Police Brutality???

 

OK, I am doing an experiment on cultural attitudes toward policing. I'm hoping that a US audience will see this and give their opinion.

This was posted by the French @gendarmerie_nationale_officiel with the caption:
The trend gone wrong #humour #gendarmerie #gendarme

 

I've mentioned that I have seen British police beat the crap out of people who resisted arrest.

I am also aware of the cultural differences in policing.

I am curious as to how this would be received by a US audience.

The Constitution Wasn’t Sacred—It Was a Battle of Revolution. And It’s Failing again.

I've always thought "We the people" was propaganda: especially since the Constitution was pretty much drafted in secret. This is an interesting take on the document.

You don't understand natural rights if you think they give you a right to own a weapon

 "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."

I will admit I have a lot of problems with the concept of "natural rights" with the major one being that they don't exist. The reason I started this post with the quote from the Declaration of Independence is that is says "liberty" would be a natural right. As an extension, so would slavery, yet the person who wrote that owned slaves and raped one of them: Saslly Hemmings.

And if we are getting into that they are "god given", shouldn't they be somewhat in line with the ten commandments?  Establishing natural rights seems a rather straightforward thing to sort out amongst citizens, but even the most basic natural right, the right to life, is fraught with potential pitfalls such as 'does that right include or exclude the right to an abortion or the right to euthanasia?' But more in line with this is the ability to use deadly force despite the commandment "thou shalt not kill". 

As I point out for one of my arguments that the Heller decision is wrong is that the use of deadly force in common law at the time of the drafting of the constitution was a last resort. The common law scholar, Blackstone, wrote concerning this the law of self-defence:

THE defence of one’s self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations, be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace, which happens, is chargeable upon him only who began the affrayd . For the law, in this case, respects the passions of the human mind; and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice, to which he is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say, to what wanton lenghs of reapine or cruelty outrages of this sort might be carried, unless it were permitted a man immediately to oppose one violence with another. Self-defence therefore as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away be the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay even for homicide itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention; for then the defender would himself become an aggressor.

Blackstone’s Commentaries on the Laws of England, Book the Third, Chapter the First: Of the Redress of Private Wrongs by the Mere Act of Parties p.3

In the Enlightenment, some of the greatest minds in history set themselves the formidable task of thrashing out just what should be considered natural rights. In fact, there is quite a debate as to what exactly these rights would be and how they come about. I've already said that anyone can claim anything as a right, but whether your claimed right is accepted is another matter.

I would also add that this is a much more complex philosophical issue than most of the people who talk about it realise.  It's not the libertarian state of nature, but an acceptance of a social contract. And even the state of nature has its rules. And the rules come from the use of reason which makes everyone equal and by necessity must respect other's rights. Expecially in ways that would harm another in his life, health, liberty, or possessions.

The motivation behind the individual’s leaving the state of nature—the state of liberty—lies in the uncertainty and insecurity of enjoying life, liberty, and physical goods.  Locke recognized in his Second Treatise of Government  that individuals would perceive themselves in the following way: “For all being kings as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state [of nature] is very unsafe, very unsecure.” Individuals, therefore, must remain in a state of vigilance against others who do not properly use their reason to recognize the truth of natural rights. Instead of living peacefully, acquiring property, and pursuing their own conception of happiness, individuals must stay vigilant against those who are willing to violate another’s life, liberty, or property, thus presenting a barrier for others from enjoying any or all of them. Hence, it is rational to consent to a social contract, even for those who would not follow the natural law in the state of nature, and establish a government that quells this state of “continual danger.” The end—or purpose and final cause—of “uniting into [a] commonwealth” and erecting a government, therefore, is “the preservation of property”—where property is understood to include life, liberty, and property.

Citizens relinquish some of their powers from the state of nature; more specifically, these include the powers of “doing whatsoever he [thinks] fit for the preservation of himself” and “punishing others” whom he thinks committed injustices against him. Locke believed that citizens should first establish general and promulgated law “received and allowed by common consent to be the standard of right and wrong, and the common measure to decide all controversies between them.”

The reality is that even if you want to claim a "natural right", there needs to be some consensus from society about that right. The problem with the Second Amendment is that there is so much misinformation about it out there and very little fact.  I found an interesting abstract on this which pretty much sums up what I am saying:

A growing body of scholarship claims that the Second Amendment was intended to enable individuals to exercise their natural right to self-defense against violence. In this Article, Heyman shows that this view is based on a misunderstanding of the natural rights tradition, as reflected in the works of Locke and Blackstone, the post-Revolutionary state declarations of rights, and the debates over the Constitution and the Bill of Rights. Natural rights theory held that, when individuals entered society, they largely gave up their right to use force against others in return for the protection that they received under the law. And while the people retained a right to resist and over- throw governmental tyranny, this was a right that belonged not to private individuals but to the community as a whole. In this way, Heyman argues, the natural rights tradition provides more support for a collective right than for an individual right interpretation of the Second Amendment.

Steven J. Heyman, Natural Rights and the Second Amendment, 76 Chi.-Kent L. Rev. 237 (2000).
Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol76/iss1/8

And if we are going down the path of it being a natural right, it has fallen victim to absurdity: not reason. The concept of natural rights does indeed mean that people have given up their "individual rights" to be members of society. And to claim that something which is detrimental to society is a "right" is absurd.

The Constitution's Most Forgotten Amendment - 1000 Years in the Making

Yeah, but it comes in third, right after the other misunderstood Amendment (the Second). This ties in the mindset about the fear of standing armies and out of control military establishments.

There is way more evidence that the Constitution, Second, and Third Amendments relate to the common defence and the fear of standing armies than the private ownership of arms.

 

The 2nd Amendment Doesn’t Mean What You Think It Means | Think Again

This is pretty good, but I would guess that most people who would leave comments wouldn't have watched this: 

 The next video is a fairly decent explanation of Second Amendment case law, but it leaves out the issue of standing armies. Just remember the real issue was what form would the common defence take? A professional military or something like what Switzerland had. That is a small professional force for administration and training with the bulk of the forces being part timers.

That gets lost in the debate even though there is far more evidence that is what the issue was.

Toss in that the militia was pretty much a dead letter from the start.  The George Mason’s quote as recorded in the transcripts of the Virginia Ratifying Convention is a good confirmation of that:

“I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people.”

Unfortunately, the exclusion was common in Mason's time, as my ancestor, a poor, Pennsylvania farm kid would attest. Dislike for the Militia was pretty much what killed it off, as this passage from Joseph Story, Commentaries on the Constitution 3:§§ 1890 (1833) points out:

And yet, though 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 it is 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.

The Second Amendment died of desuetude long ago. Attempts to revive it only create an out of control monster.

Is the party going to end soon?

 OK, show me where the concept of "self-defence" is explicitly mentioned in the US constitution.

Militia Training by James G. Clonney (PAFA)

It's not. And proper statutory interpretation says that when a law explicitly includes certain elements (e.g., common defence, army, navy, militia,etc.), it is inferred that the omission of other elements (e.g., private ownership of arms) is deliberate and intentional. This principle has been employed to ensure that the interpretation of laws remains consistent with their textual formulation. 

I would point out that the miltia is mentioned in the US Constitution and that the power of congress over it granted under Article I, Section 8, Clause 16 was one of the concerns high on the minds during the drafting of the Consrtitution. The other one being that the Feds had an Army. In the words of Elbridge Gerry:

• What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty. Now, it must be evident, that, under this provision, together with their other powers, Congress could take such measures with respect to a militia, as to make a standing army necessary. Whenever Governments mean to invade the rights and liberties of the people, they always attempt to destroy the militia, in order to raise an army upon their ruins.
  • House of Representatives, Amendments to the Constitution, 17, 20 Aug. 1789

A far better way of framing the discussion of what the Second Amendment is about and how it was understood by the founders is more along the lines of this early version of the right:

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.
Virginia Declaration of Rights, 1776 §13 which was written by Thomas Jefferson

This version is more than backed up by the primary sources that are taken out of context, or just misquoted, by the gun crowd. Or as Patrick Henry scholar, Henry Mayer, said:

This is not, I repeat NOT, part of Patrick Henry’s legacy. Clearly speaking of the problem of militia organization, what he actually said is, “The great object is that every man [of the militia] be armed.–But can the people to afford to pay for double sets of arms &c.? Every one who is able may have a gun. But have we not learned by experience, that necessary as it is to have arms, and though our assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance….”

 And Henry made it clear that he was addressing Article I, Section 8, Clause 16.

Justice William O. Douglas addressed Miller and glossed it in his dissent in Adams v. Williams, 407 U.S 143, 150 -51 (1972) , which somehow is omitted in lists of SCOTUS cases mentioning the Second Amendment. Which is too bad since Justice Douglas was a member of the Supreme Court when Miller was decided, which makes him a very good source for how that case should be read.

Justice Douglas pointed out that in Second Amendment jurisprudence:

The leading case is United States v. Miller, 307 U.S. 174, upholding a federal law making criminal the shipment in interstate commerce of a sawed-off shotgun. The law was upheld, there being no evidence that a sawed-off shotgun had “some reasonable relationship to the preservation or efficiency of a well regulated militia.” Id., at 178. The Second Amendment, it was held, “must be interpreted and applied” with the view of maintaining a “militia.”
“The Militia which the States were expected to maintain and train is set in contrast with Troops which they were forbidden to keep without the consent of Congress. The sentiment of the time strongly disfavored standing armies; the common view was that adequate defense of country and laws could be secured through the Militia – civilians primarily, soldiers on occasion.” Id., at 178-179.

I should remind people that Justice Douglas was on the Court when Miller was decided, in addition to being one of the longest sitting justices. So, I would put his interpretation of Miller as being more autoritativre than Scalia's. But Scalia was correct in that Miller was not helpful to his reinterpretation of the constitution.

Which gets to my question: is the party going to end soon? Are people going to see the real history of the Second Amendment and constitution? Even more importantly, are they going to see that the Supreme Court has been acting outside its powers. After all, Judicial review is not in the US Consrtitution, but comes from the case of Marbury v Madison,  5 U.S. 137 (1803).

 A case that states “It cannot be presumed that any clause in the constitution is intended to be without effect.” 

Better yet, from the neglected case of Presser v Illinois,  116 U.S. 252, 6 S.Ct. 580, 29 L.Ed. 615 (1886), which says:

Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the state and federal governments, acting in due regard to their respective prerogatives and powers. The constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject.

 The problem with the Heller-McDonald rewrites and the offspring thereof is that there was a Second Amendment jurisprudence, which said it applied solely to the Militia and the Federal Government's power over that body.

Let's bring it back to what it should be.

Switzerland During the French Revolution and Napoleonic Wars

Like the US, Switzerland has a national mythology about its arms. In the Swiss case, being armed has contributed to its neutrality and never being "invaded". 

But like the US, Switzerland's myth isn't really true. But it makes them feel good.


 th

A little more Swiss history since William Tell is more of a legend than a real person. Think along the line of King Arthur.

 

And I have been to Switzerland a few times. You won't see a lot of people carrying guns in Geneva, but you will see UN and other groups dedicated to peace. Switzerland strengthened its gun laws in 2019 to keep it in line with the EU and the Schengen agreement.

NRA approved Art!

Let's hear it for responsible gun ownership! BTW, this is nothing new, Nikki Saint Phalle was doing this in back in the 1960s. 

"In shooting myself, I took aim at society and its injustices" declared Niki. And she's also born in the US!

 Oh, by the way, Here's this on Swiss guns:

What don't you understand about "domestic violence"?

In the previous post, "Misinterpreting the Constitution", I mention the phrase "domestic violence", which has a drastically different meaning today from what the founders understood it to mean. While this video is fairly elementary (as in it's like my A level english course), it does make a few important points about language.
 

The major takeaway is that language of even a fairly recent time might be different from how we interpret it. And it's definitely different from what it was 240 some years ago. It's wrong to impose modern ideas on a text that old: especially if it is detrimental to modern society.

This next video gets into how when Shakespeare (Shakespear?) is heard in the original pronounciation, it makes the meaning clearer. Likewise, when the constitution is understood as a whole, it makes the meaning of the Second Amendment much more obvious that it relates to the militia, which is an institution that has changed drastically from how it was original conceived by the founders.

Another takeaway is that what people think pirates should talk like is the West Country Accent. I have to wonder if Shakepeare's English is coloured by his being from Warwickshire, which isn't exactly West Country, but it would have been signifiantly far away from London when he was alive. After all, the World's End Pub in Chelsea WAS way outside of London when it was built. Even where I live now wasn't as built up as it is now in the mid-1700s!

And people who have seen "Lost in Austen" will remember her visit to Regency period Hammersmith. I used to live in an area that was once farmland in the mid-18th Century and is now considered centre city.  But that's a lot of a digression other than life has changed quite a bit from the late 18th Century and we can't place modern ideas on texts written over 200 years ago. That probably even applies to something written 25 years ago.

Anyway, see also:

• Baron, Dennis, Corpus Linguistics, Public Meaning, and the Second Amendment, Duke Center for Firearms Law: https://firearmslaw.duke.edu/2021/07/corpus-linguistics-public-meaning-and-the-second-amendment
• ___.    Guns and Grammar: the Linguistics of the Second Amendment, https://debaron.web.illinois.edu/essays/guns.pdf
• Amicus Brief NY State Rifle and Pistol Association, https://www.supremecourt.gov/DocketPDF/20/20-843/193271/20210921155937883_Amicus%20Brief.pdf

Misinterpreting the constitution.

 What would you say if I told you that there is a constitutional obligation of the States to address the topic of domestic violence?

It's in the Constitution at Article 4, Section 4:

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Of course, domestic violence in the constitutional sense isn't a battered spouse. Instead the founders knew that danger might arise from internal forces, It is the constitutional obligation of the people in the federal government to use whatever power is necessary to deal effectively with both threats. So, it is the federal government to “protect” the people from “domestic violence” as well as from “invasion.”

Yet another tenet of the gun rights crowd shot down since the constitution is pretty clear that it deals with matters of the common defence and insure domestic tranquility. Can't have armed bands running around threatening the constitutional framework. After all, Shays' Rebellion was one of the reasons for the adoption of the Constitution. 

The war for independence was a pyrrhic victory in that it left the "United States" in disarray and heavily in debt.  The founders could have just said, "fuck it, we made a mistake, let's not bother with starting a new nation."  Each state would go its own way.

But the mythology is that it was the colonists themselves threw out the British at Lexington, Concord, and Bunker Hill. Nevermind that the War for Independence went on for eight more years with a lot of help from foreign powers, particularly the French. And with that myth came the belief in "god, guns, and guts" made the US great.

But the War for Independence wasn't really the start of the colonists' aspirations, the glorification of the War for Independence leaves out that it was a reaction to receiving the bill for the French and Indian War. A war that led to British Troops being stationed in the colonies. It was their presence which led to these complaints in the Declaration of Independence:

• He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
• He has affected to render the Military independent of and superior to the Civil power.

The founders understood the right guaranteed by the Second Amendment as relating to the Militia and the Common Defence, in particular the powers given to Congress under Article I, Section 8, Clauses 15 & 16. I would refer you to the analog to the Second Amendment created by Thomas Jefferson in the Virginia Constitution of 1775.

What got me to write this was someone did a youtube video about American's love for guns which totally misstated the facts and presented the mythology of guns in the United States. We wouldn't be in the mess we are if it hadn't been for a radical reinterpretation of the US Constitution, in particular the Second Amendment, for a fantasy version of that text.

So, if you want to ask me "what don't I understand about 'Shall not be infringed'"? I have to ask if you believe that acts of domestic violence should be addressed by the state government?

The ultimate answer is that asking what I don't understand about "shall not be infringed" removes the Second Amendment from its historic and consitutional context. One which needs to be read as a whole since Marbury v Madison said that such an interpretation is "form without substance" it makes the section is mere surplusage -- is entirely without meaning -- if such is to be the construction since It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.

see also:

• Baron, Dennis, Corpus Linguistics, Public Meaning, and the Second Amendment, Duke Center for Firearms Law: https://firearmslaw.duke.edu/2021/07/corpus-linguistics-public-meaning-and-the-second-amendment
• ___.    Guns and Grammar: the Linguistics of the Second Amendment, https://debaron.web.illinois.edu/essays/guns.pdf
• Amicus Brief NY State Rifle and Pistol Association, https://www.supremecourt.gov/DocketPDF/20/20-843/193271/20210921155937883_Amicus%20Brief.pdf

 

Yet another US gun ownership myth being blown apart.

 This is a clip from "Warriors of the Dawn: Indigenous Weapons and Tactics of King Philip's War" by Atun-Shei films (https://www.youtube.com/watch?v=VMXKXoA1_gQ ).

People talk about the Pilgrims, but they neglect Jamestown's Starving time. This occurred during the winter of 1609-1610, when two-thirds of the Jamestown colonists died of starvation, disease, and Indian attacks. Any firearms they had weren't very helpful.

As this native American interpreter points out, as I have as well, firearms during this period were expensive. They aren't inexpensive now either with the low end being around $200 for a new handgun. Maybe one can buy a beat up, used one for less than that.  AR-15s start arround $450 and go up,  with something like an H&K 556 at around 3k or Knight's Armament KS-1s being around 5k.

But a modern firearm is machine made, whereas firearms in prior to the 19th century were pretty much handmade. So, think about buying something like a Purdey, Holland and Holland, and Westley Richards did make firearms for the British Military. Maybe that's why they have a thing for overpriced guns for the army.

 The US war for independence bankrupted the country. Toss in the colonists would probably have lost if they didn't get help from France, or use stolen British arms.

Why proper regulation of firearms in the US is going to be difficult

It's not that I don't support gun regulation, but it's going to be really hard given the amount of guns in the US.

 

Getting them off the streets is going to require following Australia's example of having a massive gun buyback. But imagine how much that will cost. Toss in the Aussies funded their buyback with a tax.

it also seems there are a lot of these going on as is, but there are a lot of guns out there.

How the founders understood the Second Amendment

 Is totally different from it's current interpretation, but this is something I have gone into ad nauseum.

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

Virginia Declaration of Rights, 1776--written by Thomas Jefferson.

Pretty much all the quotations taken out of context by people who want to trash the Constitution in the name of "original intent" point to this being the concern. Far more primary source material backs me up.

For example, if one actually reads the speech where patrick Henry says "The great object is that every man be armed. Everyone who is able may have a gun."

On the other hand, this is the actual speech:

The Debates in the Several State Conventions on the Adoption of the Federal
Constitution (3 Elliot’s Debates 384-7)
Virginia, Saturday, June 14, 1788.
http://lcweb2.loc.gov/ammem/amlaw/lwed.html

Mr. HENRY. Mr. Chairman, in my judgment the friends of the opposition have to act cautiously. We must make a firm stand before we decide. I was heard to say, a few days ago, that the sword and purse were the two great instruments of government; and I professed great repugnance at parting with the purse, without any control, to the proposed system of government. And now, when we proceed in this formidable compact, and come to the national defence, the sword, I am persuaded we ought to be still more cautious and circumspect; for I feel still more reluctance to surrender this most valuable of rights.
As my worthy friend said, there is a positive partition of power between the two governments. To Congress is given the power of “arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States.” To the state legislatures is given the power of “appointing the officers, and training the militia according to the discipline prescribed by Congress.” I observed before, that, if the power be concurrent as to arming them, it is concurrent in other respects. If the states have the right of arming them, &c., concurrently, Congress has a concurrent power of appointing the officers, and training the militia. If Congress have that power, it is absurd. To admit this mutual concurrence of powers will carry you into endless absurdity— that Congress has nothing exclusive on the one hand, nor the states on the other. The rational explanation is, that Congress shall have exclusive power of arming them, &c., and that the state governments shall have exclusive power of appointing the officers, &c. Let me put it in another light.
May we not discipline and arm them, as well as Congress, if the power be concurrent? so that our militia shall have two sets of arms, double sets of regimentals, &c.; and thus, at a very great cost, we shall be doubly armed. The great object is, that every man be armed. But can the people afford to pay for double sets of arms &c.? Every one who is able may have a gun. But we have learned, by experience, that necessary as it is to have arms, and though our Assembly has, by a succession of laws for many years, endeavored to have the militia completely armed, it is still far from being the case. When this power is given up to Congress without limitation or bounds, how will your militia be armed? You trust to chance; for sure I am that nation which shall trust its liberties in other hands cannot long exist. If gentlemen are serious when they suppose a concurrent power, where can be the impolicy to amend it? Or, in other words, to say that Congress shall not arm or discipline them, till the states shall have refused or neglected to do it? This is my object. I only wish to bring it to what they themselves say is implied. Implication is to be the foundation of our civil liberties, and when you speak of arming the militia by aconcurrence of power, you use implication. But implication will not save you, when a strong army of veterans comes upon you. You would be laughed at by the whole world for trusting your safety implicitly to implication.
The argument of my honorable friend was, that rulers might tyrannize. The answer he received was, that they will not. In saying that they would not, he admitted they might. In this great, this essential part of the Constitution, if you are safe, it is not from the Constitution, but from the virtues of the men in government. If gentlemen are willing to trust themselves and posterity to so slender and improbable a chance, they have greater strength of nerves than I have.

Note that Henry says:
To Congress is given the power of “arming, organizing, and disciplining the militia, and governing such part of them as may be employed in the service of the United States.” To the state legislatures is given the power of “appointing the officers, and training the militia according to the discipline prescribed by Congress.”

This is an exact quotation ofThe United States Constitution, Article I, Section 8, clause 16, https://constitution.congress.gov/browse/essay/artI-S8-C16-1/ALDE_00013673/.  The current interpretation of the Second Amendment wouldn't do very much to stop violation of the Second Amendment by Congress's interpretation of it in the above cited article.

In fact, the founders would find current the US Military to be far more of a violation of their intent in the Second Amendment as exemplified by the Henry and Jefferson.

Furthermore, there is no Constitutional authority for Judicial Review.

That comes from the case of Marbury v Madison, 5 US, 1 Cranch 137 (1803). Marbury v Madison, which also deals with clauses in the Constitution:

It has been insisted at the bar, that, as the original grant of jurisdiction to the Supreme and inferior courts is general, and the clause assigning original jurisdiction to the Supreme Court contains no negative or restrictive words, the power remains to the Legislature to assign original jurisdiction to that Court in other cases than those specified in the article which has been recited, provided those cases belong to the judicial power of the United States.

If it had been intended to leave it in the discretion of the Legislature to apportion the judicial power between the Supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage -- is entirely without meaning -- if such is to be the construction. If Congress remains at liberty to give this court appellate jurisdiction where the Constitution has declared their jurisdiction shall be original, and original jurisdiction where the Constitution has declared it shall be appellate, the distribution of jurisdiction made in the Constitution, is form without substance. Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense must be given to them or they have no operation at all. It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it.

  So, the US Supreme Court has decided that the first part of the Second Amendment is "mere surplusage" despite the word that a "Militia" is "necessary to the Security of the Free State".

Then I say why not ignore the rest of Marbury v Madison since some of the complaints of the revolting colonists concerned the abolition of legislatively enacted laws by an unelected official:

For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

The Justices would do well te remember that they are not acting under authority of the US Constitution, or US History, when they abolish gun laws using a misnterpretation of the Second Amendment.

How Israel May Lose Its Military Hegemony in the Middle East

Unlike all my other posts, this one deals specifically with the issue of the militia, which is specifically what the Second Amendment addresses:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

That's pretty clear and I certainly won't infringe your right to bear arms as a part of the constitutional militia, which is one set up according to Article I, Section 8, clause 16 of the US Constitution. The Second Amendment only guarantees that this system should not be infringed.

Never mind reality has intervened and the United States has a standing army, which is what the Second Amendment was supposed to prevent.

And while the revisionism would have us believe that parts of the constitution are irrelevant, Marbury v Madison, 5 U.S. 137 (1803), makes it clear that is not the case. And the US Supreme Court can stop acting outside its constitutional mandate if it wants to suggest otherwise since: "It cannot be presumed that any clause in the Constitution is intended to be without effect, and therefore such construction is inadmissible unless the words require it."   

In fact, Scalia could have cut his mental mastubation in that piece of shit decision since Marbury pretty much contradicts him, and tells him he has no business doing what he did by declaring a section of the Constitution "mere surplusage -- is entirely without meaning -- if such is to be the construction."

Damn, Scalia was too "smart" for his own good. And an originalist in the sense that he was very original in his interpretation, which works against him.

So: yes, the founders intended to address the "common defence" of the United States of which A well regulated Militia was consider as being necessary to the security of a free State. To insist otherwise is trash the United States Constitution.

Anyway, this shows why a militia is a good idea for a defensive force, especially for a small country like Switzerland. But not a good idea if one wants to fight wars.

With that, I end with this comment by Justice Joseph Story,  (September 18, 1779 – September 10, 1845) who was an American lawyer, jurist, and politician who served as an associate justice of the Supreme Court of the United States from 1812 to 1845. He is most remembered for his opinions in Martin v. Hunter's Lessee and United States v. The Amistad:

Joseph Story, Commentaries on the Constitution 3:§§ 1890--91 (1833) § 1890. 

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 of peace, both from the enormous expenses, with which they are attended, and the facile 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. And yet, though 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 it is 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. 

§ 1891. A similar provision in favour of protestants (for to them it is confined) is to be found in the bill of rights of 1688, it being declared, "that the subjects, which are protestants, may have arms for their defence suitable to their condition, and as allowed by law." But under various pretences the effect of this provision has been greatly narrowed; and it is at present in England more nominal than real, as a defensive privilege. 

 The Founders' Constitution Volume 5, Amendment II, Document 10 http://press-pubs.uchicago.edu/founders/documents/amendIIs10.html The University of Chicago Press 

Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.

What could be more American than a mass shooting in Philadelphia on Independence Day?

 Or what don't you get about:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Don't say "well regulated means well trained" since Shays' rebels were well trained. Well regulated is defined as: "in all cases the military should be under strict subordination to, and governed by, the civil power." (Virginia Declaration of Rights 1776) In fact, that document pretty much sums up what the Second Amendment is about:

Section 13. That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

A miltia isn't whatever the fuck you want to pretend you are--it is a body which is defined by law and under strict subordination to the civil power.

You are committing treason if your militia isn't set up under Article I, Section 8, Clause 16 and acting under authority of clause 15. In fact, Treason is the only crime defined in the US Constitution, Article III, Section iii:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.

The definition of Treason in US law is very specific.

So, if you want to pretend that you are an "oathkeeper" or that you are within the constitution, I would like you to pause and consider if you are truly acting under lawful authority?

Or are you just being a total fuckwit and acting like a fool?

I don't give a shit what those clowns on the "supreme court" want to say since they don't have the constitutional authority to rule on the subject.

And they sure as fuck don't have the authority to invalidate laws which are for public safety.

But as I said in the title: "What could be more American than a mass shooting in Philadelphia on Independence Day?"

I hope the fuckwits on the supreme court can get that through the shit that clogs their skulls.

My ancestors shouldn't have capitulated at Morristown. They were "well trained" too.

And if you want to understand what the Second Amendment is about, then you should know about this forgotten bit of history. It's not the statue in Massachusetts, it's the lack of memorial to the militia soldiers who sacrificed for your freedom to be an asshole:

The Pennsylvania Line Mutiny, its Origins and Patriotism

read it and learn what you have been misunderstanding all this time.

Want to watch people in the US Freak out? PART 2

I saw a clip which featured John Oliver bemoaning the "militarised police" in the US. It made me wonder if he had ever traversed La Manche. Or is he like his insular Amerloque cousins and stuck in a place where police never carry guns, which is actually a myth since British Police are armed. They just aren't armed to the extent of the French. The headline from Le Monde states: 

Urban riots: the use of elite police and gendarmerie units, a "conscious" strategy

BRI, RAID, GIGN... by calling in these intervention units, the Minister of the Interior wanted to make an impact. According to his entourage, this is a choice that has been "assumed and asserted".

I've already mentioned GIGN, Groupe d'intervention de la Gendarmerie Nationale, which is the internal version of something akin to the US's Delta Force. The other two, the brigade de recherche et d’intervention (BRI) and Recherche, Assistance, Intervention, Dissuasion (RAID) are similar units from the Police Nationale. Since 2009, RAID and the Paris Research and Intervention Brigade (BRI), a separate National Police unit reporting directly into the Paris Police Prefecture (French: Préfecture de police de Paris), have formed a task force called National Police Intervention Force (French: Force d'intervention de la Police nationale) or FIPN. When activated, the task force is headed by the RAID commander.

Renault Sherpa

This is a definite show of force as the Le Monde article points out:

"Show of force

The tone and method are changing. "Systematic intervention instructions have been given to the police", he tweeted on Thursday 29 June. That very morning, as part of the Reinforced Operational Coordination in Conurbations and Territories initiative, an initial decision authorised the gendarmerie's security and intervention platoons to take action in police zones. Then came the decision to deploy elite police and gendarmerie units in the field. According to the minister's entourage, this was a "demonstration of force that was fully assumed and claimed, with a dual operational and psychological objective".

The aim was to regain the initiative by pushing the rioters, far from the usual policing strategy, which theoretically consists of keeping the demonstrators at a distance. RAID and BRI armoured vehicles were deployed as close as possible to the clashes. At the request of the public authorities, three additional vehicles have even been loaned urgently by the manufacturer, Arquus, without the company having had time to repaint their sand-coloured livery, which is more reminiscent of military operations in the Sahel than the urban maze of the housing estates in the Paris region. For its part, the gendarmerie is lining up its brand new 4 × 4 Centaure, behemoths measuring 7.4 metres long and 14.5 tonnes, and instructing its helicopters to take off at 7pm, before nightfall, to fly over sensitive areas and provide information.

I also find that the concepts in Déclaration des droits de l'Homme et du citoyen de 1789, which was the original constitution of the First French Republic and has remained in spirit in later constitutions, to be very interesting in how they relate to the obligations between the citizen and the government.

Article XII – The guarantee of the rights of man and of the citizen necessitates a public force: this force is thus instituted for the advantage of all and not for the particular utility of those in whom it is trusted.

The concept here is the maintenance of order which is also mentioned in the US Constitution (i.e.: insure domestic Tranquillity, provide for the common defence). The US Constitution makes it clear that it has a similar attitude toward insurrection, but the force charged with suppressing insurrections is the Militia (Article I, Section 8, clause 15) which is theoretically closer to the "people" than that of the French system.

There is another post on the difference between US policing and French policing, but I will say that the founders were well aware of the French system. The founders chose to stick with the British system for the most part. But there weren't organised police forces at that time in the British world.

On the other hand, the US Second Amendment has been reinterpreted in such a way that it is removed from its original context. One can arm themselves legally to a level equal to the police: maybe not that of the French Police. Does such an arms race mean that the British system is obsolete and that the police do need to be militarised?

Want to watch people in the US Freak out?

I mentioned in my previous posts on the differences between the French Gendarmerie Nationale and the Police Nationale: the main one is that the Gendarmerie is an internal army--complete with special forces unit, the GIGN.

This headline is pointing out that the Gendarmerie Nationale is deploying its tanks to combat the riots.

Imagine how that would go over in the States!

Although calling Centaure a tank might be a bit of an overstatement. It's more like an armoured car, but it's still far more of a militarised vehicle than a police car. Here's the French Ministry of the Interior's page on it:
https://www.gendarmerie.interieur.gouv.fr/gendinfo/actualites/2021/centaure-le-nouvel-engin-blinde-de-la-gendarmerie

Soframe, the manufacturer's, webpage for it:
https://soframe.com/us/catalogue/arive-armoured-infantry-vehicle/

The proper name for this is "ARIVE" (for ARmoured Infanty VEhicle). It replaces the véhicule blindé à roues de la Gendarmerie (VBRG) which is a little like the Russian BRDM-2 armored car. Here is the ARIVE in action:

While people in the US might bemoan things like this on their streets--it would probably keep the Kyle Rittenhouses out of the action. 

Especially if an LE sniper would target anyone foolish enough to carry a weapon during a riot.

Fear of a "militarised police" is a cultural issue

I used a picture of a costume Gendarme the last time I did this post on this subject. This time I am using actual material from the French Gendarmerie Nationale. Those who do not understand French can turn on autotranslated English subtitles.

The Maréchaussée, a precursor to the Gendarmerie Nationale dates back to the Middle Ages. Some historians tracing it back to the early 12th century around the commencement of the Hundred Years War.. The Current version of the Gendarmerie dates to when Maréchaussée was organised in 1536, or, formally, the Constabulary and Marshalcy of France (connétablie et maréchaussée de France).  Gens d'Armes (men at arms) is a term used in even older sources. That's why I included "Second Amendment History" as a subject here. The Gendarmerie is a force of the nation for the protection and security of the people. It has been a military force since its inception. This is different from the Anglo-American sense of the police, and military, as being subordinate to the citizenry.

 The basics:

The National Gendarmerie is one of two national law enforcement forces of France, along with the National Police. The Gendarmerie is a branch of the French Armed Forces placed under the jurisdiction of the Ministry of the Interior, with additional duties from the Ministry of Armed Forces.

In short, it is an internal army, which is a no-no in Anglo-American, especially American, tradition.

The first video is a short video on the history of the Gendarmerie Nationale:

The next clip requires some explanation since there are two different branches of the Gendarmerie Nationale: the Gendarmerie Départementale and the Gendarmerie Mobile (OK, three if you count the Garde Républicaine).  The next video has more than you ever wanted to know about the organisation of the Gendarmerie Nationale. It does a lot of things.

Now, let's get specific as to the two main groups

The Gendarmerie Départementale is best explained by comparing it to US state police forces. It is in charge of policing small towns and rural areas. The Departmental Gendarmerie carries out the general public order duties in municipalities with a population of up to 20,000 citizens. When that limit is exceeded, the jurisdiction over the municipality is turned over to the National Police. 

The Gendarmerie Mobile is an internal military force organized into the seven regions of the Mobile Gendarmerie (one for each of the seven military regions of metropolitan France, called (Zones de Défense). It comprises 18 Groups (Groupements de Gendarmerie mobile) featuring 109 squadrons for a total of approximately 11,300 personnel.  Its main responsibilities are:

• crowd and riot control
• general security in support of the Departmental Gendarmerie
• military and defense missions
• missions that require large amounts of personnel (Vigipirate counter-terrorism patrols, searches in the countryside...) 

Nearly 20% of the Mobile Gendarmerie squadrons are permanently deployed on a rotational basis in the French overseas territories. Other units deploy occasionally abroad alongside French troops engaged in military operations (OPEX or external operations). 

The Mobile Gendarmerie includes GBGM (Groupement Blindé de la Gendarmerie Nationale), an armored grouping composed of seven squadrons equipped with VXB armoured personnel carriers, better known in the Gendarmerie as VBRG (Véhicule Blindé à Roues de la Gendarmerie, "Gendarmerie armoured wheeled vehicle"). It is based at Versailles-Satory. This unit also specializes in Chemical, biological, radiological and nuclear defense (CBRN) defense.

This system is unlike the US, which has the Posse Comitatus Act  a United States law which limits the powers of the federal government in the use of federal military personnel to enforce domestic policies within the United States, France has a professional military which works internally with no issues to that. To some extent, the British also use their military for civil defence. The Militia in the United States, which is now the National Guard, and has the powers to enforce internal order given to it under Article I, Section 8, Clauses 15 & 16:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

The founders' intent was to have a civilian force, instead of a professional military one, to handle the tasks which are delegated to the Gendarmerie Mobile in France. This is due to a cultural difference where the Anglo-American tendency is to dislike large standing military forces. Or as the Virginia Constitution of 1776 states in its Bill of Rights:

Sec. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defence of a free State; that standing armies, in time of peace, should be avoided, as dangerous to liberty; and that in all cases the military should be under strict subordination to, and governed by, the civil power.

I should add that modern police forces are a new thing in Anglo-American tradition dating back to the early to mid 19th Century. There were night watches and other non-professional forms of law enforcement early on.  Modern policing only began to emerge in the U.S. in the mid-nineteenth century, influenced by the British model of policing established in 1829 based on the principles of Sir Robert Peel.

Sir Robert Peel created what is termed an ethical police force. The approach expressed in these principles is commonly known as policing by consent in the United Kingdom and other countries such as Ireland, Canada, Australia, and New Zealand. 

In this model of policing, police officers are regarded as citizens in uniform. They exercise their powers to police their fellow citizens with the implicit consent of those fellow citizens. "Policing by consent" indicates that the legitimacy of policing in the eyes of the public is based upon a consensus of support that follows from transparency about their powers, their integrity in exercising those powers and their accountability for doing so.

The first organized, publicly-funded professional full-time police services were established in Boston in 1838, New York in 1844, and Philadelphia in 1854.

As I said, the difference in attitude is based upon cultural differences.

The Concept of Gun Rights is based upon fantasy, not reality.

OK, I know you won't bother to fact check and do some real research on this issue,  especially since seeing the words "the right of the people to keep and bear Arms shall not be infringed" get your infantile minds thinking that you can own whatever weapon you want.

Never mind that is a quote taken out of context since the Second Amendment needs to be read as a complete sentence: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed." Which means asking "What don't you understand about 'shall not be infringed'?" Is like a dementia patient repeating the last few words said to them.

The first sign that bad news is on the way comes from DC v Heller: 

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.--District of Columbia v. Heller, 554 U.S. 570 (2008)

But the problem comes from the fact that this insanity comes from an infantile mind which doesn't quite comprehend what the reality of the situation happens to be. “An armed society is a polite society” comes from Robert Heinlein’s “Beyond This Horizon”. If you are unaware, this is a novel where duels may easily occur when someone feels that they have been wronged or insulted that is attributed as a custom that keeps order and politeness.

 Now, let's go back to the   State v. Chandler, 5 La. Ann. 489, 52 Am. Dec. 599 (1850) quote where it says. "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 necessary, and of their country, without any tendency to secret advantages and unmanly assassinations." 

I made a tongue in cheek comment about the gun rights crowd having to push for open carry, but that is what you are going to have to do if you are going to try and take the Second Amendment literally. So, you can have your “Beyond This Horizon” fantasy, but anyone not strapping is wearing their yellow brassard.

And the reality is they are the ones who going to be in the majority: especially after the dueling idiots kill themselves off.

The bad news is that People carrying weapons in public is not a right (Presser v. Illinois, 116 U.S. 252 (1886), Robertson v. Baldwin,165 U.S. 275 (1897) at 282  and DC V Heller, 554 U.S. 570, (2008)). Heller mentions Rawle, which says:

This right ought not, however, in any government, to be abused to the disturbance of the public peace.

An assemblage of persons with arms, for an unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace. If he refused he would be liable to imprisonment.

I wouldn't get my hopes up about New York State Rifle & Pistol Association v. Corlett because the Supreme Court would have to go against its own precedent. It already said in Robertson v. Baldwin, 165 U.S. 275 (1897) that "the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;"

Let's not forget that the practise of carrying concealed weapons has long been discouraged in law and society. 

New York State Rifle & Pistol Association v. Corlett may be the long hoped for bridge too far for the "gun rights" insanity.

Sorry, there are no Tooth Fairy, Easter bunny, Santa Claus, or Gun Rights. Get over it.

Rights come with responsibilities as well.

How gun buybacks would work

I seriously doubt there will ever be gun confiscation in the US short of the red flag laws, where a specific person who is deemed dangerous by a court can have their guns confiscated. https://www.cnn.com/2021/04/21/us/red-flag-laws-explainer-trnd/index.html

First off, any straight off confiscation would be unrealistic for a myriad of reasons. The closest the US would come would be mandatory buybacks, but again, those would be difficult to enact. The mandatory buyback comes from Australia which has a stricter "takings" provision in their constitution than the US does. Takings being where the government can acquire private property for public use. The Fifth Amendment of the United States Constitution mandates that if the government takes private property for public use, the government must provide "just compensation." Typically, a "just compensation" is determined by an appraisal of the property's fair market value.

Now, just imagine how much it will cost to buyback the firearms of anyone willing to turn them in for a fair market value: i.e., bluebook cost.

Sorry, not illegal or unconstitutional since buying back is provided for in the US Constitution, which is something people claim to believe in. Yet they have no idea what it actually says.

The main factor in getting people to turn in their guns for payment would be criminal prosecution and that any amnesty after the buyback period would be a definite turn in your guns for nothing. Well, the something would be that you wouldn't be prosecuted for having it.

Another option to a buyback would be mandatory registration under the NFA. Any luck the registration would be less expensive and not as restrictive (e.g. not requiring someone to sell the gun in the registered state or go through a lot of paperwork to do it).

That means your choices would be: register your firearms, sell them back to the government for a fair price, or run afoul of the gun laws and never have a hope in hell of ever owning one legally.