Legally Prepared?, by L.C.

Tuesday, Jan 15, 2013

Picture this: On some not-so-remote night, you are awakened by an insistent thumping on your door, or perhaps by the sound of breaking glass. You stagger up and groggily go toward the noise, maybe muttering or worse. Perhaps you have the time and presence of mind to grab your home defense tool of whatever description, and maybe you awaken your spouse and get him or her (and any children) to a more secure part of the house. Now what? What are you prepared to do?

Like many of you, I have been self-sufficient and responsible for more decades than I care to remember, starting with my days in the Scouts and continuing through my backpacker period in the 1970s. As a downy-faced youth barely out of my teens, I raised my right hand and solemnly swore to uphold the Constitution of the United States and of the Commonwealth of Virginia, an oath I have reaffirmed five times since and take very seriously. In the intervening thirty-five or more years, I have served as a member of state, local, and federal law enforcement organizations. I was a prosecutor for about twenty years and have practiced law in and out of government. I competed in intercollegiate shooting sports back in the day, and have maintained safety and proficiency ever since. I have food, water, medical supplies, radios, batteries, ammunition and other prudential stores securely on hand, just as I am sure many of you do. I do not scare easily.

But I am concerned today more than I have ever been. Why?
Go back to the opening paragraph of this post. In the time I used to introduce myself, you have stumbled to a window and looked out over the street. Oddly, you note, the police already seem to be there to deal with this apparent home invasion. Good, it saves you the 9-1-1 call and allows you to relax some. The cavalry is already here! That reflex, borne out of a century of trusting relationships with law enforcement officials, just might get you killed tonight.You see, the police are not here to help you – to either serve or protect you – tonight. They are here to search your home, detain your family members, and perhaps to arrest you or them. No, this is not some bad dream from 1930’s Nazi Germany, or Stalinist Russia. .. but it might as well be. Your crime? Rumored possession of a twelve-round magazine.

Impossible? I hope so with all my heart, but the trend lines are leading in that direction with a velocity I have never seen before. The current occupant of the White House is no friend of freedom and is famously dismissive of the opinions of people who disagree with him. He has nothing to fear and nothing to lose. Congress has proven itself incapable of principled action, other than self-serving posturing and dithering. The barely-suppressed glee with which the opponents of an armed law-abiding citizenry sought to capitalize upon the tragic loss of life in Connecticut should be a wake-up call to all of us. Consider Senator Feinstein: her gun registration/confiscation/licensing/permitting bill was drafted and ready before the shooting started, so it could be pulled off the shelf and presented as if it were prompted by the tragedy. This crisis, from their perspective, is just too good to waste. The Judiciary, then, certainly? Hang on for a minute.

Those are the politics of the day and are beyond my expertise. My purpose in authoring this post is to encourage you to pause and reflect on the legal and Constitutional framework in which your life-and-death decisions will be made this awful night, and every night hereafter, together with some suggestions I hope you will consider. First the disclaimer: this is general Constitutional and occasional Virginia state law information, and should not be considered legal advice, either in Virginia or elsewhere. If these musings prompt you to specific legal questions, you should consult an attorney licensed in your state and experienced in the subject matter of your concern.

So, let us begin at the beginning – why shouldn’t you surrender your firearms to Senator Feinstein’s minions, or at least let her and her Congressional buddies decide how many of what type of what caliber and what action you should be “permitted” to possess, and when, and where? The simple answer to that question is the best one: it is simply none of her business.
I admit that I do not know how things are in the People’s Democratic Republic of California, but here in the United States we have a foundational principle, enshrined and encapsulated in a document called the Constitution. The Constitution, ratified in 1789 and amended twenty-seven times since, is a living and breathing expression of the minimal conditions deemed necessary, in 1789 and every day since, for liberty to blossom. Think of it as the DNA of freedom – the simple, brief, and basic blueprint that underlies and enables everything that makes the United States the United States. Just as with DNA, if you tweak or delete or add to the basic components, the creature that emerges is not merely a weakened version of the original, but (if it lives at all) is a completely different creature.

Our Constitution is a model of clarity and brevity. There is nothing in there that is complicated or obscure. You could read it (and I hope you will) in a few minutes, including the Amendments. It sets out some basic principles, establishes a structure for the federal government, specifies a few duties for the federal government to address, and then sweeps up everything else back into the bin from which the material to form a government came in the first place – from the people. Drawing on another pillar of liberty, the Declaration of Independence, the Constitution is an expression of the consent of the governed to a specific and very limited role for the central government. That consent, like any consent, may be revoked or modified but should not be taken for granted.

One stark difference between our Constitution and others attempted in other places and times is that the Constitution is all about limiting, not expanding, the powers of the central government. Fresh from the experience of the War of Independence, fighting against monarchial tyranny, the drafters of the Declaration of Independence (before the war) and the Constitution (after) were mindful of the human reflex to aggregate power and were determined to institute safeguards against that aggregation. That is one reason why there are three independent and theoretically equal branches of the government, one of which is composed of two bodies chosen in vastly different manners for significantly different time periods. That is why the states were originally active participants, controlling the selection of senators. That is why the resultant entity was called “The United States of America”, as opposed to the “Homogenized Formerly Independent States of America”.

Look again at the first Ten Amendments. You or I, in our individual capacities, could not possibly violate the Bill of Rights because every provision is a restriction upon the conduct of the central government, made applicable to the states through the Fourteenth Amendment. Also please notice that the Amendments do not undertake to create rights for us, but rather that they guarantee preexisting God-given rights, or rights free men had earned and received in centuries of struggle with the English Crown, like trial by jury. You may recall that these first ten were part of a package of twelve proposed amendments passed by the first Congress in response to concerns in some states, that the original draft was not sufficiently specific and clear that the central government was, in all Constitutional matters, a limited carve-out from pre-existing states rights or citizen’s rights. Two of the twelve, the first two, were not ratified by a sufficient number of states, so the ten which were ratified were renumbered and became the Bill of Rights. Finally, please notice that there are no “senior” rights or “junior” rights – no super-amendments or semi-amendments – and that every right is of equal significance and is entitled to the same deference.

Unpack the Amendments and you will immediately see that they support and reinforce one another for the purpose of restraining the central government from tyrannical impulses. They do not represent an ala carte menu, from which the government may pick and choose, but rather constitute a recipe in which all the ingredients are necessarily included. This reality has real consequences; no one would look at a brownie and insist that the baker “back out” the eggs for use elsewhere, and neither could one reach into the Constitution and void one provision without crashing the whole thing. Freedom of speech and of religious expression, of peaceful assembly, to petition the government, from unreasonable searches and seizures, from excessive bail, from compelled self-incrimination, from cruel and unusual punishment. . . these are all cut from the same cloth as one another, and all cut from the same cloth as the right to keep and bear arms. The Second Amendment is no more an anachronism than is the First, or the Fourth, or the Fifth, and that is why, Senator, I do not need or seek your permission to keep and bear arms.

Either from intellectual dishonesty or lack of capacity, this point is seldom made in the discussion of gun rights, but it should be, and I encourage you to ponder it. Given the interdependence of the rights expressed (but not “granted”, remember) in the Bill of Rights, the arguments advanced by Senator Feinstein, Governor Cuomo, and others are plainly flawed. Take any one of them, pop out the references to firearms, and replace it with another right reiterated in the Constitution. “Why would anybody need more than ten cartridges to hunt deer?” then becomes “Why would anyone own more than ten books?”, or “Why would anybody need to post more than ten blog posts?”. “Why would any city need more than one newspaper, or more than one house of worship?”

Indeed, twisting a Second Amendment discussion to a discussion about hunting (or target shooting or collecting or home defense) cedes the main point – the Amendment prohibits infringement of the right for any reason, or for no reason. It is not a hunting amendment, although it reinforces a hunting tradition. It is an anti-tyranny measure – nothing more, and nothing less. Want more proof? Review the rest of the Constitution . . . no other tangible object is expressly named and expressly protected from government infringement. You have no specific Constitutional right to possess anything else; that speaks volumes about the strength and purpose of the amendment. Nothing else is specifically protected because nothing else can compare with the effect firearms have on tyrants.

Another fallacy commonly running through the arguments of those seeking to infringe gun rights is that those proponents are making use of some of the same rights in their efforts to invalidate another. They are freely speaking, assembling, petitioning, as they are welcome to do, for the purpose of undermining their freedom to speak, assemble, and petition. Considering the interdependent nature of the rights enumerated in the Bill of Rights, it is fallacious to claim to support some while decrying others. If your spouse or significant other were to cheat on you every Friday night, for example, would you consider that he or she is 86% faithful? No, you would rightly conclude that he or she is ”unfaithful”, and the same is true of those who claim to ardently support “some” of the Bill of Rights. They survive or fail as a group.

How do you know that the anti-gun forces know that their argument is flawed? Because they have consistently approached their aims by nibbling away at gun rights, by stealth and guile and a state at a time, especially when they can find cover in some tragedy. If they really believed that the Second Amendment is not a basic right, or that the vast majority of people in the United States do not value it as a basic right, they have had over two hundred years to propose an amendment repealing the second amendment. Nothing is stopping them, except the illogic of their own position.

Back at your door, you warily peek out and are stunned to see the pale face of your neighbor, or member of your church, or the parent of another child on your child’s sports team, except tonight he is wearing a helmet, and body armor, and talking into a radio to others you cannot see. Do you invite him in? You may or may not have known that he was a police officer or federal agent, and until tonight it has not mattered to you. Tonight, however, it matters. What will you do?

What you will do is a very personal and difficult decision. What you may do, depending on the circumstances, is easier to describe. With few exceptions, you are under no obligation to open your door to the police. You may, if you choose, remain silent. You may order them off your porch and away from your property. If they escalate and try to force an entry, there are cases which endorse the principle that you may use a reasonable amount of force to resist an unlawful entry or assault, including lethal force if necessary. (See, John Bad Elk v United States, 177 U.S. 529). The facts of these cases are always horrific for everyone concerned, however, and in some of the state cases the result was that the homeowner was convicted of manslaughter instead of murder, which is some solace but definitely not a desirable outcome.

Another approach is to communicate with them. If they are on any lawful mission (as opposed to some cops-gone-wild frolic of their own) they likely have obtained a warrant, either a search warrant to look for something specified in the warrant or an arrest warrant for someone they have reason to believe is located in the house, or perhaps both. The homeowner or person in charge of the location is entitled to see the warrant and know what it authorizes. If a federal warrant, daytime execution is generally required unless the officers have pleaded facts which convinced the issuing judge to authorize a night search. State laws differ on this point. If they have a warrant, resistance is not only futile but is unlawful. You must consent to the execution of a warrant; live to litigate another day. How will you know? They are supposed to announce that they have a warrant, if they do, but you can almost always get in contact with the police commander on scene through the 9-1-1 system. Tell the dispatcher (who is recording the call, so be prudent) that unknown persons are on your porch, ask for assistance, and then ask to speak with the commander if dispatch claims the officers. The fact that the one you saw is all tactical is a plus, in an odd way, because it shows that the officers are concerned for their safety and may be willing to discuss a peaceful resolution.

In this conversation, if you choose it, be judicious in your speech. Do not say anything that might be interpreted as a threat against them or anyone else – that might just give them the excuse they are looking for to escalate. This will be very hard, since your adrenalin will be on overdrive, but it is necessary. Ask whomever you can reach to read the warrant to you. If they have no warrant, tell them goodbye and goodnight. Make no admissions about anything, and do not consent to anything. Remember, they are the professionals at this (“May we just come inside and sit on the couch and work our way through this misunderstanding. . .?”). If they have a warrant, they do not need consent. If they do not have a warrant, they cannot get consent. Right? If at all possible, an audio and video recording of the contact will pay dividends far beyond its expense. If interviewed, I recommend the old Irish Republic Army saying: “Whatever you say, say nothing at all.”

If you elect to litigate another day, you should know what you are up against. I promised, above, to write more about the judicial branch, and here is where I deliver on that promise. Look at Article III of your Constitution . . . absolutely everything the Constitution says about the judicial branch is contained in those ten sentences. Everything else ever done by a federal judge, since 1789, is judicially or statutorily created and extra-constitutional. The Constitution establishes one judgeship, the Chief Justice, and authorizes Congress to create more, if necessary. They have done so, with a will. There are presently 874 federal judgeships, representing a three-fold increase just since 1950. One hundred seventy three of those, or about 20%, are judges nominated by this president in the past four years. Unique in the United States political experience, but common among tin-pot dictators in banana republics, federal judges are appointed for life. They are theoretically subject to impeachment by the House of Representatives and removal by the Senate, but this sanction has been tried only eleven times since 1789 and has resulted in removal only seven times, representing about 0.1% of persons who have served as federal judges. One of the most recent, District Judge Alcee Hastings of Florida, was impeached and removed in 1989 for perjury and bribery, after which he was elected to the House of Representatives, where he remains today. Impeachment is not a serious concern of jurists.

Notable among these extraconstitutional excursions is the claimed authority to invalidate legislative enactments or executive decisions by the simple expedient of declaring those decisions “unconstitutional”. The irony in this is too rich to pass without comment – unaccountable judges making up a rule not found in the constitution to create a veto over the actions of the elected, accountable branches of government, while justifying the grab by constitutional arguments. The case that first articulated this judicial power grab was Marbury v. Madison, a 1802 Supreme Court decision related to the authority of the Court to compel the newly-inaugurated President Jefferson to recognize the last-minute appointments of John Adams’ supporters to federal judgeships. Although not found in or added to the Constitution, this judicial power is not seriously questioned today. Because of this, and because the Supreme Court is the highest federal court, their pronouncements acquire the character of transcendent wisdom, even when demonstrably false or inconsistent. This is the court that found that racial segregation is constitutional (Plessy v. Ferguson, 1896) and also that is not (Brown v. Board of Education, 1954). To paraphrase the words of Justice Robert Jackson, the Supreme Court is not final because it is infallible, but is infallible because it is final.

Federal judges are overwhelmingly older white males (about 70%) who are wealthy by any measure. They are all lawyers, and most are graduates of the same few Ivy League schools. They receive a salary, which may not be diminished, on a par with the starting salary of a first-year associate from a prominent law school working in a big-name big-city law firm, so it would be overly polite to suggest that the best legal minds are concentrated on the bench. Indeed, the Chief Justice has campaigned for higher salaries for judges on this exact basis. (Law school snarky riddle: What do you call an "A" student ten years after law school? “Professor”. What do you call an "C" student ten years after law school? “Your Honor”).

Stark choices, indeed; the young trooper on the porch, in paramilitary garb, or the old judge on the bench, dressed (for some obscure reason) in a medieval cleric’s robe. If he or she is a federal judge, the probability today is one out of five that this president appointed him or her, which could be problematic for you if the issue is some Executive Order issued by the man to whom the judge owes his or her lifetime appointment. That likelihood only grows during the second term.
How about a third option? Apply the principles of cover, concealment, and camouflage to your daily actions with a goal of avoiding the dilemma presented above, and create a “door number three” through which you might escape undetected and unharmed. How?
Consider how people get caught and convicted for present day offenses, and then apply that to the as-yet hypothetical situation in which some firearm or accessory you lawfully posses may become prohibited. Defendants get to be defendants for a very few reasons:
• They are careless in their actions
• They are careless in their words
• They are careless in their selection of “friends”

Those three errors account for the vast majority of charges and convictions, and any future government action against you is likely to follow this pattern. What preparations can you make today that will lessen the probability of this occurring to you, or mitigate the harm if the situation cannot be avoided?

Suggestion One: Make it unnecessary. The scenario outlined above is hypothetical, for now, because no one has seriously proposed additional restrictions (as of the writing of this in mid-January, 2013). That means that the political system, flawed though it is, may provide the safest and surest means to immediately resist any further infringement. Communicate with your legislators, both local and federal, and make your calm and reasonable voice heard. Ranting, while satisfying on some level, is counterproductive. Consider joining and supporting pro-constitutional organizations. Network. Vote. Contribute financially to candidates who support the Constitution and oppose those who do not. Don’t get mad, get busy!

Suggestion Two: Make it hard on them. The simple math of the situation dictates that, should the political process fail the Constitution, enforcement will necessarily be selective and spotty. This argument presupposes that the rest of the society has not crumbled, in which case all bets are off, but rather that respect for only this part of the Constitution has faltered. There are a limited number of police, agents, marshals, judges and jails; they will have to choose targets of opportunity or those prosecutions which make a statement to intimidate others. Your suggested strategy is to be neither of those. Reconsider that “cold dead hands” bumper sticker with a view to how that sentiment might be used against you in a search warrant affidavit to justify a night search. Reevaluate whether it is prudent to advertise your favorite gun manufacturers with stickers on the windows of your vehicles, or with custom license plates. Yes, I know that this represents a self-infringement of both your first and second amendment rights, but I note that this option is only selected after the government jumps the rails and disregards both. If you choose martyrdom, do it thoughtfully.

Similarly, anticipate that everything you write and have ever written on the Internet is still around and might be used against you. Police just need a search warrant, based on an affidavit, to get all of your emails and tweets ever sent, all social media posts and photos, and all data from your computer(s), depending on the retention policies of your service providers. They need less than that, under some circumstances, to get phone records, credit card statements, and other data in the hands of third parties. This might be a great time to look into encryption technologies and IP masking services (like Tor, The Onion Router), but at least be mindful that anything you say or do online or on your smartphone can come back to bite.

Suggestion Three: Make it unproductive. Since scarce enforcement resources will be chasing big headlines and big successes for their political masters, deprive them of this prize. You are not likely to use all of your firearms and all of your ammunition in one night, right, so why risk storing it all in one place where it all may be found? Be creative – and learn from ordinary criminals. Don’t hide your stash where other people can stumble across it, and do not tell anyone what you have and where it is. Do not being twenty guns to the range and let others see them. Trust no one, and particularly not people you do not know extremely well. Let them take all night getting a safe open only to find a broken .22 revolver. If you choose to carry, with or without whatever permit your state requires, do so discretely. In short, be safe by being invisible.
We can all hope that it never comes to this, but prudence dictates preparation. Unless you are willing to consent to the systematic destruction of your basic rights, give it some thought.


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