Second Amendment
Fight for your firearms freedom.

By Chuck Klein
May 1999

JUDICIAL ACCOUNTABILITY AND THE SLIPPERY SLOPE

Unhappy with the Amendment Process,
Congress and the Judiciary Create Laws and
Case Law to Circumvent the Constitution

 

EXCUSES IN HISTORY

        Early in this century, when even the "politically correct" had a sense of right and wrong and fair play, it was believed to be in the best interest of this country to ban the sale and consumption of alcoholic beverages.  Those in power were believers in doing what they wanted to do in the legal and proper way First they discussed passing laws to ban booze.  After a cursory study of the Constitution, it was clear there was no provision in this great body of supreme laws to permit the "majority rule" or any government body to outlaw alcohol, sans a constitutional act.  Thus, the 18th Amendment was born, passed and ratified all in due order.  This formal and official constitutional decree forbid "the manufacture, sale, or transportation of intoxicating liquors..."

The onset of the Great Depression 14 years later brought three revelations:

1.  It was now in the best interest of the country to encourage legitimate liquor salees.  This not only made for a taxable commodity, but in an era of economic downturn, a major fiscal impact came from employing men in transportation, bottle, label, and box manufacturing industries.

2.    Enacting amendments to the Constitution is burdensome, unwieldy and time consuming. In addition, federal politicians found it insulting and repugnant to submit their wise and guiding acts to state legislators for ratification.

3.    The federal government felt it had to find some form of employment for the now out-of-work liquor agents. It was well established that if one worked for the government, one could expect low pay, but a layoff-free job (today it's high pay, no layoff, plus a virtual terminationfree enviromnent).

        Just before the repeal of Prohibition, informal studies and polls were taken by the PC.  The preordained results indicated that the greatest threat to America was the proliferation of machine guns and other dangerous ordnance.   This was evidenced by sensational news stories about mass killings by the mobsters who controlled the illicit and illegal liquor industry.  Never mind that these guys were out of business with the repeal of the 18th Amendment.  The government again faced the same dilemma it had in 1917; there were no provisions in the Constitution that would allow for the banning or controlling of machine guns or any other weapons.  In fact the Constitution's 2nd Amendment expressly forbade infringing the right to keep and bear arms.  The correct and legal way, if "the people" so desired a change, was the repeal of the 2nd Amendment or the enactment of a rider to control or ban whatever guns they wanted.  But, a new amendment takes time and then there's that humbling matter of having to beg the states to ratify it.  Besides, the PC was convinced it needed to find jobs for those soon to be laid-off liquor agents.  The quick fix, the feel good way, the start down the slippery slope way was to just pass a federal law.   Hence the National Firearms act of 1934.

        To carry this to its logical conclusion, suppose they pass a gun prohibition amendment.  What would become of all those "F" agents in BATF?  Would they be laid off? Fired?  Not a chance. if history repeats, as we have learned, a new PC evil will be found, laws passed and, eureka, the "F" agents will have their new assignment.  Now let's see, what could be a new scourge, a cause celebre?  Maybe lone occupants of motor vehicles, or "dirty" books, magazines and movies.  How would you like to have to explain to camouflaged, ankle booted and heavily armed BATF agents (hey, I didn't call them 'Jack-booted thugs") why you are not car-pooling on your way to the grocery store?   Or have to defend your home against Playboyraids?

THINK IT CAN'T HAPPEN?

        "They," the politically correct, our government, anti- (fill-in- the -blank) groups and the news media, are setting us up just like "they" did to the tobacco makers. There is no provision in the Constitution to allow the federal or state governments to force exorbitant taxes or otherwise harass a legitimate business. What "they" did was, using government funding, establish pseudo health organizations such as the Center for Disease Control to declare and, publish tainted findings that cigarettes are not only harmful to the health of Americans, but as such, the health burden to treat these unhealthy citizens costs the government money.  The fact that there is also no constitutional justification to allow, permit or require any state or federal government to treat its citizens (socialization of medicine) totally escapes the mentality of the politically correct-not to mention the judges who had these cases before them.

        Armed with false health reports, "they," using taxpayer money, instigated civil lawsuits to force an out-of-court settlement.  The tobacco companies, as large and rich as they are, soon realized they were no match for the endless funding of the government.  The result was exactly what the government and the lucky (read: greedy) lawyers who handled the cases wanted: money-lots and lots of money.   The certainty that there is no constitutional basis for this rape of a legitimate industry is totally ignored by "they."

        Already, the federally funded Center for Disease Control has come out with position papers saying that guns are a health risk.   Some cities, using the same tobacco-style logic of having the expense of medically treating gunshot victims with public money, have already filed suits against gunmakers.   Only this time, in addition to money, "they" seek an outright ban on guns.  Because we have slid so far down the slippery slope, "they" just might be able to get away with it.

        Incompetent and cowardly lawyers and judges, afraid to go against the political correctness of the day, have failed to overturn the National Firearms Act, The 1968 Gun Control Act and most other unconstitutional laws.   The die has been cast, the precedent established, the ride down the slippery slope begun.  Since 1933 all personal rights, privileges, guarantees or immunities spelled out in the Constitution have been dealt with exclusively by enacting laws regardless of their constitutional legality.  We have slid so far down the slope that the tobacco makers knew, same as the gun manufactures know, there isn't a judge in the country that will declare the government's tactics against politically incorrect, albeit legitimate, industries to be unconstitutional.

WHOSE DEFINITION OF ETHICS?

        This brings us to judges and the judicial branch in general.   Used to be the wearers of white robes were the most feared gangs. Now it's those who wear the black robes.  Appointed for life, federal judges who commit misdeeds are subject to impeachment.  The Bill Clinton impeachment process clearly showed what a long and drawn-out procedure it is.  This is the primary reason there are such a low number of judges that are actually impeached, much less removed from office.

        It is a well-known truth that the American Bar Association is anti-gun.  The ABA does not deny or hide this fact.  The overwhelming majority of lawyers in this country are members of this trade association.   Of its approximately 385,000 members, most judges have belonged at one time or another. Since the ABA is noted for its position against guns, it stands to reason that any such member is presumed to be, at worst, anti-gun.  At best, an ABA member (or in some cases, a former member) is tainted by association.  If membership exposes readers to the association's publications, which are most certainly biased against firearms use or ownership, then a negative bent would not be unreasonable to assume.

        Ethically, any judge who has a conflict of interest with any case before him must excuse himself from the caseeven if the conflict is not brought to his attention by either side.  This happens all the time. In civil cases involving some publicly traded company in which the judge owns stock, he will bow out, usually of his own accord.  In criminal matters where he is known to harbor prejudice against the defendant or the defendant's position, he will yield to another judge.  When was the last time you heard of a judge in a firearm-related case excuse himself-even at the request of the defendant-because he belonged to a known anti-gun association?

Photocopy this article and send it to your U.S. Representative and Senators voicing your support for passage of a Federal Judicial Accountability Law. If such a law were proposed, it should read to the effect:

FEDERAL JUDICIAL

ACCOUNTABILITY LAW

SECTION 1. IN ANY CRIMINAL OR CIVIL JURY TRIAL THE DEFENSE SHALL HAVE THE RIGHT TO ARGUE THE LAW, AS WELL AS THE FACTS, BEFORE THE JURY. NO JUDGE SHALL ISSUE INSTRUCTIONS OR OPINIONS TO THE JURY AFTER THE START OF THE TRIAL.

SECTION 2. NO JUDGE SHALL ISSUE ANY VERDICTS OTHER THAN AFFIRMED, DENIED, GUILTY OR NOT GUILTY; NOR SHALL A JUDGE ISSUE ANY ORDERS, EDICTS, COMMANDS OR DECREES; CONTEMPT OF COURT CITATIONS EXCEPTED.

SECTION 3. WHOSOEVER VIOLATES SECTIONS I OR 2 OF THIS STATUTE SHALL BE FINED NOT LESS THAN TEN THOUSAND DOLLARS ($10,000).

SECTION 4. CHARGES OF VIOLATIONS OF ANY SECTION OF THIS LAW SHALL BE ADJUTICATED BY A JUDICIAL REVIEW BOARD COMPRISED OF TWELVE CITIZENS, RANDOMLY SELECTED FROM VOTER REGISTRATIONS.  EACH JUDICIAL REVIEW BOARD MEMBER SHALL SERVE NOT LESS THAN 12 MONTHS NOR MORE THAN 24 MONTHS.  COMPENSATION SHALL BE AT THE SAME LEVEL AS FEDERAL APPELLANT COURT JUDGES.

SECTION 1.  As covered in preceding articles in Guns & Ammo (Feb. 1998, and Oct. 1998) it is most important for all Americans, especially gun owners, that we reinforce this established concept of Jury Nullification.  Because most judges have, in violation of their sworn duties, ignored this right and power and because there are many unconstitutional laws, this section is needed to enlighten juries of their rights and powers.  Without this well established right and power, we gun owners will continue to be subject to constitutionally ignorant and anti-gun biased judges.

SECTION 2.  judges tend to propagate power, i.e., self-appointed power.  Many "laws" are the result of court cases where a sitting judge ignored a petitioner's request for a yes or no decision and instead delivered his opinion-a bias that carries the weight of law.  These unrequested edicts, commands, orders and decrees are in excess of his constitutional powers.  Most of these 11 case laws," such as school busing, affirmative action or refusals to uphold the 2nd Amendment, are in violation of the Constitution.

SECTION 3.  If Representative Henry Hyde (see sidebar) really means what he says about the third leg of the stool, then he and his fellow Republicans should not have a problem supporting this 11 enforceable oath."  For any law to have meaning it must have a definite and suitable penalty. $ 10,000, even to a judge, is not peanuts.

SECTION 4.  To judge the judges, a review board, completely independent of any of the branches of government, is necessary for open and disinterested decisions.  Since the Constitution was written by laymen, average men and women are certainly competent to read, understand and apply its meanings.

 

RULE OF LAW VERSUS THE
SLIPPERY SLOPE

Henry Hyde, in his eloquent address to the House of Representatives (Dec. 19, 1998), based his entire justification for Impeaching the President of the United States on the rule of law. "The phrase 'rule of law' Is no pious aspiration from a civics textbook," Mr. Hyde chastised his fellow legislators. "The rule of law Is what stands between all of us and the arbitrary exercise of power by the state. The rule of law Is the safeguard of our liberties," he concluded.

What rule of law could he be referring to other than the mother of all made-in-the-USA laws, the Constitution? It Is In this sacred document where we find the rules of all laws. Here Is the foundation guaranteeing freedoms and requiring compliance. The rule of law Mr. Hyde referred to in the Impeachment matter Is the obligation of the House of Representatives to bring articles of Impeachment against a sifting president If there Is probable cause to believe the accused Is guilty of "treason, bribery, or other high crimes and misdemeanors." The Democrats argued that perjurylying under oath--was not Impeachable Inasmuch as It was nut to the level of treason, bribery or other high crimes...

The Democrats want to start down that slippery slope by saying the language of the Constitution Is not what It says It Is. The Democrats have also taken the adamant stand that perjury, unless committed directly against the state per se and not just against one of us commoners, Is not an Impeachable crime. To accept this reasoning will open the door (starting down a slippery slope) to future presidents arguing that even murder, unless committed against the state, Is not an Impeachable offense.

Mr. Hyde also said, "The rule of law is like a three-legged stool. One leg is an honest judge, the second leg Is an ethical bar and the third Is an enforceable oath. All three are indispensable to avoid political collapse."

We all know many ethical members of the bar who have tried in vain to have gun laws that violate state or federal constitutions tossed out. It's the "third leg" that causes the problems. Without the FEDERAL JUDICIAL ACCOUNTABILITY LAW, the third leg is, in reality, powerless Inasmuch as there Is no way to force any judge to obey his oath to uphold the inalienable rights guaranteed by the Constitution. With no workable enforcement of the judicial branch, i.e., legislators without the Integrity to demand compliance, the stool has fallen every time "shall not be Infringed" Is mentioned.

14 GUNS &AMMO/MAY1999