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April 10, 2006

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» Harcourt on The Language of the Gun from The Chicago Blog
Last week, Bernard Harcourt lectured at the University of Chicago Law School. His lecture was based on his book Language of the Gun: Youth, Crime, and Public Policy. In the book, Harcourt recounts in-depth interviews with youths detained at an... [Read More]

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Rolf - Audio Books Fan

This is quite disturbing and very insightful at the same time. Guns to some seem to be only way to define themselves and their space in the world. If we don't start to take better care of our young ones, I hate to think what the next generations will use to define themselves....

Joan A. Conway

Katrina remembered in support of owning a gun to protect property rights.

Can America recognize that teens have an interest in their property rights too! How then is the best way to protect their rights, when citizens recognize that their only defense in light of the Katrina crisis and the break down of state and federal government was to resort to being an owner of a gun?

Joan A. Conway

But the “Privileges And Immunities Clause” remains “damaged goods”, gutted since approximately 1876 and the Cruikshank decision. The court in Cruikshank said of the 2nd Amendment:

"This is one of the amendments that has no other effect than to restrict the powers of the National government."
The court found that a Klan group with state gov’t links that ran around stripping blacks of arms couldn’t be sued under Federal law. We’ll go into more detail on the racist history of the USSC in the second portion of this document, on equal protection (Williams vs. State of Mississippi 1898 cited in part two, or the infamous Plessy vs. Fergusen (legalizing “separate but equal” in the same period as Williams)). What the courts finally did in the 20th Century was “selective incorporation” to restore state respect to only those parts of the Bill Of Rights they were comfortable with at any one time — and the right to arms remains “unincorporated” at present, along with the Grand Jury requirement for indictment.
To understand the Privileges And Immunities clause, we have to look at the infamous Dred Scott decision of 1856, and it’s post-civil-war implications.

The court in Dred Scott decided that since the US had been a racist nation since it’s inception, a racist law in 1856 could not be challenged by a black gent, since he lacked the “privileges and immunities of US Citizenship” as held by the group “the people” mentioned in the Constitution.

The court used the complete phrase “privileges and immunities” over 30 times, and exhaustively defined it. To the court in Dred Scott, the “privileges and immunities of US citizenship” included the entire Bill Of Rights just for starters. The court hypothesized what would happen if such “privileges and immunities” were declared held by blacks:

For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them [blacks] from the operation of the special laws and from the police regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. [emphasis added]
It is critical to understand that the ruling in Dred Scott was not invalidated by the Civil War 1861-1865 and the deaths of over 500,000. Indeed, the slaves may have been freed by Lincoln’s order and then the 13th Amendment, but the court’s holding on racist laws being in harmony with the Founder’s intent still stood.
Hence the South began writing specifically racist laws, the infamous “Black Codes”...virtually all of which contained special race-specific restrictions on arms:

1. That it shall not be lawful for any freedman, mulatto, or free person of color in this State, to own fire-arms, or carry about his person a pistol or other deadly weapon.
2. That after the 20th day of January, 1866, any person thus offending may be arrested upon the warrant of any acting justice of the peace, and upon conviction fined any sum not exceeding $100 or imprisoned in the county jail, or put to labor on the public works of any county, incorporated town, city, or village, for any term not exceeding three months.

3. That if any gun, pistol or other deadly weapon be found in the possession of any freedman, mulatto or free person of color, the same may by any justice of the peace, sheriff, or constable be taken from such freedman, mulatto, or free person of color; and if such person is proved to be the owner thereof, the same shall, upon an order of any justice of the peace, be sold, and the proceeds thereof paid over to such freedman, mulatto, or person of color owning the same. [Ed. note: the off-duty fashion choices of “justices of the peace, sheriffs, or constables” at that time tended toward an ensemble of basic white bedsheets with eyeholes...especially at night.]

4. That it shall not be lawful for any person to sell, give, or lend fire-arms or ammunition of any description whatever, to any freedman, free negro or mulatto; and any person so violating the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof, shall be fined in the sum of not less than fifty nor more than one hundred dollars, at the discretion of the jury trying the case.

Alabama statute of 1865, from “The Second Amendment: Towards An African-Americanist Reconsideration”, footnote 178 — two more state-level examples precede that one.

Per Dred Scott, this was perfectly acceptable.
The only way the 1868 legislature could fix that was to overturn the US Supreme Court — which meant a Constitutional Amendment, the 14th.

Which is why they borrowed Dred Scott’s phrasing in the 14th — they started out by making it clear blacks were citizens, and then forbade states from violating the rights of citizens. In doing so, framers of the 14th such as Ohio Republican John Bingham knew that they were carrying out the court’s worst “fears”, allowing the freemen to “keep and carry arms wherever they went” (among other things). See the Halbrook cites above — Bingham and company made no secret of this during the debates on the 14th and the various acts that led up to it and supported it.

So what does all this mean?

1. If the 14th “reinforced” an individual right to arms, it strengthens the arguments for an “individual right” interpretation (“standard model”) as recently supported by the 5th Circuit in US vs. Emerson. Even if the right to bear arms was originally primarily to “ensure a militia” with no “personal right” intended (which is ludicrous to anyone who studies the Founders' writings closely), that cannot have been the case in 1868 because no Southern state was going to voluntarily put blacks under organized arms! The uniforms of “State Militias” in the south of that time ran toward modified bedsheets. So we’re talking about a right to personal arms for private defense, against both criminals and the state itself.

2. And we’re no longer talking about flintlock muskets, are we? Revolvers were common as fleas by then, with working models available since 1836. In fact, used specimens were affordable to freemen. The Mormon security forces prior to their move to Utah were well known for packing .44cal percussion revolvers with barrels chopped to 3” or so, carried concealed. And rifles of up to 15shot capacity were available, as were the first Gatling Guns(!) patented 1862.

3. Better yet, we see that the right to arms is protected from STATE infringement.

4. Best of all, the framers of the 14th would have known that for freemen to safely “bear arms wherever they went”, the arms in question would of necessity be concealed! Anybody want to guess what a Southern cop of 1869 would think of a melanin-enhanced gent doing open-carry? (Last time the NYPD thought they had an armed black dude in sight, they opened up with 41 rounds, and that was in our more “modern, enlightened age”.) This particular “logic chain” is the only path I know of to gaining a Constitutional right to bear CONCEALED arms that the courts may one day adopt, once they abandon the horrific racism of Cruikshank.

Part Two: 14th Amendment Equal Protection as a Path to Gun Control Reform

In the last section, we discussed use of one part of the 14th Amendment to affect gun control reforms. Problem is, the “privileges and immunities” language STILL isn’t properly understood as a deliberate reversal of Dred Scott, so you’d need to go all the way to the USSC to win.

But the Equal Protection clause of the 14th is another matter entirely, well supported and understood! In this section, I’ll show how current case law can be used to overturn California’s discretionary CCW system and an unknown number of other gun control laws.

Herein, I’ll show that this isn’t just theory, it’s already happened at least once in People vs. Rappard.

One KEY thing: WE MUST have a MINORITY CO-PLAINTIFF TO PULL THIS OFF!

Joan A. Conway

A Practical Guide To Race And Gun Control

by Jim March
jmarch@prodigy.net
March 1, 2002

Joan A. Conway

I must say something about Cruel and Unusual Punishment and The Meaning of Due Process with the Criminal procedures here.

When arguing about rights under the Incorporation of the Fourteenth Amendment, for equal protection of the law, and procedural due process by the state, remember to include the Bill of Rights under the U.S. Constitution and the State's Constitution, separately, or 13th, 1st, 4th, 5th, 8th, 9th, 10th, and 14th Amendments, U. S. Constitution.

Because the Courts might want you to jump throw many hoops to prove you rights were curtailed or violated, as Cruel and Unusual Punishment, under another claim(s) for Intentional Emotional Distress, and Fraudulent Inducement into an Economic Advantage

Posted by: Joan A. Conway | March 15, 2007 at 04:46 PM

Joan A. Conway

If I have left this blog incomplete, it is because I know little about criminal law.

I have yet to read the text book concerning it.

I am finishing up with Constitutional Law and there may be something overlooked as far as Civil Rights is concerned here too!

Basically, I have read Tort Law (Defamation is most difficult), and Business Associations, and books on the Appellate Process, and Law and Equity, fidelity to the law, plus loads of cases, both from the Supreme Court, to the Appellate Court, to the District Court, to the State Court(s), over 14 years.

So "Leave it to Beaver" here!

Joan A. Conway

There is a radio program that I discovered yesterday, from 2 to 4 P.M., 720 AM, WGN, Legally Speaking, with Greg Adamski and Karen Conti. As a substitute for the Cubs time slot.

It is fun to be a participant on the jury with very technical questions concerning real estate zoning and high water marks on transactions and lawsuits for damages, as was the case on April 1, 2007.

The program can be heard on Saturday's as well when the Cubs are not heard.


One of the things that blogging exposes is the fact that bloggers, such as myself, are not always students of the subject that they offer an opinion on, such as criminal law.

In a murder trial, there are three stages of it:

The first being liability. Second being death penalty for multi-murders, like John Wayne Gayce, or killing a police officer in the "line of duty" or killing someone in a penetentry (sp?).

The Third had something to do with the death penalty, but I can't remember it.

Is anyone blogging a student of criminal law, or the professory who can answer this question as it may concern the Brown Chicken suspects and the music magnate murder coming up for trial, finally.

A blog on Conrad Black's chances of a lighter verdict could speak well for former Governor, Jim Thompson.

What are Conrad's chances to escaping it altogether?

Joan A. Conway

At the present time I am involved in Dental Billing Errors and with Fraudulent Claims made by the Dept. of Human Services in Food Stamps, and with denying Specified Low Income Beneficiary status to a qualified recipient of Social Security Administration part A Hospitalization and part B Medical Insurance.

I will be cutting in and out of this blog until I solve the problem and it goes away from my lead ins.

Joan A. Conway

Remember that there are a few determinates for welfare in this state, as there is probably in all of the other states.

The first being that every January 1 the Federal Department of Human and Health Services provides their measure of the Federal Poverty Guidelines taken from the U.S. Census.

This year the amount for 1 member is $851.00, effective 1/1/07.

The standard is used in calculating Food Stamps and health coverage.

The COLA adjustment is done by the Worker and they often fail to make this adjustment robbing the recipient of the full value of their food stamps from January through April, when the central data center automatically performs the calculations.

The next determinative is the air conditioning/heat standard that the state determines on April 1, and is effective on April 2.

This amount provides for an additional amount on the rent before deductions 50% of Adjusted Net Income.

Therefore when the Social Security Administration increases the benefits the first of the year, the worker must offset the increase (COLA) and use the old amounts until April.

The next amount to remember is your rent increase, when your lease is up. This also chances the calculations.

When a spenddown is involved, the failure to not remove the COLA increase ususally increases the spenddown a considerable amount for January through April.

If the incident happens two years in a row, like my calculations have, I can prove negligence, and perhaps misrepresentations for Public Aid Mail and Wire Fraud, and Honest Services.

But of course the errors do not stop there. There are other errors more individualized in context.

The Department takes under the "taking clause" from your property interest in social security benefits, and a liberty interest in your appeal process with fraudulent evidence to intimidate you from proceeding with a lawsuit about health issues under the state's exercise of its police power for the welfare of its citizens.

Maybe this only happens to me, but I really don't think so!

It is one of the most difficult areas of law that you can imagine.

And it is just plain English, too!

It took me many years to accomplish what I have just relayed to you.

If you never need it that is just great.

If you can help someone in need that is also great.

But whatever the reason that you have read this blog, the information is precious.

Take Care to Obey the Laws!

Joan A. Conway

Notes to the Blog:

This post concerns the slaughter of Cho Seung-Hui, a 23-year-old English major, on April 17, 2007, at Virginia Tech.

In Wyoming and Montana, this would not have happened, so says some of its residents' because they shoot back!

Do we have too many guns in the city and not enough guns elsewhere?

Joan A. Conway

To clarify my mistake: April 16, 2007, Monday, is the infamous date.

Another mass murder in the cruel month of April.

Why might this be?

It seems that the Ceasar(s)of Rome and the Roman Empire had something to do with this too!

This is according to the bits and pieces of my vast historical readings.

I may be wrong, but what I have put together in my mind is the following explaination: "After the winter, troop were prepared to go to conquered territories to collect imposed taxes on their citizens, so the march began in March, culminating in retaliatory measures by April."

An unknown author stated that guns curb crime.

One has to be reasonable about carrying a gun, since some campus' are gun free zones, like Virginia Tech.

A lot of good it did the 32 professors, lecturers and students April 16, 2007, when a long suffering senior male student decided he had enough of the competitive atmosphere of the "Hokeys."

I know that Harvard Law School is much less competitive that other law schools, because their students are guaranteed positions somewhere in the United States, so no perverse presures are imposed on odd-balls. But this student was more than an odd-ball, since he harbored very hostile notions towards society, especially the wealthy.

I would suggest that he was trying to save face, an oriental custom, and he had village envy towards capitalism and capitalists, until the two forces took over his whole personality and purpose.

He was a senior with little hope for a career due to him being rejected by authority, and his peer group.

Hopelessness pulled the trigger repeatedly as he climbed an imaginery Mountain of Self-Importance, until he could no longer cloud his thoughts with his violent acts and then turned the gun on himself.

Leaving behind him great slaughter including his hopelessness invested in his DVD and his writings.

The insane have always been far more interesting than the sane, like comparing a pedestrian to a mountain climber.

Of course this is out-of-proportion to the great harm they have caused others, but it is reality.

Hilter, and his ilk, lives along with his madness in our libraries, and media.

People study the insane.

That is the way it is!

For better or for worse.

No one gags a historian to not write about Lenin!

My condolences to the family members of the 32 slain.

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