ANALYSIS OF CASES RELEVANT TO 2AM ISSUES
Fri, 10 May 2002
The cases selected below for discussion are relevant to the issues and
topics discussed herein. It is submitted that these cases, from California,
sister states and Federal courts, are representative of how various judges
have construed [interpreted and applied] relevant law.
Judges reveal [some of] themselves through their written case decisions;
therefore, it is strongly suggested that when you read these cases, you ask
yourself these questions:
- Did the judges who wrote these decisions manifest professional
- Did they do adequate legal research?;
- Did they follow the law and construe [interpret and apply] it to the best
of their ability?;
- Did they write professional and intellectually principled decisions that
fall within the parameters of reasonableness and existing precedents?;
- Did they really believe that they acted professionally and judicially?;
- Were they really justifiably proud of these decisions?;
- Did they manifest shoddy scholarship and/or poor logic and/or
disconnected, fragmented, logic?;
- Did these judges manifest intellectual integrity?;
- Were any of these judges ideologically motivated polemicists?;
- Were any of these judges intellectually challenged?;
- Did a notion just pop into the brains of any of these judges and did any
of them plunge ahead, looking for data and a rationale to support their
notion, and blindly or deliberately ignore anything that contradicted their
- Are all of these decisions persuasive, meritorious and consistent with
the law's text?;
- Are any of these decisions result-oriented trash?;
- Are any of these decisions a form of legal quicksand or legal fool's
- Are any of these judges a miscreant or a purveyor of BS?;
- Have any of these judges superimposed their own legal BS upon the prior
layers of other judicial purveyors of legal BS?;
- Did any of these judges manifest the slightest imperative to police the
manifestations of substandard judges, if any such judges exist?;
- If judges do not police themselves, who does?;
- Were these judges consistent?;
- If these judges were inconsistent, what does that say about "the Rule of
- If the U.S. Constitution really is "the supreme law of the land," how can
it be that one's rights, per these judges, can vary so much depending on
where one lives in this nation? Or depending on what different judges rule?;
- How persuasive is the reasoning-to-result that these judges manifested?;
- Who had the better arguments in these decisions: the majority opinions or
the dissenting opinions?;
- Did these judges reach the right decisions for the right reason(s)?;
- How well did these judges protect individual rights and liberty?;
- Did any of these judges go afield? If so, how far afield? Why did they go
afield? If any of these judges "jumped the tracks," what accounts for that
fact, if it is a fact?;
- Is there evidence that any of these judges have perverted language to
reach a dubious or non-meritorious decision?;
- Is there evidence that any of these judges succumbed to outside
influences, such as public pressure or pressure from a high level official,
when they wrote their decision?;
- What was going on in the world, in the United States, at the time of
their decision which might have influenced their decision?;
- Is there evidence that any of these judges have manifested fragmented,
disjointed, disconnected, illogical thinking?;
- Are you convinced that these judges have done their best to uphold,
support and defend the U.S. Constitution?;
- Have these judges helped to erect a police state in the United Staates?;
- To what extent have some of these judges made some Americans angry and
afraid of their government?;
- To what extent have some of these judges given Americans good cause to
not have faith in the integrity and/or the ability and/or the loyalty of
members of the judiciary?;
- Did any of these judges manifest treason?;
- Given current trends, what are the odds that at some point the judiciary
will render one or more decisions that in effect tells armed citizens, "Use
them [firearms]or lose them!"?;
- If and when that day comes, how many divisions does the judiciary have at
its command to enforce a decision that millions of armed American citizens
will not accept?;
- How would the Founders, the Framers and the Ratifiers feel about these
- Is there evidence that we are now living under a form of government
dominated by Judicial Despots? That we have replaced King George, III with a
New King: Judicial Despots?;
If we are living under the control of Judicial Despots who do not enforce
the peoples' rights, how long should the people tolerate this situation?
What should they do about it? Is this situation insufferable?
By raising these questions, I am not accusing any judge of intellectually
dishonesty, nor academic dishonesty, nor fraud, nor intentional wrongdoing,
nor professional incompetence, nor treason, nor conspiracy, nor anything
else derogatory. I am simply urging people to read what follows critically
and to think carefully.
I do not have solid evidence to support answers to many of these questions.
I do, however, have my tentative impressions and opinions. Hence, I decline
to provide an answer to these questions. For now, I am content to have
simply made a selection of cases, to have arranged them chronologically, to
quote from them, and to share my own analysis of the cases and what the
judges wrote. In this manner, I address the evidence--the evidence that came
from the judges' minds, pens, and published decisions. The only evidence I
have about any judges' intent or competence or integrity is indirect at
best, as evidenced by the judges' decisions. Hence, I leave it to the reader
to read the summaries of these cases, the quotations attributable to the
judges who wrote these decisions, and my remarks. I am content to let the
reader draw his or her own conclusions.
On the other hand, I stress the following:
- Everything in life is relative and has a context. As an attorney, to
many, perhaps I enjoy some measure of social standing. Compared to judges,
however, I am a mere attorney--one they routinely give orders to and bark at
while scowling and manifesting other forms of disgust and hostility. Hence,
I remain a member of the great mass of unwashed peasants;
- As an unwashed peasant, I would never be invited to a private, ultra
candid, confidential discussion among judges only about how they really
feel about society, the law, the business of judging, the politics of
judging, career advancement and the common man;
- Therefore, as a peasant who happens to be an attorney, if I am to have
any influence, I must engage in fairly loud, candid, uncharitable and
provocative measures so that the noble judges, law makers, movers and
shakers, and opinion making media elites in the great dinning hall that is
off limits to me will be aware of what this peasant thinks;
- I grew up in a dysfunctional family headed by a strong willed, dominating
male who ruled like a benign tyrant. In that family, the only right way was
the being tyrant's way. This tyrant growled and bellowed and barked
ad-nauseum. That form of tyranny left me with an enduring, extreme, horrible,
taste. I am thrilled to be out from under the arbitrary rule of that benign
tyrant. That experience was, and is, as close to Tyranny as I care to ever
experience. I vow to never go back to that type of environment. Never! If
pressed, I would rather fight, kill and die to avoid being forced back into
anything resembling that environment or worse;
- I will always remember the day my mother called me to watch a Perry Mason
show on TV. I was awed by the fact that two opposing lawyers could argue
their case forcefully in a civilized manner, per a set of predetermined and
agreed to rules, before an allegedly competent, neutral judge who had no axe
to grind. Given my experience with my benign tyrant, I fell in love with
the idea of becoming a trial lawyer and a defender of individual liberty
against arbitrary oppression in violation of a predetermined set of agreed
- I still adhere to a somewhat naive, child-like, idealistic, corny,
old-fashioned, insistence that a judge's decision should be principled and
should be demonstrably tethered to the law's text, not the judge's core
values and/or agenda independent of the law's text and the predetermined
agreed to set of rules;
- As a citizen and as an attorney, I loathe living my life, and/or building
a case, consistent with a predetermined, agreed to set of rules only later
to find out that the judge adhered to a different set of rules or he ruled
against me dishonestly and tried to cover up his dishonesty by tweaking the
rules in a manner that I experience to be unprincipled, illogical and/or
dishonest, despite the judge's fig leaf cover up written decision;
- I have come to share, and concur with, Thomas Jefferson's fear and
warning: the by-product of judges' assuming the right and the power to
determine the constitutionality of the law elevates them to the status of
Judicial Despots, which is a grave threat to individual liberty;
Judges are mortals. They are not angels. They are not super human beings
blessed with superior, infallible intellect, devoid of all banal human
qualities and frailties. They are subject to the Seven Deadly Sins, and
everything else, just like all non- judges are. They are not pure, perfect,
neutral, legal decision-making, thinking machines with 100% pure hearts and
awesome intellectual powers devoid of emotions. Unfortunately, too many
judges prove to be major disappoints, and they discredit themselves and the
bench and, in the process, they have harmed the nation.
Marbury v. Madison (1803) 5 U.S. 137
Fletcher v. Peck (1810) 10 U.S. 87
- Factual Summary: Involved a dispute as to whether a Mr. Marbury had a
right to a commission.
- Court's Ruling: He was. The court, in the process, said the following: the
executive is subject to legal and constitutional constraints which can be
determined and enforced by the judiciary; judges have the power to review
the law and to determine its constitutionality and to declare a law to be
invalid as a violation of the Constitution; the Constitution is the supreme
law of the land; a law that was not in conformity with constitutional
principles could not be the law of the land because the Constitution is a
binding law superior to any other law and the Constitution is superior to
legislation; all law making in derogation of the Constitution is null and
void; no one has to obey a law that is null and void; it cannot be presumed
that any clause in the constitution is intended to be without effect; and
judges take an oath to support the Constitution and thus have a duty to
review the law and to strike down all unconstitutional laws.
- Mancus' Remarks: This case is arguably the first, and most important,
cornerstone in American Constitutional law. The U.S. Supreme Court was not a
powerful institution when the U.S. Constitution was ratified and during the
early years of the republic. This decision, which gave this court the power
to review law and to declare what is and is not constitutional, changed the
power balance among the Executive, Legislative and Judiciary. For better or
worse, this decision was arguably a meritorious construction of the
Constitution or it was a bold, naked grab for raw power by the U.S. Supreme
Thomas Jefferson vehemently opposed this decision. He called it a grave
usurpation of power by the U.S. Supreme Court based on a gross perversion of
the Constitution. He also predicted that this decision was lead to judicial
Note that this decision states two very interesting, important holdings:
judges have a duty to support the constitution by striking down all
unconstitutional laws and no one has to obey an unconstitutional law.
McCulloch v. Maryland (1819) 17 U.S. 316
- Factual Summary: Intentionally omitted.
- Court's Ruling: Federal courts may properly exercise federal judicial
power over state laws.
- Mancus' Remarks: This is the first of a series of cases wherein the U.S.
Supreme Court determined that it has the legal right to invalidate a state
law pursuant to the U.S. Constitution.
Bliss v. Commonwealth (1822) 2 Littell 90, 13 Am. Dec. 251
- Factual Summary: Intentionally omitted.
- Court's Ruling: The federal judiciary can bind all branches of government
by constitutional interpretation, the judiciary is the supreme branch of
government and federal authority over the states is supreme.
- Mancus' Remarks: This is another one of the major cornerstones of American
Constitutional law. By this decision, the U.S. Supreme Court consolidated
and expanded its power of judicial review of state and federal legislation.
- Factual Summary: A man was charged with illegally concealing a sword in a
cane. This man was convicted in a jury trial and he appealed his conviction
on the ground that the law against concealed weapons violated a state
constitutional provision "that the right of the citizens to bear arms in
defense of themselves and the state shall not be questioned."
- Court's Ruling: The Kentucky Supreme Court said:
. . . it is the right to bear arms in defense of the citizens and the
state, that is secured by the constitution, and whatever restrains the full
and complete exercise of that right, though not an entire destruction of it,
is forbidden by the explicit language of the constitution. If, therefore, the
act in question imposes any restraint on the right, immaterial what
appellation may be given to the act, whether it be an act regulating the
manner of bearing arms, or any other, the consequence, in reference to the
constitution, is precisely the same, and its collision with that instrument
equally obvious. And can there be entertained a reasonable doubt but the
provision of the act import a restraint on the right of the citizens to bear
arms? The court apprehends not. The right existed at the adoption of the
constitution; it had then no limits short of the moral power of the
citizens to exercise it, and it in fact consisted in nothing else but in the
liberty of the citizens to bear arms . . . For, in principle, there is no
difference between a law prohibiting the wearing of concealed arms, and a
law forbidding the wearing such as are exposed; and if the former be
unconstitutional, the latter must be so likewise.
- Mancus' Remarks: The Founding Fathers, Framers and Ratifiers would love
these judges. These judges recognized that the right of individuals to bear
arms, including concealed firearms, existed without limitation when the U.S.
Constitution was ratified. This is a pro Absolute Rights type case.
Barron v. City of Baltimore (1833) 32 U.S. 243
Aymette v. The State (1840) 21 Tenn. 154
- Factual Summary: Involved a dispute that raised this issue: Is the U.S.
Bill of Rights applicable to, and binding on, the states.
- Court's Ruling: The U.S. Supreme Court said no. The court reasoned as
These amendments demanded security against the apprehended encroachments
of the general government--not against those of the local governments. In
compliance with a sentiment thus generally expressed, to quiet fears thus
extensively entertained, amendments were proposed by the required majority
in congress, and adopted by the states. These amendments contain no
expression indicating an intention to apply them to the state governments.
This court cannot so apply them. [Emphasis added.]
- Mancus' Remarks: This case was, and is, a horrible, illogical, wrong turn
in our nation's constitutional history. The Court's reasoning-to-result
overlooks and defies the clear language of the Constitution itself. Article
VI, Section 2 states:
This Constitution, and the laws of the United States which shall be made
in pursuance thereof; and all treaties made, or which shall be made, under
the authority of the United States, shall be the supreme law of the land;
and the judges in every state shall be bound thereby, any thing in the
Constitution or laws of the state to the contrary notwithstanding. [Emphasis
And Article VII of the U.S. Constitution states:
The ratification of the conventions of nine states, shall be sufficient
for the establishment of this Constitution between the states so ratifying
the same. [Emphasis added.]
The States created, and consented to be bound by, a federal system of
government and the U.S. Constitution as the supreme law of the land. Hence,
they are bound by the Bill of Rights which are the first ten amendments to
the Constitution. I also do not believe that state judges can be bound by
the Constitution and the Bill of Rights but the States are not.
The U.S. Supreme Court, by this decision, allowed the States, under the
banner of "States' rights," to deny citizens within their boundaries the
rights guaranteed by the Bill of Rights, as the supreme law of the land.
If I had been alive in the late 1700's when the Constitution and/or the
Bill of Rights were ratified, I would not have interpreted either, in light
of the excerpts from the Constitution quoted above, as not being binding on
the States. If I were an ex-Minuteman and someone told me if I voted to
ratify the Constitution and the Bill of Rights that the resulting states
could oppress me but the federal government could not, I would not have
ratified those documents.
By this decision, the U.S. Supreme Court gave the States virtual free reign
to abuse their citizens within their boundaries.
The U.S. Constitution makes it clear that each American citizen has two
citizenships: a federal citizenship and a state citizenship; hence, we are
each burdened with being subject to two masters [which is not good!] On the
other hand, every citizen has but one life and that life is indivisible. In
that sense, if a citizen, in his capacity wishes to exercise his federal
citizenship rights, the States have a duty to honor that exercise of a
federally guaranteed right; otherwise, the entire idea of a "supreme law of
the land" and the idea that the Bill of Rights is an impregnable bulwark
against government trespass against rights is a sham.
State v. Reid (1840) 1 Ala. 612
- Factual Summary: Involved the scope of what right, if any, is protected
by the Second Amendment.
- Court's Ruling: The Tennessee Supreme Court said, "[t]he phrase 'bear
arms' . . . has a military sense, and no other . . . A man in pursuit of
deer, elk and buffaloes, might carry his rifle every day, for forty years,
and, yet, it would never be said of him, that he had borne arms."
- Mancus' Remarks: This ruling illustrates well the following: first, words
are often too imprecise; second, a person with or without an agenda can, and
often does, exploit the plasticity of words to arrive at a construction that
would shock another educated, intelligent, objective person operating in
good faith; third, the Webster dictionary edition closest to the time
that the Second Amendment was proposed, debated and ratified contains
definitions of "bear" that are much broader than the narrow definition this
court used; fourth, less than fifty years after the Second was ratified, we
have here judges who began to chip away at the right; and finally, they did
this in a state that is in an area that yielded such famous marksmen as
Daniel Boone, Davy Crocket and Alvin York, were hunting, marksmanship, and
manly self-defense with a firearm were highly praised for generations.
State v. Buzzard (1842) 4 Ark. 18
- Factual Summary: A man was convicted by a jury of carrying a concealed
pistol in violation of a state statute.
- Court's Ruling: The Alabama Supreme Court upheld the conviction. This
The question recurs, does the act, "To suppress the evil practice of
carrying weapons secretly," trench upon the constitutional rights of the
citizen? We think not. The constitution in declaring that, "Every citizen
has the right to bear arms in defense of himself and the State," has neither
expressly nor by implication, denied tot he Legislature, the right to enact
laws in regard to the manner in which arms shall be borne. The right
guaranteed to the citizen, is not to bear arms upon all occasions and in
all places, but merely "in defense of himself and the State. "The terms in
which this provision is phrased seems to us, necessarily to leave with the
Legislature the authority to adopt such regulations of police, as may be
dictated by the safety of the people and the advancement of public morals. .
. . We do not desire to be understood as maintaining, that in regulating
the manner of bearing arms, the authority of the Legislature has no other
limits than its own discretion. A statute which, under the pretense of
regulating, amounts to a destruction of the right, or which requires arms to
be so borne as to render them wholly useless for the purpose of defense,
would be clearly unconstitutional. But a law which is intended merely to
promote personal security, and to put down lawless aggression and violence,
and to that end inhibits the wearing of certain weapons, in such a manner as
is calculated to exert an unhappy influence upon the moral feelings of the
wearer, by making him less regardful of the personal security of others,
does not come in collision with the constitution. [Emphasis added.]
- Mancus' Remarks: This is one of the early cases were the judicary
sanctioned prior restraint against what it called a right, manifested
doublespeak, tweaked the definition of a right and clearly infringed on a
right while insisting that it did not.
South v. State of Maryland for use of Pottle (1855) 59 U.S. 396
- Factual Summary: A man was convicted of violating a law against the carry
of concealed weapons.
- Court's Ruling: The Arkansas Supreme Court upheld the conviction despite
the defense's claim that the law violated the Second Amendment. This court
also held that there was no right to self-defense because the government was
responsible to redress grievances and self-defense was the moral and legal
equivalent of revenge!
- Mancus' Remarks: This case contains a rather lengthy discussion about what
constitutes an absolute right, and it demonstrates how this court reasoned
that such rights must be surrendered to the state's efforts to promote the
public safety and public welfare.
The only judge who wrote a meritorious, well reasoned opinion in this case
was a dissenting justice, Justice Lacey,. who said:
Now, I take the expressions "a well regulated militia being necessary for
the security of a free State," and the terms "common defense," to be the
reasons assigned for the granting of the right, and not a restriction or
limitation upon the right itself, or the perfect freedom to its exercise.
The security of the State is the constitutional reason for the quantity. But
when was it contended before, that the reason given for the establishment of
a right, or its uninterrupted enjoyment, not only limited the right itself,
but restrained it to a single specific object? According to this
construction, the right itself is not only abridged, but literally
destroyed; and the security of a free State is made to depend exclusively
and alone upon the force of the militia. And, in the opinion of one of my
brother Judges, it is the militia alone who possess this right, in
contradistinction from the mass of the people; and even they cannot use them
for private defense or person aggression, but must use them for public
liberty, according to the discretion of the Legislature. According to the
rule laid down in the interpretation of this clause, I deem the right to be
valueless, and not worth preserving; for the State unquestionably possess
the power, without the grant, to arm the militia, and direct how they shall
be employed in cases of invasion or domestic insurrection. If this be the
meaning of the Constitution, why give that which is no right in itself, and
guaranties a privilege that is useless? . . . I deny that any just or free
government upon earth has the power to disarm its citizens, and to take from
them the only security and ultimate hope that they have for the defense of
their liberties and their rights. I deny this, not only upon constitutional
grounds, but upon the immutable principles of natural and equal justice,
that all men have a right to, and which to deprive them of amounts to
tyranny and oppression. Can it be doubted that if the Legislature, in
moments of high political excitement or of revolution, were to pass an act
disarming the whole population of the State, that such an act would be
utterly void, not only because it violated the spirit and tenor of the
Constitution, but because it invaded the original rights of natural justice?
Dunne v. People (1879) 94 Ill. 120
- Factual Summary: A sheriff was sued individually in a civil action by a
person injured in a riotous assembly who believed the sheriff should be
liable for failing to protect him.
- Court's Ruling: Law enforcement has no duty to protect a specific
individual. Instead, law enforcement is only a general deterrent to crime.
- Mancus' Remarks: It is prudent to not abdicate one's responsibility for
self-defense. This is because the police have no duty to protect you, and
to rely upon such protection is folly.
Presser v. State of Illinois (1886) 116 U.S. 252
- Factual Summary: Peter Dunne, a member of the Illinois National Guard, who
was summoned to jury duty, refused to serve as a juror, for various reasons.
The trial court refused to accept any of Mr. Dunne's excuses and fined him
- Court's Ruling: The Illinois Supreme Court upheld the state's authority to
regulate private organizations parading with arms, acknowledged that a right
to arms existed, and then backtracked on that acknowledgement by
acknowledging the broad power of the state to pass laws that promote public
safety and public welfare. This court said:
In matters pertaining to the internal peace and well-being of the State,
its police powers are plenary and inalienable. It is a power co-extensive
with self-protection, and is sometimes termed, and not inaptly, the "law of
overruling necessity." Every necessary act for the protection, safety and
best interests of the people of the State may be done under this power.
Persons and property may be subjected to all reasonable restraints and
burdens for the common good. . . . What will endanger the public security
must, as a general rule, be left to the wisdom of the legislative department
of the government.
- Mancus' Remarks: Wow! Did these judges go afield? Now, instead of
citizens having inalienable rights from their Creator, the State does! Who
created the states: citizens or a Creator? Where is this "law of overruling
necessity" mentioned in the Constitution or the Bill of Rights?
"[O]ver-ruling necessity" per who? Judicial despots? Traitorous legislatures
and/or executives? Is the Bill of Rights an impregnable bulwark against
government intrusion or a worthless sham? Rights are not self-enforcing.
Robertson v. Baldwin (1897) 165 U.S. 275
- Factual Summary: Herman Presser was indicted, and convicted, for violating
a state law that made it unlawful for any body of men not part of the
state's militia to associate themselves as a military organization or to
drill or parade with arms in any city or town of the state without a permit.
Presser appealed and asserted the state violated his Second Amendment
- Court's Ruling: The conviction was upheld. The U.S. Supreme Court, in an
unanimous decision, said:
We think it clear that the section under consideration, which only forbid
bodies of men to associate together as military organizations, or to drill
or parade with arms in cities and towns unless authorized by law, do not
infringe the right of the people to keep and bear arms. But a conclusive
answer to the contention that this amendment prohibits the legislation in
question lies in the fact that the amendment is a limitation only upon the
power of congress and the national government, and not upon the state. . . .
.the right of the people to keep and bear arms 'is not a right granted by
the Constitution. Neither is it in any manner dependent upon that instrument
for its existence. The second amendment declares that it shall not be
infringed, but this, as has been seen, mean no more than that it shall not
be infringed by congress. This is one of the amendments that has no other
effect than to restrict the powers of the national government, . . . .
It is undoubtedly true that all citizens capable of bearing arms
constitute the reserved military force or reserve militia of the United
States as well as of the states, and in view of this prerogative of the
general government, as well as of its general powers, the states cannot,
even laying the constitutional provision in question out of view, prohibit
the people from keeping and bearing arms, so as to deprive the United States
of their rightful resource for maintain the public security, and disable
the people from performing their duty to the general government.
- Mancus' Remarks: Such multiple doublespeak. The States can infringe but
they cannot infringe!
City of Salina v. Blaksley (1905) 83 Pac. 619
- Factual Summary: Merchant sailors who had jumped ship claimed that the
U.S. Bill of Rights protected them against being seized and returned to
their ship without due process of law.
- Court's Ruling: The U.S. Supreme Court summarized its understanding of the
intent of the Bill of Rights as follows:
The first 10 amendments to the constitution of the United States,
commonly known as the "Bill of Rights," were not intended to lay down any
novel principles of government, but simply embodied certain guaranties and
immunities which we had inherited from our English ancestors, and which had,
from time immemorial, been subject to certain well-recognized exceptions,
arising from the necessities of the case. In incorporating these principles
into the constitution, there was no intention of disregarding the
exceptions, which have continued to be recognized as if formally expressed.
Thus, the freedom of speech and of the press (article 1) does not permit the
publication of libels, blasphemous or indecent articles, or other
publications injurious to public morals or private reputation; the right of
the people to keep and bear arms (article 2) is not infringed by laws
prohibiting the carrying of concealed weapons; . . . . [Emphasis added.]
- Mancus' Remarks: By this statement, the U.S. Supreme Court put the Second
Amendment on the same par as the First Amendment--both an individual right
subject to reasonable regulation to punish the misuse of the right. As such,
the Court implied that the individual carrying of arms in some manner was,
and is, a constitutionally protected right. However, the Court clearly
manifested an unwillingness to give due weight to a fair meaning of
"infringe" because it said the a law prohibiting the carrying of a concealed
weapon is not an infringement. This is frank, unprincipled, doublespeak,
Alice in Wonderland, perversion of simple English words.
Ex Parte Luening (1906) 3 Cal.App. 76
- Factual Summary: Involved the interpretation of the phrase "the people" as
used in the Kansas Bill of Rights' provision dealing with "the peoples'"
right to arms.
- Court's Ruling: The Kansas Supreme Court said:
The provision in section 4 of the Bill of Rights that "the people have the
right to bear arms for their defense and security" refers to the people as a
collective body. It was the safety and security of society that were being
considered when this provision was being put into the constitution. It is
followed immediately by the declaration that standing armies in time of
peace are dangerous to liberty and should not be tolerated, and that "the
military shall be in strict subordination to the civil power." It deals
exclusively with the military; individual rights are not considered in this
section. The manner in which the people shall exercise this right of bearing
arms for the defense and security of the people is found in article 8 of the
constitution, which authorizes the organizing, equipping and disciplining the
militia, which shall be composed of "all able-bodied male citizens between
the ages of twenty-one and forty-five years." The militia is essentially
the people's army, and their defense and security in time of peace. In the
absence of constitutional or legislative authority no person has the right to
assume such duty. [Emphasis added.]
- Mancus' Remarks: This court cited no authority for its claim that "the
people" can exercise their right to arms only collectively, as members of the
state national guard, not as individuals. This decision is a radical break
from previous court interpretations of the right to keep and bear arms. This
is the earliest known decision where a state supreme court held that a state
analog to the Second Amendment is a collective right only, limited to the
exercise of the collective right within a government approved organization.
This decision ignores this question: How can the militia really be the
people's army when no person can assume that duty without state government's
approval and being subjected to state government regulation?
People v. Camperlingo (1924) 69 Cal.App. 466
- Factual Summary: A man challenged a county ordinance which prohibited the
concealed carry of deadly weapons without a permit from the local sheriff.
- Court's Ruling: The Second California Court of Appeals said:
Petitioner contends, further, that the ordinance is unreasonable,
oppressive and discriminating, that it leaves to the arbitrary will of the
sheriff the right to determine who may enjoy the privilege thereunder, and
this upon the theory that the right to bear arms is a natural right which
may not be prohibited. Whatever may be the source of the right to bear arms,
in the general acceptation of such term, it does not follow as a natural
consequence that such right extends to every conceivable manner in which
arms may be borne. . . . The habit of carrying concealed weapons is one
of the most fruitful sources of crime, and, in our opinion, may be entirely
prohibited by the proper authorities. . . . If, therefore, the carrying of
deadly weapons concealed about the person, in public places, is a menace to
public safety, injurious to the public welfare, no right so to do exists . .
. . Legislation in this regard is referable to the police power, . . . .
this ordinance must be taken as a reasonable exercise of police power upon
the part of the supervisors of San Bernardino county. In our opinion, the
ordinance here involved is valid, . . . . [Emphasis added.]
- Mancus' Remarks: Do you think these judges really acted as if they were
applying the supreme law of the land? Did these judges interpret away the
Second and reduce it to a privilege?
Olmstead v. U.S. (1928) 277 U.S. 438
- Factual Summary: A convicted felon was charged with being a felon in
possession of a concealable firearm.
- Court's Ruling:
It is clear that in the exercise of police power of the state, that is,
for the public safety or the public welfare generally, such rights may be
either regulated or, in proper cases, entirely destroyed. Acting within the
scope of such power, the legislature, by a proper classification of its
citizens, has declared that persons heretofore convicted of a felony shall
not possess firearms, and while such citizens are thus deprived of a natural
right, in the judgment and discretion of the legislature such deprivation
tends directly to the accomplishment of the desired end. As has been
indicated by the authorities citied herein, a reasonable basis exists for
the classification of citizens of the state in the manner provided by the
statute, and there can be no question of the uniformity of its operation
upon all persons within the designated class.
- Mancus' Remarks: This case makes me intellectually puke. By this decision,
judges have gone on record sanctioning a heinous concept: the Legislature
is free to classify citizens per any standards that are arguably reasonable
and by such arguably reasonable classifications, if there is any plausible,
reasonable basis that such classification might promote the public safety or
welfare, then the Legislature, with the support of the Judiciary, can
completely destroy a classified individual's rights under the excuse of
promoting public safety and welfare, that the individual's rights are
expendable and can be totally destroyed with the stroke of a pen in the
alleged interest of the greater good. But the Bill of Rights was intended to
be an "impregnable bulwark" against government intrusion and trespass
against all individual's natural rights and a legal barrier against the power
of the majority. Hence, what purpose does the Bill of Rights serve if the
Bill can be nullified and overridden by the representatives sworn to
uphold and defend that Bill who, contrary to their sworn oath, simply make a
legislative finding and classification that the destruction of an allegedly
guaranteed right is warranted by the presumed public safety or public
This case would make each of the Founding Fathers, the Framers and the
Ratifiers puke their guts out.
United States v. Schwimmer (1929) 279 U.S. 644
- Factual Summary: Involved federal wiretapping in violation of state law
during the prohibition era.
- Court's Ruling: Federal agents did not violate the Fourth or Fifteh
- Mancus' Remarks: Justice Brandeis' dissent in this case is much more
convincing. Here are some of the many superlative, pro-individual liberty
statements from this dissent:
'Rights declared in words might be lost in reality.' . . . [Mancus: How
true! And how sad! Paper barriers are not reliable barriers to oppression.
Such barriers are useless without armed men willing to fight and to kill to
preserve those rights.]
'It is not the breaking of his doors, and the rummaging of his drawers,
that constitutes the essence of the offense; but it is the invasion of his
indefensible right of personal security, personal liberty and private
property, where that right has never been forfeited . . . . [Emphasis added.]
'Of all the rights of the citizen, few are of greater importance or more
essential to his peace and happiness than the right of personal security,
and that involves, not merely protection of his person from assault, but
exemption of his private affairs, books, and papers from the inspection and
scrutiny of others. Without the enjoyment of this right, all other rights
would lose half their value.' [Emphasis added.] [Mancus: The corollary of
the right of personal security is the right to carry a gun for lawful self-
defense without anyone's permission.]
The makers of our Constitution undertook to secure conditions favorable to
the pursuit of happiness. They recognized the significance of man's
spiritual nature, of his feelings and of his intellect. They knew that only
a part of the pain, pleasure and satisfactions of life are to be bound in
material things. They sought to protect Americans in their beliefs, their
thoughts, their emotions and their sensations. They conferred, as against
the government, the right to be let alone--the most comprehensive of rights
and the right most valued by civilized men. To protect, that right, every
unjustifiable intrusion by the government upon the privacy of the
individual, whatever the means employed, must be deemed a violation of the
Fourth Amendment. [Emphasis added.] [Mancus: The right to be let alone
involves not having to fill out highly invasive CCW permit application
Experience should teach us to be most on our guard to protect liberty when
the government's purposes are beneficent. Men born to freedom are naturally
alert to repel invasions of their liberty by evil-minded rulers. The
greatest dangers to liberty lurk in insidious encroachment by men of zeal,
well-meaning but without understanding. [Emphasis added.] [Mancus: Amen!]
Decency, security, and liberty alike demand that government officials
shall be subjected to the same rules of conduct that are commands to the
citizen. In a government of laws, existence of the government will be
imperiled if it fails to observe the law scrupulously. Our government is the
potent, omnipresent teacher. For good or for ill, it teaches the whole
people by its example. Crime is contagious. If the government becomes a
lawbreaker, it breeds contempt for law; it invites every man to become a law
unto himself; it invites anarchy. . . . [Emphasis added.] [Mancus: This
passage is reported to be one of Timothy McVeigh's favorite. Justice
Brandeis is absolutely correct.]
Justice Butler, dissenting, hit a mini grand slam with this statement: ". .
. the rule of liberal construction that always has been applied to
provisions of the Constitution safeguarding personal rights." In context,
Justice Butler's point was this: a major part of a judge's duty is to
interpret the Constitution broadly to safeguard personal rights. The U.S.
Supreme Court said this in previous cases but has often failed to do so.
Reformulated, it is naive to rely on judges and/or cops for protection.
United States v. Miller (1939) 307 U.S. 174
- Factual Summary: Involved the requirements to become a naturalized U.S.
citizen and "the social compact." A well educated lady sought U.S.
citizenship. In her answers to questions in the application form for
naturalization, this lady made it clear that she was an uncompromising
pacifist with no sense of nationalism and she was opposed to the use of
military force and personally taking up arms. As her case worked here way up
through the courts, various courts ruled for and against her. How do you
think the U.S. Supreme Court ruled?
- Court's Ruling: She was denied citizenship.
- Mancus' Remarks: This case is full of pathetic humor if one reads it in
terms of William Jefferson Clinton's dealings with the draft and him later
becoming Commander in Chief. It is also illustrative of the premium value
the U.S. Supreme Court puts on citizens who have a high sense of nationalism
and who are willing to use arms to fight for nationalism--which tends to
describe the very kind of people the Gun Prohibitionists demonize:
I think the majority should have granted this lady citizenship; however, I
think the majority and the dissent both score excellent points.
Here are excerpts from the majority opinion:
Except for eligibility to the Presidency, naturalized citizens stand on
the same footing as do native-born citizens. All alike owe allegiance to the
government, and the government owes to them the duty of protection. These
are reciprocal obligations, and each is a consideration of the other. . . .
the law puts the burden upon every applicant to show by satisfactory
evidence that he has the specified qualifications. . . . . 'Citizenship is
a high privilege, and when doubts exist concerning a grant of it, generally
at least, they should be resolved in favor of the United States and against
the claimant. . . . That it is the duty of citizens by force of arms to
defend our government against all enemies whenever necessity arises is a
fundamental principle of our Constitution. . . . The common defense was
one of the purposes for which the people ordained and established the
Constitution. . . . it declares that, 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. . . . The record shows that
respondent strongly desires to become a citizen. She is a linguist,
lecturer, and writer; she is well educated and accustomed to discuss
governments and civic affairs. . . . Taken as a whole, it shows that her
objection to military service rests on reasons other than mere inability
because of her sex and age personally to bear arms. . . . The fact that she
is an uncompromising pacifist, with no sense of nationalism, but only a
cosmic sense of belonging to the human family, justifies belief that she may
be opposes to the use of military force as contemplated by our Constitution
and laws. . . . A pacifist, in the general sense of the word, is one who
seeks to maintain peace and to abolish war. Such purposes are in harmony
with the Constitution and policy of our government. . . . one who is
without any sense of nationalism is not well bound or held by the ties of
affection to any nation or government. Such persons are liable to be
incapable of the attachment for and devotion to the principles of our
Constitution that are required of aliens seeking naturalization. . . . the
burden was upon her to show what she meant and that her pacifism and lack of
nationalistic sense did not oppose the principle that it is a duty of
citizenship by force of arms when necessary to defend the country against all
enemies, and that her opinions and beliefs would not prevent or impair the
true faith and allegiance required by the act. She failed to do so. The
District Court was bound by the law to deny her application.
Justice Holmes opined:
The applicant seems to be a woman of superior character and intelligence,
obviously more than ordinarily desirable as a citizen of the Unitd States. .
. . The views referred to are an extreme opinion in favor of pacifism and a
statement that she would not bear arms to defend the Constitution. So far as
the adequacy of her oath is concerned I hardly can see how that is
affected by the statement, inasmuch as she is a woman over fifty years of
age, and would not be allowed to bear arms if she wanted to. . . . most
people who have known [war] regard it with horror, as a last resort, and
even if not yet ready for cosmopolitan efforts, would welcome any practical
combinations that would increase the power on the side of peace. . . . Some
of her answers might excite popular prejudice, but if there is any principle
of the Constitution that more imperatively calls for attachment than any
other it is the principle of free though-not free thought for those who agree
with us but freedom for the thought that we hate. I think that we should
adhere to that princi0ple with regard to admission into, as well as to life
within this country. . . . Quakers have done their share to make the country
what it is, that many citizens agree with the applicant's belief and that I
had not supposed hitherto that we regretted our inability to expel them
because they believed more than some of us do in the teachings of the Sermon
on the Mount.
- Mancus' Remarks:
Jones v. City of Opelika (1943) 319 U.S. 105
- Factual Summary: Jack Miller and Frank Layton were criminally charged with
illegal possession and transportation of a shotgun with a barrel less than
18 inches long in violation of a federal law. They defended on the grounds
that this law was an illegal attempt to usurp police power reserved to the
state and this law violated the Second Amendment. The Federal District Court
ruled that this federal law did violate the Second Amendment. Accordingly,
the federal judge threw out the criminal charge against these men. The
United States appealed.
- Court's Ruling: The U.S. Supreme Court reversed and remanded the case for
further proceedings. The Court said:
In the absence of any evidence tending to show that possession or use of a
'shotgun having a barrel of less than eighteen inches in length' at this
time has some reasonable relationship to the preservation or efficiency of a
well regulated militia, we cannot say that the Second Amendment guarantees
the right to keep and bear such an instrument. Certainly it is not within
judicial notice that this weapon is any part of the ordinary military
equipment or that it use could contribute to the common defense. . . . .
With obvious purpose to assure the continuation and render possible the
effectiveness of such forces the declaration and guarantee of the Second
Amendment were made. It must be interpreted and applied with that end in
view. . . . The sentiment of the time strongly disfavored standing armies;
the common view was that adequate defense of county and laws could be
secured through the Militia-- civilians primarily, soldiers on occasion. .
. . [The writings, history and legislation of the time] show plainly
enough that the Militia comprised all males physically capable of acting in
concert for the common defense. 'A body of citizens enrolled for military
discipline.' And further, that ordinarily when called for service these men
were expected to appear bearing arms supplied by themselves and of the kind
in common use at the time. . . . 'Men of republican principles have been
jealous of a standing army as dangerous to liberty.' 'In a militia, the
character of the laborer, artificer or tradesman, predominates over that of
the soldier: in a standing army, that of the soldier predominates over every
other character; and in this distinction seems to consists the essential
difference between those two different species of military force.' . . .
'In all the colonies, as in England, the militia system was based on the
principle of the assize of arms. This implied the general obligation of all
adult male inhabitants to possess arms, and, with certain exceptions, to
cooperate in the work of defense.' . . . Most if not all of the States
have adopted provisions touching the right to keep and bear arms.
Differences in the language employed in these have naturally led to somewhat
variant conclusions concerning the scope of the right guaranteed. But none
of them seem to afford any material support for the challenged ruling of the
court below. . . . We are unable to accept the conclusion of the court
below and the challenged judgment must be reversed. The cause will be
remanded for further proceedings.
- Mancus' Remarks: This is the last case decided by the U.S. Supreme Court
that focused on the Second Amendment. Unfortunately, the language of this
decision is somewhat cryptic and the Court did not fully set forth its views
because it remanded the case [sent it back to the lower court] for further
proceedings. As a side bar, when the United States appealed, no one appeared
or argued on behalf of Jack Miller and Frank Layton. Thus, even when the
United States attorney faced no opposition on appeal, the United States was
unable to, and did not, secure a clear cut, decisive, win. While it is true
that the U.S. Supreme Court reversed the lower court that held in favor of
Mr. Miller and Mr. Layton, it reversed only in the limited sense of sending
the case back for further proceedings, which is not the same as saying the
Second Amendment does not guarantee an individual right to arms.
Ironically, and not surprisingly, Gun Prohibitionists and their opponents
commonly cite this case to support their positions. I believe that this case
stands for these propositions: first, the Second Amendment does guarantee an
individual right to arms which becomes a collective right when armed
individuals come together and marshal as a militia, bringing with them arms
privately owned by them maintained under their control free of government's
prior restraint; second, the Second Amendment protects all hand held
firearms, regardless of appearance, power, rate of fire, etc., if it can be
demonstrated that they have "some reasonable relationship to the
preservation or efficiency of a well regulated militia."; and third, per
this test for what type of firearms are protected by the Second Amendment,
citizens have a right to buy, own, possess, control and use, responsibly,
all of the same type of modern military, hand held, small arms, regardless
of their appearance, rate of fire, power, lethality, etc.
The Minutemen enjoyed technological parity, if not superiority, with
Redcoats. If the Second Amendment will continue to achieve its primary
purpose, to deter government from degenerating into a tyrannical oppressor,
armed citizens must retain firepower adequate to cope with government's
armed forces and law enforcement personnel. If you disagree, ask an American
Indian about the pros and cons of losing an arms race with the U.S. Calvary.
Anyone who claims that no federal district court has ever held that the
Second Amendment does guarantee an individual right to arms and is a bar to
prior restraint regulation is wrong. The federal district court in this case
did exactly that, and because it did, the United States appealed.
Anyone who claims that there is no individual right to arms and, therefore,
no individual has standing [a legal requirement for a basis to bring a
lawsuit based on a claim of individual injury], is wrong. The U.S. Supreme
Court accepted the United States appeal, and, significantly, it never held
that Jack Miller and Frank Layton lacked standing, which it could have
easily done and would have done, if it believed that that was the case.
To help illustrate my reasoning-to-result as stated above, the above
excerpt from this decision is repeated below with my additional remarks
stated within brackets in bold.
In the absence of any evidence tending to show that possession or use of a
'shotgun having a barrel of less than eighteen inches in length' at this
time has some reasonable relationship to the preservation or efficiency of a
well regulated militia, [Here is the U.S. Supreme Court's test for what type
of arms are protected by the Second Amendment: Does the arm in question have
"some reasonable relationship to the preservation or efficiency of a well
regulated militia"? If it does, it is protected as an individual right.
Short barrel shotguns were commonly used in the trenches in WWI, so the
Court could have ruled in favor of Mr. Miller and Mr. Layton. But neither
they nor their attorney contested this appeal and the U.S. attorney was
certainly not motivated to introduce evidence that U.S. troops used short
barrel shotguns in WWI. Hence, the Court properly played it conservatively
and would not rule for Mr. Miller and Mr. Layton and would not rule squarely
against the United States in the absence of some evidence on this issue. The
Court, therefore, remanded the case for the lower court to hold another
evidentiary hearing on this issue. As an appellate court, the U.S. Supreme
Court would not hold an evidentiary hearing.] we cannot say that the Second
Amendment guarantees the right to keep and bear such an instrument.
Certainly it is not within judicial notice that this weapon is any part of
the ordinary military equipment or that its use could contribute to the
common defense. [Here is another test for the type of arms protected by the
Second Amendment: if the firearm "is any part of the ordinary military
equipment or that its use could contribute to the common defense." That
test, again, gives citizens an absolute right to own and use, responsibly,
the exact hand held firearms used by modern infantry, paratroopers and U.S.
Marines.]. . . . With obvious purpose to assure the continuation and render
possible the effectiveness of such forces the declaration and guarantee of
the Second Amendment were made. It must be interpreted and applied with that
end in view. [Gun Prohibitionists seize on part of these immediately
preceding two sentences, namely, "With obvious purpose to assure the
continuation and render possible the effectiveness of such forces the
declaration and guarantee of the Second Amendment were made. It must be
interpreted and applied with that end in view.", to support their contention
that the Second Amendment must be interpreted and applied with the end, and
purpose, of maintaining a government regulated militia, which is now the
modern National Guard; hence, per this view, absence membership in the
National Guard, and absence activity that is an official National Guard
activity, no one has an individual right to arms. I reject this view as
being non-meritorious for several reasons. One reason is this. One of the
key qualifiers in these two sentences, in context, is the qualifier "of such
forces." What did the Court mean by "of such forces." I submit that they
meant forces that are not employed by the government, forces that supply
their own privately owned firearms. Both of these qualities exclude the
National Guard.] . . . 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. . . . [The writings, history and legislation of the time] show
plainly enough that the Militia comprised all males physically capable of
acting in concert for the common defense. 'A body of citizens enrolled for
military discipline.' And further, that ordinarily when called for service
these men were expected to appear bearing arms supplied by themselves and of
the kind in common use at the time. [Wham! Here we have the basis for the
important qualifier "such forces". It is inconceivable and illogical that
armed citizens have no individual right to arms if and when, for decades,
they "were expected to appear bearing arms supplied by themselves . . . ."]
. . . 'Men of republican principles have been jealous of a standing army
as dangerous to liberty.' 'In a militia, the character of the laborer,
artificer or tradesman, predominates over that of the soldier: in a standing
army, that of the soldier predominates over every other character; and in
this distinction seems to consists the essential difference between those
two different species of military force.' [Yes! The militia is the Peoples'
Army, not corrupted by a government pay check. The Armed Forces, the
National Guard, the Reserves and Law Enforcement are all forms of the
Government's Army, with the people being at risk of that army being used by
Government as an oppressive tool to subjugate the people; hence, by the
Second Amendment, the Framers and Ratifiers intended to ensure the people,
not the States, that the people would have a legally enforceable right to
arms which shall not be infringed under any pretext.] . . . 'In all the
colonies, as in England, the militia system was based on the principle of
the assize of arms. This implied the general obligation of all adult male
inhabitants to possess arms, and, with certain exceptions, to cooperate in
the work of defense.' . . . Most if not all of the States have adopted
provisions touching the right to keep and bear arms. Differences in the
language employed in these have naturally led to somewhat variant
conclusions concerning the scope of the right guaranteed. But none of them
seem to afford any material support for the challenged ruling of the court
below. [Here, the Court was indicating that it did not unconditionally
accept the lower court's ruling nor the arguments of the U.S. attorney.] . .
. We are unable to accept the conclusion of the court below and the
challenged judgment must be reversed. The cause will be remanded for further
proceedings. [The U.S. Supreme Court was unable to accept the lower court's
ruling only because of the absence of any evidence about whether short
barrel shot guns had any modern use by then current military units or could
be of any use to the preservation and effectiveness of a militia--which is
composed of individuals who are not primarily soldiers and who supply their
own arms; therefore, the Court reversed and remanded with instructions for
the lower court to conduct a further evidentiary hearing on the specified
pivotal factual issue.]
West Virginia State Board of Education v. Barnette (1943) 319 U.S. 624
- Factual Summary: In a First Amendment context, involved a dispute that
raised this issue: Can government constitutionally charge a citizen a fee as
a precondition for the exercise of a constitutional right?
- Court's Ruling: No. The court held:
The tax imposed . . . is a flat license tax, the payment of which is a
condition of the exercise of these constitutional privileges. The power to
tax the exercise of a privilege is the power to control or suppress its
enjoyment. . . . Those who can tax the exercise of this religious practice
can make it so costly as to deprive it of the resources necessary for its
maintenance. . . . It is a license tax--a flat tax imposed on the exercise
of a privilege granted by the Bill of Rights. A state may not impose a
charge for the enjoyment of a right granted by the federal constitution. .
. . a person cannot be compelled 'to purchase, through a license fee or a
license tax, the privilege freely granted by the constitution.' [Emphasis
Mancus' Remarks: Prior restraint CCW permit application laws purport to
charge one hundred dollars or more just to find out if the issuing authority
will issue such a permit. No one should have to pay money--any amount--to
Civil Authority, as a precondition for the exercise of a constitutional
privilege. Such a requirement is calculated to discourage citizens from even
applying for CCW permits and to improperly raise revenue for Civil
Follett v. Town of McCormick, S.C. (1944) 321 U.S. 573
- Factual Summary: Involved a school dispute.
- Court's Ruling: The majority said:
The very purpose of a Bill of Rights was to withdraw certain subjects from
the vicissitudes of political controversy, to place them beyond the reach of
majorities and officials and to establish them as legal principles to be
applied by the courts. One's right to life, liberty, and property, to free
speech, a free press, freedom of worship and assembly, and other fundamental
rights may not be submitted to vote; they depend on the outcome of no
elections. . . . the task of translating the majestic generalities of the
Bill of Rights, conceived as part of the pattern of liberal government in
the eighteenth century, into concrete restraints on officials dealing with
the problems of the twentieth century, is one to disturb self-confidence.
These principles grew in soil which also produced a philosophy that the
individual was the center of society, that his liberty was attainable
through mere absence of governmental restraints, and that government should
be entrusted with few controls and only the mildest supervision over men's
affairs. We must transplant these rights to a soil in which the
laissez-faire concept or principles of non- interference has withered at
least as to economic affairs, and social advancements are increasingly
sought through closer integration of society and through expanded and
strengthened governmental controls. These changed conditions often deprive
precedents of reliability and cast us more than we would choose upon our own
judgment. . . . we act in these matters not by authority of our competence
but for force of our commissions. We cannot, because of modest estimates of
our competence . . ., withhold the judgment that history authenticates as
the function of this Court when liberty is infringed. [Emphasis added.]
A concurring justice said:
No well-ordered society can leave to the individuals an absolute right to
make final decisions, unassailable by the State, as to everything they will
or will not do. [One's beliefs] honestly held, do not free individuals from
responsibility to conduct themselves obediently to laws which are either
imperatively necessary to protect society as a whole from and pressingly
imminent dangers . . . . [Emphasis added.]
- Mancus' Remarks: Again, the Court seems to be trying to have it both ways:
first, rights are inviolate and off limits, but second, they are at the
mercy of what they [judicial despots] declare is the nature and scope of
those rights; hence, no rights are absolute and all rights must yield per
their judgment as to what is "necessary to protect society as a whole".
Hence, this is a classic judicial apology for Civil Authority slipping its
Constitutional collar so that Civil Authority is no longer bound by the
chains of the Constitution. Hence, it is naive and imprudent to place
blind faith in the U.S. Supreme Court as the ultimate, final arbitrator and
protector of human liberty.
Reid v. Covert (1957) 354 U.S. 1
- Factual Summary: In a First Amendment context, involved another dispute
that raised this issue: Can government constitutionally charge a citizen a
fee as a precondition for the exercise of a constitutional right?
- Court's Ruling: No. The majority said:
Freedom . . . is not . . . reserved for those with a long purse. . . .
Whether needy or affluent, [citizens have a right to exercise a
constitutional right without paying money to do so first.] . . . 'the power
to tax the exercise of a privilege is the power to control or suppress its
A concurring justice said:
It is wise to remember that the taxing and licensing power is a dangerous
and potent weapon which, in the hands of unscrupulous or bigoted men, could
be used to suppress freedoms and destroy religion unless it is kept within
- Mancus' Remarks: Gun Prohibitionists, however, routinely seek to impose a
1,000% tax on a box of ammunition!
Cooper v. Aaron (1958) 358 U.S. 1
- Factual Summary: A lady, a civilian, killed her husband, a U.S. Air Force
sergeant, at an airbase in England. She was tried by court-martial, and was
found guilty. This case raised questions about the role of the military in
our system of government.
- Court's Ruling: The military lacked the authority to try this lady by
court-martial. The majority said:
The concept that the Bill of Rights and other constitutional protections
against arbitrary government are inoperative when they become inconvenient
or when expediency dictates otherwise is a very dangerous doctrine and if
allowed to flourish would destroy the benefit of a written Constitution and
undermine the basis of our government. . . . . It is urged that the
expansion of military jurisdiction over civilians claimed here is only
slight, and that the practical necessity for it is very great. The attitude
appears to be that a slight encroachment on the Bill of Rights and other
safeguards in the Constitution need cause little concern. But to hold that
these wives could be tried by the military would be a tempting precedent.
Slight encroachments create new boundaries from which legions of power can
seek new territory to capture. 'It may be that it is the obnoxious thing in
its mildest and least repulsive form; but illegitimate and unconstitutional
practices get their first footing in that way, namely, by silent approaches
and slight deviations from legal modes of procedure. This can only be
obviated by adhering to the rule that constitutional provisions for the
security of person and property should be liberally construed. A close and
literal construction deprives them of half their efficacy, and leads to
gradual depreciation of the right, as if it consisted more in sound than in
substance. It is the duty of courts to be watchful for the constitutional
rights of the citizen, and against any stealthy encroachments thereon.'
- Mancus' Remarks: I love this excerpt. I only wish the U.S. Supreme Court,
and other judges, had a demonstrated patter of honoring their "duty . . . to
be watchful for the constitutional rights of the citizen, and against any
stealthy encroachments thereon." If the judges had already done their job, I
would not have to write this letter to you.
Since the U.S. Supreme Court has clearly stated that it is your duty to
protect my rights "against any stealthy encroachments thereon," I submit
that it is your duty to release me from this jury summons.
Griswold v. State of Conn. (1965) 381 U.S. 479
- Factual Summary: This was a school desegregation case which raised issues
regarding how to maintain our federal system of government. A state governor
and a state legislature opposed to desegregation claimed that state
officials do not have a duty to obey federal court orders based on the U.S.
Supreme Court's interpretation of the Constitution.
- Court's Ruling: That claim is non-meritorious; state officials cannot
assert their own good faith as a legal excuse for not respecting the
constitutional rights of fellow citizens; the constitutional rights of
citizens shall not be sacrificed to violence and disorder caused by state
officials; the preservation of public peace cannot be accomplished by laws
or ordinances which deny rights created or protected by the federal
Constitution; the Fourteenth Amendment's guarantee of equal protection of
the laws applies to all state action in whatever guise it may take; state
laws may not nullify indirectly constitutional rights by evasive scheme; the
federal constitution is the supreme law of the land; every state legislator,
executive and judicial officer is solemnly committed by oath to support that
Constitution; no such officer "can war against the Constitution;" if they
could, "the constitution itself becomes a solemn mockery;" states must
exercise their responsibilities consistent with the commands of the federal
constitution, which is "our fundamental charter for all of us."
- Mancus' Remarks: The U.S. Supreme Court hit a grand slam with this one.
Ironically, many proponents of school desegregation are also Gun
Prohibitionists and Gun Prohibitionists, as a generalization, lack
Miranda v. Arizona (1966) 384 U.S. 436, 491
- Factual Summary: Griswold, a licensed M.D., a Yale Medical School
professor and the executive director of a birth control, planned parenthood
clinic, was charged with violating a state statute against distributing
contraceptive information to married persons. Griswold defended on grounds
of freedom of speech, rights to privacy, and denial of due process.
- Court's Ruling: Reversed.
- Mancus' Remarks: This case is landmark: it is the case that declared that
there are "penumbra" rights within the orbit of the specific rights declared
in the Bill of Rights and that the rights declared in the Bill are not
exhaustive. The majority said:
The foregoing cases suggest that specific guarantees in the Bill of Rights
have penumbras, formed by emanations from those guarantees that help give
them life and substance. . . . Various guarantees create a zone of privacy. .
. . We deal with a right of privacy older than the Bill of Rights--older
than our political parties, older than our school system. [Emphasis added.]
Three concurring judges, in the same concurring opinion, said:
. . . the Framers did not intend that the first eight amendments to be
construed to exhaust the basic and fundamental rights which the Constitution
guaranteed to the people. . . . [Emphasis added.]
Gun Prohibitionists insist that the Second Amendment is not a "fundamental
right;" therefore, it is not incorporated by the Fourteenth Amendment
against the States. They fail to explain, however, how they get around this
reality: Is it not impossible to exercise any right already deemed to be
"fundamental" if one is murdered by a criminal? Hence, why is it not a
"fundamental" right to defend one's life with a gun without Civil
Authority's permission being required?
Justices Black and Stewart, dissenting, in the following passage,
incisively discussed the dangers of the plasticity of words and language
coupled with the willingness of some judges to deviate from the text and
make a substitution of a different word.
One of the most effective ways of diluting or expanding a constitutionally
guaranteed right is to substitute for the crucial word or words of a
constitutional guarantee another word or words, more or less flexible and
more or less restricted in meaning. This fact is well illustrated by the use
of the term 'right of privacy' as a comprehensive substitute for the Fourth
Amendment's guarantee against 'unreasonable searches and seizures.'
'Privacy' is a broad, abstract and ambiguous concept which can easily be
shrunken in meaning but which can also, on the other hand, easily be
interpreted as a constitutional ban against many things other than searches
and seizures. I have expressed the view many times that First Amendment
freedoms, for example, have suffered from a failure of the courts to stick
to the simple language of the First Amendment in construing it, instead of
invoking multitudes of words substituted for those the Framers used.
I contend that the Second, Fourth and Ninth Amendments contain the
penumbra individual right to carry a firearms for lawful self-defense in a
public place without Civil Authority's knowledge and/or approval being
Haynes v. United States (1968) 390 U.S. 85
- Factual Summary: Case dealt with the legal admissibility of a criminal
defendant's confession, and the restraints society must observe consistent
with the Federal Constitution in prosecuting criminal defendants.
- Court's Ruling: This is the famous case that triggered the now common
- Mancus' Remarks: This court, to its credit, went out of its way to uphold
the Fifth Amendment's privilege against self-incrimination. The Founders,
Framers and Ratifers would be pleased.
Throughout its decision, the court discussed the need, and the duty, of
judges to protect "precious rights" against "official overbearing" and the
"exercise of arbitrary power." It referred to "the impregnability of a
constitutional enactment." It stressed that it is "the obligation of the
judiciary to apply these constitutional rights."
This court, at page 459, in reference to "lofty principles" against
arbitrary rule, said:
These sentiments worked their way over to the Colonies and were implanted
after great struggle into the Bill of Rights. Those who framed our
Constitution and the Bill of Rights were ever aware of subtle encroachments
on individual liberty. They knew that 'illegitimate and unconstitutional
practices get their first footing by silent approaches and slight deviations
from legal modes of procedure.' . . . The [Fifth Amendment] privilege was
elevated to constitutional status and has always been 'as broad as the
mischief against which it seeks to guard.' . . . We cannot depart from this
noble heritage. . . . In this Court, the privilege has consistently been
accorded a liberal construction. [Emphasis added.]
At page 467, this court said:
"We encourage Congress and the States to
continue their laudable search for increasingly effective ways of protecting
the rights of the individual while promoting efficient enforcement of our
criminal laws." [Emphasis added.]
At page 490, the Court hit a grand slam:
As courts have been presented with the need to enforce constitutional
rights, they have found means of doing so. That was our responsibility a . .
. and it is our responsibility today. Where rights secured by the
Constitution are involved, there can be no rule making or legislation which
would abrogate them. [Emphasis added.]
A large percentage of the armed citizenry is waiting for the judiciary to
issue a decision totally consistent with these sentiments in terms of the
U.S. v. Jackson (1968) 390 U.S. 570
- Factual Summary: A convicted felon caught in possession of a firearm was
prosecuted for failing to register the gun with Civil Authority. The felon
defended on the grounds that since he was a convicted felon barred from
being in possession of a gun he had a Fifth Amendment privilege against
self-incrimination not to register the gun.
- Court's Ruling: The U.S. Supreme Court agreed with the felon's contention.
It held that the felon's privilege against self-incrimination is a valid
defense to prosecution for violation of a statute requiring registration of
the firearm he had in his possession.
- Mancus' Remarks: The Haynes decision is correct. However, it appears that
the notion that a convicted felon automatically loses all rights guaranteed
by the Bill of Rights is suspect. Here, we had a convicted felon who, it is
said, could no longer be in possession of a firearm because he is a
convicted felon, and, as such, he forfeited his Second Amendment rights,
yet, he still somehow gets to retain his Fifth Amendment right against
self-incrimination. The result seems somewhat incongruous--lose one right
under the Bill but keep another!
This result also means that in a very real way, convicted felons have
greater rights than citizens with squeaky clean criminal records: convicted
felons have a privilege against self-incrimination to not register a
firearm but a squeaky clean citizen who wants to carry a firearm for lawful
self-defense in a public place to defend against an attack by a convicted
felon, or others, must first waive privacy, and register himself and his gun
with a police chief or a sheriff. This result is extraordinarily hard to
swallow--especially when the CCW issuing authority will not issue such
permits and will arrest you if you get pinched carrying a gun for lawful
self-defense without such a permit.
Gardner v. Broderick (1968) 392 U.S. 273
- Factual Summary: Involved a dispute over the waiver of a jury trial.
- Court's Ruling: The U.S. Supreme Court refused to sanction the waiver.
- Mancus' Remarks: Here are some great excerpts from this decision:
Whatever might be said of Congress' objectives, they cannot be pursued by
means that needlessly chill the exercise of basic constitutional rights. . .
. Congress cannot impose . . . a penalty . . . in a manner that needlessly
penalizes the assertion of a constitutional right. . . . A procedure need
not be inherently coercive in order that it be held to impose an
impermissible burden upon the assertion of a constitutional right. [Emphasis
California's CCW permit application form, and the subsequent steps,
hurdles, time and costs associated with getting a CCW permit, are an
emphateic needless chill of the basis right of lawful self-defense with a
Watts v. U.S. (1969) 394 U.S. 705
- Factual Summary: A NYC patrolman sued his ex-employer, claiming that he
was unlawfully dismissed because he refused to waive his Fifth Amendment
privilege against self- incrimination.
- Court's Ruling: This cop could not be lawfully fired merely because he
refused to waive his Fifth Amendment rights; government cannot put
preconditions on the exercise of Constitutional rights. Government cannot
confront citizens with a Hobson's choice and force them to choose which end
of the horn they want to be gored with.
- Mancus' Remarks: By analogy, Civil Authority's prior restraint CCW permit
application procedures an a frank, unconsitutional precondition on the
exercise of a vital Constitutional rights.
Galvan v. Superior Court (1969) 70 Cal.2d 851
- Factual Summary: A person was charged for violating a law that made it
illegal to knowingly and willfully make any threat to kill or inflict bodily
harm on the President of the United States. The man said, ". . . If they
ever make me carry a rifle the first man I want to get in my sights is
L.B.J. They are not going to make me kill my black brothers." A jury found
the man guilty of the felony of knowingly and willfully threatening the
- Court's Ruling: Reversed. The U.S. Supreme Court reasoned as follows: This
man made his statement during a political debate and it was expressly made
conditional upon an event--induction into the military; the government has
the burden of proving a true, unconditional, threat; and our nation has "a
profound national commitment to the principle that debate on public issues
should be uninhibited, robust, and wide open, and that it may well include
vehement, caustic, and sometimes unpleasantly sharp attacks on government
and public officials."
- Mancus' Remarks: This case is more evidence that
judges generally like the First Amendment and are willing to tolerate rather
extreme exercise of First Amendment rights. Again, it is unfortunate that
judges have generally kept faith with the Framers as to the First but have
not kept the faith as to the Second.
U.S. v. Freed (1971) 401 U.S. 601
- Factual Summary: San Francisco in 1968 passed a local ordinance that
required the registration of all firearms within that city, with certain
exceptions, and penalized the mere possession of an un-registered firearm. John
Galvan, a resident, taxpayer and firearm owner in San Francisco filed a
petition that challenged this ordinance. Mr. Galvan contended this ordinance
was void because it violated his Second Amendment right to keep and bear
arms, it violated his Fifth Amendment privilege against self-incrimination,
it violated his Fourthteenth Amendment right to due process of law, and the
ordinance conflicted with the state's laws regulating firearms, which
preempted San Francisco's ability to regulate in this area. The California
Supreme Court, in an unanimous decision, rejected all of Mr. Galvan's
- Court's Ruling: San Francisco's ordinance is a valid exercise of local
police power; it was not preempted by state laws concerning firearms; it did
not violate any provision of the United States or California Constitutions;
it did not impose an undue burden; urban areas have a legitimate need to
regulate firearms more heavily than rural areas; the wisdom of legislation
is beyond the competence of the court; for a court to invalidate legislation
based on the usefulness or desirability of the law, the law must be not only
unwise but unrelated to any legitimate governmental basis; and the powers
conferred on the police chief are not arbitrary or excessive. The Court
held, "The claim that legislation regulating weapons violates the Second
Amendment has been rejected by every court which has ruled on the question.
. . .It is long since settled in this state that regulation of firearms is a
proper police function."
- Mancus' Remarks: Historically, The Tyrant's Pattern has always been this:
Demonize firearms and all those who own them who are not on the Tyrant's
payroll; whip up a public frenzy against firearms and their owners; demand
the registration of firearms and their owners while assuring the public
that registration is not the forerunner of confiscation; ban all firearms;
confiscate all firearms; once the pragmatic ability to resist an
insufferable abuse of power--a widespread, armed citizenry, has been
de-fanged, consolidate power by harshly eliminating all opposition or
potential opposition; impose total control; and finally, genocide.
Hitler manifested this pattern from the late 1930's to his demise in 1945.
Entire forests have been eliminated to publish books, magazines, etc., about
Hitler's version of The Tyrant's Pattern and the Holocaust. But only 24
years after the Allies, at great expense in national wealth and human life
and staggering sacrifices, defeated Hitler, the California Supreme Court, in
an unanimous decision, in a non-persuasive manner, interpreted away the
Second Amendment, with little, if any, convincing legal analysis. The
California Supreme Court engaged in "string cite" [cited a long list of
cases without any legal analysis,] and found that nothing in the U.S. nor
the California Constitutions bars the registration of all firearms in a
central, government controlled database!
Such registration is a necessary prerequisite for Tyranny and Genocide. But
the California Supreme Court, which is supposed to be a major legal bulwark
tasked with safeguarding the peoples' liberty, unanimously sanctioned this
ordinance! This Court reduce the Second Amendment to a dirt clod and smashed
it as if the Court were a 50 ton tank at full speed. In effect, this Court
held that it is good public policy to erode Liberty to make it easier for a
tyrant to disarm the people by coercing all armed citizens to register their
guns and themselves into a central, government maintained, data base.
Has registration of cars and drivers reduced highway carnage?
This firearm and firearm owner data base is not an effective crime control
measure. It is a people control measure--an alarming one.
To reach this disturbing result, the Court manifested its wordsmith skills.
The Court drew questionable distinctions between registration and licensing
and among permit, license and certificate of ownership. The Court gave its
blessings to this ordinance's requirement that each owner of a firearm in
San Francisco, in order to continue to lawfully possess a firearm in San
Francisco, must waive privacy, fill out an extensive form, show the firearm
to the police, and pay the police money in order to get a "certificate of
ownership" from the chief, even in the absence of any dispute as to who
owned what! This form carried Hitler's imprint. This form, in effect, gave
Civil Authority all the information it needed to round up responsible
firearm owners in that city-- to confiscate their guns and to incarcerate
and/or murder them. The Court held that this ordinance was a registration
law, not a licensing law [as if there is any material difference!,] and the
State of California had not preempted such a registration law. At page 860,
the Court said, "the Legislature has expressly prohibited requiring a
license to keep a concealable weapon at a residence or a place of business."
But it got around that by characterizing this ordinance as a registration
If my recall of history is accurate, Martin Luther King and Bobby Kennedy
were both assassinated in the late 1960's, before Galvan was decided. The
Court probably would have decided the same way but if these two prominent
figures were killed before Galvan was decided, those deaths probably weighed
heavily on the judges' minds. Nevertheless, judges are supposed to be
objective, analytical and immune to public pressure and the passions of the
I was disgusted with my profession when I first read Galvan. That initial
response has gotten worse with time.
I give these judges a "F."
City of Las Vegas v. Moberg (1971) 485 P.2d 737
- Factual Summary: Intentionally omitted.
- Court's Ruling: A federal law requiring registration of firearms and those
who own them, including photographing and fingerprinting the firearm owner,
- Mancus' Remarks: Consistent with my remarks about Galvan.
City of Lakewood v. Pillow (1972) 501 P.2d 744
- Factual Summary: A man wearing a holstered pistol, in violation of a local
ordinance which prohibited the open or concealed carry of any deadly weapon,
entered a police station to report an automobile theft. He was arrested and
- Court's Ruling: The New Mexico Court of Appeals held that ordinances that
prohibit the carrying of deadly weapons are a proper exercise of the police
power; however, an ordinance that purports to completely prohibit the "right
to bear arms" is overbroad and to that extent void.
- Mancus' Remarks: This is another "mixed result" case that, at root, is
essentially still an unconstitutional infringement.
Antique Arts Corp. v. City of Torrance (1974) 39 Cal.App.3d 588
- Factual Summary: Involved a city ordinance that prohibited carrying or
possessing any handgun with these exceptions: within one's own home, trael
to and from any range, gallery or hunting areas, people licensed by the city
to carry and law enforcement.
- Court's Ruling: The Colorado Supreme Court overturned this ordinance on
the grounds that it was "so general in its scope that it includes within its
prohibitions the right to carry on certain businesses and to engage in
certain activities which cannot under the police powers be reasonably
classified as unlawful . . . . Furthermore, it makes it unlawful for a
person to possess a firearm in a vehicle or a place of business for the
purpose of self-defense. Several of these activities are constitutionally
This court also said this about the "police power":
A governmental purpose to control or prevent certain activities, which may
be constitutionally subject to state or municipal regulation under the
police power, may not be achieved by means which sweep unnecessarily broadly
and thereby invade the area of protected freedoms . . . . Even though the
governmental purpose may be legitimate and substantial, that purpose cannot
be pursued by means that broadly stifle fundamental personal liberties when
the end can be more narrowly achieved. [Emphasis added.]
- Mancus' Remarks: This is another "mixed result", equivocate, interpret
away the Second Amendment right, type case.
Hartzler v. City of San Jose (1975) 46 Cal.App.3d 6
- Factual Summary: During the course of a robbery, a silent burglar alarm on
the premises being robbed sent an alert message to the local police
department. The city was sued on the theory that since its police department
accepted that method of receiving notice that a crime was in progress that a
special relationship was created between the victim and the police, that the
police owed the victim a heightened duty as a result of that special
relationship and the police dispatcher was negligent in broadcasting a
dispatch message to officers to protect the victim.
- Court's Ruling: Per Govt. Code Section 845, a public entity is not
required to provide police protection. The Court, at pages 592-593, held,
"The statutory scheme employed makes it clear that failure to provide
adequate police protection will not result in governmental liability . . .,
nor will a public entity be liable for failure to arrest a person who is
violating the law. . . . The statutory scheme shows legitimate intent to
immunize the police function from tort liability."
- Mancus' Remarks: He who relies on law enforcement for protection is a
fool. A $200.00 .38 Special in good working condition, if you know how to
use it, and it is readily available, without a trigger lock, is superior to
a $600.00 cell phone and a Dial 911 and Die
call. That gun, the one that law
enforcement does not want you to carry, depending on how old you are, could
add 60 years to your life and save you money, pain and grief. Read attorney
Richard W. Stevens' Dial 911 and Die: The Shocking Truth About the Police
Protection Myth, ISBN 0- 9642304-4-5. To order a copy of this book, check
Commonwealth v. Davis (1976) 343 N.E.2d 847
- Factual Summary: Ruth Bunnel did exactly what the police told her to do.
She relied on them and Dial 911 for protection. She woke up on September 4,
1972 not knowing that she would not see the sun set. On that day, she
telephoned the main office of the San Jose Police Department and reported
that her estranged husband had called her and threatened that he was coming
to her residence to kill her. Ruth requested immediate police aid. The
police refused to come at that time and told her to call them again when
her estranged husband arrived. About 45 minutes later, her estranged husband
arrived and stabbed her to death. A neighbor then called the police who
showed up to be chalk line drawers and body taggers.
- Court's Ruling: ". . . we must conclude that the police department enjoys
absolute, not merely discretionary, immunity. . . . Absent an indication
that the police had induced decedent's reliance on a promise, express or
implied, that they would provide her with protection, it must be concluded
that no special relationship existed and that appellant has not stated a
cause of action."
- Mancus' Remarks: Ruth made fatal mistakes-she abdicated responsibility for
protecting her life to the police, she trusted Dial 911, and she did not
keep a good handgun available for ready self-defense.
The jury summons I received, with its stated Court Security Measures,
implies that if I comply with those measures, Civil Authority will protect
me. But I do not believe it. I also am not aware of any credible measures
that Civil Authority has taken, or will taken, to protect me. I simply
refuse to allow myself to be caught up in this snafu that is calculated to
strip me of my rights and convert me into prey.
Salute v. Pitchess (1976) 61 Cal.App.3d 557
- Factual Summary: A man was convicted of possessing a short-barreled
shotgun. He appealed on the grounds that he was convicted in violation of
his Second Amendment rights.
- Court's Ruling: The Massachusetts Supreme Judicial Court held that the
Second Amendment and the state constitution do not protect an individual
right to arms. This court also said, "A law forbidding the keeping by
individuals of arms that were used in the militia service might then have
interfered with the effectiveness of the militia and thus offended the art.
17 right. But that situation no longer exists; our militia, of which the
backbone is the National Guard, is now equipped and supported by public
- Mancus' Remarks: Wow! Did you pick up on all the wordsmith games in that
Massachusetts was the home of the Minutemen of the late 1700's who "fired
the shot heard 'round the world," but on the Bicentennial of the Declaration
of Independence, these judges ruled that no individual right to arms existed!
These judges also showed no awareness of, and no concern for, the Framers'
intent to keep the government in check by providing "the people" with a
legally enforceable right to arms. With scant analysis, if any, these judges
switched "National Guard" for "militia" and, as a result, interpreted
away the Second Amendment.
Ted Kennedy would be proud.
Moncur v. City of Los Angeles (1977) 68 Cal.App.3d 118
- Factual Summary: The L.A. County Sheriff had a policy to not issue CCW
permits to anyone except to judges who expressed concern for their personal
safety. Salute, a licensed attorney and private investigator, applied for a
CCW permit and was turned down. The sheriff refused to even consider
Salute's application because the sheriff's policy was to issue to no one
except judges. Salute contended that he was a person of good moral
character. The sheriff admitted that he made no inquiry about Salute's
character nor good cause for the issuance of a CCW permit.
- Court's Ruling: "To determine, in advance, as a uniform rule, that only
selected public officials can show good cause is to refuse to consider the
existence of good cause on the part of citizens generally and is an abuse
of, and not an exercise of, discretion. . . . It is the duty of the sheriff
to make such an investigation and determination, on an individual basis, on
every application under section 12050."
- Mancus' Remarks: In the year 2000, 24 years after Salute had been on the
books, I went to the Sebastopol Police Department to request a CCW permit
application form. A female employee told me the department did not have any
because Sebastopol Police Chief Gordon Pitter had already made up his mind
that he was not going to issue a CCW permit to anyone; therefore, there was
no point in keeping the application form on the premises! This lady, in
context, confirmed that Sebastopol Police Chief Gordon Pitter was a law
violator who was violating even California's unconstitutional, prior
restraint, CCW law! When this lady told me this, I asked her if that was
Chief Pitter in the background, behind bullet proof glass, with a semi- auto
on his hip, in his dark blue uniform, with 6-8 gold stars on his collar. She
said yes. I asked her to please tell Chief Pitter that attorney Peter J.
Mancus of Sebastopol wanted to talk to him immediately about what this lady
said. This lady talked to the Chief and returned and explained that the
Chief would not come to the counter to talk to me. I then told this lady to
please tell the Chief that he flirted with buying a lawsuit and to please
come to the counter. This lady again talked to the Chief and again returned
and explained that the Chief would not come to the counter.
When I find a client who is willing to work with me to remedy this
situation, I will sue Sebastopol Police Chief Gordon Pitter in his official
and individual capacity and the City of Sebastopol for failing to get this
arrogant, rude, public servant, under control, or, in the alternative, for
failing to fire him.
Per Penal Code 12050, the California Legislature has impliedly decided
that at least some people should get a CCW permit, and 24 years ago this
court rendered its published decision, which Chief Gordon Pitter is charged
with knowing by force of law. Yet, this bureaucrat bully would not even
manifest the common decency to confer with me at the counter, even after I
asked in a civilized manner that he do so twice.
Application of Atkinson (1980) 291 N.W.2d 396
- Factual Summary: A bomb exploded in an airline terminal at an airport,
killing and injuring people. The city and the airport commission were sued
for failure to take adequate precautions in restricting access to rental
lockers in the terminal, where the bomb detonated. The plaintiffs claimed
that the police failed to provide sufficient protection in the form of
patrols or surveillance in the common areas of the terminal.
- Court's Ruling: Held in favor of the city, citing Govt. Code 845, 846.
At page 125, the Court said, ". . . although one may be able to foresee the
likelihood of aberrant behavior in these turbulent times and perhaps divine
with reasonable success the general behavioral form which it will take, the
precise means which a deranged person or a fanatic will employ is based
upon too many variables for accurate prediction."
- Mancus' Remarks: This is another example of a strong, consistent message
the courts continue to send: The police have no duty to protect, and no one
can predict accurately nor reliably when nor how a wacko will act
criminally. Yet, law enforcement and the same judges encourage the public to
rely on the myth of Dial 911 and somehow be saved.
Stop and think about many things must fall into place for a Dial 911
call to be an adequate remedy. For example: Is a phone immediately
available? Is it in working condition?
Can you get to it in time before the assailant gets to you? [I could break
this down into about 60 more steps before the police arrive to provide
State v. Kessler (1980) 289 Or. 359
- Factual Summary: Befire 1975, Minnesota did not require a CCW permit nor
did it find it necessary to restrict the carry of arms by ordinary citizens
in public places. Atkinson applied for a CCW permit to continue his
pre-1975 practice of carrying a loaded pistol in his car while on public
roads. A police chief rejected his application on the grounds that Atkinson
did not demonstrate a "personal safety hazard" and, therefore, lacked a good
reason for a CCW permit. Atkinson appealed and his appeal worked its way to
Minnesota's Supreme Court.
- Court's Ruling: The Second Amendment is not
binding on the states and did not even protect individuals against the
federal government. Instead, the Second Amendment guarantees only a
collective right of the people to have arms but only when they serve in the
- Mancus' Remarks: This decision would cause the Framers and Ratifiers to
Thompson v. County of Alameda (1980) 27 Cal.3d 741
- Factual Summary: A man was convicted in a non-jury trial for possessing a
"slugging weapon." He appealed, arguing that the statute under which he was
convicted violated hiss right to possess arms in his home for personal
- Court's Ruling: The Oregon Supreme Court posed three questions: To whom
does the right to arms belong?; what is the meaning of "defense of
themselves"?; and what is the meaning of "arms" and what, if any, weapons of
current usage are included in the term "arms"? The court, after a lengthy
review of the history surrounding the Second Amendment, ruled that the
Second Amendment had not yet been held to apply to the states and that since
the "revolutionary war era ended at a time when the rapid social and
economic changes of the so-called Industrial Revolution began," the Framers
and Ratifiers never intended that "advanced weapons of modern warfare" be
"for personal possession and protection." This court said:
The development of powerful explosives in the mid-nineteenth century,
combined with the development of mass-produced metal parts, made possible
the automatic weapons, explosives, and chemicals of modern warfare . . . .
These advanced weapons of modern warfare have never been intended for
personal possession and protection. When the constitutional drafters
referred to an individual's "right to bear arms," the arms used by the
militia and for personal protection were basically the same weapons. Modern
weapons used exclusively by the military are not "arms" which are commonly
possessed by individuals for defense, therefore, the term "arms" in the
constitution does not include such weapons.
- Mancus' Remarks: First, the Framers were well read, learned, worldly men.
Presumably, they had actual knowledge that in 1663 an inventor had presented
a paper to the Royal Society describing a semiautomatic firearm and that in
1718 another inventor obtained a patent for a gun with many similarities to
the Gatling gun. Second, judges are suppose to construe rights broadly, not
narrowly. Third, is the First Amendment limited to the quill? If so,
telephones, movies, computers, the Internet, etc., do not enjoy First
Amendment protection. Fourth, civilians are being set up to lose an arms
race with their armed forces and law enforcement, which is exactly the kind
of mischievousness the Second was intended to prevent.
Doe v. City And County of San Francisco (1982) 136 Cal.App.3d 509
- Factual Summary: Juvenile authorities released a minor known to them to
have "latent, extremely dangerous and violent propensities regarding young
children and that sexual assaults upon young children and violence connected
therewith were a likely result of releasing [him] into the community." These
authorities also knew that this minor had "indicated that he would, if
released, take the life of a young child residing in the neighborhood." The
authorities released this minor to his mother's custody without advising or
warning anyone in the area, including police. Within 24 hours, this minor
murdered a law-abiding juvenile. The authorities were sued for their
conduct. The court ruled in favor of the juvenile authorities.
- Court's Ruling: The authorities had absolute discretional immunity. The
By their very nature parole and probation decisions are inherently
imprecise. . . . parole and release nonetheless comprise an integral and
continuing part in our correctional system authorized by the Legislature,
serving the public by rehabilitating substantial numbers of offenders and
returning them to a productive position in society. The result . . . is that
"each member of the general public who chances to come into contact with a
parolee bear[s] the risk that the rehabilitative effort will fail. . . ." .
. . . Bearing in mind the ever present danger of parole violations, we
nonetheless conclude that public entities and employees have no affirmative
duty to warn of the release of an inmate with a violent history who has made
nonspecific threats of harm directed at nonspecific victims. . . .the
Legislature has nonetheless as a matter of public policy elected to continue
those programs even though such risks must be borne by the public. . . . .
Despite the tragic events underlying the present complaint, plaintiff's
decedent was not a known, identifiable victim, but rather a member of a
large amorphous public group of potential targets. Under these
circumstances we hold that County had no affirmative duty to warn
plaintiffs, the police, the mother of the juvenile offender, or other local
parents." [Emphasis added.]
- Mancus' Remarks: Apparently, judges are comfortable with this analysis: It
is okay to reduce citizens to subjects and to reduce them further to
potential targets. And they do this while they enjoy CCW permits and armed
Is any thinking citizen comfortable with being reduced to a member "of a
large amorphous public group of potential targets."?
The courts have made it clear that the authorities are releasing monsters
in little bodies and adult bodies back into civilized society. Since they
have no duty to warn us of that fact and no duty to protect us from these
monsters, I submit that the court's own decisions serve as an excellent
"good cause" statement for the issuance of a CCW permit. If Sebastopol
Police Chief Gordon Pitter and/or Sonoma County Sheriff Jim Piccinni
disagree, they are invited to do the anatomically impossible.
Davidson v. City of Westminister (1982) 32 Cal.3d 197
- Factual Summary: A citizen had the moxie to challenge the validity of a
San Francisco Handgun Ordinance. The citizen did not make a pure Seocnd
Amendment challenge. Instead, the citizen argued that the State of
California had preempted the field and the local ordinance was, therefore,
- Court's Ruling: California's Constitution and statutes did not permit this
- Mancus' Remarks: The court opined, "Handgun control is a volatile issue of
great public importance, invoking complex policy considerations. . . . A
restriction on requiring permits and licenses necessarily implies that
possession is lawful without a permit or license. It strains a reason to
suggest that the state Legislature would prohibit licenses and permits but
allow a ban on possession."
Even though this citizen won, his request for attorney's fees was denied,
which does not encourage citizens to take on city hall.
It is a major mistake to challenge such laws without including a pure
Second Amendment challenge. By omitting such a challenge, one telegraphs
that state laws, no matter how bad, are valid and since they have preempted
the field, you are willing to live with them because you have to live with
them. That is an indirect acquisition to the gutting of the Second.
Second Amendment Foundation v. City of Renton (1983) 668 P.2d 596
- Factual Summary: Police officers, believing a public Laundromat was
dangerous because of recent criminal activity, staked it out for
surveillance. On three prior occasions women had been stabbed at the same
or nearby Laundromats. Officers were on duty, keeping a particular
Laundromat under surveillance, trying to prevent assaults and apprehend a
suspect. These officers knew that one Yolanda was in this Laundromat when a
man who matched their suspect's description, appeared and acted
suspiciously. The officers did not warn Yolanda but continued to observe.
This man stabbed Yolanda who sued the city and the officers for failure to
protect and to warn.
- Court's Ruling: Yolanda's case was thrown out. Reason: The police are a
general deterrent only absent a "special relationship," which did not exist
in this case, and, as a general deterrent, they have no liability for
failure to protect.
- Mancus' Remarks: The result is not surprising. It stresses this
conclusion: it is prudent to carry a firearm for self-protection in reliance
on the Second Amendment as one's permit. Civil Authority forces citizens to
ask these questions: Am I citizen or subject? Am I willing to be intimidated
out of my birthright? Which do I prefer: to be laid to rest prematurely by
six or run the risk of having to face 12 because I exercised my birthright?
Guillory v. Gates (1984) 731 F.2d 1379
- Factual Summary: A local ordinance prohibited the possession of firearms
where alcoholic beverages were dispensed. There was no requirement that a
person be intoxicated or even drinking an alcoholic beverage. One could
violate this ordinance merely by being armed while in a bar.
- Court's Ruling: This ordinance was upheld as a "reasonable regulation."
- Mancus' Remarks: The City of Renton, with the blessings of this court, was
willing to terminate the rights of sober, law-abiding, responsibly armed,
bar patrons, out of fear of what they might do should they consume an
alcoholic beverage. This case is one of many that upholds "reasonable
regulation" of a right guaranteed by the Bill of Rights under the guise of
the exercise of "municipal police power to promote the public safety and
public welfare." No court to date, however, has ever articulated how far a
"reasonable regulation" can go and still be considered "reasonable" and no
court to date has ever attempted to explain how a right can legitimately be
subject to a prior restraint regulation. If something is subject to a prior
restraint, it is a privilege.
Hunter v. Underwood (1985) 471 U.S. 222
- Factual Summary: Unsuccessful applicants [private investigators and a
criminal defense investigator] for a CCW permit sued a sheriff, police
chief, city, county and others in federal court for conspiring to violate
their federally guaranteed civil rights. These plaintiffs argued that these
defendants deprived them of their constitutional rights. The sheriff claimed
the applicants failed to prove that good cause existed for the permit or
that they were of good moral character. The federal trial judge ruled
against the plaintiffs and held that the sheriff's handling of other
applications was irrelevant.
- Court's Ruling: The federal Ninth Circuit Court of Appeals held that the
plaintiffs' complaint started a cause of action under federal civil rights
statute against governmental entities; state statutory immunity provisions
do not apply to federal civil rights actions; a law which is administered so
as to unjustly discriminate between persons similarly situated may deny equal
protection; and the plaintiffs should have been permitted to examine the
sheriff regarding how the sheriff handled the applications of other
- Mancus' Remarks: This decision made me proud to be an attorney. This
decision shows that some judges still remembered and respect "the supremacy
clause." These judges treated Lady Liberty with respect.
Some great passages from the Ninth Circuit's decision are:
"State statutory immunity provisions do not apply to federal civil rights
actions. . . . To construe a federal statute to allow a state immunity
defense 'to have controlling effect would transmute a basic guarantee into
an illusory promise,' which the supremacy clause does not allow." [Emphasis
A decent lawyer can take this decision and ram it, hard, so that an
abusive CCW issuing authority is held accountable.
The plaintiffs should have been allowed to show the jury how the police
chief and sheriff handled permit applications because "this evidence would
establish an inference of arbitrary and capricious applications of section
12050" and that they "were handled differently than those of others, for
no rational reason.";
"The appellants were entitled to place evidence before the jury from
which it might find an equal protection violation. . . . A law that is
administered so as to unjustly discriminate between persons similarly
situated may deny equal protection."; and
"The district court erred by dismissing all original defendants . . . by
granting Gates [sheriff] and Davis [police chief] immunity."!
I look forward to the opportunity to do that.
State v. McAdams (1986) 714 P.2d 1236
- Factual Summary: Involved issues arising from the disenfranchisement of
people convicted of crimes involving moral turpitude.
- Court's Ruling: A law passed out of a motivation to discriminate against
a group of citizens on account of race violates the equal protection of the
law guaranteed by the Fourteenth Amendment.
- Mancus' Remarks: All victim disarmament laws are of racist origins.
Oppressors want their victims to be de-fanged and vulnerable. All of
California's prior restraint victim disarmament laws, therefore, are
constitutionally suspect because the legislative history shows that they
were originally intended to keep minorities disarmed. These laws had to be
converted to race neutral laws, however, to make them less Constitutionally
suspect. As a result, all citizens are now caught up in this problem of
growing proportions because Civil Authority has broken faith with the
CBS, Inc. v. Block (1986) 42 Cal.3d 646
- Factual Summary: A cocktail waitress who carried a knife in a sheath
inside the right breast pocket of her jacket for protection was charged with
the illegal carrying of a deadly weapon. She defended on the ground that she
had a right to carry such a weapon for self-defense; that so long as the
purpose is self-defense the right cannot be restricted; that right existed
when the constitution was adopted and that right cannot now be infringed
upon under the guise of regulation. The trial court granted her motion to
dismiss, and the State of Wyoming appealed.
- Court's Ruling: The Wyoming Supreme Court held that the "constitutional
right to bear arms is subject to the legitimate exercise of the State's
police power.", and it rejected this waitress' contentions. This court held
that constitutions are "not a lifeless nor static instrument, the
interpretation of which is confined to the conditions and outlook prevailing
at the time of its adoption; rather, a constitution is a flexible, vital,
living document, which must be interpreted in light of changing conditions
- Mancus' Remarks: This case brings into sharp focus a major issue in
American constitutional law: Should the Bill of Rights be interpreted based on
the "original intent" of the Framers and Ratifiers or based on "changing
conditions"? Activist judges love the "changing conditions" school of
thought because pursuant to that school they are not inhibited by what the
Framers and Ratifiers intended. Instead, they are at liberty to re-write the
fundamental law per their core values, their judgment, their agenda, and in
the process, interpret away rights and reduce them to privileges which
Civil Authority is free to withhold, pre-condition, charge money for the
exercise of, and punish you for violating their unconstitutional rules which
they call laws.
DeShaney v. Winnebago County Dept. of Social Services (1989) 489 U.S. 189
- Factual Summary: CBS filed a request with the L.A. County Sheriff, Block,
under California's Public Records Act, to inspect and copy CCW permit
applications and licenses issued. CBS wanted this data as part of its
investigation of possible abuses by officials granted discretion to issue or
to withhold such permits. The evidence showed that even though L.A. County
had 7 million residents, the sheriff had issued only 35 CCW licenses--and
they were all only for renewals. Sheriff Block refused to release anything
to CBS, which filed a motion to compel disclosure.
- Court's Ruling: With some exceptions, CBS is entitled to nearly full
disclosure of everything it sought. The California Supreme Court said:
Government files hold huge collections of information. . . . Implicit in
the democratic process is the notion that government should be accountable
for its actions. In order to verify accountability, individuals must have
access to government files. Such access permits checks against exercise of
official power and secrecy in the political process. . . . Defendants'
concern that the release of the information to the press would increase the
vulnerability of licensees is conjectural at best. . . . The prospect that
somehow this information in the hands of the press will increase the danger
to some licensees cannot alone support a finding in favor of non- disclosure
to all. A mere assertion of possible endangerment does not 'clearly
outweigh' the public interest in access to these records. . . .
Defendants' contention that disclosure would discourage the filing of
applications is also unpersuasive. This court respects the people's right to
know and will not limit that right based on an inchoate fear that some will
violate the law rather than have their names disclosed. . . . It is a
privilege to carry a concealed weapon. . . . Public inspection of the
names of license holders and the reasons the licenses were requested enables
the press and the public to ensure that public officials are acting properly
in issuing licenses for legitimate reasons. . . . The interest of society
in ensuring accountability is particularly strong where the discretion
invested in a government official is unfettered, and only a select few are
granted the special privilege. Moreover, the degree of subjectivity involved
in exercising the discretion cries out for public scrutiny. For example,
the Sheriff of Orange County has issued over 400 licenses; in Los Angeles
County only 35 licenses have been issued. Ostensibly, both sheriffs are
applying the same statutory criteria for granting or denying these licenses.
The apparent discrepancy indicates that something may be amiss. [Emphasis
Judge Mosk was the lone dissent. He argued that the rights of privacy of
the 35 license holders outweighed the public's right to know how the
sheriffs were handling CCW permits and licenses. Judge Mosk opined:
If the sheriff were issuing gun permits indiscriminately and thousands
were extant, there might be a suspicion of misuse of his discretionary
power and an implication that he himself was contributing to danger to
public safety. The fact that in a county with the vast population of Los
Angeles only 35 permits have been issued suggests the sheriff should be
commended for his obvious determination to prevent the proliferation of
dangerous weapons in the community. . . . former Sheriff Pitchess had
followed a policy of routinely denying applications for licenses except in a
very limited number of cases. Those cases included judges and elected
officials who expressed a concern for their personal safety. . . . Pubic
disclosure of the records would clearly jeopardize the safety of the permit
holders, for it would provide a veritable shopping list of weapons available
for theft, and it would expose the particular vulnerabilities of the
individuals who possess such weapons. . . . It may well be that in light
of the serious crime problem which exists in our community and the
Legislature's evident concern, the sheriff should be persuaded to
liberalize his policy. That cause, however, will not be advanced one whit by
disclosure of the identity of the 35 present licensees. . . . If
prospective applicants knew that their identity was to be made public,
there also exists the strong possibility that they would not apply to carry
a concealed weapon. This dramatically increases the probability that those
who need to carry such weapons do so irrespective of the laws which
generally prohibit the possession of concealed weapons. Such a result is,
of course, abhorrent to our legal system and increases the risk of injury,
accidental or otherwise, to the public as a whole. . . . The Legislature
has vested designated law enforcement officials with almost unfettered
discretion in this area. If that discretion is to be curtailed, the
Legislature is the body to do it. . . . Based upon the foregoing, the
disclosure of the materials sought by CBS would constitute an unwarranted
invasion of the privacy of the individual permit holders involved. (See
Cal.Const., art. I, 1.) . . . (one) may surmise the general access to
these records would result in an increased risk of danger to all permittees.
- Mancus' Remarks: This case illustrates well the knotty problems that arise
from Civil Authority's breaking faith with the Founders, the Framers and the
Ratifiers by violating the absolute bar of "the right of the people to keep
and bear arms, shall not be infringed." It should be noted that again, not
one judge on the California Supreme Court articulated the position that
California Penal Code 12050 is an unconstitutional prior restraint against
the Second. Such decisions illustrate, again, that many judges are
incredibly hostile to taking the Second seriously, and they are willing to
gut it so Civil Authority can enjoy extensive control. I stress that without
any legal analysis and without any cite to any legal authority, the majority
boldly said, "It is a privilege to carry a concealed weapon." This court,
again, manhandled Lady Liberty and rearranged her face beyond recognition.
On the other hand, there are some useful tidbits in the majority's opinion.
The court said that the sheriff's concern that if CBS got the information it
wanted, that the licensees might suffer harm, is "conjectural at best" and
that "mere assertion of possible endangerment" is not good enough to justify
withholding the information. By analogy, when CCW issuing authority argue,
as Sebastopol Police Chief Gordon Pitter does, that because some people
under stress might not be able to use a handgun prudently, for "that
reason," he categorically denies everyone a CCW permit, Chief Pitter
manifests mere "conjecture" and "mere assertion of possible endangerment"
which would not satisfy even this court. However, this court treated CBS'
request as a First Amendment matter and this court loves the First
Amendment whereas it stiff arms the Second. Example: this court said that it
respected the people's right to know about how CCW issuing authority handled
CCW matters and that it would not limit that right, but it would not
recognize the right to carry a firearms concealed for lawful self-defense as
a right. Instead, it gratuitously characterized that concept as a
Both the majority and the dissent, in effect, uphold this major infringement
against the Second and the concept of elitism--that it is okay to give CCW
issuing authority near unfettered discretion to issue such permits to judges
and elected officials who express concern for their personal security, as if
the hides of judges and elected officials is superior and entitled to
If anyone thinks that out of 7 million L.A. County residents the only ones
who carried a concealed firearm were law enforcement and the 35 permittees,
they are wrong.
On balance, I agree much more with Judge Mosk than I do with the majority
opinion in the limited sense that I believe that it is no one's business as
to who packs a CCW until that CCW is misused, and merely packing it is not
misuse. On the other hand, since there is evidence that CCW issuing
authority do abuse their unfettered discretion, then I agree with the
majority: the public has a right to know just how badly these officials are
abusing their discretion.
But the best remedy for this mess is simple: Take all discretion away from
Civil Authority. Take the Second seriously: "shall not be infringed," which
means no prior restraint. CCW law is classic prior restraint.
Law enforcement needs to get out of the CCW business. Many people do not
comply with this law for the reasons Judge Mosk stated. Simultaneously,
criminals do not show up at police headquarters and say, "Hello, my name is
. I am a criminal. I want to carry my piece legally. Here is the gun I use
to help me rape, rob, burglarize, terrorize, murder. Please photograph me,
fingerprint me, record my gun's model, make, caliber, serial number. Here is
my permit fee. I live at ___________________. My need for this permit is
this: I need to carry a gun concealed because it gives me an advantage as a
criminal." So, what is the point of CCW law? Answer: CCW law is not
criminal control. It is control, period. But only of those good citizens who
are intimidated by Civil Authority, who believe that a cell phone is better
protection than a .38 and who abdicate responsibility for their lives.
The King had unfettered discretion, too. The King's abuses of such
discretion made enough of his lords and serfs angry enough that some lords
united and coerced the King into agreeing to legal limits on that
discretion. That resistance to unfettered discretion lead to our U.S.
Constitutional and our U.S. Bill of Rights. Those laws were designed, and
calculated, to put an end to Civil Authority's unfettered discretion. As
evidenced by California Penal Code 12050, however, the pendulum has swung
back the other way. This case illustrates well that the California Supreme
Court had no problem with Sheriff Block playing God over the lives of 7
million people in L.A. County. Every judge on this court was content to let
Sheriff Block reject, with legal immunity, all requests for Block's
permission to use a gun in a public place for lawful self-defense.
Finally, it is recommended that anyone who values Liberty get a CCW permit
application form and look at it, plus a copy of their local CCW issuing
authorities' standards and policies for issuing or denying such a permit,
and read same carefully. These documents carry Adolph Hitler's imprint:
everything Adolph would need to identify a CCW permit applicant and round up
all such applicants is asked on these forms. Prudent people would not want
to be on a CCW permit application list or on permit holder list. Such lists
are among the first that a tyrant will check. Additionally, since the public
has a right to obtain a copy of such documents, anyone who applies for such
a permit is at risk of identity theft [including social security number,
date and place of birth, mother's maiden name, etc.,] and ultra sensitive,
personal information, such as how much money you make, what property you
own, your habits, your justification for a firearm, etc.
Kellogg v. City of Gary (1990) 562 N.E.2d 685
- Factual Summary: Involved issues arising from a county department of
social services' failure to remove a minor from the custody of his father
who ultimately beat the child severely, causing permanent brain damage
which rendered the child profoundly retarded.
The child's mother sued the governmental agency, alleging that that agency
deprived the child of his liberty interest in bodily integrity and failed to
protect the child from his father, in violation of the child's rights.
- Court's Ruling: The governmental agency's failure to protect the child
from his father did not deny the child any constitutional rights; government
does not have a duty to protect citizens against private violence.
- Mancus' Remarks: The majority opinion said:
. . . when the State by the affirmative exercise of its power so retrains
an individual's liberty that it renders him unable to care for himself, and
at the same time fails to provide for his basic human needs--e.g., food,
clothing, shelter, medical care, and reasonable safety--it transgresses the
substantive limits on state action set by the Eight Amendment and the Due
Process Clause. . . . The affirmative duty to protect arises not from the
State's knowledge of the individual's predicament or from its expressions of
intent to help him, but from the limitation which it has imposed on his
freedom of action on his own behalf. . . . In the substantive due process
analysis, it is the State's affirmative act of restraining the individual's
freedom to act on his own behalf--through incarceration,
institutionalization, or other similar restraint of personal liberty--which
is the 'deprivation of liberty' triggering the protections of gthe Due
Process Clause, not its failure to act to protect his liberty interests
against harms inflicted by other means.
Dano v. Collins (1990) 820 P.2d 1021
- Factual Summary: Citizens filed a lawsuit against city and city officials
alleging violation of federal civil right statute and Indiana Firearms Act
by denying them blank handgun permit application forms. Case triggered the
fundamental issue of whether bearing arms is a right or a privilege.
- Court's Ruling: These citizens had stated a valid cause of action;
officials and the city were not immune from suit.
- Mancus' Remarks: This is a lengthy decision that is well worth
U.S. v. Verdugo-Urquidez (1990) 494 U.S. 259
- Factual Summary: A man sued a district attorney and a sheriff, requesting
that a state statue which prohibited the concealed carry of firearms be
declared in violation of the Arizona constitution. The government defended on
the grounds of the police power.
- Court's Ruling: No one has an absolute right to bear arms under all
situations. "The right to bear arms in self-defense is not impaired by
requiring individuals to carry weapons openly. Appellants are free to bear
exposed weapons for their defense."
- Mancus' Remarks: [none]
Howlett By and Through Howlett v. Rose (1990) 496 U.S. 356
- Factual Summary: Case involved the legality of a U.S. agent search and
seizure of property owned by a nonresident alien which was located in a
- Court's Ruling: The Fourth Amendment does not apply to such a search.
- Mancus' Remarks: Here is a meritorious definition of "the people" as used
in the Constitution in an excerpt from this decision.
. . . 'the people' seems to have been a term of art employed in select
parts of the Constitution. The Preamble declares that the Constitution is
ordained and established by 'the People of the United States.' The Second
Amendment protects 'the right of the people to keep and bear Arms.' and the
Ninth and Tenth Amendments provide that certain rights and powers are
retained by and reserved to 'the people.' . . . While this textual exegesis
is by no means conclusive, it suggests that 'the people' protected by the
Fourth Amendment, and by the First and Second Amendments, and to whom rights
and powers are reserved in the Ninth and Tenth Amendments, refers to a class
of persons who are part of a national community or who have otherwise
developed sufficient connection with this country to be considered part of
that community. . . . The language of these Amendments contrasts with the
words 'person' and 'accused' used in the Fifth and Sixth Amendments
regulating procedure in criminal cases.
In a dissent, two judges said:
If we seek respect for law and order, we must observe these principles
ourselves. Lawlessness breeds lawlessness. . . . In drafting both the
Constitution and the Bill of Rights, the Framers strove to create a form of
Government decidedly different from their British heritage. Whereas the
British Parliament was unconstrained, the Framers intended to create a
Government of limited powers. . . The colonists considered the British
Government dangerously omnipotent. . . . Americans vehemently attacked the
notion that rights were matters of "'favor and grace,'" given to the people
from the Government. . . . . Thus, the Framers of the Bill of Rights did
not purport to 'create' rights. Rather, they designed the Bill of Rights to
prohibit our Government from infringing rights and liberties presumed to be
Here is another wonderfully wise quote from a dissenting opinion:
. . . we cannot expect others to respect our laws until we respect our
Constitution, . . .
Fresno Rifle And Pistol Club, Inc. v. Van de Kamp (1990) 746 F. Supp. 1415
- Factual Summary: Involved a lawsuit pursuant to 42 U.S.C. 1983, which
creates a remedy for violation of federal rights committed by persons under
color of state law.
- Court's Ruling: A state-law "sovereign immunity" defense is not availiable
in a 1983 action.
- Mancus' Remarks: As a young law student my judgment told me that if the
"supremacy clause" means anything, then the U.S. Constitution, as amended by
the Bill of Rights, should be deemed, by force of law, automatically written
into every states' laws. I submit that the following quotation from Howlett
supports my judgment.
Federal law is enforceable in state courts . . . because the Constitution
and laws passed pursuant to it are as much laws in the State as laws passed
by the state legislature. The Supremacy Clause makes those laws "the supreme
Law of the Land," and charges state courts with a coordinate responsibility
to enforce that law according to their regular modes of procedure. "The laws
of the United States are laws in the several States, an just as much binding
on the citizens and courts thereof as the State laws are. . . . The two
together form one system of jurisprudence, which constitutes the law of the
land for the State; and the courts of the two jurisdictions are not foreign
to each other, nor to be treated by each other as such, but as courts of the
same country, having jurisdiction partly different and partly concurrent." .
. . "[T]he governments and court of both the Nation and the several States
[are not] strange or foreign to each other in the broad sense of that word,
but [are] all courts of a common country, all within the orbit of their
lawful authority being charged wit the duty to safeguard and enforce the
right of every citizen without reference to the particular exercise of
governmental order from which the right may have arisen . . . . [Emphasis
added.] . . .
Three corollaries follow from the proposition that "federal" law is part
of the "Law of the Land" in the State: 1. A state court may not deny a
federal right, when the parties and controversy are properly before it, in
the absence of "valid excuse." . . . . 2. . . . The Supremacy Clause
forbids state courts to dissociate themselves from federal law because of
disagreement with its content or a refusal to recognize the superior
authority of its source. . . . These principles are fundamental to a
system of federalism in which the state courts share responsibility for the
application and enforcement of federal law. . . . The federal law is law
in the State as much as laws passed by the state legislature. . . . . A
State may not . . . relieve congestion in its courts by declaring a whole
category of federal claims to be frivolous. [Emphasis added.]
Hafer v. Melo (1991) 502 U.S. 21
- Factual Summary: The California Legislature passed a law that imposed
restrictions on assault weapons, which the Legislature said have such a high
rate of fire and such high capacity for firepower that there function as a
legitimate sport or recreational firearm is substantially outweighed by the
danger that they can be used to kill and injure human beings; therefore, the
Legislature is free to regulate assault weapons extensively. This case was
a legal challenge to a California statute that regulated the manufacture and
transfer of what the courts now pejoratively call assault weapons. Lead
counsel for the plaintiffs was Stephen P. Halbrook, a Second Amendment
- Court's Ruling: The Second Amendment bars an infringement only by Congress
or the National Government, and it has no application to the States; the
Second Amendment guarantees only a collective right possessed by the States
to maintain a militia, not an individual right; the U.S. Constitution has
properly left the question of gun control to the States; nothing in the
challenged California law violates any part of the U.S. Constitution or
the U.S. Bill of Rights; the Second Amendment does not involve any right
deemed "fundamental" or "implicit in the concept of ordered liberty,";
there is no connection between the right to privacy and the right to possess
arms; nothing in the challenged law violated anyone's rights--there is no
violation of right to privacy, right to defend oneself, right to property,
right against self-incrimination.
- Mancus' Remarks: This decision would make the Founders, the Framers and
the Ratifiers puke. I am positive that generation is disgusted with the
current generation for tolerating this decision. These judges reached this
decision by an analysis that is non-meritorious.
The Second expressly states that "the people," not "the militia," has a
right to keep and bear arms, which shall not be infringed.," but this court
engaged in switcheroo, interchanged the two nouns, and ended up with a
result that gutted the Second, that sanctioned the Legislature's
unconstitutional grab for raw power.
Citizens who believe that the Second guarantees an individual right to arms
free of prior restraint, paid good money to challenge this law in a
socially acceptable, non-violent manner. The court, however, imprudently
stiff armed these citizens. To the extent that the courts continue to gut
the Second, it motivates citizens to think of another solution to this
problem. At some point, many will come to the decision that it is simplier,
easier, quicker, cheaper and morally justified to politically assassinate
prominent Gun Prohibitionists.
Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666
- Factual Summary: [none]
- Court's Ruling: State officers may be held personally liable for damages
under 1983 based upon their actions in their official capacities.
- Mancus' Remarks: [none]
Hickman v. Block (1996) 81 F.3d 98
- Factual Summary: A lady who was raped at her place of employment sued the
owner of a shopping center for failure to maintain common areas within its
possession and control in a reasonably safe condition and to provide
security guards in those areas.
- Court's Ruling: The California Supreme Court ruled against the raped lady
on the grounds that the was an insufficient basis to hold the owner of the
shopping center liable for what the rapist did. Significantly, the Court, at
page 678, opined, ". . . random, violent crime is endemic in today's
society. It is difficult, if not impossible, to envision any locale open to
the public where the occurrence of violent crime seems improbable." And at
page 679, the Court opined, "No one really knows why people commit crime,
hence no one really knows what is 'adequate' deterrence in any given
Judge Mosk, the lone dissenter, said:
"This rule [requiring prior similar incidents] is fatally flawed in
numerous respects. First, the rule leads to results which are contrary to
public policy. The rule has the effect of discouraging landowners from
taking adequate measures to protect premises which they know are
dangerous. This result contravenes the policy of presenting future harm.
Moreover, under the rule, the first victim always loses, while subsequent
victims are permitted recovery. Such a result is not only unfair, but is
inimical to the important policy of compensating injured parties . . . .
- Mancus' Remarks: This lady is SOL--shit out of luck. She cannot count on
the police to protect her. The police had no duty to protect her. The
police are immune for failing to protect her. This lady's attorney knew all
that and they knew they could not locate the rapist [who probably lacked
assets anyway,] so they sued the owner of the shopping center. But since
this type of incident had not happened before as it did, this lady was "the
first victim;" therefore, the owner of the shopping center had insufficient
notice of a crime problem on his premises and is thus held not be civily
liable for what the rapist did.
If this lady had assumed responsibility for her personal integrity, and
carried a handgun, there is a good chance she would have deterred the rapist
merely by showing the gun and/or pointing it at the rapist.
Judge Mosk, however, per his views in the CBS, Inc v. Block case, does not
want citizens to carry heat without a CCW permit. Fine. But the CCW issuing
authorities love control and rarely issue such permits. And this is fine
with Judge Mosk, too. In fact, Judge Mosk liked the idea that Sheriff Block
issued permits to only 35 out of 7 million people.
I wonder is Judge Mosk ever realized that he manifested what I describe as
fractured thinking--thinking in a way that does not appreciate the
interrelationship of related problems and with an apparent disregard of how
his social engineering decisions in one case aggravate another, related
Example: Judge Mosk in this case complained that it is "unfair" for "the
first victim" to "lose." I totally concur. However, if Ms. Ann M. had gone
to any CCW issuing authority before she was raped and asked for a CCW
permit, expressing that she was afraid of being raped, she would have been
told, "Your generalized fear of being raped is insufficient to justify
issuing you a CCW permit. You must be able to provide us with [See CBS, Inc
v. Block, page 659] "convincing evidence of a clear and present danger to
life or of great bodily harm . . . which cannot be adequately dealt with by
existing law enforcement resources, and which danger cannot be reasonably
avoided by alternative measures, and which danger would be significantly
mitigated by the applicant's carrying of a concealed firearm . . . ." This
excerpt from Block is from Judge Mosk's dissent in that case.
Reformulated, Judge Mosk appears to be hostile to liberal issuance of CCW
permits but he is also upset with his fellow judges that they ruled against
her because she was "the first victim." Well, now that she has been raped,
perhaps [but do not count on it,] the CCW issuing authorities might issue
her a CCW permit. But, since any female can claim she has been raped, if Ann
M. does not have a credible witness, a tape recording, a video recording, an
admission from the rapist of the rape, she lacks "convincing evidence of a
clear and present danger " to her life," etc. Besides, what are the odds
that she would be raped again? Bottom line: CCW issuing authorities have
raised the bar to get a CCW permit very high. By so doing, they have
manifested exactly the kind of mischievousness the Bill of Rights was
intended to guard against; law enforcement is not your friend--it is your
enemy; law enforcement is callous toward your well-being; law enforcement
is inept in coping with criminals so they push paper to harass responsible,
servile, docile citizens. And the courts let them get away with it.
The majority authored a pretty darn good "good cause" statement for the
issuance of a CCW permit:
. . . random, violent crime is endemic in today's society. It is
difficult, if not impossible, to envision any locale open to the public
where the occurrence of violent crime seems improbable. . . . No one really
knows why people commit crime, hence no one really knows what is 'adequate'
deterrence in any given situation.
By implication, the California Supreme Court conceded that law enforcement
is not "adequate".
United States v. Gomez (1996) 81 F.3d 846
- Factual Summary: Doug Hickman sued cities, county and officials for
denying him a CCW permit in violation of his Second Amendment right to
arms. He argued that Civil Authority has a duty "to regulate gun ownership
and use in a 'reasonable' manner."
- Court's Ruling: Anyone who sues invoking federal jurisdiction has the
burden to establish his standing to sue; to satisfy that burden, one must
satisfy three elements: first, proof that he has suffered injury to a
legally protected interest, this injury must be concrete and
particularized, and it must be actual or imminent rather than conjectural
or hypothetical; second, there must be a casual connection between the
injury and the conduct complained of; and third, the injury must be
redressable by a favorable judicial decision; Mr. Hickman lacked standing
[legal basis to show a legal injury] to sue for violation of the Second
Amendment because the Second Amendment right to arms is a right held by the
states and does not protect the possession of weapons by a private citizen;
the States alone stand in a position to show legal injury when this right is
infringed; and the Second guarantees only the States' right to keep an armed
- Mancus' Remarks: To reach this result, this court relied heavily on the
U.S. Supreme Court's decision in United States v. Miller (1939) 307 U.S. 174
and misconstrued it. The Hickman court said:
Consulting the text and history of the [Second] amendment, [the U.S.
Supreme Court in Miller] found that the right to keep and bear arms is meant
solely to protect the right of the states to keep and maintain the armed
militia. In a famous passage, the Court held that
The Hickman court implies that it limited itself to an objective, "plain
reading of the Amendment's text." But, that is not what it did.
[i]n the absence of any evidence tending to show that the possession or
use of a 'shotgun having a barrel of less than eighteen inches in length'
at this time has some reasonable relationship to the preservation or
efficiency of a well-regulated militia, we cannot say that the Second
Amendment guarantees the right to keep and bear such an instrument.
. . . The Court's understanding follows a plain reading of the Amendment's
text. The Amendment's second clause declares that the goal is to preserve
the security of 'a free state;' its first clause establishes the premise
that a 'well-regulated militia' is necessary to this end. Thus it is only in
furtherance of state security that 'the right of the people to keep and
bear arms' is finally proclaimed.
. . . '[i]t is clear that the Second Amendment guarantees a collective
rather than an individual right.' . . . Because the Second Amendment
guarantees the right of the states to maintain armed militia, the states
alone stand in the position to show legal injury when this right is
infringed. . . .
Because the right to keep an armed militia is a right held by the states
alone, Hickman has failed to show 'injury' as required by constitutional
standing doctrine. Accordingly, we have no jurisdiction to hear this
appeal. [Emphasis added.]
This Court is stuck with the Second's text, which is the starting point for
analysis because that is what was ratified. Nothing this Court opined
changes this objectively verifiable, undisputed, fact: the Second says, "the
right of the people to keep and bear arms, shall not be infringed." It does
not say, "the right of the militia [or the right of the States] to keep and
bear arms, shall not be infringed." Additionally, it does not say that the
militia is a "government regulated militia." The insertion of the phantom,
non-existent word "government" into the text is impermissible. Merely
because we live in an age were we are accustomed to heavy government
regulation does not mean that "well regulated" means "government
regulated." The Second also does not say that in order to have "a right to
keep and bear arms, that shall not be infringed.," one must first be a
member of the militia nor that that right is limited to militia purposes
The debate over an individual versus a collective right is understandable
but not compelled. It is axiomatic that in construing the Second, that, to
be intellectually honest and to comply with the Rules of Construction, we
must go back in time and put ourselves in the position of the Framers and
the Ratifiers, and construe the text through their eyes, using their
definitions. When we do that we come to terms with these facts: the
Framers/Ratifiers hated and feared a large standing army; they lacked the
money to pay for one; they wanted "defense on the cheap;" an armed citizenry
was widespread; it was universally recognized in their world that the
people had an individual right to arms and to keep these privately owned,
unregistered firearms under their immediate control; when these people
marshaled as a militia, they exercised their individual right to arms
collectively, as a militia, to secure a free state; when the emergency was
over, they returned to their personal affairs, keeping in their possession
their unregistered, privately owned firearms, which they continued to use
as an individual right.
All of this well documented history is discussed in detail in United States
v. Miller. Inexplicably, however, the Hickman court's allegedly objective,
"plain reading" of the Second, citing Miller for authority, reached a result
that is 180 degrees of what Miller really held.
And here is "a gotcha": The U.S. Supreme Court in United States v. Miller
accepted Miller's appeal, heard it and did not bounce Miller on the ground
that Miller lacked standing!
From this perspective, one has good cause to entertain questions about the
competency of the Hichman judges, about their integrity, about their
objectivity, and/or about the quality of their legal research and/or
The Federal Ninth Circuit oversees a huge proportion of the United States'
land mass and population. I submit that it is extraordinarily irresponsible,
and dangerous, for this court, for the reasons it stated, to rule that no
ordinary private citizen in its jurisdiction has standing to sue for
violation of his or her Second Amendment rights.
There are Four Boxes of Freedom: Soap Box, Ballot Box, Jury Box and
Cartridge Box. These boxes are most prudently resorted to in this sequence.
Filing an appeal to pursue a perceived violation of Second Amendment rights
is a socially approved, non-violent extension of the Jury Box. There are
only three boxes before one gets to the final box--the Cartridge Box. Courts
stiff armed the Fresno Rifle and Pistol Club, Inc. and they stiffed arm Mr.
Hickman. To the extent the courts continue to stiff arm people who want to
try to resolve this issue non-violently, the courts will motivate, and
justify, resort to the Cartridge Box. Since the Hickman court held that no
ordinary citizen has standing to sue for any perceived violation of the
Second, the reality is this: many armed citizens who reject Hickman are
giving serious consideration to resorting to the Cartridge Box.
Factual Summary: Steve Gomez, a felon, was promised by government agents
that if he cooperated with them as an informant they would keep his identity
a secret and protect him if his identity were revealed. These officials
revealed his identity, which put his life in serious peril. Mr. Gomez
received death threats, learned there was a contract out on his life and his
begging of government officials, county officials and two different church
officials left him unprotected. Out of desperation, Mr. Gomez took
possession of a twelve-gauge shotgun from a friend's house. When found with
this gun, he was charged with being a felon in possession of a firearm. Mr.
Gomez defended on the grounds that, given death threats, etc., against his
life, his possession of the firearms was legally justified for lawful
self-defense. The United States claimed that a felon-in-possession is
legally barred from a justification defense. Mr. Gomez countered that
Congress did not intend to make ex-felons helpless targets for assassins.
Nordyke v. Santa Clara County (1997) 110 F.3d 707
- Court's Ruling: Mr. Gomez should have been allowed to present a
justification defense. In footnote 7, the court citied with approval a law
review article that said,
The Second Amendment embodies the right to defend oneself . . . against
physical attack. . . . 'The fundamental right to self- preservation,
together with the basic postulate of liberal theory that citizens only
surrender their natural rights to the extent that they are recompensed
with more effective political rights, require that every gun control law be
justified in terms of the law's contribution to the personal security of the
entire citizenry.' At that point, the Second Amendment might trump a
statute prohibiting the ownership and possession of weapons that would be
perfectly constitutional under ordinary circumstances.
The Court held that Mr. Gomez had to prove the following elements to make
out a justification defense:
"(1) he was under unlawful and present threat
of death or serious bodily injury; (2) he did not recklessly place himself
in a situation where he would be forced to engage in criminal conduct; (3)
he had no reasonable legal alternative; and (4) there was a direct causal
relationship between the criminal action and the avoidance of the threatened
harm." [Emphasis added.]
The Court went on to say,
. . . we must give Gomez the benefit of the doubt, so long as he presents
a plausible cause that he thought himself in danger. . . . Gomez was hardly
paranoid. . . . Gomez went to the authorities seeking protection. . . . He
asked the Customs Service to honor its promise to protect him. . . . If
Gomez's story is believe, he was privileged to arm himself because 'a
history of futile attempts revealed the illusionary benefits of the
alternative.' . . . To prosecute Gomez for trying to protect himself,
when the government refused to protect him from the consequences of its own
indiscretion, is not what we would expect from a fair-minded sovereign. . .
. We . . . vacate Gomez's conviction and remand with directions that the
district court release him immediately . . . . [Emphasis added.]
- Mancus' Remarks: The government proved again that it cannot be trusted to
honor any promise to protect. The end result is meritorious.
Here is a nice kicker: Since many CCW issuing authorities, such as
Sebastopol Police Chief Gordon Pitter, have made it clear that they have a
categorical policy to never issue CCW permits, it would appear that one
could argue with merit that one "had no reasonable legal alternative" to
carrying a handgun for lawful self-defense without a CCW permit because the
issuing authority was not "a fair-minded" representative of the "sovereign."
Additionally, stop and think about the goal from the responsible citizen's
point of view. The goal is to stay alive, to prevent criminal trespass
against one's person, to defend one's loved ones. To use a firearm
responsibly to achieve any or all of these goals yields a positive social
good that any fair-minded sovereign should appreciate and understand. But to
un-fair-minded sovereigns, they see guns as something to regulate,
something to rail against, something, that someone might abuse, and because
someone might abuse it, everyone must forfeit their unalienable right to
life, liberty, security and their Second Amendment rights.
Upland v. Block (1997) 59 Cal.App.4th 1537
- Factual Summary: A county barred gun shows at its fairgrounds because it
wanted to avoid sending the wrong message to the community relative to
support of gun usage. The organizers of the gun show challenged the ban on
the grounds of free speech violation.
- Court's Ruling: Upheld a preliminary injunction against the ban. Court
said: the offer to sell firearms or ammunition is "commercial speech"
protected by the First Amendment, with some exceptions; the sale of
firearms at a gun show on county fairgrounds is lawful activity; the
government has the burden of demonstrating that its desire to avoid sending
the message that the county promotes gun usage is a legitimate substantial
interest; and the county failed to satisfy its burden that the harms it
recites are real and that the gun show ban will alleviate those harms to a
- Mancus' Remarks: The Founders, Framers and Ratifiers would have respected
California Rifle & Pistol Assn. v. City of West Hollywood (1998) 66
- Factual Summary: A retired peace officer sued to get a CCW permit
- Court's Ruling: The court upheld the decision to deny this officer a
- Mancus' Remarks: More evidence that the Bill of Rights is a paper
guarantee until someone angry enough resolves to put teeth into those
rights. One bad thing about rights is that they are not self-executing.
In re Englebrecht (1998) 67 Cal.4th 486
- Factual Summary: City passed an ordinance which banned, within city
limits, the retail or wholesale sale of any handgun which the City
classified as a "Saturday Night Special." Plaintiffs [including the National
Rifle Association] sued to invalidate the ordinance, primarily on the basis
that it was preempted by state law.
- Court's Ruling: The ban was upheld. The plaintiffs had to reimburse the
city its costs on appeal.
- Mancus' Remarks: The ban was, and is, a clear infringement of the Second.
The NRA's legal team, however, pressed their claim primarily on a violation
of state preemption law.
I believe it is a grave strategic error to keep challenging these
infringements without making a pure Second Amendment claim.
United States v. Emerson (1999) 46 F. Supp.2d 598 (N.D. Texas)
- Factual Summary: A city with a get tough on juvenile gangs attitude passed
an ordinance that barred people from "Using or possessing pagers or beepers
in any public place." A suspected gang member was arrested with a pager in
his possession. This person argued that the ordinance which banned the use
and possession of pagers or beepers was unconstitutionally overbroad. The
city argued that suspected gang members used pagers and beepers to
facilitate gang drug sales and to communicate the movements of law
enforcement to aid gang members to elude arrest.
- Court's Ruling: The ban against use and possession of pagers or beepers is
unconstitutionally overboard. The court reasoned that since pagers and
beepers have "countless, lawful, legitimate and everyday uses, both in the
personal sense and professionally" and since they "are not used only for
illicit reasons," the ban against them is an overbroad and infirm burden on
the suspected gang member's right to free speech.
- Mancus' Remarks: Firearms, like pagers or beepers, are not inherently good
or bad. Everything can be, has been, and will be used for good or bad.
Everything can be misused. The courts, however, are much more inclined to
uphold infringements against First Amendment rights than against Second
Amendment rights. This is probably partly pursuant to the mistaken belief
that it is safer to be a champion of First than of the Second.
I believe that all rights guaranteed by the entire Bill of Rights work best
when they overlap and reinforce once another. For example, the First
protects Free Speech, but the Second guarantees it.
Additionally, anyone who thinks that unfettered exercise of Free Speech is
less dangerous than unfettered exercise of Gun Rights is mistaken and too
simplistic. When a gun goes bang, it makes a lot of noise. The gun recoils,
there is often some smoke, the bullet hits something and depending on
variables, the consequences could be serious and irreversible. Gravity,
however, within less than five seconds, stops the movement of all bullets.
The print and electronic means of exercising Free Speech, however, are
capable of influencing hundreds of millions for years.
The Founders, Framers and Ratifers would agree with this decision. They
would also accuse the courts of fragmented thinking. They would ask this
question: Why do you reject prior restraint on ideas but embrace it against
firearms? Do you not realize that the Second enforces the First?
Kessler v. Lockyer (2000) 23 Cal.4th 472
- Factual Summary: [none]
- Court's Ruling: Dismissed an indictment against Dr. Emerson for possessing
a firearm while under a court order that restrained him from harassing or
stalking an intimate partner or chilled of an intimate partner, in violation
of 18 U.S.C. 922(g)(8); this statute is unconstitutional because it
allowed a state court to automatically deprive a citizen of Second Amendment
rights without particularized findings of the threat of future violence,
which made the statute overboard.
- Mancus' Remarks: [none]
People v. Camacho (2000) 23 Cal.4th 824
- Factual Summary: Case involves a constitutionality challenge to
California's Assault Weapons Control Act of 1989.
- Court's Ruling: The AWCA is legal and constitutional.
- Mancus' Remarks: This decision is lengthy. It contains a decent history of
the unfortunate murderous use of rapidly firing guns against innocents. It
also contains a review of a substantial amount of public pressure against
assault weapons. Gun Prohibitionists, as evidenced by this decision, have
exceeded in getting even the California Supreme Court to adopt the
pejorative, inflammatory language of Gun Prohibitionists.
This decision disgusts me. I am positive that if the Founders, Framers and
Ratifiers were alive today, they, too, would be disgusted. And if they could
communicate with us, they would tell us we are proving to be unworthy of
their sacrifices and best efforts on our behalf--their posterity; that we
are failing to keep, and enjoy, "the Blessings of Liberty."
To King George, III, the Minutemen's single shot, muzzle loading rifle was
an assault weapon. In 1776, Minutemen enjoyed technological parity, if not
superiority, in rifles, relative to Redcoats. Today, our government insists
that it must win an arms race with its citizens in terms of small arms.
Why is it so important for our government to reduce citizens to firearms
that have only a limited sporting or recreational use? Is it because it
intends to achieve a monopoly on arms? If so, think about the implications
This court revealed a great deal about itself when it said the following:
Although plaintiffs assert the AWCA fails to satisfy even the rational
basis test, they contend it should be reviewed under the 'intermediate or
even strict scrutiny standards of legal review' because 'portions of the
[AWCA] touch upon [an] express fundamental constitutional right.' This
fundamental right plaintiffs locate in article 1, section 1 of the
California Constitution which provides: 'All people are by nature free and
independent and have inalienable rights. Among these are enjoying and
defending life and liberty, acquiring, possessing, and protecting property,
and pursuing and obtaining safety, happiness, and privacy.' If plaintiffs
are implying that a right to bear arms is one of the rights recognized in
the California Constitution's declaration of rights, they are simply wrong.
No mention is made in it of a right to bear arms. . . . Moreover, '[i]t is
long since settled in this state that regulation of firearms is a proper
police function.' . . . We reject any suggestion that the regulations at
issue here impermissibly infringe upon the right to defend life or protect
property guaranteed by the California Constitution. . . . the AWCA does
not burden a fundamental right under either the federal or the state
Constitutions, . . . .
Responsible citizens made another socially acceptable, non-violent,
meritorious, legal challenge to what they believed, with good cause, is a
frank, gross infringement of Second Amendment rights. They invested a
considerable amount of money to take this case to the California Supreme
Court. But that court stiff armed them--hard.
Significantly, this court showed no interest whatsoever in analysing any
law that would uphold responsible citizen's rights against infringement.
Apparently, the will to do so is simply not there.
This decision reeks of dubious content and shallow reasoning. One example
Dr. Garen Wintemute of the University of California, Davis, Medical School
appeared before the Committee of the Whole to testify with regard to the
'special wounding characteristics' of the high velocity ammunition commonly
used in assault weapons. . . . When a high velocity bullet enters the body,
Dr. Wintemute explained, 'it starts to "tumble, "as it moves through the
tissue . . . greatly increasing the amount of tissue which is damaged by
direct contact with the bullet. Moreover, as this high-velocity missile
travels through the tissue, it sends out pressure waves: We've all seen
pictures of airplanes breaking the sound barrier, and waves moving away from
the plane. The same thing happens as these bullets travel through tissue;
these pressure waves . . . create what is called 'a temporary cavity' behind
the path of the bullet, which may be 10 to 15 times--or even greater--the
diameter of the bullet itself. As a result of this phenomenon, these
high-velocity missiles can damage or destroy organs, break-bones--including
the femur, possibly the strongest bone in the body--without ever touching
Dr. Wintemute testified free of cross-examination, the great engine of
truth. Even if everything Dr. Wintemute says is true, so what? How does any
or all of this justify an infringement of a right? This court held, in
effect, however, that because some people abuse their right to arms, all
must suffer a massive infringement of their right. This court increases the
wrong done by these wrongdoers by holding the rights of millions of others
hostage to what a statistically insignificant few do, and then flushes these
rights down the toilet. It is wrong to hold peoples' right hostage to what a
I am not an expert on bullets nor am I a medical doctor. I do know some
things about what Dr. Wintemute testified to. My father is also a retired
U.S. Air Force flight medic. As such, he helped to bring back about 5,300
wounded U.S. and U.N. troops during the Korean War and several hundred
U.S. troops during the Vietnam War. As such, he saw the results of many men
shot with communist, true, military, assault weapons. I have also been
around many of my father's medic friends. I have also known many Vietnam War
combat ground troop vets. I have also read a significant amount about that
war. I also hunt. I have read extensively about hunting firearms, and I have
discussed this quotation attributed to Dr. Wintemute with other people who
are a lot more experienced with firearms than I am. Based on this
background, I make the following observations:
- Bullet velocity is a function of variables. The most important is how
much powder is burned in the cartridge. More power yields higher velocity;
- Recoil is a function of variables. One of the most important variable is
how much powder is burned relative to the weight of the rifle, the length
of the barrel and the rifle's action [means of cycling the next bullet.];
- Longer barrels tend to burn more powder to give higher velocity, but
assault weapons tend to have shorter barrels because increased barrel length
adds undesirable weight and makes handling of such a firearm in vegetation
- One reason assault rifles look so dramatic when they are being fired full
automatic is that a great deal of the powder is being blown out the muzzle,
unburned-- wasted, since the barrels are short;
- Cartridges with a high powder capacity which drive a bullet at high
velocity tend to be extremely inaccurate on full automatic; the muzzle
raises abruptly, is hard to control, ammunition is consumed at a high rate,
which is a precious commodity on the battlefield, and bullets are sprayed,
instead of being aimed;
- Most men, especially smaller framed Chinese, cannot control well a hard
kicking, muzzle raising, high energy gun;
- I have seen U.S. Army rifle instructors put the end of the butt of a
modern U.S. assault rifle on their chin and fire it on full automatic; they
did not hurt themselves because the recoil is easily tolerable; this is
because the bullets fired are small and they have a diminutive case powder
- Communist assault rifles tend to shoot a slighter larger cartridge with
more powder capacity to drive a slightly heavier bullet;
- I can guarantee you that if these lighter guns that use less expensive
consumables truly had a reputation for being able to break bones, including
the femur, without even hitting them, almost 100% of the hunters in the U.S.
and in the world would carry these so-called wonder weapons, instead of
their much larger, heavier, harder kicking, standard, full size cartridge and
magnum cartridge rifles. To be able to hear an antelope or a deer, which
have femurs similar to humans, and enjoy the benefit of breaking their leg
without hitting their leg, so that that animal goes down and does not have
to be tracked, would be a great benefit. Most hunters would switch in a
nanosecond to achieve this benefit. They do not switch, however, because Dr.
Wintemute exaggerated the truth;
- The media has not reported any victim shot with an assault weapon
suffered a broken femur without being hit by a bullet. The media has
reported enough of these incidents that if Dr. Wintemute told the truth, we
could reasonably expect the media would report corroboration;
- There are cartridges and rifles that are powerful enough to break femurs
without actually hitting that bone. U.S. and communist style assault rifles
do not have any widespread reputation for having this capacity. The first I
heard of this is when I read what was attributed to Dr. Wintemute.
But again, Dr. Wintemute's testimony, if true, does not trump the Second
This court also cited with approval a sentence from a U.S. Supreme Court
decision: "The problems of government are practical ones and may justify,
if they do not require, rough accommodations--illogical, it may be, and
unscientific." This sentence gives credence to the remark "good enough for
government work"! It is the judge's sworn duty to make certain that the laws
are made to conform to guaranteed rights, not the other way around. To the
extent judges fail to do that, they are worse than useless--they are
At page 491, this court quoted with approval another decision which said,
"An unconstitutional delegation of authority occurs only when a
legislative body (1) leaves the resolution of fundamental policy issues to
others or (2) fails to provide adequate direction for the implementation of
that policy." [Emphasis added.]
I agree. In terms of CCW permits, the
Legislature has failed to give CCW issuing authority "adequate direction
for the implementation of that policy," and there is ample evidence that
those authorities have, and continue, to abuse their near total, unfettered
If these judges hope to get me, and people who think like me, that we do
not have an individual right to arms, they will have to do a better job at
trying to interpret that right away.
Civil Authority does not have a monopoly on the Pejorative Name Game.
Calling a firearm an assault weapon does not make it so. I am struck by the
irony that the real Assault Weapons are prominent Gun Prohibitionists who
verbally assault unalienable and Constitutional rights. If these Assault
Weapons are not careful, they will find themselves in the cross hairs of
Unfortunately, some judges, apparently, are unwilling or unable, to
construe the U.S. Constitution in the same manner as do armed citizens who
are the spiritual heirs of the Minutemen.
In re Jorge M. (2000) 23 Cal.4th 866
- Factual Summary: Police received an anonymous complaint of a loud party at
Mr. Camacho's home. They responded. They did not knock on the front door.
Without a warrant, they entered Mr. Camacho's side yard. While standing in
Mr. Camacho's side yard, where they did not have a legal right to be, they
looked through a window without any covering and saw Mr. Camacho packaging
cocaine in his home. They arrested him. He moved to suppress the evidence on
the grounds that the police violated his Fourth Amendment privilege against
unreasonable search and seizure. The trial court denied his motion and he
- Court's Ruling: The police violated Mr. Camacho's Fourth Amendment
privilege against unreasonable search and seizure in that he had a legally
enforceable expectation of privacy as to what he was doing inside his home.
- Mancus' Remarks: The majority opinion concluded with the following:
Finally, although the line we draw today lets an unquestionably guilty man
go free, we observe that "constitutional lines have to be drawn, and on one
side of every one of them is an otherwise sympathetic case that provokes
impatience with the Constitution and with the line. But constitutional lines
are the price of constitutional government." [Emphasis added.]
This court hit a grand slam home run with that line:
". . . constitutional
lines are the price of constitutional government."
I concur. The court's
decision is constitutionally sound and unassailable. To their credit, they
recognized, and honored, the Fourth Amendment's bar against "unreasonable
searches and seizures."
What is puzzling, however, is this: This is the same court that decided
Kasler v. Lockyer earlier in the same year, and this same court, in that
case, failed to recognize, or respect, another constitutional line--a much
brighter line: ". . . the right of the people to keep and bear arms, shall
not be infringed." The Second's "shall not be infringed" is an absolute,
categorical, no prior restraint, complete bar to all government regulation
before a misuse of a firearm. This bar does not permit any judicial weighing
of competing societal interests. The Fourth's "unreasonable search and
seizures" bar is much less categorical: it does permit a judicial weighing
of what is and is not an "unreasonable" search or seizure.
This court again manifested what appears to be fractured thinking. This
court, like so many, loves the Fourth and apparently loathes the Second.
- Factual Summary: Jorge M. was a 16 year old minor on in-home probation for
a narcotic offense when law enforcement officers did a probation
investigation search at his home. They found rifles in the minor's bedroom,
including an unregistered SKS-45 semiautomatic rifle with a detachable
banana clip magazine. The minor was arrested for illegally possessing the
SKS, a so-called assault weapon. Jorge M. testified that the rifles
belonged to his father and a sibling testified that they belonged to that
sibling and the father. Jorge M. also testified that he did not know that it
was illegal to have an unregistered SKS. A dispositional issue was what did
Jorge M. know about the law and this SKS and what was sufficient to find him
guilty of violating this law.
- Court's Ruling: The minor was found guilty. The court ruled that actual
knowledge regarding the firearm's characteristics is not required to violate
the law because such a requirement would be inconsistent with the public
safety goals of the Assault Weapon Control Act. Effective enforcement of
that law demands that a conviction may be obtained upon proof of negligent
failure to know the rifle's salient characteristics. The prosecutor has to
prove only that Jorge M. should have known that the characteristics of this
rifle required it to be registered.
- Mancus' Remarks: This is an amazing, alarming result.
This court virtually admitted that it rushed to uphold another infringement
against the Second Amendment. The court said:
. . . the Legislature . . . regarded the use of assault weapons by
criminals and the mentally ill as a grave public safety threat. . . . [the]
criminal attractiveness and use of semiautomatic rifles accepting large
capacity magazines]), give this court no cause to question or qualify the
legislative assessment of the harm caused by the proliferation of such
firearms in civilian society. The AWCA is a remedial law aimed at
protecting the public against a highly serious danger to life and safety.
The Legislature presumably intended that the law be effectively enforceable,
i.e., that its enforcement would actually result in restricting the number
of assault weapons in the hands of criminals and the mentally ill. In
interpreting the law to further the legislative intent, therefore, we should
strive to avoid any construction that would significantly undermine its
enforceability. This is not to suggest this court would or should read any
element out of a criminal statute simply to ease the People's burden of
proof. But, when a crime's statutory definition does not expressly include
any scienter element, the fact the Legislature intended the law to remedy
a serious and widespread public safety threat militates against the
conclusion it also intended impliedly to include in the definition a
scienter [actual knowledge that the rifle had characteristics that required
it to be registered] element especially burdensome to prove. . . . the
People bear the burden of proving the defendant knows or reasonably should
have known the firearms possessed the characteristics bringing it within
the AWCA. . . . The Legislature presumably did not intend the possessor of
an assault weapon to be exempt from the AWCA's strictures merely because the
possessor did no trouble to acquaint himself or herself with the gun's
salient characteristics. . . .
Justice Kennard was the lone dissent. Justice Kennard said:
I conclude that unlawful assault weapon possession under the California
acdt requires proof that the accused knew the firearm had the requisite
characteristics of an assault weapon. . . . The majority, by contrast,
holds that someone who lacks any actual knowledge that a firearm has such
characteristics can nevertheless be convicted of unlawfully possessing an
assault weapon. The majority does so by injecting into this criminal case a
concept of civil law, namely, the negligence standard in torts, which asks
whether the wrongdoer "should have known" of harm resulting from their
conduct. The majority's test casts too wide a net, snaring persons who
lack the culpability appropriate for imposing a state prison sentence. I
cannot agree that the Legislature intended such an unfair test. . . .
Facilitating prosecution is not the goal of statutory interpretation, nor
will requiring proof of actual knowledge unduly hamper prosecutions for
unlawful assault weapons possession.
I easily concur with Justice Kennard.
The majority, at page 885, said the "general principle [is] that all
persons are obligated to learn of and comply with the law, . . . ." The
majority is strongly admonished that they are obligated to learn, or recall,
the Federalist/Anti-federalist debates, the ratification history for the U.S.
Bill of Rights, what the Founders, Framers and Ratifiers intended, the
Fourteenth Amendment and its history, and to comply with those laws, not
deviate from them.
This court inexplicably persists in acting like it is in the back pocket of
We of the North Caucus would like to repeat that we
feel this document would be incredibly useful in secondary school level
home-schooling situations discussing "civics." At one time this nation
required its children to take courses in "civics." They had to be able
to list the 10 Amendments and many other aspects of the Constitution.
Just remember, any tyrant knows that ignorance is truly the key to
dominating a population. The North Caucus is trying to lower the veil
of ignorance in any way it can via this web site and the educational
materials it contains and to which it refers.
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