summer patriot, winter soldier

natural law cases and authority ... raw notes preserved ...

these are notes i am preserving here for my own personal access, if i can acquire them no other way.  you may or may not find the notes and the links in here of any interest.  feel free to peruse them, there is interesting stuff here if you are at all interested in this sort of stuff.  otherwise, it is pretty deadly.  laughing.

 

http://volokh.com/posts/1216847930.shtml  from a post in the blog “volokh conspiracy”, discussing self defense under natural law theory, with a couple of publish comments on various cases.

http://volokh.com/archives/archive_2008_07_13-2008_07_19.shtml#1216392861  also an article by david b. kopel, in which very long quotes from sections of john lock’s works are listed, and also a section on common law views on natural rights of self defense as propounded in state court decisions.  a very good source.

for background, here is locke on the fundamental law of nature, man being to be preserved as much as possible from his second treatise:

sec. 6: . . .e very one, as he is bound to preserve himself, and not to quit his station willfully . . . .

sec. 16. the state of war is a state of enmity and destruction: and therefore declaring by word or action, not a passionate and hasty, but a sedate settled design upon another man's life, puts him in a state of war with him against whom he has declared such an intention, and so has exposed his life to the other's power to be taken away by him, or any one that joins with him in his defence, and espouses his quarrel; it being reasonable and just, i should have a right to destroy that which threatens me with destruction: for, by the fundamental law of nature, man being to be preserved as much as possible, when all cannot be preserved, the safety of the innocent is to be preferred: and one may destroy a man who makes war upon him, or has discovered an enmity to his being, for the same reason that he may kill a wolf or a lion; because such men are not under the ties of the common law of reason, have no other rule, but that of force and violence, and so may be treated as beasts of prey, those dangerous and noxious creatures, that will be sure to destroy him whenever he falls into their power. . . .

sec. 19. . . . but force, or a declared design of force, upon the person of another, where there is no common superior on earth to appeal to for relief, is the state of war: and it is the want of such an appeal gives a man the right of war even against an aggressor, tho' he be in society and a fellow subject. Thus a thief, whom I cannot harm, but by appeal to the law, for having stolen all that I am worth, I may kill, when he sets on me to rob me but of my horse or coat; because the law, which was made for my preservation, where it cannot interpose to secure my life from present force, which, if lost, is capable of no reparation, permits me my own defence, and the right of war, a liberty to kill the aggressor, because the aggressor allows not time to appeal to our common judge, nor the decision of the law, for remedy in a case where the mischief may be irreparable. Want of a common judge with authority, puts all men in a state of nature: force without right, upon a man's person, makes a state of war, both where there is, and is not, a common judge.

sec. 25. . . . men, being once born, have a right to their preservation . . . .

sec. 128. for in the state of nature, to omit the liberty he has of innocent delights, a man has two powers.

the first is to do whatsoever he thinks fit for the preservation of himself, and others within the permission of the law of nature . . . .

sec. 129. the first power, viz. of doing whatsoever he thought for the preservation of himself, and the rest of mankind, he gives up to be regulated by laws made by the society, so far forth as the preservation of himself, and the rest of that society shall require; which laws of the society in many things confine the liberty he had by the law of nature. . . .

sec. 131. but though men, when they enter into society, give up the equality, liberty, and executive power they had in the state of nature, into the hands of the society, to be so far disposed of by the legislative, as the good of the society shall require; yet it being only with an intention in every one the better to preserve himself, his liberty and property; (for no rational creature can be supposed to change his condition with an intention to be worse) the power of the society, or legislative constituted by them, can never be supposed to extend farther, than the common good; but is obliged to secure every one's property, by providing against those three defects above mentioned, that made the state of nature so unsafe and uneasy. . . .

sec. 134. the  great end of men's entering into society, being the enjoyment of their properties in peace and safety, and the great instrument and means of that being the laws established in that society; the first and fundamental positive law of all commonwealths is the establishing of the legislative power; as the first and fundamental natural law, which is to govern even the legislative itself, is the preservation of the society, and (as far as will consist with the public good) of every person in it.

sec. 135. though the legislative, whether placed in one or more, whether it be always in being, or only by intervals, though it be the supreme power in every common-wealth; yet,

first, It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the common-wealth, and by it to the legislative power, so that the legislative can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the subjects. The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men's actions, must, as well as their own and other men's actions, be conformable to the law of nature, i.e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it.

 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1172255  a link to an apparent draft portion of an article by kopel, david b., the natural right of self-defense: heller’s lesson for the world (july 23, 2008) syracuse law review, vol. 58, 2008.

 

this post makes no pretense of literary merit.

none.

all that i doing in this post is copying the text of several footnotes that appear in a pdf document that I found in the last link and printed for myself.  whether they appear in the Syracuse law review article I haven’t the foggiest idea.

i do not much care.

but, the information appearing in these footnotes is a treasure trove, reflecting a wealth of scholarship and research on the part of professor kopel, and must be preserved.  that is all there is to it, so i am setting them out.

 

the footnotes follow.

n. 15.  see, e.g., people v. young, 825 p.2dn 1004, 1007 (colo.app., 1991)(citing the 1960 colorado supreme court decision vigil v. people that “self-defense is a natural right which is based on the law of self-preservation”); fich v. state, 445 so.2d 964, 966 (ala.crim.app., 1983)(“we agree with a proposition expounded in blankenship, supra, that : ‘self-defense is a common instinct and a natural right, and, as we understand it, means standing one’s ground and repelling, as a means of self-protection, unprovoked force with force.’”); miller v. state, 119 n.w. 850, 857(wis. 1909)(“the divine right of self-defense”).  hummel v. state, 69 okla.crim. 38, 99 p.2d 91 (okla.crim.app., 1940)(“the law adopts the natural right of self-defense, because it considers the future process of law an inadequate remedy for present injuries accompanied with force.”); national life & assoc. ins. co. v. turner, 174 so. 646, (la.app., 1937)(“the right of self-defense is a natural right.”); alien v. currie, 8 la.app. 30 (la. App., 1928)(“even men of mature years will, in the exercise of their natural right of self-defense, meet or repulse any aggressor who may attempt to encroach on their rights.  this is unquestionably true.”); people v. burns, 300 ill. 361, 366, 133 n.e. 263 (ill. 1921)(“when a citizen exercises the right of self-defense, he is not taking the law into his own hands.  he is simply exercising a natural right which the law recognizes and protects.”); state v. Arnett, 258 mo. 253, 167 s.w. 526 (mo. 1914)(if a statute against exhibiting a weapon in an angry manner “was designed to abrogate the right of self-defense, and if its effect be to do so, it is then more than possible that its constitutional validity might well be questioned, for that it whittles away a part of that ‘natural right to life, liberty and the enjoyment of the gains of their own industry,’ which is vouchsafed to the citizen by the organic law, section 4, art. 2, const.mo.”);  people v. Watson, 165 cal. 645, 133 p. 298 (1913)(“while defendant’s conduct with the woman was immoral, it did not take away from him the natural right of self-defense …”); railroad commission of ohio v. hocking valley r. co,, 82 ohio st. 25, 91 n.e. 865 (1910)(“by universal consent self-defense is recognized as a natural right of every individual and of every collection of individuals.”); robinson v. territory, 16 okla. 241, 85 p. 451 (indian terr., 1905)(“the right of self-defense is founded upon the natural right of a man to protect himself against the unlawful assault upon him by another.”; st. louis southwest ry. co. v. berger, 64 ark. 613, 44 s.w. 809 (1898)(railroad cannot be sued because of an employee’s act of lawful self-defence.  the employee’s self-defense is “not within any employment he may make, being a natural right which he can neither surrender, nor gratify by any contractual act …”); thornton v. taylor, 19 ky .. rptr. 320, 39 s.w. 830 (ky., 1897)(“the right of self defense rests on the natural right.”);  state . mcgonigle, 14 wash. 594, 45 p. 20 (1896)(“the plea of self-defense rests on the natural right.”);  konigsberger v. harvey, 123 or. 286, 7 p. 114 (1885)(“the law upon that subject is the same as it was 500 years ago.  the right of self-defense is a natural right, inherent in mankind …”); isaacs v. state, 25 texas 174, 177 (1860)(“it is the necessity of the case, and that only which justifies a killing --  on that necessity the right t kill rests, and when the necessity ceases, the right no longer exists.  this limitation, which the law puts on the right of self-defense, is founded on the same law of nature and reason which gives the right of defense; and it does not restrain it, but protects it and prevents its abuse by those who would, under its color and the pretense of defense, seek to gratify revenge or an occasion to kill.”)

even in the south on the eve of the civil war, the natural right of self-defense guaranteed the right to a free black to use violence against a white law enforcement officer:

the conviction of the defendant may involve the proposition that a free negro is not justified, under any circumstances, in striking a white man.  to this, we cannot yield our assent …. .

….

an officer of the town having a notice to serve on the defendant, without any authority whatever, arrests him and attempts to tie him!!  is not this gross oppression?  for what  purpose was he to be tied?  what degree of cruelty might not the defendant reasonably apprehend after he should be entirely in the power of one who had set upon him in so highhanded and lawless a manner?  was he to submit tamely?—or, was he not excusable for resorting to the natural right of self-defense?

upon the facts stated, we think his honor ought to have instructed the jury to find the defendant not guilty.  There is error. Venire de novo.

state v. davis, 52 n.c. 52 (7 jones)(1859).

a decision from a few decades earlier shows the connections with the english and american common law natural right:

the right of necessary defence, in the protection of a man’s person or property, is derived to him from the law of nature, and should never be unnecessarily restrained by municipal regulation,  however proper it may be for every well ordered community to be tender of the public peace, and careful of the lives of its citizens, there can be neither policy or propriety in extending this tenderness and care so far as to protect the robber, the burglar and the nocturnal thief, by an unnecessary restraint of the honest citizens’ natural right of self-defence.   Sir Matthew hale, in speaking on this subject, says, “the right of self-defence in these cases is founded in the law of nature, and is not, nor can be superseded by the law of society.  before societies were formed, the right of self defence resided in individuals, and since, in cases of necessity, individuals incorporate into society, can not resort for protection to the law of society, that law with great propriety and strict justice considerth them as still, in that instance, under the protection of the law of nature.”

gray vs. combs, 30 ky. 478 (1832).  hale was lord chief justice of england from 1671-76, and one of the most influential of all common law judges and treatise authors.  the quote actually appears to be from michale foster, crown cases and crown law 273-274 (1762).  foster was a judge of the court of king’s bench from 1745 to 1763, and was much respected by blackstone.  This quote, with the attribution to foster, appears in the 1847 american annotated edition of mattthew hale, 1 history of the pleas of the crown 478 n. 1 (w.a. stokes & a. ingersall eds., phil., 1847)(1732)(note added by editor.)  because the 1847 “first american editon” of hale post-dates the 1832 court decision, it seems probable that the Kentucky court was using an english edition of hale which also  included an editor’s annotation with the foster language.

to muddy the trail a little further, part of the quote appears in parrish v. commonwealth, 81 va. 1 (1884), citing to hale as quoted in “rutherforth institutes”—which means thomas rutherforth, institutes of natural law: being the substance of a course of lectures on grotius de jure belli et pacis read in st. john’s college, cambridge ch. 16 (1^st pub. 1754-56)(a series of english-language lectures on grotius [infra} and natural law; rutherforth’s treatise was very popular in the united sates in the 18^th and 19^th centuries).  cf. commonwealth v. rilely, thacher’s crim. cas. 471, 474-75 (boston mun.ct., mass., 1837)(citing foster: “in the case of justifiable self-defence, the injured party may repel force by force in defence of his person, habitation, or property, against one who manifestly intendeth and endeavors by violence or surprise, to commit a known felony upon either.  it is justly considered that the right I such case, is founded in the law of nature, and is not, nor can be superseded by any law of society.  there being at the time no protection from society, the individual is remitted for protection to the law of nature.”

 

note 18. 

 

from the text:

 

…. gratian’s “treatise on the discordant canons” consolidated and synthesized disparate sources in various canon laws (church laws).  he began with an explanation of natural law:

natural law is common to all nations because it exists everywhere through natural instinct, not because of any enactment.  it includes the union of men and women, the succession and rearing of children, the identical liberty of all in the acquisition of those things, which i omit, which are taken from the earth or at sea, the return of a thing deposited or of money entrusted, and the repelling of violence by force.  this, and anything similar, is never regarded as unjust but is held to be natural and equitable.[note 18.]

[note 18]  gratian, the treatise on laws (decretium dd. 1-20) with the ordinary gloss 6 (augustine thompson & james gordley trans., catholic u.pr. of american, 1993)(approx. 1150)(distinction one, case 7, sec. 2).  In the original:

Ius natural est commune omnium nationum, eo quod ubique instinctu naturae, non constitutione alique habetur, ut uiri et feminae coninctio, lierorum succession et education, communis omnium possession et omnium una libertas, acquistitoi eorum, quae cello, terra marique capiuntur; itsm depositae rei uel commendateae pecuniae restitution, uiolentiae per uim repulsion.  Nam hoc, aut si quid huic simile est, numquam iniustum, sed natural equumque hacetur.

like self-defence, the natural law right of marriage and child-raising is not enumerated in the united states constitution, but is a constitutionally-protected fundamental right.  see, e.g., zablocki v. redhaild 434 u.s. 374 (1978)(marriage is a fundamental right.); meyer v. nebraska, 262 u.s. 390 (1923)(raising children.)

 

note 27.

 

the right to assemble, with which the right to arms was construed in pari material:

existed long before the adoption of the constitution of the united states.  in fact, it is, and always has been, one of the attributes of citizenship under a free government.  it “derives its source,” to use the language of chief justice marshall, iin gibbons v. ogden, 9 wheat. 211, “from those laws whose authority is acknowledged by civilized man throughout the world.”  it is found wherever civilization exists.  it was not, therefore, a right granted to the people by the constitution.  the government of the united states when established found it in existence, with the obligation on the part of the states to afford it protection.

united states v. cruishank, 92 u.s. 542, 551-53 (1876)(including similar analysis regarding the “the right … of ‘bearing arms for a lawful purpose.’  this is not a right granted by the constitution.  neither is it in any manner dependent upon that instrument for its existence.”)

 

note 41.

see kopel, the human right of self-defense; see also david b. kopel, the torah and self-defence, 109 penn state l. rev. 17 (2004); david b. kopel, the religious roots of the american revolution and the right to keep and bear arms, 17 j. firearms & pub. pol’y 167 (2005)(early americans’ views of ancient israel as their role model).

huck chuck ... it is time to throw charles johnson off the life raft ... he eats too much, he drinks to much, and he does none of the heavy rowing ... get shed of him ...

it is time to throw charles johnson off the life raft.  he eats too much, he drinks too much, and he does none of the heavy rowing.  and, unfortunately, he will not associate with anyone who does the heavy work, he is just too fastidious for the tasks at hand, and contributes nothing.  it is time to give his seat to someone else more deserving, who will do the heavy rowing, and who will associate with the others who are doing the heavy, nasty work, ... , of fighting a war against jihad.  chuck ain't up to it any longer.  it is time to be shed of him.   ...  he should go over the side, now, before he does any more damage.--

we are at war with islam.

the first intellectual and historical context that has some relevancy is the history of islam.  very simply, it is a religion some 1400 years in age, whose central tenets derive from visions received by its prophet mohammed from god.  it is helpful to remember one thing with regard to mohammed, that he is according to islam the last true prophet of god.

think about that for a moment.

in the interim 1400 years, god has chosen to reveal truth to no other human, and no other truth has been passed to no other human, so the sum total be all and end all of divine truth reposes in islam, according to islam.  all truth revealed by god through human intermediaries prior to mohammed is subsumed by the truths revealed to mohammed, including those truths revealed through christ.

folks, in the view of islam, there can be no accommodation by truth to lesser doctrines, as they are blasphemy or evil.  this is hardly surprising or novel, it is the attitude of all groups zealously advocating truth as they hold it.

so, when islam in the koran says that the true believer is beholden to advance islam by conquest, that is what islam believes to be truth, and it is the duty of the muslim adherent to islam to advance such conquest.

it is the history of islam in the last 1400 years.

it is the history of islam now.

it is the contemporary situation of islam in europe, and as regards islamic relations with israel and with respect to jerusalem.

mohammed vowed to pursue jihad, and mohammed made & led jihad.  it is the duty of muslim faithful to emulate mohammed.

the leaders of islam in this day direct jihad.  heads of islamic states, such as iran threaten the destruction of israel, and the forced demise of the united states as empire, and they mean it: it is the revealed truth of god, according to islam.  islamic religious leaders have vowed the demographic conquest of europe and england within this century, and they mean it, and they are actively strategizing and acting to attain that goal: it is the revealed truth of god, according to islam.

muslim immigration swamps europe, and nation states historically with rather orderly demographics have seen incredible influxes of muslim populations, and a birth rate amongst muslims that is staggeringly greater than the birthrate of, … , what shall we call the people who inhabit countries they used to view of “their own,” indigenous populations, … , the native europeans.

and, in that time has come tremendous social, religious and political strife and violence.  can one ignore the riots in france, the agitation of muslim populations for every increasing entitlement and privilege in england, the threats, intimidation and violence wherever muslim populations increase in european countries?

we are at war.

and, oh yes, lest we forget we have the muslim conquest of lebanon, the concerted attack of muslim nation states, of muslim state client militias such as hezbollah (it sounds so much more antiseptic than terrorists thugs, does it not), and the internationally supported street gangs, operating off of the largess of the united nations, and supported by european union member states and the eurpean union itself, as described by fjordman, such as hamas and abbas, and just the old straight forward Saudi funded independent agents like al queda.

now, what was quaintly known as “terrorism” in the war on terror at one time, which usage seems to be passing into a shared oblivion along with george bush’s political career, had conquered afghanistan, was on the throes of taking over iraq, and exerted considerable influence in sudan and somalia, and was making serious inroads into the soviet union after having brought chechnya to ruins, seems to have been driven into the worlds caves.

the overtly military and terror forces of islam has been beaten back, and they live in caves and upon the scab lands and mountain recesses of the world, in redoubts where no civilized man has gone for centuries.

but, what the muslims could not gain by state force of arms, nor by “terrorism,” nor by any brilliance at all, they have gained by oil money bribery and political influence, the world over, by buying into newspapers, media, industry, and subsidizing the world’s great university, and through diplomacy and politics.

we are at war.  how many times does islam have to tell us we are at war for us to believe them?  how many outrages, attacks and atrocities do they have to commit before we believe them?  will it take the nuclear bombing of tel aviv by iran to convince the west that war is being waged on the west?

how many times do they have to tell us that they will conquer us by force of demographics, immigration and political insinuation of sharia into our laws, into our religious culture?

and yet, they advance their conquest which they could attain by no other means, by legal immigration.

 they flood the world with poverty stricken immigrant workers, replete with families, in-laws and a never ending thirst & demand for political influence and entitlements wherever they go, where no armies could ever have forced their way, and ironically enough, cannot force their way today, for the short time being.

and, to add crowning and crushing ignominy to the whole situation, the arabs/muslims flow into europe at the express invitation of the european union and the other constituent nations, to be workers, because the european elites, professors, communists, socialists and other “intelligentsia,” and the politicians spawned by this insidious leisure class of parasites and vultures support the invitation and resultant immigration in the name of multiculturalism.

the euro union has passed legislation that expressly protects the legal status of muslims.  it is prohibited to criticize muslim immigration, it is prohibited to attack the evils of this immigration, it is prohibited to criticize the tenets of its religion or for one european to point out to another european that islam means to overtake the european countries, and to impose islam upon it.  it is possible for a european to hear this from a muslim cleric, many of whom preach this to their faithful, and promise it to their european hosts, and to threaten the dire consequences of this conquest upon those who do not convert, but it is prohibited for a european to say it, or predict it, or to exhort against it, under hate speech legislation.

and, as fjordman has pointed out, in a brilliant essay in the post "atlas exclusive: fjordman on freedom fighting "fascists.", the link: http://atlasshrugs2000.typepad.com/atlas_shrugs/2008/09/atlas-exclusi-1.html  the politicians of europe do nothing to prevent it, as they are in demographic league with the hordes of muslim immigrants who vote for their socialistic butts. 

it is the devil’s union.

oh, yes, and as one of her contributors to the "comments" section of the post wrote, do not forget the lovely customs of the muslims, including female genital mutilation, which is cutting off the clitorises of women at a suitable age, often including the removal of the entire vulva and labia minor (call it what it is, for christ’s sake, and not some dumbassed abbreviation like fgm), or honor killings or honor disfigurements or honor acid facial baths or honor rapes by brothers, nephews, uncles and fathers, or honor marriages of six year olds, or honor hangings, beheadings, stoning, or other charming remnants of the middle and dark ages.

those cannot be harangued upon, either.

nor the sharia courts of england.  or, the separate bathing facilities of sweden and norwary.  nor, the skyrocketing rates of violent crimes, assaults and rapes all over europe where the religion of peace rears its ugly rears.  (i prefer that to “rears its ugly head,” though that is pretty descriptive as well.)

no, europeans cannot do that.

if they even talk about these things, they are prosecuted by the state authorities, and they are labeled fascists and nazi’s by charles johnson, that great champion of truth, the great & self purported champion of the anti-jihad, … , who, of course, as fjordman points out, aids and abets the very advance of the jihad he says he opposes, but labeling people like fillip dewinter “nazi’s.”  were i fillip dewinter, and i ever had the pleasure of meeting charles johnson, i believe that i would simply have to kick the living shit out of him for that insult.

before I move along to address that issue directly, i would ask if any contributor to this blog comment section would take serious exception to the contemporary historical context i have posed.

does any muslim faithful to islam say that i have mischaracterized the tenets of the faith, or the folkways and practices of its adherents?  does any muslim deny the calls to jihad and the destruction of israel, or the pronouncements of muslim clerics the world over that islam will conquer europe, or the united states, eventually?

have i painted a false picture of the conquest of europe by the jihad, or by islam, or by the demographics of the islamic birthrate and immigration into europe?  to those of you who might consider the euro nationalists fascists,i would simply ask you, is there any meaningful distinction to be made between a group that would use its ethnic demographics to conquer a previously existing nation, society or people, as opposed to a group that would try to use its ethnic cohesiveness and identity to forestall such an invasion by another group, hell bent on ethnic nationalism, on conquest?

and, while you are at it, would you please explain to me please, why it is sinister, foreign, horrible and evil for a european nationalist simply to hang on to what he has enjoyed peacefully for generations, for centuries literally of largely uninterrupted peace, what he and his fellows have built and established, … , while it is noble, progressive, wonderful and religiously blessed in the name of “multiculturalism” for another group to come into a country and displace its populations, rape its women (g_d, what a quaint phrase, but i leaving it in just to hear the screams howls of protest, … , just to feel the squeals make the shivers run down my back, old hidebound mossback that i am), beat and murder its children, taken over its government and destroy its churches and places of worship?

can somebody, please explain the moral and ethical distinctions to be drawn here.  and, while he is not otherwise busy, why has charles johnson not explained his intellectual basis for labeling others fascists, and why has he not explained how his actions do not cripple the anti-jihad fight in europe.  in his typical fashion, charles does not explain his edicts, he simply issues them from on high, and demands obeisance.  it is high time he provides a cogent & persuasive rationale for his actions.

and, can anyone please explain why charles johnson gets to call such people fascists and nazi’s if they are european, and doesn’t call such people who fit the very description of fascists, who belong to a totally fascist religious regimen, and who behave as thugs, threatening, beating and intimidating otherwise peaceful citizens, … , why he does not call such people fascists and nazi’s?

now, the euro communists and leftist radicals “get” to call the poor old indigenous people fascists and nazi’s, because by doing so they get the votes of the muslims and all the nutballs in europe who consider themselves oh so elevated and progressive.  i understand why they do it, because they want to advance leftist and progressive politics and secure their political roles.

but, i am loathe to understand where charles johnson establishes the distinction, so, i thought that perhaps he or his minions, could make the case for the distinction.

allow me, at this point, to take recourse to wikipedia, to explain the best definitions of fascist that i can come up with. 

these remarks, at the wikipedia article, http://en.wikipedia.org/wiki/definitions_of_fascism, are attributed to george orwell, and to my mind, describe perfectly the intellectual rigor used by charles johnson and his lizard minions when they idly toss the curse on those they either dislike or are too lazy to understand, but vaguely oppose for reason they do not comprehend:

fascism as vague epithet

main article: f

some have argued that the term "fascism" has become hopelessly vague in the years following world war ii, and that today it is little more than a pejorative epithet used by supporters of various political views to attempt to discredit their opponents. this view dates back to george orwell, british writer and author of Nineteen Eighty-Four and Animal Farm, who famously remarked:

...the word ‘Fascism’ is almost entirely meaningless. In conversation, of course, it is used even more wildly than in print. I have heard it applied to farmers, shopkeepers, Social Credit, corporal punishment, fox-hunting, bull-fighting, the 1922 Committee, the 1941 Committee, Kipling, Gandhi, Chiang Kai-Shek, homosexuality, Priestley's broadcasts, Youth Hostels, astrology, women, dogs and I do not know what else ... Except for the relatively small number of Fascist sympathisers, almost any English person would accept ‘bully’ as a synonym for ‘Fascist’. That is about as near to a definition as this much-abused word has come.^[25]

this definition is, of course, famously apt for johnson’s typical usage of the word, … , this johnson, who presides as the “more equal of all the animals” on all  the farm at little green footballs, and who would like to assume the absolute mantle of authority on all things “conservative” on the blogs, … , this definition describes the way he uses words. 

he knows no further precision in the use of the word than this, and discriminates if he discriminates at all, on labeling someone a fascist or an acceptable thinker simply as he whims it.  it is purely ad hoc, and is nothing more than an insulting substitution for “son of a bitch i don’t like very damn much.”

let us take a look at a more academic and rigorous examination of the word fascist, and see if in any respect whatsoever it fits or describes the person or persons charles johnson “labels” fascists, as related by fjordman in his essay at atlas shrugs.  does charles johnson have any intellectual basis or right, that he can explain, or that perhaps anyone standing in his stead can provide, for either charles johnson or his lizard minions, or any political principle or advocacy that can be rightly claimed by him, for labeling others fascist. i damned doubt it.  but, again, from wikipedia, the same article as above so i will not link it, a more intellectually inclusive definition of fascism and fascist adherents to the doctrine:

umberto eco

In a 1995 essay "Eternal Fascism"^[20], the Italian writer and academic Umberto Eco attempts to list general properties of fascist ideology. He claims that it is not possible to organise these into a coherent system, but that "it is enough that one of them be present to allow fascism to coagulate around it". He uses the term "Ur-fascism" as a generic description of different historical forms of fascism.

The features of fascism he lists are as follows:

·         "The Cult of Tradition", combining cultural syncretism with a rejection of modernism (often disguised as a rejection of capitalism).

·         "The Cult of Action for Action's Sake", which dictates that action is of value in itself, and should be taken without intellectual reflection. This, says Eco, is connected with anti-intellectualism and irrationalism, and often manifests in attacks on modern culture and science.

·         "Disagreement is Treason" - fascism devalues intellectual discourse and critical reasoning as barriers to action.

·         "Fear of Difference", which fascism seeks to exploit and exacerbate, often in the form of racism or an appeal against foreigners and immigrants.

·         "Appeal to a Frustrated Middle Class", fearing economic pressure from the demands and aspirations of lower social groups.

·         "Obsession With a plot" and the hyping-up of an enemy threat. This often involves an appeal to xenophobia or the identification of an internal security threat. He cites Pat Robertson's book The New World Order as a prominent example of a plot obsession.

·         "Pacifism is Trafficking With the Enemy" because "Life is Permanent Warfare" - there must always be an enemy to fight.

·         "Contempt for the Weak" - although a fascist society is elitist, everybody in the society is educated to become a hero.

·         "Selective Populism" - the People have a common will, which is not delegated but interpreted by a leader. This may involve doubt being cast upon a democratic institution, because "it no longer represents the Voice of the People".

·         "Newspeak" - fascism employs and promotes an impoverished vocabulary in order to limit critical reasoning.

now, i can see a whole host of attributes in eco’s definitions that might be applied to european leftist and marxist/leninist thought., but i do not see a whole lot of attributes that would apply to the dynamics of a small minority party that simply urges that its society not be overrun by outside forces.  is it xenophobia not to be crushed by a people who inundate you, and against whose massive influx you are powerless to defend. 

and, here is the thing that charles johnson and his ilk must come to grips with.—

if we make a value assessment that islam is basically evil, and uses evil means to advance itself and to maintain its adherents in ignorance and barbaric savagery in order to maintain its hold over them, and i think we can--  and, if we can make a value assessment that western civilization, in spite of its many flaws and missteps, is basically guided by principles and an aesthetic which reaches for good and strives to have man, and individual men, participate in that good, and i think we can--

--then, how is it xenophobic or fascist for a people simply to strive to maintain their civilization and society as against the conquest of a xenophobic, barbaric islam?

charles johnson either makes a value judgment in favor of western civilization, it values and its heritage, and for its preservation, or he does not.  and, johnson and his minions and his ilk have to explain it.

would you, would anyone, like to step up and make this explanation to me?

despite the epithets hurled at dewinter, i have seen nothing in the activities of either he or his party that indicate he does anything else than advocate a moral right to a continued existence on the part of his people.  yet, it is clear that islam advocates the annihilation and extinction of israel, the united states, and the subjugation and dominance of europe, dewinter and his people included necessarily by inference.

i am going to crib a passage from a letter in the "comments" section to the post linked to atlas shurgus above, made by jewishodysseus in a submission to that section because he states it better and more succinctly than i can, and i hope that he does not mind:

            So what do these people do? They spend their time spitting on resisters beaten on the streets by the real imperialist invaders and their traitor red allies.

As opposed to these idiotic PC tests, here's the JewishOdysseus test for judging a morally acceptable cause by its members:

1--Do its members refrain from issuing death threats?
2--Do its members engage in lawful, normal exercise of free speech and protest?
3--Do its members refrain from violently suppressing other people who choose to engage in normal free speech and protest, but have different views?
4--Do its members refrain from receiving funds from hostile foreign governments?
5--Do its members refrain from receiving instructions from hostile foreign governments?
6--Do its members refrain from receiving weapons and terrorist training from hostile foreign governments?
7--Do its members refrain from inciting violence against other law-abiding citizens?
8--Do its members seek to import an alien ideology into their country?

I haven't seen a single credible claim that the anti-Islamization protests are linked to such unacceptable activities. Yet, somehow the people who oppose them feel the need to use violence, threats, and official corruption to protect "goodness and niceness," as the late great Maxwell Smart put it.

it seems clear to me, that in this given situation, the attributes of fascist behavior are more clearly ascribed to the activities of those who attacked those who wanted to attend the rally put on by dewinter, than to dewinter and his followers and supporters.

so, just where in g_d’s name does charles johnson get off calling dewinter a fascist, and a nazi.

fascist philosophy is most cogently equated with the marxist/leninist concept of “the vanguard of the proletariat,” which is quite simply “animal farm” orwellian, noting that everybody is equal but the leadership is oddly enough in expressing the common will of the people, just a little bit more equal than others.   here, again from wikipedia and umberto eco:

"Selective Populism" - the People have a common will, which is not delegated but interpreted by a leader.

jewishodysseus’s tests are appropriate here, as fascism is somewhat a matter of degree, almost all human institutions involving or delegating authority being a little bit this way, but not all human groups asserting the right, privilege and prerogative to inflict terror, assault, injury and death upon their opponents who, … , for instance, … , meet in peaceable assembly to seek redress of their grievances and to mobilize their cause.

so, again, where does charles johnson get off calling dewinter a fascist and a nazi, and so assiduously, so fastidiously avoid saying anything nasty about the thugs who terrorized this assembly, and who did so as islamic jihad and in the service of islamic jihad and to advance the aims of islamic jihad?

why does charles johnson not call the g_d damned nazi’s, nazi’s?  i think that he has some explaining to do.  especially, given that he asserts leadership, professes leadership and leadership qualities, in the anti-jihad campaign.  we are at war against the jihad, jihad is at war against us, and charles johnson does not have the cajones to mention that fact, does not have the cajones to point out that the damned jihad led this attack upon dewinter’s assemblage, and does not have the damned cajones to condemn it as part and parcel of the jihad.  and, he has the courage to call innocents nazi’s, but he does not have the cajones to call nazi’s nazi’s.

his intellectual behavior in this regard is scurrilous.

at best charles johnson is confused about the jihad, at worst he is hypocritical, cynical and cowardly in avoiding any criticism of those who attacked these people engaged in peaceful assembly.  to call or label those who tried to organize the rally, to call those who attended the rally, to call those who peacefully tried to go to it but were bullied and beaten in their attempts, to call them fascist, is, well, the intellectual stupidity, laziness and cowardice described by george orwell in his remarks, above.  it is, with absolutely no apology to charles johnson, and absolutely clear reference to george orwell’s observations, simply the act on an intellectual bully.  i do not wish to be obscure.  check the last line of orwell’s quoted observation on the use of the term fascist, and its equation to “bully.”

this has gone on far too long.

it can no longer be tolerated.

either johnson learns who it is that he supports in the war on jihad, and who in the hell he opposes, and i hope it is the jihad but it is increasingly difficult to tell, or he steps aside or is shunted aside in favor of someone who will lead, and he can go back to confining his pronouncements on how to design web sites and avoid speed traps and other encroachments upon liberty.

the key issue here, is that johnson has simply demonstrated that he does not have sufficient depth, intellect, judgment or experience to lead a movement such as the conservative fight against jihad.  he does not understand that when you are in a war you wage war against your enemy, and that you do not give aid and comfort to your enemy by undermining those who oppose your enemy.  in this instance, charles johnson has given aid and comfort to the jihad, very stupidly, and very maladroitly, and he simply has to be called out on it.

it is time for him either to lead, follow his intellectual betters, or to get out of the damned way.

i have never met fillip dewinter.  and, i can conceive of situations in which i might prefer to have others by my side when i fight the jihad, if there were others i could chose as suitable comrades in his stead.  the trouble with charles johnson with regard to fillip dewinter, is that he points to no others in europe who take up the fight against the jihad.  from what other group or groups may we pick more stalwart and more palatable groups than these european nationalists?  who can we turn to who stands in their stead?

it is, in point of fact, fillip dewinter and his friends, or no one.

charles johnson has never, and will never forthrightly answer this question, address this issue.

his position is, when thought about, simply one of isolation and abandonment.  but, he will not address this issue.  the first reason is, quite simply, he is not the sort of king who deigns to explain himself, he has always left to his sycophants to explain himself to himself and to others: one of the clever groveling little fellows will always come up with an answer for the former website designer.  (have you not noticed, that he is neither wordsmith nor original thinker: i have never seen much more than a desultory paragraph from him, and doubt he is capable of much more.) the second and primary reason is, quite simply, because he does not know or have an answer.  as matters are presently constituted, no one in europe fights the jihad except the euro nationalists.  because they are nationalists, which philosophies may or may not be as palatable as if they were steadfast ohio republicans, he calls them fascists in a lazy and stupid substitution for a more cogent recognition of the realities and exigencies of the situation, smug in his imagined moral superiority.  it is a very poor substitute for the kind of realistic judgment needed in war.

john jay @ 09.23.2008

natural law in american jurisprudence ... it lives in the second amendment!!! ...

                at first a mainstay of american political thought, then disparaged, and suffering the final indignity of being virtually ignored, the seemingly moribund doctrine of natural law has found new, revitalizing and clear enunciation at the quill pen of justice antonin scalia.  natural law, as manifested in the notion that each person retains the inherent right of self defense and self preservation, now lives vibrantly strong and vigorous in the second amendment of the united states constitution, as a bulwark and philosophical foundation to the right to keep and bear arms asserted there, thanks to the supreme court’s 5-4 decision in d.c. v. heller, 554 u.s. ___(2008), docket no.: 07-290, issued june 26, 2008.  in justice scalia natural law has found a clear, cogent and convincing advocate, at once articulate and forceful in explaining the origins of this thought in our political system, and its continuing relevancy and vitality at home in the second amendment.

this decision is sweet vindication for me, because i believe that natural law theories of self defense provide a cogent rationale for the individual who asserts a right to defend himself against the attack of islamic jihad upon the citizenry of this country, and who might have to defend himself in a court of law for doing so. 

i have written extensively on natural law in these pages, and how natural law doctrines provide a framework and an intellectual rational for a person to defend himself from islam, especially if his sovereign will not or cannot protect him.  i would encourage you to read these articles again, or for the first time, as they provide a foundation for the views i am going to propound after a discussion of the supreme court case at hand, d.c. v. heller.  i warn you, these posts are not intended for the casual reader, you have to put some attention into it, but they will give you a very firm foundation in the language of the case that i am going to lay out for you:

http://wintersoldier2008.typepad.com/summer_patriot_winter_sol/2008/04/sir-william-bla.html

(“sir william blackstone and natural law”)

 

http://wintersoldier2008.typepad.com/summer_patriot_winter_sol/2008/04/blackstones-com.html

(“blackstone’s commentaries on the laws of england: the rights of men”)

 

http://wintersoldier2008.typepad.com/summer_patriot_winter_sol/2008/04/a-personal-righ.html

(“a personal right of self defense to terror under natural law”)

 

http://wintersoldier2008.typepad.com/summer_patriot_winter_sol/2008/04/the-right-of-th.html

(“the right of the individual under locke’s natural law concepts to wage defensive war against islam”)

 

http://wintersoldier2008.typepad.com/summer_patriot_winter_sol/2008/04/john-locke-on-t.html

(“john locke on the individual’s right to wage war”)

 

http://wintersoldier2008.typepad.com/summer_patriot_winter_sol/2008/07/the-militia-bulwark-of-freedom.html

(“the militia: bulwark of freedom”)(poorly written, but the language from the federalist papers on the militia is invaluable, and part of “natural law.”)

 

now, to justice scalia and  his exposition of natural law, and the right of the person to defend himself as inhering within the historical and intellectual framework of the second amendment to the united states constitution.

d.c. v. heller: and natural law.   beginning at page 19 of the slip opinion in d.c. v. heller, 554 u.s. _____ (2008), justice scalia makes this remark about the individual nature of the right to keep and bear arms, as determined by the text of the amendment.  he then launches into a somewhat arcane review of the history of the ebb and flow of catholic and protestant control of the crown, and their successive efforts to disarm each the other, to provide a historical context which provides tremendous insight into the content of the evolving concept of natural law.  but first:

c.  meaning of the operative clause.  putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.  this meaning is strongly confirmed by the historical background of the second amendment.  we look to this because it has always been widely understood that the second amendment, like the first and fourth amendment, codified a pre-existing right.  the very text of the second amendment implicitly recognizes the pre-existence of the right and declares only that it “shall not be infringed.”  as we said in united states v. cruishank, 92 u.s. 542, 553 (1876), “[t]his 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.  …[n.16].  d.c. v. heller, 554 u.s. ____ (2008), p. 19 slip opinion.

justice scalia’s point, long recognized, is that the right discussed existed prior to the formation of the government, that it belonged to individuals independent of the existence or creation of government, and that the scope and parameter of the right was not dependent upon nor conferred by the creation of the constitution as a document, nor the government as created by that document.

                this is a very direct statement, about as direct as it can get, that the right to keep and bear arms belongs to individuals.  nonetheless, justice scalia is at some pains to explain this more fully.   he notes that in the flow english history the right to bear arms belonged variously to catholics and protestants as they armed themselves and disarmed the other, depending upon who had the crown.  for instance, the english declaration of rights, later codified as the english bill of rights, recognized only the right of protestants to own firearms:

“that the subjects which are protestants may have arms for their defense suitable to their conditions and as allowed by law” 1 w. & m., c. 2, sec. 7, in 3 eng. stat. at large (441 (1689).  this right has been understood to be the predecessor to our second amendment.   …  it was clearly an individual right, having nothing whatever to do with service in a militia.  d.c . v. heller, 554 u.s. ____  (2008), p. 20 slip opinion.

you will note that the statute in question was passed in the year 1689, just almost exactly 100 years before the ratification of the second amendment.  these events, therefore, should be comprehended as having some antiquity.

                justice scalia notes, and as we shall see at a latter point demonstrates with absolute clarity by citation to legal decision contemporaneous to the adoption of the second amendment, that by the time of the founding fathers the right to keep and bear arms was regarded as a matter of fundamental right to all english citizens, and hence, colonial citizens, in the view of the colonialists.  writes the good justice, and gives the first hint of the coming natural law analysis:

by the time of the founding, the right to have arms had become fundamental for english subjects.  see malcolm 122-134.  blackstone, whose works, we have said, “constituted the preeminent authority on english law for the founding generation,” alden v. maine, 527 u.s. 706, 715 (1999), cited the arms proviso of the bill of rights as one of the fundamental rights of englishmen.  see  1 blackstone 136, 139-140 (1765).  his description of it cannot possibly be thought to tie it to militia or military service.  it was, he said, “the natural right of resistance and self preservation,” id., at 139, and “the right of having and using arms for self-preservation and defence,” id., at 140; see also 3 id., at 2-4 (1768).  other contemporary authorities concurred.  see g. sharp, tracts, concerning the ancient and only true legal means of national defence by a free militia 17-18, 27 (3d ed. 1782); 2 j. de. lolme, the rise and progress of the english constitution 886-887 (1784)(a. stephens ed. 1838); w. blizzard, desultory reflections on police 59-60 (1785).  thus, the right secured in 1689 as a result of the stuarts’ abuses was by the time of the founding [of the united states] understood to be an individual right protecting against both public and private violence.  [emphasis added: jjjay.]

(justice scalia does not seem to emphasize the use of such weapons by persons protecting themselves from the inroads of tyrannical sovereigns, or the usurpers of faction, as noted in federalist papers no.’s 28, 29, 34 and no.’s 10 & 46 in particular.  the above observation that weapons were to protect against “… public and private violence. …” should give you heart and cheer, and remind you quite clearly that justice scalia has this in mind for another day. here, the issue before the court was whether a person had a right to have a firearm in his home, under any circumstance, … , and the court issued a resounding affirmation of that right.)[1] 

                in the following passage, quoted at some length to adequately make and secure the point, justice scalia conjoins the natural right of self defense and self preservation with the political right of the individual to keep and bear arms.  scalia argues that history, and historical text and public attitudes firmly unites the natural right of self preservation to the political right to own firearms for personal protection, to protect against private and public violence:

and, of course, what the stuarts had tried to do to their political enemies, george iii had tried to do to the colonists.  in the tumultuous decades of the 1760’s and 1770’s, the crown began to disarm the inhabitants of the most rebellious areas.  that provoked polemical reactions by americans invoking their rights as englishmen to keep arms.  a new york article of april 1769 said that “[i]t is a natural right which the people have reserved to themselves, confirmed by the bill of rights, to keep arms for their own defence.”  a journal of the times: march 17, new york journal, supp 1, apr. 13, 1769, in boston under military rule 79(o. dickerson ed. 1936)[2]; see also, e.g., shippen, boston gazette, jan. 30, 1769, in 1 the writings of samuel adams 299 (h. chusing ed. 1968).  they understood the right to enable individuals to defend themselves.  as the most important early american edition of blackstone’s commentaries (by the law professor and former antifederalist  st. george tucker) made clear in the notes to the description of the arms right, americans understood the “right of self-preservation” as permitting a citizen to “repe[l] force by force” when “the intervention of society in his behalf, may be too late to prevent injury.”  1 blackstone’s commentaries 145-146,n. 42 (1803)(hereinafter tucker’s blackstone.)  see also w. duer, outlines of the constitutional jurisprudence of the united states 31-32 (1833).

there seems to us no doubt, on the basis of both text and history, that the second amendment conferred an individual right to keep and bear arms.  d.c. v. heller, 554 u.s. ______ (2008), pp. 21-22 slip opinion.

                in the pages following the above text justice scalia painstakingly sets out language from the various state constitutional provisions adopted before and after the 2^nd amendment, which buttress his observations that  the view of the day with regard to individuals keeping and bearing arms was prevalent, indeed, that no meaningful debate or public argument detracted from the prevailing view.  i do not mean to set those observations, opinions and writings out in their entirety or exhaustively.  for that, the reader may take recourse to actually reading the entirety of the opinion.  i do, however, wish to set out one or two of the most outstanding examples of how prevalent the views justice scalia ascribes to the founding fathers were.

                he examines by turn the constitutions of the states, the writings of eminent jurists and scholars on the topic, and the language of court decisions in support of the majority’s reading and analysis of the law in question. as to –

                the state constitutions and natural law.  writes justice scalia:

our interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed adoption of the second amendment.

four states adopted analogues to the federal second amendment in the period between independence and the ratification of the bill of rights.  two of them --  pennsylvania and vermont – clearly adopted individual rights unconnected to militia service.  pennsylvannia declaration of rights of 1776 said: “that the people have a right to bear arms for the defence of themselves, and the state ….” sec. xii, in 5 thorpe 3082, 3083 (emphasis added.)  in 1777, vermont adopted the identical provision.

between 1780 and 1820, nine states adopted second amendment analogues.  four of them – kentucky, ohio, indiana, and missouri – referred to the right of the people to “bear arms in defence of themselves and the state.”  see n. 8, supra.  another three states --  mississippi, connecticut, and alabma – used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the state.”  see ibid.

that of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right.  d.c. v heller, 554 u.s. ____ (2008), slip opinion pp. 27-30

                the learned commentators and natural law.  as might be expected, blackstone’s commentaries are of some importance in the analysis of colonial attitudes on firearms, and on natural law, blackstone being a very prominent theorist and compiler of law and history.  scalia brings us once again to the commentaries:

st. george tucker’s version of blackstone’s commentaries, as we explained above, conceived of the blackstonian arms right as necessary for self-defense.  he equated that right, absent the religious and class-based restrictions, with the second amendment.  see 2 tucker’s blackstone 143.  in note d, entitled, “view of the constitution of the united states,” tucker elaborated on the second amendment: “this may be considered as the true palladium of liberty … .  the right of self defense is the first law of nature: in most government it has been the study of rulers to confine the right within the narrowest limits possible.  wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction..” 1 id, at app. 300 (ellipsis in original.  d.c. v. heller 554 u.s. ____ (2008), p. 33 slip opinion. 

                pre-civil war gun cases and the natural law analysis.  people do not write as they used to, probably because personalities are not as large as in other periods, and probably because people do nor orate and hence are dulled to the wonderfully capacity of the spoken and written language to carry the listener and reader.  good writing does that, it sweeps you over the ground as though mounted on a low chariot between swift and tireless steeds, softly and swiftly and surely over the most broken and rough hewn ground, on the cushions of reason and persuasion.  at least, that is my view of it.

                listen if you will, to the language cited in the following case by justice scalia, and if you cannot feel the grin on justice scalia face as the ink flowed from his quill onto the linen pages of history, you do not appreciate the power of language, the communicated nuance of a personality knowing he grasps persuasion.  well, enough, (smiling):

in nunn v. state, 1 ga. 243, 251 (1846), the georgia supreme court construed the second amendment as protecting the “natural right of self defense” and therefore struck down a ban on carrying pistols openly.  its opinion perfectly captured the way in which the operative clause of the second amendment furthers the purpose announced in the prefatory clause, in continuity with the english right:

“the right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free state.  our opinion is, that any law, state or federal, is repugnant to the constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by charles i. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in or own magna carta!”

likewise, in state v. chandler, 5 la. ann. 489, 490 (1850), the louisiana supreme court held that citizens had a right to carry arms openly: “this is the right guaranteed by the constitution of the united states, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”

                now, you will read a lot of court opinions of this day and you will not find the ringing tones and clarion exhortations to manliness, civility, political virtue and courage as found in these state supreme court opinions.  i read a lot of cases (from a long time ago) on the vexations caused the post-civil war mississippi and ohio valley authorities who tried to come to grips with the vice and other dens of inequity on the river boats and in the river towns, fueled by alcohol and gambling and prostitution: as a former prosecutor, i can tell you that the motives for crimes usually reduce themselves to a timeless trifecta of sex, drugs and money … all rampant and running at full steam up and down these rivers.  some municipalities tried banning concealed weapons, and others the open wearing of weapons.  the courts and opinions i have read struck an interesting balance in these matters.  they tended to view the wearing of a concealed weapon as unmanly, sneaky, conniving and calculated to violence by sudden ambush, … , not encouraging, in their view, the sort of behavior expected of civilized and gentle men.  a lot of courts upheld regulations as to wearing concealed weapons, as in their view the regulations did not implicate either protected political interests, nor legitimate rights of self defense by gentlemen.  but, on the other hand, these courts viewed with approbation the attempted regulation of wearing of weapons openly and avowedly for defense of person, and viewed as sacrosanct and beyond the reach of the legislature the open wearing and possession of firearms as instruments to oppose oppression and tyranny.  they drew a distinction, suggested by the tone and language of cases cited all over heller, between the use of weapons for political and personal defense purposes, which were elevated and protected, and the use of weapons for mere affray, violence serving no particular higher social purpose other than the most extreme expression of debauchery and licentious behaviors. 

                it all fits in rather nicely with the heller courts finding of newly permanent lodgings for an old way of viewing things, an old and venerated political theory which has lived in a cramped attic dormer, neglected and forgotten, and which has suddenly gotten nicer digs in the downstairs parlors, drawing and sitting rooms with the other political philosophies at the various inns of court. and,  has received a nice seat at the head of the dining table for meals, taking supper with the most august heads of state and justices of court, as in days of yore.  it is all rather nice to see, for those of us who admire courtly manners and considered thought, and who view the pandering to the rabble and jealousies of societies of the more modern philosophies with considerable distaste.

                so, there you have it.  justice antonin scalia turned to the writings of a much earlier era, predating our own revolutionary beginning in the 1770’s & 80’s by several millennia.  it is a welcome return to some sense of decorum and order in a world view, to many of us, quite welcome indeed, like walking into a well upholstered library for a cigar and brandy after supper.

                some basic principles ought to be kept in view, and i would again encourage you to read the essays on natural law for which the links are given at the start of this article.

                in the structures of natural law you will find societies viewed as founded on a compact entered into by the governed and the governors, which are premised on the notion that the wisest and best administration of society is based upon an adherence to law and its traditions; in which the subject even while he owes obeisance to the ruler, rightfully expects the ruler and his subordinate magistrates to provide a fair and orderly administration of the laws, and in which the ruler while exacting certain duties and obligations from his subjects also owes them the duty of protection from foreign invasion, civil affray and insurrection, and honesty in the administration of the nation.

                it is a view of society premised upon law, and contractual obligations between subject and sovereign which are reciprocal and correlative between the two stations in life.  for every right there is a duty, for every duty a concomitant right.   the quid pro quo for the subject of rule is protection from the unsettled existence of nature, in which the subject had rights, but rights which he had to enforce and assert by himself in a continual struggle against others, and by recourse to force and violence if the dispute between he and his neighbors proved intractable or incapable of resolution.

                the central feature of this government, in the eyes of men like hobbes, locke and blackstone, was the judge or magistrate, a person of rectitude and honesty to whom disputes could be turned over to for resolution, whether by mediation or arbitration or by the final judgment of a court.  it should be understood that the common law has never promised justice from its courts, only a final decision, finality in the dispute, from which men walked out of the court room not necessarily pleased but secure in the knowledge that the dispute was ended, and no further conflict would flow from it.

                to the natural law theorists, a man gave his up the autonomy to decide his own disputes, by force of will and arms if need be, by leaving the state of nature and entering civil society.  what he gained, was order and predictability, peace and longevity.  the man who entered civil society did not give up freedom, he gave up unpredictable conflict.

                and, in the view of these theorists, he retained much from his existence in raw untrammeled and unrestricted nature.  what he retained, he did not give to the sovereign.  he gave to the sovereign only those things reasonably necessary to assure order between himself and his neighbor.

                the man who entered society did not surrender or forfeit control over his own live.

                he retained the right to preserve it as part of his compact with society and with his sovereign.

                he kept the right of self defense, and in our heritage, he kept his right to weapons and firearms.  you will note, that there is no suggestion in this country that a person much give up his steak knife or his hunting knife, by contrast to england, in which those who would protect us from ourselves and our baser instincts are making a concerted effort to ban “sharp” things from society.

                this right to keep firearms is now enshrined in our jurisprudence.

                the great thinkers on natural law went farther than judge scalia has gone in the heller case, in terms of the scope and dimension of self defense and the occasion of its exercise by a man.

                they argued that if the sovereign did not protect the subject then the subject did not owe the sovereign obeisance.  they argued that if the sovereign oppressed the subject, the subject retained the right to oppose the sovereign, and to rebel against and resist the sovereign’s oppression.

                they also argued, that a man could find himself in a mixed state of civil society and nature, and could find himself warred upon by his neighbor, or by an invading force, and in such cases, a man could lawfully, legally and morally wage war against the person who waged war upon him.  they argued that the sovereign’s ability and right to do things was derivative of the man’s authority to protect and preserve himself in nature, and that the sovereign’s authority was cumulative and a gathering of this power and right from his many subjects.  they argued that what the man could confer on the sovereign he could still exercise on his own prerogative under exigent circumstances or if the sovereign failed in his reciprocal duties of protecting the man, in return for the man’s obeisance.

                the open question now is might justice scalia and his brethren, having come this far with the great thinkers of natural law, be encouraged and induced to take the further steps of endorsing the natural law positions on the right of a man to wage war against an enemy who has attacked and threatened him, if the protection of the sovereign proves unavailing.  having come this far with natural law, and seemingly feeling very comfortable in the trip, will justice scalia and his colleagues endorse the right of the individual to wage war against his attacker.

                this topic we will revisit.

                i would ask you to visit the old links.

                for right now, be secure in your castle, in your right to read and think as you desire, and secure in your right to protect yourself against my transgressions, and the transgressions of your sovereign, with whatever legal means you have been prudent enough to secure for your own protections.

                keep in mind that if you were stupid in nature, you perished.  if you had insufficient will to assert your own existence and beliefs, you perished.  that persons who are not beholden in any contractual relationship to you, exist as to you in a state of nature, in & of perpetual conflict,  and that if you forget that in nature, or in civil society, you perish.

                not much has changed, has it?

 

john jay @ 09.19.2008

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[1]  for those of you not entirely confident of my assurances in this regard, i would refer you to this portion of the opinion following, where justice scalia and the majority intimate precisely as i have:

“there are many reasons why the militia was thought to be ‘necessary to the security of a free state.’  see 3 story sec. 1890.  first, of course, it is useful in repelling invasions and suppressing insurrections.  second, it renders large standing armies unnecessary—an argument that alexander hamilton made in favor of federal control over the militia.  the federalist no. 29, pp. 226, 227 (b. wright ed. 1961)(a. hamilton).  third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.”  d.c. v. heller, 554 u.s. ____ (2008), pp. 24-25 slip opinion.  do not worry, as long as justice scalia can marshal a majority of the court behind him, this view of the 2^nd amendment will not disappear.

 

[2] “it is a natural right which the people have reserved to themselves, confirmed by the bill of right, to keep arms for their own defense.”  written in 1769, this statement predated the revolutionary war and refers to the english bill of rights.  it is also a classic formulation of the natural law doctrine that a populace ceded only those powers to a sovereign necessary to assure proper and just governance, and that the people reserved unto themselves those rights and privileges as existed amongst their own community, precedence to allowing governance to be exercised over themselves.  this is a classic formulation of natural right, and it is cited as such here by no accident, in support of the view that the people preserved the right to keep and bear arms unto themselves.

without remorse ...

in tom clancey's book, without remorse, a person with an admirably equipped skill set for the job undertakes to destroy a criminal element of his community who has killed his lover.  he pursues his undertaking savagely and remorselessly, hence the title of the book.

it is by far, my favorite clancey, written before he became author by task force.

it got me to thinking.

the hero of the book makes total war upon his enemies without the sanction of community or government, because they have attacked the pillars of decency and civil conduct upon which community rests.  in like manner, the jihad terror makes war upon each of us, and our communities, with its terrorists attacks, and its announced patterns and goals of demographic and religious conquest.  the sole and entire goal of jihad terror is to frighten each of us, with what the jihad hopes we will fear as a very real and very personal prospect of death of injury, into an abject surrender to the rule and dominion of islam.

in the most basic sense, the jihad terror is a death threat to each of us.

in our civil and criminal law each of us is conceived to possess as a matter of natural law the right to defend our individual lives, and the lives of those dear to us.  and, the greatest of the exponents of natural law, as seen before in these pages, have argued that each of us possesses an inherent right to make war upon those who attack us.

so, i wonder, as a literary matter, what if each of us were to exercise our rights as preserved in our recourse to natural law, and to declare war upon our jihadists and islamic attackers.

what if that declaration of war were to look as follows.--

declaration of war and open hostility against islam, by private citizen

islam has declared jihad war and conquest waged against the unfaithful through the pronouncements of its prophet mohammed, as revealed in the text of the koran and the haddithas, and this bloody tenant has been adhered to since the birth of the faith as religious truth.

in recent times islam has attacked those whom it regards as infidels with deadly zeal in an effort to extend the reach of islam, and to destroy those who stand against it.  the proponents, adherents and supporters of islam have carried out such attacks via nation state action, via state supported acts carried out by clients of such states, and via the actions of individuals and groups who act independently of states.

all have acted either at the direction or with the approval of the highest clerics of the faith.  no such acts, no matter how brutal, have been undertaken without religious sanction, by clerics of the appropriate rank and stature.

such attacks have been carried out against governments, its employees and soldiers.  such attacks have also been carried out against private citizens one a random basis, in the name of terror, and in service of that doctrine great atrocities against those who can only be regarded as innocents have been brutally and heinously murdered.  these unwilling sacrifices at the altar of islam, carried out by those who seek in their own ways to advance the interests of islam through such atrocity, have gone largely un-redressed by the governments powerless to protect those who have died as the hands of islam.

 i am an infidel. 

i do not adhere to nor believe in the tenants of islam. i will not and refuse to have such tenants imposed upon me either by subjugation, or dhimmitude, to them.  nor will i espouse or observance any tolerance or imposition of tolerance for islam in my presence or company, as it has declared, condoned, facilitated and waged war against me, my family, my friends, my compatriots and my society throughout history and as a matter of contemporary fact.  islam is implacably hostile to me and my beliefs, and i am implacably and intractably hostile to islam’s aggression, and will not suffer it.

i consider islam a blind relic of ignorance and intellectual sloth, a barbarity, a heinous perversion of all that is good and decent in humanity, and a deadly and intractable foe of civilization and the pursuit of aesthetic and higher truth.  truly, islam would impose darkness, ignorance and evil upon the whole world if it were allowed to attain the dominance it seeks, as it does wherever it reigns.

i am, therefore, an eternal target of jihad, the basic tenants of the faith that has declared war upon me and conquest my fate, and by the pronouncements of the prophet mohammed.  i am a target of the later day ayatollahs, imams, and proponents and adherents to the faith who have declared jihad death and conquest upon me.

i am justified in considering my very existence in mortal danger at every second, at every direction from islam and its agents, because of the threats it has made against me, and the continual attacks it has made upon me, my society, and my civilization: islam seeks to kill me at each breath i draw.

i have the right inherent in me in the state of nature, antecedent to any and all agreements made by me as a civil subject of my government, to exercise my powers of self defense, and to protect myself, my property and my family against those who transgress against me.  as to those who attack me, and that includes islam as a religious and historical institution advancing jihad as a religious tenant to advance the faith, and all latter day adherents to or proponents of the faith who espouse jihad war against my government, my civilization and my individual person whether for religious, political or social reasons, i exist as to those persons and institutions as though in an actual state of nature, and i have the right conferred upon me via my creation to exercise a right of self defense against them, and also to wage war against them as an individual to protect my inherent rights of self protection, liberty, freedoms and right to make my own religious choices.

the propositions asserted above have long been recognized in the organic writings which provide the foundations for my political history and in support of my heritage, by the decisions of courts in my country which i recognize as the supreme law of the land and derivative of the laws of nature and of god, and which provide a basis for the legal assertion of those actions which i am about to undertake.

prudence has long observed and dictated that such actions not be undertaken lightly, and without view towards their justification, their righteousness and their legality.  i have that firmly in mind.

with these matters in mind,

i, john joseph jay, a private citizen of the united states of america,

do by this document and by these assertions declare a state of war, as defined by natural law as conferred upon me by god, and as expiated by those pronouncements upon the same which define and undergird my heritage and my civilization and serve to protect my political and religious liberty, to exist between me and the religion and institution of islam, and all of its adherents, proponents and those who follow the same as their religious faith, to the extent they either follow the tenants of jihad conquest and war, or to the extent they have not formally renounced the same as a tenant of their observation and adherence to the faith of islam.

 this state of war is declared effective of the date i have signed this declaration, set forth below.  there will be no constraints upon barbarity, just as none has been shown by islam. no quarter shall be asked, and no quarter shall be given: islam has sown the seeds of its destruction, and, will now reap its destruction.   in like manner as islam has wreaked upon others.**    hostility against islam and those who follow its tenants may be considered undertaken simultaneously and continuously until jihad is defeated or i die in the undertaking of this declaration.  i pledge my property, my life and my sacred honor in this endeavor, and i shall trust in god to define the undertaking, by his trials.  these actions are undertaken without remorse.  

dated this ___ th day of ______________, 2008.

 signed: _____________________________________             

                 john joseph jay

                 136 s.e. 8^th avenue

                 milton freewater, oregon  97862

 

addendum:

 

dated:  this 24th day of april, 2011

 

signed:   /s/  John Joseph Jay  

 

                 john joseph jay

                136 s.e. 8^th avenue

                milton freewater, oregon  97862

 

 

 

**

to everything there is a season,

a time for every purpose under the sun.

a time to be born and a time to die;

a time to plant and at time to pluck up that which is planted;

a time to kill and a time to heal …

a time to weep and a time to laugh;

a time to mourn and a time to dance …

a time to embrace and a time to refrain from embracing;

a time t lose and a time to seek;

a time to rend and a time to sew;

a time to keep silent and a time to speak;

a time to love and a time to hate;

a time for war and a time for peace.

 

ecclesiastes 3: 1-8