NOTE: This is a bit lengthy but absolutely necessary to correct the enormous misperceptions and misdirection already in place surrounding the action Idaho House Judiciary, Rules and Administration Cmte., raised by holding SB 1067 in committee just prior to sine die and adjournment of the legislature.
To paraphrase what Winston Churchill said about Soviet foreign policy: “It is a riddle, inside of a mystery, wrapped in an enigma.” And in this case it should be added, “…slipped inside of a Trojan Horse.”
The fire-storm swirling around SB1067 at the close of the 2015 session of the Idaho State Legislature is symptomatic of exactly what ails and handicaps governance in the United States today. People wondering why almost nothing works right today only need go back 10, 20 or 30 years or so to see what was done wrong then. To know that, all they have to do is observe what is happening today that will result in much worse in 10,20 and 30 years.
That’s exactly what is happening in this case. To an objective bystander it would almost seem intentional that the issue is nearly completely misunderstood or mis-characterized by the press and media. But no, they’d NEVER do that, would they?
However, most of that is, in fact, more due to the simple inability of the press and media to rationally and objectively investigate the issue instead of engaging in advocacy journalism. Thus, the message the public receives is almost completely turned inside out and upside down from the real issue at hand. That’s exactly what’s happened with SB1067 coming out of the Idaho legislature. The realities surrounding SB-1067 are almost completely unhinged from the press and media and its supporter’s hyperventilating presentation.
The press and media, like the public, seem immediately duped by the “it’s for the children” mantra now so prevalent in virtually all public policy discussions. Yet, very few of them have asked the simplest and most obvious questions of;
“What’s driving the rush, in one legislative session, to put an entirely new and unprecedented international legal regime in place in all 50 states?” or
“Why, seven years after the passage of the “Convention on the International Recovery of Child Support and Other Forms of Family Maintenance” at The Hague in the Netherlands, is it suddenly required to force all 50 States to pass the “model legislation” represented by SB-1067 in ONE legislative session? Force those states and their citizens, with no debate, no modification, no scenario testing, no understanding of the cyber security, privacy and electronic database and information sharing issues surrounding the implementation of such legislation, into passing it. None, nada, zip, zero…..just shut-up and sit the hell down!….
It’s just accepted that, “Oh, do this or Idaho deserves to have its funding cut-off; even those parental support payments, that do not consist of federal money at all! Really? How rational and reasonable is that? What due process is there in that?
The Congress had seven years, since 2007, to incorporate the Convention Treaty into operation with the Uniform Interstate Family Support Act. An Act in operation between the United States since 1992 and twice updated. Why did Congress then wrap that into HR 4980, “The Preventing Sex Trafficking and Strengthening Families Act” in 2014 and send to the states with the command that no debate, no modification of any of the substantive language and no ability to fully examine or question its impact to Idaho or any other state, would be allowed?
Seven years to prep, explain, test and advise the states as to what was coming and why. Seven years for those states to explain the legislators and citizens, the need, the efficacy AND the lawfulness. Again, what is driving this rush after SEVEN years of mucking around by the Federal government and when they failed to do almost none of the above?
Any attempt by a state to do due diligence and delay SB-1067′s (or every other state’s bill) passage into law (in 4 months!), would immediately result in that state losing ALL of its funding for the interstate portion already existing and operating for decades. Also, non-passage and any delay would immediately sever EVERY electronic connection through the federal interstate system, completely disabling that state’s ability to process its interstate enforcement and maintenance orders with every other state.
Why does nobody ask HOW that makes ANY sense whatsoever? Why does nobody ask WHY the federal government would do such a crazy thing?
Compounding that is the lack of understanding that the imposition of SB-1067 is unprecedented in United States Law. The bill is essentially an extortion racket in motion to force the states to incorporate international law, the UN Treaty Convention and an international identification/ database-tracking methodology directly into Idaho statute.
This is also one of the best examples of the Camel’s nose under the tent in modern times for “Commandeering” the states’ legislative process, which the SCOTUS has ruled, time and again, is unconstitutional. Beginning with Prigg v Pennsylavania and most recently in Mack and Printz v US;
The federal process being employed hijacks directly and near completely the Idaho legislative process, fiscal process, judicial and executive processes. Not one word of the “model legislation” language and substance can be altered and it is a “must pass” bill. Otherwise, Idaho immediately loses all its interstate funding FOR NOT incorporating an international legal scheme.
No branch of state government may then question or alter any international court order regarding child support and enforcement against a citizen or resident of Idaho, as long as those orders meet basic procedural protocol qualifications. There can be no questioning in findings of fact.
However, the key analysis to start with should revolve around how the bill can even be considered by the Idaho Legislature under Article I, Sec.10, Article IV, Sec. 1, Sec. 4, clause 1, and Article VI, clause 2 of the US Constitution and Articles IX and Article X of the Bill of Rights.
Then, it should normally proceed to the Idaho constitution and Article I, Sections 2, 3 and 21, Art. III, Sec. 1, 16 (the bill has an illegal title), perhaps 19, and Article V, Section 9 (detailed questions below). Has any one actually fully scrutinized the bill and run test scenarios to see how it works against all those sections? No, of course not. There’s been no time allowed.
Most disturbing is the number of people that would say, “Why is that even relevant?” and not even bat an eyelash! Or,
“It’s for the CHILDREN for Pete’s sake!” and
“We have no time, the Feds are gonna cut-off all our money!”
There are hundreds of open questions concerning the operation of SB1067. However, it seems that most want to sweep even the basic discipline, due diligence and process to avoid problems later, right under the rug because of baseless and dangerous threats from the federal government.
Until all the questions on constitutionality are satisfactorily answered first, the subsequent details of implementing language is obviously irrelevant. The following question only begin the process to answer some of the REAL questions around S1067 instead of the red herrings thrown out there about “Sharia Law,” and other such nonsense to distract the public’s attention.
Therefore, it is suggested the following questions be posed to various officers and elected officials of Idaho or any state when analyzed and tested against their constitution. These questions must be answered before this legislation moves forward into ANY state, not just Idaho. Until they are, the only thing the Governor Otter should do is negotiate with the federal agencies is to keep all payments flowing past June 15. If the feds do cut them off, prior to due process resolution, Idaho should immediately file suit against HHS to resume payments pending the outcome of the remaining due process and constitutional issues:
Questions for the Governor, Attorney General House and Senate leadership and every elected member of the body:
1. Provide the legal analysis that clearly shows HOW SB1067 is NOT in violation or directly conflict with Article I, Sec.10, Article IV, Sec. 1, Sec. 4, clause 1, and Article VI, clause 2 of the US Constitution and Articles IX and Article X of the Bill of Rights?
2. Provide the legal analysis that clearly shows HOW SB-1067 is it NOT a direct violation of Article I Section 2 and 3 of the Idaho Constitution, if “…all political power is inherent in the People,” and that “…they have the right to alter, reform or abolish the same whenever they may deem it necessary…” or that ” no special privileges or immunities SHALL EVER be granted that may not be altered, revoked or repealed by the legislature…?”
3. Article I, Section 3 of the Idaho Constitution requires that Idaho is an “inseparable part of the American Union and the Constitution of the United States is the supreme law of the land.” If so, than Idaho is bound to follow Article 1, Sec. 10 and Article VI of that Constitution and cannot enter into any Treaty Convention. Nor can it do anything not “in Pursuance thereof….” as prescribed by Article VI. If so, how can S1067 even be introduced into the legislative process in Idaho?
4. Under article I, Section 21 of the Idaho Constitution the people of Idaho reserve the right not to have themselves placed under a jurisdiction foreign to their Constitutions without first requiring amendment to those constitutions and the right to due process. How was due process followed in this case and how can theS1067 even be introduced without FIRST amending the Idaho and US constitutions to allow it?
5. Under Article III, Section 1 of the Idaho Constitution, “…the legislative power of the state shall be vested in a senate and house of representatives.” If so, then where did the US Congress gain the authority to ignore Article I, Section 10 of the US constitution or to commandeer the legislative process of the state of Idaho in order to force compliance, without amendment, to an International Treaty Convention? Or, to commandeer the ability or the right of the people to “….approve or reject at the polls any act or measure passed by the legislature?” That one would seem to kill S1067 right there.
6. With a two-and-a-half-page, 123 line Title containing multiple subjects and nowhere expressing the incorporation of the 2007 Treaty Convention and other impacts not expressed in the Title, isn’t that a prima facie direct violation of Article III, Section 16 of the Idaho Constitution?
7. How does SB-1067 not interfere in an unconstitutional manner those requirements of Article III, Section 19, in the following itemized areas if they are now required to accept, without question, all findings of fact of foreign jurisdictions? Or if they are allowed to question nothing but the pro forma protocal of enforcement orders from those same jurisdictions?
“Regulating the practice of the courts of justice”
“Releasing or extinguishing the indebtness, in whole or in part, the indebtedness, liability or obligation of any person….”
“Affecting estates of deceased persons, minors, or other persons under legal disabilities”
“Authorizing the creation, extension or impairing of liens”
“Authorizing the adoption or legitimization of children”
8. If no substantive section of any portion of Idaho Code changed or altered by S1067 cannot be subsequently altered by the Idaho Supreme Court how does that not violate Article V, Section 9 of the Idaho Constitution in the original and appellate jurisdiction of the Court? The same with regard to District courts in Article V, Section 13?
9. Wouldn’t passage of SB1067 effectively amend the Idaho constitution outside of only those processes defined in Article XX, by ignoring all the Articles/Sections in questions 1-8 and incorporating the 2007 Treaty Convention directly into Idaho law? If not, why not?
10. The Statement of Purpose for RS23418 (S1067 as introduced) says:
“On September 18, 2014, Congress passed the “Preventing Sex Trafficking and Strengthening Families Act” which includes the requirement for all states to enact the 2008 Amendments to the Uniform Interstate Family Support Act during the 2015 legislative session. These amendments incorporate provisions of the 2007 Hague Convention on International Recovery of Child Support and Family Maintenance and will improve the enforcement of American child support orders abroad…” (emphasis added)
How is that not directly incorporating the International Treaty Convention into Idaho Law?
11. According to the Convention Treaty of 2007 and the subsequent federal legislation (Uniform Interstate Family Support Act (2008)), ALL 50 states must pass bills identical in statute language to S1067 in order for the actual ratification of the Treaty to be valid. From an HHS memo (**) to all states:
“Before a country can ratify the treaty, the country must provide evidence that its laws and procedures meet the treaty requirements, including parentage establishment, recognition and enforcement of support orders for children up to the age of 21, cost-free services, notice and an opportunity for a hearing or review, and protection of identifying information where there is a risk of harm to the parent or child.”
Therefore, how is Idaho and all other states passing this legislation not directly entering into the Treaty and it’s ratification for implementation on US soil? How is that not directly in violation of Article I, Section 10 of the US Constitution? If ANY ONE state failed to do so ( enact the “model bill”), the United States as a whole would not and could not be considered a Treaty country by the Hague and that individual state would not be allowed to conduct any enforcement orders with any of the Treaty Convention signatories. Any claim to the contrary would seem to be both disingenuous and flat-out illogical obfuscation and misdirection.
12. Since S1067 is not allowed to be amendable or reviewable in any manner by the Idaho people, legislature or courts respectively, except on minimal procedure and protocol but not fact, how is that not a direct violation of the “Anti-commandeering Doctrine” established over a century and a half ago in “Prigg vs Pennsylvania” (1842) by the SCOTUS and most recently held in “Mack and Printz v United States?”
13. Even after introduction, under what rule of the House or Senate were members disallowed from proposing and adding amendments to S1067? Where and when was that adopted in consideration by the Committees of either body?
As stated previously these questions are only for openers. Some may be able to be answered. However, it is likely, most are not. Until the press and media begin asking the right first order questions of the elected officials and supporters of SB1067, none of the 2nd order questions concerning what SB1067 will or will not do or what funding it may gain or lose Idaho are, effectively, irrelevant. To begin to gain a sense of what that analysis looks like, please refer to this site. It may also be time once again to reopen discussion on passage of The Bricker Amendment if the US Senate remains unable to control its worst tendencies.
It will also be quite obvious if the media and press, officials and supporters stick to their current narrative, that they don’t want to ask or know the answers to any of these questions. The real agenda involved then becomes very clear. If asking these same questions leads the federal government to shut down the existing state funding and systems, interstate payments and enforcement and maintenance orders on July 1st, then the real agenda there also becomes very clear.
Note: This article is the third in a three-part series that discuss the issue of rights, the intended formation and organization of our government and how that relates to the issue of state nullification and interposition, among others, in the future. This 3rd part should clearly demonstrate why the only government organization that will work for the long term (the only one designed into the Constitution) and without killing hundreds of thousands, if not millions, of our citizens through government-initiated violence, is distributed not centralized operation. Readers may first wish to review Part 1 and Part 2, prior to continuing with this Column.
When one has a common (objective) view of rights and liberties, it immediately creates an understanding of the fallacies and Constitutional usurpation two centuries of bad legislation and jurisprudence have wrought upon our governance at all levels. The lack of understanding of the iron-clad nature of individual rights, when given both a systemic and systematic review, is immediately shown as the proximate cause of why this Republic is inexorably failing in the modern era.
It is likely that far less than 1% if the population would pass even the most rudimentary civic literacy test with regard to individual rights and liberties and the free-market economics that extend from them. Even fewer understand the difference between rights and ‘delegated powers’ and how that difference directs the formation and organization of our government, as explained in Part 1 and 2 of this series.
A key part of any test would be understanding how an individual’s fundamental rights and liberties are extensively translated into powers granted under rule of law, governance, the implementing structure and limitations of our Republic. Add to that, a lack of how the essentials of free-market, voluntary exchange work in conjunction with individual rights and liberties, and it’s no wonder the 21st century is so messed up in the United States of America.
Recently, I was directed to an Idaho Law Review paper on state nullification written by a J.D. candidate, Ryan S. Hunter. The 67-page tome is extensively footnoted. It was primarily written to discredit the recent use of executive authority alone by Idaho’s Governor, to “nullify” ObamaCare.
However, in the course of making that argument against a “peculiar” use of state nullification, the Law Review paper then developed as a general attack upon the very concept and practice as not a legitimate due process tool of the state legislature and executive working together.
While hugely overblown, with frequent resort to bombast and hyperbolic assertion, Mr. Hunter’s basic point is that nullification via a Governor’s order is, at best, completely out of the realm of possibility. It is true, that without the full backing of that state’s legislative authority the Governor simply can’t assert a claim to nullify a federal law under his own authority. On that point, we agree. However, it is in the further general assertion; that a state’s legitimate nullification of federal overreach is “intellectually and morally bankrupt,” where Hunter’s legal theory so obviously flies off-the-rails.
That assertion is a direct insult to the Founder’s construction in organizing a Republic and the initial delegation of power the People to the states. It also stands in contradiction to the fact that all rights, whether temporarily granted as powers or reserved rights, still remain firmly within the grasp of the people who delegated them in the first place. That is especially so when it is accepted as axiomatic that the most important government is the one closest to the people.
If one understands rights in the “self-evident” context, given in the first two installments of this series, then it becomes easy to see how Mr. Hunter and so many others go so far awry. They don’t believe (or, perhaps, don’t objectively understand) that what makes our system work so well over the long term is the inherent nature of individual right. The functional reality is that each of us own all aspects of ourselves, regardless of how badly our government minders wish to change that perceptually. No other human or government (as an artificial creation of people), and in the absence of alienable voluntary exchange, owns a living person.
From that starting point, nor do they appear to understand or believe that delegations of power from those rights are merely contracted temporary leases or loans, by their very nature. Instead, they appear to view them as a complete and permanent “surrender” of rights, exactly the opposite of what it truly is.
It is surprising (shocking, actually) how few “constitutional scholars,” lawyers and other so-called “students” of the Declaration and Constitution fail (or perhaps, purposefully, to acknowledge) to understand the following words in the Declaration:
“That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness…..But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.” (emphasis added)
Most in those same groups seem to fail (perhaps, intentionally) to understand those words above trace directly through the Articles of Confederation to the construction of the organic Constitution, its amending process and adopted amendments and, particularly, the 9th and 10th amendments of the Bill of Rights. Today it’s a given that most of the general population have no idea, which is obvious from polling and “on the street”interviews that populate thousands of Youtube one could watch.
Or that, without a specific, subsequent legal construct for the “reserved” rights and powers, those who try to enforce centralized control pretend those reserve rights and powers do not exist. Those groups simply ignore wise words that, all-too-infrequently, are even written into jurisprudence such as the following:
“The equality of the rights of citizens is a principle of republicanism. Every republican government is duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the (union of) United States is to see that the States do not deny the right this amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty.” United States v. Cruikshank, 92 US 542, 555 (1876) (emphasis added)
However, both in the construction and the attempts at misconstruction or outright usurpation through legislative or judicial fiat, it remains crystalline transparent that therein lies the origin and the power of both Jury and State nullification. It remains, regardless of any of the attempts to obscure or ignore, the original intent since inception to ultimately protect the Republic. Or, in the attempts by lawyers, legal scholars and generations of jurisprudence to ignore them.
Even very recently, in contrast to the almost typically dysfunctional nature of the courts, the federal district court in Ohio issued a ruling in “Citizens in Charge, Inc v Husted” that traced to that simple principle. The judge in the district court stated the Secretary of State in Ohio is personally, legally liable for not protecting reasonably understandable, constitutionally-protected rights of the citizens!
Having only a minimum legal framework, because of both being frightened by the existence of such a thing as “reserved rights” and never wishing to acknowledge their existence along with the inherent rights and powers of the people and the states, they simply deem such rights and powers; “extra-constitutional.” On the contrary, it is the fact that protection of reserved rights and powers are also so inherent in the construction of the document, that they do not wish to acknowledge their existence.
The outcome of the Civil War and it’s subsequent amending misconstructions, judicial fiat and punitive “Reconstruction” cannot erase the immutable and self-evident truth on the nature of rights, liberties and the principles originally enunciated to create such government. Those rights, liberties and principles pre-date the The right and power to establish such government automatically inscribes the right and power to abolish it.
However, when one delves further into the writings and thoughts of those responsible for the misconstruction and usurpation, the agenda becomes more clear. Regardless of whether they reside on the ideological Right or Left the purpose of those agendas is the top-down centralization and nationalization of governance. In that agenda the individual, the people and their respective states continually “lose” rights by unknowingly surrendering or giving them away to both agendas in a continuous, incremental erosion. That is the single most significant reason why America looks and operates as it does today.
That agenda or hapless misconstruction takes on many forms. In Mr. Hunter’s review, he takes issue with Jefferson’s “Compact theory” of the states. The premise is that one state or multiple states cannot declare laws or acts of any branch of the federal government, passed by Congress or upheld by federal courts, to be null and void even if they are patently un-Constitutional. That view is typically reliant upon two ideas, to wit:
1) The idea that Article VI, USC trumps any state or individual act because the Constitution is the “Supreme law of the land.” That view, of course, ignores the plain language of Article VI:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…” The key phrase in that clause is, of course, “…in Pursuance thereof;…”
Any law made by Congress or decided by the courts which is not made in Pursuance of the Constitution is, in fact, no law at all. However, ignoring that phrase, the opponents view of Article VI renders the Constitution into a nice set of guidelines that are in no way enforceable restrictions upon the federal government.
2) The 2nd idea Mr. Hunter and others with that agenda point to is the wording in the Preamble that “We the People” produced the Constitution “…..in order to form a more perfect Union,…” and that it is not a creation of the states.
Further, the idea that the states can only be represented collectively is directly refuted by the fact that each state admission convention decided voluntarily for whether or not to enter into the union compact. The “people” of the other states do not determine what laws may be enacted or not in my state. Only the people and legislature of each state can do that for themselves. The only other power to do that is via the courts when tested against the specific enumeration of powers in the US Constitution.
It is also a fact that the federal government is a ‘continuous’ creation of the states, not the other way around, as the current “nationalist/progressive” movement wishes to implement. Can the federal government abolish any or all of the states? No it can’t. Can the states alter or abolish the existing federal government? Yes, they can. That should end the discussion right there. Only the terminally confused will try to conflate the Union with the federal government. They are two separate things.
The further creation of states, after the advent of the Constitution, in no way diminishes their co-equal status as “free and independent” with the other States of the Union. They remain superior to a subservient federal government created under the Compact of the Constitution.
There’s three central themes that flow throughout the Law Review paper. All three abrogate its general premise of the illegitimacy of Nullification and Strong Interposition:
1) “The majoritarian view always wins,” rather than the rule of law in protection against legislative “legalism.” This is a patently and obvious un-American view of the Declaration, the Constitution and the rule of law.
2) Previous failed attempts at nullification or interposition preclude any and all future use of those mechanisms. On the contrary, the old Latin phrase also proves true here; “abusus non tollit usum” or “abuse (or misuse) does not preclude proper use.” Nor is it true that because one generation, even the founder’s, failed to get it right precludes future generations from implementing inherent and “reserved rights,” whether or not expressly outlined in the Constitution at any time.
They’re neither ‘rights’ nor ‘reserved’ if any one generation can surrender them to government in such manner as to not be reclaimed by any subsequent generation of the People. If rights and powers, identified or reserved, were permanently surrendered, then how could “….all men are created equal…” be true or that all states are admitted on a “co-equal footing?” Such principles are not accidents.
3) The conflation of the use of enumerated and legitimate powers of the federal government, with un-enumerated and illegitimate usurped powers, as being of equal status. Also, the companion conflation of all attempts at nullification as always being synonymous with “secession.”
The last items in 3) are classic misdirection. Each of the early attempted uses of nullification regarded clearly constitutional powers of the federal government over Indian affairs and treaties or federal tariffs. The use against the Fugitive Slave Act of 1793 was also a legitimate use. It was circumvented by the Supreme Court’s clever circumlocution that tacitly adopted the rubric of “un-cooperative” federalism in order to stop a larger legitimate state nullification movement. And even Wisconsin’s successful Nullification of the newer Fugitive Slave Act of 1850 was dismissed with “…the firing on Fort Sumter made the decision and the whole issue a moot point.” (See theme 2 above.)
In Coyle v Smith (1911) the Supreme Court held that preventing the state of Oklahoma the power to locate its own seat of government deprived it of powers which all other states of the Union enjoyed, and thus violated the traditional constitutional principle that all new states be admitted “on an equal footing with the original states”. As a result, the provision of the enabling act which temporarily restricted Oklahoma’s right to determine where its seat of government would be was unconstitutional. As stated by Mr. Justice Lurton:
“Has Oklahoma been admitted upon an equal footing with the original states? If she has, she, by virtue of her jurisdictional sovereignty as such a state, may determine for her own people the proper location of the local seat of government. She is not equal in power to them if she cannot.”
“To this we may add that the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized. When that equality disappears, we may remain a free people, but the Union will not be the Union of the Constitution. “
Justices Lurton and Chase were not implying anything. They were stating directly that; just as the original 13 states weren’t subservient to the Crown or the British Empire anymore, later states were not to be subjects of the earlier states OR the Federal government. A very simple principle, indeed!
Warning: In this column there will be simple, direct and indisputable positions taken on the issue of 2nd Amendment gun rights and the individual right “to keep and bear arms.” Those not equipped to read or see the truth are advised to read no further or risk the potential for knowing and thus, acting on, the truth.
There will be no attempt to bury the headline either. The debate on the law-abiding citizen’s right to freely and unrestricted keeping and bearing of firearms for purposes of individual self defense is done. That is not to say that the opponents of self-defense and protection of the 2nd amendment will not try to continue the argument.
Just know that they do so only based on illogical, irrational, emotional and unreasonable argument, not on debate. That debate is done. Similar to how Einstein finished the debate on gravity that Newton started the latest release of data from the UN, combined with available U.S. census data, finishes the debate on gun control.
Continuation of the irrational and emotional quest for further gun control (or retaining existing restrictive laws) may feel satisfying to opponents of individual rights and the politicians that support them. However, make no mistake: It is unquestionably killing more people to place further gun control restrictions into law. It also allows more people to die every day the current restrictions stay on the books.
Yes, when another irrational anti-gun or anti-2A, gun-controlling protestor (or even a somewhat calm but dissembling politician) confronts you with their next emotional argument about the need for more gun control, look them straight in the eye and say: “Since it is a well known FACT that virtually any type of gun control kills more people, your position supports allowing more people to be murdered and maimed!”
When their face begins to contort, into spasms of confusion and rage, hand them a printed copy of this article or just the key sections (with references and links) for them to read and digest. All the following data was taken from the UN Office on Drugs and Crime (UNODC) and the US Census.
Let’s start with the best statistic in the bunch. In the United States the gun availability rate puts us right at the top of the heap at #1 in the world, “with a bullet”. Today, for every 100 people in the population of 317 million there are 91 firearms! No other country even comes close by half. And that’s almost twice the rate of gun availability in the U.S. population of 48 per 100 at the beginning of the 20th century! Remember this statistic for later referral below.
So if one were to ask the average person where does the U.S. place in the ranking of most violent nations, what answer is most often given? “Close to the top,” or “In the top ten,” were the answers most often given in my own poll of both gun advocates and opponents at random. That small, anecdotal poll seems fairly consistent with national polls taken over decades. Strange how media propaganda works on even those that should know better.
In FACT, while having the world’s highest gun availability in the population the United States has an intentional homicide rate of 4.7 deaths per 100,000 of population per year. That number ranks our country right about in the middle, at 111, of all 218 countries in the survey! Of the 47 nations of the Americas, only tiny Aruba and Martinique, Cuba, Chile and Canada have lower intentional homicide rates in their population. Of the more violent countries, globally, almost all of them have very strict gun control and very low gun availability rates in their populations. Violent homicide is not about the availability of guns!
In fact, when one reviews the gun laws of many of the most violent nations of the world, one quickly finds that the majority have VERY STRICT gun control laws. Low rates of violent crime are most likely associated with countries that promote firearms and self-defense in the law-abiding population and a culture of teaching and training in firearm use (i.e., Switzerland, Israel, U.S., etc.).
The same trend is quite evident when one looks at violent homicide statistics in the U.S. The most violent metropolitan regions in the country are those with the strictest state and local gun control laws. Perhaps not coincidentally, the majority of those areas are also the bluest of the blue states/regions. If those metro-regions, amounting to less than 10% of the population of the country, were removed from our own statistics, the United States would drop like a stone to near the bottom of the list of 218 in the levels of homicides. We would instantly become one of the least violent nations of the world!
The key take-away from all the statistics is that, while THERE ARE homicides committed with firearms in virtually every country of the world, the type and availability of those firearms produces no correlation in the base homicide rate. And it is clear that the societies that restrict, penalize and criminalize individual gun ownership have the highest rates of intentional homicide. Take away guns from the law-abiding and the intentional homicide rates GO UP. And as John Lott clearly documented in his book “More Guns, Less Crime,” the removal of concealed carry restrictions reduces crime further.
Do types of firearms have anything to do with the incidence of violent homicides? Again the answer is an emphatic, “NO!” For just one example in the FBI crime statistics for years and years have shown that people, using hammers and clubs, kill more people each year than those with ANY and ALL types of rifle. No correlation in lowered homicide rates was shown during any of the legal attempts at bans on so-called “assault weapons.” So again, availability and types of rifle have nothing to do with violent homicide rates.
Consider the following numbers as well:
1920 census: violent homicides per 100K population; 6.8. 1920 gun ownership rate 48 per 100 people.
2010 census: violent homicides per 100K population; 4.7. 2010 gun ownership rate 90 per 100 people, highest in the world.
So almost a century later the rate of violent homicide in the population is 31% lower while the availability of guns has nearly doubled! The highest levels of violent homicides, in the U. S. of the last century, have occurred coincidentally with the peak years of alcohol and drug prohibition and economic downturns. Government, economics and gun control cause more deaths than the availability of guns.
Is it also simply coincidence that the counties in the U.S. that have the highest gun-ownership-per-household rates are also the lowest violent crime and homicide counties in the U.S? To summarize and further elucidate on the ridiculous claims and arguments of the ignorant and agenda-driven gun control position, it is highly recommended that the reader watch Bill Whittle’s recent and thoughtfully-produced “Firewall” video, “Number One With A Bullet.”
The facts surrounding the protections offered by the right to keep and bear arms are clear and indisputable. Understanding the truth about firearms, and confirming what most dedicated 2nd Amendment supporters or those with common sense have known for centuries, it’s time to stop the craziness of any more gun restrictions. Allowing any more restrictions or trying to stop the repeal of existing restrictions should itself be reasonably considered a criminal act.
Robert Heinlein probably succinctly summarized this entire debate when he said: “An armed society is a polite society. Manners are good when one may have to back up his acts with his life.”
The tenor and tone of some of the debates going on within the so-called “conservative,” freedom and liberty elements seems to have gone more than a little out-of-whack surrounding the Article V “Convention of the States” debate. As the Article V Resolutions and application movement gains momentum in state legislatures, opponents have become more shrill and demeaning in their attacks on supporters. It’s seems almost completely routine for opponents to engage each attack through the use of factors one could categorize under the label of Fear, Uncertainty and Doubt (FUD). They also employ the tactics of guilt-by-association and ad-hominem attacks.
It is neither attractive nor pleasant to watch the divisiveness and damage being done in the overall movement by resorting to such tactics more typically practiced by our major ideological opponents against the Constitutional/conservative/freedom and liberty movement. Using “FUD factors” was a technique I first observed in the tech industry more than 30 years ago, employed by IBM against its rising competitors in the desktop and networking arena. The technique is simple and can be effective, for a period of time.
IBM would tell all its existing and potential customers that using a competitor’s products was dangerous to their jobs. The IBM marketeers would first sow multiple fears and uncertainty that the competitors products could work in the customer’s environment. If that failed, they would spread doubts that the competitor would be there for their customers if and/or when the products failed. They assured their customers that no executive or manager would ever be fired for using IBM’s products, even if they failed, as IBM would always be there to take the heat from management for them and make it right.
I watched over and over as IBM employed these tactics to great success, even while they failed to fix many of their own products that failed dramatically. Many corporations suffered tremendously, organizationally and profit-wise, in the process. In many cases it set back the desktop computing industry for years, as IBM desperately sought to maintain its hold on the mainframe computing industry.
Eventually, it became obviously evident that using IBM’s mainframe technology was a failing strategy. Then, the desktop industry competitors began making huge inroads into IBM’s business. IBM nearly went bankrupt. However, the success of employing the FUD tactic did a lot of harm for several years, and slowed the IT industry from quickly and effectively migrating away from mainframe computing technology to the vastly superior desktops and distributed architecture of the Internet.
In the Article V/Convention of the States (CoS) debate the same tactic of FUD is employed. There are many examples starting with the constant use of the term “Con-con” when opponents talk about the Article V/CoS. Con-con is a clever term. On the surface, it is meant to be a contraction of the term “constitutional convention.”
However, “Con-con” is employed as a subtle pejorative and a misdirection at the same time. It is subtly implied that the CoS is a “con” (or confidence game) to set the stage to toss out the entire existing constitution and replace it with some undefined Marxist screed. Even though, reading the state Resolutions now being introduced and passed by state legislatures strictly limits the first Article V convention to ONE issue; a balanced budget amendment. The Resolutions direct that any other outcome automatically nullifies the Convention. The rules for the convention being developed by the organizing committee also will disqualify delegation who try to propose other amendments or alter the agenda set.
As the language of Article V directly states a CoS is a convention to “propose amendments,” not a “constitutional convention.” The Con-con term is used to imply that the CoS would be used to rewrite the existing Constitution rather than simply add new amendments or repeal/correct existing bad amendments such as the 16th, 17th or 22nd.
Given the multitude of issues that Congress and the rest of the federal government fails to deal with or exceed its authority, it is evident that the CoS Article V conventions will likely have to become a standing process of the states in order to countermand the failures of Congress to address multiple issues and abuse. Congress meets nearly continuously. I would propose on ongoing Commission formed and funded by the States to enable a process that would likely last more than a decade and be reconvened every couple decades to review and advise the states what’s working and what’s not working.
Many states have successful citizen’s initiative process that compliments and counterpoints the state legislative process. The ongoing CoS Commission would act in a very similar way to manage and counterpoint the federal Congress. It is an inherent and near-completely unused due process feature of the Constitution. “A Timely Gift From the Founders,” as author/researcher Robert Berry titles it in his book on the subject.
The CoS may also be used to clarify and limit the extensive abuses by all three branches of the federal government of vague terms within the existing Constitution. Vague terms and clauses such as “…promote the general Welfare…,” or “….provide for the common defense and general Welfare of the united States… and “…regulate commerce with foreign Nations, and among the several States….” are ripe for clarifying amendments to limit the extensive past and present exploitative abuse.
Opponents have tried guilt by association through directly implying that somehow secret conspiracies and shadowy figures such as George Soros are secretly funding and directing the development of the CoS efforts behind the scenes. It is posed as yet another element of the Grand Unifying Conspiracy Theory. However, they fail to identify that the liberal and Progressive elements, running their own very small parallel effort for a CoS, are both very small and have not gained any traction in the larger CoS effort being run by solid constitutionalists through the state legislatures.
They also fail to acknowledge the solid and growing numerical advantage held by Constitutional conservatives in the red state legislatures and governorships over the blue state minority that would be decisive in any CoS held. The FUD tactic used there is to imply that the blue state delegations in any CoS are so smart and devious that they would somehow take complete control of the convention. That would either turn the Convention into a Con-con or somehow be able to slide through only amendments that would destroy the US Republic and Constitution.
And, in the end, the opponents always fail to acknowledge that any and all potential amendments finally selected and passed by the CoS would then have to be ratified by either three-fourths of the state legislatures or the States in a separate ratifying convention. Again, nearly 3/4 of those state legislatures and delegations already being red state not blue state-controlled. To that argument then, the opponents raise the FUD factor of the grand conspiracy somehow controlling behind-the-scenes those red states legislatures or delegations to only ratify amendments detrimental to the federal constitution and the Republic.
One of the principal arguments of the CoS opponents is that there is no reason to amend the Constitution as it is “perfect” and only needs to be enforced as written. That argument is both simple-minded and belied by the facts and history of abuse. All one need do is simply answer how the document can be “perfect” when it contains the 16th, 17th and 22nd amendment and the extensive distortions created by the vague “general Welfare” and “interstate Commerce” clause abuse? Or, if doing a thorough analysis, realizing that in many, if not most, cases the current abuses we suffer under were often reached by sincere and honorable people who just happened to make grievous errors or were trapped by the politics of the day? All of which does not restrict any subsequent generation from correcting, once recognized, even if Congress fails to do so. That is the genius part that was designed into the document and process.
Recently, I came across an attempt to bolster that argument (“it’s perfect, don’t touch it”) through resort to a superficial comparison to the Ten Commandments. The idea was that one couldn’t credibly propose changes to the Constitution any more than they could to the Ten Commandments, so why do it to the Constitution? On the surface it seems to be momentarily reasonable. That is, of course, until one scratches below the surface and recognizes the problems associated with the items noted in the previous paragraph. The attempted analogy to the Ten Commandments then immediately fails the “smell” test.
Comparing the Constitution, written by flawed and fallible men (and later women), to the Ten Commandments would seem ludicrous on its face after a moment’s thought. Real people must continually strive for a “more perfect union” because we’ve never had one and it’s likely invention still lies well into the future. The amendment process itself, being contained within the body of the document, is a reflection and direct proof of that. The Constitution has never been perfect nor would ANY of the Founders who produced it even imply that it was. The attempt to deny the use of a patently constitutional process, for remedy to the States and specifically put there to redress one or multiple failures or abuses, or to correct error by the branches of the federal government, seems to be, at best, misguided.
Being forever fearful of using all the tools contracted for the People in the Constitution has played a large part in reaching the current dreadful state of our Republic. Just look to history. Remaining fearful and uncertain means a continual, grinding-down of the Republic to its final incremental demise. That is a certain path to violent revolution where no redress can be taken. At this point, no one can credibly argue that what the states have been doing is working to either slow or reverse the ongoing construction of the centralized, nationalist federal government or the demise towards violent revolution.
The time to be bold, go big and go early has long passed. The only question that remains is how long before all necessary steps are taken to avoid or alter the current path? How long will we succumb to the FUD factors and the blissful convenience of ignorance instead of trying every constitutional due process method available? They range from Article V/CoS, 9th and 10th amendment, Jury/State Nullification-Interposition and Jurisdictional control, to Constitutional County Sheriffs, State banking and so forth.
How long do we ignore or abdicate OUR authority and ALL the due process methods available now? The following generations will certainly know the answer in the outcome.
There’s not a week gone by in the last 15-20 years where I haven’t thought about the movie and book, “One Flew Over the Cuckoo’s Nest.” The story by that “merry prankster” Ken Kesey was a brilliant and devastating critique, on many levels. It certainly has remained, at least for this writer, one of the most defining allegories of American society of the last 50 years (the movie was not produced until 1975). With each passing year we come closer to matching the allegory Kesey wrote into his novel 50 years ago.
The majority of the American population is represented by the regular inmates of a mental institution that the main character, “McMurphy,” encounters after being incarcerated there for a string of petty crimes. He’s starts out sane but decides to have himself declared insane thinking that will allow him to serve out his sentence in relative ease. McMurphy is the anti-authoritarian rebel of the drama.
However, that’s where he encounters the “steely, unyielding” Nurse Ratched and the system she runs. Brilliantly played by Louise Fletcher in the movie, Nurse Ratched represents the government in this little set-piece. Her control of the system, arbitrary rules and the meting out of reward and punishment to the inmates is highly indicative of the behavior of modern government in all its incarnations.
The last main character in the drama is “Chief” Bromden, a supposedly deaf-mute Native American, institutionalized for unspecified reasons. He never says much in the movie, however, in the book one finds he is the narrator. Chief Bromden represents, to this writer at least, all of the informed (at least to some degree) but non-participating citizens now sitting on the fence. Each is hoping for release, idling in place or waiting for who-knows-what in order to take action.
Most Americans seem to no longer recognize they have grown accustomed to living in one of the largest mass mental institutions in the world. It is the asylum that America has become. They get by as spectators while the institution degrades and controls them.
Since leaving the military-intel and defense system contracting business, I’ve oscillated between the characters of McMurphy and Bromden. Most of the time I’ve chosen to be McMurphy and it is a painful process to be sure. For a long time I thought the other inmates would rally with me. I have repeatedly been reminded of the truism in the “1-4-95 rule,” my older business partner taught me years ago: Out of every 100 people, one person acts, four people watch the one and 95 people say, “What happened?”
I oscillate over to the Bromden character when I need a rest. My hope is to avoid the ultimate fate of McMurphy in being lobotomized (or just eliminated) by the system. Or, maybe I already have been. Some days it’s hard to tell, watching C-SPAN, the general media and many friends, family and the general population. I do know real change will only come when the evil Nurse Ratched and all her cronies are the ones locked-up and the inmates are free again.
If you happen to be someone to whom many, if not most, of the articles on this ongoing blog resonate with, then perhaps you’re one of the sane, too. Perhaps you also hate living in “The Matrix” or the coming dystopian “Hunger Games“-like future.
One way or the other, I do know, I don’t want to live under Ratched’s tyranny anymore. Do you? If not, please do not be discouraged. In the end, after McMurphy was lobotomized by the system, Chief Bromden finally found it within himself to break out of the asylum and find a better future. Always remember that some of us and our kids and grandkids will get to a better future devoid of Nurse Ratched. We will finally destroy her malevolence in the end.