn’t see what the big deal was.” The Petitioners also allege that the police did not
respond to any emergencies that evening that would have prevented them from allocating resources towards the
enforcement of Ms. Gonzales restraining order. Finally they claim that Ms. Gonzales trusted the police would
take action, and had she known the police would not do anything to locate her daughters, she would have
undertaken proactive steps to find them herself and avoid the tragedy.
18. The Petitioners indicate that Ms. Gonzales filed suit in the United States District Court for the District
of Colorado, a court of federal level, alleging that the City of Castle Rock and several police officers had violated
her rights under the Due Process Clause of the Fourteenth Amendment, claiming both substantive and procedural
due process challenges. In the sphere of substantive due process, Ms. Gonzales claimed that she and her
daughters had a right to police protection against harm from her husband. In the realm of procedural due process,
she alleged that she possessed a protected property interest in the enforcement of her restraining order and that the
Castle Rock police officers’ arbitrary denial of that entitlement without due process violated her rights. The
District Court dismissed her case, which a panel of judges of the Third Circuit Court of Appeals affirmed in part
and reversed in part. This finding was then affirmed in a rehearing before all the judges of the court (“en banc”
review).
19. Ms. Gonzales’ case reached the Supreme Court, the highest judicial and appellate court in the United
States. According to the Petitioners, on June 27, 2005, the Supreme Court rejected all of the claims presented by
Ms. Gonzales, holding that her due process rights had not been violated. The Supreme Court held that despite
Colorado’s mandatory arrest law and the express and mandatory terms of her restraining order, Ms. Gonzales had
no personal entitlement to police enforcement of the order.
20. The Petitioners highlight that domestic violence is a widespread and tolerated phenomenon in the
United States that has a disproportionate impact on women and has negative repercussions on their children. The
688
Hearing on the matter of Jessica Gonzales v. United States at the 127th Ordinary Period of Sessions of the Inter-American
Commission on Human Rights, March 2, 2007.
689
Hearing on the matter of Jessica Gonzales v. United States at the 127th Ordinary Period of Sessions of the Inter-American
Commission on Human Rights, March 2, 2007.

petitioners also stress that even though the prevalence, persistence and gravity of the issue are recognized at the
state and federal levels and legislative measures have been adopted to confront the problem, the response of police
officers is to treat it as a family and private matter of low priority, as compared to other crimes. This perception
influences negatively the response of the police in the implementation of protection orders.
21. Regarding the right to equality before the law, the Petitioners allege that the lack of State response to
Ms. Gonzales’ reports was based on negative stereotypes embraced by some police officers and a facially neutral
police department policy of assigning lower priority to reports of domestic violence incidents, a policy that affects
women disproportionately. According to the Petitioners, this attitude from state authorities has a particularly
alarming effect on women pertaining to different racial, ethnic, and lower-income groups.
22. Furthermore, the Petitioners allege that the doctrine of sovereign immunity severely limits the ability
of victims of domestic violence to sue police departments for torts such as negligence when they fail to comply
with their legal duties. The Petitioners argue that the Colorado Governmental Immunity Act (“hereinafter
CGIA”) barred Ms. Gonzales from bringing suit against the Town of Castle Rock. The Petitioners argue that
under Colorado state law, government actors such as police officers are immune from liability unless a plaintiff
can demonstrate that the officers’ acts were “wanton and willful”.690 Such a showing, the Petitioners remark, will
be impossible to make in most circumstances, and especially in domestic violence cases, because the injury
typically results from a third party and non-State actor. Moreover, the Petitioners state that the highest state court
in Colorado has interpreted this provision in an extremely restrictive manner, holding that the term “willful and
wanton” for purposes of CGIA implies showing “that the officer purposefully acted or failed to act with conscious
belief that this would probably harm” the victim.691
23. Finally, the Petitioners stress that Supreme Court interpretation of the Constitution prevents victims of
domestic violence from obtaining legal remedies, and from holding the police legally accountable for failure to
protect victims from acts of domestic violence. Therefore, negative stereotypes affecting women are perpetuated,
and structures sustaining domestic violence are strengthened. The petition indicates that in 2000, the Supreme
Court struck down a federal law which had created a cause of action to sue perpetrators of domestic violence by
holding that Congress at the federal level did not have the constitutional authority to adopt such law.692 The
Supreme Court also allegedly held in another decision that the government is under no substantive obligation to
protect an individual from violence committed by a non-State actor.693 The Petitioners finally allege that the
Supreme Court again denied legal remedy to victims of domestic violence in the case involving Ms. Gonzales,
stating that an individual was not constitutionally entitled to the enforcement of a restraining order.694
24. Regarding the admissibility of the petition, the petitioners allege that Ms. Gonzales’ petition complies
with all the Rules of Procedure of the Commission. They contend that Ms. Gonzales properly exhausted domestic
remedies in accordance with Article 31 of the Rules of Procedure, that her petition has been filed within the six-
month deadline established under article 32(1) of the Rules of Procedure, and that the American Declaration on
the Rights and Duties of Man is binding on the United States.
690
Petitioners’ petition dated December 27, 2005, p. 37.
691
Petitioners’ observations to the State’s communication, dated December 12, 2006, p. 92.
692
The petition refers to the case of United States v. Morrison, 529 U.S. 598 (2000), according to which issues such as
violent crime and family relationships belong to the local rather than the national sphere. Therefore, Congress at the federal
level has no power to create a remedy for victims of gender-based violence.
693
The petition refers to the case of DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989).
694
The petition refers to the Supreme Court decision in the case of Castle Rock v. Gonzales, 125 S.Ct. 2796 (2005).

25. On the merits, the petitioners ask that the Commission declare the United States of America to be in
violation of Articles I, II, V, VI, VII, IX, XVIII, and XXIV of the American Declaration, and recommend such
remedies as the Commission considers adequate and effective for the violations Ms. Gonzales suffered.
B. Position of the State
26. The State alleges that the events which occurred prior to the murders of Ms. Gonzales’ three
daughters, on June 23, 1999, confirm that she had agreed that Mr. Gonzales could see their three daughters that
evening for a mid-week dinner visit and that the visit was consistent with the restraining order. Therefore, the
State alleges that the information available at the time revealed no indication that Mr. Gonzales was likely to
commit that tragic crime against his own daughters.
27. The State alleges that the evidentiary records show that throughout the evening of June 22, 1999, and
the early hours of June 23, 1999, the police responded professionally to the information Ms. Gonzales provided.
The State argues that although the restraining order granted Ms. Gonzales “temporary sole physical custody” of
the children, it granted Mr. Gonzales “parenting time with the minor children on alternating weekends
commencing after work on Friday evening and continuing through 7:00 p.m. Sunday evening”. It also granted
Mr. Gonzales a “mid-week dinner visit” to be “arranged by the parties.” Therefore, the State argues that since Ms.
Gonzales consented to the mid-week dinner visit, Mr. Gonzales did not violate the restraining order by taking his
daughters for the evening.
28. The State argues that members of the Castle Rock Police Department were responsive to her
numerous requests for assistance and took her concerns seriously. In response to her initial call, allegedly two
officers were dispatched to Ms. Gonzales’ house, one went directly to her house and the other one went to Mr.
Gonzales’ house, and later joined the first officer at Ms. Gonzales’ house. The State also alleges that at no point
did Ms. Gonzales show the officers a restraining order.
29. At approximately 8:43 p.m., Ms. Gonzales called the police and informed the dispatcher that she had
received a telephone call from her husband and that he was with the children at Elitch’s amusement park in
Denver. In that occasion, the State alleges that Ms. Gonzales did not mention any conversation with Rosemary
Young (Mr. Gonzales’ girlfriend) nor did she mention any concern about Mr. Gonzales mental state or the safety
of her children, nor did she request that an officer should be dispatched to locate Mr. Gonzales at the amusement
park.
30. At 9:57 p.m., the State alleges that Ms. Gonzales called again and expressed frustration that her
daughters had not arrived home. She did not mention that she was concerned about the safety of any of the
children. Nor did she request that the Castle Rock police put out an “APB” (all points bulletin to other police
departments). According to the State, Ms. Gonzales implicitly acknowledged that there was no restraining order
violation when she explained to the police dispatcher in her first call to the Castle Rock police and in her
subsequent conversations with an officer that she had agreed to the visit.
31. At approximately 12:30 a.m., on Wednesday, June 22nd, Ms. Gonzales showed up at the police
department in tears. The State alleges that at this point she expressed concern about Mr. Gonzales’ mental state
saying that he had “lost it” and that he might be “suicidal”. The State claims that the police ordered to locate Mr.
Gonzales and his vehicle through an “Attempt to Locate BOLO” (an acronym for “Be On The Look Out” which
is directed to other jurisdictions so that they may notify the requesting police department if they locate the
individual in question). According to the investigation, the State informs that Mr. Gonzales reached the police
station at 3:25 a.m. and fired shots through the window. After an exchange of gunfire with the officers, Mr.
Gonzales died. When the officers approached Mr. Gonzales’s truck, they discovered the bodies of the three young
girls.

32. The State argues that the petition is inadmissible for failure to state a breach of a duty by the United
States under the American Declaration. The State alleges that no provision of the Declaration imposes an
affirmative duty on States to actually prevent the commission of the crimes perpetrated by Mr. Gonzales.
Furthermore, the State also alleges that no other provision of the Declaration contains language that even
addresses implementation of the enumerated rights as the American Convention. The American Convention, on
the other hand, includes a provision that describes the actual obligations of State Parties regarding implementation
of the rights enumerated in the Convention.
33. Furthermore, the State alleges that Ms. Gonzales did not exhaust all available remedies to report the
events suffered. Particularly, the State alleges that the actual facts of the case were not addressed in the domestic
litigation. At the district court level, the Town of Castle Rock filed a motion to dismiss the claim. The District
Court found that as a matter of law, Ms. Gonzales had failed to state a claim upon which relief could be
granted. 695 Accordingly, the actual facts were not addressed in the litigation because the appeals process dealt
with whether the federal law invoked by Ms. Gonzales, was available based on the allegations set forth in her
complaint. The State claims that had Simon Gonzales survived an additional range of remedies such as criminal
prosecution and criminal or civil contempt proceedings would have been available to Ms. Gonzales. The
Supreme Court determined that the Fourteenth Amendment’s Due Process Clause, granted police officers
discretion in enforcing restraining orders, and determined that Ms. Gonzales did not have federal entitlement to
enforcement of the restraining order.
34. The State alleges that Ms. Gonzales never filed a complaint with the Castle Rock Police Department
or with the Town of Castle Rock which would have prompted an investigation of her complaint by the Castle
Rock Police Department or the Town of Castle Rock. In addition, although Ms. Gonzales chose not to pursue a
claim under Colorado law, such as a civil suit in state court against the police officers under state tort law, the
State alleges that “had she been able to establish that the Castle Rock police officers acted “willfully and
wantonly” outside the scope of their employment, she should have filed a civil suit against them in state court.”696
Furthermore, the State argues that the Colorado Governmental Immunity Statute would have permitted such a suit
had she been able to meet this standard.697
35. The State claims that the fact that Ms. Gonzales did not obtain positive results at the federal judicial
level through the decision of the U.S. Supreme Court in this specific case, does not mean that domestic violence
victims do not have resources available to them at the state or local level or that protection orders do not
effectively protect their beneficiaries.
36. The State also describes a series of additional remedies and protections for victims of domestic
violence at the national and state levels, such as billions of dollars devoted to implement programs related to
domestic violence, as well as a diversity of laws that have been designed to improve the investigation of domestic
violence cases.
IV. ANALYSIS
A. Competence of the Commission ratione personae, ratione materiae, ratione temporis and ratione loci
37. Upon considering the record before it, the Commission considers that it is competent to examine the
present petition. Article 23 of the Commission’s Rules of Procedure authorizes petitioners to submit a complaint
alleging violations of rights recognized in the American Declaration on the Rights and Duties of Man. The
695
Gonzales v. City of Castle Rock, No. 00-1285 (D.Co. filed Jan. 23, 2001).
696
State’s observations dated September 18, 2006, p. 21.
697
State’s observations dated September 18, 2006, p. 22.

alleged victims, Ms. Gonzales, and her three daughters Leslie, Katheryn and Rebecca Gonzales, are under the
jurisdiction of the United States and their rights are protected under the American Declaration, the provisions of
which the State is bound to respect in conformity with article 17 of the OAS Charter, article 20 of the Statute of
the Commission, and article 29 of the Rules of Procedure of the Commission. The United States has been subject
to the jurisdiction of the Commission since it deposited its instrument of ratification of the OAS Charter on June
19, 1951.698 Thus the Commission is competent ratione personae with respect to Ms. Gonzales.
38. Inasmuch as the Petitioners allege violations of articles I, II, V, VI, VII, IX, XVIII, and XXIV of the
American Declaration on the Rights and Duties of Man, the Commission is competent ratione materiae to
examine the petition.
39. The Commission is competent ratione temporis to examine the complaints because the petition
alleges facts that occurred on or after the date on which the United States’ obligations under the American
Declaration took effect.
40. Finally, the Commission is competent ratione loci, in so far as the petition alleges facts which have
occurred while Ms. Gonzales was under the jurisdiction of the United States.
B. Admissibility of the Petition
1. Exhaustion of domestic remedies
41. Article 31(1) of the Commission’s Rules of Procedure specifies that, in order to decide on the
admissibility of a matter, the Commission must verify whether the remedies of the domestic legal system have
been pursued and exhausted in accordance with generally recognized principles of international law. Article
31(2) of the Commission’s Rules of Procedure, however, specifies that this requirement does not apply if the
domestic legislation of the state concerned does not afford due process of law for protection of the right allegedly
violated, if the party alleging the violation has been denied access to domestic remedies or prevented from
exhausting them, or if there has been an unwarranted delay in reaching a final judgment under the domestic
remedies. As indicated by Article 31(3) of the Commission’s Rules, when a petitioner alleges one of these
exceptions, it then falls to the State to demonstrate that domestic remedies have not been exhausted, unless that is
clearly evident from the record.
42. The requirement of prior exhaustion applies when domestic remedies are available in practice within
the national system, and would be adequate and effective in providing a remedy for the alleged violation. The
Inter American Court of Human Rights has observed that domestic remedies, in accordance with generally
recognized principles of international law, must be both adequate, in the sense that they must be suitable to
address an infringement of a legal right, and effective, in that they must be capable of producing the result for
which they were designed.699 While a number of remedies exist in the legal system of every country, the
698
Article 20 of the Statute of the IACHR provides that, in respect to those OAS member states that are not parties to the
American Convention on Human Rights, the Commission may examine communications submitted to it and any other
available information, to address the government of such states for information deemed pertinent by the Commission, and to
make recommendations to such states, when it finds this appropriate in order to bring about more effective observance of
fundamental human rights. See also Charter of the Organization of American States, Arts. 3, 16, 51, 112, 150; Regulations of
the Inter-American Commission on Human Rights, Arts. 26, 51-54; I/A. Court H.R., Advisory Opinion OC-10/8
“Interpretation of the Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American
Convention on Human Rights,” July 14, 1989, Ser. A Nº 10 (1989), paras. 35-35; I/A Comm. H. R., James Terry Roach and
Jay Pinkerton v. United States, Case 9647, Res. 3/87, 22 September 1987, Annual Report 1986-87, paras. 46-49.
699
I/A Court H.R., Velásquez Rodríguez Case, Merits, Judgment of July 29, 1988, Ser. C. Nº 4, (1988), paras. 64-66.

exhaustion rule does not require the invocation of remedies which are inadequate,700 ineffective701 and offer no
possibility of success. 702 For purposes of admissibility, the standard of analysis used for the prima facie
assessment of the adequacy and effectiveness of the remedies under domestic law is not as high as the one
required to determine whether a violation of Convention-protected rights has been committed. 703
43. In the case at hand, the parties are in dispute regarding compliance with the domestic remedy
exhaustion requirement, and consequently, it falls to the Inter-American Commission to rule on the matter. The
Petitioners allege that Ms. Gonzales has properly exhausted domestic remedies available to her in respect to the
claims raised before the Commission. In particular, they claim that Ms. Gonzales presented her Constitutional
due process claims to the domestic federal courts, that on June 27, 2005, the United States Supreme Court rejected
those claims, and that all appeals have been exhausted.
44. The State in response argues that the present petition should be considered inadmissible because Ms.
Gonzales failed to pursue a range of legal and administrative remedies that were available to her. The State
claims that the holding of the U.S. Supreme Court in Town of Castle Rock, Colorado v. Gonzales, was limited to
the particular claims raised by Ms. Gonzales regarding the particular Colorado statutory regime concerning the
enforcement of protective orders and should not be construed to mean that there are no remedies available to
victims of domestic violence in the United States or that restraining orders in such cases offer no protection to
their beneficiaries. The State argues that there were a number of potential avenues that were not exhausted by
Ms. Gonzales including: a) the filing of an administrative complaint with the Castle Rock Police Department or
with the Town of Castle Rock which would have prompted an investigation of her complaint by the same entities;
b) the pursuit of a civil suit in state court against the police officers under states tort law, which would have been
permitted by the Colorado Governmental Immunity Statute;704 and c) the filing of an equal protection claim
before federal courts.
45. The State also describes a series of additional remedies and protections for victims of domestic
violence at the national and state levels such as billions of dollars allocated to the implementation of programs
related to domestic violence, as well as a diversity of laws that have been designed to improve the investigation of
domestic violence cases. Furthermore, the State claims that had Simon Gonzales survived an additional range of
remedies such as criminal prosecution and criminal or civil contempt proceedings would have been available to
Ms. Gonzales.
46. The Petitioners in response argue that none of the state and federal judicial remedies identified by the
State were “viable legal avenues”705 for Ms. Gonzales and that no administrative channels were available to Ms.
Gonzales in 1999 that would have afforded her an adequate and effective redress. They claim that the only
remedy that was “available, adequate and effective”706 in 1999 that she could exhaust was a due process claim at
the federal level. In regards to the other remedies mentioned by the State, the Petitioners argue that the
presentation of a claim under the Equal Protection Clause of the United States Constitution would have been futile
based on established Supreme Court precedent. Furthermore, they claim that the Colorado Governmental
700
I/A Court H.R., Velásquez Rodríguez Case, Merits, Judgment of July 29, 1988, Ser. C. Nº 4, (1988), para. 64.
701
702
703
Report Nº 08/05, Petition 12.238, Miriam Larrea Pintado, Ecuador, February 23, 2005, para. 31.
704
State’s Observations dated September 18, 2006, p. 22.
705
Petitioners’ Observations dated May 14, 2007.
706
State’s Observations dated September 18, 2006, p. 22.

Immunity Act barred Ms. Gonzales from bringing a civil tort suit against the Town of Castle Rock and the
individual police officers. The Petitioners also allege that the State does not provide any information concerning
the administrative complaint mechanisms it identifies in its response, and that the Petitioner was never informed
of these mechanisms when the facts allegedly occurred. The petitioners finally claim that since Simon Gonzales
did not survive, any remedies identified by the State in this regard were not in fact available to Ms. Gonzales and
that these remedies would have been inappropriate to remedy the human rights violations alleged.
47. In considering the positions of the parties on the question of exhaustion, the Commission notes that
Ms. Gonzales’ claims before the Commission focus on allegations she already raised before federal courts and
reached the U.S. Supreme Court, the highest judicial instance and appellate court in the United States. Ms.
Gonzales sued the Castle Rock Police Department and certain individual officers under the Due Process Clause of
the Fourteenth Amendment to the United States Constitution, raising both substantive and procedural challenges,
which were ultimately rejected by the U.S. Supreme Court.707 The U.S. does not dispute this allegation.
Furthermore, the Commission observes that the U.S. Supreme Court, in its decision, did not indicate that Ms.
Gonzales had pursued the wrong remedies to raise her claims.
48. The Commission therefore concludes that the State in this case has not indicated how the alternative
legal and administrative remedies it mentions could have provided Ms. Gonzales with a different outcome for her
claims or how these could have been adequate and effective in remedying the violations alleged. Furthermore,
both parties highlight precedent that limits the likelihood of success of any of these remedies, including the
Supreme Court ruling in the Town of Castle Rock, Colorado v. Gonzales case, the Supreme Court cases
establishing that the government has no obligation to protect an individual from acts committed by non-State
actors, and existing immunity laws protecting state officials from liability.
49. In previous cases, this Commission has shared the view of the European Court of Human Rights that a
petitioner may be excused from exhausting domestic remedies with respect to a claim where it is apparent from
the record before it that any proceedings instituted on that claim would have no reasonable prospect of success in
light of prevailing jurisprudence of the state’s highest courts.708 In these circumstances, the Commission has
considered that proceedings in which claims of this nature are raised would not be considered “effective” in
accordance with general principles of international law. In these circumstances, the Commission finds that any
proceedings raising these claims before state courts would appear to have no reasonable prospect of success, and
therefore would not be effective in accordance with general principles of international law.
50. Based on the above factors, the Commission concludes that the Petitioners properly exhausted all
domestic remedies available within the United States legal system and, therefore, that their claims before the
Commission are not barred from consideration by the requirement of exhaustion of domestic remedies under
Article 31(1) of its Rules of Procedure.
2. Duplication
707
In regards to substantive due process, Ms. Gonzales argued that she and her daughters had a right to police protection
against harm from her husband. In regards to procedural due process, Ms. Gonzales argued that she possessed a protected
property interest in the enforcement of the terms of her restraining order and that the Castle Rock’s police officers arbitrary
denial of that entitlement without due process violated her rights.
708
See, e.g., Case 11.193, Report 51/00, Gary Graham v. United States (Admissibility), Annual Report of the IACHR 2000,
para. 60, citing Eur. Court H.R., De Wilde, Oomas and Versyp Cases, 10 June 1971, Publ. E.C.H.R. Ser. A, Vol.12, p. 34,
paras. 37, 62; Eur. Court H.R., Avan Oosterwijck v. Belgium, Judgment (Preliminary Objections), November 6, 1980, Case
Nº 7654/76, para. 37. See also Case 11.753, Report 108/00, Ramón Martinez Villareal v. United States (Admissibility),
Annual Report of the IACHR 2000, para. 70.

51. In their petition, the Petitioners have stated that Ms. Gonzales’ claims are not pending before any
other international forum. The State has not contested the issue of duplication of procedures. The Commission
therefore finds no bar to the admissibility of the Petitioners’ claims under Article 33 of the Commission’s Rules
of Procedure.
3. Timeliness of the petition
52. The record in the present complaint indicates that the Petitioners lodged their petition with the
Commission on December 27, 2005 and therefore within six (6) months of the June 27, 2005 decision of the U.S.
Supreme Court affirming Ms. Gonzales failure to establish a violation of the 14th Amendment of the U.S.
Constitution. The State has not contested the issue of timeliness. As such, the Commission finds that the petition
was not lodged beyond the time period prescribed under Article 32 of the Commission’s rules of Procedure.
4. Colorable Claim
53. For the purposes of admissibility, Article 34(a) of the Commission’s Rules of Procedure provides that
petitions lodged with the Commission must state facts that tend to establish a violation of the rights referred to in
Article 27 of the Rules of Procedure or whether the petitions must be dismissed as “manifestly groundless” or
“obviously out or order” under Article 34(b) of the Commission’s rules of Procedure. In so doing, the
Commission undertakes only a prima facie evaluation of the alleged facts with respect to the admissibility and
does not consider or judge the merits of any claim.
54. In their allegations, the Petitioners raise three main claims of violations of Ms. Gonzales’ rights under
the American Declaration:
a. The preventable death of Ms. Gonzales’ daughters and the harms she suffered violated their rights to
life and personal security under Article I, their rights to special protection under Article VII, and their rights to
protection of family and home under Articles V, VI, and IX of the American Declaration;
b. The United States’ failure to investigate Ms. Gonzales’ complaints, the failure to provide her an
effective remedy, and the lack of access to information regarding the circumstances of the death of her daughters
violated her rights to resort to courts under Article XVIII and to petition the government and receive a prompt
decision under Article XXIV;
c. The United States’ failure to guarantee Ms. Gonzales’ substantive rights outlined above violated her
right to equality under Article II.
55. The State opposes these claims on the ground that the Petitioners have not cited any provision of the
American Declaration that imposes an affirmative duty on States to actually prevent the commission of individual
crimes by private parties such as the tragic criminal murders by Mr. Simon Gonzales of his three daughters. The
State claims that no other provision of the Declaration contains language that even addresses implementation of
the enumerated rights, let alone imposes an affirmative duty to prevent crimes such as those at issue in this case.
56. In this regard, according to the well-established and long-standing jurisprudence and practice of the
inter-American system, the American Declaration is recognized as constituting a source of legal obligation for
OAS member states, including in particular those states that are not parties to the American Convention on
Human Rights.709 These obligations are considered to flow from the human rights obligations of member states
709
See I/A Court H.R., Advisory Opinion OC-10/89 “Interpretation of the Declaration of the Rights and Duties of Man
within the Framework of Article 64 of the American Convention on Human Rights”, July 14, 1989, Ser. A Nº 10 (1989),
paras. 35-45; James Terry Roach and Jay Pinkerton v. United States, Case 9647, Res. 3/87, 22 September 1987, Annual
Report of the IACHR 1986-87, paras. 46-49. For examples of decisions in which the Commission has found violations of the
American Declaration in respect of OAS member states that are not parties to the American Convention on Human Rights,

under the OAS Charter,710 which member states have agreed are contained in and defined by the American
Declaration,711 as well as from the customary legal status of the rights protected under many of the Declaration’s
core provisions.712 As a source of legal obligation, therefore, the State must implement the principles of the
American Declaration in practice within its jurisdiction and it is appropriate for the Commission to consider and,
where substantiated, find violations of that instrument attributable to a member state of the OAS, including the
United States. Therefore, the Commission concludes that the scope of this obligation in the present case can and
will be reviewed in light of the circumstances of the facts alleged, the jurisprudence of the Inter-American system
of human rights713 and its application to countries which have not ratified the American Convention. The
allegations of the parties in this case do not indicate the petition is manifestly groundless or out of order, thus, the
Commission can declare this petition admissible.
57. With regard to the Petitioners’ claims, after carefully reviewing the information and arguments
provided by the Petitioners and the State outlined by the Commission in Part III of this Report, the Commission
considers that the facts alleged by the Petitioners in respect to these claims could tend to establish violations of
Articles I, V, VI, VII, XVIII and XXIV of the rights of Ms. Gonzales and her daughters under the American
Declaration and warrant an analysis on the merits of the complaint.
58. Furthermore, it considers that the alleged facts would constitute possible violations to Article II of the
American Declaration. The IACHR observes that the Petitioners allege that the police authorities engage in a
systematic and widespread practice of treating domestic violence as a low-priority crime, belonging to the private
sphere, as a result of discriminatory stereotypes about the victims. These stereotypes influence negatively the
police response to the implementation of restraining orders. The failures in the police response affect women
disproportionately since they constitute the majority of victims of domestic violence. The deficiencies in the state
response allegedly have a particularly alarming effect on women that pertain to racial and ethnic minorities, and
lower-income groups.
59. It is the opinion of the IACHR that the facts alleged in the petition do not provide sufficient grounds
to constitute a violation of the right to inviolability of the home, protected by Article IX of the American
Declaration.
V. CONCLUSIONS
see Case 1742 (Cuba), May 1975, Annual Report of the IACHR 1975; Maclean v. Suriname, Case 10.116, Resolution Nº
18/89, Annual Report of the IACHR 1988-1989; Michael Edwards et al. v. The Bahamas, Case 12.067, Report Nº 48/01,
Annual Report of the IACHR 2000; Garza v. United States, Case 12.243, Report Nº 52/01, Annual Report of the IACHR
2000.
710
Charter of the Organization of American States, Arts. 3, 16, 51, 112, 150.
711
See e.g. OAS General Assembly Resolution 314, AG/RES. 314 (VII-O/77), June 22, 1977 (charging the Inter-American
Commission with the preparation of a study to “set forth their obligations to carry out the commitments assumed in the
American Declaration of the Rights and Duties of Man”); OAS General Assembly Resolution 371, AG/RES (VIII-O/78),
July 1, 1978 (reaffirming its commitment to “promoting the observance of the American Declaration of the Rights and Duties
of Man.”); OAS General Assembly Resolution 370, AG/RES. 370 (VIII-O/78), July 1, 1978 (referring to the “international
commitments” of OAS member states to respect the rights recognized in the American Declaration of the Rights and Duties
of Man).
712
Case 12.379, Report Nº 19/02, Lares-Reyes et al. (United States), February 27, 2002, para. 46.
713
I/A Court H.R., Case of the Mapiripán Massacre. Judgment of September 15, 2005. Series C No. 134, para. 111; I/A
Court H. R., Case of the Massacre of Pueblo Bello. Judgment of January 31, 2006. Series C No. 140, para 123.

60. The Commission concludes that it has the competence to examine the Petitioners’ allegations, and that
the petition is admissible for the alleged violations of Articles I, II, V, VI, VII, XVIII and XXIV of the American
Declaration and in accordance with the Commission’s Rules of Procedure.
61. On the basis of the findings of fact and law set forth above, and without prejudging the merits of the
matter,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES:
1. To declare the claims in the petition to be admissible in respect to Articles I, II, V, VI, VII, XVIII and
XXIV of the American Declaration.
2. To declare this petition inadmissible regarding the alleged violation of the right provided for by Article
IX of the American Declaration.
3. To continue with the analysis of the merits of the case.
4. To transmit this report to the parties.
5. To publish this report and include it in its Annual Report to the General Assembly of the Organization
of American States.
Done and signed in the city of Washington, D.C., on the 24th day of the month of July, 2007. (Signed):
Florentín Meléndez, President; Víctor E. Abramovich, Second Vice-President; Sir Clare Roberts, Evelio Fernández
Arévalos, and Freddy Gutiérrez Trejo Commissioners.

EXHIBIT 15 – JAMES S. GIFFORD, JUS COGENS AND THE FOURTEENTH AMENDMENT
EXHIBIT 15. James S. Gifford, Jus Cogens And Fourteenth Amendment Privileges
Or Immunities: A Framework Of Substantive, Fundamental Human Rights In A
Constitutional Safe-Harbor, 16 ARIZ. J. INT’L & COMP. LAW 484 (SPRING 1999)
JUS COGENS AND FOURTEENTH AMENDMENT
PRIVILEGES OR IMMUNITIES
Table of Contents
I. INTRODUCTION ..................................................................................................................................1
II. JUS COGENS: THE INTERNATIONAL DOCTRINE OF PEREMPTORY NORMS...........................................4
A. Defining Jus Cogens.................................................................................................................5
B. Jus Cogens as Natural Law.......................................................................................................8
1. The Development of International Law from Natural Law .................................................8
2. Modern Acceptance of Secular Natural Law in Jus Cogens Principles of
International Law ................................................................................................................11
III. JUS COGENS LIMITATIONS ON CONSTITUTIONAL SOVEREIGNTY ....................................................11
A. The Trace of Secular Natural Law that Underwrites our Constitution......................................11
1. Classical Foundations of Secular Natural Law .................................................................11
2. English Foundations of Secular Natural Law ...................................................................13
B. The Constitutional Marriage of Natural Law with the Law of Nations .....................................14
1. An Originalist Understanding of the International Law of Nations as the
Law of the Land ..........................................................................................................14
2. The Originalist View of the Law of Nations Discarded ....................................................15
3. The Role of Jus Cogens in a Return to Traditional Views of the Law of Nations ..............16
4. Fourteenth Amendment Privileges or Immunities Clause Incorporation of Jus Cogens.....18
IV. THE DEMISE OF THE PRIVILEGES OR IMMUNITIES CLAUSE ............................................................18
A. The Historical Context of the Reconstruction Amendments ....................................................19
1. The Thirteenth Amendment, the Black Codes, and the Civil Rights Act of 1866 ..............19
2. The Fourteenth Amendment ............................................................................................20
3. The Civil Rights Act of 1870 and the Fifteenth Amendment ............................................21
B. Article IV Privileges and Immunities: Corfield v. Coryell .......................................................21
C. The Slaughter-House Cases ....................................................................................................23
1. The Slaughter House Cases: Historical Prelude................................................................23
2. The Slaughter-House Cases: Chief Justice Miller’s Majority Opinion ..............................26
(a) The Court’s Rejection of the Thirteenth Amendment Argument..............................26
(b) The Court’s Rejection of the Fourteenth Amendment “Property” Argument ...........26
(c) The Court’s Rejection of the Fourteenth Amendment Equal Protection Argument ..27
(d) The Court’s rejection of the Fourteenth Amendment Privileges or
Immunities argument ...........................................................................................27
D. Dismantling and Deconstructing the Slaughter-House Cases...................................................31
1. Reconciling Stare Decisis ................................................................................................31
2. Humoring an Originalist Bent Bench ...............................................................................34
V. INCORPORATING JUS COGENS WITHIN THE CONSTITUTION ..............................................................41
VI. CONCLUSION.................................................................................................................................43
472
473
Jus Cogens and Fourteenth Amendment Privileges or Immunities:

A Framework of Substantive, Fundamental Human Rights in a Constitutional Safe-Harbor
James S. Gifford*
16 Ariz. J. Int’l & Comp. Law 481 (Spring 1999)
[p.481 (in original)]
I.
INTRODUCTION
I have seen the flames, I have seen the flames rising to nocturnal heavens; I have seen the parents
and children, teachers and their disciples, dreamers and their dreams, and woe unto me, I have
seen the children thrown alive into the flames.714
Senator Jesse Helms, during floor debate on ratification of the U.N. Convention on the Prevention and
Punishment of the Crime of Genocide in 1985 (Convention),715 ardently lobbied against ratification and sought,
at the very least, to “defang” the Convention of any but the most empty, “symbolic” import.716 [p.482]
Ratification of the Convention meant, for Senator Helms that “we [would] submit in an entirely new way to a
regime of international law.”717 The regime that Senator Helms was xenophobically concerned about was the
Convention’s definition of genocide. 718 With Senators Lugar and Hatch, Senator Helms proposed that ratification
714
Elie Weisel, testimony before the Senate, quoted in 132 CONG. REC. S1252-04, (1986) (testimony of Sen.Metsenbaum).
715
See CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, Dec. 9, 1948, 78 UNT.S. 277
[hereinafter Convention] (ratified by the United States, with “Reservations, Declarations, and Understandings,” on Nov. 4,
1988). See also U.S. RESERVATIONS, DECLARATIONS, AND UNDERSTANDINGS, INTERNATIONAL CONVENTION ON THE PREVENTION
AND PUNISHMENT OF THE CRIME OF GENOCIDE, 132 Cong. Rec. S1355-01, (1986) [hereinafter U.S. Reservations], S. Exec.
Rep. No. 2, at 17-27 (1985), reprinted in 132 Cong. Rec. S1377-78 (1986), reprinted in 80 Am. J. Int’l L. 612-13 (1986);
Jordan J. Paust, CONGRESS AND GENOCIDE: THEY’RE NOT GOING TO GET A WAY WITH IT, 11 Mich. J. Of Int’l Law 90, 99
(1989).
716
See 132 CONG. REC. S1355-01 (1986) (statement of Senator Helms).
717
132 CONG. REC. S1252-04 (1986) (statement of Senator Helms) [hereinafter Helms statement].
718
See e.g., id.
The United Nations is scarcely more than a forum for totalitarian regimes seeking to impose a world totalitarian regime upon
us all. At this point in history, we should be seeking to disentangle the United States from this enemy of democracy and
freedom.
As far as I am concerned, the United States is the ultimate protector of human rights in the world, both in terms of power to
enforce a standard of freedom, and of our legal procedures and traditions. I do not want to see the United States submit itself
to any international regime of law which is enforced by a group of nations which do not have our legal history and goals, and
perhaps no understanding of those principles of our Nation.
Id. Senator Helms does not address why a totalitarian infiltrated United Nations (UN) would draft and submit for ratification
a Convention on Genocide, along with numerous other human rights instruments. Nor does Senator Helms acknowledge that
the Convention on Genocide was drafted and initially submitted for ratification to member States over 40 years before the
United States got around to ratifying it. However, Senator Helms did recognize that “when the United Nations was
conceived, the world had high hopes that it would become the instrument for a better world. But these hopes have been
dashed long ago. We now know that the UN has become an instrument for solidarity among those nations. . . that mock
democracy and constitutional principles.” Id. Senator Helm’s wonderfully passive construction – “have been dashed” –
474
be conditioned upon a redefinition of genocide that was not congruent with the internationally accepted definition
of genocide adopted by the Convention.719
The Convention’s definition of genocide arises from international law as a principle of jus cogens and is,
thus, something more than a mere customary norm of international practice. As a principle of jus cogens, the
international prohibition against genocide is a peremptory norm that does not allow derogation by any “civilized”
country; whether a country fully ratifies the Convention or not, [p. 482] a principle of jus cogens cannot be
violated.720 The definition contained in the Convention, also adopted by the Restatement (Third) of the Law of
Foreign Relations of the United States, requires that an act of genocide be committed with “an intent to destroy, in
whole or in part, a national, ethnical, racial or religious group.”721 Yet, the reservations and understandings
adopted during United States ratification of the Convention “understood” the Convention’s intent to destroy “in
whole or in part” to mean a “specific intent to destroy, in whole or in substantial part.”722 Furthermore, the
Convention’s second state act that would constitute genocide, “causing serious . . . mental harm,”723 was
“understood” to mean “permanent impairment of mental faculties through drugs, torture, or similar
techniques.”724 The U.S. also “understood” the prescription of genocide to be derogable “in the course of armed
conflicts,” so long as one of the otherwise genocidal acts was committed “without the specific intent” that
Senators Hatch, Lugar, and Helms read into Article Two of the Convention.725 These “understandings”726 serve
to demote the crime of genocide from one of [p.484] peremptory, non-derogable status in international law to one
of simply international custom and practice agreed to under a treaty. Thereby, Senator Helms’ “understandings”
convert a principle of jus cogens into merely a conventional, rather than peremptory, rule of international law. It
was this demotion in status that eventually mollified Senator Helms’ concern with ratifying the Convention,
glosses over the contribution our failure to fully accept, with some sort of domestic qualification, any of the UN human rights
instruments that grew out of the Second World War may have had to that dashing of hopes.
719
See Paust, supra note 2, at 94.
720
See Paust, supra note 2, at 94-95; see also discussion infra Part III and notes accompanying text.
721
CONVENTION ON GENOCIDE, supra note 2. See id. at art. 2. (the Convention’s definition of genocide). The earlier UN
resolution on genocide of 1946 includes “in part” as the requisite intent and acknowledges that genocide is “a crime under
international law.” G. A. Res. 96 (I), 1 UNGAOR, UNDoc. A/64/Add. 1, at 188-89 (1947). As Paust points out, “no other
definition is accepted as such in any General Assembly or Security Council resolution or I.C.J. decision prior or subsequent
to the adoption of the Convention.” Paust, supra note 2, at 94 n.4. See also RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS
LAW OF THE UNITED STATES § 702 cmt. d (1987) [hereinafter RESTATEMENT (THIRD)] (“Genocide is defined in Article II
of the CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE. . . . That definition is generally
accepted for purposes of customary law under this section”).
722
U.S. Reservations, supra note 2, proviso II (1) (emphasis added).
723
CONVENTION ON GENOCIDE, supra note 2, art. 2 (b).
724
U.S. Reservations, supra note 2, proviso II (2) (emphasis added).
725
See id. at proviso II (4).
726
Senator Hatch explained that “an understanding is the means by which a government attempts to clarify or explain how
certain provisions ought to be interpreted or applied in a treaty or convention.” 132 CONG. REC. S1252-04 (1986)
(statement of Senator Hatch). But, as Senator Helms “clarified,” both “reservations” and “understandings” would be “equally
binding under international law.” Helms Statement, supra note 4. “The difference between a reservation and an understanding
is this,” continued Senator Helms: “A reservation excludes or varies the legal effect of one or more of the provisions of the
treaty in their application to the reserving state . . . . An understanding merely clarifies the meaning of the provisions of the
treaty but does not exclude or vary their legal effect.” Id. At least one scholar has argued that the particular “understandings”
offered by Senators Helms, Hatch, and Lugar are “fundamentally incompatible with the object and purpose of the treaty and
will thereby be legally unacceptable.” Paust, supra note 2, at 94.
475
rendering ratification “at most, symbolic.”727 Still, however much the Lugar-Helms-Hatch Provisions “defanged”
the United Nations’ (UN) version of the Convention, and despite the effect of the U.S. Reservations in
maintaining the “sovereignty of our Nation and the freedom of our people . . . against assault by the World
Court,” Senator Helms still “symbolically” voted against ratification.728
But the non-derogability “fang” that caused Senator Helms such consternation is precisely one of the
essential elements of a principle of jus cogens729 and cannot be agreed or contracted away by treaty.730 As one
scholar has concluded, the “understanding” of the U.S. Reservations are “legally unacceptable since [they] are
incompatible with the object and purpose of the Convention. Further, such an ‘understanding’ cannot be legally
operative in the face of a contrary jus cogens, which is the case here.”731
Perhaps the nationalistic rhetoric of Senator Helms is correct after all: the international doctrine of jus
cogens is indeed a “regime” of international law. But such a regime is not one in which a chosen few select which
norms become peremptory and non-derogable. Rather, consensus of some nature is required, and a rule aspiring to
jus cogens status must not only withstand pressures of time and custom but, too, must be “so fundamental to the
international community of states as a whole that the rule constitutes a basis for the community’s legal system.”732
Consequently, once a rule of international law becomes ensconced as a principle of jus cogens, it “cannot be
displaced by states, either in their treaties or in practice.”733 Jus cogens acts, in its capacity as an international
peremptory and non-derogable rule of law, as “a natural law that is so fundamental that states . . . [p.485] cannot
avoid its force.”734 The U.S., just as any other country, cannot legislate away the internationally binding nature of
jus cogens.735
Part I of this Note explores the concept of jus cogens and argues that it is essentially a secular articulation
of natural law. Jus cogens permits an appeal to peremptory norms that is not simply an appeal to an abstract, or
religious, norm of natural law. Thus, an appeal to jus cogens avoids the often colorfully righteous trappings, the
often disturbingly un-autonomous connotations, and the often rhetorically evangelical appeals to a higher deity
which typically, if mistakenly, underlay modern appeals to a higher natural law. Instead, an appeal to jus cogens –
unlike a mistaken characterization of secular natural law that hears nothing but religious medieval dogma – can
serve to rationally and logically support legal argumentation and methodology.
In Part II, this Note traces the development of natural law in the U.S., touching on its foundations in
Roman law and in English common law. I argue that our Constitution was premised upon a traditional notion of
natural law that was not founded upon empty appeals to a higher law-giver. I suggest that our modern conception
of natural law has become unmoored from the theory of natural law espoused by the Framers, who accepted – as
727
Helms Statement, supra note 4.
728
Id.
729
See text and accompanying notes infra at part III(B).
730
See Karen Parker and Lyn Beth Neylon, JUS COGENS: COMPELLING THE LAW OF HUMAN RIGHTS, 12 Hastings Int’l &
Comp. L. Rev. 411, 418 (1989). “Once an international norm becomes jus cogens, it is absolutely binding on all states,
whether they have persistently objected or not. The rule is very clear: when a norm acquires jus cogens status, it is binding
even on persistent objector states.” Id.
731
Paust, supra note 2, at 100 (footnote omitted).
732
Mark W. Janis, THE NATURE OF JUS COGENS, 3 Conn.J. Int’l L. 359, 362 (1988).
733
Id.
734
Id.
735
For the implementing domestic codification of the Convention as understood by Senator Helms, see 18 U.S.C.A. § 1091.
476
some scholars continue to accept – that natural law reflected fundamental tenets of international law and the law
of nations.736 Furthermore, I suggest that for modern purposes, jus cogens is a secular articulation of the
traditional natural law conception that informs our Constitution.
Part III argues that the Privileges or Immunities Clause of the Fourteenth Amendment is the logical place
to constitutionally re-moor traditional natural law as articulated by the principles of jus cogens. Our constitutional
recognition of the limited scope of jus cogens natural law would ensure that the human rights [p.486] that attain
jus cogens status under international law can be constitutionally guaranteed to all of those people that the
Constitution seeks to protect.
Part IV concludes this Note with a discussion of how the Supreme Court has, albeit without ever
explicitly acknowledging such, occasionally utilized the concept of jus cogens to support historic Supreme Court
decisions, such as Brown v. Board of Education,737 while incongruously and inconsistently denying the unwritten
natural law premise of our Constitution in other cases, such as Bowers v. Hardwick, 738 Korematsu v. United
States,739 and Hirabayashi v. United States,740 and, more recently, Glucksberg v. Washington741 and Vacco v.
Quill.742 Throughout this Note, I use a number of English phrases as translations of jus cogens, most notably:
“peremptory norm,” “fundamental norm” or “fundamental right,” and “inherent human right” or simply “human
right.”743
II.
JUS COGENS: THE INTERNATIONAL DOCTRINE OF PEREMPTORY NORMS
If that which we have not seene, is not,
our knowledge is wonderfull abridged.744
The International Court of Justice, the principal judicial body of the U.N.,745 decided Military and
Paramilitary Activities in and Against Nicaragua746 on June 27, 1986. The opinion offered the principle of jus
736
Congress has the power to “define and punish . . . offenses against the Law of Nations.” U.S. CONST. art. I, § 8, cl. 10.
Thus, Congress could adopt the doctrine of jus cogens as statutory law that would allow the courts to then interpret and
incorporate much of internationally accepted human rights law. Congress could also explicitly adopt the doctrine of jus
cogens pursuant to treaty, which would also allow the judiciary to apply international human rights law in domestic cases or
controversies pursuant to the judiciary’s Article III powers. The focus of this Note, however, is on whether Congress has
unwittingly already implicitly accepted the international principle of jus cogens through the various international
conventions, declarations, and treaties that have been ratified, or, even more simply, by merely being a member State of the
UN. If so, then the Supremacy Clause of Article VI requires the judiciary to apply and adhere to the principles of jus cogens
because they are bound by the international law contained within and informing the treaties entered into under the authority
of the United States.
737
347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954).
738
478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed.2d 140 (1986).
739
319 U.S. 432, 63 S. Ct. 1124, 87 L. Ed. 1497 (1943).
740
320 U.S. 81, 63 S. Ct. 1375, 87 L. Ed. 1774 (1943).
741
521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed.2d 772 (1997).
742
521 U.S. 793, 117 S. Ct. 2293, 138 L. Ed.2d 834 (1997).
743
See discussion, infra at Part III(B)(3).
744
Montaigne, 1 MONTAIGNE’S ESSAYS 512 (John Florio trans., Nonesuch Press 1931) (1613).
477
cogens as a “further confirmation”747 of their decision to bind the U.S. to the prohibition of the use of [p.487]
force despite the U.S.’s objections and justifications for the use of force in Nicaragua, a country with whom the
U.S. was not at war.748 At least one major international legal scholar has persuasively argued that the decisions of
the International Court of Justice are evidence of accepted international law as well as a source of international
legal doctrine. 749 Whether or not one accepts that the opinions of the International Court of Justice are of any
weight in international law does not detract from their instructive role, nor does it detract from their
acknowledgment that the principle of jus cogens does in fact exist and should bind all member States of the U.N.
Moreover, although the International Court of Justice was unwilling, in the earlier North Sea Continental Shelf
Cases,750 “to attempt[] to enter into, still less pronounce upon any question of jus cogens,”751 the later acceptance
of jus cogens as a supplementary rationale for deciding Nicaragua certainly stands as a persuasive, albeit dictum,
pronouncement on the validity of jus cogens as a binding doctrine of international law.
A. Defining Jus Cogens
Jus cogens literally translates as “cogent law.”752 Like habeas corpus, jus cogens defies modern
translation from Latin.753 Consequently, jus cogens has been variously defined as peremptory norms, 754 as
fundamental rights,755 as [p.488] fundamental norms,756 as overriding principles,757 as rights of inherent
745
See UN CHARTER art. 92; Statute of the International Court of Justice, Oct. 24, 1945, at art. 1, 59 Stat. 1031, T.S. No. 993
[hereinafter Stat. ICJ]. Under the Stat. ICJ, the ICJ is directed to utilize international customs, conventions, and generally
recognized principles of law – as well as the decisions and teachings of judges and the writings and opinions of scholars – to
interpret treaties and decide matters of international law. See id. at art. 36(2)(a), (b), art. 38.
746
Military and Parliamentary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27).
747
See id. at 100-01 (opinion for the International Court); id. at 151-53 (Singh, J., separate opinion); id. at 199-200 (Sette-
Camara, J., separate opinion).
748
See id. at 114, 238. The International Court of Justice reasoned that when “a State acts in a way prima facie incompatible
with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained with the rule itself . . .
[then] the significance of [the defense] . . . confirms rather than weakens the rule” that the objecting State wishes to derogate
from with exceptions. Id. at 98.
749
See Lauterpacht, THE DEVELOPMENT OF INTERNATIONAL LAW BY THE INTERNATIONAL COURT, 20-22 (1958).
750
North Sea Continental Shelf (W. Ger. v. Den., W. Ger. v. Neth.), 1969 I.C.J. 3 (Feb. 20).
751
Id. at 42.
752
See Parker & Neylon, supra note 17, at 414-15.
753
See U.N. CONFERENCE ON THE LAW OF TREATIES, 1st & 2nd Sess., at 297, U.N. Doc. A/CONF./39/11/Add. 2 (1971)
(statement of Mr. Fattal (Lebanon)) (“neither the International Law Commission nor jurists in general had managed to find a
modern equivalent for the Latin term jus cogens.”) See also Parker & Neylon, supra note 17, at 415 n.9 (for the observation
that “in this respect, jus cogens joins habeas corpus.”)
754
VIENNA CONVENTION ON THE LAW OF TREATIES, at art. 53, U.N. Doc. A/CONF./39/27 (1969) reprinted in 63 Am. J. of Int’l
L. 53 (1988), & 8 I.L.M. 679 (1969) [hereinafter Vienna Convention]. “A treaty is void if; at the time of its conclusion, it
conflicts with a peremptory norm of general international law . . . . a peremptory norm of general international law is a norm
accepted and recognized by the international community of States as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general international law having the same character.” Id.
755
Anthony D’Amato, INTERNATIONAL LAW ANTHOLOGY 115 (1994) (“Jus cogens is a norm thought to be so fundamental that
it invalidates rules consented to by states in treaties or custom.”)
478
dignity,758 as equal and inalienable rights,759 and as essential rights.760 Under whatever nomenclature one
chooses, the body of norms under jus cogens are substantively compelling under international law doctrine, and
jus cogens is a body of cogent law that is conclusively rational and convincing.761 Consequently, the doctrine of
jus cogens is widely, if not unanimously, recognized as allowing for no derogation,762 even during circumstances
of emergency.763
[p.489] Generally, scholars agree that customary international law informs the content of a particular jus
cogens norm. 764 Yet, what constitutes customary international law is far from certain. For example, no formula
exists that mandates how many countries will comprise a customary consensus that establishes a practice as
756
Jules Lobel, THE LIMITS OF CONSTITUTIONAL POWER: CONFLICTS BETWEEN FOREIGN POLICY AND INTERNATIONAL LAW, 71
Va. L. Rev. 1071, 1075 (1985) (“Unlike ordinary international law rules, . . . fundamental norms deprive nations of the legal
power to commit certain acts. These fundamental norms. . . bar[] the use of torture, genocide, war crimes, or aggression.”)
757
Ian Brownlie, PRINCIPLES OF PUBLIC INTERNATIONAL LAW 513 (3d ed. 1979).
758
UNIVERSAL DECLARATION OF HUMAN RIGHTS, G.A. Res. 217(III)A, U.N. Doc. A/810 (1948) [hereinafter Universal
Declaration].
759
Id. at 1st preamb.
760
See AMERICAN CONVENTION ON HUMAN RIGHTS, in force July 18, 1978, O.A.S. T.S. No. 36, O.A.S. Doc.
OEA/Sev.L/V/II.50, at 2d preambl., reprinted in 9 I.L.M. 673 (1970).
761
See VIII OXFORD ENGLISH DICTIONARY 323a (2d ed. 1991) (jus cogens Latin for “compelling law.”)
762
See Vienna Convention, supra note 41, at art. 64 (“If a new peremptory norm of general international law emerges, any
existing treaty which is in conflict with that norm becomes void and terminates”); 2 RESTATEMENT (THIRD), supra note 8, at
167, § 702 cmt. n. (“Not all human rights norms are peremptory norms (jus cogens); but those in clauses (a) to (f) in this
section [genocide, slavery or slave trade, the murder or causing the disappearance of individuals, torture or other cruel,
inhuman, or degrading treatment or punishment, prolonged arbitrary detention, and systematic racial discrimination] are, and
an international agreement that violates them is void”), RESTATEMENT supra at 174-75, reporter’s note 11 (“the rights
recognized in clauses (a) to (f) of this section are not subject to derogation”); see also Rosalyn Higgins, DEROGATIONS UNDER
HUMAN RIGHTS TREATIES, Brit. Y.B. Int’l Law 1976-1977, 281, 282 (1978) (“There certainly exists a consensus that certain
rights – the right to life, to freedom from slavery or torture – are so fundamental that no derogation may be made”); Janis,
supra note 19, at 359 (“Jus cogens, compelling law, is the modern concept of international law that posits norms so
fundamental to the public order of the international community that they are potent enough to invalidate contrary rules which
might otherwise be consensually established by states”); Paust, supra note 2, at 92 (“jus cogens allows no form of derogation
under domestic or treaty-based law); Parker & Neylon, supra note 17, at 444 (“the binding, non-derogable nature of jus
cogens rules has long been accepted as part of the customary law of treaties”).
763
See RESTATEMENT (THIRD), supra note 8, reporter’s note 11 to § 702, at 174-75 (“It has been suggested that a human
rights norm cannot be deemed jus cogens if it is subject to derogation in time of public emergency. Nonderogability in
emergency and jus cogens are different principles, responding to different concerns, and they are not necessarily congruent.
In any event, the rights recognized in clauses (a) to (f) of this section are not subject to derogation in emergency under the
Covenant [of Civil and Political Rights, art. 4].”)
764
See e.g., id. at § 102 cmt. k, reporter’s note 6 (jus cogens generally accepted as “a principle of customary law (albeit of a
higher status”); Brownlie, supra note 43, at 513; Anthony D’Amato, THE CONCEPT OF CUSTOM IN INTERNATIONAL LAW 111,
132 n.73 (1971); Military and Parliamentary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 100 (June 27); Parker & Neylon,
supra note 17, at 417.
479
binding customary norm. 765 Yet, according to the International Court of Justice, universality amongst the member
States of the U.N. is not necessarily required. 766
In the North Sea Cases, for example, the International Court of Justice suggested that mere practice by
treaty States will become a customary norm that binds an objecting non-party State where the treaty, or a specific
provision of the treaty, has a norm-creating characteristic and where the widespread practices of other non-party
States confirms the norm-creating characteristic of the treaty or the specific provision.767 Additionally, an
indication of the norm must be present in the opinion juris and a sufficient lapse of time must have entrenched the
practice.768 However, if the other elements are all present, the International Court of Justice recognized that a
short time lapse would not serve to defeat finding the practice to be binding custom. 769 By allowing a short time
span to be countered by the other factors, the International Court of Justice’s test is a balancing test rather than a
test of rigid, conjunctive elements. Consequently, for a custom to become a binding norm, universal acceptance
by the international community of states is not required.770
[p.490] Merely grounding jus cogens as customary international law suffers from a number of problems.
Mainly, the Vienna Convention articulates peremptory norms as rules that arise out of general international law,
not customary international law. 771 Furthermore, the International Court of Justice’s test fails to explicate whether
a customary international law that serves on one occasion to bind a State to a practice that developed under a
treaty to which that State was not a party will allow for derogation under some set of exigent circumstances.
As Mark W. Janis points out, a number of presumptions must be made to draw from the Vienna
Convention’s use of general international law a jus cogens doctrine premised upon custom.772 While Janis accepts
that “peremptory norm” is equivalent to “jus cogens,” he nonetheless denies that a similar equivalence can be
drawn between “general” and “customary” international law.773 Asserting customary international law as the
weaker side of conventional international law, Janis maintains that treaties should trump customary international
law since treaties are explicitly written and agreed upon rules, whereas custom “must be drawn awkwardly from
the various evidences of state diplomacy and pronouncements.”774 Moreover, a treaty’s reliance upon consent by
ratification also supports a treaty’s trumping power over custom, which relies upon opinion juris – vague
assertions of the law-like appearance of the practice or rule desired to be binding upon a non-party state.775 Janis,
consequently, argues that the Vienna Convention’s use of general international law was meant, and should, be
interpreted to mean jus cogens itself, without any reliance upon constraining the Vienna Convention’s jus cogens
principle by customary international law.776 Consequently, jus cogens can not only trump treaties but also,
765
See Parker & Neylon, supra note 17, at 417.
766
See id. at 417. See also NORTH SEA CONTINENTAL SHELF (W. Ger. v. Den., W. Ger. v. Neth.), 1969 I.C.J. 3, 41-43 (Feb.
20).
767
NORTH SEA CONTINENTAL SHELF, 1969 I.C.J. at 41-42.
768
Id.
769
Id.
770
Id. at 229 (Lachs, J., dissenting on other grounds).
771
See VIENNA CONVENTION, supra note 40, at art. 53.
772
See Janis, supra note 19, at 360.
773
Id.
774
Id.
775
Id.
776
Id. at 361.
480
customary international law itself 777 because “jus cogens . . . is . . . a form of international constitutional law, a
norm that sets the very foundations of the international legal system.”778
[p.491]
B. Jus Cogens as Natural Law
1. The Development of International Law from Natural Law
Peremptory norms took on international significance in the wake of the Nazi affront to humanity during
the Second World War.779 The sway that Positivism gained during the beginning of the century maintained that
binding law could only be made by explicit state acts, especially as articulated in treaties.780 In the face of
Positivism, natural law theorists embraced the jus cogens approach of peremptory norms to invalidate treaties or
state acts which, in the words of Verdross, an early advocate of jus cogens, espoused “the idea of a necessary law
which all states are obliged to observe . . . [that is, an] ethics of the world.”781 The notion of peremptory norms
grew from the recognition that international law required an ordre public – a public order that was itself an
emanation of traditional natural law; thus, a public order was a necessary foundation of an international ethics, an
ethics that, in turn, could legitimate and ground an international community of states.782 Generally, scholars agree
that the principles of jus cogens trace principles of natural law.783 Like jus cogens, natural law is premised upon
the validity of unwritten obligations and standards that serve to ensure that human interaction remains humane. 784
Consequently, natural law “acknowledges unwritten standards of behavior as a primary source of law.”785
Edmund Burke, a contemporary of the Framers of our Constitution, insisted that “we have obligations to
mankind at large, which are not in consequence of any special voluntary pact. They arise from the relation of man
to man . . . which [is] not [a] matter[] of choice.”786 Similarly, Emmanuel Kant argued that people “cannot get
away from the idea of right in their private any more than in their public relations . . . . Right must be held sacred
by [humanity], however great the cost and sacrifice to the ruling power.”787 Both Burke’s unwritten mutual
obligations and Kant’s unwritten idea of right emanate from the [p.492] Roman emperor Lycurgus’s practice to
never reduce his laws into writing. 788 Recognizing jus cogens’ affinity with natural law allows us to revive both
777
See Mark Janis, AN INTRODUCTION TO INTERNATIONAL LAW 54 (1988).
778
Janis, supra note 19, at 363.
779
780
Id.
781
Verdross, JUS DISPOSITIVIUM AND JUS COGENS IN INTERNATIONAL LAW, 60 Am. J. Int’l L. 55, 56 (1966), quoted in Janis,
782
783
See e.g., Parker & Neylon, supra note 17, at 419, n.41; see also sources listed supra at n.48.
784
785
Id.
786
Edmund Burke, IV WORKS 165-66 (1791), quoted in Parker & Neylon, supra note 17, at n.42.
787
Emmanuel Kant, PERPETUAL PEACE 172-73, 183 (1915), quoted in Parker & Neylon, supra note 17, at n.42.
788
See Plutarch, Life of Lycurgus, in 1 THE LIVES OF THE NOBLE GRECIANS AND ROMANS 62 (John Dryden trans., Modern
Library 1992). “Lycurgus would never reduce his laws into writing; nay there is a Rhetra expressly to forbid it. For he
thought that the most material points, and such as most directly tended to the public welfare, being imprinted on the hearts of
their youth by a good discipline, would be sure to remain, and would find a stronger security, than any compulsion would be,
in the principles of action formed in them by their best law giver, education . . . . He thought it the best way to prescribe no
481
Burke’s “obligation to mankind” that belies our Constitution and Kant’s “idea of right” that led to our revolution:
both allow us to assert unwritten principles “that would enable us to make of our received legal materials, as
systematized by the legal science of [positivism], a living instrument of justice in the society of today and
tomorrow.”789
Although legal invocations of natural law in American jurisprudence often evolve from religious
sources,790 natural law may also be legitimately derived from secular and philosophical sources.791 The
international principle of jus cogens grows out of this latter development and is, therefore, “a universal standard
based upon a common humanity that can be arrived at by reason and thought.”792 The evolution of a secular
natural law793 permitted the growth of an [p.493] international community of nations by acknowledging that
commonality informs humanity794 and that nations of differing and contrasting cultural, religious, and political
mores could productively participate in a common international law.795
Thus, by the middle of this century, political philosopher Jacques Maritain was able to insist that it is:
by virtue of natural law that the Law of Nations and positive law take on the force of law, and impose themselves
upon the conscience . . . . There is a dynamism which impels the unwritten law to flower forth in human law and
positive rule or inviolable usage in such cases [as pecuniary contracts and the like], willing that their manner and form should
be altered according to the circumstances of time, and determinations of men of sound judgment. Every end and object of law
and enactment it was his design education should effect.” Id.
789
Roscoe Pound, LAW AND MORALS 87 (1924), quoted in Parker & Neylon, supra note 17, at n.42.
790
See e.g., Meachum v. Fano, 427 U.S. 215, 230 n.10 (1976) (Stevens, J., dissenting). “Neither the Bill of Rights nor the
laws of sovereign States create the liberty which the Due Process Clause protects. The relevant constitutional provisions are
limitations on the power of the sovereign to infringe on the liberty of a citizen. The relevant state laws either create property
rights, or they curtail the freedom of a citizen who must live in an ordered society. Of course, law is essential to the exercise
and enjoyment of individual liberty in a complex society. But it is not the source of liberty, and surely not the exclusive
source. [P] I had thought it self-evident that all men were endowed by their Creator with liberty as one of the cardinal
inalienable rights. It is that basic freedom which the Due Process Clause protects, rather than the particular rights or
privileges conferred by specific laws or regulations” Id. (emphasis added).
791
792
Id. at 420.
793
See e.g., H. Grotius, DE JURE BELLI AC PACIS LIBRI TRES PROLEGOMENA, §§ 8, 9, & 30 at 12-13, 21 (F. Kelsey trans., 1964)
(1925), discussed in Parker & Neylon, supra note 17, at 421; quoted in Parker & Neylon, supra, at n.50 (“It is meet for the
nature of man, within the limitations of human intelligence, to follow the direction of a well-tempered judgment, being
neither led astray by fear or the allurement of immediate pleasure, nor carried away by rash impulse. Whatever is clearly at
variance with such judgments is understood to be contrary also to the law of nature, that is, to the nature of man . . . . For the
principles of law of nature, since they are always the same, can easily be brought into a systematic form; but the elements of
positive law, since they often undergo change and are different in different places, are outside the domain of systematic
treatment, just as other notions of particular things are.”) See also E. Vattel, THE LAW OF NATIONS 318, 138-39 (J. Chitty
trans., 1870) discussed and quoted in Parker & Neylon, supra note 17, at 421, nn.51 & 52. (“The law of nature, whose object
it is to promote the welfare of human society, and to protect the liberties of all nations . . . recommends the observance of the
voluntary law of nations, for the common advantage of states . . . . The obligation of performing the offices of humanity . . .
plainly appears to be solely founded upon the nature of man. Wherefore, no nation can refuse them to another, under pretense
of its professing a different religion: to be entitled to them, it is sufficient that the claimant is our fellow-creature.”)
794
“Ah! That’s true,” Balzac’s Michael Chrestien confirms. “Before belonging to an individual, one belongs to Humanity.”
Honore De Balzac, LOST ILLUSIONS 330 (Penguin edition, n.d.).
795
482
to render the latter ever more perfect and just . . . . It is in accordance with this dynamism that the rights of the
human person take political and social form in the community. 796
2. Modern Acceptance of Secular Natural Law in Jus Cogens Principles of
International Law
In articulating a distinction between natural law and natural right, Lloyd L. Weinreb notes that natural
law, as conceived of today, is disfavored because of its historical reliance upon and early foundations in Judeo-
Christian theology.797 [p.494] Since natural law is seen to merely serve as an assertion of our “personal
responsibility while still [fixing our penitent place] within and subjection to the Providence of an omnipotent
God,” Weinreb finds it necessary to point out that the rubric of human rights was developed in order to
reconceptualize the source of such rights.798 The linguistic switch in articulation from “natural” to “human” law
or right denotes, for Weinreb, the “important point that all human beings possess the rights, so that the inquiry can
cross national boundaries.”799
Weinreb’s distinction is paralleled in the distinction that grew between religious and secular natural law;
indeed, Weinreb is observing the same historical shift traced above in this Note. The same distinction is also
echoed by Karen Parker and Lyn Beth Neylon when they conclude that “modern human rights law is based on the
natural law tenet that human beings have rights by virtue of being human . . . . Human rights instruments do not
create rights, they merely recognize them.”800
The validity of Parker and Neylon’s assertion is readily apparent in the U.N. Universal Declaration of
Human Rights.801 The preamble of the Universal Declaration, for example, asserts that “recognition of the
inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world.”802 Moreover, Article I of the Universal Declaration maintains that “all
human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and
should act towards one another in a spirit of brotherhood.”803 Human rights are born by human beings, as the
Universal Declaration acknowledges, by virtue of our simply being human; thus, the recognition of human rights
is not contingent upon either conferral or grant by any sovereign or government.
More recently, the U.N. Vienna Declaration and Programme of Action804 reaffirmed “the purposes and
principles contained in the Charter of the U.N. and the Universal Declaration of Human Rights.”805 The Vienna
Declaration also explicitly recognized and affirmed “that all human rights derive from the dignity and worth
796
J. Maritain, THE RIGHTS OF MAN AND NATURAL LAW 70-71 (D.C. Anson trans., 1943), quoted in Parker & Neylon, supra
note 17, at 421.
797
See Lloyd L. Weinreb, Natural Law and Rights, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS, at 277-79 (Robert P.
George ed., 1992).
798
Id.
799
Id.
800
Parker & Neylon, supra note 17, at 422. Compare discussion supra at note 77 (Justice Stevens’ dissent in Meachum).
801
UNIVERSAL DECLARATION, supra note 44.
802
Id. at preamb. para. 1.
803
Id. at art. I.
804
VIENNA DECLARATION AND PROGRAMME OF ACTION, WORLD CONFERENCE ON HUMAN RIGHTS, Vienna, 14-25 June 1993, UN
Doc. A/CONF.157/24 (pt. I) at 20 (1993) [hereinafter Vienna Declaration].
805
Id.
483
inherent in the human person, and that the human person is the central subject of human rights and fundamental
freedoms, and consequently should be [p.495] the principal beneficiary and should participate actively in the
realization of these rights and freedoms.”806
The principles of jus cogens serve to ensure that human rights aren’t infringed by any government by
providing that at least some human rights are so fundamental and inherent that an individual’s right to them will
supersede and invalidate any state act or treaty that endeavors to ignore them. Indeed, as Parker and Neylon trace,
“the three major legal systems – common law, civil law and socialist law – all incorporate principles of jus
cogens.”807
III.
JUS COGENS LIMITATIONS ON CONSTITUTIONAL SOVEREIGNTY
Yes, it was not Zeus that made the proclamation; nor did Justice, which lives with those below, enact such
laws as that, for mankind. I did not believe your proclamation had such power to enable one who will someday
die to override God’s ordinances, unwritten and secure. They are not of today and yesterday; they live forever;
none knows when first they were.808
A. The Trace of Secular Natural Law that Underwrites our Constitution

1. Classical Foundations of Secular Natural Law
Deeply entrenched in American jurisprudence is the guiding thought that our legal system acknowledges
no legal authority above the written Constitution; consequently, unwritten natural or fundamental law cannot
supersede the written text of the Constitution.809 The roots of this deference lie, in part, in the [p.496] Supremacy
Clause of Article VI,810 which Justice Black, for example, argued did not permit the judiciary to expound any
unwritten law. 811 But recent scholars have traced a development of a traditional, secular natural law that, they
argue, the framers accepted and thought was a given an implicit underpinning that validated our Constitution.812
806
Id.
807
Parker & Neylon, supra note 17, at 423. See generally id. at 423-27.
808
Sophocles, Antigone, in 2 THE COMPLETE GREEK TRAGEDIES: SOPHOCLES 178, 494-501 (David Greene et al. trans., Univ.
of Chicago Press 1992). Antigone is responding to King Creon’s charge that she violated his public proclamation against the
internment of her brother, Polyneices. See id.
809
See e.g., Thomas C. Grey, ORIGINS OF THE UNWRITTEN CONSTITUTION: FUNDAMENTAL LAW IN AMERICAN REVOLUTIONARY
THOUGHT, 30 Stan. L. Rev. 843, 844 (1978); see also Charles L. Black, Jr., A NEW BIRTH OF FREEDOM: HUMAN RIGHTS,
NAMED & UNNAMED (1997)(arguing that a vigorous human rights jurisprudence should emanate from the Declaration of
Independence, the Ninth Amendment, and the “citizenship” and “privileges or immunities” clause of the Section 1 of the
Fourteenth Amendment); Suzanna Sherry, THE FOUNDER’S UNWRITTEN CONSTITUTION, 54 U. Chi. L. Rev. 1127 (1987)
(arguing that the framers did not intend to displace multiple sources of traditional “fundamental law” by the adoption of a
written Constitution intended as only a sui generis species of “fundamental law”).
810
U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance
thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of
the Land; and the Judges in every State Shall be bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.”)
811
See e.g., International Shoe v. Washington, 326 U.S. 310 (1945) (Black, J., concurring). “No one, not even those who
most feared a democratic government, ever formally proposed that courts should be given power to invalidate legislation
484
Thomas C. Grey, for example, commences his inquiry into the secular natural law foundations of the
Constitution with Aristotle’s “first comprehensive treatise on advocacy.”813 Aristotle suggested to young
advocates that if positive law supported their position, then they should, of course, emphasize a deferential respect
for written authority and lobby against judges succumbing to the vice of ingenuity.814 Yet, should positive law cut
the other way, the advocate “must appeal to the universal law, and insist on its greater equity and justice.”815 Such
an appeal carries rhetorical, if not logical, force because “there really is, as everyone to some extent divines, a
natural justice and injustice that is binding on all” humanity.816 Consequently, Grey maintains that the
Aristotelian dialogue between positive law on the one hand and unwritten natural justice on the other “permeates
American constitutional law”817 and, unfortunately, threads American jurisprudence with incommensurable
incongruities. 818
[p.497] Incorporating this Aristotelian dichotomy, Cicero emphasized that commonality was the
underpinning of natural law, that it sublimated statutory law and was an internationally valid principle.819 Cicero
asserted that:
everyone ought to have the same purpose: to identify the interest of each with the interest of all. Once men grab
for themselves, human society will completely collapse. But if nature prescribes (as she does) that every human
being must help every other human being, whoever he is, just precisely because they are all human beings, then –
by the same authority – all men have identical interests. Having identical interests means that we are all subject to
one and the same law of nature: and, that being so, the very least that such a law enjoins is that we must not
wrong one another. This conclusion follows inevitably from the truth of the initial assumption. 820
It is this initial assumption that Charles L. Black, Jr., for one, recognizes underwrites our Constitution
and, too, that Senator Helms refuses to acknowledge as valid.
2. English Foundations of Secular Natural Law
under . . . elastic standards . . . . superimposing [a] natural justice concept on the Constitution’s specific prohibitions could
operate as a drastic abridgment of democratic safeguards . . . .” Id. at 325.
812
See e.g., note 96, supra page 30.
813
Grey, supra note 96, at 843.
814
Id. See also Aristotle, Rhetoric, in 2 THE COMPLETE WORKS OF ARISTOTLE: THE REVISED OXFORD TRANSLATION 2152, 2152-
53 (Jonathan Barnes ed., 1984).
815
Aristotle, supra note 101, quoted in Grey, supra note 96, at 843.
816
Grey, supra note 96 (quoting Aristotle, supra note 101).
817
See Grey, supra note 96, at 843.
818
Charles L. Black, Jr., for example, notes the logical devastation this tension has wreaked with our constitutional
jurisprudence. “Our constitutional law has never been wholly ‘textual.’ But . . . recent cases on human rights seem to me to
evidence, as to human rights, an uneasiness, a discomfort, with the conventional (though erroneous) dogma that human-rights
protections must be found in specific texts.” BLACK, supra note 96, at 161.
819
See Cicero, On Duties III, in CICERO: SELECTED WORKS 167 (Michael Grant trans., Penguin Books 1971). “That one must
not injure anybody else for one’s own profit – is not only natural law, an international valid principle: the same idea is also
incorporated in the statutes which individual communities have framed for their national purposes. The whole point and
intention of these statutes is that one citizen shall live safely with another; anyone who attempts to undermine that association
is punished with fines, imprisonment, exile, or death.” Id. at 167.
820
Id. at 168.
485
England has no written constitution;821 thus, the development of the English common law tradition is
closely tethered with principles of natural and fundamental law that bind the sovereign and Parliament.822 The
natural and fundamental law that England’s “ancient constitution” espouses is legally supreme and, therefore,
limits any individual branch or institution from usurping complete sovereignty.823 Since it is unwritten, the source
and authority of English law is derived from custom, 824 from reason and natural justice, 825 and from [p.498]
natural, religious, and enacted law.826 Lastly, natural and fundamental law could be relied upon and invoked by
the judiciary as peremptory norms that invalidated inconsistent Acts of Parliament or royal enactments and
proclamations.827 Such a foundation allowed Lord Coke, for example, to preempt an Act of Parliament in Dr.
Bonham’s Case828 because:
. . . . It appears in our books, that in many cases, the common law will controul Acts of Parliament, and sometimes
adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant,
or impossible to be performed, the common law will controul, it and adjudge such Act to be void . . . .829
In Calvin’s Case,830 decided a year or so before Dr. Bonham’s Case, Coke had relied upon Bracton and
St. Germain to announce that the eternal and unchanging nature of natural law superseded any earthly law created
by a sovereign or parliament.831 Shortly thereafter, Sir John Davies noted that “the Law of Nature . . . . is better
than all written Laws in the world,” and took as the best evidence of those natural laws, the “Customary Law of
England.”832 Further, Sir Henry Finch, widely recognized and influential both in England and in America,833
“firmly declared that positive laws contrary to natural law ‘lose their force, and are no laws at all.’”834
The opposition party in England 835 – and subsequently the American revolutionists836 – relied upon
Coke’s language to challenge the entrenched notion that “an act of parliament can do no wrong, though it may do
821
822
See Sherry, supra note 96, at 1128-29.
823
824
J.G.A. Pocock, for example, thought the “ancient constitution” invoked custom, not immutable abstract political
principles. J.G.A. Pocock, THE ANCIENT CONSTITUTION AND THE FEUDAL LAW: A STUDY OF ENGLISH HISTORICAL THOUGHT IN
THE SEVENTEENTH CENTURY, 16-18, 46 (1957), cited by Sherry, supra note 96, at 1129 n.4.
825
826
See Sherry, supra note 96, at 1129.
827
See Grey, supra note 96, at 850; Sherry, supra note 96, at 1129.
828
Dr. Bonham’s Case, 8 Co. Rep. 107, 77 Eng. Rep. 638 (K.B. 1610).
829
Id. at 118a. See also Julius Goebel, Jr., HISTORY OF THE SUPREME COURT OF THE UNITED STATES: ANTECEDENTS AND
BEGINNINGS TO 1801 92 (Paul A. Freund ed., 1974) (quoting Bonham’s Case); Sherry, supra note 96, at 1130.
830
77 Eng. Rep. 377 (K.B. 1608).
831
See id. at 391-92; see also Grey, supra note 96, at 853 & n.39.
832
J. Davies’ REPORTS 4 (1762), quoted in Grey, supra note 96, at 853-54.
833
See Grey, supra note 96, at 853 & n.40.
834
Grey, supra note 96, at 853 (quoting SIR Henry Finch, LAW, A DISCOURSE THEREOF 75 (D. Pickering ed., 4th ed. 1759)).
835
See Sherry, supra note 96, at 1129.
836
See Goebel, supra note 116, at 92; Sherry, supra note 96, at 1129-30.
486
several [p.499] things that look pretty odd.” 837 By the mid-eighteenth century, a body of opinion principally
articulated and defended by Lord Camden, had evolved to insist that natural and fundamental principles existed
that lay beyond the reach of legislative tampering.838
Henry St. John Viscount Bollingbroke, for example, defined a constitution as “that Assemblage of Laws,
Institutions and Customs, derived from certain fix’d Principles of Reason, directed to certain fix’d Objects of
publick Good, that compose the general System, according to which the Community hath agreed to be
govern’d.”839 Bollingbroke, consequently, concluded that “A parliament cannot annul the Constitution.” 840
Blackstone went even further and commented that the “law of nature being coeval with mankind, and dictated by
God himself, is, of course, superior in obligation to any other[; therefore,] it is binding over all the globe in all
countries, and at all times.”841
It was from the opposition party in England and upon this tradition of secular natural law that the
American revolutionists drew and relied upon to draft a written constitution which simply reflected those norms
by which they endeavored to constitute themselves a nation of united states free from the unlimited, unchecked
will of a parliament that could do no wrong.842
B. The Constitutional Marriage of Natural Law with the Law of Nations
1. An Originalist Understanding of the International Law of Nations as the
Law of the Land
Jules Lobel argues that “new conceptions of fundamental norms,” like jus cogens peremptory norms,
“echo theories, prevalent at the founding of the American Republic, holding that the fundamental principles of the
law of nations [p.500] limited the constitutional power of a sovereign.”843 Lobel asserts that during the eighteenth
century current theory held that both domestic law and international law grew out of natural law and were not,
consequently, two separate bodies of independent law.844 Lobel analyzes the intersection of constitutional law,
heavily laden with natural law origins, and international law, heavily founded upon principles of higher law
norms that bind nations to a peremptory standard of behavior with each other.845 In addition to relying upon the
oppositionist party of England and Lord Coke’s doctrine of natural law limitations, American revolutionists such
as James Otis and John Adams also relied heavily upon the focus of continental Enlightenment thinkers that the
law of nations served to derive principles of a nation’s constitution from the rights and duties of nations.846 Thus,
837
City of London v. Wood, 12 Mod. Rep. 669, 678 (1701), quoted in Sherry, supra note 96, at 1129 n.3.
838
See Goebel, supra note 116, at 91.
839
Henry St. John Viscount Bollingbroke, A DISSERTATION UPON PARTIES 108, 138 (3d ed. 1735) (Letters X, XII), quoted in
Goebel, supra note 116, at 89. John Adams, Thomas Jefferson, and James Wilson were all adamant admirers of
Bollingbroke’s thesis. Goebel, supra note 116, at 179.
840
Bollingbroke, supra note 126, at 210 (Letter XVII) quoted in Goebel, supra note 116, at 89.
841
William Blackstone, COMMENTARIES 27-31 (Lewis ed., 1897), quoted in Parker and Neylon, supra note 17, at 424.
842
See Sherry, supra note 96, at 1130. As Sherry notes, the “natural law tradition was also echoed in the thought of various
continental influences on the Americans.” Id.
843
Lobel, supra note 43, at 1075.
844
Id. at 1078-79.
845
Id. at 1079.
846
Id. at 1079-80.
487
for many of the American revolutionaries, any government was necessarily limited by natural and fundamental
law. 847 These peremptory natural rights were “antecedent and superior to governments and constitutions.” 848 As
John Marshall observed in The Venus, 849 “the law of nations is a law founded on the great and immutable
principles of equity and natural justice.”850
The international law of nations was promptly held applicable in U.S. courts.851 And, by 1793 a well-
respected Philadelphia lawyer was able to assert that
The law of nations, being the common law of the civilized world, may be said, indeed, to be a part of the law of
every civilized nation; but it stands on other and higher grounds than municipal customs, statutes, edicts, or
ordinances. It is binding on every people and on every government . . . . Every branch of the national
administration, each within its district and its particular jurisdiction, is bound to administer it. It defines offences
and affixes punishments, and acts everywhere proprio rigore, whenever it is not altered or modified by particular
national statutes, or usages not inconsistent with its great and fundamental principles . . . . This universal common
law can [p.501] never cease to be the rule of executive and judicial proceedings until mankind shall return to the
savage state.852
American revolutionary thought accepted the Enlightenment transformative view that a Constitution
simply elucidates delegations of power from the people to a sovereign or legislature; thus, the people retained and
reserved in themselves the ultimate source of governmental legitimacy.853 Since fundamental law superseded any
governmental power, the one thing the people could not do was to delegate away to a governmental body the
authority to breach or disregard the law of nations and natural law. 854 As Lobel phrases, “the people could not, by
compact, delegate to the government any authority to deprive themselves of certain natural, inalienable rights.”855
Consequently, any compact or constitution, the very right of the people to make itself authorized by only the law
of nations and nature, is limited by fundamental, natural law peremptory norms that cannot be abrogated nor
derogated precisely because those rights are secured by fundamental international law, not by mere popular
consent.856
2. The Originalist View of the Law of Nations Discarded
Chief Justice John Marshall wrote in The Nereide 857 that until Congress passes an act, “the court is bound
by the law of nations.”858 Although dicta, that part of Chief Justice Marshall’s opinion was thought by some to
847
Id. at 1081.
848
Id. at 1082.
849
12 U.S. 253 (1814).
850
Id. at 297, quoted in Parker & Neylon, supra note 17, at 421, n.53.
851
See e.g., discussion of early international piracy and prize cases in Lobel, supra note 43, at 1087-90.
852
Peter Duponceau, A DISSERTATION ON THE NATURE AND E XTENT OF THE JURISDICTION OF THE COURTS OF THE UNITED
STATES 3 (Phila. 1824), quoted in Henfield’s Case, 11 F. Cas. 1099, 1122 n.6 (C.C.D. Pa. 1793)(No. 6,360), quoted in Lobel,
853
See Lobel, supra note 43, at 1090-91.
854
See id. at 1091.
855
Id.
856
Id. at 1091-92.
857
13 U.S. 388 (1815).
858
Id. at 423, quoted in Lobel, supra note 43, at 1102.
488
mean that Congress could derogate from fundamental international law at will.859 As late as 1870, the Court
still thought the issue of whether Congress could preemptively legislate against the law of nations or whether the
law of nations would trump Congressional legislation was still being dodged. 860
In Miller v. United States,861 for example, the Court found the challenged statute conformed with
international rules of law and, therefore, the Court [p.502] failed to address whether international law limited
congressional war powers.862 Justices Field and Clifford issued a strong dissent in which they would have found
that international law does indeed limit congressional legislation and, consequently, they would have found the
statute unconstitutional.863 “The law of nations,” they concluded, “is no less binding upon Congress than if the
limitations were written into the Constitution.”864 They argued that “the plain reason of this is, that the rules and
limitations prescribed by that law were in the contemplation of the parties who framed and the people who
adopted the Constitution.”865
However, the courts eventually did reach the question the Miller majority avoided – a tenet of modern
American jurisprudence that legislation by “Congress can supersede prior treaties and customary international
law.”866 Lobel argues that this deference to home-grown legislation over international fundamental law is
undermined and eroded by both current international law and domestic politics and should, therefore, no longer be
followed.867 After tracing how modern human rights treaties drafted and adopted in the wake of the judgment at
Nuremberg have been disassociated from traditional bilateral treaties, Lobel’s conclusion is that the domestic
legal rule which allows Congress to legislate in derogation of a treaty specifically arose from, and is only
applicable to, cases concerning bilateral treaties, if the rule is applicable at all.868 “The courts,” Lobel expounds,
“at least initially relied in part on the right to denounce [a bilateral] treaty for material breach or other reasons. To
the extent that such a right no longer exists with respect to human rights and other multilateral treaties, the
reasoning of these decisions has been undermined.”869
3. The Role of Jus Cogens in a Return to Traditional Views of the Law of
Nations
The developing principle of jus cogens seems to more closely resemble the traditional concept of natural
law that the framers had in mind when they considered the relationship between the international law of nations
and the Constitution they drafted. As Chief Justice John Jay recognized in Henfield’s [p.503] Case,870 an
American citizen who participated on a French vessel to fight and plunder the British and Spanish could be
859
See Lobel, supra note 43, at 1102.
860
Id. at 1103.
861
78 U.S. 268 (1870).
862
Id. at 305-13, discussed in Lobel, supra note 43, at 1103.
863
864
Miller, 78 U.S. 268, 315-16.
865
Id.
866
867
Id.
868
Id. at 1147.
869
Id.
870
11 F. Cas. 1099 (C.C.D. Pa. 1793)(No. 6,360).
489
indicted by the executive branch, despite the absence of a federal statute prohibiting Henfield’s conduct, because
“foreign recruiters are hanged immediately, and very justly, as it is not to be presumed, that their sovereign
ordered them to commit the crime; and if he did, they ought not to have obeyed his order, their sovereign having
no right to command what is contrary to the law of nature.”871 Other cases, both before and after the revolution,
had found similarly.872 The Revolutionary era idea that both the law of nature and the law of nations provide
peremptory norms that trump domestic law worked to limit the domestic abuses of sovereigns and legislatures in
the same manner that jus cogens seeks to work today. Thus, for at least twenty years of American jurisprudence
following the Revolution, courts relied heavily upon international law and endeavored to establish fundamental
international law principles that reflected natural law as inviolable and binding upon the fledgling government.873
Yet the departure that the Supreme Court has taken from the early colonial and revolutionary political and
philosophical view of the law of nations is incommensurable with the development of international law after two
World Wars and the post-Nuremberg Vienna Treaty.874 The doctrine now espoused by the Supreme Court that a
statute may overrule a prior treaty875 is irreconcilable with the judgment from Nuremberg that “the very essence of
the [Nuremberg] Charter is that individuals have international duties which transcend the national obligations of
obedience imposed by the individual state.”876 Thus, in the opinion of Lobel “the dichotomy between
international and municipal law cannot withstand the Nuremberg judgment. If individuals have international
obligations that transcend national duties, a statute imposing legal duties on individuals in violation of those
international obligations must be null and void.”877
Shortly after World War I, scholars were anticipating the development of jus cogens. Professor
Sutherland, for example, argued in 1919 that any treaty violative of “the fundamental principles of the law of
nations” could not stand, citing as exemplary of such fundamental principles rules that have since been embraced
within jus cogens prescription: to prohibit the slave trade, to control [p.504] use of the open sea, or to invade and
subjugate another country. 878 By the time Sir Hersch Lauterpacht issued his First Report on the Law of Treaties
in 1953, the opinion that an ordre international public superseded treaties was widely received by scholars, the
International Law Commission, and numerous governments.879 As a return to the understanding current during
the founding of the American Republic, jus cogens can and should guide us towards incorporating internationally
recognized human rights into our Constitution.
4. Fourteenth Amendment Privileges or Immunities Clause Incorporation of
Jus Cogens
Laurence H. Tribe has suggested that although natural rights theory:
871
Id. at 1104, discussed and quoted in Lobel, supra note 43, at 1088-89 & nn.89-91.
872
See e.g., Lobel, supra note 43, at 1088.
873
874
Id. at 1096, 1135-36.
875
Id. at 1096.
876
1 INTERNATIONAL MILITARY TRIBUNAL, TRIAL OF THE GERMAN MAJOR WAR CRIMINALS 171, 223 (1946), discussed and quoted
in Lobel, supra note 43, at 1135 & n.315.
877
878
See G. Sutherland, CONSTITUTIONAL POWERS AND WORLD AFFAIRS 141-43 (1919), discussed in Lobel, supra note 43, at
1138.
879
Id. at 1139-40.
490
. . . . Has no place in the article IV privileges and immunities clause, which is best understood as embodying the
anti-discrimination principle that the framers deemed to be the basic cement of the union . . . . the development of
a vigorous natural rights jurisprudence might make eminent sense with regard to the Fourteenth Amendment’s
privileges or immunities clause, which suffered an unfortunate and unnecessary demise soon after its birth.880
Numerous scholars have picked up Tribe’s thread in attempts to limit the substantive retreat that the
Supreme Court has begun to take from the Fourteenth Amendment. 881 But rather than simply reassign the
somewhat constitutionally [p.505] suspect work of substantive due process to the Privileges or Immunities
Clause, it seems more logical to recognize that the Privileges or Immunities Clause was intended to embrace the
peremptory principals of law of nations. As currently articulated by the concept of jus cogens international human
rights law, these peremptory principals of the law of nations arguably emanate from the Declaration of
Independence’s reliance on the “Laws of Nature” to ensure self-evident truths and the Ninth Amendment’s
reservation of unwritten, unenumerated rights to the people.882 In order to revitalize and resurrect the Privileges
or Immunities Clause, one must first dispense with the jurisprudential onus of the Slaughter House Cases.
IV.
THE DEMISE OF THE PRIVILEGES OR IMMUNITIES CLAUSE
Invitis nubibus, “in spite of clouds.” Motto upon the crest of Edward III.
The Slaughter-House Cases883 gutted the Privileges or Immunities Clause of the Fourteenth Amendment,
essentially making it a dead letter. Since the Slaughter-House Cases, the Privileges or Immunities Clause
continues to be read by the Court to secure only the most narrow range of political rights against infringement by
the federal government. Consequently, the establishment of civil rights have been left in the hands of each
individual state to secure, or disregard, as each state sees fit. Some understanding of the historical context of the
Reconstruction Amendments and of prior Article IV jurisprudence concerning its Privileges and Immunities
Clause is necessary to understand the mess Chief Justice Miller made of the Privileges or Immunities Clause in
the Slaughter-House Cases.
This Part of the Note first lays out the historical context of the Reconstructive Amendments as a whole
and then turns to a discussion of Corfield v. Coryell,884 the main case that had interpreted the Privileges and
Immunities Clause of Article IV at the time the Slaughter-House Cases were decided. Finally, this Part dismantles
and deconstructs Chief Justice Miller’s majority Slaughter-House opinion.
880
Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW 535 n.23 (2d ed. 1988). The demise of the Privileges or Immunities
Clause of the Fourteenth Amendment was achieved by the Supreme Court in the Slaughter-House Cases. See 83 U.S. 36
(1873) (discussed at length infra at part IV(C).
881
See e.g., Chester James Antieau, THE INTENDED SIGNIFICANCE OF THE FOURTEENTH AMENDMENT (1997); Black, Supra
Note 96; Edwin S. Corwin, THE CONSTITUTION AND WHAT IT MEANS TODAY (Princeton, 1974); John Hart Ely, DEMOCRACY
AND DISTRUST 22-30 (1980); Daniel Farber and Suzanne Sherry, A HISTORY OF THE AMERICAN CONSTITUTION (1990); William
E. Nelson, THE FOURTEENTH AMENDMENT: FROM POLITICAL PRINCIPLE TO JUDICIAL DOCTRINE (1988); Richard L. Aynes,
CONSTRICTING THE LAW OF FREEDOM: JUSTICE MILLER, THE FOURTEENTH AMENDMENT, AND THE SLAUGHTER-HOUSE CASES,
70 Chi.-Kent L. Rev. 627 (1994); Richard L. Aynes, ON MISREADING JOHN BINGHAM AND THE FOURTEENTH AMENDMENT, 103
Yale L.J. 57 (1993); John Harrison, RECONSTRUCTING THE PRIVILEGES OR IMMUNITIES CLAUSE, 101 Yale L.J. 1385 (1992).
882
See Black, supra note 96.
883
83 U.S. 36 (1873).
884
6 Fed.Cas. 546 (C.C. Pa. 1823).
491
[p.506]
A. The Historical Context of the Reconstruction Amendments
The historical context from which the Slaughter-House Cases885 arose, and within which Chief Justice
Miller unforgivingly decided them, is important if one is to make some sense of his majority opinion. Chief
Justice Miller decided for the majority that only those privileges and immunities “which owe their existence to the
Federal government, its national character, its Constitution, or its laws” were embraced by the Privileges or
Immunities Clause of the Fourteenth Amendment.886
1. The Thirteenth Amendment, the Black Codes, and the Civil Rights Act of
1866
As a response to the passage of the Thirteenth Amendment887 in 1865, grudgingly conditional for the
southern states’ readmittance into the reconstructed union, the southern states began to pass what have become
known as the “black codes.”888 The black codes sought to re-establish slavery, as near they could, by repressing
the freedom of emancipated African-Americans; in essence setting aside African-Americans in the south as a
separate caste of [p.507] citizens subject to specific regulations and restraints.889 The black codes did afford
legal recognition to existing marriages and permitted African-American testimony in cases involving African-
Americans, and in some states to all cases; they allowed African-Americans to hold property; and they allowed
African-Americans to sue and be sued.890 However, the black codes denied African-Americans, in Mississippi for
example, the right to own farm lands and, in South Carolina, city lots; and, in a number of states, denied African-
Americans the right to bear arms without a special license.891
Punishment followed violation of the regulations and forced any African-American who failed to adhere
to the restrictions into annual labor contracts; dependent children were required to enter into apprenticeships that
reserved the right in masters to corporally punish; and vagrant African-Americans were subject to fines and, if
885
The Slaughter-House Cases, 83 U.S. 36, 21 L. Ed. 394 (1873) (refusing to invalidate a Louisiana statute that required New
Orleans’ butchers to slaughter their meats only within a slaughtering house maintained, by one corporation to which the local
butchers had to pay fees for the privilege of slaughtering within the corporations premises, outside a thirty-five mile circle
around the city).
886
Id. at 78. See also CORWIN, supra note 168, at 386 (“‘The privileges or immunities of citizens of the United States’ were
held in the famous Slaughter-House Cases, decided soon after the Fourteenth Amendment was added to the constitution, to
comprise only those privileges and immunities which the Constitution, the laws, and the treaties of the United States confer,
such as the right to engage in interstate and foreign commerce, the right to appeal in proper cases to national courts, the right
to protection abroad, etc.; but not ‘the fundamental rights,’ which were said to still adhere exclusively to State citizenship, by
virtue of Justice Washington’s reading of Article IV in Corfield.”)
887
U.S. CONST. amend. XIII (1865) (“Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their
jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.”)
888
Perhaps the passage of the “black codes” should be explained less as a responsive knee jerk to an order from the North,
than as an Eloi-ish fear that the newly unenthralled Morlocks, so long just beneath the surface, might find themselves now a
bit hungry for more than a promised but never delivered forty acres and a mule. See H.G. Wells, THE TIME MACHINE (1895).
889
George Brown Tindall and David E. Shi, AMERICA: A NARRATIVE HISTORY 703 (3d ed. 1984).
890
Id. at 703-04.
891
Id.
492
unable to pay, sold into private servitude.892 By the passage of black codes, the southern states rendered impotent
any hoped for effect of the Thirteenth Amendment.
The Congressional response to the oppressive black codes of the southern states was to pass the Civil
Rights Act of 1866.893 Overriding President Johnson’s fervent veto, 894 the Civil Rights Act of 1866 was enacted
under the Thirteenth Amendment’s implementation clause and announced that “all persons born in the United
States and not subject to any foreign power, excluding Indians not taxed” were citizens and were to be afforded
“full and equal benefit of all laws,”895 including the same rights as “enjoyed by white citizens.”896 Under the
rubric of rights “enjoyed by white citizens” that now “all persons born” on American soil would also enjoy were
couched the rights “to give evidence in court, sue and be sued, to make and enforce contracts, and to buy, sell,
inherit, and lease property.”897 Debate – following President Johnson’s line that the Civil Rights Act of 1866, as
an exercise of power pursuant to the Thirteenth Amendment’s implementation clause, was beyond the scope of
acceptable [p.508] congressional power – ensued over the constitutionality of the Civil Rights Act of 1866.898 In
an effort to quell any concern over the constitutionality of the Civil Rights Act of 1866, Congress passed the
Fourteenth Amendment in June of 1866, ratified by July of 1868.899
2. The Fourteenth Amendment
Section one of the Fourteenth Amendment is discussed at length in its appropriate place in this Note; for
now it is sufficient to note that this Section has engendered significant interpretive trouble since it’s inception.
Nonetheless, under the most benign of readings, the first section articulates proscriptions on state governments,
enforceable, through the fifth section, by the federal Congress.
The second section of the Fourteenth Amendment provides for reapportionment of representation, curing
the defect of counting only “three fifths of all other Persons” under the apportionment scheme of Article I,900 and
providing a penalty, should any state see fit to still deny the right to vote to any male citizen of at least twenty-one
years of age, by reducing the basis of representation in the proportion that the number of male citizens denied the
right to vote bear to the whole number of male citizens of twenty-one years of age in that state.901 The third
section prescribes eligibility for public office to only those who did not break an oath to uphold the
Constitution.902 And the fourth section places beyond question the validity of the public debt incurred by the
892
Id. at 704.
893
See CIVIL RIGHTS ACT OF 1866, 14 Stat. 27 (recodified at 42 U.S.C.A. § 1981 (1994)).
894
Johnson believed the Civil Rights Act of 1866 exceeded any previous exercise of congressional, federal power and would
“foment discord among the races.” Tindall & Shi, supra note 176, at 707.
895
Tindall & Shi, supra note 176, at 706.
896
Ronald D. Rotunda & John E. Nowak, 3 Treatise ON CONSTITUTIONAL LAW: SUBSTANCE AND PROCEDURE, § 19.1, at
524 (2d ed. 1992); CIVIL RIGHTS ACT OF 1866, 14 Stat. 27 (recodified at § 1981 (1994)).
897
Id.
898
Tindall & Shi, supra note 176, at 707.
899
Tindall & Shi, supra note 176, at 707; Rotunda & Nowak, supra note 183, at 524.
900
U.S. CONST. art. I, § 2, cl. 3 (“Representatives and direct Taxes shall be apportioned among the several States which may
be includeed within this Union, according to their respective Numbers, which shall be determined by adding to the whole
Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths
of all other Persons.”)
901
U.S. CONST. amend. XIV, § 2 (1868).
902
493
Union during the Civil War as the public debt of the U.S. and ensured that the debt incurred by the Confederate
states would go unrecognized. 903
The Fourteenth Amendment, read as a whole, is an attempt to remedy the then obvious deficiencies of the
original constitutional separation of powers; providing that Congress shall have the power to enforce certain
prescriptions against the states.
[p.509]
3. The Civil Rights Act of 1870 and the Fifteenth Amendment
In 1870 Congress further supported the Reconstructive effort by securing the ratification of the Fifteenth
Amendment.904 In response to several lower courts that found the Civil Rights Act of 1866 unconstitutional, 905
Congress reenacted the Civil Rights Act (now of 1870) and other civil rights legislation under the enforcement
clause of the Fourteenth Amendment.906 Further prescriptive legislation followed. 907 Argued before the U.S.
Supreme Court for three days, commencing on February 3, 1873, the Slaughter-House Cases, an amalgamation of
three cases brought by the Butcher’s Benevolent Association of New Orleans and by various other individual
butchers against the Crescent City Live-Stock Landing and Slaughter-House Company and against the State of
Louisiana, were decided on April 14, 1873.908
B. Article IV Privileges and Immunities: Corfield v. Coryell
Justice Bushrod Washington, riding circuit in 1823, struggled to define and impart substantive meaning to
the Privileges and Immunities clause of Article IV of the Constitution. 909 Turning to the question of whether the
challenged governmental act infringed the Privileges and Immunities Clause of [p.510] Article IV, Justice
Washington felt “no hesitation” in asserting that the privileges and immunities spoken of in Article IV were, “in
their very nature, fundamental [and] belong, of right, to the citizens of all free governments; and which have, at all
times, been enjoyed by the citizens of the several states which compose this Union, from the time of their
becoming free, independent, and sovereign.”910
903
904
U.S. CONST. amend XV (1870) (“Section 1. The right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color, or previous condition of servitude. Section 2. The
Congress shall have power to enforce this article by appropriate legislation.”)
905
People v. Brady, 40 Cal. 198 (1870), cited in Rotunda & Nowak, supra note 183, at 524 n.3.
906
16 Stat. 114; see also § 6 of the Civil Rights Act of 1870, 16 Stat. 190, now codified at 42 U.S.C.A. § 241; see generally
United States v. Williams, 341 U.S. 70, 73-82, 95 L. Ed. 758, 71 S. Ct. 581, 582-87 (1951) (Frankfurter, J.); Williams, 341
U.S. at 83-84, (appendix to the opinion of Frankfurter J.). Williams is cited generally in Rotunda & Nowak. See Rotunda &
Nowak, supra note 183, at 524 n.5.
907
Rotunda & Nowak, supra note 183, at 960 & n.6, citing to the Ku Klux Klan Act, 17 Stat. 13, now codified at 42 U.S.C.A.
§§ 1983, 1985(3); Civil Rights Act of 1875, 18 Stat. 335. Modern codifications of Reconstructive legislation appear at 42
U.S.C.A. § 1981 (equal rights under the law), § 1982 (civil action for deprivation of rights), § 1985(3) (depriving person of
rights or privileges); 18 U.S.C.A. § 241 (conspiracy against rights of citizens), § 242 (deprivation of rights under color of
law); and 28 U.S.C. § 1443 (jurisdiction of Civil Rights Cases). See also 3 Rotunda & Nowak, TREATISE ON CONSTITUTIONAL
RIGHTS: SUBSTANCE AND PROCEDURE §§ 19.1-19.39 (on § 1983 of tit. 42).
908
The Slaughter-House Cases, 83 U.S. 36, 21 L. Ed. 394 (1872).
909
The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S.
CONST. art. IV, § 2, cl. 1.
910
Corfield v. Coryell, 6 Fed.Cas. 546, 551 (C.C. Pa. 1823).
494
Justice Washington’s contemplation of the privileges and immunities of citizens in the several states can
be read to include natural and fundamental human rights inherent to people, regardless of any “citizenship”
conferred, or not conferred, by a government. Justice Washington commenced a shopping list of what privileges
may be said to be “fundamental,”911 but offered, the caveat that “what these fundamental principals are, it would
perhaps be more tedious than difficult to enumerate.”912 Thus, he remained careful to neither foreclose nor
circumscribe the limits of his conception of “fundamental” rights. He concluded that the privileges he listed “may
be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the
general description of privileges deemed to be fundamental.”913 Consequently, Justice Washington maintained
that:
These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the
enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to use the
expressions of the preamble of the corresponding provision in the old articles of confederation) “the better to
secure and perpetuate mutual friendship and intercourse among the people of the different states of the Union.”914
From Justice Washington’s reluctance to engage in a task he rhetorically presents as tedious,915 the
Privileges and Immunities Clause emerges from Article IV of the Constitution to embrace fundamental rights that
remain and that adhere to each of us, regardless of citizenship conferred by any government. Much like the
peremptory norms of jus cogens, the particular privileges and immunities, such as the right to travel interstate,
that arise from Article IV function as a federal citizenship trump to any infringement by a state. The consequence,
for Justice Washington, is that the Privileges and Immunities Clause of Article IV [p.511] ensures that a state not
infringe the constitutionally secured fundamental rights of a citizen of some other state arbitrarily beyond
whatever infringements that the infringing state imposes upon its own citizens. This, at least, is the theory that has
gained currency with the Court; the Privileges and Immunities Clause of Article IV simply serves to prohibit any
state to arbitrarily discriminate against citizens of another state in favor of its own citizens.916 Indeed, as the
recently handed down case of Lunding v. New York Tax Appeals Tribunal917 reaffirmed, the purpose of the
911
Including, amongst others, “the enjoyment of life and liberty.” Id.
912
Id.
913
Id. at 552.
914
Id. at 552 (emphasis added).
915
But which the Supreme Court has since “tediously” tried to demarcate under “substantive” due process.
916
See e.g., Corwin, supra note 168, at 208. Three other theories of the Privileges and Immunities Clause have, at various
times, been proffered; yet the Court has rejected each. One would liken the Privileges and Immunities Clause to an equal
protection guarantee and function to restrict the power of the national government by ensuring that the citizens of each state
were not variously discriminated against by Congress. But, primarily because of its early espousal as a rationale for
supporting the result of the Dred Scott case – which found that a Virginian slave by birth lacked standing, because he lacked
citizenship, to claim that his purchase of freedom while residing in a free state made him free under the Missouri
Compromise –, this rationale was never accepted by the Court. A second theory suggested that the Clause ensured that when
a citizen of one state was in another state, the privileges and immunities granted by the latter state to its own citizens would
apply to the visiting citizen from another state. In City of Detroit v. Osborne, the Court rejected this view. City of Detroit, 135
U.S. 492, 34 L. Ed. 260 (1890). Lastly, the third theory would have held the Clause to guarantee a citizen of a state that his
home state privileges and immunities would never be infringed by any state in which that citizen traveled, in essence
allowing a citizen to “carry with him his rights of State citizenship throughout the Union, without embarrassment by State
lines.” Corwin, supra note 168, at 208. A view not only repetitious of the Full Faith and Credit Clause, but also specifically
rejected by the Court in McKane v. Durston. See McKane, 153 U.S. 684, 38 L. Ed. 867 (1894); see also Corwin, supra note
168, at 208.
917
118 S. Ct. 766, 139 L. Ed.2d 717 (1998).
495
Privileges and Immunities Clause of Article IV “is to ‘strongly . . . constitute the citizens of the United States one
people,’ by ‘placing the citizens of each State upon the same footing with the citizens of other States, so far as the
advantages resulting from citizenship in those States are concerned.’ “918
[p.512]
C. The Slaughter-House Cases
1. The Slaughter House Cases: Historical Prelude
The state legislature of Louisiana, in 1869, enacted “An Act to Protect the Health of the City of New
Orleans, to Locate the Stock-landings and Slaughter-houses, and to Incorporate the Crescent City Live-Stock
Landing and Slaughter-House Company.”919 In the first four sections of the statute, the Louisiana legislature:
prohibited the landing or slaughtering of meat intended for consumption within the city of New Orleans; forbade
the continued existence of any established, or the future establishment of, any slaughter-houses except by the
Crescent City Stock-Landing and Slaughter-House Company; established penalties for violation of the
prohibitions; designated the select individuals who would comprise the Crescent City Company; and, authorized
the Company to establish at least one grand slaughter-house capable of slaughtering five hundred animals a
day. 920 The statute also, as paraphrased by Chief Justice Miller, “declared that the company . . . shall have the
sole and exclusive privilege of conducting and carrying on the live-stock landing and slaughter-house business”
and, furthermore, that “all such animals shall be landed at the stock landing and slaughtered at the slaughter-
houses of the company, and nowhere else,” suitable penalties enforcing, and prices fixed according to the dictates
of the statute.921 The fifth section of the statute ordered the closure of all other stock-landings and slaughter-
houses within three months for an area that comprised a thirty-five mile circle around New Orleans.922
Naturally, the butchers in and around New Orleans were unpleased that their trade – many thought their
calling – had been usurped by the Crescent City Company so monopolistically favored by the Louisiana
legislature. Local butchers, consequently, challenged the statute and argued: (1) the statute created an involuntary
servitude, (2) the statute abridged the butchers’ privileges or immunities as citizens of the U.S., (3) the statute
denied the butchers equal protection of the laws, and (4) the statute deprived the butchers of their property in the
toil of their labor, trade, or calling.923 The butchers’ first argument was couched as a violation of the Thirteenth
Amendment; the latter three they claimed were all violative of the first section of Fourteenth Amendment.924
918
Id. at 728, quoting Paul v. Virginia, 75 U.S. 168, 180, 19 L. Ed. 357 (1869). The Court also reaffirmed the standard set
down in Toomer v. Witsell, that the Privileges and Immunities Clause prohibits “discrimination against citizens of other
States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.
But it does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for
it. Thus the inquiry in each case must be concerned with whether such reasons do exist and whether the degree of
discrimination bears a close relationship to them. The inquiry must also, of course, be conducted with due regard for the
principle that the States should have considerable leeway in analyzing local evils and in prescribing appropriate cures.”
Toomer, 334 U.S. 385, 396, 92 L. Ed. 1460 (1948) quoted in Lunding v. NY Tax Appeals Tribunal, 139 L. Ed.2d 717, 729.
919
The Slaughter-House Cases, 21 L. Ed., 394, 403 (1872).
920
Id.
921
Id.
922
Id.
923
Id.
924
Id.
496
[p.513] The petitioner’s brief for the butchers traced the historical origins of the phrase “privileges and
immunities” to Roman law. 925 In Roman law the phrase described certain classes of rights in the form either of a
privilegium affirmativum, which comprised legislative preference to some but not others, or of an immunitas, a
privilegium negativum which exempted some from certain duties or services to which others remained
subjugated.926 As developed through English common law, the nobility, the clergy, and the people were all
granted various privileges and immunities through charters and through custom.927 As used in Article IV of the
Articles of Confederation and retained in Article IV Section Two of the Constitution, the privileges and
immunities secured by American law are “not . . . political but civil rights,” such as the “protection of life,
personal freedom, property, religion, [and] reputation.”928
The Fourteenth Amendment, argued the butchers, sought to bind the states, as political organizations, to
the accomplishment of the same ends as the federal government; namely, respecting all citizens alike.929 Thus,
the Privileges or Immunities clause of the Fourteenth Amendment simply bound the states to the strictures of the
Privileges and Immunities Clause of Article IV. 930 “No citizen,” argued the butchers, “of the United States may
be abridged in his privileges or immunities; he must be secured from arbitrary legislation over life, liberty and
property; he must not be denied equal protection under the law . . . . Thus, union, justice, domestic tranquility and
liberty may be attained, for the existing generation and their posterity.”931
Consequently, for the butchers, the conclusion was “manifest”: the Privileges or Immunities Clause of the
Fourteenth Amendment functioned:
to establish through the whole jurisdiction of the United States one people, and that every member of the Empire
shall understand and appreciate the constitutional fact, that his privileges and immunities cannot be abridged by
state authority; that state laws must be so framed as to secure life, liberty, property, from arbitrary violation, and
protection of law shall be secured to all. Thus, as the great personal rights of each and every person were
established and guarded, a reasonable [p.514] confidence that there would be good government might seem to be
justified. 932
Chief Justice Miller disagreed, as did T.J. Durant and M.H. Carpenter, attorneys for the defendant
Company and the state of Louisiana. The defendants, hoping perhaps to alarm the court, lobbied against giving
the clause a broad reading, presented by them as a reading that “would prohibit any state from abridging any
existing privileges of any citizens of the United States, or from enforcing any law already enacted which abridges
any privileges or immunities of citizens, [and would] . . . . repeal . . . all laws which abridge privileges or
immunities of citizens.”933
925
Id. at 397 (John A. Campbell, for plaintiffs in error).
926
Id.
927
Id.
928
Id.
929
Id.
930
Id.
931
Id.
932
Id. at 398 (John A. Campbell for plaintiffs in error).
933
Id. at 402. Thus, a broad reading of the clause would: repeal all licensing laws imposed upon particular employers; repeal
all regulatory laws of dangerous or offensive employments; repeal all restraining laws of the manufacture or sale of liquor
and gambling; repeal all laws observing the “Lord’ day” that prohibited labor on Sundays; repeal all regulatory laws that
limited the number of employment hours of children, women, or men in particular occupations; repeal all charters and laws
497
Rather, for the defendants, “the true method of constitutional interpretation is [] not to take a provision
from its connection and consider it by itself alone, but to consider it with reference to all other provisions upon the
same or kindred subjects, and to the state of things in which it had its origin.”934 Thus, such a literal and broad
reading of the clause should be avoided in favor of a narrow reading that would limit the privileges or immunities
recognized by the Fourteenth Amendment to only those of interstate travel; of free entrance to, exit from, and
passage through a state; of state citizenship upon residence; and, of protection of laws affecting personal
liberty.935 While acknowledging that their source for this list was the enumeration Justice Washington had given
to the Privileges and Immunities Clause of Article IV of the Constitution, the defendants were arguing for a
limitation of the full the enumeration of rights Justice Washington had found embraced by the phrase “privileges
and immunities.”936 Consequently, the defendants’ gloss of Corfield provided the support for them to also suggest
that “there is no reason for giving any more extensive signification to this phrase, as used in the Amendment, than
was given to it as used in the original Constitution.”937 The only purpose the defendants saw [p.515] in the
Fourteenth Amendment, and particularly of the Privileges or Immunities Clause, “was to assure to all citizens and
persons the same rights enjoyed by white citizens and persons.”938
Amidst the maelstrom of debate that surrounded Reconstruction legislation, black codes, and amendment
of the Constitution, the Supreme Court sensed an urgency towards the resolution of the Slaughter-House Cases
that prompted them to take up the Slaughter-House Cases out of their order on the docket and hear argument in
January of 1872. Since one justice was then absent and the Court was equally divided 939 upon the proper
resolution of the butchers’ claims, the Court, “impressed with the gravity of the questions raised” at argument in
January, heard re-argument in February of 1873 before a full bench.940 Beneath these pressures, 941 Chief Justice
Miller handed down his opinion for five members of the court. 942
2. The Slaughter-House Cases: Chief Justice Miller’s Majority Opinion
After a cursory review of the Thirteenth, Fourteenth, and Fifteenth Amendments, Chief Justice Miller
found himself in agreement with counsel for the defendants Crescent City Company and the State of Louisiana.
Although finding that the protections ensured under the Reconstruction Amendments would adhere even “though
the party interested may not be of African descent” – as the butchers here seem not to have been – Chief Justice
Miller agreed that the proper interpretive rubric made it “necessary to look to the purpose which . . . was the
that granted particular privileges to particular citizens; prohibit any state from enacting a law to ensure the liberty of its
citizens to any of the above; and shift what is essentially a legislative matter – regulating particular occupations – to the
judiciary. See id.
934
Id. at 402 (T.J. Durant and M.H. Carpenter, for defendants in error).
935
Id.
936
Compare Corfield v. Coryell, 6 Fed. Cas. 546, 551-52, (C.C. Pa. 1823) (quoted infra n.261).
937
The Slaughter-House Cases, 21 L. Ed. 394, 402 (1872).
938
Id. at 402.
939
Id. at 402 (Miller, C.J.) (“At that hearing one of the justices was absent, and it was found, on consultation, that there was a
diversity of views among those who were present”).
940
Id. at 402-03 (Miller, C.J.).
941
Id. at 402 (Miller, C.J.: “On account of the importance of the questions involved in these cases . . . .”; “impressed with the
gravity of the questions raised . . .”).
942
For a discussion of the various and sundry motivations of the four Justices signing onto Miller’s majority opinion see
Aynes, CONSTRICTING THE LAW OF FREEDOM, supra note 168, at 655-71.
498
pervading spirit” of the Reconstruction Amendments.943 Chief Justice Miller saw the Reconstruction
Amendments as designed to remedy the specific evil of slavery.944 Despite Chief Justice Miller’s
acknowledgement that despite such a pervading purpose and spirit to solely remedy the evil of slavery, that the
only Amendment to even mention “race” was the Fifteenth,945 he [p.516] nonetheless molded his opinion around
the fixed notion, as the defendants Company and the state of Louisiana would have him do, that each of
Reconstruction Amendments were “addressed to the grievances of [the emancipated] race, and designed to
remedy them as the fifteenth.”946
(a) The Court’s Rejection of the Thirteenth Amendment Argument
Chief Justice Miller limited the Thirteenth Amendment’s usage of the word “servitude” to mean nothing
less than slavery. 947 Servitude, as popularly understood, encompassed more than did the word slavery. 948 The
Amendment’s modifying use of “involuntary” limited the scope of the servitude sought to be prohibited to those
that essentially amounted to slavery. 949 Chief Justice Miller read “involuntary” as applicable only to human
beings and, therefore, involuntary servitude meant personal servitude.950 Thus, as the butchers were butchers by
choice, their indenture to the Crescent City Company did not amount to an involuntary servitude within the
meaning of the Fourteenth Amendment. Consequently, Chief Justice Miller thought that a “microscopic search”
of the Thirteenth Amendment “to find in it a reference to [mere] servitude, which may have been attached to
property in certain localities, required an effort, to say the least of it;” and that was “all” he thought “necessary to
say on the application of [the Thirteenth Amendment] to the statute of Louisiana now under consideration.”951
(b) The Court’s Rejection of the Fourteenth Amendment “Property” Argument
The butchers’ property argument – that they possessed a property right to ply their trade and to practice
their calling, therefore, the statute denied them their property without due process of law – was even more blithely
dismissed.952 Analogizing the Fourteenth Amendment’s Due Process Clause to the Due Process [p.517] Clause of
the Fifth Amendment,953 Chief Justice Miller found that the only difference between the two was that the former
made applicable to the states the thought beneath the latter.954 Thus, since Chief Justice Miller failed to find any
943
The Slaughter-House Cases, 21 L. Ed. 394, 407 (1872) (Miller, C.J.).
944
Id.
945
Id. at 407 (Miller, C.J.: “It is true that only the 15th Amendment, in terms, mentions the negro by speaking of his color
and his slavery”); but cf. U.S. CONST. amend. XV: “The right of citizens of the United States to vote shall not be denied or
abridged . . . on account of race, color, or previous condition of servitude.”
946
The Slaughter-House Cases, 21 L. Ed. at 407 (Miller, C.J.).
947
Id. at 406 (Miller, C.J.).
948
Id.
949
Id.
950
Id.
951
952
953
U.S. CONST. amend. V (1791) (“No person shall . . . be deprived of life, liberty, or property, without due process of
law.”)
954
The Slaughter-House Cases, 21 L. Ed. 394, 410 (1872) (Miller, C.J.). Oddly and incongruously, Chief Justice Miller was
willing to read the Due Process Clause of the Fourteenth Amendment as synonymous with the Due Process Clause of the
Fifth Amendment; yet, he remained unwilling to read the Privileges or Immunities Clause of the Fourteenth Amendment as
synonymous with the Privileges and Immunities Clause of Article IV, indeed he read the latter two as antonyms. Id.
499
construction of the Fifth Amendment’s Due Process Clause that would find the “restraint imposed by the state of
Louisiana upon the exercise of their trade by the butchers of New Orleans . . . to be a deprivation of property
within the meaning of “due process of law, he thought it equally indisputable that the Due Process Clause of the
Fourteenth Amendment could not be stretched to encompass the claimed deprivation of the butchers.955
(c) The Court’s Rejection of the Fourteenth Amendment Equal Protection
Argument
The butchers’ equal protection argument – that the Louisiana statute made it more difficult for them to ply
their trade than the nineteen incorporated Company members and, thus, denied the butchers equal protection of
the laws – received equally scant attention by Chief Justice Miller.956 Since the equal protection clause of the
Fourteenth Amendment was “so clearly a provision for that race [African-Americans] and that emergency [the
black code response to the Thirteenth Amendment] . . . a strong case would be necessary for its application to any
other.”957
(d) The Court’s rejection of the Fourteenth Amendment Privileges or Immunities
argument
A good portion of Chief Justice Miller’s opinion was devoted to the Privileges or Immunities Clause of
the Fourteenth Amendment to defeat the butchers’ last remaining argument – that they enjoyed a privilege, as
citizens of the U.S., to ply their trade and to make a living according to their calling, and this [p.518] privilege
was abridged, in violation of the Fourteenth Amendment, by the Louisiana statutory creation of the Crescent City
Company monopoly on landing and slaughtering in New Orleans.958 The starting point is, of course, the text of
the first section of the Fourteenth Amendment itself:
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. No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States.959
Chief Justice Miller found the Privileges or Immunities Clause of the Fourteenth Amendment to be rather
unambiguous: preliminarily he observed that the clause “put[] at rest both the questions” of whether Dred-Scott
was over turned by the Reconstruction Amendments, and the question of whether persons may be citizens of the
U.S. without regard to their citizenship granted by a particular state.960 Thus, the Fourteenth Amendment’s “main
purpose was to establish the citizenship of the negro can admit no doubt,” Chief Justice Miller declared.961
Chief Justice Miller read the first section of the Fourteenth Amendment to establish national citizenship
by birth or naturalization with a jurisdictional limitation that would exclude the children of citizens or subjects of
foreign states born in the U.S.962 State citizenship, on the other hand, additionally required residence within a
state.963 Thus, the Amendment establishes a distinction between national citizenship and state citizenship. 964
955
Id.
956
Id.
957
Id.
958
Id. at 398 (John A. Campbell for plaintiff’s in error).
959
U.S. CONST. amend. XIV, § 1.
960
961
962
Id. at 408.
963
Id.
500
“There is a citizenship of the United States and a citizenship of a state,” Chief Justice Miller reasoned, “which are
distinct from each other and which depend upon different characteristics or circumstances in the individual.”965
Chief Justice Miller placed “great weight” on this distinction because the Privileges or Immunities Clause
of the second sentence of the Fourteenth Amendment only adheres to national citizens, not state citizens.966
Moreover, the butchers’ argument hinged, in Chief Justice Miller’s eyes, upon assuming that the national
citizenship and state citizenship were coextensive and, consequently, that the privileges and immunities that
adhered to state citizenship under Article IV [p.519] were those meant to adhere to national citizenship under the
Fourteenth Amendment.967 Chief Justice Miller found the butchers’ argument unpersuasive for he thought it “too
clear for argument” that the change in phraseology between the first sentence – which recognized “citizens . . . of
the State wherein they reside” – and the second sentence – which makes no mention of citizens of a state – was
intended with some “understanding and with a purpose.”968
The purpose Chief Justice Miller read into the change of phraseology was that the Amendment secured
only the privileges or immunities of national citizenship and left the security of the privileges and immunities of
state citizenship where they had previously been protected, namely under Article IV of the Constitution.969
Chief Justice Miller then turned to tracing the occurrence of the phrase “privileges and immunities”
through the Fourth Article of Confederation to Article IV of the Constitution. In the Fourth Article of
Confederation the phrase adheres to “citizens in the several States.”970 The phrase was retained in section two of
Article IV of the Constitution: “The Citizens of each State shall be entitled to all Privileges and Immunities of
Citizens in the several States.”971 Chief Justice Miller preliminarily concluded that the privileges and immunities
spoken of by both Articles were “intended to be the same in each.”972 Fortunately, the Fourth Article of
Confederation enumerates several of the privileges and immunities it sought to protect,973 while Justice
964
Id.
965
Id.
966
Id.
967
Id.
968
Id.
969
970
ARTS. OF CONFED., at art. IV.
971
U.S. CONST. at art. IV § 2 cl. 1 (emphasis added).
972
973
ARTS. OF CONFED., at art. IV. (“The better to secure and perpetuate the mutual friendship and intercourse among the
people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives
from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of
each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade
and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively, provided that
such restrictions shall not extend so far as to prevent the removal of property imported into any State, to any other State of
which the owner is an inhabitant; provide also that no imposition, duties or restriction shall be laid by any State, on the
property of the United States, or either of them.”) Chief Justice Miller read the conjunctive “; and” to mean “such as,” and as
a mere reiteration of what specific privileges and immunities the preceding clause spoke of. However, a more logical reading
of the “and” is for it to plainly mean “also” or “in addition to.” Thus, the specific “civil rights” spoken of are of particular and
enumerated importance to the maintenance of the states as a Union. However, the privileges and immunities of free citizens
are left unenumerated but are deemed no less important to the maintenance of the Union. See id.
501
Washington had also enumerated [p.520] those privileges and immunities that Article IV similarly protects.974
Both gave Chief Justice Miller “some general idea of the class of civil rights meant by the phrase.”975 Chief
Justice Miller, glossing Justice Washington’s Corfield opinion, first misquotes Justice Washington to maintain the
proposition his misquote of Article IV established: that the privileges and immunities spoken of adhere to citizens
“of” a state, not to citizens “in” a state.976 Furthermore, Chief Justice Miller truncated Justice Washington’s
enumeration of the fundamental rights that the Privileges and Immunities Clause protects to merely those of the
“general character” of, again purporting to quote Justice Washington, “protection by government, with the right to
acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless,
to such restraints as the government may prescribe for the general good of the whole.”977 Thus, the Privileges and
Immunities Clause of Article IV captured “nearly every civil right for the establishment and protection of which
organized government is instituted.”978 But these civil rights are, asserts Chief Justice Miller, spoken of by Justice
Washington and “in the constitutional provision he was construing” only “as rights belonging to the individual as
a citizen of a state . . . . And they have [p.521] always been held to be the class of rights which the state
governments were created to establish and secure.”979
From this premise, Chief Justice Miller argued that the claimed privilege of the butchers – to earn a living
– was one of the fundamental rights that the state governments could ensure to its own citizens and was not one of
the privileges or immunities of national citizenship.980 As such, a state could “restrain” that privilege, as Justice
Washington recognized, “for the general good and welfare,” which is precisely what Louisiana had done in Chief
974
Corfield v. Coryell, 6 Fed. Cas. 546, 551-52 (C.C. Pa. 1823) (“What these fundamental principles are, it would perhaps be
more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads:
Protection by government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and
to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for
the general good of the whole. The right of a citizen of one state to pass through, or reside in any other state, for purposes of
trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and
maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an
exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the
particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed
to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of
the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges
and immunities, and the enjoyment of them by the citizens of each state, in every other state, was manifestly calculated (to
use the expressions of the preamble of the corresponding provision in the old articles of confederation) ‘the better to secure
and perpetuate mutual friendship and intercourse among the people of the different states of the Union.’”)
975
976
Id. at 408.
977
Id. at 408; compare Corfield, 6 Fed. Cas. at 551-52, quoted in note 261, supra.
978
The Slaughter-House Cases, 21 L. Ed. at 408.
979
Id. (emphasis added). One of the confounding logical circularities is that Chief Justice Miller asserts that Justice Miller’s
list of rights that are privileges are to be left to the states to secure. One of the rights Justice Washington lists is the privilege
to reside in any state a citizen wishes to reside. But the defining characteristic of state citizenship that distinguishes it from
nation citizenship is residency. Thus, under Chief Justice Miller’s reading, you are a citizen of the state in which you reside,
and a privilege of that citizenship may – if that state so wishes to grant – be the privilege to establish residency in another
state. But should you exercise that privilege, you would then become a citizen of another state.
980
Id. at 409.
502
Justice Miller’s eyes. 981 Chief Justice Miller refused to acknowledge – as the butchers’ argument would, he
thought, have him do – that
the purpose of the 14th 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, [was] to transfer the security
and protection of all the civil rights which we have mentioned, from the states to the Federal government.982
In conclusion, Chief Justice Miller summarized:
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 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.983
[p.522] Wary that the criticism would be made that he had excluded all the possible rights that might be
deemed privileges or immunities of national citizenship by delegating all those rights enumerated by the Fourth
Article of Confederation and articulated by Justice Washington as protected by Article IV of the Constitution, and
classified by Chief Justice Miller as “civil rights,” the Chief Justice went on, in dicta, to “venture to suggest some
[privileges] which owe their existence to the Federal government, its national character, its Constitution, or its
laws.”984
Of these political rights, Chief Justice Miller included: the right to travel to the seat of the national
government; the right to petition the government for redress, or to conduct business with it; the right of free
access to the sea ports, sub-treasuries, land-offices, and the “courts of justice in the several states;”985 the right to
be protected by the national government while abroad or on the high seas; the right to peaceably assemble; the
privilege of habeas corpus; the right to use the navigable waters of the U.S., irrespective of state boundaries; the
“rights secured to our citizens by treaties with foreign nations; and the right to reside in any state in the Union, as
well as the rights secured under the Reconstructive amendments. 986 Since the privilege claimed by the butchers
did not fall within this class of political rights, they lost.
Oddly enough, no such case “involving those privileges” has yet arisen. The Privileges or Immunities
Clause of the Fourteenth Amendment has since lain, long and large as Tityus987 bound in his fetters, upon the
981
Corfield v. Coryell, 6 Fed. Cas. 546, 552 (C.C. Pa. 1823).
982
983
Id.
984
Id.
985
The Chief Justice, highly aware of the difference between “in” and “of,” arguably only had the federal courts located in
the several states in mind here; had he the state courts in mind he would have probably opted to say the “courts of the several
states.”
986
Slaughter-House Cases, 21 L. Ed. at 409-10.
987
Tityus, when Odysseus saw him in Hades, was stretched over some nine acres of ground, while two vultures tore at his
liver. The liver, for the ancient Greeks, was the seat of desire; thus, Tityus’ punishment was appropriate for his violation of
Leto. See e.g., THE OXFORD CLASSICAL DICTIONARY 1533 (3rd ed., 1996); see also Homer, ODYSSEY bk. XI ll. 576-81 (Allan
Mandelbaum trans., Univ of Claif Press 1990) (“I saw the sone of splendid Gaea, Tityus, stretched on the ground for some
six hundred cubits. Two vultures sat, one to each side, and tore his liver; their beaks plunged into his bowls, he could not
ward them off; for Tityus had violated Leto, splendid mistress of Zeus, as she was walking through the fields of lovely
Panopeus, heading toward Pytho.”
503
infernal ground of Chief Justice Miller’s bare majority; the current Court’s originalist bent, doing little more than
Tityus’ ravenous vultures furious over their food, ignores the mess Chief Justice Miller made of the Privileges or
Immunities Clause out of blind respect to stare decisis and, amongst some members of the current Court, from an
almost fanatical devotion to pontificating an historically unsound originalism, as they still adhere to Chief Justice
Miller’s creative misreading.
[p.523]
D. Dismantling and Deconstructing the Slaughter-House Cases
1. Reconciling Stare Decisis
Stare decisis, while somewhat less entrenched in academic debate than fractious originalism, does have
its limitations. In Planned Parenthood v. Casey,988 Justice O’Connor meticulously laid out a version of the
doctrine of stare decisis.989 “The obligation to follow precedent begins with necessity,” Justice O’Connor
remarked, “and a contrary necessity marks its outer limit.”990 She agreed with Justice Cardozo’s assessment that
stare decisis pays tribute to efficiency since “no judicial system could do society’s work” if it ceaselessly worked
on a case by case basis.991 Justice O’Connor, consequently, found that “a respect for precedent” is “indispensable”
to “the very concept of the rule of law underlaying our own Constitution.”992 On the other hand, a prior ruling
“come to be seen so clearly as error” engenders a contrary, limiting necessity on the doctrine of stare decisis.993
The Court is not bound by the doctrine of stare decisis to enforce a clearly erroneous, dated, or illogical
decision.994
Thus, especially in the constitutional setting, the doctrine of stare decisis “is not an inexorable
command.”995 When the Court reexamines a prior holding, both “prudential and pragmatic considerations” weigh
in to the decision whether or not to overrule a prior decision of the Court.996 The test is one of consistency to
determine if the prior decision or if overruling that decision would be more consistent with the rule of law.997 The
test is also one of assessing and balancing the societal respective costs of letting an erroneous decision stand
against overruling a prior decision. 998 Consequently, the Court should discern: whether the erroneous rule has
proven intolerable because it is impractical and unworkable; whether the rule has engendered an especial societal
or individual reliance that would add inequity to the respective cost of overruling the decision; whether related
principles of law have developed to render the prior decision [p.524] outdated and abandoned doctrine; and,
988
505 U.S. 833, 120 L. Ed.2d 674 (1992).
989
Id. at 699-700 (O’Connor, J., plurality joint opinion with J.J. Kennedy and Souter, speaking, in part three, for the Court).
990
Id. at 699.
991
Id at 699-700 citing to Benjamin Cardozo, THE NATURE OF THE JUDICIAL PROCESS 149 (1921).
992
Planned Parenthood v. Casey, 120 L. Ed.2d. 674, 700 (1992).
993
Id.
994
Id.
995
Id., citing to Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-11, 76 L. Ed. 815 (1932) (Brandeis, J., dissenting).
996
Casey, 120 L. Ed.2d. at 700.
997
See id.
998
See id.
504
whether societal circumstances and facts have so changed, or come to be perceived so differently, as to render the
prior decision unjustifiable in a modern context.999
Justice O’Connor’s factors weigh heavily against continued adherence to the Slaughter-House Cases’
reading of the Privileges or Immunities Clause of the Fourteenth Amendment. Although the practical effect of the
Slaughter-House Cases has not, arguably, proven unworkable, this is only because Chief Justice Miller left
nothing of the Privileges or Immunities Clause to work with. Instead, the Court felt pressured to create substantive
due process to do the work Chief Justice Miller refused to allow the Privileges or Immunities Clause to do. Yet, as
substantive due process is recognized by scholars and the Court to be itself logically unworkable, the initial
reason for creating substantive due process becomes, by association, implicated. Thus, with the fall of substantive
due process so too must fall Chief Justice Miller’s reading of the Privileges or Immunities Clause that prompted
the court to turn to the Due Process Clause for constitutional protection of substantive human rights in the first
place. In this sense, the fall-out of Chief Justice Miller’s reasoning is indeed itself unworkable.
Overruling the Slaughter-House Cases would not “add inequity to the cost of repudiation.”1000 Since
Chief Justice Miller left nothing of the Privileges or Immunities Clause, subsequent generations have not come to
rely upon his reading in any practical way. The Court, however, clearly has relied heavily upon his abrogation of
the privileges or immunities of national citizenship to engender their substantive due process jurisprudence. But
again, as the Court comes to disfavor substantive due process, and comes to recognize its wholecloth appearance,
that reliance becomes an increasingly tenuous a premise for retaining Chief Justice Miller’s reading of the
Privileges or Immunities Clause. Indeed, an argument in favor of overturning the reasoning in the Slaughter-
House Cases is that, should the Rehnquist Court succeed in killing off substantive due process, the Privileges or
Immunities Clause will be one of the only harbingers of human rights left in our Constitution. Thus, in abrogating
substantive due process, the Court should recognize that so, too, must Chief Justice Miller’s reading be abrogated.
[p.525] Chief Justice Miller’s reading of the Privileges or Immunities Clause has lain unused and
unexplored for over a century. Under any definition of “abandoned doctrine,” the Slaughter-House Cases would
clearly fall within it. The Court has never specifically readdressed the question presented to Chief Justice Miller
by the butchers – in part, because to do so would call into question the legitimacy of the whole framework of
substantive due process that grew from Chief Justice Miller’s reading of the Privileges or Immunities Clause.
Perhaps most persuasive in post-Brown v. Board of Education society, are that the facts upon which Chief
Justice Miller relied upon, under a reading of developing history, have “come to be seen so differently, as to have
robbed the old rule of significant application or justification.” The Reconstruction Amendments are no longer
seen as restricted in scope or application to Chief Justice Miller’s narrow historical sketch of them as merely
remedies for antebellum America. And surely they are no longer seen as solely justified by Chief Justice Miller’s
“one pervading purpose” beneath them all to merely guarantee “the freedom of the slave race.”1001 Thus, a
balance of Justice O’Connor’s stare decisis factors leans heavily in favor of overturning the Slaughter-House
Cases.
999
See id. (citations omitted). In the context of Casey, Justice O’Connor opined that the Court still adhered to the “central
holding” of Roe v. Wade, because it had not been found unworkable, an entire generation had come to rely upon its holding
that liberty encompasses a woman’s capacity to act in society and make reproductive choices, its central holding was not a
doctrinal anachronism nor did its holding emerge as irreconcilable with other precedent, and its central holding was not
altered by new facts or societal circumstances. Casey, 120 L. Ed.2d at 700-04. Roe v. Wade, 410 U.S. 113 (1973).
1000
Planned Parenthood v. Casey, 120 L. Ed.2d 674, 700 (1992).
1001
Slaughter-House Cases, 21 L. Ed.394, 407 (1872) (Miller, C.J.).
505
Chief Justice Rehnquist with Justices Scalia, Thomas, and White dissented from the majority’s “newly
minted variation on stare decisis.”1002 For the Casey dissenters, stare decisis did not require retention of any part
of Roe v. Wade.1003 Reiterating that stare decisis is not “a universal, inexorable command,” the dissenters thought
it the Court’s “duty to reconsider constitutional interpretations that ‘depart from a proper understanding’ of the
Constitution.”1004 This duty arises because “constitutional cases are uniquely durable” and because “correction
through legislative action, save for constitutional amendment, is impossible.”1005 Consequently, Chief Justice
Rehnquist announced: “Our constitutional watch does not cease merely because we have spoken before on an
issue; when it becomes clear that a prior constitutional interpretation is unsound we are obliged to reexamine the
question.”1006
For the dissenters, the doctrine of stare decisis is not simply limited by the list O’Connor’s joint opinion
provides. Rather, clearly erroneous decisions and plain error in reasoning can both provide enough of an impetus
to trigger [p.526] what the dissenters feel is the duty of the Supreme Court: to overturn badly, erroneously, and
falsely reasoned law. The Slaughter-House Cases stand as the clearest example of the unique durability the
dissenters point out enshrouds poorly reasoned Supreme Court constitutional decisions. Clearly, a constitutional
decision that rests, as does Chief Justice Miller’s reading of the Privileges or Immunities Clause, upon an
historical account which no longer is of any argumentative weight, and upon a different, pre-Brown v. Board of
Education, constitutional landscape, and upon blatant rewritings of the constitutional texts and of the precedents
relied upon to interpret those constitutional texts, cannot but make it “clear” that the Slaughter-House Cases’
“constitutional interpretation is unsound” and, consequently, according to the Chief Justice and the other Casey
dissenters, the Court should find themselves “obliged to reexamine the question.”1007
As the dissenters were so eager to dismantle Roe, perhaps, too, they should be so urged to heed their own
words and reasoning to dismantle the Slaughter-House Cases:
The authors of the joint opinion, of course, do not squarely contend that Roe v. Wade was a correct application of
“reasoned judgment”; merely that it must be followed, because of stare decisis. But in their exhaustive discussion
of all the factors that go into the determination of when stare decisis should be observed and when disregarded,
they never mention “how wrong was the decision on its face?” Surely, if “the Court’s power lies . . . in its
legitimacy, a product of substance and perception,” the “substance” part of the equation demands that plain error
be acknowledged and eliminated. Roe was plainly wrong – even on the Court’s methodology of “reasoned
judgment,” and even more so (of course) if the proper criteria of text and tradition are applied.”1008
If the Slaughter-House Cases cannot be seen as a “wrong decision on its face,” having actually
interpreted a constitutional text that does not exist, it is difficult to explain what would be. Roe was
constitutionally wrong, according to the Casey dissenters’ argument, because it was premised upon what has
become seen as a faulty scientific and medical schema. If a basis for overturning a Supreme Court constitutional
decision is found to exist where the scientific and medical foundations upon which that decision rests are, in time,
1002
Casey, 120 L. Ed.2d at 758 (Rehnquist, C.J., and JJ. Scalia, Thomas, and White, concurring in the judgment in part and
dissenting in part).
1003
Id. at 765-66 citing to Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405 (1932).
1004
Casey, 120 L. Ed. 2d 674, 766 (1992) quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 577
(1985).
1005
Casey, 120 L. Ed. 2d at 766.
1006
Id.
1007
Id.
1008
Id. at 784 (Rehnquist, C.J. and J.J. White, Scalia, and Thomas, concurring in the judgment in part and dissenting in part).
506
found erroneous, then [p.527] surely a Supreme Court constitutional decision should be overturned where the
very constitutional text interpreted is pointed out not to exist in our Constitution.
2. Humoring an Originalist Bent Bench
The other bastion of adherence and devotion to the Slaughter-House Cases lies in the originalist outlook
several of the current members of the Court espouse. Chief Justice Miller’s opinion is littered with originalist
methodology.1009 However, James Landis’ caveat to the originalist is worth keeping in mind:
The gravest sins are perpetrated in the name of the intent of the legislature. Judges are rarely willing to admit their
role as actual lawgivers, and such admissions as are wrung from their unwilling lips lie in the field of common
and not statute law. To condone in these instances the practice of talking in terms of the intent of the legislature,
as if the legislature had attributed a particular meaning to certain words, when it is apparent that the intent is that
of the judge, is to condone atavistic practices too reminiscent of the medicine man.1010
Justice Scalia adheres to Landis’ caveat. Justice Scalia believes that any interpretation couched as
discerning legislative intent ought to be avoided for precisely the gastronomic logic Landis saw beneath the veil
of legal reasoning premised upon divining legislative intent. Often, divining “legislative intent” directs the
judicial inquiry into the political mechanisms of how and why a statute might have been passed instead of
judiciously interpreting the words of the statute themselves. For Justice Scalia, such an inquiry by the judiciary is
of a decidedly undemocratic nature and, therefore, invalid under our Constitution.1011
Justice Scalia discusses the case of Church of the Holy Trinity v. United States1012 to illustrate the errors
yielded by legislative intent interpretation.1013 As [p.528] Justice Scalia points out, the Holy Trinity court relied
upon just about everything but the language of the statute itself to conclude:
It is a case where there was presented a definite evil, in view of which the legislature used general terms with the
purpose of reaching all phases of that evil, and thereafter, unexpectedly, it is developed that the general language
thus employed is broad enough to reach cases and acts which the whole history and life of the country affirm
could not have been intentionally legislated against. It is the duty of the courts, under those circumstances, to say
that, however broad the language of the statute may be, the act, although within the letter, is not within the
intention of the legislature, and therefore cannot be within the statute.1014
Since Justice Scalia would have little trouble dismissing the extrajudicial sources the Holy Trinity Court
depended upon, he would have consequently found “that the act was within the letter of the statute, and was
1009
See e.g., Slaughter-House Cases, 21 L. Ed. 394, 410 (1872) (interpreting the Reconstructive Amendments in the light of
their history and of their “pervading purpose”).
1010
James M. Landis, A NOTE ON “STATUTORY INTERPRETATION,” 43 Harv. L. Rev. 886, 891 (1930) quoted in Antonin Scalia,
Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and
Laws, in A MATTER OF INTERPRETATION 18, (Amy Gutmann ed., 1997).
1011
See Scalia, supra note 297.
1012
Church of the Holy Trinity v. United States, 143 U.S. 457 (1892). The court concluded, in Holy Trinity, that the phrase
“to perform labor or service of any kind in the United State[s]” did not bar the emigration of an Englishman who had
contracted with a New York City church to be its rector and pastor. The Court reasoned that the language as used in the
federal statute sought to make unlawful the importation or migration of aliens who had entered into labor or service contracts
or agreements prior to emigrating into the United States was simply limited to manual labor contracts or agreements and,
consequently, did not reach the non-manual labor of spiritual guidance. Id.
1013
See Scalia, supra note 297, at 18-21.
1014
Church of the Holy Trinity, 143 U.S. at 472, quoted in Scalia, supra note 297, at 20.
507
therefore within the statute: end of case,” in so far, Justice Scalia notes, as the matter of statutory construction was
concerned. 1015 Nonetheless, he would have remained concerned about the statute’s constitutionality, though not
overly so:
It is possible (though I think far from certain) that in its application to ministers the statute was unconstitutional.
But holding a provision unconstitutional is quite different from holding that it says what it does not; constitutional
doubt may validly be used to affect the interpretation of an ambiguous statute, [citation omitted], but not to
rewrite a clear one. 1016
[p.529] Although Justice Scalia remains an originalist, he does not maintain that the originalism he
embraces concerns these illegitimate forays into divining “legislative intent,” a process he thinks quite
impossible. 1017
Of equal distaste to Justice Scalia as the use of legislative intent as a ground for legal reasoning is the
recent fad of turning to legislative history to intuit what the sundry legislators had in mind when they passed a
particular piece of legislation, instead of what they actually wrote down, passed through two houses, and had
signed by the President. Noting that the use of legislative history only came into vogue in the 1940s, Justice Scalia
brings to our attention a concurrence in which Justice Jackson disparaged the majority’s affinity for utilizing
legislative history to support their opinion:
I should concur in this result more readily if the Court could reach it by analysis of the statute instead of by
psychoanalysis of Congress. When we decide from legislative history, including statements of witnesses at
hearings, what Congress probably had in mind, we must put ourselves in the place of a majority of Congressmen
and act according to the impression we think this history should have made on them. Never having been a
Congressman, I am handicapped in that weird endeavor. That process seems to me not interpretation of a statute
but creation of a statute.1018
To underscore his point, Justice Scalia notes how a recent brief submitted to the Supreme Court
concluded an extensive opening discussion of legislative history by noting with disappointment: “Unfortunately,
the legislative debates are not helpful. Thus, we turn to the other guidepost in this difficult area, statutory
language.”1019 Such misguided legal argumentation leads Justice Scalia to express his “view that the objective
indication of the words, rather than the intent of the legislature, is what constitutes the law leads me, of course, to
the conclusion that legislative history should not be used as an authoritative indication of a statute’s meaning.” 1020
Justice Scalia supports his conclusion with Chief Justice Taney’s observation that:
In expounding this law, the judgment of the court cannot, in any degree, be influenced by the construction placed
upon it by individual members of Congress in the debate which took place [p.530] on its passage, nor by the
motives or reasons assigned by them for supporting or opposing amendments that were offered. The law as it
passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself;
and we must gather their intention from the language there used, comparing it, when any ambiguity exists, with
1015
Scalia, supra note 297, at 20 n.22.
1016
Id., citing to United States v. Delaware & Hudson Co., 213 U.S. 366, 407-08 (1909); Moore Ice Cream Co. v. Rose, 289
U.S. 373, 379 (1933).
1017
See Scalia, supra note 297, at 20.
1018
United States v. Public Utils. Comm’n of Cal., 345 U.S. 295, 319 (1953) (Jackson, J., concurring) quoted in Scalia, supra
note 297, at 30-31.
1019
Scalia, supra note 297, at 31.
1020
Id. at 29-30.
508
the laws upon the same subject, and looking, if necessary, to the public history of the times in which it was
passed. 1021
Chief Justice Taney’s comment elucidates that originalism is a fractious enterprise.
An originalist position can be broken down into those who emphasize divining: (1) the original meaning
of a provision, through contemporary dictionaries, other contemporaneous documents, and tracing the
contemporary usage of the provisions words through case law or treatises; or (2) the original intention of the
specific drafters of a provision – which may differ from the contemporaneous definition and usage of the words
themselves – through study of the provision’s various drafts, proposals, and legislative history, and then current
popular debate; or (3) the original understanding and, thus, the intention of those who ratified a provision – which
may differ from both the meaning of the words employed in that provision and, too, from the drafters’ intentions –
through any recordation (which is often scant) of the debates within the ratifying conventions.1022
As if taking a cue from Chief Justice Taney, Justice Thomas, in United States v. Lopez,1023 recently
displayed a devout adherence to the originalist position of the second ilk, scouring contemporary dictionaries and
common usage to discern the meaning of the words themselves as used in the Commerce Clause of the
Constitution.1024 After pointing out distinctions that Hamilton and the state [p.531] ratification conventions drew
between commerce, agriculture, and manufacturing, Justice Thomas concluded that “interjecting a modern sense
of commerce into the Constitution generates significant textual and structural problems” which he, for one,
wished to avoid and, therefore, he refused to find room within the “Commerce” clause to harbor regulations of
firearms in or around our public, governmentally funded, schools.1025
Much of the criticism Justice Scalia levels against Church of the Holy Trinity may, with perhaps even
greater force, be leveled against the Slaughter-House Cases. Just as the Holy Trinity Court allowed the influence
1021
Aldridge v. Williams, 44 U.S. 9, 24 (1845) quoted in Scalia, supra note 297, at 30.
1022
For a succinct summary of the various originalist interpretive schema, see THE COMPLETE BILL OF RIGHTS: THE DRAFTS,
DEBATES, SOURCES, AND ORIGINS lv-lx (Neil H. Cogan ed., Oxford 1997) (which commences with the somewhat ominous
epigraph, culled from Deuteronomy 6:7: “And you shall impress them upon your children”).
1023
United States v. Lopez, 514 U.S. 549, 131 L. Ed.2d 626, 115 S. Ct. 1624 (1997) (striking down the Gun-Free School
Zones Act of 1990 under commerce clause analysis) (Thomas, J. concurring).
1024
Id. at 655 (Thomas, J., concurring). Commencing his Lopez opinion with a discursive definition of how “commerce” was
defined “at the time the original Constitution was ratified,” Justice Thomas opined:
“Commerce” consisted of selling, buying, and bartering, as well as transporting for these purposes. See 1 S. Johnson, A
DICTIONARY OF THE ENGLISH LANGUAGE 361 (4th ed. 1773) (defining commerce as “Intercourse; exchange of one thing for
another; interchange of any thing; trade; traffick”); N.Bailey, AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (26th ed.
1789) (“trade or traffic”); T. Sheridan, A COMPLETE DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1796) (“Exchange of
one thing for another; trade, traffick”). This understanding finds support in the etymology of the word, which literally means
“with merchandise.” See 3 OXFORD ENGLISH DICTIONARY 552 (2d ed. 1989) (com – “with”; merci – “merchandise”). In fact,
when Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in
its selling/bartering sense) and commerce interchangeably. See THE FEDERALIST NO. 4, p 22 (J. Jay) (asserting that countries
will cultivate our friendship when our “trade” is prudently regulated by Federal Government); id. NO. 7, at 39-40 (A.
Hamilton) (discussing “competitions of commerce” between States resulting from state “regulations of trade”); id., NO. 40, at
262 (J. Madison) (asserting that it was an “acknowledged object of the Convention . . . that the regulation of trade should be
submitted to the general government”); Lee, Letters of a Federal Farmer No. 5, in PAMPHLETS ON THE CONSTITUTION OF THE
UNITED STATES 319 (P. Ford 3d 1888); Smith, AN ADDRESS TO THE PEOPLE OF THE STATE OF NEW YORK, in id, at 107.
Id.
1025
Id. (Thomas, J. concurring).
509
of a perceived definite evil, which they saw infused the general language used in the statute in question with a
more controlling meaning than the specific words used by the legislature, so, too did Chief Justice Miller premise
his Slaughter-House majority opinion upon rectifying the specific atrocities still perpetrated upon the newly
emancipated African-Americans by the newly re-admitted southern states in antebellum America. In denying the
butchers’ equal protection argument, for example, Chief Justice Miller reasoned that the equal protection clause
could not reach the butchers because they were not of the newly emancipated class the amendment, so clearly and
exclusively for Chief Justice Miller, protected:
[p.532] In the light of the history of these amendments, and the pervading purpose of them, which we have
already discussed, it is not difficult to give a meaning to [the equal protection clause of the Fourteenth
Amendment]. The existence of laws in the states where the newly emancipated negroes resided, which
discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause,
and by it such laws are forbidden.
If, however, the states did not conform their laws to its requirements, then by the 5th section of the article
of amendment Congress was authorized to enforce it by suitable legislation. We doubt very much whether any
action of a state not directed by way of discrimination against the negroes as a class, or on account of their race,
will ever be held to come within the purview of this provision. It is so clearly a provision for that race and that
emergency, that a strong case would be necessary for its application to any other.1026
The premise of Chief Justice Miller’s decision rests upon divining, beyond the general language of the
Reconstruction Amendments, which he acknowledged do not limit themselves on their face to merely being
applicable to newly emancipated African-Americans, the “pervading purpose” which motivated Congress to draft
and pass them and, consequently, limits the applicability of the Reconstruction Amendments.
As Justice Scalia articulated the failings of the Holy Trinity Court to be so, too, does Chief Justice Miller
go beyond merely upholding the Louisiana landing and slaughtering statute; so too does he go beyond employing
a doubt in the general language of the reconstruction amendments to control his decision; so, too, does he go
beyond employing doubt in the ambiguous language of the Constitution to rewrite it. Chief Justice Miller, whose
reading of the Privileges or Immunities Clause of the Fourteenth Amendment rests and falls upon the language of
the Privileges and Immunities Clause of Article Four, actually does rewrite the constitutional text of Article IV
and of the leading case1027 interpreting that Article. With his own personally penned Constitution, Chief Justice
Miller is fully able to usurp “a majority of Congressmen and act according to the impression [he thought] this
history should have made upon them.”1028 For example, Chief Justice Miller’s conclusion – despite his
acknowledgment that the civil war prompted many to “believe in the necessity of a strong national [p.533]
government,”1029 – evinces just such an usurpation of history to divine legislative intent:
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 states with powers for domestic and local rights, including the regulation of civil
rights, the rights of person and of property, was essential to the perfect working of our complex form of
1026
Slaughter-House Cases, 21 L. Ed.394, 410 (1872) (Miller, C.J.).
1027
See Corfield v. Coryell, 6 Fed. Cas. 546 (C.C. Pa. 1823).
1028
United States v. Public Utils. Comm’n of Cal., 345 U.S. 295, 319 (1953)(Jackson, J., concurring) quoted in Scalia, supra
note 297, at 30-31.
1029
The Slaughter-House Cases, 21 L. Ed. at 410 (Miller, C.J.).
510
government, though they have thought proper to impose additional limitations on the states, and to confer
additional power on that of the nation.1030
Between a pervading sentiment and a pervading purpose lies Chief Justice Miller’s version of legislative
intent and, perhaps to use a somewhat loose definition, legislative history as well.
If one were to adopt the originalist methodology of Justice Thomas to discern the contemporary meaning
of the actual words employed in the Privileges or Immunities Clause of the Fourteenth Amendment and of the
Privileges and Immunities Clause of Article Four, one would turn, as a starting point, to Justice Thomas’
collection of antiquarian dictionaries. 1031
Johnson defined “privilege” as “Immunity; publick right.”1032 “Immunity,” in turn, was defined by
Johnson as, in one sense, “Privilege; exemption,” as well, in another sense, as “Freedom.”1033 The etymology of
“privilege” supports the contention that by “privilege,” those in the Eighteenth and Nineteenth centuries meant
natural, or as we might mean, human and civil rights: priv-us, private, peculiar + lex, legem, law.1034 And
“immunity” has been [p.534] handed down to us from medieval Latin, immunis, immune, meaning exempt, free,
and privileged. 1035
Thus, as Justice Bradley, a dissenter in the Slaughter-House Cases, properly read “privileges” and
“immunities” as employed in Article IV and the Fourteenth Amendment:
Citizenship is not an empty name, but that, in this country at least, it has connected with it certain incidental
rights, privileges, and immunities of the greatest importance. And to say that these rights and immunities attach
only to state citizenship, and not to citizenship of the United States, appears to me to evince a very narrow and
insufficient estimate of constitutional history and the rights of men, not to say the rights of the American people . .
. Even if the Constitution were silent, the fundamental privileges and immunities of citizens, as such, would be no
less real and no less inviolable than they now are.1036
Justice Bradley, using “rights” and “privileges” synonymously, also recognizes that the privileges and
immunities of which the Constitution speaks are not granted by the Constitution, since the privileges and
immunities adhere to us a matter of human right, but are, rather, acknowledged as pre-existing the foundation of
any government and are, therefore, securely protected by the Constitution’s mention of them.
While perhaps a bit distasteful to Justice Scalia, Chester James Antieau’s recent survey of the original
debates surrounding the adoption and ratification of the Fourteenth Amendment reveals that the Privileges and
Immunities Clause was understood, by those who suggested, drafted, passed, and ratified the Amendment, to
further recognize and secure under federal constitutional protection natural, human, civil rights for citizens of the
1030
Id.
1031
Having only, at the moment, Samuel Johnson’s and the Oxford English Dictionary at my disposal, we shall have to make
do with a somewhat less exhaustive collection.
1032
Samuel Johnson, 2 A DICTIONARY OF THE ENGLISH LANGUAGE (Longman facsimile of the 1755 1st ed.) (quoting, by way
of example of usage, John Dryden: “And counts it nature’s privilege to die.”)
1033
Samuel Johnson, 1 A DICTIONARY OF THE ENGLISH LANGUAGE, (Longman facsimile of the 1755 1st ed.).
1034
12 OXFORD ENGLISH DICTIONARY 522 (2d ed. 1989) (also defining “privilege,” in one sense, as “A right, advantage, or
immunity granted to or enjoyed by a person, or a body or class of persons, beyond the common advantages of others; an
exemption in a particular case from certain burdens or liabilities”).
1035
7 OXFORD ENGLISH DICTIONARY 690-91 (2nd ed. 1989).
1036
Slaughter-House Cases, 21 L. Ed. at 116, 119 (Bradley, J., dissenting).
511
U.S., if not for all human beings, regardless of citizenship, within America.1037 As John Bingham – to choose but
one example of the many Antieau offers – drafter of all but the first sentence of the Fourteenth Amendment,
explained his own purpose: “In drawing up the Fourteenth Amendment, I attempted to secure civil rights for
human beings. These meant the rights to life, liberty and property. They include [p.535] privileges and
immunities bestowed upon human beings by the Supreme Power. These are natural rights.”1038
Consequently, under the methodology of Justice Thomas, one would come to the conclusion that Justice
Washington arrived at but which Chief Justice Miller abrogated – while nonetheless claiming to adhere to Justice
Washington’s precedent – that the original constitutional meaning of “privileges” and “immunities” was “natural
right,” what today we tend to think of as “human” or “civil rights.”
Yet any branch of originalism can carry analysis only so far, and to end the analysis, with the static,
perhaps intolerant, conclusion that the words analyzed cannot tolerate the “interjection of a modern sense” of their
meaning “generates [more] significant textual and structural problems” than the refusal to do so solves.1039 Ralph
Waldo Emerson once observed of originality and quotation:
All things are in flux. It is inevitable that you are indebted to the past. You are fed and formed by it. The old forest
is decomposed for the composition of the new forest. The old animals have given their bodies to the earth to
furnish through chemistry the forming race, and every individual is only a momentary fixation of what was
yesterday another’s, is today his, and will belong to a third tomorrow. So it is in thought. Our knowledge is the
amassed thought and experience of innumerable minds: our language, our science, our religion, our opinions, our
fancies we inherited. Our country, customs, laws, our ambitions, and our notions of fit and fair – all these we
never made, we found them ready-made; we but quote them. Goethe frankly said, “What would remain to me if
this are of appropriation were derogatory to genius? Every one of my writings has been furnished to me by a
thousand different persons, a thousand things; wise and foolish have brought me, without suspecting it, the
offering of their thoughts, faculties, and experience. My work is an aggregation of beings taken from the whole of
nature; it bears the name of Goethe.”1040
Emerson’s conclusion – a weighty criticism that exposes the limitations of Justice Thomas’ constitutional
approach – is a helpful guide to the judicious and pragmatic use of originalism:
[p.536] We cannot overstate our debt to the Past, but the moment has the supreme claim. The Past is for us; but
the sole terms on which it can become ours are its subordination to the Present. Only an inventor knows how to
borrow, and every man is or should be an inventor. We must not tamper with the organic motion of the soul. ‘Tis
certain that thought has its own proper motion, and the hints which flash from it, the words overheard at unawares
by the free mind, are trustworthy and fertile when obeyed and not perverted to low and selfish account. This vast
memory is only raw material. The divine gift is ever the instant life, which receives and uses and creates, and can
well bury the old in the omnipotency with which Nature decomposes all her harvest for recomposition.1041
1037
Antieau, supra note 168 (arguing that Chief Justice Miller misquoted, misconstrued, and misapplied the privileges and
immunities clause of Article IV and the privileges or immunities clause of the Fourteenth Amendment).
1038
Id. at 50 & n.19.
1039
Lopez, 131 L. Ed.2d 626, 655 (1997) (Thomas, J., concurring).
1040
Ralph Waldo Emerson, Quotation and Originality, reprinted in THE PORTABLE EMERSON 284-303, 300 (Mark Van Doren
ed., Viking Press March 1975).
1041
Id. at 302-03.
512
As if echoing Justice Holmes’ admonishment that following a rule of law laid down by the ancients for no
better reason than that it was laid down by the ancients,1042 Emerson’s thoughts point out that Justice Thomas’
constitutional methodology subordinates Justice Thomas to the intellectual status of something a tad less than an
Emersonian inventor – forgetful of the organic nature of our souls, uncreatively and wastefully restricting the
omnipotency and necessity of decomposition, the harbinger of a fruitful harvest.
Justice Oliver Wendell Holmes incorporates the organic Emersonian workings of growth, decay, and
renewal, into his theory of the law and of the Constitution:
A very common phenomenon, and one very familiar to the student of history, is this. The customs, beliefs, or
needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity
disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds
set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to
explain it and to reconcile it with the present state of things; and then the rule adapts itself to the new reasons
which have been found for it, and enters on a new career. The old form receives a new content, and in time even
the form modifies itself to fit the meaning which it has received.1043
[p.537] From the decay of old rules sprouts new rules; and, as new meaning and content is judicially
engrafted upon old forms, the law evolves. Throughout Justice Holmes’ jurisprudence we can discern how he had
tried to see the law as an organic whole. As Justice Holmes explains:
I also have tried to see it as a reaction between tradition on the one side and the changing desires and needs of a
community on the other. I have studied tradition in order that I might understand how it came to be what it is, and
to estimate its worth with regard to our present needs; and my references to the Year Books often have had a
skeptical end. I have considered the present tendencies and desires of society and have tried to realize that its
different portions want different things, and that my business was to express not my personal wish, but the
resultant, as nearly as I could guess, of the pressure of the past and the conflicting wills of the present. I have
considered the social and economic postulates on which we frame the conception of our needs, and I have to see
them in a dry light. It has seemed to me that certainty is an illusion, that we have few scientific data on which to
affirm that one rule rather than another has the sanction of the universe, that we rarely could be sure that one tends
more distinctly than its opposite to the survival and welfare of the society where it is practiced, and that the wisest
are but blind guides.1044
The proper reading of the Privileges or Immunities Clause for which this Note argues would allow the
Constitution to become the organic instrument Justice Holmes, for one, hoped we would make of it.
1042
THE COMPLETE BILL OF RIGHTS, supra note 309, at 275.
1043
Oliver Wendell Holmes, The Common Law, reprinted in THE ESSENTIAL HOLMES 239 (Richard A. Posner ed., Univ. of
Chicago Press 1992).
1044
Oliver Wendell Holmes, Twenty Years in Retrospect: Speech at a Banquet of the Middlesex Bar Association, December
3, 1902, reprinted in THE ESSENTIAL HOLMES, supra note 330, at 151.
513
V.
Incorporating Jus Cogens Within The Constitution
On this day when the sunlight had, so to speak, destroyed reality, reality concentrated itself in certain dusky and
transparent creatures which, by contrast, gave a more striking, a closer impression of life: the shadows.1045
[p.538] Cases like Brown, Griswold, and Roe – cases, that is, where the Supreme Court finds and affords
constitutional protection to an unenumerated “fundamental” right – accept, albeit often without acknowledgment,
the premise of jus cogens: an unenumerated fundamental right functions as a peremptory norm to invalidate
governmental acts that are repulsive to our Kantian sense of right and our Burkeian sense of mutual obligation.
Indeed, the Court’s test for finding a fundamental right – that it must be “deeply rooted in our traditions” and
necessary for “ordered” civil democracy – is oddly similar to that the International Court of Justice invoked for
discerning “customary international law” as a premise for finding a jus cogens peremptory norm1046 – where the
custom must have a normative quality, recognized by a number of States, present in the opinion juris, and
entrenched by practice through time. The two inquiries are indeed similar, but one of the differences remains that
the Court is recalcitrant in letting fundamental rights jurisprudence grow whereas the principal of jus cogens is
open to growth and never static.
When the Supreme Court invokes such a peremptory right, they have usually done so beneath the
logically suspect rubric of substantive due process. However, the Privileges or Immunities Clause of the
Fourteenth Amendment is the more logical place to lodge a jurisprudence that recognizes that we each enjoy
certain privileges and immunities because we are human, not because they are granted by any government.
Developing a jus cogens jurisprudence beneath the Privileges or Immunities Clause would obviate any
concern that cases such as Korematsu and Hirabayashi could recur. Genocide, as internationally defined,
encompasses both “causing serious bodily or mental harm to members of the group” and “deliberately inflicting
on the group conditions of life calculated to bring about its physical destruction in whole or in part.”1047 These
prohibitions could, arguably, apply to relocation of a specific racial group. And, since a peremptory norm against
genocide found under jus cogens is non-derogable, the fact that we were involved in a war with other members of
the same racial group would not serve to justify the relocation. Similarly, in the Bisbee Deportation Case, the
genocide principal of jus cogens, if incorporated through various treaties to be the law of the land, would have
made it possible to bring the case in a federal court under federal question jurisdiction instead of in the state court
which found the relocators innocent after only 15 minutes of jury deliberation. Similarly, beneath a jus cogens
prescription on genocide, federal Indian jurisprudence might find a [p.539] footing on which to reform its
heretofore inhumane approach to the indigent peoples of the Americas.
Beneath jus cogens, dissents such as Scalia’s in Romer v. Evans would not have any stable constitutional
ground to stand upon. Seen by some commentators as a call for homosexual apartheid, 1048 Colorado’s
1045
Marcel Proust, 2 IN SEARCH OF LOST TIME: WITHIN A BUDDING GROVE 556 (C.K. Scott Moncrieff et al., trans., Modern
Library 1992).
1046
The International Court of Justice’s articulation of “customary international law” is culled from the North Sea Cases. See
discussion supra at notes 37 & 38. For the proposition that jus cogens is premised upon customary international law see
Military and Parliamentary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 100-01 (June 27), discussed supra notes 33-35; see also
Vienna Convention, supra note 48 and accompanying text.
1047
CONVENTION ON GENOCIDE, supra note 2, art. 2(b), (c).
1048
See William N. Eskridge, DEMOCRACY, KULTURKAMPF, AND THE APARTHEID OF THE CLOSET, in 50 Vand. L. Rev. 419
(1997).
514
Amendment Two1049 and Scalia’s defense of it would both be illegitimate under jus cogens. Arguably, jus cogens
proscriptions – against slavery, or against degrading treatment, or, as is more likely, against systematic racial
discrimination that becomes a general prescription against any kind of systematic discrimination – could be
employed to defeat endeavors like Amendment Two and Scalia’s reasoning.
Furthermore, such a jurisprudence of jus cogens would continue to allow the Supreme Court to ring the
death knell of substantive due process without reaching the inhumane results of cases like Bowers and
Glucksberg. Adoption of a jus cogens jurisprudence would also serve to reformulate federal Indian law towards a
more humane posture.
Even if the Court remains unpersuaded that the Slaughter-House Cases were wrongly reasoned and
wrongly decided, a doctrine of jus cogens might still lie hidden in the shadows of Justice Miller’s opinion. By
accepting that the Privileges or Immunities Clause does ensure those privileges and immunities created and
recognized beneath treaties that the U.S. has entered into, Justice Miller has left open the door for jus cogens to
enter our jurisprudence anyway. Analysis of those few international human rights treaties we have ratified and,
arguably, by our very membership in the U.N., we have accepted the doctrine of jus cogens that nearly all
scholars have found underwrites those treaties and the U.N. Thus, jus cogens emanates from many of the treaties
we have ratified and should become a recognized persuasive force in our jurisprudence. The peremptory norms of
jus cogens should be relied upon to invalidate federal and state legislation that remains inconsistent with those
ideals to ensure that the human rights Senator Helms thinks we are the vanguards of are ensured to ourselves.
[p.540]
VI.
Conclusion
Justice Souter, in his concurring opinion in Glucksberg v. Washington, 1050 discerned the origins of
substantive due process in the demise the Slaughter-House Cases made of the Privileges or Immunities Clause.
1051
And, despite the Court’s occasional admission that Slaughter-House Cases’ interpretation of the Privileges or
Immunities Clause was and is somewhat lacking, the Court nonetheless tends to “reaffirm[] that interpretation
without questioning its own frequent reliance on the Due Process Clause as authorization for substantive judicial
review.” 1052 Justice Souter’s acknowledgment that the Privileges or Immunities Clause and not the Due Process
Clause is the proper constitutional setting for developing a substantive human rights jurisprudence1053 is,
1049
The effect, and surely also the purpose, [of which] was to reinforce a regime of the closet for gay people. Amendment 2
was not only sending a message of disapproval to a traditionally despised minority -- itself potentially chilling or incendiary
or both -- but was removing an important prerequisite for political participation by many gay people (job protection). Though
Amendment 2 was enacted by a democratic process, it would have had the antidemocratic effect of impairing the ability of
gays to mobilize politically.” Id. at 441.
1050
Glucksberg v. Washington, 521 U.S. 702, 117 S. Ct. 2258, 138 L. Ed.2d 772 (1997) (upholding Washington State statute
which provides that a person who knowingly causes or aids another to attempt suicide is guilty of the felony of promoting a
suicide attempt against substantive due process challenge claiming a fundamental liberty interest in doctor assisted suicide).
1051
See id. 2279, n.6 (Souter, J. concurring) (“The Slaughter-House Cases are important, of course, for their holding that the
privileges or immunities Clause was no source of any but a specific handful of substantive rights. To a degree, then, that
decision may have led the Court to look to the Due Process Clause as a source of substantive rights”) (citations omitted).
1052
Id. (discussing Twining v. New Jersey, 211 U.S. 78, 95-97, as exemplary of this logical inconsistency).
1053
See Glucksberg, 117 S. Ct. at 2279, n.6 (Souter, J. concurring) (citation: “See also J. Ely, Democracy and Distrust 14-30
(1980) (arguing that the privileges or immunities Clause and not the Due Process Clause is the proper warrant for courts’
substantive oversight of state legislation).”)
515
however, undermined by Justice Souter’s adoption of Justice Harlan’s reasoning in his dissent in Poe v.
Ullman.1054 Justice Harlan was unable, maintains Justice Souter, to interpret the text of the due process clause
absent a substantive component. “Were due process merely a procedural safeguard,” quotes Justice Souter, “it
would fail to reach those situations where the deprivation of life, liberty, or property was accomplished by
legislation which by operating in the future could, given even the fairest possible procedure in application to
individuals, nevertheless destroy the enjoyment of all three.”1055 Justice Souter draws from Justice Harlan’s
interpretation the unavoidable conclusion that “the Due Process Clause thus imposes nothing less than an
obligation to give substantive content to the words ‘liberty’ and ‘due process of law.’”1056
[p.541] Yet, if the admission is made that the Slaughter-House reading of the Privileges or Immunities
Clause is suspect, and that the Privileges or Immunities Clause should be given more substantive meaning that it
has heretofore enjoyed, then substantive due process is repetitiously superfluous at best. Rather, the more logical
reading of the entire first section of the Fourteenth Amendment would be that the Privileges or Immunities Clause
recognizes the natural human rights that our Constitution presumes exist and precede any formation of
government.1057 Among the more important and representative of these are life, liberty, and property.
Consequently, the Due Process Clause serves to ensure that the human rights recognized and ensured as privileges
or immunities of national citizenship are neither denied nor infringed by rebellious state legislation – recall, at this
time the southern states were still passing black codes – without federally defined due process of law. Similarly,
the Equal Protection Clause functions to ensure that the due process nationally mandated to ensure the privileges
or immunities of national citizenship are equally applied by all the states. Consequently, the first section – indeed,
the entire Fourteenth Amendment – is a strong reaffirmation of federal supremacy and centralization thought
indispensable to the continuation of the Union in the wake of the bloody rift the Civil War made of the U.S.
Ostensibly to support his concurring opinion in Glucksberg, Justice Stevens quoted the English poet John
Donne to emphasize that allowing a death by assisted suicide affected and lessened the quality of life for each
individual in society:
[p.542] Who casts no up his eye to the sun when it rises? but who takes off his eye from a comet when that breaks
out? Who bends not his ear to any bell which upon any occasion rings? but who can remove it from that bell
which is passing a piece of himself out of this world? No man is an island, entire of itself; every man is a piece of
the continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a
1054
367 U.S. 497, 6 L. Ed.2d 989 (1961).
1055
Id. at 541, quoted in Glucksberg v. Washington, 117 S. Ct. 2258, 2281, 138 L. Ed.2d 772, 815 (1997) (Souter, J.
concurring).
1056
Poe, 367 U.S. 497.
1057
See e.g. THE DECLARATION OF INDEPENDENCE preamb. (“When in the course of human events it becomes necessary for
one people to dissolve the political bands which have connected them with another, and to assume the Powers of the earth,
the separate and equal station to which the Laws of Nature and of Nature’s God entitled them, a decent respect to the
opinions of mankind requires that they should declare the causes which impel them to the separation. . . .”) Id. at para. 1
(“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain
inalienable rights, that among these are Life, Liberty, and the pursuit of Happiness. That to secure these rights, Governments
are instituted among Men, deriving their just powers from the consent of the governed.”) See also U.S. CONST. amend. IX
(“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the
people.”) Read together, the Declaration of Independence and the Ninth Amendment accept and acknowledge that human
beings are entitled to human rights by simple virtue of being human. Furthermore, that these human rights are peremptory in
nature, they justified, for instance, our revolution and independence from the British regime that had ceased to acknowledge
these rights in the colonists. For a fascinating study of how the Declaration of Independence, the Ninth Amendment, and the
Privileges or Immunities Clause of the Fourteenth Amendment could be read to work conjunctively to provide the
constitutional basis for a vigorous development of domestic human rights law, see generally Black, supra note 96.
516
promontory were, as well as if a manor of they friend’s or of thine own were; any man’s death diminishes me,
because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee.1058
Commentators have heard the death knell of substantive due process ringing for at least the past fifteen
years. For example, in Bowers v. Hardwick, the Supreme Court refused to find a “fundamental” liberty interest in
consensual same-gender sex. 1059 And with Glucksberg,1060 the Court has seemingly announced that it is no longer
in the business of finding new fundamental rights under the substantive due process rubric by refusing to extend
the assumed holding in Cruzan1061 to cover doctor assisted suicide for the terminally ill. Yet if the bell indeed
rings for substantive due process, the Court has yet to imply whether that bell also rings for the constitutional
protection of newly articulated liberty interests and newly recognized human rights. On the other hand, the Court
has not indicated that they will find somewhere else to ground human rights in our Constitution. This Note has
offered the Court a logical locale, in the Privilege or Immunities Clause of the Fourteenth Amendment, and a
logical methodology, under the rubric of incorporating principles of jus cogens, to continue the constitutional
work of protecting our self-evident and inalienable human rights.
1058
John Donne, Meditation No. 17, in DEVOTIONS UPON EMERGENT OCCASIONS 86-87 (A. Raspa ed., 1987) quoted in
Glucksberg v. Washington, 521 U.S. 702, 117 S. Ct. 2302, 2305 n.8 (1997) (Stevens, J., concurring).
1059
See Bowers v. Hardwick, 478 U.S. 186, 92 L. Ed.2d 140 (1986) (Due Process Clause of the Fourteenth Amendment does
not protect consensual homosexual sodomy even within the privacy of home).
1060
Glucksberg, 138 L. Ed.2d. at 772.
1061
Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 111 L. Ed.2d 224 (1990) (assuming, for purposes of
argument, that a liberty interest would exist in a mentally competent patient to refuse unwanted medical treatment; the patient
on behalf of whom Cruzan was brought was in a coma).
517
EXHIBIT 16 – UNITED STATES V. HOLLIS WAYNE FINCHER, 8TH CIRCUIT
EXHIBIT 16. United States v. Hollis Wayne Fincher, 8th Circuit

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-2514
No. 07-2888
___________
United States of America, *

Appellee, *
* Appeals from the United States
v. * District Court for the
* Western District of Arkansas.
Hollis Wayne Fincher, *
Appellant. *
___________
Submitted: March 10, 2008

Filed: August 13, 2008
___________
Before WOLLMAN, BOWMAN, and MELLOY, Circuit Judges.

___________
WOLLMAN, Circuit Judge.
Hollis Wayne Fincher was convicted by a jury on one count of possession of a machine gun, in
violation of 18 U.S.C. §§ 922(o), 924(a)(2), and one count of possession of an unregistered sawed-off
shotgun, in violation of 26 U.S.C. §§ 5841, 5861(d), and 5871. Fincher does not dispute that he possessed
these guns or that he did so without a license. He appeals his conviction, however, arguing that he has the
right to possess these weapons under the Second Amendment of the United States Constitution because
his possession has some reasonable relationship to the maintenance of a well regulated militia. Fincher
also challenges the district court’s determination that he is not eligible for court appointed counsel and
challenges the [-2-] district court’s request to resentence him. We affirm the conviction and remand the
issue of Fincher’s eligibility for court appointed counsel to the district court for further inquiry.
I. Second Amendment
A. Background
Before Fincher’s trial began, the government became aware of Fincher’s intention to argue to the
jury that his possession of guns was protected under the Second Amendment. Because that issue is a
matter of law, the government filed a motion in limine asking the district court to prevent Fincher from
arguing matters of law to the jury. After hearing oral argument on the motion, the district court granted
the motion in part and denied it in part. In doing so, the district court stated that matters of law are
“quintessentially within the province of the judge and not matters to be addressed to the jury.”
Nevertheless, the district court stated that it would allow Fincher to present evidence outside the presence
of the jury that under United States v. Miller, 307 U.S. 174 (1939), and United States v. Hale, 978 F.2d
1016 (8th Cir. 1992), his possession of the guns was reasonably related to a well regulated militia.
518 WAYNE FINCHER, 8TH CIRCUIT

EXHIBIT 16 – UNITED STATES V. HOLLIS
At the close of the government’s case, Fincher moved for judgment of acquittal. The district court denied
the motion, stating that it was based on an attack on the law and not the evidence, and that under Hale,
978 F.2d 1016, the fact that a particular weapon may be susceptible to military use does not by itself
establish a Second Amendment right to possess the weapon.
During his case-in-chief, Fincher presented his own testimony, which the district court heard in
camera. Fincher testified that he possessed the guns as part of his membership in the Washington County
Militia (“WCM”), an organization he helped found in 1994. He testified that the purpose of the WCM is
to ensure the [-3-] militia can operate as effectively militarily as possible in a time of state emergency and
that the WCM has regular meetings and training sessions for its members. Fincher testified that between
seven and nine individuals attend any given meeting of the WCM, though it is not always the same
individuals in attendance. The WCM does not maintain a roster of its members or an inventory of
weapons.
The WCM is not a secret organization. In fact, along with the other members of the WCM,
Fincher wrote and sent letters to federal agencies via certified mail informing them of the WCM’s
existence and attempting to put them on notice that the WCM was lawful under state law. Fincher also
sent at least one letter to the governor of Arkansas, informing him about the WCM, seeking approval, and
stating that the governor’s failure to object to the WCM’s declaration would provide affirmation that the
state of Arkansas did not object to the WCM. Fincher denied receiving a letter from the governor stating
that the state records did not contain any reference to the WCM and that no such organization was
registered with, or sanctioned by, the office of the governor or the state of Arkansas.
In addition to sending written notice of the WCM to various governmental offices, Fincher
invited local sheriffs to view the WCM facilities and weapons. Fincher also told state officials that the
WCM possessed machine guns, which the public could observe at any one of the three annual picnics
sponsored by the WCM, and he showed the machine guns to at least one sheriff. Fincher also testified
about how the weapons used by the WCM were chosen and stored, some at the WCM facility and others
at the individual members’ residences.
When asked about the procedures for activating the WCM in the case of an emergency, Fincher
stated that if an emergency occurred while he was the commander of the WCM, he would contact “the
sheriff if – if I was able, you know, depending on the emergency, or the governor, or probably any other –
or maybe the mayor of a city or any – anyone or no one. If there was an emergency that had to be taken
care of, we [-4-] have the right to preserve life, liberty, and pursuit of happiness. We have the duty to.
You don’t stand around and wait for someone to tell you you can protect your life or perform emergency
medical assistance or put out a fire. These are natural offices of the people.” He also testified that the state
could call up the militia at any point, and that even though the written notices that WCM sent to various
governmental offices did not contain any phone numbers or other direct contact information, the governor
would know how to contact them.
The district court ruled that Fincher’s proffered testimony would not be admitted because the
WCM, despite its attempts to receive state recognition, was an unorganized and unregulated militia and
therefore, as a matter of law, did not fall within the auspices of the Second Amendment. The district court
also noted that even if the WCM was a state-sponsored or state-connected militia, there was no evidence
that the person in charge of that militia would determine that possession of machine guns or sawed-off
shotguns was necessary to the preservation of a well regulated militia.
B. Discussion
Fincher asserts that the district court erred by not allowing the jury to determine whether his
possession of firearms was reasonably related to a well regulated militia and therefore protected by the
Second Amendment. We review a district court’s grant of a motion in limine for abuse of discretion,

Robinson v. Potter, 453 F.3d 990, 995 (8th Cir. 2006), and we accord it great deference on evidentiary
rulings such as the admissibility of proffered testimony, United States v. Wilson, 103 F.3d 1402, 1406
(8th Cir. 1997). We review de novo the district court’s legal conclusions, such as whether possession of
firearms in relation to membership in a non-state-sponsored militia is protected by the Second
Amendment. United States v. Lippman, 369 F.3d 1039, 1043 (8th Cir. 2004).
-5-
The role of the jury is to decide facts, not legal issues. United States v. Peck, 161 F.3d 1171, 1174
(8th Cir. 1998). Accordingly, the district court did not err in prohibiting Fincher from arguing or
presenting evidence regarding a question of law to the jury.
We turn to the question whether the district court erred by concluding that Fincher’s possession
of the guns did not fall within the protection of the Second Amendment. We conclude that the district
court’s determination that the WCM was not affiliated with the state militia and therefore not subject to
the protections of the Second Amendment under Miller and Hale is well supported by the record.
Fincher contends that our decision in Hale, 978 F.2d 1016, established an affirmative defense to
the charge of unlawful possession of firearms. In Hale, we stated that the possession of firearms is not
protected unless the possession bears a reasonable relationship to a well regulated militia. 978 F.2d at
1020; see also United States v. Pfeifer, 371 F.3d 430, 438 (8th Cir. 2004) (citing Hale); United States v.
Farrell, 69 F.3d 891, 894 (8th Cir. 1995) (same). Although the WCM is not a secretive organization and
has held relatively regular training sessions and meetings over the years, we stated in Hale that
“‘[t]echnical’ membership in a state militia (e.g., membership in an ‘unorganized’ state militia) or
membership in a non-governmental military organization is not sufficient to satisfy the ‘reasonable
relationship’ test.” Hale, 978 F.2d at 1020 (citing United States v. Oakes, 564 F.2d 384, 387 (10th Cir.
1977)). In Arkansas, the state militia is defined as:
(a) The militia shall be divided into two (2) parts: the organized, consisting of the active and
inactive Army National Guard and Air National Guard; and the unorganized, consisting of all those
persons of the militia not in the active or inactive Army National Guard or the Air National Guard.
(b) The militia shall consist of all able-bodied male residents of the state between the ages of
seventeen (17) and forty-five (45) years who are, or intend to become, citizens of the United States, unless
exempt by law, together with all other acceptable volunteers, waiving necessary requirements.
[-6-]
Ark. Code. Ann. § 12-61-101 (emphasis added). Thus, despite WCM’s attempts to contact the
governor’s office and become an organized state militia, the district court correctly concluded that
Fincher’s testimony, even if believed by the jury, would not support his Second Amendment argument
because Fincher is not a member of an organized state militia. Rather, Fincher’s testimony established
that the WCM was an “unorganized” militia because it is not the Army National Guard or the Air
National Guard and is not formally connected with the state of Arkansas. Therefore, under Hale,
Fincher’s possession of firearms is, as a matter of law, not reasonably related to a well regulated militia
and is thus not protected by the Second Amendment.
In reaching this conclusion, we have taken into account the Supreme Court’s recent decision in
District of Columbia v. Heller, 128 S. Ct. 2783 (2008),1062 in which the Court held that the District of
1062
At trial, Fincher’s Second Amendment argument focused on his claim of right to possess the guns because they
are military weapons and he is a member of the militia and not a claim of an individual right to possess a machine
gun or unregistered sawed-off shotgun. Nevertheless, we think it is clear that even if Fincher had made the latter
argument at trial, his possession of the guns is not protected under Heller.

Columbia’s complete prohibition on the possession of usable handguns in one’s home violated the
Second Amendment. Id. at 2817-18. In holding that the Second Amendment guarantees “the individual
right to possess and carry weapons in case of confrontation,” Id. at 2797,1063[FN2] the Court also stated
that the right to possess firearms is not beyond the reach of all government regulation. Id. at 2799, 2816
(“Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone
through the 19th-century cases, commentators and courts [-7-] routinely explained that the right was not
a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”).
In discussing the limitations the government can place on an individual’s right to possess
firearms, the Court noted that Miller does not protect “weapons not typically possessed by law-abiding
citizens for lawful purposes, such as short-barreled shotguns.” Heller, 128 S. Ct. at 2815-16. The Court
also articulated a nonexclusive list of what it viewed to be acceptable government regulation of firearms:
[T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying
concealed weapons were lawful under the Second Amendment or state analogues. Although we do not
undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in
our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by
felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools
and government buildings, or laws imposing conditions and qualifications on the commercial sale of
arms. We also recognize another important limitation on the right to keep and carry arms. Miller said, as
we have explained, that the sorts of weapons protected were those “in common use at the time.” We think
that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and
unusual weapons.”
Id. at 2816-17 (internal citations and footnote omitted).
Accordingly, under Heller, Fincher’s possession of the guns is not protected by the Second
Amendment. Machine guns are not in common use by law-abiding citizens for lawful purposes and
therefore fall within the category of dangerous and unusual weapons that the government can prohibit for
individual use. Furthermore, Fincher has not directly attacked the federal registration requirements on
firearms, and we doubt that any such attack would succeed in light of Heller. Accordingly, because [-8-]
Fincher’s possession of guns is not protected by the Second Amendment, the district court did not abuse
its discretion in preventing him from arguing otherwise to the jury.
II. Court Appointed Counsel
A. Background
The circumstances surrounding Fincher’s court appointed counsel are fully recited in the district
court’s order, United States v. Fincher, No. 06-50064-001, 2007 WL 2177062 (W.D. Ark. July 27, 2007),
and are largely undisputed by Fincher. For the purpose of our analysis, we will highlight the main facts.
Fincher was arrested on November 9, 2006, for violating 18 U.S.C. § 922(o). When he made his
initial appearance later that day, he requested the appointment of an attorney because of his financial
inability to retain counsel. He executed a “Financial Affidavit In Support of Request For Attorney or
Other Court Services Without Payment Of Fee” (“the financial affidavit”), which indicated that he had no
personal income, that his wife made $10.50 an hour, that he had $2,000 in savings, that he owned two
vehicles of unknown value, one on which he was still making payments, and that he owned his home and
120 acres of real estate in Fayetteville, Arkansas, which had unknown value. Based upon that
information, the district court appointed counsel to represent Fincher pursuant to the Criminal Justice Act.
1063
We note that the Supreme Court did not address the question whether the Second Amendment is incorporated
through the Fourteenth Amendment and thus applicable to the states.

On December 13, 2006, Fincher’s appointed counsel withdrew because Fincher had retained
other counsel. Thereafter, Fincher was convicted on both counts charged in the indictment. On March 8,
2007, Fincher informed the district court that he no longer had counsel and requested that counsel be
appointed for him, which was done.
Before Fincher was sentenced, he executed a quitclaim deed conveying the 120 acres of real
estate to his daughters in exchange for consideration of “One dollar [-9-] ($1.00) and other good and
valuable consideration,” and reserving a life estate in the property for himself and his wife. Thereafter, the
district court imposed concurrent sentences of 78 months’ imprisonment on each count. Fincher was also
subject to a fine of up to $250,000. Although the guidelines range called for a fine of between $12,500
and $125,000, the district court imposed a fine of only $1,000 under the belief that Fincher had no
significant assets.
After sentencing, Fincher requested release on bond pending appeal. The district court conducted
a hearing on the matter and agreed that Fincher could be released on $100,000 bond. Fincher indicated
that he could not post bond in that amount. The district court noted that Fincher might be able to use his
real estate to secure the bond, whereupon Fincher’s daughters executed a mortgage for that purpose.
As a result, the district court became aware that Fincher’s property had significant value, and that
Fincher had conveyed it to his daughters. As a result of these circumstances, on July 3, 2007, the district
court held an evidentiary hearing to determine Fincher’s financial eligibility for court appointed counsel.
The district court received testimony from Fincher, his wife, and his two daughters. The district court also
requested that Fincher provide supporting documents, such as his contract with retained counsel and the
deed transferring the real estate. In addition, the district court ordered an independent appraisal of the
property, which estimated that it had a value of $455,000.
On July 27, 2007, the district court entered an order stating that Fincher “is not now, nor has he
ever been at any time material to this proceeding, financially unable to obtain counsel to represent him in
this proceeding and that appointments of counsel for him were improvidently made.” Fincher, 2007 WL
2177062, at *10. Accordingly, the district court ordered Fincher to reimburse the United States Treasury
$8,357.55 for the legal services provided to him by the attorneys appointed under the Criminal Justice
Act. Id.
[-10-]
B. Discussion
Fincher asserts that the district court’s July 27, 2007, order revoking his eligibility for court
appointed counsel should be reversed because he did not misrepresent the value of his real estate when he
stated that the value was unknown. He also challenges the appraised value of the property and the district
court’s conclusion that he owns the property free and clear. Fincher asserts that he was subjectively
unaware of the value of the property when he filled out the affidavit, that the property is not worth nearly
as much as the appraised value because it is landlocked, and that he owned it as a joint tenant with his
wife. Fincher further contends that the transfer of the property to his daughters was legitimate because he
informed the Assistant United States Attorney who was working on the case about the transfer.
The Criminal Justice Act provides a framework for ensuring that individuals who are financially
unable to afford defense counsel are provided counsel as required by the Sixth Amendment. United States
v. Brockman, 183 F.3d 891, 897 (8th Cir. 1999). The Act requires that each United States district court
create “a plan for furnishing representation for any person financially unable to obtain adequate
representation . . . .” 18 U.S.C. § 3006A(a). A person is eligible for court appointed counsel if, after the
United States magistrate judge or court conducts an “appropriate inquiry,” the court is satisfied that “the
person is financially unable to obtain counsel.” 18 U.S.C. § 3006A(b). Financial inability to obtain

counsel is not the same as being indigent or destitute, but the defendant has the burden of establishing that
he or she is financially unable to obtain counsel. Brockman, 183 F.3d at 897; Museitef v. United States,
131 F.3d 714, 716 (8th Cir. 1997). “If at any time after the appointment of counsel the United States
magistrate judge or the court finds that the person is financially able to obtain counsel or to make partial
payment for the representation, it may terminate the appointment of counsel or authorize payment as
provided in subsection (f), as the interests of justice may dictate.” 18 U.S.C. § 3006A(c)); see also [-11-]
18 U.S.C. § 3006A(f) (“Whenever the United States magistrate judge or the court finds that funds are
available for payment from or on behalf of a person furnished representation, it may authorize or direct
that such funds be paid . . . .”); Museitef, 131 F.3d at 715.
Thus, our review of the district court’s determination of financial eligibility for court appointed
counsel is a three-step process. See United States v. Parker, 439 F.3d 81, 92 (2d Cir. 2006) (reviewing
district court’s mid-case appointment of counsel). We must ask, (1) whether the district court conducted
an “appropriate inquiry” into the defendant’s financial eligibility, (2) whether the district court correctly
determined the defendant’s financial eligibility, and (3) whether the district court erred when it weighed
the “interests of justice.” Id. at 92-93. Because we ultimately remand this issue to the district court for
further review, we reach only the first of these three questions.
To determine a defendant’s financial eligibility, the district court should make a “full inquiry”
into the defendant’s actual ability to retain counsel. Museitef, 131 F.3d at 716. A full-scale adversarial
hearing is not required, however, before a district court may order repayment of attorney’s fees under the
Criminal Justice Act. United States v. Vale, 140 Fed. Appx. 302, 303 (2d Cir. 2005) (unpublished
opinion) (citing United States v. Crosby, 602 F.2d 24, 28 (2d Cir. 1979)); see also Parker, 439 F.3d at 93
(“The task necessarily varies with the circumstances presented, and no one method or combination of
methods is required.” (internal quotation omitted)). We review de novo the adequacy of the district
court’s inquiry. Parker, 439 F.3d at 93 n.12.
In this case, the district court’s initial inquiry was based upon the financial affidavit submitted by
Fincher. See id. at 93 (noting that in some cases the court’s inquiry may be limited to the defendant’s
statements on the financial affidavit). Based upon the limited information available at that time, the
district court did not err in appointing counsel for Fincher. Brockman, 183 F.3d at 897 (any doubt about
the [-12-] defendant’s eligibility for court appointed counsel should be resolved in the defendant’s favor);
United States v. Cohen, 419 F.2d 1124, 1127 (8th Cir. 1969) (district court’s determination that defendant
was ineligible for court appointed counsel based upon the ownership of real estate with an unknown value
and without a more searching inquiry was error).
Although a district court should investigate information contained in an affidavit when the
information provided renders the defendant’s eligibility questionable, the district court’s initial
determination of eligibility can be amended when new information comes to light. See In re Boston
Herald, Inc., 321 F.3d 174, 179 (1st Cir. 2003) (erroneous eligibility determinations can be corrected at a
later time). In this case, the district court became aware of the fact that Fincher’s property had significant
value when it was mortgaged to secure Fincher’s $100,000 bond and Fincher testified that he knew that
property in the same area had recently sold for between $2,000 and $4,000 an acre. This new information
was sufficient to warrant a reexamination of Fincher’s eligibility.1064
1064
In its July 27, 2007, order, the district court noted that it should have conducted a investigation beyond
Fincher’s financial affidavit before it initially appointed him counsel. Fincher, 2007 WL 2177062, at *7.
Nevertheless, the district court reasoned that the defendant has the burden of establishing financial eligibility for
court appointed counsel and that Fincher did not meet this burden and in fact misrepresented his financial eligibility
by listing the 120 acres as having an unknown value when, in fact, he knew that real estate in the same area had
recently sold for between $2,000 and $4,000 an acre. See id. (citing United States v. Lefkowitz, 125 F.3d 608 (8th

Fincher argues that the district court erred in determining that he was not eligible for court
appointed counsel because the district court did not take into consideration the fact that the property is
landlocked and therefore is not as valuable as the appraisal indicates. Fincher testified at the hearing,
however, that the property is located one mile off a public road and that there is an unpaved road that goes
[-13-] directly to the property. Fincher also informed the district court that the property has a right-of-way
that, although not currently used, is attached to ownership of the property. Furthermore, it is undisputed
that Fincher and his wife currently reside on the property, suggesting that the property is not in fact
inaccessible. The appraisal acknowledges that any ingress and egress to the property would need to be
improved, as the current road is not paved. Accordingly, we conclude that the district court did not err in
accepting as accurate the appraiser’s opinion that the property had a value of $455,000, which falls within
Fincher’s estimate that the property is worth between $2,000 and $4,000 an acre.
Fincher argues for the first time on appeal that because he owned the property as a joint tenant
with his wife, he did not own it free and clear, and that the district court therefore erred by concluding
otherwise. This late-raised assertion is directly contradicted, however, by the testimony of Fincher’s
daughter, who testified that Fincher’s name is the sole one on the title. Furthermore, Fincher’s wife
testified that she did not know if she had ever been deeded any portion of the property. Although the quit
claim deed that transferred the property to Fincher’s daughters in early 2007 recites that Fincher and his
wife each owned an undivided one-half interest in the property as tenants in common, there is no evidence
in the record that Fincher and his wife owned the property as joint tenants. Accordingly, the district court
did not err when it found that Fincher owned the property free and clear because Fincher has not
established that there are any mortgages or liens on the property.
Regarding Fincher’s transfer of the property to his daughters via quit claim deed, we conclude
that Fincher’s letter to the Assistant United States Attorney regarding the transfer of the property does not
insulate the transfer from later question. Testimony at the evidentiary hearing from Fincher, his wife, and
his two daughters, as well as the letter sent to the AUSA, all indicate that the property was transferred
after Fincher’s conviction to avoid the possibility of the property being sold to pay any fine imposed by
the district court as part of Fincher’s sentence. Accordingly, the [-14-] district court did not err in
concluding that the attempted transfer of the property should be considered when determining Fincher’s
eligibility for court appointed counsel.
Despite these conclusions and the fact that the district court conducted a more thorough inquiry
into Fincher’s eligibility in July 2007 than it did initially, the district court’s analysis leaves factual
questions unanswered. Thus, we remand this issue to the district court for further consideration of
whether Fincher’s wife has any ownership in the property and, if so, whether that affects Fincher’s
ownership of the property or the application of the Arkansas Homestead Exemption. Specifically, the
district court must consider whether the entire 120 acres of real estate is protected by the Homestead
Exemption, making Fincher eligible for court appointed counsel despite his ownership of the property, or
whether the exemption protects only a portion of the real estate. See Ark. Code Ann. § 16-66-210; see
also United States v. Trevino, 679 F.Supp. 636, 636 (S.D. Tex. 1987) (doubting that defendants should
have to sell their homestead to appeal criminal conviction); Perry v. Chief of Police of City of Marianna,
Ark., 660 F.Supp. 1546, 1552 (E.D. Ark. 1987) (in determining indigency, defendant should not be
required to sell his inexpensive car or his home).1065 Additionally, the district court should consider
Cir. 1997)).
1065
Generally, cases in which a defendant’s ineligibility for court appointed counsel has been affirmed are based
upon the defendant’s income and cash flow, not a requirement that the defendant sell his homestead to facilitate the
payment of defense costs. See, e.g., Lefkowitz, 125 F.3d at 621 (defendant had recently spent several hundred
thousand dollars on other attorney’s fees and personal expenses and district court found defendant’s own testimony

whether Fincher has the current ability [-15-] to reimburse the United States Treasury for the legal
services he received in light of the transfer of the real estate to Fincher’s daughters.
III. IFP Status on Appeal
We turn next to Fincher’s request for in forma pauperis (“IFP”) status on appeal. Because we
remand to the district court for further review the issue of Fincher’s eligibility for court appointed
counsel, we do not reach this issue. Nevertheless, Fincher’s IFP status on appeal is dependent upon his
eligibility for court appointed counsel at the trial level. If the district court concludes that Fincher is
eligible for court appointed counsel and therefore should not be required to reimburse the cost of the legal
services he received, and Fincher’s financial circumstances do not change between the time of the district
court and the appellate court proceedings, he should be granted IFP status on appeal. See United States v.
Danielson, 325 F.3d 1054, 1077 (9th Cir. 2003) (court appointed counsel continues on appeal unless
defendant’s financial situation changes and he or she is no longer financially eligible).
IV. Sentencing
On the basis of its conclusion that Fincher misrepresented his financial eligibility for court
appointed counsel, the district court seeks a remand for resentencing. In light of our conclusion that the
district court must conduct a more searching inquiry into Fincher’s eligibility for court appointed counsel,
we decline the request for remand. Moreover, it is questionable whether we have jurisdiction to remand in
the absence of an appeal or cross-appeal from the government, or whether the district court has
jurisdiction to resentence a defendant in the absence of statutory authority to do so. See Greenlaw v.
United States, No. 07-330, 2008 WL 2484861 (U.S. June 23, 2008) (holding that a circuit court cannot
increase a defendant’s sentence without a government appeal or cross-appeal); United States v. Ross, 245
F.3d 577, 585-86 (6th Cir. 2001) (district court may not resentence defendant without [-16-] statutory
authority); see also United States v. Sadler, 234 F.3d 368, 373-74 (8th Cir. 2000) (a district court’s
“change of heart as to the appropriateness of the sentence, rather than a correction in the application of the
guidelines,” is not the type of “clear error” that can be corrected under Rule 35(c) (internal quotation and
citation omitted)); cf. United States v. Fortino, No. 07-3476, 2008 WL 2388893 (8th Cir. June 13, 2008)
(per curiam).
V. Conclusion
The conviction is affirmed. The order directing Fincher to reimburse the United States Treasury
$8,357.55 for the legal services he received pursuant to the Criminal Justice Act is vacated and the case is
remanded the district court for further proceedings consistent with the views set forth in this opinion.
______________________________
of indigence to be lacking credibility); United States v. Harris, 707 F.2d 653, 661 (2d Cir. 1983) (district court found
that defendant had “substantial income” in the past two years and might have had other undisclosed income); United
States v. Wetzel, 488 F.2d 153, 157 (8th Cir. 1973) (affirming reimbursement order (for about $350) because
defendant received $19,000 for the sale of cattle and owned real estate (the opinion provides no indication that the
real estate was defendant’s homestead)).

EXHIBIT 17 – HELLER’S FUTURE IN THE LOWER COURTS
EXHIBIT 17. Heller’s Future in the Lower Courts
HELLER’S FUTURE IN THE LOWER COURTS

Glenn H. Reynolds
Beauchamp Brogan Distinguished Professor of Law, University of Tennessee.
Brannon P. Denning
Professor of Law and Director of Faculty Development, Cumberland School of Law, Samford University.
102 Northwestern University Law Review Colloquy 406 (2008)
The Supreme Court has released its long-awaited opinion in District of Columbia v. Heller,1066 and the
buzz has been considerable. Though much has been made of the majority’s historic ruling and of the narrowness
of that majority, many commentators have missed an important point. What Heller is most notable for is its
complete and unanimous rejection of the “collective rights” interpretation that for nearly seventy years held sway
with pundits, academics, and—most significantly—lower courts.
The repudiation of this extensive body of case law1067 suggests that the real test of Heller will occur once
the lower courts, traditionally hostile to an individual rights interpretation of the Second Amendment, face the
inevitable follow-up cases challenging other restrictive gun laws. Experience with other seemingly
groundbreaking Supreme Court decisions in recent years, such as United States v. Lopez, suggests that lower-
court foot-dragging may limit Heller’s reach, though this time around there will likely be considerably more
scrutiny and more vigorous litigation efforts. If the lower courts present a challenge to the implementation of
Heller, they also provide litigants with an opportunity. Given the fact that the Heller majority declined to give a
detailed accounting of the proper standard of review to be used in subsequent Second Amendment cases, litigants
have a rare opportunity to write on a tabula much more rasa than is ordinarily the case in constitutional litigation,
making use of recent scholarship on the crafting of constitutional decision rules that implement constitutional
provisions.
In the pages that follow, we take a look at these aspects of Heller. The triumph of the Standard Model of
the Second Amendment is examined in Part I. Part II asks whether Heller is merely the opening volley in the
coming judicialization of the gun control debate, or whether like the Court’s attempt to rein in congressional
power under the Commerce Clause, Heller will ultimately be seen as largely symbolic. Finally, in Part III, we
discuss the possibility that recent scholarship on constitutional doctrine might play a role in separating permissible
from impermissible gun controls post-Heller.
1066
No. 07-290, slip op. (U.S. June 26, 2008).
1067
See Brannon P. Denning, Can the Simple Cite Be Trusted?: Lower Court Interpretations of United States v. Miller and
the Second Amendment, 26 CUMB. L. REV. 961 (1996) (criticizing the case law cit-ing United States v. Miller as authority
for rejecting an individual rights interpretation).
EXHIBIT 17 – HELLER’S FUTURE526

IN THE LOWER COURTS
I.
INDIVIDUAL AND COLLECTIVE RIGHTS
Pre-Heller discussions of the Second Amendment noted the conflict between an individual rights model
in which the Amendment confers a right to arms on individual citizens, who are entitled to use the courts to resist
infringements in the same fashion as other constitutional rights such as free speech or privacy, and a collective
rights model in which they are not. Under the formulation of this individual right arrived at by a large number of
Second Amendment scholars (often referred to as the “Standard Model” of Second Amendment individual rights
interpretation), the right is not absolute, but is extensive: “[t]he purpose of the right to bear arms is twofold: to
allow individuals to protect themselves and their families, and to ensure a body of armed citizenry from which a
militia could be drawn, whether that militia’s role was to protect the nation or to protect the people from a
tyrannical government.”1068
Set against this individual rights view was the so-called collective rights interpretation, under which the
Second Amendment protects only the right of states to maintain an organized militia (often characterized as the
modern-day National Guard) and gives rise to no judicially enforceable right to bear arms on the part of
individuals. This theory characterized virtually all writing on the subject from the federal courts of appeals after
1069
the Supreme Court’s 1939 opinion in United States v. Miller, though the Miller opinion itself did not adopt a
1070
collective rights approach. Under the collective rights theory, the Second Amendment, if it were susceptible
to judicial enforcement at all, could only be invoked by a state government whose state militia was impaired by
federal action. Individuals, even those claiming membership in a state’s “unorganized” militia, could not
1071
challenge federal gun laws.
Shortly after Miller was decided, federal courts of appeals began to overread it and to cite it for the
proposition that only arms borne with the intent of participating in or contributing to the efficacy of a militia were
protected. 1072 These courts essentially equated the Miller Court’s refusal to hold that a sawed-off shotgun was
protected by the Second Amendment with a refusal to recognize any individual right under the Amendment that
1068
Glenn Harlan Reynolds, A CRITICAL GUIDE TO THE SECOND AMENDMENT, 62 Tenn. L. Rev. 461, 475 (1995), vailable at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=960788 (link).
1069
4 307 U.S. 174 (1939); see, e.g., Cases v. United States, 131 F.2d 916, 923 (1st Cir. 1942) (stating that the Second
Amendment was designed to foster “the efficiency of the well regulated militia . . . as necessary to the security of a free
state”); United States v. Tot, 131 F.2d 261, 266 (3d Cir. 1942) (stating that the Second Amendment “was not adopted with
individual rights in mind”).
1070
See Brannon P. Denning and Glenn H. Reynolds, Telling MILLER’S TALE: A REPLY TO DAVID YASSKY, 65 L. &
CONTEMP. PROBS. Spring 2002, at 113, available at
http://www.law.duke.edu/shell/cite.pl?65+Law+&+Contemp.+Probs.+113+(Spring+2002) (discussing holding in Miller in
light of briefs and arguments)
1071
“Unorganized” militia, by statute, designate able-bodied males within a certain age range as members. Unorganized
militia are contrasted with the “select” militia of a state, which correspond roughly to the state’s National Guard. See, e.g., 10
U.S.C. § 311 (2000) (classifying the able-bodied male population aged 17–45 as the unorganized militia of the United States)
(link). State rules are simi-lar, except that many states include women. See, e.g., Kan. Stat. Ann. § 48-904(e) (1983)
(“‗[U]norganized militia’ means all able-bodied male and female persons between the ages of 16 and 50 years.”); Ohio
Const. art. IX, § 1 (1994) (authorizes “all citizens” to serve); Or. Rev. Stat. § 396.105(3) (1994) (“The unorganized militia
shall consist of all able-bodied residents of the state between the ages of 18 and 45 who are not serving in any force of the
organized militia or who are not on the state retired list and who are or who have declared their intention to become citizens
of the United States; subject, however, to such exemptions from military duty as are created by the laws of the United
States.”).
1072
See Denning, supra note 2, at 981–87 (discussing early cases applying Miller).
EXHIBIT 17 – HELLER’S527
FUTURE IN THE LOWER COURTS
was not, first and foremost, concerned with the maintenance of an organized and government-regulated military
body.1073
Subsequent courts went further, stating that Miller held that the Second Amendment did not guarantee an
individual right.10749 Reading those opinions closely, however, it is clear that many simply relied on what other
courts had said about Miller, and some judicial characterizations of Miller’s facts are so inaccurate that it is
difficult to believe that the judge writing the opinion could have actually read the Miller decision itself.1075
Lower court discussions of Miller resembled a game of judicial Telephone, with the actual holding of Miller
becoming less and less recognizable as the years progressed. Prior to Heller, only the Fifth Circuit in United
States v. Emerson1076 held that the Second Amendment creates an individual right, although it found the right
was not violated by the facts at hand.
II.
THE LOWER COURTS AND THE HELLER DECISION
It is impossible to review the Second Amendment jurisprudence from the federal courts of appeals
(excepting only Parker v. District of Columbia,107712 the lower-court version of Heller, and United States v.
Emerson) without noting two things: a significant hostility toward individual rights arguments, and a surprisingly
deep investment in their own case law, despite its rather tenuous anchor in the Supreme Court’s decisions. This
raises the question: what will they do when presented with gun-rights cases post-Heller?
There is some reason to expect that the answer will be “not much.” The last constitutional revolution led
by the Supreme Court—via its Lopez and Morrison1078 decisions limiting Congressional power—essentially
petered out in the face of lower-court resistance.1079 In light of Gonzales v. Raich,1080 which upheld the
application of federal drug control laws to local, non-commercial, medical marijuana, lower court reluctance to
read Lopez and Morrison looked prescient. Will that happen again with the Second Amendment?
1073
See, e.g., Cases, 131 F.2d at 923; Tot, 131 F.2d at 266; Denning, supra note 2, at 981–87 (discuss-ing Cases and Tot). But
see District of Columbia v. Heller, No. 07-290, slip op. at 49–50 (U.S. June 26, 2008) (“It is entirely clear that the [Miller]
Court’s basis for saying that the Second Amendment did not apply was not that the defendants were ‘bear[ing] arms’ not ‘for
. . . military purposes’ but for ‘nonmili-tary use’ . . . . Rather, it was that the type of weapon at issue was not eligible for
Second Amendment protection . . . . Beyond that, the opinion provided no explanation of the content of the right.”).
1074
See Denning, supra note 2, at 988–98 (discussing lower court cases).
1075
See id. at 997–98 (discussing Hickman v. Block, 81 F.3d 98 (9th Cir. 1996)).
1076
270 F.3d 203 (5th Cir. 2001).
1077
478 F.3d 370, 395 (D.C. Cir. 2007) (concluding “that the Second Amendment protects an individual right to keep and
bear arms”), aff’d sub nom. District of Columbia v. Heller, No. 07-290 (June 29, 2008).
1078
United States v. Morrison, 529 U.S. 598 (2000) (invalidating the civil-suit provision of the VIOLENCE AGAINST WOMEN
ACT as beyond Congress’s commerce power).
1079
HELD A CONSTITUTIONAL REVOLUTION AND NOBODY CAME? 2000 WIS. L. REV. 369 (2000) [hereinafter Reynolds & Denning,
Constitutional Revolution]; Brannon P. Denning & Glenn H. Reynolds, RULINGS AND RESISTANCE: THE NEW COMMERCE
CLAUSE JURISPRUDENCE ENCOUNTERS THE LOWER COURTS, 55 Ark. L. Rev. 1253 (2003) [hereinafter Denning & Reynolds,
Rulings and Resistance] (discussing lower court cases following Morrison).
1080
possessed for local, medicinal use under state law).

IN THE LOWER COURTS
Congress’s enumerated power to regulate commerce among the several states. In the years following Lopez,
hundreds of cases flooded the lower courts, most brought by defendants convicted of violating various federal
criminal statutes, claiming that those laws also exceeded Congress’s commerce power.1081 In the five years after
Lopez, however, only one law—the civil suit provision eventually invalidated in Morrison—was struck down by a
1082
federal appellate court. Even after Morrison, when the Court not only reaffirmed Lopez but seemed to add,
“and we mean it,” courts were still reluctant to rigorously analyze federal statutes using the Lopez-Morrison
framework. Though before Raich signaled a retreat, lower courts were beginning to uphold as-applied challenges
to particular federal statutes.1083 Will Heller suffer Lopez’s fate, serving more as casebook fodder than as actual
authority? On the surface, there are some analogies between the Commerce Clause and the Second Amendment
that suggest that, like Lopez, Heller itself may end up as so much sound and fury, signifying nothing—or at least
nothing much.
First, there are the institutional prejudices of the courts of appeals, favoring the status quo and possessing
a desk-clearing mentality. Like the bureaucrats they increasingly resemble, the members of the appellate judiciary
do not like to rock the boat. In addition, the courts of appeals have a history of more-or-less open hostility to
claims of a private right to arms. The vast majority of cases to date suggest that, to the extent they can, they will
try to rule against such a right. Second, as was true following Lopez, there are few federal firearms laws that are
vulnerable under Heller. Indeed, Justice Scalia’s opinion took some pains to make clear what the Court was not
calling into question:
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as
schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of
arms.1084 Indeed the very enumeration of “presumptively lawful regulatory measures” seemed calculated to
reduce expectations among, for example, felons convicted of possessing firearms in violation of federal law that
Heller represented a “Get Out of Jail Free” card.
Third, the Heller majority’s refusal to be pinned down on a specific standard of review might also leave
an opening for lower courts to confine Heller to its facts.1085 For example, a court might read Heller as standing
for the proposition that anything less than an absolute ban could pass muster. Even if a reviewing court adopts the
kind of intermediate standard of review urged by the Solicitor General,1086 it might simply apply the standard in a
way that defers to governmental judgments about the necessity of regulation. A more explicit articulation of the
standard to be employed could have discouraged lower court evasion of Heller, or at least made such evasion
1081
Several of these challenges are discussed in Reynolds & Denning, CONSTITUTIONAL REVOLUTION, supra note 14.
1082
v. Morrison, 529 U.S. 598 (2000).
1083
See Denning & Reynolds, RULINGS AND RESISTANCE, supra note 14 (describing these as-applied challenges).
1084
District of Columbia v. Heller, No. 07-290, slip op. at 54–55 (U.S. June 26, 2008) (link). A footnote added, for good
measure, that the Court’s list of “these presumptively lawful regulatory measures . . . does not purport to be exhaustive.” Id.
at 55 n.26.
1085
1086
content/uploads/2008/01/us-heller-brief-1-11-08.pdf (link).
somewhat easier to detect, if the Court was inclined to monitor lower courts for compliance, something that it did
not do following Lopez.1087
Fourth, because the majority preemptively (perhaps “peremptorily” is a better word) signaled its view that
a number of federal gun control laws would not be called into question by Heller, 1088 the most promising
targets—local gun bans similar to the District’s and restrictive state gun laws—lie beyond the immediate scope of
Heller because the Second Amendment remains outside those provisions of the Bill of Rights that have been
incorporated through the Fourteenth Amendment and applied to states.1089 Thus, the true test of Heller’s reach
will turn on whether the Court will be willing to entertain one of the proliferating number of cases challenging
these laws. 1090 If the Court does not, then, like Lopez, Heller may end up having all the robustness of a “but see”
cite. 1091
On the other hand, there are several important differences that ought not be overlooked between the
situation following Lopez and that likely to follow Heller. Perhaps most important is the fact that there was
virtually no coordinated follow-up litigation to Lopez on the part of the public interest bar. Most of the litigation
was opportunistic: Lopez was cited in just about every appeal on behalf of those convicted of federal criminal
offenses, who, as a group, rarely present the most sympathetic face. By contrast, several lawsuits were filed
challenging gun control laws in other communities within hours of the Heller opinion’s publication.1092 Given
the stakes, interest groups challenging local laws have greater incentive than individual criminal defense attorneys
to ensure that only the best cases with the cleanest facts are brought.
Moreover, there was relatively little public interest in Lopez or the Commerce Clause. The Second
Amendment, on the other hand, is among the most significant provisions of the Bill of Rights from the standpoint
of public engagement.1093 The public interest groups sponsoring follow-up litigation will have every incentive to
publicize lower court attempts to evade or blunt the effect of Heller and can try to choose cert-worthy cases from
among those to be litigated. Given popular interest, the media and elected officials will have an incentive to
monitor lower court implementation of Heller. It is also possible that the lower courts’ hostility to an individual
right to arms was largely a product of the zeitgeist of an earlier era, carried forward as much by habit and stare
decisis as by any institutional interest. With the individual right theory of the Second Amendment now not only
1087
Whatever one thinks of the substance of his test or how well that test implements the right guaranteed by the Second
8–12 (Breyer, J., dissenting) (describing the “interest-balancing” approach he would employ in Second Amendment cases).
1088
See supra note 19 and accompanying text.
1089
United States v. Cruikshank, 92 U.S. 542 (1875) (refusing to apply the First and Second Amendments to the states) (link).
For Heller’s discussion of Cruikshank and its continued significance in light of the Court’s incorporation of most provisions
of the Bill of Rights to the states, see Heller, No. 07-290, slip op. at 47–49 & nn.22–23.
1090
1091
Cf. John Copeland Nagle, THE COMMERCE CLAUSE MEETS THE DELHI SANDS FLOWER-LOVING FLY, 97 Mich. L. Rev. 174,
176 (1998) (“Whether Lopez marks a dramatic shift in Commerce Clause jurisprudence or is instead destined to be a ‘but see’
citation remains to be seen.”).
1092
See, e.g., Maura Dolan, THE 2ND A MENDMENT: REACTION TO THE COURT RULING, L.A. TIMES, June 27, 2008, at A19,
available at http://www.latimes.com/news/nationworld/nation/la-na-legal27-2008jun27,0,3173451.story.
1093
See Jeffrey M. Jones, Public BELIEVES AMERICANS HAVE RIGHT TO OWN GUNS, Gallup, Mar. 27, 2008,
73%, believes the Second Amendment to the Constitution guarantees the rights of Americans to own guns.”).

IN THE LOWER COURTS
endorsed by the Supreme Court, but also, thanks to extensive scholarship, academically respectable (and, of
course, popular with a very large majority of citizens) it may be that today’s federal judiciary will be less hostile
to the right than past courts. A related point is that lower court judges may perceive the stakes differently in
Heller than they did in Lopez. Following Lopez to its logical conclusions suggested rethinking the foundations of
the modern New Deal state, if not mandating the unwinding of that state. At the very least, it presented an
opportunity for hundreds of criminal defendants to escape the consequences of their convictions. Neither was an
appealing option for even the most ardent advocate for limiting federal power, so judges strenuously resisted
following Lopez wherever it might lead—especially if it meant revisiting the constitutional legitimacy of statutes
like the 1964 Civil Rights Act. By contrast, even reading Heller for all that it is worth, it is clear that significant
regulations of private firearms ownership—including various licensing regimes—are not necessarily
presumptively unconstitutional.
Finally, despite the unanimity of the Court in its conclusion that the Second Amendment protected some
individual right, the alternative limiting implementations of that right were expressed as dissents, as opposed to
partial concurrences.1094 Thus, there are not any narrow concurring opinions whose authors essentially control the
outcome of future cases; the alternative approaches of the dissenters are, well, dissents. Imagine a situation,
though, in which Justice Breyer’s “interest-balancing” approach was a concurring opinion; lower courts seeking
to limit Heller might choose Justice Breyer’s standard of review in the absence of anything definite in the
In Lopez, for example, though the Court listed a number of factors bearing on whether a given local
activity “substantially affected” interstate commerce or not, the Court did not make clear whether all factors had
to be satisfied, or just some, or whether some factors were indispensible to a find ing that regulated activity had a
substantial effect on interstate commerce. In response, many lower court judges interpreted the opinion narrowly.
The presence of any factor distinguishing the statute under review from the Gun Free School Zones Act was
deemed sufficient to turn back the constitutional challenge.1096 Which set of forces will prevail? It’s impossible to
say for certain, so we’ll equivocate and say, “it depends.” Bureaucrats tend to take the path of least resistance, and
least controversy. Though some foot-dragging is likely, it’s equally likely that the kind of resistance demonstrated
in response to Lopez won’t manifest itself in response to Heller, as such resistance would likely produce far more
controversy.
1094
1095
Likewise, Justice Stevens’s primary dissent is, if anything, less clear than Justice Scalia’s majority opinion on the
1096
See Reynolds & Denning, CONSTITUTIONAL REVOLUTION, supra note 14, at 385–91 (discussing several such cases).
III.
HELLER AND DECISION RULES
Because of its reticence on the subject, Heller presents litigants with an opportunity to sell lower courts
on a standard of review largely unencumbered by binding precedent. Subsequent litigation, then, might be a good
test subject for examining the role that “decision rules” play in the “implementation” of constitutional rights.1097
Given the considerable discretion that courts have in fashioning rules to implement constitutional guarantees,1098
and the variety of doctrinal tests the Court has employed over the years to enforce various constitutional
provisions,1099 it is clear that older discussions framing the choice as between individual rights/strict scrutiny vs.
states’ or collective rights/rational basis embodied a false choice.
As scholars such as Adam Winkler, and the Solicitor General’s brief made clear, recognition of an
individual right does not doom all gun control regulations to constitutional oblivion.110035 Subsequent litigation
offers an opportunity for litigants to educate lower courts about the choices they have and offer the guidance the
Court declined to provide about crafting rules that implement the guarantee Heller recognized. Scholars, too, have
an opportunity to enter into the sort of dialogue with courts that both academics and judges agree is far too rare.
This will be especially true of cases involving state and local restrictions—laws whose constitutionality was not
squarely presented in Heller. Litigants ought to study and develop responses to Justice Breyer’s “interest-
balancing” standard of review. Likewise, those defending existing or proposed gun controls—especially those that
do not go as far as the District’s did—have another opportunity to argue against categorical rules and
presumptions of unconstitutionality. In truth, this is probably the debate that we should have been having all these
years: which regulations of private firearms are the “reasonable” ones that most people—including most of those
who support an individual rights reading of the Second Amendment—can support. At the very least, the Court’s
interring of the “collective rights” or “military purpose” interpretation of the Second Amendment has cleared the
way for that debate to begin.
CONCLUSION
Though the civics-book formulation provides that the Supreme Court establishes clear principles which
lower courts should conscientiously apply, reality is considerably more complex and frequently less satisfying.
Unfortunately, as many lawyers can attest, the Supreme Court often formulates principles that are not clear, and
sometimes it fails to establish principles at all. Lower courts, meanwhile, are not always conscientious in
following the Supreme Court’s lead, whether for reasons of bureaucratic rigidity or because they have their own
agendas. Given the Supreme Court’s light caseload, and the enormous number of cases in the lower courts, the
1097
What one of us has elsewhere called the “new doctrinalism” is concerned with judicial generation of rules that
implement or enforce constitutional meaning. See generally Brannon P. Denning, THE NEW DOCTRINALISM IN CONSTITUTIONAL
SCHOLARSHIP AND DISTRICT OF COLUMBIA V. HELLER, 75 Tenn. L. Rev. (forthcoming 2008); Kermit Roosevelt III, THE MYTH
OF JUDICIAL ACTIVISM 22–36 (2006); Mitchell N. Berman, CONSTITUTIONAL DECISION RULES, 90 Va. L. Rev. 1 (2004);
Richard H. Fallon, Jr., IMPLEMENTING THE CONSTITUTION 76–101 (2001).
1098
See, e.g., Roosevelt, supra note 32, at 23–36; Berman, supra note 32, at 92–100 (describing factors influencing choices of
decision rules).
1099
See Fallon, supra note 32 at 77–79 (listing “A Catalogue of Constitutional Tests”).
1100
See generally Adam Winkler, SCRUTINIZING THE SECOND AMENDMENT, 105 Mich. L. Rev. 683 (2007); BRIEF FOR THE
UNITED STATES AS AMICUS CURIAE, supra note 21. But see Glenn Harlan Reynolds, GUNS AND GAY SEX: SOME NOTES ON
FIREARMS, THE SECOND AMENDMENT, AND “REASONABLE REGULATION”, 75 Tenn. L. Rev. 137 (2007) (comparing “reasonable
regulation” in Second Amendment context to reasonable regulation in the context of the Supreme Court’s unenumerated
rights jurisprudence).

IN THE LOWER COURTS
path taken by the federal judiciary can diverge considerably from that established by the Supreme Court.1101 Will
Heller be such a case? As we have noted before, this depends—upon the behavior of litigants, upon the
predilections of lower court judges, and upon the degree and nature of scrutiny that the process receives. For us, at
least, it offers an opportunity to continue our study of how Supreme Court precedent influences lower courts in an
entirely new context, for which we are properly grateful.
1101
See Glenn Harlan Reynolds, Looking Ahead: October Term 2007, 2007 CATO SUP. CT. REV. 335, 350–52 (describing
the Supreme Court’s reduced influence on federal courts of appeals).
EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES
EXHIBIT 18. John Ross, Prohibition’s Ugly Legacy by John Ross, Unintended
Consequences
PROHIBITION’S UGLY LEGACY
John Ross
March 12, 1974
It is presented as a factual college term paper in economics, from
UNINTENDED CONSEQUENCES by John Ross, Pages 348-361.
Copyright © 1996 by Accurate Press. ISBN 1-888118-04-0. *
A year after the 1933 repeal of Prohibition, Congress passed the National Firearms Act of 1934 and
created a situation that was (and is) both unique and bizarre. The situation is unique because no other consumer
good or manufactured product in the entire country is treated under the law in the same way that National
Firearms Act firearms are treated. The situation is bizarre because under this law, two absolutely identical guns,
consecutively produced within one minute of each other by the same manufacturer on the same assembly line, can
fall into such drastically different legal categories that possession of one has the government’s blessing, while
possession of the other (even by the same person) merits a ten-year prison sentence. As if this were not unusual
enough, a 1968 amendment to the National Firearms Act now prohibits the owner of the “bad” weapon
(whichever of the two guns it may be) from placing himself in compliance with federal law.
The National Firearms Act introduced a huge distortion into the free market for all guns which fell under
its scope. The result is a three-tier pricing schedule in the market for firearms regulated by this obscure section of
the U.S. Code, as well as several legal questions which, to date, have not yet been resolved.
This paper addresses a distortion in the free market caused by government intervention. It is not intended
to be a political science treatise. However, in order to fully understand this distortion and “how we got here,”
some history is in order. This is an unfamiliar area to most people, and it is quite possible that without a thorough
explanation of the history behind the current law, the average person would refuse to believe our present situation.
HISTORY
The issue of owning militia-type arms to protect oneself and one’s freedoms was not controversial in the
early days of our country’s history. It was taken for granted. All citizens of this country had this basic right. Prior
to 1934, there were no federal laws regulating firearms ownership, 1102 and virtually no state laws, either. All
prohibitions (and attendant punishment) focused on violent criminal actions and not possession of inanimate
objects.
Two events changed this situation on a state level: The Emancipation Proclamation, and large-scale
immigration. Many lawmakers didn’t like the idea of foreigners and former slaves having the same rights as
whites. The especially disliked the idea of these “undesirables” being able to protect themselves and control their
own destinies.
Legislators didn’t want blacks being able to defend their freedoms, either at the voting booth, or by
having guns. Because the Second Amendment guaranteed the right to keep and bear arms, and the Fourteenth
Amendment guaranteed equal protection under the law, legislative creativity was required.
*
The author, John Ross, has affirmed that the PROHIBITION’S UGLY LEGACY is historically and academically factual and no
part of it is fiction.
1102
There was a law enacted in 1920 which prohibited sending handguns through the mail except by law enforcement
entities, and required that a common carrier be used instead.
EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY JOHN534

ROSS, AUTHOR, UNITENDED CONSEQUENCES
Poll taxes and literacy tests solved the problem of blacks voting. Blocking Constitutionally-protected
black possession of inanimate object required a slightly different strategy. One solution to the dilemma was to
require permits to possess or carry arms.1103 These permits could then be arbitrarily denied. Another answer was
for a state to enact an outright prohibition on carrying weapons for self-protection.1104 These outright prohibitions
were then selectively enforced. The South Carolina legislature, perhaps pleased with the success of their poll tax,
passed a law in 1875 prohibiting ownership of all firearms other than those manufactured by Colt or
Winchester.1105 Since these makes were much more expensive than all others, this law was a novel way to prevent
poor people of all races from having guns.
Immigrants got similar treatment. In complete defiance of the U.S. Constitution, California state
law prohibited Chinese from testifying against whites in any court of law for a 20-year period in the late
1800s.1106 In New York, discussion urging passage of the 1907 Sullivan Law made mention of how that
law would make it illegal for “swarthy immigrants” to have guns1107. Texas gun restrictions subjugated
Americans of Mexican origin.1108
All these laws, however, were passed on a state level. It was not until 1934 that any federal law was
enacted which affected firearms possession. There is some disagreement about the impetus behind this law, as
will soon be discussed.
THE NATIONAL FIREARMS ACT OF 1934
The first significant federal gun law was passed in June of 1934 with minimal fanfare. It attracted little
attention because it only affected a small number of arms: Full-automatic weapons (machine guns), rifles and
shotguns with barrels shorter than eighteen inches (amended to sixteen inches for rifles in 1958), and rifles and
shotguns with overall lengths less than twenty-six inches. These arms now fell under federal regulation. In
addition, any device designed or redesigned to muffle the report of a firearm (a “silencer”) also fell under the
scope of the National Firearms Act,1109 despite the fact that these devices were not and are not in any way, shape,
or form, “firearms.”
Because of the Second Amendment, Congress realized it did not have the authority to ban these arms.
Instead, the bill was slipped in as a revenue-raising measure under the Interstate Commerce Clause. Under the
National Firearms Act, no person my transport, deliver, or sell in interstate commerce any firearm or silencer as
described above without first having in his possession a stamp-affixed form for the firearm.
1103
Laws of this nature were passed in many states at one time or another. Notable exceptions were Vermont and New
Hampshire.
1104
Many states, including Missouri, have such outright prohibitions. Some statutes rely on vague wording, such as
Missouri’s prohibition on carrying a weapon for protection into and “church, school, or any other assembly of persons met
for any lawful purpose.” (emphasis added) This last item allows police to arrest blacks and ignore whites.
1105
I have not found the actual text of this law, but there are many references to it in several publications.
1106
Stanford M. Lyman, CHINESE AMERICANS (New York: Random House, 1974) P.71
1107
This phrase became a buzzword with many politicians who wanted to expand their political power, and is found in
numerous texts.
1108
Many people have serious misconceptions of Texas law, and think of that state as one where everyone carries guns
legally. Nothing could be further from the truth. There is no provision in Texas law to carry a weapon for protection outside
your home or automobile. Those who do are relying on the crony system to save them.
1109
NFA of 1934, Section 11.
535JOHN ROSS, AUTHOR, UNITENDED CONSEQUENCES

EXHIBIT 18 – PROHIBITION’S UGLY LEGALY BY
The tax stamp must first be bought so that it can be affixed to the federal form when it is approved. For
the form to be approved, the applicant must be fingerprinted, signed off by the local police chief, and submit to an
FBI records check. The “stamp” referred to in the law costs $200. The owner of an NFA-regulated weapon must
have this approved form (with the $200 stamp affixed) in his possession before the arm (or silencer) in question
may be transported in interstate commerce. This $200 tax must be paid each time the NFA-regulated item changes
ownership.
Because of the size of the tax, the frequency with which it must be paid, and the method by which it is
levied, the National Firearms Act bears a strong resemblance to the Stamp Act of 1765.1110
Being fingerprinted and forced to submit to an FBI investigation is unusual, to say the least, for a
revenue-raising measure. To put this “revenue-raising” tax in perspective, in 1934, $200 was more than a month’s
wages for a worker building Model “A”s on the Ford assembly line in Dearborn, Michigan. 1111 In the ‘20s,
silencers sold for $20 in hardware stores and Thomson submachine guns could be bought out of the Sears catalog
for $125. The idea that levying a $200 tax on these manufactured good would actually raise revenue is absurd.
The demand for each of the items covered y the National Firearms Act was elastic enough that virtually no one
was willing to pay the government an additional $200 for any of them. According to Treasury Department
records, there was not a single tax-paid registration in 1934,1112 and there was one in 1935(12).1113
Another consequence of the Act was that new development of machine guns by individual inventors
stopped overnight. Given that the vast majority of full-auto weapons now in use were designed by private
individuals, this is a serious issue. The U.S.’s foremost authority on machine guns, Lt. Col. George M. Chin, has
frequently described the Act a devastating blow to American security in that is has crippled all future military
small arms development in this country and will continue to do so until it is repealed.1114
After passage of the Act, there were only three classes of people who continued to buy these goods: Large
companies bought the weapons for strike control and other labor relations purposes. 1115 Police departments, the
military, and special occupational taxpayers1116 continued to buy, for they were exempt from the tax. Violent
criminals continued to buy these weapons outside of legal channels, just as they had obtained liquor during
Prohibition.
This reality brings us to the next issue concerning this obscure federal law.
REASONS FOR THE PASSAGE OF THE NATIONAL FIREARMS ACT
1110
On March 22, 1765, Parliament levied a tax on the Colonists’ newspapers and legal and commercial documents, all of
which had to carry a special stamp. The Colonists formed the first intercolonial Congress which met in October of that year
to declare American rights and grievances, specifically concerning the Stamp Act. Parliament rescinded the Stamp Act in
March of 1766, but coupled this recission with passage of the Declaratory Act, claiming England’s supremacy over America
“in all cases whatsoever”. The Colonists’ rights and their insistence on maintaining them became the basis for the American
Revolution.
1111
About $5 a day, according to a conversation with Arthur Wilkes, who was an assembly line worker during that period.
1112
New York Times, Dec. 25, 1934.
1113
New York Times, Nov. 6, 1936.
1114
Given that most reliable U.S. designs now in use (1919A4, 1917A1, ANM2, MG52A, M2HB, BAR, M14, M1A1) were
all developed by private citizens, and the guns with major flaws (M60) were designed by companies, Chinn’s comment
cannot be disregarded.
1115
“You could not run a coal company without machine guns” is a quote widely ascribed to industrialist Richard B. Mellon.
Other large companies with union problems (auto manufacturers, for example) also purchased machine guns.
1116
Special Occupational Taxpayers are those who pay an annual licensing fee to actively deal in NFA-regulated items.

In almost every published description of the National Firearms Act of 1934 is a mention of the 1929 “St.
Valentine’s Day Massacre”1117(16), and a statement to the effect that the Act was passed because machine guns
were being used with horrible results by bootleggers and other organized crime figures. There are several things
wrong with this claim.
First, it is laughable to hope that people for whom murder is a standard business practice will go present
themselves to the local police chief to get fingerprinted, and pay $200 for the privilege. Similarly, it is ludicrous
to think that putting legal restrictions on firearms will reduce their availability to those people whose entire
livelihood involves finding, buying, transporting, selling, and delivering illegal goods.
Second, the highly publicized incidents of underworld gangs machinegunning each other over liquor
shipments stopped overnight with the repeal of Prohibition, which occurred a full year before passage of the
National Firearms Act.
Third, the Act also affects weapons other than machine guns; rifles and shotguns with barrels or overall
lengths below a certain minimum are regulated by the NFA. It is very difficult to conceive of a reason why the
owner of a shotgun with a barrel 17-1/2” long should be charged with a felony I he refuses to be fingerprinted and
pay $200, when owning a shotgun with a barrel a half-inch longer is no crime at all. To compound this utter
absence of logic, under the National Firearms Act a person becomes a felon if he affixes a piece of wood to the
butt of his pistol (doubling the weapon’s physical size), for he is now in possession of a “short-barreled rifle”,
which is covered by the Act.
To make the final leap from the illogical to the ridiculous, the Act regulates noise mufflers, which are not
firearms at all. Hollywood to the contrary, the FBI has been unable to document a single case of a firearm silencer
being used in a crime in the last fifty years.1118 Given that the citizens fire upwards of six billion rounds of
ammunition per year,1119 the inclusion of silencers into the NFA is one of the greatest contributors to hearing loss
in the United States and therefore must be regarded as one of the largest Public Health blunders of this century.1120
The real reason for the passage of the National Firearms Act can be summed up in four words: Expansion
of federal powers. In 1934, two major changes had recently occurred in the United States. The first was that
Franklin Roosevelt had initiated an exponential increase in the size and power for the federal government. The
second change was the ratification of the Twenty-first Amendment, which repealed Prohibition. Let us examine
the latter incident first.
In the thirteen years that Prohibition had been in effect, there was a great proliferation of people involved
in the illicit manufacture, importation, and distribution of alcohol. This in turn produced a tremendous expansion
of the Treasury Department and the number of its agents.1121 With repeal, the liquor distribution was done by
1117
Al Capone, irritated at having fifteen of his men killed in three months by ‘Bugs’ Moran’s North-side gang, arranged a
trap. On his orders, a truckload of stolen whiskey was offered to the North-siders at an attractive price, with another truckload
to follow if Moran was satisfied. He was, and the second truck was sent to a trucking warehouse owned by Moran. As this
second delivery was being made, a car appearing to be a Chicago Police vehicle pulled up. The “officers” lined Moran’s gang
up against a wall, and the North-siders assumed it was time to pay off the policemen. Instead, the men dressed as officers (but
working for Capone) killed all seven of them, using two Thompson Submachine Guns. The date was February 14, 1929.
1118
Pillows and blankets have been used, because they more completely eliminate the noise. Knives are also very commonly
used as murder weapons.
1119
Spokesmen for Olin-Mathieson and Remington-Peters state that these two companies produce over two billion rounds
each for domestic consumption. With other companies and imports added in, the actual total is much higher.
1120
Many European rifle ranges mandate use of silencers for this reason.
1121
The actual increase in the number of agents is unknown. The treasury’s budget for this type of work in 1932, however,
was over ten times what it had been in 1918.

legitimate businessmen, and thousands of Treasury agents were idled. Federal legislation levying $200 taxes on
goods worth between $3 and $100 was guaranteed to promote non-compliance by the citizens, thereby giving
former Prohibition agents something to enforce.
It is interesting to note that the original draft of the National Firearms Act included all handguns then in
existence in the United States. Because of the handgun language, some of the strongest opposition to the original
version of the National Firearms Act came from women, who were vulnerable to attack from stronger assailants
and got the greatest benefit from being able to carry a small weapon for personal protection.
The number of pistols and revolvers in the U.S. in 1934 has been variously estimated at between thirty
and one hundred million.1122 Compare this figure with perhaps one million machine guns and shortbarreled long
guns that fell under the Treasury’s jurisdiction in the National Firearms Act’s final form. 1123 One can only guess
at what would have happened if in 1934 the government had told every citizen to cough up $200 for each
handgun he owned that he might someday want to take or ship across state lines.
The removal of handguns from the National Firearms Act may explain the odd inclusion of silencers in
the legislation. In the first third of this century, silencers were commonly available in any store where firearms
were sold. The term “silencer” is in fact a misnomer. It was a trade name coined by Hiram P. Maxim, and
automotive engineer who applied the principles of muffler design to safety valves, compressors, blowers, and
firearms.1124 A “silencer” does not make a firearm noiseless, any more than the muffler on a diesel truck exhaust
conceals the fact that the truck is approaching.1125 With the 1934 Act making it a felony to transport common
noise mufflers in interstate commerce without paying $200 (each!) to the government, millions of citizens were
now in violation of federal law.
Although the National Firearms Act stipulated a grace period where owners could register three weapons
and silencers free of charge, the Treasury reported that a grand total of 15,791 registrations occurred in this
period(25). 1126 This indicates approximately 1% compliance. The 1934 Act was thus a huge success at turning
millions of citizens into criminals.
The National Firearms Act fit in perfectly with the systematic creation of government programs and
deficit spending that Franklin Roosevelt immediately began to institute the instant he took office. The NFA was a
model vehicle for the continued expansion of government power: It was arbitrary (i.e. the 18-inch rule); it gave
the government sweeping authority over something very common; it focused on inanimate objects rather than
criminal behavior; it levied draconian taxes on these objects; and most importantly, it created millions of
criminals with the stroke of a pen, just as Prohibition had.
1122
Domestic production of handguns in 1928 exceeded 5 million units. Given that firearms almost never wear out, the 100
million figure may actually be low.
1123
This number takes known domestic sales and assumes that, on average, one out of every three soldiers returning from
WWI brought back one machine gun. If the discussions I have had with WWI vets are typical, the 1 million figure is low.
1124
Hiram Percy Maxim was the son of Hiram Stevens Maxim, who invented the first practical machine gun in 1884. No
evidence has been found to indicate that the National Firearms Act was intended to single out the inventions of the Maxim
family. It just ended up that way.
1125
Noise reducers for firearms are less effective than those for engines for two reasons: first, gas pressure in a gun barrel is
much higher than exhaust pressure in a tailpipe. Second, a design for a gun must include a straight, open path from the gun’s
muzzle to the exit end of the silencer to permit passage of the bullet. A muffler for an engine may employ all manner of
reversing baffles, diffusing screens, and serpentine pathways to redirect exhaust gases that don’t contain chunks of lead
travelling at supersonic speeds.
1126
New York Times, December 25, 1934.

A clear example of the fact that the National Firearms Act had nothing to do with crime and everything to
do with government power occurred immediately prior to its passage. Senator Hatton Sumners of Texas, the
Chairman of the House Judiciary Committee, had been a virulent opponent of the proposed bill and had bottled it
up because it “did violence to states’ rights.” 1127 On April 23, 1934, Roosevelt called Sumners into the White
House for a chat. Sumners agreed to vote for passage.1128
ENFORCEMENT OF THE NATIONAL FIREARMS ACT PRIOR TO 1968
After the NFA was passed, sales of affected items came to an abrupt halt. Domestic firearms
manufacturers stopped producing any long guns with barrels shorter than 18 [inches]. They also quit making any
pistols with lugs on the butt for shoulder stocks. Manufacturers of noise reducers (most notably the Maxim
Silencer Co.) went out of business entirely.
After the short grace period, citizens who owned NFA-regulated items on which the tax had not been paid
had several choices. The first was to pay $200 to the Treasury for each item. In 1934, no one did this. The second
choice was to relinquish NFA-regulated items to the Treasury without any compensation. No one did this, either.
The third option, theoretically at least, was to avoid selling or transporting anything covered under the Act outside
the state. The fourth was to disassemble the machine gun, short-barreled long gun, or silencer so that it was
inoperable, and keep the parts separate. In the case of short-barreled arms, the owner could also replace the barrel
with one of 18” or longer, and have a legal, functioning gun again without paying $200.
Short-barreled rifles and shotguns were produced in low numbers in the years prior to 1934 1129 but the
same could not be said for machine guns. The Colt-manufactured Thompson, BAR, and belt-fed Brownings had
all been produced in large numbers and had been available on the civilian market for over a decade. Furthermore,
two million American soldiers had been sent to Europe in WWI, and over half of these had served in combat
units. These veterans had brought back many “war trophies”, as they were called, with complete legality.1130
Machine guns were a relatively new and interesting battlefield weapon in 1918,1131 and captured examples were
brought home by most soldiers. A conservative estimate of the full-automatic WWI weapons brought into the
United States by the returning two million veterans is one million.1132 Other knowledgeable sources place the
figure at over twice that.1133
The Treasury Department decreed that the owners of these weapons could either register them for $200,
or remove critical parts (such as the bolt) from them, which would render them inoperable. In this latter case, the
gun was no longer considered a weapon subject to registration and $200 tax, but rather a “DEWAT”, which was
the Treasury Department’s acronym (sort of) for Deactivated War Trophy.
1127
William J. Helmer, The Gun That Made the Twenties Roar (London: MacMillan & Co., 1969) p.125.
1128
New York Times, April 24, 1934.
1129
Ithaca Gun Company produced the “Auto and Burglar” gun and Harrington and Richardson made the “Handi-gun” in
modest numbers. Both are now collector’s items.
1130
Bringing home U.S. ordnance is technically theft of government property, but at the end of a war it is typical for a U.S.
soldier to keep the weapon he carried in combat without comment from the authorities. Arms captured from the enemy have
always (prior to 1968) been acceptable for U.S. soldiers to bring home.
1131
WWI was the first major war fought with them.
1132
Thomas J. Fleming, in a phone conversation 8/27/70.
1133
Lt. Col. George M. Chinn, author of the now-declassified 2000-page work The Machine Gun for the Department of the
Navy, in a phone conversation 8/30/70.

When agents encountered an otherwise law-abiding citizen with a non-taxed machine gun in his
possession, standard procedure was to give him the choice of paying the $200 tax and registering it “live”, or
removing the bolt and/or other internal parts.
As years passed, the economy improved, wages and prices went up, and the U.S. fought in two more
wars. A few million more veterans returned home from WWII and Korea with a few million more war trophies.
By the ‘50s and ‘60s, some citizens actually were paying the $200 tax and getting tax stamps from the Treasury
Department on weapons brought back from WWI, WWII, and Korea, and on newly-purchased machine guns from
the many manufacturers around the world.
THE GUN CONTROL ACT OF 1968
In 1968, the National Firearms Act was amended by the Gun Control Act of 1968. This 1968 law enacted
sweeping infringements on citizens’ rights to purchase and own virtually all types of guns. It also introduced a
“sporting use” test on importation of firearms and ammunition. If certain guns or ammunition were determined by
the Director of the Treasury to be not suitable for “sporting use”, importation of them was prohibited. The fact
that the Bill of Rights concerns the preservation of freedom and not recreation is ignored in the 1968 Act. A 1939
Supreme Court decision ruling that military weapons are Constitutionally protected whereas sporting arms are not
1134
was ignored also.
GCA ‘68 also contained language which modified the treatment under the law of NFA-regulated
weapons. Since these provisions did not immediately affect nearly as many people as the rest of the new
legislation, their significance was not fully understood at the time. Under the new provisions, all existing machine
guns in the hands of U.S. citizens had to be registered with the NFA immediately, including DEWATs. A one-
month amnesty was instituted where the $200-per-gun NFA tax was waived. After this amnesty ended, however,
registration of machine guns manufactured in the U.S. after the passage of these provisions posed serious
problems for citizens and created legal questions that have not to this day been addressed.
First of all, among the millions of owners of live machine guns and DEWATs, not everyone knew about
the one-month amnesty before it was over. Second, of those who were aware of the one-month grace period, there
was tremendous fear that the entire amnesty was a trap and the guns presented for registration would be
confiscated. For this reason, only a tiny fraction of the machine guns and DEWATs were submitted for NFA
registration during the Amnesty. 1135
The 1968 amendments to the National Firearms Act and the one-time amnesty completely ignored the
fact that the Act only applies to those weapons transported in interstate commerce. The 1934 Act does not apply
to a machine gun owner who never takes his gun out of state. The 1968 amendments have places such owners in
the position where they cannot now comply with the law. An owner of a machine gun on which the tax has not
been paid is prohibited by the 1968 amendments from paying the tax and putting the weapon on the NFA registry.
This has created a situation not duplicated anywhere else in the entire U.S. Code.
As an example of how this law introduces a severe distortion into both the economy and the lives of U.S.
citizens, let us look at an example: A coal company heir owns a consecutive numbered pair of Model 1921
Thompson guns, serial numbers 1410 and 1411, which have been in his family in the same location since the mid-
1920s. In 1965 (but this could be any year between 1934 and 1968), thinking he might someday want to take one
of the guns outside the state, he pays $200 and registers one of them (either one) under the NFA 1934. Just to be
1134
U.S. vs. Miller, United States Supreme Court, May 15, 1939.
1135
Many of the people I have spoken to who had a significant number (20 or more) of non-taxed NFA weapons and
DEWATs decided to Amnesty – register two or three guns, hedging their bets in case of confiscation.

safe, he removes the bolt from the other, rendering it inoperable. Prior to GCA 1968, he was in complete
compliance with the law.
Today, the taxed gun is completely transferable to other citizens, and the gun can change hands an
indefinite number of times, providing police and FBI checks are performed and $200 is paid to the Treasury for a
tax stamp each time the weapon is transferred.
Ownership of the non-taxed gun (the one without the bolt) is a felony,1136 and there is no provision in the
law to allow the owner to place the weapon in the NFA registry. He can offer to pay two million dollars instead of
two hundred, and he will still be denied registration. Under present interpretations of the 1968 amendments, the
1921 Thomson without the bolt is contraband and must be surrendered to BATF without any compensation. A
Model 1921 Thompson is worth between $1500 and $2000 at the time of this writing if it is transferable.1137
The “sporting test” section of the 1968 Act prohibits importation of non-sporting weapons and
ammunition into the U.S. This includes importation of U.S.-made weapons produced before 1968 but which were
outside the country at the time GCA 1968 was passed. The exemption for this import ban is for military and law
enforcement-related sales. Thus, a 1921 Thompson gun currently in England (there are thousands there) may only
be imported into the United States by an agency of the U.S. Government, a police department, or a special
occupational taxpayer who may then only sell it to one of these two types of purchasers.
THREE-TIER LEGAL STAATUS AND PRICING
The example listed above makes it clear that government regulation has created three-tier status for
identical manufactured good. Machine guns made in the United States can fall into three categories:
a) Fully transferrable to any law-abiding resident1138 upon federal approval after FBI investigation and
payment of $200 to the Treasury;
b) Transferable (tax-exempt) to Special Occupational Taxpayers, police, of government agencies; and
c) contraband weapons which may not be made legal.
These three different legal categories result in three different prices for otherwise identical guns. To
continue the Thompson example, a transferable, mint-condition 1921 Thompson now brings approximately $1800
on the U.S. collector market.1139 An identical gun recently imported from England and sitting in a customs bonded
warehouse will bring at most $150, for it can only be sold to police and government agencies, and these entities
are not willing to pay much for obsolete, fifty-year-old weapons. What the third gun is worth is anybody’s guess,
for the only buyers for it will be those willing to risk a felony conviction(39).1140
FUTURE OF THE NATIONAL FIREARMS ACT
The Gun Control Act of 1968, with its amendment to the National Firearms Act of 1934, is a recent
continuation of a trend started during the Roosevelt administration towards more government and less freedom.
1136
As the law is now being interpreted. The case mentioned before where the gun has never crossed state lines has not yet
been tested in court.
1137
From current price lists from six Special Occupational Taxpayers licensed to deal in these types of weapons.
1138
Individual state laws may prohibit ownership.
1139
Average of several advertised in dealer publications. Examples with a documented history (i.e. a weapon used by “Pretty
Boy” Floyd) command a premium.
1140
Police and dealers I questioned were uneasy about estimating the “street value” of a non-taxed Thompson Submachine
Gunn. The only dealer who was willing to say anything at all suggested “Couple hundred bucks, tops” as an estimate.

Recent and current administrations show no sign of reversing this trend. When freedom is at odds with
government policy, one of two things eventually happens: Either freedom is crushed, or political leaders are
forced out in disgrace and replaced with guardians of individual liberty.
CONCLUSION
The National Firearms Act of 1934 is a bad law. Colonel Chinn has said on many occasions that the 1934
Act is the single most devastation piece of legislation to this nation’s defense ever enacted.
From an economic viewpoint, the NFA of 1934 is a bad law because its tax is so high that it stops
enterprise cold and distorts the free market. NFA 1934 is a bad law because it raises virtually no revenue at all,
when a $5 tax and relaxed regulations might easily raise millions of dollars for the Treasury Department.
The 1968 amendments to the 1934 Act are bad law because these amendments actually prohibit those
people who want to pay the tax on their guns from doing so. These 1968 amendments have made criminals out of
people with no criminal intent, and give these citizens no option other than to surrender their property with no
compensation. These are the kinds of laws which led to the American Revolution. The National Firearms Act of
1934 should be repealed in its entirety.1141
1141
Emphasis in orginal.


EXHIBIT 19 – KOPEL, THE NATURAL RIGHT OF SELF-DEFENSE: HELLER’S LESSON FOR THE WORLD
EXHIBIT 19. David B. Kopel, The Natural Right of Self-Defense: Heller’s Lesson
for the World, 58 Syracuse Law Revie __ (2008)
The Natural Right of Self-Defense:

Heller’s Lesson for the World
By David B. Kopel1142
One of the most important elements of the District of Columbia v. Heller decision is the natural
law. Analysis of natural law in Heller shows why Justice Stevens’ dissent is clearly incorrect, and
illuminates a crucial weakness in Justice Breyer’s dissent. The constitutional recognition of the natural
law right of self-defense has important implications for American law, and for foreign and international
law.
I.
The Natural Law in Right of Armed Defense
A. In the Heller Case
Heller reaffirms a point made in the 1876 Cruikshank case. The right to arms (unlike, say, the
right to grand jury indictment) is not a right which is granted by the Constitution. It is a pre-existing
natural right which is recognized and protected by the Constitution:
it has always been widely understood that the Second Amendment, like the First and Fourth
Amendments, codified a pre-existing right. The very text of the Second Amendment implicitly
recognizes the pre-existence of the right and declares only that it “shall not be infringed.” As we said in
United States v. Cruikshank, 92 U. S. 542, 553 (1876), “[t]his is not a right granted by the Constitution.
Neither is it in any manner dependent upon that instrument for its existence. The Second amendment
declares that it shall not be infringed…”1143
As Heller pointed out, the 1689 English Declaration of Right (informally known as the English
Bill of Rights) was a “predecessor of our Second Amendment.”1144 According to the Declaration:
“[T]he subjects which are Protestants may have arms for their defense suitable to their conditions and as
allowed by law.”1145 The Convention Parliament which wrote the Declaration of Right stated that the
right to arms for defense was a “true, ancient, and indubitable right.” Yet as Joyce Malcolm has detailed,
1142
Research Director, Independence Institute, Golden, Colorado. Associate Policy Analyst, Cato Institute, Washington, D.C.
J.D., University of Michigan, 1985. In Heller, Kopel wrote the amicus brief for the International Law Enforcement Educators
& Trainers Association, and other law enforcement organizations and leaders; the brief was cited four times in Justice
Breyer’s opinion. Kopel was one of three lawyers who joined Alan Gura at the Supreme Court counsel table on March 18,
2008, to assist Gura in his presentation of the oral argument.
1143
District of Columbia v. Heller, 554 U.S.---, 128 S.Ct. 2783, 2797-98 (2008).
1144
Id. at 2798.
1145
1 W. & M., c. 2, §7 (1689).
544
1689 was the first time that the right to arms had been formally protected by a positive enactment of
English law.1146
The explanation is simple. The Convention Parliament did not believe that it was creating new
rights, but simply recognizing established ones. Although previous Parliaments had not enacted a statute
specifically to protect the right of armed self-defense, British case law since 1330 had long recognized
an absolute right to use deadly force against home invaders.1147 The right to self-defense itself, along
with its necessary implication of the right to use appropriate arms for self-defense, was considered to be
firmly established by natural law.
Thus, Heller quoted Blackstone’s treatise (which was by far the most influential legal treatise in
the Early American Republic1148 ) explaining that the Declaration of Right protected “the natural right of
resistance and self-preservation,” which was effectuated by “the right of having and using arms for self-
preservation and defence.”1149
Some other parts of the Heller opinion include citations to sources describing the right of armed
self-defense as a “natural” or “inherent” right. The majority writes that “Justice James Wilson
interpreted the Pennsylvania Constitution’s arms bearing right, for example, as a recognition of the
natural right of defense ‘of one’s person or house’ — what he called the law of ‘self preservation.’”1150
Likewise quoted with approval is the 1846 Georgia Supreme Court decision Nunn v. State, which
“construed the Second Amendment as protecting the ‘natural right of self-defence’.”1151 Similarly, “A
New York article of April 1769 said that ‘[i]t is a natural right which the people have reserved to
themselves, confirmed by the Bill of Rights, to keep arms for their own defence.”1152
Thus, the Heller opinion concludes: “As the quotations earlier in this opinion demonstrate, the
inherent right of self-defense has been central to the Second Amendment right.”1153 Heller’s recognition
1146
Joyce Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 117-18 (1994).
1147
David Caplan & Susan Wimmershoff-Caplan, POSTMODERNISM AND THE MODEL PENAL CODE, 73 UMKC L. Rev. 1080
(2005).
1148
“Blackstone, whose works, we have said, ‘constituted the preeminent authority on English law for the founding
generation,’ Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the
fundamental rights of Englishmen.” Heller at 2798.
1149
Slip op. at 20, quoting 1 William Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND *139–40 (1765); see also Heller
at 2792, n. 7: “W. Duer, OUTLINES OF THE CONSTITUTIONAL JURISPRUDENCE OF THE UNITED STATES 31–32 (1833) (with
reference to colonists’ English rights: ‘The right of every individual to keep arms for his defence, suitable to his condition
and degree; which was the public allowance, under due restrictions of the natural right of resistance and self-preservation’).”
1150
Heller at 2793.
1151
Id. at 2809.
1152
Id. at 2799, quoting A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769.
1153
Id. at 2817. The opinion includes other statements that self-defense is a right. Id. at 2820 (“It is inconceivable that this
law would have been enforced against a person exercising his right to self-defense on New Year’s Day against such drunken
hooligans.”), at 2801 (“Justice Breyer’s assertion that individual self-defense is merely a ‘subsidiary interest’ of the right to
keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can
only show that self defense had little to do with the right’s codification; it was the central component of the right itself.”).
545
self-defense as a natural right was consistent with the same view in The Federalist,1154 in most state
constitutions,1155 and in case law from before the Civil War to modern times.1156
[Plaintiff’s Note: Footnote 15 is Converted to Text Here Due to its Large Size]:
See, e.g.,
Isaacs v. State, 25 Tex. 174, 177 (1860)(“ It is the necessity of the case, andthat only which justifies a
killing--on that necessity the right to kill rests, and when the necessity ceases, the right no longer exists.
This limitation, which the law puts on the right of self-defense, is founded on the same law of nature and
reason which gives the right of defense; and it does not restrain it, but protects it and prevents its abuse
by those who would, under its color and the pretense of defense, seek to gratify revenge or an occasion
to kill.”).
Konigsberger v. Harvey, 12 Or. 286, 7 P. 114 (1885) (“The law upon that subject is the same as it was
500 years ago. The right of self-defense is a natural right, inherent in mankind…”);
gton State v. McGonigle, 14 Wash. 594, 45 P. 20 (1896) (“The plea of self-defense rests on the natural
right.”);
y Thornton v. Taylor, 19 Ky. L. Rptr. 320, 39 S.W. 830 (Ky., 1897) (“The right of self-defense is a natural
right…);
s St. Louis Southwestern Ry. Co. v. Berger, 64 Ark. 613, 44 S.W. 809 (1898) (Railroad cannot be sued
because of an employee’s act of lawful self-defense. The employee’s self-defense is “not within any
employment he may make, being a natural right which he can neither surrender, nor gratify by any
contractual act…”);
an Terr. Robinson v. Territory, 16 Okla. 241, 85 P. 451 (Indian Terr., 1905)(“The right of self-defense is
founded upon the natural right of a man to protect himself against the unlawful assault upon him by
another.”);
in Miller v. State, 119 N.W. 850, 857 (Wis. 1909)(“the divine right of self-defense”).
Railroad Commission of Ohio v. Hocking Valley R. Co. 82 Ohio St. 25, 91 N.E. 865 (1910)(“By
universal consent self-defense is recognized as a natural right of every individual and of every collection
of individuals.”);
ia People v. Watson, 165 Cal. 645, 133 P. 298 (1913) (“While defendant’s conduct with the woman was
immoral, it did not take away from him the natural right of self-defense…”);
i State v. Arnett, 258 Mo. 253, 167 S.W. 526 (Mo., 1914)(If statute against exhibiting a weapon in an
angry manner “was designed to abrogate the right of self-defense, and if its effect be to do so, it is then
more than possible that its constitutional validity might well be questioned, for that it whittles away a
1154
THE FEDERALIST, no. 28 (Alexander Hamilton) (“that original right of self-defense which is paramount to all positive
forms of government”).
1155
David B. Kopel, Paul Gallant, & Joanne D. Eisen, THE HUMAN RIGHT OF SELF-DEFENSE, 22 BYU J. Pub. L. 43, 101-02,
128 (2008)(35 U.S. state constitutions affirm that human rights are inherent, natural, or created by God; 37 state constitutions
affirm a right of self-defense, sometimes, but not always, articulated in the same clause as right to arms).
1156
[Plaintiff’s Note: Footnote 15 is converted to text due to its large size.]
546
part of that ‘natural right to life, liberty and the enjoyment of the gains of their own industry,’ which is
vouchsafed to the citizen by the organic law. Section 4, art. 2, Const. Mo.”);
linois People v. Burns, 300 Ill. 361, 366, 133 N.E. 263 (Ill. 1921)(“When a citizen exercises the right of self-
defense, he is not taking the law into his own hands. He is simply exercising a natural right which the
law recognizes and protects.”);
ouisiana Allen v. Currie, 8 La. App. 30 (La. App., 1928)(“even men of mature years will, in the exercise of their
natural right of self-defense, meet or repulse any aggressor who may attempt to encroach on their rights.
This is unquestionably true.”);
ouisiana National Life & Acc. Ins. Co. v. Turner, 174 So. 646, (La. App., 1937) (“The right of self-defense is a
natural right.”);
Oklahoma Hummel v. State, 69 Okla. Crim. 38, 99 P.2d 91 (Okla. Crim. App., 1940) (“the law adopts the natural
right of self-defense, because it considers the future process of law an inadequate remedy for present
injuries accompanied with force.”);
labama Finch v. State, 445 So. 2d 964, 966 (Ala. Crim. App., 1983)(“We agree with proposition expounded in
Blankenship, supra, that: ‘Self-defense is a common instinct and a natural right, and, as we understand
it, means standing one’s ground and repelling, as a means of self-protection, unprovoked force with
force.’”);
olorado People v. Young, 825 P.2d 1004, 1007 (Colo. App., 1991)(citing the 1960 Colorado Supreme Court
decision Vigil v. People that “self-defense is a natural right which is based on the law of
selfpreservation”);
Even in the South on the eve of the Civil War, the natural right of self-defense guaranteed the
right to a free black to use violence against a white law enforcement officer:
The conviction of the defendant may involve the proposition that a free negro is not justified, under any
circumstances, in striking a white man. To this, we cannot yield our assent…
…
An officer of the town having a notice to serve on the defendant, without any authority whatever, arrests
him and attempts to tie him!! Is not this gross oppression? For what purpose was he to be tied? What
degree of cruelty might not the defendant reasonably apprehend after he should be entirely in the power
of one who had set upon him in so highhanded and lawless a manner? Was he to submit tamely?--Or,
was he not excusable for resorting to the natural right of self-defense?
Upon the facts stated, we think his Honor ought to have instructed the jury to find the defendant
not guilty. There is error. Venire de novo.
rth Carolina State v. Davis, 52 N.C. 52 (7 Jones) (1859).
A decision from a few decades earlier shows the connections with the English and American
common law natural right:
the right of necessary defence, in the protection of a man’s person or property, is derived to him from
the law of nature, and should never be unnecessarily restrained by municipal regulation. However proper
it may be for every well ordered community to be tender of the public peace, and careful of the lives of
its citizens, there can be neither policy or propriety in extending this tenderness and care so far as to
547
protect the robber, the burglar and the nocturnal thief, by an unnecessary restraint of the honest citizen’s
natural right of self-defence. Sir Matthew Hale, in speaking on this subject, says, “the right of
selfdefence in these cases is founded in the law of nature, and is not, nor can be superceded by the law
of society. Before societies were formed, the right of self defence resided in individuals, and since, in
cases of necessity, individuals incorporated into society, can not resort for protection to the law of
society, that law with great propriety and strict justice considereth them as still, in that instance, under
the protection of the law of nature.”
ucky Gray vs. Combs, 30 Ky. 478 (1832). Hale was Lord Chief Justice of England from 1671-76, and one of
the most influential of all common law judges and treatise authors. The quote actually appears to be
from Michael Foster, CROWN CASES AND CROWN LAW 273-74 (1762). Foster was a judge of the Court of
King’s Bench from 1745 to 1763, and was much respected by Blackstone. The quote, with attribution to
Foster, appears in the 1847 American annotated edition of Matthew Hale, 1 HISTORY OF THE PLEAS OF
THE CROWN 478 n.1 (W.A. Stokes & A. Ingersoll eds., Phil., 1847)(1732)(note added by editor).
Because the 1847 “first American edition” of Hale post-dates the 1832 Kentucky court decision, it
seems probable that the Kentucky court was using an English edition of Hale which also included an
editor’s annotation with the Foster language.
nia To muddy the trail a little further, part of the quote appears in Parrish v. Commonwealth, 81 Va.
1 (1884), citing to Hale as quoted in “Rutherforth Institutes”—which means Thomas Rutherforth,
INSTITUTES OF NATURAL LAW: BEING THE SUBSTANCE OF A COURSE OF LECTURES ON GROTIUS DE JURE
BELLI ET PACIS READ IN ST. JOHN’S COLLEGE, Cambridge ch. 16 (1st pub. 1754-56) (a series of English-
language lectures on Grotius [infra] and natural law; Rutherforth’s treatise was very popular in the
United States in the 18th and 19th centuries). Cf. Commonwealth v. Riley, Thacher’s Crim. Cas. 471,
474-75 (Boston Mun.Ct., Mass., 1837) (citing Foster: “In the case of justifiable self-defence, the
injured party may repel force by force in defence of his person, habitation, or property, against one who
manifestly intendeth and endeavors by violence or surprise, to commit a known felony upon either. It is
justly considered that the right in such case, is founded in the law of nature, and is not, nor can be
superseded by any law of society. There being at the time no protection from society, the individual is
remitted for protection to the law of nature.”).
B. Roots of the Right
Although some modern scholars deny that natural law exists, there is no dispute that the
Founders strongly believed in it.1157 In a constitutional sense, the natural law basis of the right to armed
1157
See, e.g., John Hart Ely, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980). Ely, who denies natural law,
argues that judicial review should be limited to situations where the ordinary democratic process has failed to protect the
rights of minorities. His theory would lead to same result in Heller. Every state legislature in the United States includes
representatives from urban, suburban, and rural districts. The diversity of constituencies helps ensure that legislators have a
diversity of life experiences, and makes it possible to legislators to explain to their colleagues aspects of daily life which may
be unfamiliar. For example, a rural legislator may not understand from personal experience how big-city traffic jams waste so
much time for suburban parents who are picking up children school or daycare, and shuttling them to sports or music lessons;
but the rural legislator can learn about the problem by talking to her suburban colleagues. Similarly, an urban legislator may
have no personal understanding of the traditional role of the shooting sports in American life, but a rural legislator can
explain it to her. The District of Columbia, however, is a compact and densely-populated city. Its members represent only
urban areas, so the Council necessarily suffers from a unique lack of intellectual and life-experience diversity, compared to
state legislators. Moreover, the current Council’s predecessors worked to eradicate the culture of legitimate firearms usage
within the District; zoning rules outlaw indoor shooting ranges throughout the District. Because of the urban-only structure of
548
self-defense is part of the original public meaning of the Second Amendment. That human rights were
inherent, and not granted by government, was, after all, the basis on which the nation was created: “We
hold these truths to be self-evident: that all men are endowed by their Creator with certain unalienable
rights.”1158
“Natural law” as a term of legal art was originally based on Catholic legal thought. In the twelfth
century, Gratian’s “Treatise of the Discordant Canons” consolidated and synthesized disparate sources
in various canon laws (church laws). He began with an explanation of natural law: Natural law is
common to all nations because it exists everywhere through natural instinct, not because of any
enactment. It includes the union of men and women, the succession and rearing of children, the identical
liberty of all in the acquisition of those things, which I omit, which are taken from the earth or at sea, the
return of a thing deposited or of money entrusted, and the repelling of violence by force. This, and
anything similar, is never regarded as unjust but is held to be natural and equitable.1159
Gratian’s formulation of the natural right of “repelling violence by force” was similar to an
expression of the same principle in Roman Law.1160
In the five centuries from Gratian to the American Constitution, the concept of natural law,
including natural rights, was developed by Catholic Scholars such as Thomas Aquinas, Francisco de
Vitoria, Juan de Mariana, and Francisco Suárez (who called selfdefense “the greatest of all rights”).
From the personal right of self-defense against lone criminals, they derived the people’s right of self-
defense against criminal, tyrannical governments.1161
the District’s government, it is uniquely susceptible to bigotry and irrational prejudice against law-abiding gun owners. To
cite but one example, the District was the only government in the United States which forbade legal firearms owners from
using their guns for self-defense in the home.
1158
United States, DECLARATION OF INDEPENDENCE, para. 2 (1776).
1159
Gratian, THE TREATISE ON LAWS (Decretum Dd. 1-20) WITH THE ORDINARY GLOSS 6 (Augustine Thompson & James
Gordley trans., Catholic U. Pr. of America, 1993)(approx. 1150)(Distinction One, case 7, § 2). In the original:
Ius naturale est commune omnium nationum, eo quod ubique instinctu naturae, non constitutione aliqua habetur, ut uiri et
feminae coniunctio, liberorum successio et educatio, communis omnium possessio et omnium una libertas, acquisitio eorum,
quae celo, terra marique capiuntur; item depositae rei uel commendatae pecuniae restitutio, uiolentiae per uim repulsio.
Nam hoc, aut si quid huic simile est, numquam iniustum, sed naturale equumque habetur.
Like self-defense, the natural law right of marriage and child-raising is not enumerated in the United States Constitution, but
is a constitutionally-protected fundamental right. See, e.g., Zablocki v. Redhail 434 U.S 374 (1978)(marriage as fundamental
right); Meyer v. Nebraska, 262 U.S. 390 (1923) (raising children).
1160
The key Roman law rules for self-defense rule were “arms may be repelled by arms” and “it is permissible to repel force
by force.” DIG. 43.16.1.27 (Ulpian, Edict 69) (“Cassius writes that it is permissible to repel force by force, and this right is
conferred by nature. From this it appears, he says, that arms may be repelled by arms.”).
1161
See David B. Kopel, THE CATHOLIC SECOND A MENDMENT, 29 Hamline L. Rev. 519 (2006) (Aquinas and Mariana); David
B. Kopel, Paul Gallant, & Joanne D. Eisen, THE HUMAN RIGHT OF SELF-DEFENSE, 22 BYU J. Pub. L. 43 (2008) (Vitoria and
Suárez); see also David B. Kopel, SELF-DEFENSE IN ASIAN RELIGIONS, 2 Liberty L. Rev. 79 (2007) (Hinduism, Sikhism,
Confucianism, Taoism, and [in practice] Buddhism all respect self-defense as an inherent right; that the Asian religions have,
in this regard, quite similar attitudes to Western religions provides an important data point in support of the theory that
natural law is a real phenomenon).
549
Few Americans were familiar with these Catholic scholars, except for Aquinas. The Anglo-
Americans learned the language of natural rights, including the natural right of self-defense, from
Protestant thinkers who had adopted the Catholic self-defense theories. The first of these writers were
the persecuted Protestants of sixteenth-century France and England, including Theodore Beza, Peter
Martyr Vermigli, and Christopher Goodman. For the Americans, the most influential were John Poynet,
author of A SHORTE TREATISE OF POLITIKE POWER (1556), and the pseudonymous Marcus Junius Brutus,
who wrote VINDICIAE CONTRA TYRANNOS (Vindication Against Tyrants) in 1579.1162 According to John
Adams, Vindiciae was one of the leading books by which England’s and America’s “present liberties
have been established.”1163 Adams wrote that there were three key periods in English history where
scholars addressed the problems of tyranny and the proper structure of governments. The first of these,
according to Adams, was the English reformation; next, when John Poynet put forth “all the essential
principles of liberty, which were afterward dilated on by Sidney and Locke.”1164
The Founders were also familiar with the great writers of international law, who based their
entire system on the foundation of the natural right of self-defense. Hugo Grotius, the most important
writer of all time in international law, built the laws of international warfare by extrapolation from the
natural right of personal defense.1165 Samuel von Puffendorf, who extended and elaborated Grotius’s
work on international law and political philosophy, called self-defense the foundation of civilized
society.1166
The DECLARATION OF INDEPENDENCE affirms that governments are created for the purpose of
protecting natural rights.1167 Accordingly, a necessary feature of a legitimate government will be the
protection of natural rights. As the Supreme Court explained in Cruikshank, the right to assemble and
the right to keep and bear arms were, each, “found wherever civilization exists.”1168 Although personal
1162
See Marcus Junius Brutus, VINDICIAE, CONTRA TYRANNOS: OR, CONCERNING THE LEGITIMATE POWER OF A PRINCE OVER
THE PEOPLE, AND OF THE PEOPLE OVER A PRINCE (George Garnett ed., 1994)(1st Pub. 1579); Douglas F. Kelly, THE
EMERGENCE OF LIBERTY IN THE MODERN WORLD: THE INFLUENCE OF CALVIN ON FIVE GOVERNMENTS FROM THE 16TH THROUGH
18TH CENTURIES 44 (1992) (explaining Vindiciae’s debt to Catholic thought); John Dalberg Acton, THE HISTORY OF FREEDOM
AND OTHER ESSAYS 82 (1993) (“the greater part of the political ideas” of John Milton and John Locke “may be found in the
ponderous Latin of Jesuits who were subjects of the Spanish Crown,” such as Mariana and Suárez).
1163
John Adams, 3 A DEFENCE OF THE CONSTITUTIONS OF THE UNITED STATES OF AMERICA 210-11 (Union, N.J.: The Lawbook
Exchange, 2001)(1st pub. Philadelphia, 1797).
1164
Id., at 210. Jefferson described John Locke, Algernon Sidney, Aristotle, and Cicero as the four major sources of the
American consensus on rights and liberty, which Jefferson distilled into the DECLARATION OF INDEPENDENCE. Thomas
Jefferson, letter to Henry Lee, May 8, 1825.
1165
Hugo Grotius, THE RIGHTS OF WAR AND PEACE (Liberty Fund 2005)(reprint of 1737 English translation by John Morrice
of the 1724 annotated French translation by Jean Barbeyrac) (1625).
1166
Samuel Pufendorf, OF THE LAW OF NATURE AND NATIONS (The Lawbook Exchange 2005) (reprint of 1726 London edition
of the 1706–07 Barbeyrac French translation and annotation, with English translation by Mr. Carew) (1672).
1167
“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the
governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter
or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such
form, as to them shall seem most likely to effect their Safety and Happiness.” United States, Declaration of Independence,
para. 2 (1776).
1168
The right to assemble, with which the right to arms was construed in pari materia: existed long before the adoption of the
Constitution of the United States. In fact, it is, and always has been, one of the attributes of citizenship under a free
550
self-defense is not specifically mentioned in the Declaration of Independence, that natural right is the
intellectual foundation, in Western philosophy, of the right of the people to defend all their natural rights
by using force to overthrow a tyrant.1169
II.
The Natural Right’s Implications for the Heller Dissents
A. Natural Right and the Stevens Dissent
Justice Stevens’ dissent does about as well as possible, given the facts available, on issues such
as how much weight to give to the Second Amendment’s preamble, and whether “bear arms” must
necessarily mean the carrying of guns only while in military service. Throughout the opinion, he argues
passionately for his interpretation, although that interpretation requires the reader to view the evidence
from very selectively; the dissent is like the argument that a sheet of paper has only one dimension,
because if you look at it from just the right angle, it appears to be a straight line. Vast amounts of
evidence have to be willfully ignored. For example, one treatise by Justice Story describes the Second
Amendment in terms which are, at least arguably, not necessarily incompatible with Stevens’ militia-
only view.1170 But another treatise by Story, which quoted by the majority, describes the Second
Amendment in terms which fit the Heller majority’s view, and which are plainly contrary to the Stevens
militia-only theory.1171 The majority opinion discusses both treatises,1172 but Stevens writes at length
about the first treatise, ignores the existence of the second treatise, and provides no explanation for
having done so.1173
Justice Stevens dismisses the English Declaration of Right, and Blackstone’s description thereof,
by contending that they addressed issues which were not of concern to the Founders, who according to
Stevens were only thinking about the state ratification debates involving state vs. federal powers over
government. It “derives its source,” to use the language of Chief Justice Marshall, in Gibbons v. Ogden, 9 Wheat. 211, “from
those laws whose authority is acknowledged by civilized man throughout the world.” It is found wherever civilization exists.
It was not, therefore, a right granted to the people by the Constitution. The government of the United States when established
found it in existence, with the obligation on the part of the States to afford it protection. United States v. Cruikshank, 92 U.S.
542, 551-53 (1876)(including similar analysis regarding the “The right… of ‘bearing arms for a lawful purpose.’ This is not a
right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence.”)
1169
Even if one claims that there is no such thing as natural law, the right of self-defense is so well-established in the
common law and in long-standing American tradition that it is precisely the type of unemunerated right which requires
constitutional recognition. See, e.g., Lawrence v. Texas, 539 U.S. 558, 588 (2003) (Scalia, J., dissenting), citing Washington
v. Glucksberg, 521 U.S. 702 (1997) (unenumerated rights should be constitutionally recognized if they are “deeply rooted in
this Nation’s history and tradition”); Montana v. Egelhoff, 518 U.S. 37, 56 (1996) (Scalia, J., plurality op.) (“the right to have
a jury consider self-defense evidence” has strong support in the “historical record” and may be “fundamental”); Eugene
Volokh, STATE CONSTITUTIONAL RIGHTS TO KEEP AND BEAR ARMS, 11 TEX. REV. L. & POL. 191 (2006) (many state right to
arms provisions explicitly mention self-defense).
1170
3 Joseph Story, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1858 (1833)
1171
Joseph Story, A FAMILIAR EXPOSITION OF THE CONSTITUTION OF THE UNITED STATES § 450 (1840) (“One of the ordinary
modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence
to keep arms, and by substituting a regular army in the stead of a resort to the militia.”).
1172
Heller, at 2798, 2800, 2806-07
1173
Id. at 2839-40 (Stevens, J., dissenting).
551
the militia.1174 Stevens’ view is contrary to that of James Madison, the author of the Second
Amendment. In Madison’s notes for his speech introducing the Bill of Rights into the House of
Representatives, he described arms rights amendment a remedying two crucial defects in the English
Declaration of Right: that the right included only the Protestant population, and that the right was, as a
statutory enactment, efficacious against the king, but not against the actions of later Parliaments.1175
But even without reference to Madison’s notes, the Stevens theory that the Second Amendment
does not include the right of self-defense simply collapses when one gets to the word “the”.
The Second Amendment does not purport to grant a right, but instead declares that “the
right…shall not be infringed.” Thus, the Second Amendment guarantees a preexisting right. The Heller
majority says so,1176 and Stevens concedes the point.1177 What was that pre-existing right? There are
only two possibilities. One, as explicated by Scalia (consistent with Madison), is that the right is the
English/Blackstone/natural right of arms for self-defense. Stevens, however, contends that “the” right is
the right to serve in an armed militia. Only if he is correct about this point can his dissent as a whole be
correct that the Second Amendment is purely about a right to have arms while in militia service.
There is not a shred of evidence from 1789, or from anytime before 1789, that militia service
was a “right.” As Justice Scalia pointed out, the Stevens claim that “the” pre-existing right in the Second
Amendment was a pre-existing right to service in the militia is unsupported by any evidence. There is
simply no document or other source, from the 18th, 17th, or 16th centuries (or indeed from any century
until the 21st, when the claim was invented as part of the Heller litigation) that the Second Amendment
was preceded somewhere in Anglo-American law by a right to serve in the militia, or to have arms
solely while in the militia. Rather, this novel theory appears in the Heller amicus brief filed by the Brady
Center.1178 The brief too is unadorned by any citation for its claim.
B. Natural Right and the Breyer dissent
1174
Id. at 2837-38 (Stevens, J., dissenting).
1175
“They [the proposed Bill of Rights] relate 1st. to private rights-- . . . fallacy on both sides--espec[iall]y as to English
Decln. of Rts--1. mere act of parl[iamen]t. 2. no freedom of press—Conscience . . . attainders—arms to Protest[an]ts.” James
Madison, Notes for Speech in Congress Supporting Amendments (June 8, 1789), in 12 THE PAPERS OF JAMES MADISON 193-94
(Charles F. Hobson et. al. eds., 1979). One can only speculate about the Heller majority did not mention Madison’s notes.
The notes were certainly discussed in one of the most important amicus briefs. BRIEF OF ACADEMICS FOR THE SECOND
AMENDMENT, at 34-35, District of Columbia v. Heller,
http://www.gurapossessky.com/news/parker/documents/07-290bsacAcademicsforSecondAmendment.pdf.
Oral argument made it clear that, at least, Justice Kennedy had read that brief. Perhaps Justice Scalia was being absolutely
faithful to the “original public meaning” theory of interpretation. That is, consider what the public thought the constitutional
language meant; do not try to divine “original intent” two centuries later by looking at diaries of the Founders.
1176
Heller, at 2797-98.
1177
Id. at 2831 (Stevens, J., dissenting).
1178
Amicus brief for the Brady Center to Prevent Gun Violence et al., 18 n. 6, District of Columbia v. Heller,
http://www.gurapossessky.com/news/parker/documents/07-290tsacBradyCenter.pdf (pointing out that the state militia
systems pre-dated the Constitution, but providing no evidence that militia service was a right). For history of militia litigation
in the United States, and the near-total absence of the Second Amendment therefrom, see J. Norman Heath, EXPOSING THE
SECOND AMENDMENT: FEDERAL PREEMPTION OF STATE MILITIA LEGISLATION, 79 U. Det. Mercy L. Rev. 39 (2001).
552
Most of the Breyer dissent lays out an interest-balancing test, in which Justice Breyer argues that
there is some social science evidence in favor of the D.C. handgun ban, and therefore a judge cannot say
as a matter of law that the ban is unconstitutional.1179 A crucial step in that interest-balancing test is the
weight of the interest on each side. Justice Breyer points out that preservation of arms ownership for use
in a citizen militia was a major concern of the Second Amendment.1180 Accordingly, he disputes the
majority’s statement that the right of self-defense is “central” to the Second Amendment, and that the
“core” of the Second Amendment is armed self-defense of the home.1181
Justice Scalia responded by explaining why interest-balancing was inappropriate for a core
constitutional right, but he did not directly address Breyer’s question about why self-defense should be
considered part of the core in the first place. However, the answer is fairly clear from the natural law
perspective which is incorporated in the majority opinion. Blackstone describes the right to personal
defensive arms (protected but not created by the 1689 English Declaration of Right) as a “natural” right.
Other sources in the majority opinion make the same point that the Second Amendment protects a
“natural” right.
Even if balancing were appropriate, Justice Breyer’s scales are inaccurate, because they
underweight the importance of self-defense. Surely nothing could be more fundamental than a natural
right. The Declaration of Independence, after all, did not begin with a statement of the importance of
rights which were created by government (e.g., the right of a citizen to be assisted by his nation’s
consular offices when he is traveling in a foreign country). Rather, the Declaration starts with natural,
inherent rights, and states that the very purpose of government is to protect these rights. By the
Declaration’s principles, the time that is most appropriate for rigorous judicial review is when a
government infringes on one of the natural rights which the very government was established to protect.
From Grotius, Pufendorf, and many other sources, the Founders could see that self-defense had
been protected under the laws of Ancient Rome and Ancient Greece, and from the very inception of the
Hebrew nation.1182 The historical episodes when the right of armed self-defense was endangered—the
persecution of the disarmed Huguenots in France, the gun bans of the power-mad Stuarts monarchs in
1179
Justice Breyer supported the argument by pointing to gun restrictions in a few cities in early America. The centerpiece of
the argument was a Massachusetts law which prevented taking loaded guns into buildings in Boston. Heller, at 2849 (Breyer,
J., dissenting) (Providing a fine for any person who “shall take into any Dwelling-House, Stable, Barn, Out-house, Ware-
house, Store, Shop, or other Building, within the Town of Boston, any . . . Fire-Arm, loaded with, or having Gun-Powder.”).
Justice Breyer took the case as standing for the possibility constitutionality of bans on self-defense guns in the home: “Even
assuming, as the majority does, see ante, at 59–60, that this law included an implicit self-defense exception, it would
nevertheless have prevented a homeowner from keeping in his home a gun that he could immediately pick up and use against
an intruder. Rather, the homeowner would have had to get the gunpowder and load it into the gun, an operation that would
have taken a fair amount of time to perform.” Justice Breyer appears to have misread the statute, which only outlawed the
taking of guns into buildings. The statute did not prohibit loading a gun within one’s own home or business, and keeping it
loaded therein.
1180
The balancing test is offered arguendo, since Justice Breyer explains that he is also joining the Stevens dissent, which
argues that there is an individual Second Amendment right, but that right has no application outside of militia service. Heller,
at 2847-48 (Breyer, J., dissenting).
1181
Heller, at 2866 (Breyer, J., dissenting) (“at most a subsidiary interest”).
1182
See Kopel, THE HUMAN RIGHT OF SELF-DEFENSE; see also David B. Kopel, THE TORAH AND SELF-DEFENSE, 109 Penn
State L. Rev. 17 (2004); David B. Kopel, The RELIGIOUS ROOTS OF THE AMERICAN REVOLUTION AND THE RIGHT TO KEEP AND
BEAR ARMS, 17 J. Firearms & Pub. Pol’y 167 (2005)(early Americans’ views of ancient Israel as their role model).
553
England, the 1775 confiscation of privately-owned from the people of Boston by General Gage’s
army—were precisely the episodes of tyranny which the Founders aimed to ensure would never again
take place in the United States of America. From the Founders’ perspective, the right to arms truly was
found “wherever civilization exists.”
554
III.
The Natural Right’s Implication for Future Legal Developments
A. Implications for American Law
Self-defense has generally been highly regarded by the American public, and Nicholas Johnson
has persuasively argued that self-defense is the epitome of an unenumerated Ninth Amendment right.1183
In contrast, some commentary has denigrated self-defense as a privilege, not a right.1184
Heller moves self-defense from the shadowy limbo of the Ninth Amendment into the bright
uplands of the Second Amendment. It is now beyond dispute, in an American court, that self-defense is
an inherent right, and that it is protected by the United States Constitution.
The constitutional history of the right of self-defense is similar to that of the right of association.
The right of association is not formally stated in the Constitution. But it is easy to see how if the right
did not exist, many of the core purposes of the First Amendment might be defeated. For example, if
people could not voluntarily associate in groups such as the NAACP, then their practical ability to
petition the government for redress of grievances, to assemble, and to speak out effectively on issues of
public importance would be greatly diminished. Thus, starting in 1958, the Supreme Court recognized a
constitutional right of association, finding it rooted in the First and Fourteenth Amendments.1185 Over
the subsequent half-century, the Court has fleshed out that right, and applied it in many contexts far
distant from the original cases involving Jim Crow state governments attempting to suppress the
NAACP.
In a series of cases in the late nineteenth and early twentieth centuries, the Supreme Court
strongly defended the right of self-defense—holding, for example, that carrying a gun for lawful
protection was not evidence of murderous intent, and that a crime victim was not required to retreat or to
avoid any place where he had a right to be before he could exercise his right to use deadly force in self-
defense.1186 Likewise, the defensive actions of crime-victims should not be subjected to judicial second-
guessing; as Justice Holmes memorably put it: “Detached reflection cannot be demanded in the presence
of an uplifted knife.”1187
These cases were decided as matters of federal common law, most of them arising out of death
sentences improperly imposed on people in the Indian Territory of Oklahoma for use of a gun in self-
1183
See Nicholas J. Johnson, SELF-DEFENSE? 12 J. Law, Econ. & Pol’y 187 (2006).
1184
E.g., Vera Bergelson, RIGHTS, WRONGS, AND COMPARATIVE JUSTIFICATIONS. 28 Cardozo L. Rev. 2481, 2488 (2007)(“All
public officials--a policeman performing a valid arrest, a sheriff taking possession of the debtor’s property pursuant to a court
judgment, or an executioner giving the prisoner a lethal injection in accordance with the execution order--act under the right
to act that way. In contrast, people acting in self-defense, or pursuant to necessity or parental authority act merely under a
privilege.”)
1185
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958).
1186
See David B. Kopel, THE SELF-DEFENSE CASES: HOW THE UNITED STATES SUPREME COURT CONFRONTED A HANGING
JUDGE IN THE NINETEENTH CENTURY AND TAUGHT SOME LESSONS FOR JURISPRUDENCE IN THE TWENTY-FIRST, 27 Am. J. Crim.
L. 293 (2000).
1187
Brown v. United States, 256 U.S. 335, 343 (1921) (also declaring there is no duty to retreat).
555
defense.1188 Now that Heller has made it clear that selfdefense is part of the Constitution, and not just
part of federal common law, there may be plausible arguments that the rules of the Self-Defense Cases
are likewise required as a matter of constitutional law.
Should the Second Amendment be incorporated against the states, a few jurisdictions might have
to change hostile procedural rules against self-defense. For example, until recently, Arizona required
that a defendant asserting self-defense must carry the burden of proof.1189 The few states which require
retreat by a crime victim in her own home might lose constitutional challenges to those laws. If a judge
prohibited a criminal defense lawyer during voir dire from asking potential jurors about whether they
had moral objections to self-defense, a criminal conviction from such a jury might be invalid.1190
B. Implications for Foreign Law
Heller of course only applies as binding law within the jurisdiction of the United States.
However, American constitutional law has a long record of infiltrating into other civilized nations.
American protection for freedom of speech and freedom of the press, as well as American anti-
discrimination laws, have had significant influence in our fellow democracies. Sometimes that influence
is direct, with foreign courts citing American precedents. But more important, in the long run, is the
effect that the American example has on the rights-consciousness of the public in those nations.
The right to arms has already shown that it travels. In 2006, the people of Brazil overwhelmingly
rejected a referendum to ban gun ownership, and proponents of the referendum noted with dismay the
success of anti-referendum advertising which urged Brazilians not to surrender their rights.1191
For the last decade, the United Nations has led a concerted global campaign against citizen gun
ownership. The global prohibitionists have, to the extent they have acknowledged any American interest
in protecting American laws, claimed that the Second Amendment protects no individual right of gun
ownership, but is only a “collective” right which no individual has a right to exercise. All nine Justices
in Heller rejected that claim, and affirmed that the Second Amendment guarantees an individual right.
As a fallback position, some advocates have stated that the American Second Amendment is unique, and
that its very absence shows the permissibility of gun prohibition in other nations.1192
1188
Kopel, THE SELF-DEFENSE CASES, supra.
1189
E.g., State v. Farley, 199 Ariz. 542, 544-545, 19 P.3d 1258, 1260-1261 (Ariz. App. 2001) (upholding statutory
requirement that criminal defendant prove self-defense by preponderance of evidence).
1190
Black v. State, 829 N.E.2d 607 (Ind. App., 2005) (based on self-defense right in Indiana Constitution).
1191
See David Morton, GUNNING FOR THE WORLD: THE NATIONAL RIFLE ASSOCIATION HAS FOUND THAT ITS MESSAGE -- LOVING
FREEDOM MEANS LOVING GUNS -- TRANSLATES INTO ALMOST EVERY LANGUAGE, For. Pol., July 5, 2006: If you asked people in
Bosnia, Botswana, or, for that matter, Brazil, what the Second Amendment of the U.S. Constitution stands for, most of them
would probably have no idea. But the unexpected defeat of Brazil’s proposed gun prohibition suggests that, when properly
packaged, the “right to keep and bear arms” message strikes a chord with people of very different backgrounds, experiences,
and cultures, even when that culture has historically been anti-gun. In fact, the Second Amendment may be a more readily
exportable commodity than gun control advocates are willing to accept, especially in countries with fresh memories of
dictatorship. When it is coupled with a public’s fear of crime -- a pressing concern in most of the developing world -- the
message is tailored for mass consumption.
1192
Accord Thomas Gabor, FIREARMS AND SELF-DEFENCE: A COMPARISON OF CANADA AND THE UNITED STATES, Working
Document, Dept. of Just., Canada, July 1997, at 20,
556
The latter argument was never really correct as a matter of constitutional law. Three nations
besides the United States have a constitutional right to arms, and twenty nations have a formal
constitutional recognition of self-defense.1193
Heller’s natural law explication of the inherent right of armed self-defense teaches another very
relevant lesson. The right of self-defense is not culturally contingent, and it does not depend on national
law. The right of self-defense is a universal, fundamental, natural and inherent human right.
Of course there will be many governments which have ignored that right, and will continue to do
so. For example, in the United Kingdom and the Netherlands, the principle that there is a right even of
unarmed self-defense has been in grave danger—at least among the judiciary and the rest of the
governing elites.1194
Yet because Heller was not written solely in terms of positive American law, but rather which
explicit recognition of pre-existing natural rights, the case may play a role in reminding the people of the
world that they too have “the natural right of resistance and self-preservation,” a right which is
necessarily effectuated by “the right of having and using arms for self-preservation and defence.”1195
On the one side of the debate are the Kenyans who say that the central government, which is
manifestly unable and unwilling to protect the tribespeople, should rescind its prohibition on their
possession of arms. 1196 On the other side is the United Nations, which claims that self-defense is not a
http://www.cfc-cafc.gc.ca/pol-leg/reseval/publications/reports/1997/pdfs/selfdef_en.pdf.
1193
Kopel, The HUMAN RIGHT OF SELF-DEFENSE, at 138-41. Self-defense is in the constitutions of Antigua & Barbuda, the
Bahamas, Barbados, Belize, Cyprus, Grenada, Guyana, Haiti, Honduras, Jamaica, Malta, Mexico, Nigeria, Peru, Samoa, St.
Kitts & Nevis, Saint Lucia, Saint Vincent and the Grenadines, Slovakia, and Zimbabwe. The right to arms is explicit in the
Constitutions of Guatemala, Haiti, Mexico, and the United States. Id.
1194
Following years of public pressure, the government of the U.K. in July 2008 amended the self-defense law to clarify and
protect some self-defense rights for the victims of home invasions. See Criminal Justice and Immigration Act 2008, 2008 ch.
4, § 76: reasonableness use of the force is to be judged according to the circumstances as the defender perceived them; and
must consider “(a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any
necessary action; and (b) that evidence of a person’s having only done what the person honestly and instinctively thought was
necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that
purpose.”; see also Richard Edwards, Crime Correspondent and Chris Hope, “HAVE-A-GO HEROES” GET LEGAL RIGHT TO
DEFEND THEMSELVES, The Telegraph (London), July 16, 2008.
1195
A right of self-defense without a right to at least some defensive arms would be a right of little practical utility. It is
arms—especially, firearms—which allow a weaker person to defend herself against a stronger attacker or group of attacker. It
is the firearm which best makes a deterrent threat of self-defense, while allowing the victim to remain beyond the grasping
distance of the stronger assailant(s).
1196
Paul Letiwa, WHY HERDERS WON’T SURRENDER THEIR FIREARMS JUST YET, The Nation (Kenya), April 30, 2008
http://allafrica.com/stories/200804300138.html (“‘‘How can the Government ask us to surrender our guns when we know
very well that there is no security for us? If we give out our firearms, say today, who will protect us when the neighbouring
tribes strike? How about our stolen livestock? Who is going to return them to us?’ Mr Lengilikwai talks with bitterness.”);
Ng’ang’a Mbugua, LAW SHOULD BE CHANGED TO FREE GUNS, The Nation (Nairobi), Apr. 25, 2008,
http://allafrica.com/stories/printable/200804251276.html (Noting success of armed defense program of the people of the
Keiro Valley, “In the past, critics of liberalising access to firearms have argued that they would put ordinary people’s lives in
peril because even squabbles in the streets or the bedroom would be resolved by bullets. Incidentally, such incidents are few
and far between in the Kerio Valley despite the easy accessibility of AK- 47s as well as the relatively low levels or education
and social sophistication….If Kenya is to achieve long-lasting stability, it ought to borrow a leaf from the US, whose
constitution gives the people the right to bear arms and form militias for their own defence should the armed forces fail them,
557
right, but is a violation of the right of the criminal attacker, which seeks to outlaw all defensive
ownership of firearms, and which has declared that laws in the United States and other nations which
allow use of deadly force against rapists and other violent predators are a human rights violation.119756
Heller points to a resolution of the conflict. Long before there was a United Nations, or a United
States of America, there were inherent natural rights. The recognition of those rights is as old as
civilization itself. Perhaps one of the greatest influences of Heller (and, I hope, its progeny) will be in
other nations, where the explicit affirmation of the natural right of self-defense by the most influential
court in the world will bolster our global brothers and sisters in their efforts to preserve and strengthen
their own natural right of resistance and self-preservation.
as happened in Kenya after the December elections.”). See generally David B. Kopel, Paul Gallant & Joanne D. Eisen,
HUMAN RIGHTS AND GUN CONFISCATION, 26 Quinnipiac L. Rev. 383 (2008) (describing gun policies in Kenya, Uganda, and
South Africa).
1197
6. See U.N. Human Rights Council, Sub-Comm’n on the Promotion and Prot. of Human Rights, 58th Sess., ADOPTION OF
THE REPORT ON THE FIFTY-EIGHTH SESSION TO THE HUMAN RIGHTS COUNCIL, U.N. Doc.
A/HRC/Sub.1/58/L.11/Add.1 (Aug. 24, 2006), available at http://hrp.cla.umn.edu/documents/

A.HRC.Sub.1.58.L.11.Add.1.pdf. The United Nations report on self-defense in analyzed in detail in Kopel, THE HUMAN
RIGHT OF SELF-DEFENSE, supra.
558
559
EXHIBIT 20 – NICK BRADLEY, NATIONAL SECURITY, SWISS STYLE
EXHIBIT 20. Nick Bradley, National Security, Swiss Style

National Security, Swiss-Style
by Nick Bradley
http://www.lewrockwell.com/orig8/bradley1.html
June 11, 2007
Nick Bradley is an analyst in the United States Air Force and is currently pursuing an M.A. in Strategic
Intelligence at American Military University.
Contrary to popular belief, history has repeatedly shown that societies do not need full-time, government-
funded militaries to defend themselves – a heavily-armed populace will suffice. Let us look at Switzerland. Since
1291, Switzerland has defended itself through the use of a heavily-armed populace and a robust militia.
Throughout the past 800 years, the Swiss citizenry has defended their liberty against threats both foreign and
domestic.
A Revolt against Taxes and Inflation
During the Thirty Years’ War, the Swiss Confederation was the only major power to abstain from
hostilities. As a result, the Swiss economy boomed from the wartime drop in productivity, selling agricultural
products at high prices to war-ravaged countries (similar to the US agricultural boom during World War One,
with agricultural output almost doubling). However, Swiss cities spent much of their resources building
fortifications, such as bastions, to protect from invasion. The redirection of resources away from productive,
commercial endeavors towards security reduced the tax base for the Cantonal governments. Additionally, the
war’s heavy financial burden caused France and Spain to suspend payment to the Cantons for mercenary services
rendered.
In order to maintain revenue, the Cantonal governments began raising taxes. In order to keep wealth local,
the city governments responded by debasing their currencies to reduce the real amount of tax payments to the
Cantonal governments; Berne, for example, arbitrarily reduced the value of the copper Batzen by 50%, while
other areas practiced coin clipping. At the same time, European agricultural prices plummeted with the economies
of southern Germany returning to pre-war production levels. Swiss monetary authorities reacted to the price
reductions by further debasing the currency.
In reaction, the Swiss peasantry demanded a return to previous levels of taxation and an end to inflation,
which Swiss authorities refused to do. As a result, an armed Swiss peasant revolt swept through the country,
forcing authorities to eventually accede to their demands.
The Helvetic Republic
During the French Revolution, radical French ideology infected much of the Swiss elite, particularly in
the French-speaking Western Cantons. Swiss leadership acceded to French demands in 1798 and established the
Helvetic Republic. The Radicals, backed by the occupying French Army, abolished the Cantonal governments
and established a centralized state. The citizenry, particularly in the Catholic Cantons, rose up and challenged the
centralized state and the French military presence through both armed and passive resistance. In 1803, Napoleon
introduced the Act of Mediation, which restored the Cantons and removed all French troops from Switzerland.
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EXHIBIT 20 – NICK BRADLEY, NATIONAL
20th Century
In the 20th Century, Switzerland deterred invasion and forced involvement in both World Wars with its
rugged terrain, a heavily-armed populace, and a policy of relative non-intervention. Prior to WWI, the German
Kaiser asked in 1912 what the quarter of a million Swiss militiamen would do if invaded by a half million
German soldiers. In response a man from Switzerland replied: “shoot twice and go home”.
During the Nazi invasion of France, the Luftwaffe violated Swiss airspace over 200 times; the Swiss
responded by forcing down Luftwaffe aircraft and even shot down 11+ Luftwaffe aircraft. The Third Reich
responded by sending in saboteurs to destroy Swiss airfields, an unsuccessful endeavor. Shortly thereafter, Hitler
called the Swiss “the most despicable and wretched people, mortal enemies of the new Germany” and began
immediate plans for the invasion of Switzerland, known as Operation Tannenbaum.
Hitler abandoned Operation Tannenbaum after it was realized that an invasion of Switzerland was
untenable, with 20% of the civilian population voluntarily mobilized to defend the country – including old men
and young boys, with Swiss women manning anti-aircraft artillery (AAA) pieces and running the civil defense
corps. The Third Reich also realized that there was no central government to target, nullifying the strategy of
blitzkrieg; most Swiss citizens did not even recognize the authority of the Federal President, and any surrender by
the Federal Government would have been ignored in the Cantons.
The Swiss also defended their sovereignty against Allied aggression as well. After US aircraft began
accidentally bombing Swiss towns near the German border, the Swiss Air Force enacted a policy of forcing down
single Allied aircraft and shooting at Bomber Formations (some have speculated that the bombings were not
accidental and were designed to force Switzerland in the Alliance; during the war, the Swiss flaunted Allied and
Axis sanctions by smuggling to the surrounding Axis powers). As accidental bombings persisted, the Swiss
government declared that any further accidental bombings would be declared acts of war. Although Switzerland
never declared war on the Allies, the Swiss Air Force forced down 23 aircraft in a three-day period in July of ‘44.
In total, 1,700 US airmen were interred during the War and a few US aircraft were even shot down (this chapter
of WWII history is entirely missing from US textbooks).
The “Swiss Model”, American Revolutionary Principles, and Private Antiterrorism
The Founding Fathers of the American Revolution were inspired Swiss freedom. John Adams praised the
Cantonal system, which prevented a despotic central government from emerging, gave citizens the right to vote in
local elections, and where every citizen had an inalienable right to bear arms. Patrick Henry applauded the Swiss
militia system for preserving Swiss independence with the need for a “mighty and splendid president.” In fact,
some argue that the Swiss militia system was the inspiration for our own Second Amendment.
Impressive efforts by the Swiss public over the years just goes to show that voluntary self-defense efforts
by a population can deter even the most aggressive of enemies. What if we applied Swiss-style defense here in the
United States?
The US government could arm all 90 million adult males, age 18–64 with an M-16 and 1,200 5.56mm
rounds (40 30-round magazines) for a one-time cost of about 1% (7 1/2 billion dollars) of the cost of our current
annual combined security budget ($750B+). Terror threats could by quickly identified by private intelligence
agencies such as Total Intelligence Solutions; voluntary civil defense corps would begin patrols of neighborhoods
and offer assistance/protection to any victims if an attack actually occurred. If foreign retaliation was necessary
after a terrorist or military attack, private military companies (PMCs), such as Blackwater USA or Triple Canopy,
could rapidly expand their force strength by hiring local militia units and collecting financial contributions from
corporations and patriots. Fourth-Generation Warfare expert and creator of the Global Guerillas blog, John Robb,
envisions a future privatized security apparatus:
EXHIBIT 20 – NICK BRADLEY561

, NATIONAL SECURITY, SWISS STYLE
Then, inevitably, there will be a series of attacks on U.S. soil. The first casualty of these will be another
institution, the ultrabureaucratic Department of Homeland Security, which, despite its new extra-legal
surveillance powers, will prove unable to isolate and defuse the threats against us. (Its one big idea for keeping the
global insurgency at bay – building a fence between Mexico and the United States, proposed in a recent
congressional immigration bill – will prove as effective as the Maginot Line and the Great Wall of China.)
But the metaphorical targets of September 11 are largely behind us. The strikes of the future will be
strategic, pinpointing the systems we rely on, and they will leave entire sections of the country without energy and
communications for protracted periods. But the frustration and economic pain that result will have a curious side
effect: They will spur development of an entirely new, decentralized security system, one that devolves power and
responsibility to a mix of private companies, individuals, and local governments. This structure is already visible
in the legions of private contractors in Iraq, as well as in New York’s amazingly effective counterterrorist
intelligence unit. But as we look out to 2016, the long-term implications are clearer.
Security will become a function of where you live and whom you work for, much as health care is
allocated already. Wealthy individuals and multinational corporations will be the first to bail out of our collective
system, opting instead to hire private military companies, such as Blackwater and Triple Canopy, to protect their
homes and facilities and establish a protective perimeter around daily life. Parallel transportation networks –
evolving out of the time-share aircraft companies such as
Warren Buffett’s NetJets – will cater to this group, leapfrogging its members from one secure, well-
appointed lily pad to the next. Members of the middle class will follow, taking matters into their own hands by
forming suburban collectives to share the costs of security – as they do now with education – and shore up
delivery of critical services. These “armored suburbs” will deploy and maintain backup generators and
communications links; they will be patrolled by civilian police auxiliaries that have received corporate training
and boast their own state-of-the-art emergency-response systems. As for those without the means to build their
own defense, they will have to make do with the remains of the national system. They will gravitate to America’s
cities, where they will be subject to ubiquitous surveillance and marginal or nonexistent services. For the poor,
there will be no other refuge.
This is what the Founding Fathers envisioned when they called for a robust militia, strong protection of
the right to bear arms, and warned against standing armies. With the removal of the false assurances provided by
the security state, Americans will need to take responsibility for their own security – personal security; we should
follow the fine example the Swiss have set, an example that inspired our own revolutionary founders.
Perhaps this is what Ron Paul–style national security would look like.
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EXHIBIT 20 – NICK BRADLEY, NATIONAL
EXHIBIT 20 – NICK BRADLEY563

, NATIONAL SECURITY, SWISS STYLE
EXHIBIT 21 – JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION
EXHIBIT 21. John E. Wolfgram, How the Judiciary Stole the Right to Petition
HOW THE JUDICIARY STOLE

THE RIGHT TO PETITION
John E. Wolfgram*
I. INTRODUCTION**
II. THE HISTORY OF JUDICIAL ARROGANCE TO FOUR CENTRAL ASPECTS OF THE

PETITION CLAUSE
A. ASPECT ONE: THE RIGHT OF PETITION FOR REDRESS VS. SOVEREIGN IMMUNITY
B. ASPECT TWO: JUDICIALLY CREATED PERSONAL & OFFICIAL IMMUNITY
C. ASPECT THREE: POLITICAL PERSECUTION FOR EXERCISING PETITION RIGHTS
D. ASPECT FOUR: THE JUDICIAL CONTEMPT FOR PETITIONING TO REDRESS GRIEVANCES
WITH GOVERNMENT IN FEDERAL COURT
III. THE DUAL MEANING OF THE PETITION CLAUSE: PROCEDURAL VS. SUBSTANTIVE
IV. THE JUDICIARY IS ORGANIZED TO AVOID SUBSTANTIVE REDRESS OF

CONSTITUTIONAL GRIEVANCES AND REASONABLE EXPLANATION OF
UNREDRESSABILITY
V. CONCLUSION
_______________________________________
* John E. Wolfgram, B.A. Degree (University of Wisconsin), J.D. Degree (Southwestern University 1977) Wolfgram founded the Constitutional
Defender Association in 1989 to advance Petition Clause Principles. Its name derives from the observation that the practical value of a Constitution depends
on the effective enforcement of constitutional rights and limits against government, by the people. The Petition Clause is the People’s Right to redress
government violations of the Constitution. It is The Constitution’s Defense system against government usurpation and oppression. More about the author and
his legal philosophy can be obtained on line at www.constitution.org. There, look up his name under “Confirmed Abuses.”
** Editor’s note: To better demonstrate the author’s passionate voice, many points of emphasis herein have been italicized or capitalized
accordingly.
564
565
HOW THE JUDICIARY STOLE THE RIGHT TO PETITION

John E. Wolfgram*
I.
INTRODUCTION
The right (of petition) embraces dissent, and “would seem unnecessary to be expressly provided for in a
republican government, since it results from the very nature and structure of its institutions. It is impossible
that it could be practically denied until the spirit of liberty had wholly disappeared and the people had become
so servile and debased as to be unfit to exercise any of the privileges of freemen. [D]eprivation of it would at
once be felt by every freeman as a degradation.”1198 (emphasis added).
This writer accepts the political wisdom and practical truth of the above quotation from a case that he
presented and lost to the Court of Appeals. This Article examines the mechanisms by which the government has
undermined and stolen the Right of Petition presently, and prospectively. To be sure, it has “practically denied”
the Right of Petition.
The theme suggests a practical implication. It is not that government has accomplished the “impossible” of
practically denying the right, but rather that the “spirit of liberty” has almost “wholly disappeared and the people
have become servile and debased.” But “fitness” to exercise the rights of freemen is never determined by the
many who have become servile, but by the few who refuse, at any cost, to surrender their rights to government.
It is for those very important few, lawyers, ordinary citizens and patriots, who carry the Nation’s full
burden of liberty on their shoulders, for whom this Article is written.
FOREWORD:
The Court has addressed the Petition Clause in many contexts, but four central aspects of it have been
completely ignored. Those central aspects tell the story of how the Judiciary stole the most important parts of the
First Amendment Petition Clause: The right of the individual to enforce his rights against government and its
agents.
The First Aspect is the right to sue government for redress. Instead of such a right, “sovereign
immunity” is the rule, and government can only be sued according to its consent. Immunity abridges the right to
redress grievances with government. This aspect demonstrates that sovereign immunity is unconstitutional and
irrational. The reason: The right to petition government for redress and governmental immunity from redress, are
direct contradictions. The former is our First Amendment. The latter is the progressive result of Supreme Court
decisions.
The Second Aspect is the inconsistency of personal and official immunities with the Petition Clause.
Immunity “law” evolved from the Court attempting to navigate between that contradiction, on the one hand, and
exposing that its immunity jurisprudence has rendered the Constitution all but unenforceable by the people against
their government, on the other. That made the law so unnecessarily complex, compound and convoluted that only
the rich can afford the attorneys necessary to protect constitutional rights or prosecute rights violators. That is a
two-class society in the making because only the rich can obtain justice under the law.
1198.
See Wolfgram v. Wells Fargo Bank, 53 Cal. App. 4th 43, 51 (1997), cert. denied, 522 U.S. 937 (1997) (citing
Story, COMMENTARIES ON THE CONSTITUTION 707 (1833)); see also Cooley, CONSTITUTIONAL LIMITATIONS:
PROTECTIONS TO PERSONAL LIBERTY 728 (8th ed. 1927) (quoting Lieber, LIBERTY AND SELF GOVERNMENT
124 (2d ed. 1859)).
566
If there is to be personal or official immunity then there must be alternatives consistent with the Petition
Clause. Both Chief Justice Burger and Justice Harlan proposed alternatives in their respective opinions in Bivens
v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971).1199 Both the Court, and Congress, has ignored their
call.
The Third Aspect is judicial persecution of persons for “criminal exercise” of the Right to Petition.
Because the significance of the Petition Clause is so judicially downplayed, United States attorneys frequently
charge protected activity as crimes. Defense lawyers and public defenders are not trained to spot or effectively
defend against such abuses. The result is putting thousands of “political prisoners” in jail for “criminal exercise”
of Petition Clause rights.
The Right to Petition is necessarily obnoxious to government’s will. After all, a petition for redress is a
complaint that government violated rights and a demand that it stop, and to compensate the complainant for
damages. It should not surprise anyone that government does not want the people doing that effectively. In
America, a person who petitions government over grievances of constitutional rights violations that government
does not want to hear, can go to prison for felonies like obstruction of justice, bank or mail fraud, or making
“false claims.”
In the United States today there are thousands of people in federal prisons for acts and intents that were
merely an exercise of a petition right that is obnoxious when government (because of immunity) is stone deaf to
petitions to redress grievances. It has whole systems of laws to politically persecute those who press their
grievances “too far.” But the common law history of the Right demonstrates that “too far” is in most cases, a part
of the Right of Petition.
The Fourth Aspect is the way the judiciary itself treats the Right of Petition when exercised in the
courts. The Court has worked out stringent tests to protect First Amendment rights requiring government meet
standards of “compelling state interest”; “clear and present danger,” and striking laws for “vagueness” and
“overbreadth” that fail the tests. Yet, in petitioning before government’s very own courts, the rules are vague,
ambiguous, overly broad and judges determine such petitions arbitrarily and without care for the merits by
dismissals which are by “law” with prejudice, as if on the merits. Appellate courts simply refuse to address major
constitutional issues in unpublished opinions that decide cases without addressing the merits. The Court refuses to
hear any of the four aspects raised in this article.
The combined effect of these four arrogances to the Right to Petition leaves the people without effective
means to communicate with government through process of law. The Court has often acknowledged that the
alternative to judicial process is force. Therefore, in so abridging the right of the people to obtain just redress
1199.
Chief Justice Burger proposed that “Congress should develop an administrative or quasi-judicial remedy against
the government itself to afford compensation and restitution for persons whose fourth amendment rights been violated.” 403
U.S. at 422. His error is in thinking such a system should originate in Congress, or be limited to fourth amendment rights. See
U.S. v. Lee, 106 U.S. 196 (1882), recognized a right similar to that in Bivens, arising out of the due process and just
compensation clauses. Justice Harlan’s concurring opinion in Bivens is that a direct action should lie for violation of any
Constitutional Right. The question is not “judicial vs congressional power to create such a system.” The first amendment says
“Congress shall make no law abridging ... the right of the people ... to petition government for a redress of grievances.” Thus,
Congress does not have the power to abridge the right to sue government for redress. (emphasis added) But it can create
alternatives that people are induced to use, so long as it does not abridge the basic right to sue for redress. The judiciary can
not legislate, but the “petition clause” problem is not a legislative problem, but pre-emption of common law remedies by
judicially created “sovereign immunity.” Thus, the end the Chief Justice urged, is not up to Congress, nor directly up to the
judiciary. Rather, it is for the judiciary to free the people from “sovereign immunity”. Only by renouncing that assumption
can it free the common law to develop remedies for rights violations. Then Congress can develop alternatives that the people
freely choose over the Right to sue in the courts.
567
through the compulsory process of law, the judiciary is setting the people up for violence against government by
refusing to hear their cries for justice. That is our government waging a war of oppression against its own people.
II.
THE HISTORY OF JUDICIAL ARROGANCE TO
FOUR CENTRAL ASPECTS OF THE PETITION CLAUSE
A. ASPECT ONE: THE RIGHT OF PETITION FOR REDRESS VS. SOVEREIGN IMMUNITY
Almost from the beginning of our nation, the Court assumed away a major significance of the Petition
Clause, holding that as a sovereign nation, the United States is immune from suit, without addressing the affect of
the Constitution generally1200 or of the Petition Clause specifically, on that “sovereign immunity.”
In 1793, barely two years after the adoption of the Bill of Rights, Chief Justice Jay first announced the
rule giving way to “sovereign immunity” in obiter dictum.1201 He noted that the issue was affected by the
difference between a republic and a personal sovereign and saw no reason why a state may not be sued. But he
doubted a suit would lie against the United States because “there is no power which the courts can call to their
aid” to enforce a judgment. So began America’s journey into judicial tyranny. It is based on an irrational fear that
if the courts ordered government to redress its wrongs arising under the Constitution, the government could refuse
and make the judiciary seem weak.
Judicial cowardice is not a very good reason to refuse to support the Constitution.
Among other things, it assumes that the legislative and executive branches, when faced with a judicial
determination that government owes compensation to redress grievances arising under the Constitution, would
refuse to support the First Amendment Petition Clause and Fifth Amendment Due Process Clause rather than to
raise the taxes necessary to fill an order arising under the Judiciary’s Article III jurisdiction.
So, instead of standing tall for the Constitution and its enforceability against the government, our very
first Supreme Court announced the “rule of unaccountability” of government to the people. That rule is this:
“Because the Judiciary cannot enforce its order against the government requiring it to be fair and just under the
Constitution, the judiciary will not require it to be.”
That is hardly a rule upon which to found a great nation, but it is the rule upon which the relationship
between the American Government and its citizens is founded. It is a rule of cowardice under an assumption that
government is will basically rule by brute force.
But more than anything, it is a self fulfilling prophesy. It lays the foundations for eventual federal
arrogance to state and individual rights.
In Cohens v. Virginia,1202 Chief Justice Marshall avoided Justice Jay’s weakness by simply asserting “the
universally received opinion is that no suit can be commenced or prosecuted against the United States.” Later, In
1200.
Justice Brennan believed “sovereignty was surrendered in the Plan of the Convention.” See Edelman v. Jordan,
415 U.S. 651 (1974). See Art. I, Sections 9 and 10 for some specific “surrenders” by both federal and states at the
Convention. The ninth and tenth amendments imply absence of federal immunity. The due process and just compensation
clauses implies accountability by government for its wrongs. But for those who still doubt, The petition clause is the specific
“surrender” of governmental immunity from the people.
1201.
See Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).
1202.
See Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821).
568
United States v. Clarke,1203 he declared that because the United States is not “suable of common right, the party
who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot
exercise jurisdiction over it.”1204
There can be seen from the trail of cases a common design to ignore the Petition Clause and the “Right of
Petition” that it necessarily implies, without addressing it, but without specifically denying it either. In that sense,
if the Petition Clause of the First Amendment does not mean that the people have a right to petition for just
redress from government under the law that even Congress cannot abridge, what does it mean? Yet, over the first
half of the nineteenth century, judicial arrogance to the single most important right of justice against government
became our “common law,” the express declarations and implications of the Constitution as it is written to the
contrary, notwithstanding.
United States v. Lee:1205 It wasn’t until 1882 that the “right of petition” was discussed at all in the
sovereign immunity context. In U.S. v. Lee, Justice Miller held that under the Due Process and Just Compensation
1203.
See United States v. Clarke, 33 U.S. (8 Pet.) 436 (1834).
1204.
The Court repeated the doctrine of sovereign immunity in at least a dozen cases in the nineteenth and early
twentieth century, but it has never analyzed the constitutionality of the doctrine. The tenth amendment states that the powers
not delegated to the United States are reserved. Where is the power of “sovereign immunity” delegated? If it is not fairly
within the four corners of the Constitution, it is not a federal power; a fortiori, when it is also expressly prohibited to the
United States by the petition clause. Some cases that assumed sovereign immunity without justifying it are: United States v.
McLemore, 45 U.S. (4 How.) 286 (1846); Hill v. United States, 50 U.S. (9 How.) 386, 389 (1850); De Groot v. United States,
72 U.S. (5 Wall.) 419, 431 (1867); United States v. Eckford, 73 U.S. (6 Wall.) 484, 488 (1868); The Siren, 74 U.S. (7 Wall.)
152, 154 (1869); Nichols v. United States, 74 U.S. (7 Wall.) 122, 126 (1869); The Davis, 77 U.S. (10 Wall.) 15, 20 (1870);
Carr v. United States, 98 U.S. 433, 437-39 (1879); Gibbons v. United States, 75 U.S. (8 Wall.) 269, 275 (1869); United
Statess v. Lee, 106 U.S. 196 (1882); Peabody v United States, 231 U.S. 530, 539 (1913); Koekuk & Hamilton Bridge Co. v.
United States, 260 U.S. 125, 127 (1922). In Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907), Justice Holmes stated the
reason for sovereign immunity is because “there can be no legal right as against the authority that makes the law on which the
right depends.” His explanation begs both the tenth amendment and petition clause questions, and portrays government
power as not bound by any law, not even its own. Again, government is portrayed as a “Brut of Force” that trounces its own
people without accountability for the wrongs it does. Such is a shocking statement by a man of his intellect, for it is obvious
that the ultimate recourse against the authority that makes law but disregards rights, is revolution ... and then to institute a
new government that is not so impertinent to the basis of power. That is exactly what our forebears did in 1776.
Notwithstanding government’s objection to such an interpretation, that right of rebellion is embodied in the common law
behind the petition clause.
1205.
See United States v. Lee, 106 U.S. 196 (1882). George Lee was the son of the Southern General from Virginia,
Robert E. Lee. Before the Civil War, then Col. Robert E. Lee worked for Abraham Lincoln and held an estate in 1100 acres
on the banks of the Potomac over looking Washington D.C. Before the War the property was known as “Arlington Estates”.
But during the war, tens of thousands of dead soldiers from both North and South, were brought into Washington with no
place to bury them. One popular story is that General Sherman inquired of who owned the property to purchase it for a
cemetery. But upon learning that it belonged to Lee, he commandeered it, and today, 400 acres of it are best known as
“Arlington National Cemetery.”
The story behind U.S.. v. Lee is even more interesting. Arlington Estates was visible from the White House. In
advance of the War Abraham Lincoln asked his Chief of Staff Col. Robert E. Lee, to Command the Army of the Potomac.
Lee took leave back to Virginia to consider the offer. Two weeks later he returned and told Lincoln that his loyalties were
with his Home State of Virginia. He left an embittered President behind. Lincoln knew that Lee was his best military
strategist and history records the magnitude of his loss as Lee beat back Lincoln’s armies time after time.
So the story goes, Lincoln, looking across the Potomac to Lee’s estate conceived a plan to hurt Lee and help finance
the war effort at the same time. He would lay a war tax on property and require landowners to pay the tax personally to the
tax collector, and not by agent. Southerners who owned land in the North wouldn’t be able to pay the tax, and would lose the
569
clauses government agents could be sued for unlawful takings, as a matter of right. At 27 L. Ed. 176, he
“concedes” that sovereign immunity is “the established law of this country, and of this Court at the present day.”
Then he discusses the English “Right to Petition.” He observes that it is uncertain whether the King “was
not suable in his own courts and in his kingly character” but after the right was established, it “was practiced and
observed in the administration of justice in England (and) has been as effective in securing the rights of suitors
against the Crown, in all cases appropriate to judicial proceedings, as that which the law affords in legal
controversies between the subjects of the King among themselves.”
Notice the strange effect. Justice Miller determined that the “Right of Petition” is a part of the common
law that we would normally inherit from England absent anything to the contrary in our Constitution. But he
doesn’t treat it like that at all. What he does is to assume away our Petition Clause without so much as a curtsy to
it:
There is in this country, however, no such thing as the petition of right, as there is no such thing as a
kingly head to the Nation, nor of any of the states which compose it. There is vested in no officer or body the
authority to consent that the State shall be sued, except in the law making power, which may give such consent
on the terms that it may choose to impose.1206 (emphasis added).
Justice Miller’s statement is absolutely false. If the Framers, noticing the English “Petition of Right,”
wrote it into the First Amendment as they wrote other “common law” rights into it, then it is our right too. No act
of Congress is necessary to give it effect. In fact, the First Amendment precludes Congress from making any law
“abridging” it. That is the strongest argument possible for a Right to sue government directly: It is written into our
Constitution and may not be abridged even by Congress.
The issue is the People’s Right to hold government to constitutional restraint. If they cannot hold it to
account for such violations, then either the Constitution is not the supreme law, or the supreme law does not bind
property. Eventually the Court determined that it violated due process to refuse to accept a tax paid by an agent. But Robert
E. Lee never offered to pay the tax at all. After the war, Lee lost his civil rights, but under U.S. CONST. art. III, § 3, the
forfeiture is limited to during the General’s lifetime.
When Lee died, his son sought to regain title to Arlington Estates which included by then, two post Civil War military forts
and Arlington National Cemetery. His theory was based in the common law of contract. If one to whom performance is due,
refuses tender, or announces in advance that tender will be refused, the law treats it as if performance has been made. Thus,
even though his father never offered to pay the tax, George Lee could treat it as paid. Because the United States had
“sovereign immunity” Lee sued the generals in whose name the property was being held for the United States, to eject them.
The case went to a Virginia jury to determine whether General Lee’s performance had been prevented by the tax collector’s
announcement that it would not accept payment by an agent. The Virginia Jury, generally sympathetic to the Robert E. Lee
family, found that performance had been prevented, and that the prevention was, according to previous Supreme Court
Decision, unlawful. Therefore the issue must be treated as if the tax had been paid. That meant that the title that transferred
the property to the generals was void and Lee’s son came into title upon Lee’s death. George Lee owned the property and
could eject government officers.
On certiorari to the Court, the United States interpleaded saying that it was the real party in interest, that it was a
necessary party; that it had Sovereign Immunity, and that immunity extended to the generals as agents of the United States.
Justice Miller’s treatment of the “Necessary Party” argument is most interesting. Citing from other cases, principally from
Chief Justice Marshall in Osborn v. Bank of U.S., 22 U.S. (9 Wheat.) 738 (1824) he concluded: “Where the State is
concerned, the State should be made a party, if it can be done. That it cannot be done (because of immunity) is a sufficient
reason for the omission to do it, and the court may proceed to decree against the officers of the State, in all respects as if the
State were a party to the record.”
1206.
See 27 L. Ed. at 176.
570
government. The supreme law of the land must be as binding on government when government doesn’t like it as
it is on citizens whether they like it or not. If either the people or government do not like certain constitutional
clauses the remedy is to amend the Constitution, not “interpret” it contrary to its express and contextual meanings.
The Constitution contains its own terms for amendment, and “judicial fiat” is not among them.
The Defense of Sovereign Immunity:
The fallacies of sovereign immunity are best seen through its defense in the Lee dissent. It has only two
basic propositions. The first is that the United States is a “sovereign,” and as such, cannot be sued without its
consent. The second is a parade of horribles, if the sovereign is subject to suit. The first argument: “the United
States is sovereign and cannot be sued.”
“That maxim (immunity from suit) is not limited to a monarchy, but is of equal force in a republic. In the
one, as in the other, it is essential to the common defense and general welfare, that the sovereign should not,
without his consent, be dispossessed by judicial process, of forts, arsenals, military posts and ships of war
necessary to guard the national existence against insurrection and invasion; of custom houses and revenue cutters,
employed in the collection of revenues; or of light-houses and light-ships established for the security of commerce
with foreign Nations and among different parts of the country.”1207
This argument contains Two Major Fallacies:
The First Fallacy:
Where does this idea that government is immune from suit come from? The history of the right to sue
government dates to 1215 A.D. and the signing of the Magna Carta. How in that light, is “sovereign immunity
from suit” a “maxim?” And even if it were such in England, what would make it a “maxim” in post revolutionary
America?
Put more closely to the point raised by the dissent, who determines what is essential to the common
defense and general welfare? To be sure, government through the Congress, and even through the executive, has a
role. But the people, in framing the Constitution, had first choice of the values to be enshrined. If they determined
it is government’s duty to redress their grievances for rights violations, it is not for government to re-evaluate that
decision, but to carry it into effect. That is the Petition Clause command which “Congress shall make no law
abridging.”
The First Fallacy in defense of sovereign immunity then, is a “bootstrap” argument. By assuming that sovereign
immunity is a “maxim”, the dissent begs the question at issue.
The Second Fallacy:
The argument ignores the government’s right of condemnation. Where petition rights would dispose of
government of essentials, government has a right to condemn what it needs, but it must pay a just compensation
for it. Thus the parade of horribles the dissent sets out has nothing to do with loss of necessary facilities by
judicial process. What they want to protect is government’s “right” to take property without just compensation:
theft.
That is today the people’s grievance with government: When it comes to the people’s rights, the official
disposition is the same as that of organized crime: “take what you want, and don’t pay for it unless you get caught
and then stonewall the aggrieved into oppression.”
1207.
Id. at 183.
571
The real substantive Petition Clause vs. Sovereign Immunity issue: What sovereign immunity allows is for
government to wrongfully injure its citizens, their liberty and property, without just compensation? It is not injury
to rights that is in issue. Rather, it is just compensation for such injury that is in issue: government wants the right
to be a crook.
The idea of government taking what ever it wants by force and oppression is the basic barbarian notion rejected
by our Constitution, but resurrected by judicial interpretation. “Immunity” is “justified” by the very ancient (pre
Magna Carta) “common law” of England, where the King took what he wanted and wasted the property and lives
of those who resisted.
As to the “parade of horribles” objection, Justice Miller observed:
In this connection, many cases of imaginary evils have been suggested, if the contrary doctrine should prevail.
Among these are seizure of vessels of war, invasions of forts and arsenals of the United States. Hypothetical cases
of great evils may be suggested by the particularly fruitful imagination in regard to almost every law upon which
depends the rights of the individual or of the government, and if the existence of laws is to depend upon their
capacity to withstand such criticism, the whole fabric of law must fail.
United States v. Lee allowed suit against the “Sovereign’s” officers. But courts since have given great weight “to
the particularly fruitful imagination in regard to almost every law upon which depends the rights of the individual
or of government. 1208
Sovereign Immunity Violates International Law:
As shown, sovereign immunity finds no support in our history. It was not in our common law before the
Constitution; it is actually prohibited by the Constitution, and its assumption is a living contradiction to the very
idea of limited government designed into the Constitution. Sovereign immunity is inconsistent with government
accountability for injuries caused in violation of its own law.
Beyond arguments arising out of history and the clear language of the Petition Clause itself, the future
prospects of governments remaining unaccountable to their own citizens for the injuries they cause in violation
rights, is not very persuasive either. On that point, The Universal Declaration, Art. 8, states the essence of our
Petition Clause, as to all governments: Everyone has the right to an effective remedy by the competent
national tribunals for acts violating the fundamental rights granted him by constitution or by law.
Notice the words “right to an effective remedy.” What is an “effective remedy” for rights violations if it is
not the right to sue government for just redress under law? That is a founding treaty of the United States with the
1208.
The reasons identified in Scheuer v. Rhodes, 416 U.S. 232 at 240 for official immunity are more illusory than
real. While fear of personal liability may tend to intimidate officials, most officials are or can be covered by insurance or
indemnity agreements. The idea that such fears would injure government performance is the same argument as “Doctors must
be immune from negligence actions or otherwise hospitals will be intimidated from providing medical services.” The
question is whether the complexity of rules carved out to immunize government officials become so burdensome so as to
chill the people from seeking just redress for grievances with government. As that happens, government loses contact with
accountability for the wrongs of its agents, and with that, all motives to become more fair, more kind and more gentle with its
people. In Owen, 445 U.S. at 629, n.6, the Court notes that “Ironically, the publication of the libelous documents was caused
by City Counselor’s assurance that ‘the City does have immunity in this area.” Thus, immunity creates its own Constitutional
violations and neither the Judiciary nor Congress have any idea how extensive that problem is. Likewise, when the Court
makes immunity policy, it has no scientific support for its finding that “fear of potential liability for doing his official duty”
really impairs any public interest. In fact, one can come to the opposite conclusion: That exposure to liability for wrongs in
office selects for more honest and diligent officials who know that the best defense to intimidation from potential liability for
doing one’s job under the Constitution, is to understand and support the Constitution in the performance of that job.
572
United Nations forbidding our government from exercising immunity from its citizens for its violations of
constitutional rights. Notice here, for later consideration, that the right to an effective remedy, is a substantive
right.
The International Covenant1209 Article II, §§ 2, 3 declares:
2. Where not already provided for by existing legislative or other measures, each State party to
the present Covenant undertakes to take the necessary steps, in accordance with its constitutional
processes and with the provisions of the present Covenant, to adopt such legislative or other
measures as may be necessary to give effect to the rights recognized in the present Covenant.1210
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated
shall have an effective remedy, notwithstanding the violation has been committed by persons
acting in an official capacity.
(b) To ensure that any person claiming such a remedy shall have his right thereto
determined by competent judicial, administrative or legislative authorities, or by any other
competent authority provided for by the legal system of the State, and to develop the possibilities
of judicial remedy;1211 (emphasis added)
Effective Rights is the Hallmark of Civilization:
The argument that the Right of Petition includes the right to use the compulsory process of law against
government to redress grievances with it does not depend on any particular idea of the common law or of history.
The most important argument of all is that of the Petition Clause as it is written, and in its context. What else can
be meant by those words then that government is accountable under the law for the wrongs that it does to the
people. That is a fundamental concept of civilization, as we know it.
1209.
The International Covenant on Civil and Political Rights was adopted by the United Nations on 12/16/66, and
signed by the United States on October 5, 1977. The Senate by resolution of 4/2/92, gave its advice and consent to
ratification, subject to Reservations, Understandings and Declarations. Instrument of Ratification, signed by President George
Bush, 6/1/92. There, Art. III, § 3 declares: “That the United States declares that it accepts the competence of the Human
Rights Committee to receive and consider communications under Art. 41 in which a State Party clams that another State
Party is not fulfilling its obligations under the Covenant.”
1210.
In the present context, the emphasized clauses obligate the United States Judiciary to free the Constitution’s
petition clause to do its work by undoing the assumption of sovereign immunity. The Covenant is presented for both its
binding force as “Supreme Law of the Land”, and also for its persuasive force in reason, to help understand the nature of our
own petition clause, that it is a law of reason freely chosen by our founders: If we now choose it freely as a basis for the
organization of free nations, why should we presume that it was less compelling when our founding fathers brought the
thirteen colonies together under one constitution?
1211.
The International Covenant’s preamble states the purpose of effective judicial remedies notwithstanding the
violation is committed by persons acting in official capacity, as follows: “Recognizing that, in accordance with the Universal
Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and
want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his
economic, social and cultural rights.” A condition necessary for enjoyment of rights, is compulsory process of law to protect
those rights; and to obtain just redress for their violation.
573
Any barbarian state can say its people have rights and point to a “[b]ill of [r]ights.” But “rights” don’t
mean a thing unless enforceable: people enforce rights, either with bombs and guns, or in a civilized world,
through effective compulsory process of law; to wit: the judicial remedy.
Sovereign immunity is the judicial theft of the people’s right to a civilized relationship between themselves,
individually, and their government. It should be seen for what it is.
Concluding Aspect One:
Thus began the myth of governmental sovereignty from the people. Today, the logic flows: Since the
United States can only be sued by and through its consent, suits against it can be brought only as prescribed by
Congress.1212
Only Congress can waive immunity. Its officers have no power to waive it.1213
Even when allowed, suits can be brought only in designated courts.1214 Congress may grant immunity to
corporations. 1215 And on it goes: government is immune, by its own declaration, to violate rights with impunity.
What are rights if government is immune to violate them?
What is a “Right” without the effective right to redress for its violation? Rights means Accountability of
Government directly to their own people for violations of their own people’s rights. That is the public policy of
the United States, by treaty;1216 and by Constitution.
Today, we have treaty obligations to expand judicial remedy to include rights violations “committed by
persons acting in official capacity” and requiring effective remedies for violations of domestic law. But we are
harnessed with a judiciary that insists on immunity from the people based in the bygone philosophy of “The
Divine Right of Kings.” Per Justice Jay, the “reason” America adopted that medieval judicial philosophy is his
lack of the courage of constitutional conviction. A few years later, Justice Marshall designed judicial supremacy
over the Constitution so that it now means whatever The Court says that it means1217. Between them, they found a
novel way to avoid the “messy business” of amending the Constitution. We can call that “Constitutional
Amendment by Judicial Fiat.” It is not legal, and in effect, it undermines the entire reason for having a
constitution at all. That is just cause for grievance with our “justice system.” The problem: how to capture the
government’s attention?
1212.
See Lonergan v. United States, 303 U.S. 33 (1938).
1213.
See United States v. New York Rayon, Co. 329 U.S. 654 (1947).
1214.
See United States v. Shaw, 309 U.S. 495 (1940).
1215.
See Brady v. Roosevelt S.S. Co., 317 U.S. 575 (1943).
1216.
The Universal Declaration of Human Rights, Gen. Assem. Res. 217, A(III), 10 Dec. 1948, is a cornerstone
human rights treaty of the United States with the United Nations. It’s preamble sets out the important role that government
accountability to its own people plays in international peace: “Whereas it is essential, if man is not to be compelled to have
recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of
law,”
1217.
The case that is credited with founding Judicial Supremacy is Marbury v. Madison, 5 U.S. (1 Cranch) 137
(1803), by Chief Justice Marshall. Actually, it founded the judicial policy of “Judicial Review” and that is not quite the same
thing as “Judicial Supremacy” where in addition to supremacy over the other branches, the judiciary assumes supremacy over
the Constitution itself. In all probability, Chief Justice Marshall would be absolutely astounded at the judicial philosophy he
is credited with founding.
574
B. ASPECT TWO: JUDICIALLY CREATED PERSONAL & OFFICIAL IMMUNITY

Initially, the Petition Clause protects the Right to Petition government for redress; not necessarily its
officers. Hence, while Government may not abridge the right to petition it for redress, it plausibly may immunize
its officials from personally being sued, providing it leaves an unabridged remedy against government for the
official’s conduct in government’s name.1218
Nothing so epitomizes the danger of abridging the Petition Clause, vis a vis personal immunities, more than
Congress’ 1988 amendment of the Tort Claims Act.
In 1971 Chief Justice Burger wrote, in his dissent in Bivens1219 “The venerable doctrine of respondeat
superior (a master is liable for his agent’s acts) in our tort law provides an entirely appropriate conceptual basis
for this remedy” (directly against government).1220
The Tort Law, 28 U.S.C. § 2674, allowed: “The United States shall be liable, ... in the same manner and
to the same extent as a private individual under like circumstances...”
In 1988 Congress amended it to reflect judicial immunities:
... The United States shall be entitled to assert any defense based upon judicial or
legislative immunity which otherwise would be available to the employee whose
act or omission gave rise to the claim.
The 1988 amendment anticipates future abridgments including by Congress; but Congress didn’t
conceive of agent immunity until the judiciary made immunity a part of daily life. Given the judicial teaching,
that is not surprising, but lest we forget, it is the First Amendment Congress is abridging.1221 The Tort Claims Act
is itself, a response by Congress to court created sovereign immunity, to relieve the harshness of the judicial
doctrine. Now Congress endorses it.
Immunity Centralizes Power:
1218.
At least the petition clause does not forbid it. There are other clauses that might forbid it. For example, the
nobility clause and due process clauses; and at some point, the equal protection clause. We should not forget that the class of
“government officials” is the “ruling class”. It is doubtful the Constitution allows special privileges and immunities on the
basis of that class distinction alone.
1219.
See Bivens, 403 U.S. at 422.
1220.
The Chief Justice was referring to the Tort Claims Act as a remedies model for violations of the Constitution by
government officials. The Tort Claims Act does not cover Constitutional Torts, as such.
1221.
The problem is not that we are not able to trust Congress to determine how much abridgment is too much.
Rather, Congress has never examined the issue in the light of the specific “public policy” written into the petition clause,
because the judiciary has hidden that policy. There are reasonable market place alternatives to the public policy reasons for
most immunity. i.e. government defends and insures or indemnifies its non-immune officers in most cases now, so what is
the purpose of immunity? See Scheuer, 416 U.S. at 240. (Chief Justice Burger identified the two “mutually dependent
rationales” on which the doctrine of official immunity rested.) They are the injustice of subjecting an officer to liability where
he is required by his position to exercise discretion, and the danger that such liability would deter his willingness to execute
his offices with the decisiveness and judgment required for the public good. Government indemnification, like insurance, lifts
most, if not all of the burden from personal liability. But as to the basic argument, what is the difference between the
discretion exercised by a public servant and a medical doctor such that the former is immune, even for intentional
constitutional torts (Judges, Prosecutors) but a medical doctor in life and death decisions, is liable for a negligent twitch of a
finger?
575
The purpose of “separation of powers” was to protect the people from a unified “kingly sovereign”. But
as the judiciary granted special immunities to the other branches, it co-opted their independence and centralized
power in the Judiciary. In effect, the judiciary is uniting the “sovereign branches” against the people:1222
First came absolute immunity to the President.1223
Then, almost immediately, was absolute immunity to Judges, state and federal;1224
Then to the President’s officers for discretionary acts.1225
Then to the States; vis a vis a reinterpretation of the Eleventh Amendment to provide the states with
immunity from their own rights conscious citizens. 1226
Then qualified immunity to government agents.1227
With all immunities and “good faith extensions” of it, the law is so convoluted and contradictory that no
one knows what the “law” is. 1228 That creates arbitrary power in all government officials. They not only have
1222.
A Judicially created immunity is a complete abridgment of the right to redress. To the victim of immunized
conduct, all of government, local, state, federal; and all of its branches, are aligned against him, saying in effect, “You must
accept the violation and injury, without recourse.” In a real sense, the Supreme Court has assumed the role of “king of kings”
dispensing immunity to the lessor kings according to its pleasure.
1223.
See State v. Johnson, 71 U.S. 475 (1867); see also Nixon v. Fitzgerald 457 U.S. 731 (1982).
1224.
See Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1872); see also Pierson v. Ray, 386 U.S. 547 (1967); Stump v.
Sparkman, 435 U.S. 349 (1978); Mireles v. Waco, 502 U.S. 9 (1991). Bradley v. Fisher is the seminal case on judicial
immunity. It sets the stage for unlimited personal immunities. Bradley is based on two false premises. One is that we
inherited the British Common Law on that subject. That was handsomely refuted by Justice Black in Bridges v State, 314
U.S. 252, 260 (1941). The other was that judicial immunity WAS the British Common Law. In fact, Chief Justice Lord
Denman stated that law in Kendillon v Maltby, 174 Eng. Rep. 562, 566 (N.P. 1842) as follows: “I have no doubt on my mind,
that a magistrate, be he the highest judge in the land, is answerable in damages for slanderous language, either not relevant to
the cause before him or uttered after the cause is at an end; but for words uttered in the course of his duty, no magistrate is
answerable, either civilly or criminally, unless express malice and absence of reasonable or probable cause be established.”
Today, constitution based commonwealth countries have no judicial immunity for violation of Constitutional Rights. See
THE DIGEST OF BRITISH, COMMONWEALTH AND EUROPEAN CASES, Note 3641, “No Liability for acts done in
Judicial Capacity—Unless Interference with Rights or Freedoms Under Constitution.”
1225.
Suggested in Harlow v. Fitzgerald, 457 U.S. 800, 812-13 (1982); qualified immunity to Attorney General,
Mitchell v. Forsyth, 472 U.S. 511 (1985); Absolute immunity to Prosecutors; Imbler v. Pachtman, 424 U.S. 409 (1976).
1226.
See Hans v. Louisiana, 134 U.S. 1 (1890); see also Edelman v. Jordan, 415 U.S. 651 (1974). The prevailing
eleventh amendment doctrine was that it did not prohibit suits against the States arising under federal question jurisdiction,
nor suits against a State by its own citizens. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821). It was not until after the Civil
War that the Court found that the eleventh amendment barred suits of citizens against their own Government as the prelude to
Hans v Louisiana. Then in Edelman v. Jordan, in 1974, Justice Rehnquist married the eleventh amendment to the state
sovereignty doctrine. We should remember that it is abridgment of the right to petition one’s own Government that the
petition clause forbids. The eleventh amendment specifically does not abridge the right to petition one’s own state
government in federal court for redress. The Court amended both the first and eleventh amendments by one simple act of
judicial fiat, and by that judicial act, changed the “legal” relationship between government and governed.
1227.
See O’Connor v. Donaldson, 422 U.S. 563 (1975) ([s]uperintendent of Schools); see also Wood v. Strickland,
420 U.S. 308 (1975) ([s]choolboard members); Scheuer v. Rhodes, 416 U.S. 232 (1974) (state executive officers for
discretionary acts).
1228.
A few examples from 42 U.S.C.A. 1983 demonstrates the point: “Qualified immunity covers liability for claims
brought against police officers under both Section 1983, and common law.” Capone v. Marinelli, 868 F.2d 102 (3d Cir.
576
court created immunity, but they live a myth of extended unaccountability far beyond where even the Court ever
dreamed it would go.
Notice:
This takes the Effective Right to Petition away from the people and centralizes it in the federal
government. Having bridged “Separation of Powers” to unite all of the federal government against the governed,
it now co-opts the states by bribing them with a shield from their own citizens while amending the Tort Claims
Act to take advantage of ever broadening judicial and legislative immunity. Should you be worried about this
trend?
This is “big government” uniting at all levels against its own people, creating the suspicion and fear that
are the conditions for war and terrorism which then justifies more power to chill, punish and intimidate the
restlessness it is causing. Such is government, somersaulting out of control, into worse and worse relations to its
own people. 1229 Yes, you should be worried.
Immunity has its own Momentum:
Given sovereign immunity and stare decisis,1230 arguments to extend immunity are much more persuasive
than those to curtail it.1231 Such is the result of government’s organization to refine itself to do better what it is
1989); Police officers have absolute immunity for perjury at probable cause hearing. White v. Frank, 680 F. Supp. 629
(S.D.N.Y. 1988). Officers have qualified immunity for use of deadly force, where at time of incident, law is unsettled. Hamm
v. Powell, 874 F.2d 766 (11th Cir. 1989). Once issue of qualified immunity is injected into civil rights case, “plaintiff has
burden of demonstrating that defendants violated some ‘clearly established’ constitutional right,” Olzinski v. Maciona, 714 F.
Supp. 401 (E.D. Wis. 1989); For qualified immunity, the officer must demonstrate good faith belief and reasonable grounds
for his actions, and that they were within course of official conduct. But where a citizen’s right is clearly established, the
officer may be immune if he neither knew, nor should have known of the legal standard due to extraordinary circumstances.
Alexander v. Alexander, 706 F.2d 751 (6th Cir. 1983). Qualified immunity applies if either the officer didn’t know and
shouldn’t have known his acts would violate rights, or where he acted “without malicious intention” to violate rights. Allen v.
Dorsey, 463 F. Supp. 44 (E.D. Pa. 1978). Executive officials as a rule, enjoy qualified good-faith immunity. Coleman v.
Frantz, 754 F.2d 719 (7th Cir. 1985).
Then there is a whole different line of immunity, for “discretionary acts”. “A limited immunity from personal
liability for unconstitutional conduct may be applied to many classes of public officials who are required to exercise
discretion the course of their responsibilities.” Atcherson v. Siebenmann, 605 F.2d 1058 (8th Cir. 1979); ‘Acts which are
discretionary in nature by a public official do clothe him with a governmental immunity of a limited nature.’ Dewell v
Lawson, 489 F.2d 877 (10 th Cir. 1974) Immunity is extended to private parties performing government contracts; Devargus
v. Mason & Hanger-Silas Mason Co,. 844 F.2d 714 (10th Cir. 1988), cert. denied, 498 U.S. 1074 (1991). Absolute
prosecutorial immunity is extended to cover qualified immunity of a sheriff who holds a prisoner for 18 days without hearing
on the grounds that he informed the prosecutor to arrange time for appearance, but the prosecutor didn’t act. Coleman v.
Frantz, 754 F.2d 719 (7th Cir. 1985) .
1229.
Immunity is based on a dangerous myth: That unredressed grievances just go away. They don’t. They fester, and
spread as rumor to become common knowledge of government’s injustice, to gradually rot the moral fiber of the Nation. The
only protection Government has from the people, is to provide effective redress of just grievance. That is the teaching of the
Magna Carta, the first amendment petition clause, The Universal Declaration of Human Rights and The International
Covenant on Civil and Political Rights. It is extremely dangerous to believe those principles do not apply to The United
States of America in the Twenty-First Century.
1230.
In the early nineteenth century beginnings of our “sovereign immunity” tradition, stare decisis impelled Courts
to turn to British Common Law for authority and guidance, because there was very little else.
577
supposed to do. Unfortunately, under the doctrine of sovereign immunity, the primary thing government is
“supposed to do” is protect itself from accountability to the people for violating their Constitutional Rights.
Eventually, the Court recognized Congress’ power to “abrogate” state immunity for violation of civil
rights; Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)1232 and the Commerce Clause; Pennsylvania v. Union Gas Co.
491 U.S. 1 (1989). But the “doctrine” of abrogation is a token to pacify Congress and conceal the true fact that
Congress has no practical control over immunity at all. The law is so complex that immunity exists, as a practical
matter whenever a judge wants it to; and he is not accountable for deprivation of rights to redress, or any
constitutional rights. He has absolute immunity too.
As the reader no doubt knows: “Power corrupts and absolute power corrupts absolutely.” Immunity is the
absoluteness of any limited power, which corrupts absolutely.
This Difference of Orientation:
Absent a showdown between sovereign immunity and the Petition Clause, abridgments are increasing
because government, from individual agents, up through its organizational levels have organized to defend
themselves from accountability based on the King’s “sovereignty” as a foundational concept in government to
governed relations.
This is a pervasive orientation away from the Constitution and human rights, and toward not just “big
government” but “sovereign big government” where unaccountability to those injured in the “sovereign’s” name
is a national way of life. 1233
And if you think that is a national problem, consider that the United States is by far the world’s greatest
power; it is not accountable to its own people for its abuses of power, and that abuse of power flows freely into
international circles. Given that reality, there is not a nation in the world that should not fear us in the same way
that a reasonable person fears a child with a gun. We, as a nation, are capable of, and as a people, conditioned to
the arbitrary and unreasonable use of force by government, against its own citizens, and against any nation that
stands in the way of the corrupt flows of power from our government into the private sector.
Direct enforceability of the Constitution is the difference between personal loyalty to temporal
government vs. loyalty to constitutional principles. Temporal loyalty to government becomes loyalty to every
corruption officials undertake in government’s name. That is a powerful difference. Of that the difference the
1231.
See U.S. v. Lee, 27 L. Ed. at 184. (Lee, J., dissenting) (attributes Lee’s success to overcoming these factors:
“These principles appear to us to be axioms of public law, which would need no reference to authorities in their support, were
it not for the exceeding importance and interest of the case, the great ability with which it has been argued, and the difference
of opinion that has been manifested as to application of the precedents.”).
1232.
Neither the fourteenth amendment, nor § 5, authorizes Congress to contravene the express purposes of the
Amendment, which is to extend protection of U.S. Constitutional Rights to all the People from state abridgment: Creation of
State Immunity, whether by the Court, or Congress, contradicts the face and substance of the fourteenth amendment, not to
mention what it does to the petition clause.
1233.
The philosophy that government may unlawfully injure some citizens for the greater good of the people, the
nation, its government or of the “proletariat” are all variations of the same discredited philosophy that “The ends justify the
means”. Given that governments will unlawfully injure some citizens, as a necessary incident to governing, the only rational
alternative to “The ends justify the means” is an effective system of just redress for constitutional violations arising out of the
governing process. Fifth amendment just compensation for taking private property for public use doesn’t require culpability.
Why should unlawful taking of liberty be less redressed?
578
Constitution itself requires by oath, “to support this Constitution”1234 and not to support its officers who may fail
or refuse to support it.1235
The Right to a Judicial Remedy is the right to enter an adversarial system. Such systems are supposed to
tend toward “excellence”. But there is a huge disparity in this system. The people are not organized to defend
against government’s coercive claims to “immunity”, but government is organized to take every advantage,
systematically, of opportunities to extend it’s agents’ immunity. They are agents of the sovereign and entitled to
immunity and to all of the highly skilled lawyers necessary to secure their “rights” against a legally disarmed
citizenry.
Under the premises, it is no longer an “adversarial system” but a system that has defeated the “separation
of powers”; co-opted the states; and is now redesigned and manned by a “new nobility” of a “unified sovereign”
to promote and protect “government sovereignty” from the people. That is another name for “government
unaccountability to the governed”, at every level of government, all of the time.
Put another way, with an effective Petition Clause the nation has 260 million citizen policemen to insure
that officials do not sell the Constitution to the highest bidder or to personal desire. Immunity disables the
Constitution’s “citizen policemen.” What is left is government accountable only to itself and to the free wheeling
interests of the wealthy. That is a dictatorship in waiting ... for a Hitler, a Stalin; a Pol Pot; or maybe a more
charismatic dictator who promises what the wealthy and corporate interests want, and then delivers those interests
to infamy.
But America will first find tyranny more diversified. It is called “judicial tyranny.”
It is plain common sense that people are “corruptible” in the absence of effective controls over the means
by which they satisfy human desires. That is the principle: “power corrupts, and absolute power corrupts
absolutely.” If Lord Acton’s dictum is not “absolutely true”; it is so nearly true that it warns against insulating
government power from accountability. Judges have “power” within the meaning of Lord Action’s dictum.
Immunity for abuse of power puts such a degree of “absoluteness” into its use and abuse, that if judicial
corruption is not the dominant characteristic of our judicial system, it is so rampant within it that the system
cannot be trusted by anyone, at any time. Justice goes to the highest bidder, and all bids are kept secret from the
people, and even from the participants. If it isn’t that way, it looks that way and no one can reasonably determine
that it is not that way in any given case.
This is not just because “power corrupts the just,” but as the judicial system becomes more the locus of
arbitrary power it tends to draw more of those who seek that environment. The judiciary is a dynamic system of
people who adapt to their environment according to principles of human nature. Change the environment to
1234.
U.S. CONST. art. VI, cl. 3: “The Senators and Representatives before mentioned, and the Members of the
several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be
bound by Oath of Affirmation, to support this Constitution; ... “.
1235.
One of the more profound descriptions of the duty to support the Constitution notwithstanding that other officers
may fail to do so was made by Judge Liddle in Wuebker v. Bowles, 58 N.Y.S.2d 671 (1944). On what the Oath requires of a
Judge, his opinion is one of only two cited in the US Code Annotated; Art. VI, § 3, U.S.C.A. “Under the Constitutional
requirement that all ... judicial officers of the several states shall take an oath to support the Constitution, the Constitution,
alone, as it is written, is the sole test, and the support of an act of Congress or any law promulgated by any other federal
official or any court decision, is not required.” That is the U.S.C.A. quotation. His statement goes on in Wuebker: “Only the
Constitution and laws made in pursuance (not in violation thereof) are declared to be the supreme law of the land. Decisions
of the Court are not included as any part of the supreme law of the land. That court may support the Constitution, as its oath
requires, or it may fail to do so, but it cannot change it. Under Article 6, only the Constitution and the laws made pursuant to
it are binding on this court.”
579
become a safe haven for corruption, as Bradley v Fisher changed the judiciary after 1872, and “judicial
substance” changes to reflect its new clientele. Its new clientele depend on immunity to wield arbitrary power.
Where once it drew men of iron character and the will to do justice, today the system actively selects in
favor of would be politicians who lack the courage to state their convictions, if any they have. They are rewarded
with judgeships as “political plums” for political favors traded behind closed doors. The judiciary creates the kind
of judges it wants: In Stump v. Sparkman,1236 the Court held that constitutional standards are not enforceable
against judges, even where the violations are in excess of jurisdiction and corrupt or malicious.
Over the 135 years since the Civil War, the Court has redesigned the judiciary and indeed, all of
government, to protect and promote corruption in office. If Judges are not corrupt when they become judges, the
system offers an irresistible occasion to become corrupt because it gives them the power to violate the rights of
the people who our Supreme Court has ruled, shall have no effective recourse against them.
As official immunity causes endemic corruption, the stepping stones for a new, modern day Hitler in the
United States is through 20,000 insulated judges protecting themselves and all of government from accountability
to the people they injure in violation Constitutional Rights. They are insulated from all accountability, except one.
That is accountability to their “superiors.” Who are their “superiors?” They are government officials who hold the
same arbitrary power over the judges that the judges hold over us. And they also hold arbitrary power to dispense
government favors to private parties and to other nations; favors we pay for, and favors that can get us into war;
war without accountability by those who make war, to anyone.
Is this just cause for a rights conscious people to distrust their “justice system?”
C. ASPECT THREE: POLITICAL PERSECUTION FOR EXERCISING PETITION RIGHTS
The Right of Petition in history: in order to understand why government takes such a dim view of the
Petition Clause we must realize its historical context.
About eight hundred years ago King John of England and his upper class nobility had a running dispute
with the lower nobility, the barons. The barons had the loyalty of most of the common people and that gave them
an advantage at the “ballot box” that consisted of mostly swords and bows and arrows. The people siding with the
barons gave them the military power to strongly suggest to King John that it would be in his interests to negotiate
a bargain on June 15, in the year 1215 AD at Runnymede. The Great King bowed to the will of a people angered
at his incursions against common decency. King John agreed to the terms of what is now the cornerstone of both
British and American Constitutional Law: The Magna Carta.
There is something very important about that date.
Since 1215 there has not been a “sovereign” head of state, or “kingly sovereign” in our common law.
Examine Chapter 61 of the Magna Carta. You will see why a “common law of sovereign immunity” wherein the
king can’t be sued without his consent, is utterly false dogma. Our judicial doctrines of sovereign and official
immunity depend on that false dogma.
Our Supreme Court’s concepts of “sovereign immunity” depend on the idea that we had a “sovereign” in
our English Common Law that was not accountable to the people for his wrongs to them. The fact is that there is
no such sovereign as the Supreme Court has systematically created in America, for almost 800 years back into our
English Common Law.
1236.
See Stump v. Sparkman, 435 U.S. 349 (1978).
580
Very few cases describe the origins of the right of petition. One such case was brought (and lost) by this
writer.1237 The California Appeals Court describes the origin as follows:
A. The Common or Natural Law Origin of the Right to Petition.
The right to petition for redress of grievances is the right to complain about and to the
government. The Magna Carta, chapter 61, purported to grant the right. Now it is viewed as a
“natural” right.1238 [It] was confirmed by parliamentary resolution in 1669 as an inherent right 1239
and was lodged in the Bill of Rights of 1689.1240 ‘… it is the right of the subjects to petition the
king…[and] all commitments and prosecutions for such petitioning are illegal’. 1241 The right
embraces dissent, and ‘would seem unnecessary to be expressly provided for in a republican
government, since it results from the very nature and structure of its institutions. It is impossible
that it could be practically denied until the spirit of liberty had wholly disappeared and the people
had become so servile and debased as to be unfit to exercise any of the privileges of freemen.’ 1242
‘[D]eprivation of it would at once be felt by every freeman as a degradation. The right of
petitioning is indeed a necessary consequence of the right of free speech and deliberation  a
simple, primitive, and natural right.’1243
Understand the significance of those origins: There was war between the royal government and the people
and our ancestors were on the verge of tearing the royal government down and replacing it with one of their own
choosing. The King was deeply troubled by the prospects of the heavy hand of the executioner’s axe, so he had to
promise to be good.
But the Magna Carta is not just a document of promises. It embodies the tradition of limited tolerance for
government that eventually inspired the Revolution of 1776 and framed the concepts of limited government that
were written into our Constitution in 1789. It is that “common law tradition” that is ultimately important because
it reminds would be false “sovereigns” that if they get too oppressive, the people can and will tear
unconstitutional government down and replace it again, with one that conforms to the Constitution.
1237.
See supra note 1, at 50-51.
1238.
See Paterson, LIBERTY OF PRESS, SPEECH & PUBLIC WORSHIP: RIGHT TO PETITION PARLIAMENT
30 (1980).
1239.
See Corwin, CONSTITUTION OF THE UNITED STATES 1914 (2d ed. 1964).
1240.
See 3 Stat. 417.
1241.
See San Filippo v. Bongiovanni 30 F.3d 424, 443 n. 23; (3d Cir. 1994); 1 BLACKSTONE, COMMENTARIES
*143.
1242.
See Story, COMMENTARIES ON THE CONSTITUTION 707 (1833); see also 1 Cooley,
CONSTITUTIONAL LIMITATIONS: PROTECTIONS TO PERSONAL LIBERTY 728 (8th ed. 1927) (quoting Lieber,
LIBERTY AND SELF GOVERNMENT 124 (2d ed. 1859).
1243.
The Court of Appeals cites a footnote at this point suggesting that “The ‘right to petition’ is distinct from the
petition of right,’ permitting claims against the Crown. See generally Clode, PETITION OF RIGHT (1887); Wade &
Bradley, CONSTITUTIONAL LAW 684 (1965); Chitty, PREROGATIVES OF THE CROWN 340 (1820). This writer
disagrees. While one can conceptually distinguish between them, what we are looking at is the legal and cultural evolution of
a single right that differs somewhat upon its uses. That conceptual distinction breaks down in post Revolution and
Constitution America. Here, we never had a “kingly sovereign” by which to distinguish petitioning government from
petitioning the Crown. Thus, the first amendment “Right to Petition Government for a Redress of Grievances” recognizes
only the end product of that evolution, as it applies in America. The emphasis is on the right to petition “government” period.
581
That act of tearing government down when it becomes unresponsive to the people’s need for justice, and
replacing it with a more accountable government, is itself an exercise of the “Right of Petition” when government
oppressively abridges its otherwise free exercise.1244
That is what is meant by the declarations of Commons in 1669 and 1689, that the right of petition is a
natural or inherent right. Our Declaration of Independence was an exercise of that inherent right, declaring to the
world the refusals of the King to hear the petitions for redress by the Colonies, and the consequences thereof:
rebellion.
Of particular significance here is the means by which the Magna Carta declared that its limitations on
government power and respect for rights was to be enforced. That is the common law foundation of our Petition
Clause. It is Chapter 61 of the Magna Carta. It is worth examining in detail to get the full flavor of what the Right
of Petition really means in the ongoing dialogue between government and governed.1245
The Magna Carta, Chapter 61.
“Since, moreover, for God and the amendment of our kingdom and for the better allaying of the
quarrel that has arisen between us and our barons, we have granted all these concessions, desirous
that they should enjoy them in complete and firm endurance forever, we give and grant to them
the underwritten security, namely, that the barons choose five and twenty barons of the kingdom,
whomsoever they will, who shall be bound with all their might, to observe and hold, and cause to
be observed, the peace and liberties we have granted and confirmed to them by this our present
Charter, so that if we […] or any one of our officers shall in anything be at fault towards anyone,
or shall have broken any one of the articles of this peace or of this security, and the offence be
notified to four barons of the foresaid five and twenty, the said four barons shall repair to us […]
and, laying the transgression before us, petition to have that transgression redressed without
delay. And if we shall not have corrected the transgression […] within forty days, reckoning from
the time that it has been intimated to us […], the four barons aforesaid shall refer that matter to
the rest of the five and twenty barons, and those five and twenty barons shall together with the
community of the whole realm, distrain and distress us in all possible ways, namely, by seizing
our castles, lands, possessions, and in any other way they can, until redress has been obtained as
they deem fit, saving harmless our own person, and the persons of our queen and children; and
when redress has been obtained, they shall resume their old relations toward us. And let whoever
in the country desires it, swear to obey the orders of the said five and twenty barons for the
execution of all the aforesaid matters, and along with them, to molest us to the utmost of his
power; and we publicly and freely grant leave to everyone who wishes to swear, and we shall
never forbid anyone to swear. All those, moreover, in the land who of themselves and of their
1244.
As you read Chapter 61 of the Magna Carta, infra, observe that it claims the right of petition to include tearing
the government down, then after redress is obtained resubmitting to the king’s authority. In a nation without a “kingly
sovereign” the equivalent is tearing the government down and replacing it with one conformable to the Constitution. That is
the common law implication of the first amendment right, as it applies to a constitutional nation. If any further proof that it
includes replacing unconstitutional government by force if necessary, observe that the second amendment requires the people
keep the instruments by which they can effectively do exactly that.
1245.
The Magna Carta was originally written in Latin. There are many translations of it and the wording may vary
depending upon the translation referred to.
582
own accord are unwilling to swear to the twenty five to help them in constraining and molesting
us, we shall by our command compel the same to swear to the effect foresaid […].1246
The development of our common law understanding of the right of petition began, but didn’t end with the
Magna Carta. Over the next 450 years it became the cornerstone upon which the House of Commons built its
relationship with the King. Then in 1669, Commons resolved with authority that every commoner in England had
“the inherent right to prepare and present petitions” to Commons “in case of grievance” and for commons to
receive the same and judge its fitness. Twenty years later, after the “glorious revolution” the 5th right of the “Bill
of Rights” of 1689 declared the right of the subjects to petition the King directly, and “all commitments and
prosecutions for such petitioning to be illegal.”1247
That is our “common law.” It explains why our Supreme Court said of it:
The right to sue and defend in the courts is the alternative of force. In an
organized society, it is the right conservative of all other rights, and lies at the
foundation of orderly government. 1248
That is what the Right of Petition is. It is the right conservative of all others. It is designed to bring
government to account under the law of the land, or by force if necessary, for the violation of other rights. It is so
powerful that its free use will prevent the hostilities of war between government and governed and the mere
promise to respect it can restore peace to warring factions because it is the instrument of justice under law, as
between government and governed. It is intended to subject government to the compulsory process of law when
government does not want to fairly redress the grievance. It is so important that “law” without it, is “law without
justice”, and that is another name for oppression.
Abridgment of the Right of Petition is advance notice of government’s intent to relentlessly oppress its
people. We in America, whose right of petition is so abridged and burdened by government created immunities
from redress and accountability, are on notice of government’s intent to progressively and relentlessly oppress us
into tyranny.
Understand something:
“government’s intent to oppress” is not an intention agreed to by officials meeting in secret and designing
a program of oppression. Such a “secret conspiracy” is not what we are talking about. What we are talking about
is the natural and inevitable result of increasing abridgment of petition rights, whether protected by a constitution
or not. That’s what it means to be a “natural” or “unalienable right.” Abridgment of the right to complain to the
oppressor about his oppression is necessarily unnatural and progressively oppressive and that lays the seeds of
rebellion and the foundations for terrorism.
But there is something uniquely threatening about oppressing the unalienable right of petition because it is the
“right conservative of all others.” The reason government abridges it is to allow its officers to violate all other
rights with impunity and unaccountability. When government does that, there is only one just and proper
response: To throw off such government by any means necessary. That is the bottom line of the “unalienable right
of petition for redress.”
1246.
The rest of Chapter 61 guarantees that the King and his heirs shall never interfere with the petitioning process or
punish or intimidate anyone for assisting the barons to coerce just redress from the government.
1247.
See CONSTITUTION OF THE UNITED STATES OF AMERICA, ANALYSIS AND INTERPRETATION
1188 (1992); see generally 12 ENCYCLOPEDIA OF THE SOCIAL SCIENCES 98 (1934).
1248.
See Chambers v. Baltimore & Ohio R.R., 207 U.S. 142, 148 (1907).
583
The Scope of the Right:

It is important to understand what the full scope of the right entails. The right to petition government for
redress of grievances includes recourse to force and violence against the government when it abridges the free
exercise of that right. Read the Magna Carta, Chapter 61 again. If the formal process for exercising the right is
abridged, it describes in detail what the unredressed aggrieved can do. He may harass and molest the government
in every way to get justice, save only that he not molest the physical persons of the King or His Family.
What does this mean? It means that the legal or constitutional “Right of Petition” includes the people’s
natural right of rebellion against oppression when government so abridges the established processes for
petitioning it for just redress.
In a real sense, the Right of Petition is like the right of self-defense. Where a person is justly aggrieved,
government has in effect previously assaulted him or his rights. By petitioning for redress, he is exercising his
right of self-defense against that onslaught. When government fails or refuses to justly redress, the conditions of
assault and aggrievement continue and the individual is entitled by that right, to take greater and greater measures
to obtain justice from his government oppressor, as his means of self defense against government oppression.
Violence in response to oppression is a natural expression of the Right of Petition when its non-violent
expression is abridged. Just as the common law countenances the violence necessary to defend oneself, so too it
authorizes violence against government necessary to get its attention, when it abridges the non violent avenues of
seeking just redress for its wrongs.
Just as government has a primary duty to provide police and military protection for the people,
government has a primary duty to justly redress the people’s grievances against it.
That is a non-delegable duty that goes to the very essence of government functions. Who will tolerate a
government that systematically levies injustice upon the people? The duty to redress grievances justly is the duty
to provide systems of justice for the people. Police or military powers without domestic justice between
government and governed is tyranny. Who needs a government that is organized to impose tyranny with its police
and military powers?
It is the province of the Petition Clause to impose justice on an unjust government.
A “people’s right” that powerful can cause fear in government that it will be “abused” to interfere with
the governing processes. No doubt, it can be abused and it is intended to always keep government conscious of its
limitations. Governments should want to prevent conditions where the people can lawfully molest and harass it.
There are only two ways to prevent people from molesting and harassing government, and government should
always be conscious of them.
The first is to render the right so accessible and just that the people find no need to coerce government to
redress grievances with it. This is not just common sense for America, but it is common sense for every
government, both as to the relations of government to governed, and as to the relations among nations. The right
to just redress of grievances is the right to both justice, and the appearance of it.
Terrorism, both international and domestic, all have two things in common. Whoever is behind it believes
that he has unredressed grievances with the government at which the terrorism is directed. And he is able to
convince others that his perception is correct.
The only way to solve this problem is to change both the reality and perception from that of injustice to
one of justice, at every level of government, from the local community all the way to the United Nations. The
only way to do that is with open and fluid systems by which all grievances with government, real or imagined,
can freely be addressed and justly redressed.
584
The only way to do that is when every government in all of its functions, is accountable to the governed
in every way that it may create grievances with them, and that means that no government functionary can have
immunity from just redress of grievances with it.
The second is what we are experiencing. That is government progressively narrowing and abridging the
right to petition while at the same time criminalizing the inevitable alternative avenues of petitioning that the
people develop. That is oppression. Forbidding that oppression is exactly what our English common law imparted
to the Right of Petition in 1689.1249
Those are the alternatives: systematic justice, or increasing oppression. It is that simple: The people either
have a just relationship with government, or they suffer oppression.
Initially, the government oppresses petitioning for redress by policies of sovereign and official immunity
for it and its officers. What those policies mean is that the people cannot obtain redress as a matter of right against
the government entities that are “immunized.”
Today in America, such policies outright deny just redress in most cases. Where redress is theoretically
allowed, immunity causes such increased complexity in the petitioning process that it generally frustrates
petitioners seeking justice against government through the systems that are supposed to deliver justice under law.
It is not that the judicial system is overburdened with petitions for redress. Rather, the law respecting just
redress in both federal and state courts is so complex and convoluted with special privileges and immunities that
government lawyers know that in most cases they can litigate petitioners into submission without ever getting to
the merits or before a jury.
What does that do? That prevents settlement out of court in even the most righteous petitions for redress because
government lawyers know that they can beat the aggrieved unjustly in court. Government actually depends on
judicial oppression to cover up its violations of constitutional rights. The judicial system, with its own “law
making power” creating immunity and deciding how to apply what it creates, has redesigned itself for systematic
oppression of petition rights. That reality annuls the “separation of powers” doctrine in every important sense.
“Separation of powers” is now: “all of government organized against just redress to the people.”
The increased complexity of “redress law” further causes increased need for lawyers and raises litigation
costs immensely. The resulting high cost of petitioning for redress creates class divisions along lines of wealth
where only the wealthy can effectively petition government for redress. That in turn gives wealth a capricious
voice in shaping government and law not available or even apparent to common people. But the resulting
oppression is apparent to them.
These things combine to so increase the costs of petitioning so as to cause more people to turn to
alternative forms to “harass and molest the government” into tending to the emerging judicial crisis. As might be
expected, government does not take the people trying to “harass and molest it” lightly.
Criminalizing the Right of Petition:
Government passes and enforces laws limiting the “legal” assistance the people can get in petitioning for
redress. For example, it may limit attorney fees that can be charged for petitioning in some kinds of cases. That
limits the claims that can be economically pursued.1250 That protects government from accountability for rights
1249.
Chapter 5 of the English Bill of Rights of 1689 outlawed criminal prosecutions for petitioning.
1250.
For example, it limits the contingency fee chargeable under the tort claims act and it limits the dollar amount
attorneys may charge for Veteran’s petitions. The effect of these limitations is not to literally limit fees. Rather, it limits and
frustrates the claims for redress that can be economically made.
585
violations that can’t be economically vindicated. That causes petty bureaucrats to become little tyrants
unaccountable for petty dereliction and abuses to the people in government’s name.
It passes and enforces attorney licensing laws that broadly prohibit “practicing law” by non-attorneys. These laws
abridge the right to petition in two separate ways:
586
First, licensed attorneys are generally inadequate and prohibitively expensive for most abridged
petitioning processes.
They are controlled by their license and can not prosecute petitions effectively where government through
its courts tells them that they should not. They are limited in the assistance they can give clients to the government
approved means of petitioning.
As government progressively abridges the petitioning process, licensed attorneys more and more become
apologists for the abridgments. As we have seen, the actual common law right of petition contemplates that when
government abridges effective petitioning processes, the people may go over, around or through the abridgments
in any way necessary. In that way, licensing attorneys aids and abets government abridgments of the First
Amendment Right by preventing effective counsel to the people as to what their common law rights are against
government oppression. In effect, licensed lawyers tell the people that there are no alternatives to government
oppression. That makes them the government’s “Judas Goats” leading the people into ever deepening wells of
oppression from which there is less and less recourse to violence.
Second, licensing lawyers unlawfully burdens the right to petition.
Hiring a non-lawyer to help you petition government for redress is protected assembly to petition, and
choosing the person to speak for you in the petitioning process is the very heart of freedom of speech. How dare
the government license and control the people who you may choose to speak for you to government? In effect,
such an assembly now becomes a “criminal exercise of First Amendment rights” 1251 by non-lawyer participants
“practicing law to speak for you, without a license”. Next, it becomes “conspiracy to obstruct justice.”
One can hardly find words to express the intellectual garbage involved in selling the idea that government
can license the persons you choose to speak for you to government about your grievances with government. The
only license necessary, is the “license” you give by your selection of those you authorize to speak for you. All
licensing of persons to whom you may give that authority is necessarily a multiple abridgment of the First
Amendment.
As the people’s frustration increases with their licensed spokesmen and what they are allowed to say to
government, they turn to further extremes. They might create their own courts (“Common Law Courts”) and
record “common law liens” against government and its officers. This too is protected activity where government
has previously so abridged the right of petition so as render it ineffective. But now government uses other kinds of
laws to criminalize this conduct. For example, participating in a common law court may be conspiracy to obstruct
government agents. Filing a lien against an I.R.S. or other government agency is treated as “filing a false claim”
or “obstruction of justice” or “interfering in the administration of justice.” Sending a notice of lien by mail is
prosecuted as “mail fraud”, and associating to exercise these petition rights becomes “aiding and abetting” or
“conspiracy to commit” those “crimes.”
Those are abuses of legal process and malicious prosecutions to oppress the right of petition for which
government prosecutors have absolute immunity. The problem is that licensed attorneys don’t know how to deal
with government oppression because it is not taught in government approved law schools. Attorneys are
programmed to believe that government acts in good faith execution and enforcement of the law; and they are
1251.
The author considers this expression (“criminal exercise of [f]irst [a]mendment [r]ights”) to be a contradiction in
terms. Yet, it accurately describes government’s efforts to chill the people from effectively seeking redress of grievances with
it.
587
afraid to deviate from that government created belief system that they are licensed to follow. The punishment for
attorneys deviating from their licensed program is professional blacklisting.1252
The result is that people charged with “criminal exercise of rights” are harnessed with “ineffective
assistance of government licensed counsel” who lead them, like Judas Goats leading sheep through a “legal
system” redesigned to convict and punish those who oppose government oppression according to the culture of
our common law. This not only renders assistance of counsel ineffective, but it is reminiscent of British Star
Chamber Practices.1253
1252.
The author is a “blacklisted attorney.” Part of the story of his blacklisting can be reviewed on the Internet at
http://www.constitution.org under Confirmed Abuses. Another part of that blacklisting is recorded in Wolfgram v. Wells
Fargo Bank, 53 Cal. App. 4th 43 (1997), cert. denied, 522 U.S. 937 (1997). What should be noted in that case is that he is
being blacklisted under California’s Vexatious Litigant Statutes for having lost five cases against immunized government in
seven years. See generally Wolfgram v. Wells Fargo, 53 Cal. App. 4th at 47: “… Wolfgram filed at least five unsuccessful
suits against judges and other officials alleging misdeeds…” In other words, Wolfgram petitioned government for redress of
grievances with government, and lost at least five petitions when he tried to penetrate government immunities. Now he is
blacklisted from such petitioning. But what he learned in the process are the foundations for this article, and a book that is
introduced under “Prelude” at the above web site. In point, “Justice” Morrison, who wrote the opinion, was so impressed by
the intellectual quality of the brief that he wanted to show his own intellectual prowess in his opinion. When the opinion
issued, it was “Not for publication”. But because of the intellectual quality of the opinion, mostly borrowed from Wolfgram
and his attorney Kurt Simmons, Wolfgram was able to force publication of that part of the opinion that addresses the petition
clause issues under the California Rules for Appeals. Then he took the case to the California Supreme Court and certiorari
was denied. Then to the U.S. Supreme Court where cert. was again denied. Of five cases raising petition clause issues that
Wolfgram has taken to the Court (all cert. denied) Wolfgram v. Wells Fargo is the only published opinion, and the only
reason that it is published is because the judge was badgered into writing the history of the petition clause into an opinion that
was intended “Not for Publication”. The rest of the opinion still is “Not for Publication.”
1253.
Attorney licensing undermines effective assistance of counsel in cases of “criminal exercise of rights”. While
the issue is somewhat different, the Court examined the relevant text and meaning of the sixth amendment right to assistance
of counsel in Faretta v. California, 422 U.S. 818, 820 (1975). “In all criminal prosecutions, the accused shall enjoy the right
… to be informed of the nature and cause of the accusation; … and to have the Assistance of Counsel for HIS defense.”
(emphasis added).
That is what the sixth amendment says. “The purpose of the right to counsel is for the accused’s defense, not just
defenses that counsel finds expedient for government. … An unwanted counsel ‘represents’ the defendant only through a
tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not
the defense guaranteed him by the Constitution.” Id. at 821. (emphasis added)
While the Faratta issue was the right to defend one’s self, that right necessarily includes the right, when you have
counsel, that counsel assist you in YOUR DEFENSE. The Court, in that vein, observed that an attorney is an assistant, and no
matter how expert, an assistant is still an assistant. Then the Court described the only court in our legal history to force
counsel on unwilling clients: The British Star Chamber. Id.
See supra notes 17 and 18. (the Court described the impermissible thing the Star Chamber did by forcing counsel on
the accused) That impermissible thing now seen as characteristic of “Star Chamber practice” was to make sure that no
defense the King didn’t want made was made. The Court described what happened to counsel in Star Chamber practice who
presented a defense the King didn’t want to hear. His fate was as bad as that of his “client.”
Thus, the sixth amendment issue is not merely the right to counsel, but as it says on its face, it is the right to expert
assistance in investigating and presenting the defendant’s very own defense. Licensed attorneys can’t present the defendant’s
own defense against “political crimes” because “the king” doesn’t want that, and the king controls the lawyers through their
licenses. Such attorney licensing is in effect, the foundation for a modern day transition to “star chamber” courts and the legal
practices necessary to sustain political persecution.
588
Today, these kinds of cases are proliferating throughout the nation. The Montana Freemen cases where
the “freemen” were charged and convicted of substantive crimes like bank and mail fraud are cases in point, and
there were untold scores of similar prosecutions in their wake. In point, these were really Petition Clause cases
where the government oppressively refused to allow the real facts and the First Amendment Law to go to the jury.
The Montana freemen and many others were convicted of the “Criminal Exercise of First Amendment Rights.”1254
(emphasis added).
What is the solution to criminalizing the exercise of Petition Clause rights?
The common law specifically forbidding criminal prosecution of persons for petitioning government for
redress developed out of Britain’s “glorious revolution” of 1689. Thereafter, the English Parliament made it
unlawful to prosecute people for petitioning government for redress. But simply outlawing such persecutions does
not solve the problem when government and its officers are immunized for such misconduct.
Our First Amendment says that “Congress shall make no law abridging…” Would it make any difference
if it also added that the executive “shall enforce no law abridging…?” It is extremely doubtful since the Executive
is already sworn, “to the best of my Ability, preserve, protect and defend the Constitution of the United
States.”1255 That includes the First Amendment.
How can anyone prevent the executive from enforcing constitutionally corrupt laws corruptly, if he is
already free from the consequences of violating his oath? All government prosecutors and judges are absolutely
immune from accountability for malicious prosecution. So they are not accountable to the people whose
constitutional rights they violate. If they are not accountable to the people they wrongfully injure, who, pray tell,
are they accountable to?
The power to be unaccountable for corruption in office must be nullified.
Today in America, the language of the First Amendment notwithstanding, persecution for exercise of
Constitutional Rights is a substantial portion of all federal criminal convictions.
To find a solution one must first understand the problem.
Abridgment of petition rights does not authorize unreasonable attacks on the government. But under the
common law guidance of the Magna Carta, it does justify reasonable attacks on government authority like
establishing common law courts and filing liens against government and its officers that have no greater effect
then harassing government, when procedural and substantive petition rights are abridged or rendered ineffective.
Whether or not it “authorizes” violence against government depends upon how oppressive government becomes.
The problem is that even reasonable harassment attacks against government spiral out control because
government has immense power and little or no accountability for its use or abuse, and, would you believe, it has
no sense of humor; and no humility, at all.
So, for example, some people are frustrated with governmental unaccountability and prefer to live in
isolation from government. From that Petition Clause response and government’s lack of a sense of humor, we
1254.
A case of “Criminal Exercise of First Amendment Rights” just came down as this article was being written,
form the Ninth Circuit Court of Appeals. In U.S. v. Fleming, (9th Cir. 2000) Fleming reacted to Federal Judge Coyle’s
abridgments of his petition right by filing a lien against Judge Coyle for $10,000,000. He was charged and convicted of
obstruction of justice under 18 U.S.C. § 1503. The issue of his first amendment petition clause rights was not raised on
appeal. Fleming asserted such a common law right, but his Federal Defender attorney “conceded in his brief to this court that
no such right exists.”
1255.
U.S. CONST. , art. II: Presidential Oath.
589
got “Ruby Ridge”, and a young mother shot dead while holding her baby, by a government sniper with a high
powered sniper rifle. And government’s best excuse: We didn’t mean to shoot her or her baby. We only meant to
kill her husband who was within a couple of feet of her and the baby, and who was not then endangering us.
So for another example, there are people whose frustration with lack of government protection and redress
problems leads them to isolate themselves in more or less self-sufficient communities. Again, government’s
refusal to believe that sane and decent people could reasonably want to isolate themselves from unconstitutional
government interference in their lives, gave us the flames and mass killings of Waco, and the federal organized
cover-up that includes persecuting the victims for defending themselves against armed aggression.
It should not be concluded that only government lacks a sense of humor in these matters. It seems that a
former candidate for same United States Army “Delta” team that it appears more and more certain staged a
military assault upon the Branch Davidian Compound, may have taken the matter personally and waged an “eye
for an eye” campaign against government. That gave us Oklahoma City and the bombing deaths of more innocent
men, women and children.
That too has an aftermath which includes unreasonably increased government security for itself, and as
Y2K demonstrated, for the Nation. That increased security not only erodes Petition Clause Rights, but it increases
tension between government and governed. Instead of the government trying to solve the Petition Clause problem
by making petitioning for redress more effective, it tries to increase its security from accountability by an
organized attack on the Second Amendment disguised as a “war on crime” against “potential criminals” with
guns.
Do we need to be reminded that the hallmark of government oppression is that we are all “potential
criminals?” We become actual criminals by mere resistance to oppression.
This article does not try to excuse or justify any of these attacks. It merely points out that the “logic of
war” is already upon us and it is a major part of the problem. That logic makes more “Wacos” and “Oklahoma
Cities” all the more likely, and it does something worse.
Government is organized to control anything that it believes may injure it. The aftermath of Waco is wide
spread exposure to criticism. Government does not admit any wrong at Waco, but it admits that it suffered wide
spread criticism. It will do little to prevent more “Wacos,” but it will do much to prevent the wide spread
criticism. What it will do is act to contain freedom of information to the people, upon which widely spread
criticism depends.
What will that do to those who already believe government can not be trusted?
Perhaps it will convince them all the more that the only recourse to government corruption is armed
rebellion in the style the world has come to know as “terrorism”. That is the style of rebellion the nation felt at
Oklahoma City. It can be worse: much worse as greater and greater means of mass destruction and mass killing
are being designed privately or escape from both foreign and domestic government control. The world is
developing markets for the instruments of mass terrorism … and we are the target. The solution is to release our
Petition Clause to do its work, then to export it to every nation in the world: “made in America.”
At this point the reader is reminded that the common law purpose and logic of the Petition Clause is to
prevent this kind of cycle, to reduce government to governed tensions, and even to bring peace among warring
factions, with its mere promise. We, the People, and the Nation and its government, all of us: We need that
promise.
Solving the Problem:
590
If you understand the nature of the problem; that it is caused by governmental arrogance to the Right of
Petition, then you also understand that the solution is to release the Right of Petition to do its work in bringing the
government under our Constitution.
Then we have to teach other nations to do the same, by our example.
How can we do that? It is one thing to say “release the Petition Clause to do its work”, but without a
concrete plan, the statement is so much rhetoric. What can be done?
The immediate problem is that government is increasing the stakes by persecuting people for “criminal
exercise of First Amendment rights” in violation of the common law right established in 1689 in the 5th right of
the British Bill of Rights. That spiral has to be stopped in a way that is meaningful to both government and
governed.
There are legitimate applications of the kind of laws (conspiracy, aiding and abetting, obstruction,
interference with government, bank and mail fraud, etc.) that also entrap legitimate exercise of Petition Clause
rights. These laws chill and punish the most important political expression there is: political dissent to government
oppression. But there is no practical way to throw all of those statutes or applications out as unconstitutional, even
though they chill the First Amendment and are in that application, overly broad and vague.
The normal mechanism for testing these applications is to wait until the legal theories that demonstrate
abridgment of First Amendment rights develop, and then for the courts to address the issues in terms of
“vagueness and over breadth” of laws chilling First Amendment rights. One major problem here is that there are
so many laws that can be applied to abridge Petition Clause rights. Normally, it takes years, even decades to
develop the legal theories necessary to overturn a very limited number of similar statutes; and during all of that
time; the government resists development of such theories and persecutes those who develop them.
Presently, there are a large number of laws that are applied to persecute the exercise of petition rights. By
the time the legal theories are developed and applied, the pressures for violence will have increased dramatically,
and government will have adopted new and even more oppressive measures to contain the increased pressures for
violence.
Moreover, all of that assumes that the courts are trustworthy as to this issue, and a major theme of this
article is that they are not. The judiciary is a part of government and government does not want to see an effective
Petition Clause because that nullifies arbitrary power at all levels. Effective petition rights create problems for all
of government by requiring direct accountability of government officials to the people they injure. As
demonstrated in Part I, supra, the judicial theft of the First Amendment Petition of Right is a fact the judiciary has
effectively concealed for over 200 years. Why should anyone believe that the judges would change that
concealment and denial policy now?
There is a collateral problem. The longer it takes to show that government will honor the Petition Clause
and make it effective, the more skeptical more people become and doubt that it ever will. That increases the
pressures for modern rebellion (terrorism) to organize.
Of course, government will develop its own counter measures, and that will inevitably stimulate a more
vigorous response by those who fear tyranny. That is the “logic for war.” The way out of the cycle is to effectuate
the right of petition so that persons accused of “Criminal Exercise of Petition Rights” can have the evidence and
the First Amendment submitted to the jury.
Paired with such an instruction is opening up the federal defender system so that the accused may select
any counsel, as a matter of right, that is willing to work for him at the same price as conflict counsel. The reason
is that the federal defender system is closed to competition and the result is to institutionalize ineffective
assistance of counsel at public expense.
591
Compulsory State Bars should be abolished as state organized First Amendment abridgments. Voluntary
associations competing to raise standards would replace them.
On the one hand, this combination would chill government from bringing Petition Clause cases. On the
other, it would begin the mending process as juries feed back the information Congress needs to determine proper
Petition Clause non abridgment policy.1256
Such jury instruction and freeing lawyers to compete for effective public defense can be accomplished by
an executive order, or by legislation. It need only declare that in any criminal prosecution, on request, a verbatim
First Amendment jury instruction must be given and all evidence relevant to that issue be presented to the jury. It
also should require that an accused otherwise entitled to counsel at public expense may select any willing counsel
and no federal official may discriminate against any freely chosen counsel on the basis that such counsel is not a
member of any State Bar Association.
This does not solve the immunity vs. Petition Clause problem. It is a stopgap measure to prevent
persecution for exercising First Amendment rights under color of criminal prosecution, and it begins to unwind
the tension and increase dialogue between government and governed.
There are other things that need be done to restore the Petition Clause, and through it, our Constitution to
a state of political health. Some of these are discussed under Aspect Four.
D. ASPECT FOUR: THE JUDICIAL CONTEMPT FOR PETITIONING TO REDRESS
GRIEVANCES WITH GOVERNMENT IN FEDERAL COURT
We have discussed three central aspects of the Petition Clause that are never addressed by the judiciary.
Those aspects are:
1. The Petition Clause vs. Sovereign Immunity Issue.
2. The Petition Clause vs. Personal and Official Immunities Issue.
3. The persecution of persons for “criminal exercise of Petition Clause rights.”
The Fourth Aspect is intimately related to the first three because it inquires into why the judiciary refuses to
address constitutional issues of major importance, generally, and specifically why it refuses to address the first
three aspects of the Petition Clause.
In point, there is no more serious constitutional issue then whether judicially created sovereign and
official immunity violates the Petition Clause. Is there any jurisprudential thinker who does not immediately
know that the United States under the doctrine of sovereign immunity is an entirely different nation than the
United States with an effective Right of Petition?
How do we account for the line of Supreme Court cases that established sovereign immunity while
consistently refusing to address that issue in the Petition Clause context?
It is not as if the Court totally ignores the Petition Clause. It just ignores the three central aspects of it
mentioned above. For example:
1256.
The question for the jury in each case is whether the proposed application of law abridges a reasonable exercise
of petition clause rights under the face of the first amendment, the evidence and argument. If it does, they must acquit. If it
does not, then they determine the case according to the other issues presented. While no one case informs Congress on what
policy to adopt, many such cases where the jury refuses to convict, does send such a message. This process of the jury
applying the first to the case guides both Congress and the Executive in determining the temper of the people on the petition
clause issue.
592
The Right to Petition has expanded. It no longer is confined to demands for “a redress of
grievances” in any accurate meaning of these words, but comprehends demands for an exercise
by government of its powers in furtherance of the interests and prosperity of the petitioners and of
their views on politically contentious matters. 1257 “The right extends to the ‘approach of citizens
or groups of them to administrative agencies (which are both creatures of the legislature, and
arms of the executive) and to courts, the third branch of government. Certainly the right to
petition extends to all departments of the government. The right of access to the courts is indeed
but one aspect of the right of petition.’”1258
There is no doubt that the Judiciary recognizes that the Right to Access the Courts is a First Amendment
Petition Clause right. If it recognizes that, does it also recognize that the business conducted before the courts
once accessed, is also a Petition Clause right?
A few cases have addressed that issue in a non-governmental context. One such line of US Supreme Court cases
arises out of federal antitrust law. The issue: When can the filing of a lawsuit lead to antitrust liability?
In Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc.1259 the Court refined the
“Noerr-Pennington” antitrust immunity doctrine and the “sham exception” to it. “Sham” suits enjoy no
constitutional immunity. They are to a Right to Petition like pornography is to the freedom of the press. Real
Estate Investors clarified earlier cases and set out a two-part test for “shamness.”
First, the lawsuit must be objectively baseless in the sense that no reasonable litigant could realistically expect
success on the merits. Once that is established, the court can examine the litigant’s subjective motivation to see if
it conceals an attempt to interfere directly with the business relationships of a competitor through governmental
process, as opposed to interfering by reason of the outcome of that process. That is essentially the “malice” or
wrongful subjective motive part of the two part test.
1257.
See CONSTITUTION OF THE UNITED STATES, ANALYSIS AND INTERPRETATION 1188 (1992); see
also De Jonge v. Oregon, 209 U.S. 253, 264-65 (1937); Herndon v. Lowry, 301 U.S. 242 (1937).
1258.
Id. at 1188-89; California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972); see also
NAACP v. Cliborne Hardware Co., 458 U.S. 886, 913–15 (1982).
1259.
See Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60 (1993).
593
But notice:
Professional Real Estate Investors is not a “Petition to Government” to redress grievances with it. It is a
suit between private parties to determine which party will get the government power to compel the other to obey
the law. This line of cases deals with lawsuits as a procedural due process issue. That is, the issue is access to the
courts as a right to use them as neutral arbitrators to resolve disputes between private parties. As a “Petition
Clause” function, it does not necessarily have its common law roots in the Magna Carta.
It is important to notice the difference in these functions.
The judiciary performs two separate Petition Clause functions.
The first is providing a neutral dispute resolution forum for suits among private parties. That function
incidentally but necessarily includes providing the same forum to resolve disputes between government and
governed. Why? Because the Petition Clause is couched in terms of “Congress shall make no law abridging…”.
Establishing separate compulsory avenues for petitioning government for redress like exhaustion of
administrative remedies or through “star chamber” process necessarily abridges the right to petition government
and is unconstitutional.1260
The second is to provide a “neutral forum” by which private persons can obtain access to the compulsory
processes of law to use against government to compel it to obey the law, or to redress injuries suffered by
government action in violation of the law.
Notice that both the first and second functions are met by the same due process of law consideration:
Unabridged access to the courts. The Courts call this “unabridged access” a Petition Clause right, but it is really a
due process right that is all the more binding on the government when it concerns substantive Petition Clause
rights.
It is in this second function that we run into substantive Petition Clause issues that find their roots in the
Magna Carta. These are the issues that deal with substantive grievances with government’s conduct in its
governing affairs. In this sense, petitioning through the courts is only one of many petitioning methods. For
example, a picket at a courthouse protesting a particular judge, is both protected speech and petition. Likewise
with lobbying the legislature or filing complaints with the executive regarding the executive conduct of
governing.
But while there are many methods of petitioning for redress with government, up to and including
assembly to riot or to use force against it, only one method can use the law to subject the government to the law
and to the redress consequences of violating it.1261 That is to petition the government for redress through the
courts. That is the right of the citizen to use the compulsory process of the law to compel the government, just like
any other party, to answer and to be accountable for its wrongs to the citizen, under the law.
1260.
The Author believes that compulsory administrative procedures for non-contractual grievances, violates the
petition clause. There is something inherently coercive that abridges the right to petition when administrative procedures are
required. But the government may offer them and induce people to exercise them with such advantages as fair standards,
speedy resolution, right to raise constitutional issues, simplicity of petition, low cost and so on. People may be induced to
waive constitutional rights. But the problem emerges when government can force you to exercise administrative remedies
instead of inducing you. In that case they use abridgment of petition rights as a whip, and there is no inducement for
government to make such procedures fair with just redress.
1261.
Notice that this is the principle violated by Chief Justice Jay in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 478
(1793). That case began the United States on the journey of “sovereign immunity” which is translated as “immunity from
accountability to the people.” See supra page 4.
594
There is something very important to notice about this particular process. Its effectiveness in
administering justice relies on the fairness of the law as between government and governed. Presumably, law that
is fair as between private parties will also be fair as between government and governed. The reason? In making
law as between private parties generally, the lawmaker seeks justice for the people, generally without bias. But if
the lawmaker makes special laws for government, as a part of government, he has a bias for the governing
function, and that function is necessarily to regulate the liberties of the people.
Thus, the important function of substantive Petition Clause activity through the courts (obtaining justice
between government and governed) depends on the regularity of both the compulsory processes of law and
substantive law that is to be applied to determine what, if any redress against government, the citizen is entitled
to.1262
So, for example, the right to sue the government in court is a due process right that applies to all
grievances among parties, including grievances with government, albeit, the latter has a substantive Petition
Clause status. In substantive Petition Clause cases, the right to that due process regularity is also a Petition Clause
right because Congress may not abridge access to the courts for substantive Petition Clause purposes with special
procedural requirements.
But that Due Process right, even “raised” to Petition Clause status, is meaningless unless by that process
you can subject the government to the common law,1263 as opposed to special laws designed to protect government
from being compelled to redress grievances.
So, for example, what good does it do to have a due process right protected by the Petition Clause to
bring suits against government to redress grievances, if government is protected from accountability for the
grievance by substantive laws of immunity? It is those substantive “laws” that violate the substance of the Petition
Clause.
The point here is that government immunity is the major substantive mechanism by which Petition Clause rights
are undermined and gutted. There are other laws specially protective of government that undermine or gut
substantive Petition Clause rights, but the immunity “laws” are by so far the greatest offenders that none of the
others, like “tort claims” and “exhaustion of administrative remedies” acts, need be examined for the purposes of
this article.
1262.
Notice the common law observation of Justice Miller in U.S. v. Lee, 27 L. Ed. 176. He “concedes” that
sovereign immunity is “the established law of this country, and of this Court at the present day”. Then he discusses the
English “Right to Petition”. He observes that it is uncertain whether the King “was not suable in his own courts and in his
kingly character” but after the right was established, it “was practiced and observed in the administration of justice in
England (and) has been as effective in securing the rights of suitors against the Crown, in all cases appropriate to judicial
proceedings, as that which the law affords in legal controversies between the subjects of the King among themselves.”
Notwithstanding that Justice Miller ignored our petition clause, that does describe our common law right to petition
government for redress under our petition clause.
1263.
As used here, “common law” has a peculiar meaning that the author believes is also part of the meaning of that
term as used in the seventh amendment. It means “the law that is common to and binding on all of the people.” It is in
contradistinction to law specially designed for government, especially for government protection from the people under the
“common law.” Notice that all seeking redress for any grievance that you have with government falls under the petition
clause, and as to that, Congress shall make no law abridging. The necessary result is the right to petition for redress of
grievances with government through the courts under the law that is common to the people without abridgment for
government’s benefit.
595
III.
THE DUAL MEANINGOF THE PETITION CLAUSE:
PROCEDURAL VS. SUBSTANTIVE
The Petition Clause has two separate meanings: A procedural meaning  the right to petition government
for redress through all the means amiable to that end including judicial; and a substantive meaning  substantive
redress shall not be abridged merely because government or its officers are defendants. It is “The right to
substantively just redress.”
How do you know it has two separate meanings? The First Amendment prohibits both procedural and
substantive abridgments on its face. What more can be said than “Congress shall make no law abridging…”
unless it be added, “and the judiciary shall make no law at all.”1264
Now, understanding this dual meaning: We are ready to examine the mechanics of how the judiciary
systematically refuses to treat substantive Petition Clause suits with the dignity to which they are entitled under
the “Common Law.” That is both as common to our people, and as derived through our legal heritage from the
original understanding of the Magna Carta.
Distinguish between procedural due process and a substantive Petition Clause Right, albeit, the
procedural right is raised to a First Amendment status. The substantive right is for instance: “The government
built a road across my land without paying a just compensation.” That is a Fifth Amendment violation. You have
a Due Process right to sue the government on your claim in court. Doing that is a Petition Clause right, but to this
point, it is all process. What about the right to have the claim heard on the merits? That is also a due process right.
What about the right to have the claim decided by a jury? That also is a procedural right protected by the Seventh
Amendment. What about the right to have the claim justly redressed? That is a substantive petition right. But what
does that mean?
In this case it means the right to make claim for and receive Fifth Amendment Just Compensation for
government’s condemnation of a right of way across your property.
In other words the substance of the Petition Clause right is the right to compel government to obey the
Fifth Amendment Just Compensation Clause.
Notice how the substantive right can be usurped. Suppose you sue the state highway commission in
federal court for violation of your Fifth Amendment right to just compensation, under 42 U.S.C. § 1983. You are
exercising the procedure of petitioning for redress. The highway commission moves to dismiss on the basis that it
is a state agency constructing a state road and it has “state sovereign immunity” under the Eleventh Amendment.
The suit is dismissed. What happened? The substantive doctrine of state immunity cut off the substantive Petition
Clause right. You had your procedural right to petition for redress. The judge can’t doubt that you are making a
Fifth or Fourteenth Amendment claim under 42 U.S.C. § 1983 pursuant to the Petition Clause, but substantive
redress is barred. Why? You have two substantive constitutional rights to just compensation for the easement: The
1264.
U.S. CONST. Art. I, § 1, is conclusive of the issue. “All legislative Powers herein granted shall be vested in a
Congress of the United States,” (emphasis added). “Shall be vested” is mandatory. The Supreme Court is not a part of
Congress. Therefore no legislative powers by any name shall vest in it. Likewise, with the Executive Branch.
596
First and Fifth Amendments. Immunity of your own state government isn’t even mentioned in the
Constitution.1265
How then does state immunity bar redress for constitutional violation?
In effect, the judiciary allows a procedural Due Process right to exercise your Petition Clause rights through the
judicial system, and it calls that the “Right of Petition” through judicial process. But it ignores the substantive
nature of the right that demands just redress be accorded.
Let’s get this concept straight. Our common law Right of Petition can be stated in different words to
convey the same meaning. Observe again, the words of The International Covenant on Civil and Political Rights,
Article II, § 3, as it conveys the Right of Petition.
3. Each State Party to the present Covenant undertakes:
(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall
have an effective remedy, notwithstanding the violation has been committed by persons acting in
an official capacity.
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the possibilities of judicial remedy;
(emphasis added)
Subsection (a) means: “No government immunity.” Subsection (b) goes on to ensure “effective remedy”
by requiring states to “develop the possibilities of judicial remedy” which, by way of subsection (a) is an
“effective judicial remedy.”
Would it make any difference if our Petition Clause used the same words, that the people shall have
“effective judicial remedies” for the violation of constitutional rights? Did we miss something along the way?
When the Framers adopted the Bill of Rights, could they possibly have intended “a bill of unenforceable rights”,
or did they intend all along that “rights are enforceable through judicial remedies that are effective?”
You know without being told that there was no misunderstanding. The Framers did not intend to sell the
American people a “bill of rights” in name only. They intended the rights they enshrined into our Constitution to
be enforced by the people, individually, against the government. They did that in these words: “Congress shall
make no law […] abridging […] the right to […] petition Government for a redress of grievances” and combined
it with Article III, § 2, “The judicial power shall extend to all cases, in law and equity, arising under this
Constitution.”
Tell me: does a petition to redress a violation of an enumerated Right by say, a federal judge, or federal
prosecutor, or an FBI agent, or all of them in concert, “arise under this Constitution?” If it does, what law may be
made to contravene just redress?
There is only one answer: “None.” In both law and logic, it is that simple. Only Congress can make law,
and nothing can contravene a legal right but another law. And as to the right to petition government for redress
under law, Congress shall make no law abridging.
1265.
U.S. CONST. Amend. XI: “The Judicial Power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” On its face, it does not apply to suits by citizens against their own state.
597
Notice that using different words but of the same meaning, our Petition Clause and the common law from
which it came, has been extended to the most important clauses of the most important treaties influencing the
entire civilized world. Under it, prospectively, the peoples of the world shall be entitled to an “effective remedy”
for violation of rights.
But not so once you enter the courts of the “leader of the free world.” Petition Clause rights have no
substantive value here. That is, you can petition for redress of grievances with government as a heightened due
process right, but once in court, there is no effective right to justice. In America, the “land of the free” you cannot
sue the “sovereign” without his consent. And his “consent” is couched in governmental and official immunities
and special procedures and limitations which are applied by judges whose role is to protect government from
accountability, and they are absolutely immune for the most outrageous violations of rights.1266
Our procedural judicial remedy is designed to be substantively ineffective.
Understand:
We are not saying that the law is substantively hollow. We are saying, that just as government immunity
is not the law, but a systematic judicial practice that nullifies substantive rights, that, and other judicial practice
hollows out the substantive law. While judicially created immunity is practiced openly, many of the ways in
which courts allow access but deny substantive redress in cases do not come under established immunity practice,
but are just plain outright corrupt, and there is no other way to fairly describe it.
One state Supreme Court has recognized that the right to sue government is at the heart of the First
Amendment. The California Supreme Court led by Chief Justice Rose Bird addressed this highly volatile issue in
City of Long Beach v. Bozak,1267. saying:
The right of petition is of parallel importance to the right of free speech and the other overlapping
cognate rights contained in the First Amendment and in equivalent provisions of the California
Constitution. Although it has seldom been independently analyzed, it does contain an inherent
meaning and scope distinct from the right of free speech. It is essential to protect the ability of
those who perceive themselves to be aggrieved by the activities of governmental authorities to
seek redress through all the channels of government. A tort action against a municipality is but
one of the available means of seeking redress. (emphasis added).
There is an important point to those words that is implicit in the Right to Petition. It is as important that wrongly
perceived grievances be redressed with adequate explanation, as it is for real grievances to receive just redress.
1266.
In Mireles v. Waco, 502 U.S. 9 (1991) Judge Waco ordered his bailiff to find Attorney Mireles and he “ordered”
his bailiff to “use excessive force” to bring Mireles before the court. The bailiff located, assaulted and battered Attorney
Mireles, then brought him before Judge Waco. Mireles sued Judge Waco, all the way to the Supreme Court. That Honorable
Court held that Judge Waco had judicial immunity from accountability to Mireles for his absurd “order” that violated
Mireles’ constitutional rights.
1267.
31 F.3d 527, 535 (7th Cir. 1994), vacated, 459 U.S. 1095 (1983). (judgment reiterated under both state and
federal constitutions by California Supreme Court in 33 Cal. 3d 727 (1983)).
598
This is just common sense:

If we are not to beg the question by assuming that all grievances are imaginary, then the process of
obtaining redress must be designed to effectively sort them out; to redress imagined grievance with a reasonable
explanation and to redress substantial grievances with just redress. That is a maxim of jurisprudence: justice must
not only be done, but appear to be done.
While it is clear that the California Court recognizes a substantive value to the Right of Petition, its emphasis is on
the process by which redress is sought or made available. The opinion protects the petition right to bring the suit,
regardless of whether it wins or loses. It only seems to imply that the process must be “effective.” That
implication relies on an assumption that the judiciary will do justice and that it doesn’t take a heightened standard
of substantive consideration to get the judiciary to do justice to the case. That is, “justice” is “justice” and that is
what the judiciary delivers. Therefore, no specially heightened standard is required.
Ignores Systematic Bias:
This assumption turns out to be utter nonsense in all cases except one: That one case is where the Petition
Clause guarantees admission to a process in which the dice, in both appearance and fact, can’t be loaded against
justice or substantive redress. It ignores the fact that the judiciary is part of government and judges are biased for
their paymaster which demands by custom and practice, their obedience to government’s will over justice.
The opposite of that assumption is declared very clearly in the Petition Clause’s common law ancestor,
Chapter 61 of the Magna Carta. It proclaims the substantive petition right to just redress. While it is concerned
with a “right of access” to the barons, the main concern is for timely (40 days) administration of substantive
justice by granting appropriate redress. Thus Chapter 61 commands on that score:
… And if we have not corrected the transgression […] within forty days, reckoning from the time
that it has been intimated to us […] the four barons aforesaid shall refer the matter to the rest of
the five and twenty barons, and those five and twenty barons shall together with the community of
the whole realm disdain and distress us in all possible ways, namely by seizing our castles, lands,
possessions and in any other way they can until redress has been obtained as they deem fit,
saving harmless our own person, and the persons of our queen and children;… (emphasis added)
The Magna Carta’s focus is almost entirely substantive: “And if we have not corrected the transgression
within forty days,” a state of moderate to severe war exists where the governed may lawfully ravage the
government, and that continues “until redress has been obtained as they deem fit.” It could hardly be more
powerfully stated that substantive redress is the issue, and process is only the lubricant to obtain substantive
justice.
Understand what that emphasis on substantive redress does to judicial bias. The command is, “just redress
or war.” The reason for injustice is not relevant. If the grievance is brought to the barons, thereafter, “your fault,
my fault, nobody’s fault” it doesn’t matter. The substantive right is “justice or war.” That is what keeps the
barons, now the judges, honest. Where the people have effective recourse to judicial prejudice and self-dealing,
judicial bias ceases to be a problem.
Today, with immunity in place, the Right of Petition is mostly process and little or no substance, and all
effective alternatives to petitioning through systems designed to be ineffective, is illegal. Thus, not only does the
petitioner have to deal with substantive immunity, but with unbridled judicial bias in a judiciary insulated against
accountability for violation of rights.
599
In effect, under the existing judicial “law,” you have a Right to Petition, but no right to justice, and no
Court of Appeals has ever admitted the issue, or examined the conceptual difference. Let us now embrace the
many vicissitudes thereunder.
If the right to sue is the alternative to force, then the right to sue government is the alternative to rebellion
or terrorism. If that is true, one aspect of the Right of Petition is access to the compulsory process of law to use
against government as the civilized alternative to rebellion and terrorism. If judiciary is to serve that purpose, it
must both fairly apply, and appear to fairly apply the law as between government and governed or the “civilized
alternative” will be rejected.
What is the Substance of the Petition Clause? If the Courts treat the Right of Petition as mere procedure,
what is its substance? The answer is simple and direct.
The substance of the Right of Petition is: “unconditionally effective enforcement of the rest of the Bill of
Rights and limitations on government, and just redress for their violation.”
The reason the answer is so simple and direct is because the alternative is lawful rebellion, terrorism and
ultimately, civil war. That is the teaching of our common law.
Underlying that teaching is a repetitive reality that the people learn and learn again. Allow judges to be biased for
government and they will be prejudiced against redressing the people’s grievances  and government will abuse
power more and more because of that bias.
Allow government to decide when and if it will give just redress, and it will decide to give less and less
justice. The result is simple logic: less justice means more oppression.
Compound, complex, convoluted, vague and ambiguous “law” protects government from accountability.
That environment maximizes judges’ ability to pick and choose the “law” or interpretation of it, which is most
pleasing to their bias for government. Add to that “absolute judicial immunity” for exercising pro government anti
redress bias, and pardon us if we observe that you have got to be stupid; or desperate; to pray for justice from that
system.
The only rational alternative to progressive oppression is a policy of “no excuses.” It is a primary duty of
government to provide an effective system of just redress of grievances. Just like its duty to provide an effective
military defense, there is no excuse for failure to provide justice as between government and governed. That is
America’s common law culture.
IV.
THE JUDICIARY IS ORGANIZED TO AVOID
SUBSTANTIVE REDRESS OF CONSTITUTIONAL GRIEVANCES AND
REASONABLE EXPLANATION OF UNREDRESSABILITY
The Court said in Chambers, 207 U.S. at 148: “The right to sue and defend in the courts is the alternative
of force.” That it is an alternative to force; there is no doubt. But if the judicial function merely replaces trial by
combat with another arbitrary process for deciding winners, it can be done a lot cheaper and more fairly, with a
roll of dice.
While our judiciary has evolved some characteristics of justice, its redesign accents its barbarian origins
as “the Sovereign’s” tool to control his subjects. That, instead of the unbiased administration of justice, has
become the primary judicial function. Note the conflict between the two functions. That conflict involves some
basic judicial intrusions into the Constitution that totally nullify the judicial function to administer justice under
the law. Examine some of them:
600
1. The judiciary interprets the Constitution, and only its interpretation counts. The judiciary is a
branch of government. Thus, in disputes between government and governed over the meaning of
the constitution, only government’s version counts. Is that “fairness?” That is the official state
philosophy of “judicial supremacy” in action, and it is hardly “fair.”1268 Under that philosophy,
government gets to be the only and final interpreter of the Constitution by which it regulates the
people. How convenient for government. How unfortunate for the people.
2. Government has sovereign immunity; most of its agents have qualified immunity; and its
prosecutors and judges have absolute immunity even for malicious prosecution and cover ups of
civil rights violations by non-immune persons. What does that do to the idea of justice?
3. The First Amendment doesn’t exactly mean what it says by “Congress shall make no law […]
abridging...” Instead, Congress can make laws abridging, providing they meet judicial tests of
“state interest, narrowly drawn”, and all of the immunities the judiciary has created.
4. While we have personal freedom of speech within parameters, the only freedom we have to
select our own spokespersons in the most important forums affecting our rights, the court’s of
law, is by government licensed attorneys duly propagandized into the dogma of judicial
supremacy. Government has propagandized and licensed the people’s Petition Clause spokesmen
into believing that the Constitution means what the judicial branch of government says that it
means; and they lead us into submission to endless bureaucratic and judicial control.
5. Article I, which vests all legislative power in Congress, doesn’t quite mean what it says either.
The Judiciary can veto Congress and it can affirmatively write its own law as it did in the
“immunities acts” which are judicial enactments that actually amend the Constitution, not just a
little bit, but to the very foundations of the relationship between government and governed. These
Judicial Amendments redefine and annul the very concept of “justice under law.”
6. As for the Second Amendment, the people should forget about keeping arms just in case our
own government gets too far out of line. Since government is sole interpreter of the Constitution,
it interprets that interpretation out of existence, and possession of arms becomes a common
nuisance to be abated in every way bureaucrats can conceive.
1268.
“Judicial Supremacy” is the official legal philosophy of the United States. It’s origins are credited to Chief
Justice John Marshal in his opinion in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). Actually, that founded the judicial
policy of “Judicial Review.” That is not quite the same thing as “Judicial Supremacy” where in addition to supremacy over
the other branches, the judiciary assumes supremacy over the Constitution itself. In all probability, Chief Justice Marshall
would be absolutely astounded at the judicial philosophy he is credited with founding. While there are alternatives to Judicial
Supremacy, it is taught in America as if there are none, and attorneys just learn to accept it as an inherent part of law practice.
The alternative to Judicial Supremacy that is built into the Constitution, is the right to trial by jury where the jury determines
the law as well as the fact. We still have the right, but it has been watered down so that the jury’s real function is instructed
away by the courts. That function is the commonsense of a group of lay persons interposed between the accused and his
accuser. The point is, Constitutional (and all “legal”) issues should be submitted to the Jury for their commonsense
interposition. That is the constitutional balancing force against government having a monopoly on legal interpretation. It is
practical that on any constitutional issue, the Nation has two separate lines of thought going all the time, as to what the real
law is. One is the Supreme Court’s interpretation as government’s official spokesperson of what the Constitution means. The
other is the version that emanates from a case by case evaluation by juries. That is the enforceable version. The push and pull
between these two versions is the life of the “living constitution.” Everyday, the confluence of these two separate
interpretations is the bargain struck between government and governed on what the Constitution really means.
601
7. The troublesome Fourth Amendment: The only time people need security against government
is if they are crooks. So, in that “constitutional” spirit, government protects crooks by excluding
evidence obtained in violation of their rights. As to the rest of the people, government is protected
by immunity, and not being crooks, honest people have no need for privacy anyway.
8. By the way, government can take liberty interests without any compensation, if it can find a
“rational state interest”; and it has plenty of those.
9. Property interests are more protected. We are entitled to “just compensation” if government
“takes” our property for public use. So what it does instead, supported and authorized in advance
by judicial “interpretations” of “taking,” is to outlaw broad ranging uses of property though
zoning; environmental and endangered species protection acts; and regulations of every sort, all
for esteemed “public benefits” but avoiding the necessity of a “just compensation.”
Understand what such takings of property rights do. It is not that environmental and endangered species
protection and zoning are not worthy causes to spend tax dollars on. But that is not what the government does.
Instead it coerces these “public benefits” from property owners, one individual at a time, without paying for it.
That is, the cost of these collectively huge benefits is born by individuals, not by taxpayer/voters vis a vis
government. To be sure, it is the judiciary that makes the rules by which these huge transfers of latent wealth
occur.
And on it goes. Nothing to be alarmed about. Government could do all of these things with constitutional
amendments. So judicial amendments to the Constitution are just “matters of procedure,” and subjective
rationalization justifying abandonment of principle rolls on.
The point is not merely that the Judiciary usurped powers not delegated to it; but it has become so
involved in and biased toward controlling the people for government, that it cannot fairly administer justice. The
judiciary is no longer fit to perform its primary judicial function.
Where does that leave our nation? The primary right of the people to control their own destiny through
self government has been usurped; not boldly as by an invader, but surreptitiously by the branch of our own
government that we trusted most.
The people never got to decide the most important issues relevant to the kind of government they want for
themselves and for their children. Oh, to be sure, they vote for “representatives,” but the fact is that the judiciary
has so totally undermined the concept of limited government and unalienable rights that those running for office
actually think that “Rights are the privileges government tolerates at any particular time,” and “libertarians” think
government should tolerate more “rights.”
In other words, today’s politicians and legal/constitutional/political scholars have not the foggiest idea of
what the Constitution means, independently of what The Court says that it means. They rely on the Court to
determine what “rights” are, and what their own job as our representatives is supposed to be. In a real sense, the
Court dictates the entire political atmosphere to the people and their politicians. Most people who think about it,
especially lawyers, actually believe that it is the right of the Court to be the “sole and finale arbitrator of
Constitutional meaning and design.”
They can’t conceive that it could be any other way, let alone can they get a picture of what the Supreme
Court is doing to fundamental concept of individual rights and constitutional limitations on governmental power.
Others see the arbitrary power wielded by the Court, but think of it as if we are governed by nine wise and
noble legal scholars. That is, in effect, the “Rule by Philosopher Kings” that Plato seemed to favor. But, aside
from the observation that if we are to be governed by “benevolent philosopher kings” then it should be openly so
602
and pursuant to an amended Constitution that authorizes “Philosopher King Supremacy” over it, and over the
other branches.
But the analogy fails in another respect. We are governed by the Court, as an institution, and far from the
individual justices being “philosopher kings” they are “servants” of that institution and its rules; particularly of
the rule of stare decisis and their own precedents.
To the Court, stare decisis means more than simply following precedent. Of course, the Court has the
power to overturn its prior decisions. Sometimes, as in National League of Cities v. Usery, 426 U.S. 833 (1976),
and Garcia v. San Antionio Metro. Transit Auth., 469 U.S. 528 (1985), concerning Tenth Amendment Limits on
the federal regulation Congress can subject states to under the Commerce Power, the same Court reverses its
previous 5-4 decision by another 5-4 decision accomplished by one justice switching sides. That hardly reflects a
“philosopher king” kind of leadership.
But more to the point, when it comes to national policy like sovereign immunity, the Court has a much
greater problem: How can it reverse itself without undermining its own basis of political power? How can it say to
the people, “look, we made a mistake these past 200 years and never exactly noticed what the Petition Clause did
to sovereign immunity, and, well, to be frank, we rewrote the Constitution the wrong way. Now we want to
rewrite it the right way.”
It’s not only, “Who’s going to trust them this time”, but why should we let the Court rewrite the
Constitution again, when in the face of its admission, it never should have rewritten it the first time? Look, we are
not talking about just any “mistake”. We are talking about a “mistake” that ignores the very foundation of
republican control over government. That “mistake” annuls the very purpose of having a constitution  to limit
government by holding it to account for its violations  and it is a “mistake” that benefits the party in error.
In common law, that kind of “mistake” is not a mistake, but constructive fraud. Even if the Court didn’t
know that it didn’t have Constitutional authority to make such a policy. But even if it didn’t know about the
Petition Clause, such usurpation for its own benefit is still “constructive fraud.” Who will believe that the Court
didn’t know those things?
That is to say, if the Court ever admits that sovereign and court created official immunity is not
constitutional, it opens a “pandora’s box.” The Court has never faced the kind of scrutiny that sometimes occurs
to the political branches. But suddenly, there would be questions about how it could have made such a “mistake”;
and then, “was it a mistake?” Then, if not a mistake, what is it for a branch of government to consciously
undermine the people’s interests in the enforceability of what is after all, their Constitution?
Some, perhaps many, will call it “treason.” But that brings up a new concept. The Justices’ actions are
largely dictated by the institution in which they find themselves confined. If it is “treason” it is not a personal kind
of treason, but something that is more like “institutional treason.” That is a concept that we legal philosophers
don’t quite know what to do with. It is “out there”. It has some meaning, but as a concept that can help explain the
perverse directions that constitutional republics might take that lead 180 degrees away from what you’d expect
under their constitution, it requires a lot of exploration and analysis.
As a concept of moral and legal judgment, it is almost useless. We do not begin to understand the
psychological and sociological pressures and dynamics of legal institutions at that level of government. If it is
“treason,” then we will have to deal with such additional concepts as “involuntary treason,” or “treason” under
coercion and undue influence by the entire governmental structure of the nation against which the treason occurs.
603
V.
CONCLUSION
The purpose of this article is not to tell you, the reader, “the way that the law is.” At best, it can provide
only a snapshot of a small piece of it, central to the law though it may be. The philosophy of law is much too
young to know enough to tell you anything but small snapshots and rough outlines of legal theory, and the science
of law has not yet been born.
There is so much to be done in the philosophy of law that one’s lifetime is hardly time enough to start. Its
future holds all of the excitement of a new science, undreamed of before. Its limits are so bound to human destiny
that we shape today, by the understanding that we give, or fail to give, to its substance, the themes of human
civilization, as it will exist forever, or as it may fail to exist beyond 21st Century.
The purpose of this article is to start the next generation of legal philosophers thinking about what the law
is, and why it is, and where it will take mankind, so that they can begin the journey that I only dream of. That
journey is into the realm of law as a science for future civilizations, to set mankind free, to redesign and
reconstruct his government as a vehicle to take him to the heights of freedom and dignity, that his God, and his
soul for adventure, made him to seek.
The Right of Petition is the right to substantive justice between government and governed. Upon that
Right rests our hopes for freedom and dignity in the twenty-first century.
Freedom and dignity thrive on justice, and cannot survive without it.
604
605

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Don Hamrick, pro se ) 18 U.S.C. § 1964(c) RICO Treble Damages

“res integra jus naturale et justita ferenda”

(4). 10 U.S.C. § 333. Interference with State and Federal law......................................... 59

(11). Under 18 U.S.C. § 1964 Civil Remedies [for Racketeering] ...................................62

PART 3. PURPOSE OF THIS CASE ....................................................................................................................87

D. Kathleen M. Sullivan’s, Unconstitutional Conditions, 10 Harv.L.Rev. 1413 (May 1989)........... 150

(4). The Inter-American Convention Against Corruption.............................................. 178

(2). Inalienable Rights Defined.....................................................................................226

D. Second Amendment Rights of Seamen under 33 U.S.C. § 383 Resistance of Pirates by

Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1

Robbery Against Ships (International Maritime Organization’s Maritime Safety Committee

F. Evidence of Habit/Routine Practice (Rule 406, Fed.R.Ev.) Leads to Presumptions in General

Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1

Part 1. Mandatory Judicial Notice of Adjudicative Facts, Rule 201(d), Fed.R.Ev.

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

Don Hamrick FRIDAY, JULY 4TH, 2008

5860 Wilburn Road, Wilburn, Arkansas 72179, Email: [email protected]

U.S. Supreme Court Ruling on the Second Amendment as

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

IMPACTED INTERNATIONAL TREATIES:

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

THE INTERNATIONAL BILL OF HUMAN RIGHTS:

SELECTED INTERNATIONAL HUMAN RIGHTS INSTRUMENTS

● INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, 16 Dec 1966

THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

CAVEAT: The Bolded fonts represent my intellectual anger, NOT my emotional

“Where a person’s good name, reputation, honor, or integrity is at stake

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

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(3). Third Invitation by SCOTUS: Second Amendment (2008) (Again!)

C. Summary Judgment is Unconstitutional and a Fraud. Summary Judgment under

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

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(1) demurrer to the pleadings,

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

G. Justice Harlan’s Dissent on Arbitrary Exercise of Government Power and

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

H. Dismantling of Private Attorney General Endangers Civil Rights

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

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(2) Is the Eleventh Amendment Unconstitutional?

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

(1). Case Law

In Twombly, the Court distinguished Swierkiewicz by stating that “we

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS