ARMED-M

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The Armed M is a publication of the 2nd Amendment SIG, a special interest group of American Mensa Ltd. Opinions expressed herein are the opinions of the writers, and not of American Mensa, Ltd., which has no opinions. This newsletter is linked to the Mensa web page WWW.Mensa.org as WWW.2Asig.iqhost.net.  Almost all editions are on the web site.  It takes about two minutes to download each of the sixty editions using dial up.

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July  2003 I have moved and am now in Wilmington North Carolina. My E-Mail address is Smith705@Juno.com. I can always use contributions to the newsletter. If you write something or find something e-mail it to me I'll put it in the newsletter as space and theme allows. Bob Smith -----

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For anyone wanting to know more about what the law requires of the police in regard to protecting citizens, an excellent reference book is available on this topic: Dial 911 and Die, by Attorney Richard W. Stevens, available from Mazel Freedom Press, Inc., P.O. Box 270014, Hartford, WI, 53027. See also http://www.jpfo.org. Dial 911 and Die painstakingly examines the laws of every state regarding the obligation of the police to protect citizens, and the right of citizens to sue should police fail to protect them. James Bovard, nationally syndicated columnist and author of several books, including Lost Rights, Freedom in Chains and Feeling Your Pain, all published by St. Martin's Press, says this about Dial 911 and Die: "Anyone who reads Stevens' book will realize that their right to dial 911 when in imminent peril is often worth less than a plug quarter. There are many fine police officers in this country. However, both the law and the courts have consistently held that police need not respond to citizens in deadly peril. When the government fails to respond, it is scant consolation that a policeman arrives after the crime to chalk off the body." Richard Mack, former Sheriff of Graham County, Arizona, says, "How I wish the information in this book were not true. Nevertheless, this book speaks to the irrefutable truth: police do very little to prevent violent crime. We investigate crime after the fact. I applaud Richard Stevens for his tremendous research and his courage to tell this truth."

 I've been reading Silveira v. Lockyer, the recent 9th Circuit case that held that the Second Amendment does not give citizens an individual right to keep and bear arms -- only a state right to have a militia.

The following illustrates the court's method:

1. The court wishes to show that the militia referred to in the Constitution is only the organized military force, not the people as a whole.

2. So it quotes James Madison from the Federalist Papers as follows:  "Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. . . .  Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, 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, more insurmountable than any which a simple government of any form can admit of."

3. Now you will notice that there is an ellipsis in this quote (. . . .) What could be missing?

4. What the court left out was the following:  "The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men. To these would be opposed 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. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it."

5. Now, why did the court leave this part of the quote out?  It shows that Madison is estimating the population of the 13 original states at between 2.5 and 3 million. (One independent estimate I have shows 2.9 free inhabitants.)  He estimates "a militia amounting to near half a million of citizens."   Is that significant?

6. You bet it is.  Of 2.5-3 million citizens, about a half were female, and therefore not part of the militia.  That leaves 1.25 - 1.5 million males. Families were larger than they are today; there were perhaps two children per adult, which means that around a third of the 1.25-1.5 million males would be boys -- or men too old to bear arms.   That leaves about "half a million" militiamen.  So Madison counted in the militia all able-bodied men.  Which directly disproves the court's claim that "militia" meant only the organized fighting units.

7. The writer of the opinion could not have missed this; the omitted wording is so conspicuous in the original that the omission has to be deliberate, if not by the judge, then by the law clerk or brief writer. Whoever did it needs to be hauled up before an ethics commission.  And the public needs to know what some people are willing to do to destroy our constitutional rights.

-- Rob Nielsen Professor of Law University of Montana School of Law

I recently received an email regarding this new feature. I went to www.google.com typed my number in and out came my family name, address and phone number with a link to MapQuest. If you are someone you know is interested in removing themselves from this feature please forward and follow the instructions provided.

There is a new feature that makes it possible to type a telephone number into Google's search bar, click the search button, and have a MapQuest page returned as a result. Any person wishing to discover the physical location of a phone number, be it a home or business address, could use this feature to locate a physical street address, and receive explicit directions on how to get there from anywhere in the country.

One positive use of this feature could be to determine the location of a party for whom you may only have a telephone number. On a negative note, this feature could also be used by an angry party to find out where you live.

Google has made available an option that will allow anyone to remove their telephone number from the database that is linked to the mapping feature.

You will first need to check if your number is listed in this manner by attempting a search.

1st - Enter your full telephone number separated by dashes (i.e 404-524-5811). If the number appears in the mapping database, an icon resembling a telephone will appear next to the first or second entry on the results page.

2nd - Clicking on this icon will take you to a page containing a description of the service, and a link to request your number be removed from the database.
 

Editor:  I do engineering evaluation of homes prior to sale.  This service is very useful in getting location and exact spelling of names.  When I tried it, it not only gave my name and location but also included a link to a questionnaire I had filled out for a “Right to Life “, group when running for political office.  I think in the not to distant future you will be able to find anything a person has on the web just with their phone number

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The criticism of the president for being in the National Guard bugs me.  I decided to check on some history and came across these letters.

THE SURRENDER AT APPOMATTOX COURT HOUSE
By Horace Porter, Brevet Brigadier General, U.S.A.

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=======================================================================,. The hour of noon had now arrived, and General Grant, after shaking hands with all present who were not to accompany him, mounted his horse, and started with his staff for Washington without having entered the enemy's lines. Lee set out for Richmond, and it was felt by all that peace had at last dawned upon the land. The charges were now withdrawn from the guns, the camp-fires were left to smolder in their ashes, the flags were tenderly furled-those historic banners, battle-stained, bullet-riddled, many of them but remnants of their former selves, with scarcely enough left of them on which to imprint the names of the battles they had seen-and the Army of the Union and the Army of Northern Virginia turned their backs upon each other for the first time in four long, bloody years.

By Joel Miller

When the jurors who last week convicted medical-marijuana cultivator Ed Rosenthal later expressed disgust with their own ruling, I actually yelled at my computer: "Well then why didn't you take Nancy Reagan's advice and just say no?"

The trial was a joke from the start. Because Rosenthal was being tried under federal law, not California's, the judge forbade any discussion of the Golden State's medical marijuana statute or the fact that Rosenthal was growing the pot with the special sanction of the city of Oakland. As a result, the jury was not allowed to consider any such information.

With no possible defense left, Rosenthal's attorney, Robert Eye, made what the Sacramento Bee called "a thinly veiled plea for jury nullification."

"Please do justice," he said. "We don't ask you to check your common sense of justice at the door when you judge this case. I can only hope there are those of you whose sense of justice Š"

Jumping on Eye, the judge interrupted and told the jury, "It's not your determination whether a law is just or unjust. That can't be your task." Going further, according to jurywoman Marney Craig, the judge instructed, "You cannot substitute your sense of justice Š for your duty to follow the law."

The judge is wrong.

"If the jury feels the law is unjust," according to the Fourth Circuit in the 1969 case U.S. v. Moylan, "we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence. Š If the jury feels that the law under which the defendant is accused is unjust Š the jury has the power to acquit Š" (emphasis added).

Some buck at the notion of jury nullification. They see it as going against the rule of law - a dozen anarchists passing judgment on a whim. Endowed with such power and the guilty will walk free because a chili onion supreme didn't sit well in the stomach of the jury foreman.

Perhaps - but the founders didn't see it that way.

"I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution," said Thomas Jefferson in a 1789 letter to Thomas Paine. His comments presuppose laws which go above and beyond the national charter (such as drug prohibition today) and the jury's vital role in seeing that no citizens are harmed by such tyrannical legislation.

John Adams, the second American president, sang from the same hymnal. "It is not only [the juror's] right, but his duty," he said in 1771, "to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court."

Likewise, in an 1804 libel case, Alexander Hamilton argued that "the jury have an undoubted right to give a general verdict, which decides both law and fact."

"This distribution of power, by which the court and jury mutually assist, and mutually check each other," Hamilton continued, "seems to be the safest, and consequently the wisest arrangement, in respect to the trial of crimes. ... To judge accurately of motives and intentions, does not require a master's skill in the science of law. It depends more on a knowledge of the passions, and of the springs of human action, and may be the lot of ordinary experience and sagacity."

In other words, the people are deemed sensible enough to decide when one of their fellows is getting the shaft from an unjust law. This only makes sense. The people are judged sensible enough to elect legislators in the first place. If things go awry after the ballot box, the jury box provides one more place to check and stop the progress of tyranny by nullifying bad laws passed by those legislators.

Far from viewing nullification as a gateway to random enforcement of law and anarchy, the founders viewed it as an essential tool for combating despotism and preserving liberty - one more method of denying absolute power to any single man or governing body.

What is so striking about nullification and the Rosenthal case in particular is how applicable the reasoning of the founders proves to be. The law violated the consciences of the jurors and was unconstitutional, to boot.

"There is no such thing as medical marijuana," DEA spokesman Richard Meyer told the Associated Press. "We're Americans first, Californians second."

In terms of the law, that is unmitigated bull.

The U.S. Constitution gives the federal government no power to prohibit pot. Article 1, Section 8, provides congressional marching orders on many tasks - banning weed is not one of them. Neither is skirting the 10th Amendment, which specifically holds the duties of the government to what the Constitution permits; all else is the business of the states alone.

Such is the case with California's medpot law, Prop. 215, which permits precisely what Rosenthal was doing.

By nullifying, the jury would have been fulfilling Jefferson's perceived role of the jury, holding the government to "the principles of its constitution."

It's too bad the judge lied to the jury before it found Rosenthal guilty. Had they known better, the jurors may have felt free to follow their own conscience and sense of justice and thus spared an innocent man from a travesty.

Find out more about the rights and duties of juries at Fully Informed Jury Association.

     Paul and Linda Walsh filed a lawsuit after police and caseworkers entered their home without a warrant and without permission.  The social workers said they were acting on an anonymous tip about unspecified "hazards" in the home, and claimed they had a right to enter the home without a warrant. 

     The social workers threatened the family, saying that if they were not allowed in the home they would take the children away from the parents.  In papers filed with the court, the Walshes said that a social worker even blocked their driveway with her car when the family tried to leave to attend a church function that evening.

     The social worker summoned police, who frisked Mr. Walsh and threatened to arrest him on charges of obstructing official business if he did not allow the caseworkers into the home.  Walsh said that he then allowed the workers to enter the home rather than risk being jailed.

     The caseworkers found nothing in the home that constituted an immediate hazard to the family.

     Instead of tolerating this official abuse, the Walshes chose to sue the caseworkers, the Erie County Department of Job and Family Services, the Erie County Board of Commissioners, the City of Vermilion, Ohio; and three Vermilion police officers.

     Defendants told the court that the Fourth Amendment prohibitions against illegal searches and seizures do not apply to them in such circumstances.  They asked the court to throw the case out, but the court refused.   The court said the facts supported the Walshes' claims against the defendants for unreasonable searches and seizures, as well as for false imprisonment, assault, battery, and infliction of emotional distress. 

     In a forceful opinion, US District Judge James G. Carr wrote: "Despite the Defendants' exaggerated view of their powers, the Fourth Amendment applies to them, as it does to all other officers and agents of the state whose requests to enter, however benign or well-intentioned, are met by a closed door.  There is...no social worker exception to the strictures of the Fourth Amendment.  ...Any agency that expects to send its employees routinely into private homes has a fundamental obligation to ensure that those employees understand the constitutional limits on their authority."  

     The court stated that because the Walshes refused consent, and because the anonymous complaint did not supply persuasive evidence of an emergency, the caseworkers had no option but to either "leave the [Walshes] alone and in peace" or seek a search warrant. 

     The court further ruled that the police did not have probable cause to detain, frisk, and threaten to arrest Walsh, since he was not breaking any law but merely asserting his "fundamental right to be left alone." 

     Kurt D. Anderson, a partner with the Elyria firm of Fauver, Keyse-Walker & Donovan, represents the Walshes.  Anderson, a graduate of Alliance Defense Fund's second National Litigation Academy, said the training gave him the background to help the Walshes when the opportunity arose. 

     "ADF's training and resources really helped us confront an issue that, unfortunately, had apparently never been addressed in Ohio before," Anderson said.  "As far as we could tell, nobody in Ohio had ever challenged a caseworker's home inspection for failure to get a warrant. As a home schooling parent myself, I really took the Walshes' situation to heart.  I admire them for their courage to stand up for their rights, but it's a crying shame that it would even have to come to that.  It's just a reminder that we have to be vigilant and assertive about protecting our rights.  They can be trampled on even by well-meaning but uninformed government agents." 

     Anderson expects that as a result of the Walsh case, training policies will be revised for social workers not just in Erie County, but across the state of Ohio.  "The caseworkers in the Walsh case admitted they had never been taught anything about the Fourth Amendment or search warrants.   The feedback I'm getting is that agencies across the state have gotten a wake-up call on this issue." 

     Anderson declined to reveal the specific amount of the settlement, which was not stated in the court record.

     For more information about home schooling and the law, please contact the Home School Legal Defense Association, an ally of the Alliance Defense Fund.  HSLDA attorney Scott Somerville can be reached at (540) 338-5600.  The Alliance Defense Fund is a servant organization serving people of faith.    The Alliance Defense Fund provides strategy, training, and funding in the legal battle for religious liberty, sanctity of life, and traditional family values