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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Don Hamrick, pro se ) 18 U.S.C. § 1964(c) RICO Treble Damages


5860 Wilburn Road ) 42 U.S.C. § 1983; § 1985; § 1986; § 1988
Wilburn, AR 72179 ) 42 U.S.C. § 1402(a)(1)
PLAINTIFF ) SEAMEN’S SUIT, 28 U.S.C. § 1916
AS PRIVATE ATTORNEY GENERAL ) FOR MY OWN RIGHTS AND FOR THE RIGHTS
v. ) OF THIRD PARTIES (JUS TERTII DOCTRINE)
United States, et al ) CIVIL ACTION NO. _______________________
DEFENDANTS ) JURY TRIAL DEMANDED
RICO Act Damages Sought: $ 14.4 million (2002) Plus Damages for Denial of 1st & 7th Amdt Rights

“res integra jus naturale et justita ferenda”


“A case of first impression on the law of nature and justice as it ought to be.”

This Case is Not to be Assiged to Judges Huvelle, Walton, Leon, or Collyer for Judicial Bias

COMPLAINT
For the Full Scope of Second Amendment Rights and the
Human Right to “Openly” Keep and Bear Arms
in Intrastate, Interstate and Maritime Travel
(The Flip Side to Heller)
(1). HUMAN RIGHTS COMPLAINT UNDER THE TREATY CLAUSE;
(2). CIVIL COMPLAINT UNDER THE CIVIL RICO ACT AND THE FTCA;
(3). PETITION FOR WRIT OF MANDAMUS;
(4). PETITION FOR WRIT OF PROHIBITION;
(5). PETITION FOR DECLARATORY JUDGMENT; AND FOR INJUNCTIVE RELIEF

(1). Invoking My Private Right of Action under the AMERICAN DECLARATION ON THE RIGHTS AND
DUTIES OF MAN to Enforce My Human Right and My Seventh Amendment Right to a Civil Jury
Trial after Six Years of Fraudulent and Unconstitutional Summary Judgments on Motion to
Dismiss Denying My Seventh Amendment Right to a Civil Jury Trial;
(2). Invoking My Right as a Victim of the United States Government’s Abuse of Power to Act as a
Private Attorney General under the Civil RICO Act as a Civil Remedy for Obstructions of Justice,
Judicial Extortion Under Color of Law, Judicial Extortion Under Color of Official Right
(Racketeering), Fraud and False Statements in Six Years of Fraudulent and Unconstitutional
Summary Judgments, and for Racketeering an Unlawful and an Unconstitutional Protection
Scheme Over the Second Amendment;
(3) For Damages from Defamation, Retaliation, and Harassment for Exercising My Constitutional
Rights and My Human Rights in the Interest of Freedom and Justice.
“If liberty is worth keeping and free representative government worth saving, we must stand for
all American fundamentals -- not some, but all. All are woven into the great fabric of our
national well-being. We cannot hold fast to some only, and abandon others that, for the moment,
we find inconvenient. If one American fundamental is prostrated, others in the end will surely
fall. The success or failure of the American theory of society and government, depends upon our
fidelity to every one of those interdependent parts of that immortal charter of orderly freedom,
the Constitution of the United States.”
Albert J. Beveridge
The Assault Upon American Fundamentals
45 REPORTS OF AMERICAN BAR ASSOCIATION, 188, 216 (1920).

“My litigious history these past six years prove, by judicial fiat, that I have no enforceable
statutory, constitutional, or human rights under the law as a seaman being a Ward of the
Admiralty or even as a private citizen of the United States acting in the capacity of a private
attorney general or as a human rights defender. Being stripped of enforceable rights I am
relegated to the status of a non-citizen subject or slave held to involuntary servitude, the
consequences of denied justice for constitutional wrongs committed by the United States not only
in violation of the Bill of Rights, the Thirteenth and Fourteenth Amendments but also in violation
of the International Bill of Human Rights and other human rights treaties. Push further my rights
in the name of justice and freedom I risk arrest and prosecution under federal charges by the
United States.”
Don Hamrick, the Unrepresented Civil Plaintiff.
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TABLE OF CONTENTS
PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS, RULE 201(D), FED.R.EV. .....................1
A. Summary Judgment Dismissal is Barred Due Plaintiff’s Human Rights Complaint against the
United States alleging Judicial Bias and Loss of Integrity in the Federal Judicial System under
the Canons of Ethics ..........................................................................................................................1
B. Summary Judgment Dismissal is Barred due to Two Open Invitations from the U.S. Supreme
Court for Second Amendment cases and One Open Invitation for a Right to Travel Case. My
Case Presents a Right to Travel with Second Amendment rights. .......................................................6
(1). First Invitation by SCOTUS: Second Amendment (1997).......................................... 6
(2). Second Invitation by SCOTUS: Right to Travel (1999) ............................................. 6
(3). Third Invitation by SCOTUS: Second Amendment (2008) (Again!) ........................ 10
C. Summary Judgment is Unconstitutional and a Fraud. Summary Judgment under Bell Atlantic
Corp. v. Twombly is a stealthy encroachment upon the Seventh Amendment right to a Civil Jury
Trial. ...............................................................................................................................................10
D. WWII and the Fighting Merchant Marine....................................................................................18
E. WWII MEMOS: U.S. Merchant Marine Are Members of the Armed Forces ................................19
F. The Federal Courts have become the Judicial Praetorian Guard protecting the United States
from its own People in the war over the Bill of Rights......................................................................19
G. Justice Harlan’s Dissent on Arbitrary Exercise of Government Power and Oppression in
Downes v. Bidwell, 182 U.S. 244 at 376-382 (1901).........................................................................20
H. Dismantling of Private Attorney General Endangers Civil Rights ................................................22
I. Anarchy and Treason in the Federal Courts: Are Political Ideologies the New Rule of Law
Now?...............................................................................................................................................24
(1) Summary Judgment is Unconstitutional: The Judge and Jury are Now One in the
Same!............................................................................................................................ 24
(2) Is the Eleventh Amendment Unconstitutional? ......................................................... 25
(3) Will the Lower Federal Courts Rebel Against Heller? .............................................. 25
J. The Federal Courts and the U.S. Department of Justice have Obstructed Justice by
Unconstitutionally Denying my Seventh Amendment Right to a Civil Jury Trial..............................25
(1). Case Law ................................................................................................................ 27
(2). Kendall W. Hannon, Note, MUCH ADO ABOUT TWOMBLY? A STUDY OF THE
IMPACT OF BELL ATLANTIC CORP. V. TWOMBLY on 12(b)(6) Motions, 83 Notre Dame
L. Rev. (forthcoming April 2008) .................................................................................. 28
(3). Charles B. Campbell, A “Plausible” Showing After Bell Atlantic Corp. v.
Twombly ....................................................................................................................... 28
(4). Barry G. Sher, Kevin C. Logue and Asa R. Danes BELL ATLANTIC CORP. V.
TWOMBLY: THE SUPREME COURT TIGHTENS PLEADING STANDARDS FOR ANTITRUST
CONSPIRACY AND BEYOND; StayCurrent: A Client Alert from Paul Hastings, May
2007, Paul, Hastings, Janofsky & Walker LLP, 875 15th Street, N.W., Washington,
DC 20005, (18 Offices Worldwide) ............................................................................... 35

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K. Judicial Bias and Hostility in the Lower Federal Courts toward Second Amendment Cases is
Common Knowledge....................................................................................................................... 39
(1). Glenn H. Reynolds, Brannon P. Denning, HELLER’S FUTURE IN THE LOWER
COURTS, 102 Northwestern Law Review Colloquy 406 (2008): ......................................39
(2). Glenn H. Reynolds, Brannon P. Denning, HELLER’S FUTURE IN THE LOWER
COURTS, 102 Northwestern Law Review Colloquy 406 (2008) SECTION II. THE
LOWER COURTS AND THE HELLER DECISION: ....................................................40
(3). Glenn H. Reynolds & Brannon P. Denning, HELLER’S FUTURE IN THE LOWER
COURTS, 102 Nw. U. L. Rev. Colloquy 406 (July 2008) CONCLUSION:..........................44
L. Rule 9(d) Pleading Official Document: Heller............................................................................ 44
M. The Unrepresented Civil Plaintiff, being a Seaman, is a Ward of the Admiralty and Not an
Attorney is Acting in the Capacity of a Private Attorney General under the Civil RICO Act and
in the Capacity of a Human Rights Defender in Accordance with the U.N. DECLARATION ON
HUMAN RIGHTS DEFENDERS (see Exhibit 12) Invoking the AMERICAN DECLARATION ON THE
RIGHTS AND DUTIES OF MAN through the Treaty Clause and through 28 U.S.C. § 1334 FEDERAL
QUESTIONS. ..................................................................................................................................... 44
N. Fed.R.Ev. Rule 406 Habit/Routine Practice of Treason Against the Constitution: We the
People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia,
No. 04-1211 (August 31, 2005) Has Lead the U.S. Department of State to commit Treason By
Giving Away 8 Islands of Alaska to Russia Without the Advice or Consent of the U.S. Senate,
the Governor of Alaska, the people of Alaska, or event the people of the United States.................... 45
(1). Citing State Department Watch: Voice for the American Public’s Interest:...............45
(2). The diplomatic message traffic of January 21, 1977 .................................................47
(3). The diplomatic message traffic of January 25, 1977 .................................................49
(4). The diplomatic message traffic of February 24, 1977 ...............................................51
PART 2. THE PRELIMINARIES........................................................................................................................ 53
A. Statutory Waiver of Sovereign Immunity .................................................................................... 53
(1). 46 CFR § 1.01–30 Judicial review. ..........................................................................53
(2). 46 CFR § 1.03–15 General.......................................................................................53
B. Seaman’s Suit Under 28 U.S.C. § 1916....................................................................................... 53
C. Seamen are Wards of the Admiralty............................................................................................ 53
D. Estoppel and Seamen’s Rights .................................................................................................... 55
(1). Huseman v. Icicle Seafoods, Inc., et al, In Rem, ; Ninth Circuit No. 04-35655
(December 27, 2006)......................................................................................................56
(2). Luttrell v. United States, et al., Ninth Circuit. 644 F.2d 1274 (Dec. 4, 1980).............58
E. Resurrecting Neglected Federal Laws For Second Amendment Purposes..................................... 59
(1). 10 U.S.C. § 311. Militia: composition and classes ....................................................59
(2). 10 U.S.C. § 312. Militia duty: exemptions................................................................59
(3). 10 U.S.C. § 332. Use of militia and armed forces to enforce Federal authority..........59

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(4). 10 U.S.C. § 333. Interference with State and Federal law......................................... 59


(5). 10 U.S.C. § 334. Proclamation to disperse ............................................................... 59
(6). 10 U.S.C. § 351. Arming of American Vessels: During war or threat to national
security.......................................................................................................................... 59
(7). 10 U.S.C. § 7851. Composition of the Naval Militia ................................................ 59
(8). 10 U.S.C. § 7854. Availability of material for Naval Militia .................................... 59
(9). 16 U.S.C. § 412. National Military Parks; Camps for military instruction;
regulations for militia .................................................................................................... 59
(10). 18 USC § 245(b)(1)(B). Federally Protect Activities............................................. 59
(11). 23 U.S.C. § 401. Highway Safety: Authority of the Secretary ............................... 59
(12). 23 U.S.C. § 402. Highway Safety: Highway Safety Programs ............................... 59
(13). 23 U.S.C. § 407. Highway Safety: Innovative Project Grants ................................ 59
(14). 32 U.S.C. § 109. National Guard; Maintenance of other troops ............................. 59
(15). 33 U.S.C. § 383. Resistance of Pirates by Merchant Vessels ................................. 59
(16). 42 USC § 2000a. Prohibition Against Discrimination or Segregation in Places of
Public accommodation................................................................................................... 59
(17). 42 USC § 2000a-1. Prohibition Against Discrimination or Segregation Required
by any Law, Statute, Ordinance, Regulation, Rule or Order of a State or State Agency... 59
(18). 42 USC § 2000a-2. Prohibition Against Deprivation of, Interference With, and
Punishment for Exercising Rights and Privileges Secured by Section 2000a or 2000a-1
of this title ..................................................................................................................... 59
(19). 42 USC § 2000a-5. Civil actions by the Attorney General..................................... 59
(20). 42 USC § 2000bb. Congressional Findings and Declaration of Purposes............... 59
(21). 42 USC § 2000bb-1. Free Exercise of Religion Protected ..................................... 59
F. Basis for Jurisdiction ...................................................................................................................60
(1). Under 28 U.S.C. § 1331, Federal Questions............................................................. 60
(2). Under 42 U.S.C. § 1985 Conspiracy to Interfere With Civil Rights.......................... 60
(3). Under 42 U.S.C. § 1985 Conspiracy to Interfere With Civil Rights.......................... 60
(4). Under 42 U.S.C. § 1981 Equal Rights Under the Law.............................................. 60
(5). Under 42 U.S.C § 1982. Property Rights of Citizens................................................ 60
(6). Under 42 U.S.C. § 1983 Civil Action for Deprivation of Rights............................... 60
(7). Under 42 U.S.C. § 2000h–2. Intervention by Attorney General; Denial of Equal
Protection on Account of . . . National Origin ............................................................... 61
(8). Under 42 U.S.C. § 1986. Action for Neglect to Prevent ........................................... 61
(9). Under 18 U.S.C. § 1988. Proceedings in Vindication of Civil Rights ....................... 61
(10). Under 28 U.S.C. § 1343(a), Civil Rights and Elective Franchises........................... 61

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(11). Under 18 U.S.C. § 1964 Civil Remedies [for Racketeering] ...................................62


G. Exceptions to Jurisdiction ........................................................................................................... 62
H. Venue – United States as Defendant ........................................................................................... 63
I. Representations to the Court......................................................................................................... 63
J. Standing to Sue as a Private Right of Action under the AMERICAN DECLARATION ON THE
RIGHTS AND DUTIES OF MAN through the Treaty Clause and 28 U.S.C. § 1331 Federal Questions ..... 64
K. Standing to Sue for Cause and Not for the Status of the Plaintiff for Violations of My Own
Civil Rights, Constitutional Rights, and Human Rights.................................................................... 64
(1). 16 CORPUS JURUS SECUNDUM § 111 Requirement of Standing: ...............................65
(2). 16 CORPUS JURUS SECUNDUM § 113 Facial and As-Applied Challenges ..................66
(3). The Constitution of the United States of America: Analysis and Interpretation of
Cases Decided by the Supreme Court of the United States to June 28, 2002....................67
(4). Standing to Sue: U.S. ATTORNEY’S MANUAL, Title 4: Civil Resource Manual § 35:....70
L. Standing to Sue for the Civil Rights, Constitutional Rights, and Human Rights of Third
Parties (i.e., the Unorganized Militia, 10 U.S.C. § 311(b)(2)), under the Jus Tertii Doctrine............. 71
(1). 16 CORPUS JURUS SECUNDUM § 116 Exceptions to Prohibition of Assertion of
Rights of Third Parties ...................................................................................................71
(2) The Third Circuit & Just Tertii (for the Rights of Third Parties) ................................72
(3). General Principles of Third Party (Jus Tertii) Standing in Amato v. Wilentz 952
F.2d 742; 1991 U.S. App. LEXIS 30138 (1991), ............................................................74
(4) Third Party (Jus Tertii) Standing as Applied to the Plaintiff’s Case ...........................76
M. Standing to Sue as a Private Attorney General under the Civil RICO Act ................................... 78
(1). Citing from David F. Herr, ANNOTATED MANUAL FOR COMPLEX LITIGATION,
(Thomson West, 2006 ed., Chapter 35 Civil Rico, pp. 792-793, footnotes generally
omitted) .........................................................................................................................78
(2). Citing Paul A. Batista, CIVIL RICO PRACTICE MANUAL, 2nd Ed. 2006 Cumulative
Supplement (Wolters Kluwer Law & Busines,) ..............................................................78
§ 6.29 Agencies of the United States as RICO Defendants.........................................78
§ 6.30 ─ Individual Federal Officials as RICO Defendants ........................................78
N. Pre-Enforcement Standing to Sue ............................................................................................... 79
(1). Email from U.S. Marshals Service as Threatening Arrest over Citizen’s Arrest
Warrant is Obstruction of Justice....................................................................................79
O. Stigmatic Harm and Standing ..................................................................................................... 83
(1). Stigmatizing Trait....................................................................................................83
(2). Denial of Equal Treatment .......................................................................................83
(3). The Experience of the Stigmatized...........................................................................84
(4). Questions of Causation and Redressability ...............................................................85

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PART 3. PURPOSE OF THIS CASE ....................................................................................................................87


Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1
A. John S. Baker, Jr., REVISITING THE EXPLOSIVE GROWTH OF FEDERAL CRIMES, The Heritage
Foundation Legal Memorandum, No. 26, June 16, 2008...................................................................88
B. The Over-Criminalization of Social and Economic Conduct ........................................................95
C. The Consequences of Judicial Inaction ........................................................................................97
D. Recognizing the Need for Change ...............................................................................................98
E. Treason by the Federal Courts over the Full Scope of the Second Amendment ..........................100
(1). (August 13, 2008) United States v. Hollis Wayne Fincher, 8th Circuit, No. 07-
2514 and No. 07-2888 ................................................................................................. 103
(2). (June 26, 2008) District of Columbia v. Heller, U.S. Supreme Court, No. 07-290
at 52-53 and 54-56; 128 S.Ct. 2783; 554 U.S.478 F. 3d 370, affirmed. ......................... 103
(3). (August 24, 2004) The Conclusion in the U.S. Department of Justice
Memorandum Opinion for the Attorney General [John Aschroft] WHETHER THE
SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHTS. ................................................ 105
(4). (December 5, 2002) Silveira, et al. v. Lockyer, 9th Cir. No. 01-15098.................... 105
(5). (Revised October 18, 2001) United States v. Emerson, 5th Cir,, No. 99-10331
(October 16, 2001) ...................................................................................................... 106
F. Eighth Circuit’s Faulty Logic on Machinegun Prohibition in United States v. Hollis Wayne
Fincher, No. 07-2514 and No. 07-2888 (August 13, 2008) .............................................................106
(1). Jacob Sullum, WHY NO RIGHT TO MACHINE GUNS? ReasonOnline, June 26, 2008 . 108
G. Open Carry Handgun in Intrastate, Interstate, and Maritime Travel is the Constitutional Norm
Even Though it May Not Be the Social Norm or the Legal Norm Today ........................................109
(1). Nunn v. State, 1 Ga. (1 Kel.) 243 at 251 (1846) (cited, in part, by Heller): ............. 109
(2). State v. Chandler, 5 La. Ann. 489, at 489-490; 52 Am. Dec. 599 (1850) (citied, in
part, by Heller at 40).................................................................................................... 110
(3). Andrews v. State, 50 Tenn. (3 Heisk.) 165, 8 Am. Rep. 8 (1871) (citied, in part, by
Heller at 57) ................................................................................................................ 110
(4). State v. Reid, 1 Ala. 612 at 616, 35 Am. Dec. 44 (1840) (citied, in part, by Heller
at 57)........................................................................................................................... 111
H. What is the Role of the Unorganized Militia, 10 U.S.C. § 311(b)(2) in Federalism and
Homeland Security?.......................................................................................................................111
I. General Synopsis of this Case.....................................................................................................123
J. To Sue For My Own Rights and Pursuit of Justice......................................................................127
(1). To Determine Constitutionality of Summary Judgment Dismissals of My Previous
Cases over the Second Amendment ............................................................................. 127
(2). To Compel Intervention by the Attorney General (42 U.S.C. § 2000h–2)............... 128

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(3). To determine whether I have a civil Gideon right to court appointed qualified
attorney under the American Bar Association’s Task Force on Access to Civil
Justice’s recommendation. ...........................................................................................128
(4). To determine if Mandamus Relief was wrongfully Denied .....................................128
(5). To enforce my Seventh Amendment rights under the Common Law by treaty
under the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN. ......................128
(6). To enforce a proper and uncorrupted judicial review of the FINAL AGENCY ACTION
of the U.S. Coast Guard. ..............................................................................................128
(7). To determine whether provisions for private rights of action should be mandatory
for all statutory rights under federal laws......................................................................129
(8). To determine whether allegations of obstruction of justice against the U.S.
Marshals Service are valid............................................................................................129
(9). To apply the Federal Tort Claims Act for violations of the Seamen’s Suit Law (28
U.S.C. § 1916). ............................................................................................................129
(10). To determine if six years of unconstitutional summary judgments on motion to
dismiss meets the requisite conditions for mandamus relief. .........................................129
(11). To determine whether the Assistant U.S. Attorney Dennis Barghaan of the U.S.
Attorney’s Office in Alexandria committed obstructions of justice. ..............................129
(12). To determine whether the scandal over the politically motivated firing of eight
U.S. Attorneys during the 2006 presidential election effected obstructions of justice
for my civil action at the U.S. District Court for the Eastern District of Arkansas, Little
Rock. ...........................................................................................................................130
(13). To determine whether the U.S. District Court in Little Rock, Arkansas
committed obstructions of justice. ................................................................................130
(14). To determine whether I have any enforceable statutory, constitutional, or human
rights at all in the Courts of the United States. ..............................................................130
K. To Sue For the Rights of Third Parties (Jus Tertii Doctrine) ...................................................... 130
(1). The law-abiding American people at large as a whole set of People as a Third
Party. ...........................................................................................................................130
(2). The Unorganized Militia, 10 U.S.C. § 311(b)(2), as a subset of the American
people at large as a Third Party. ...................................................................................130
(3). American Merchant Seamen as a subset of the American people at large as a Third
Party. ...........................................................................................................................131
(4). American Truck Drivers as a subset of the American people at large as a Third
Party. ...........................................................................................................................131
L. To Sue in the Interest of the Second Amendment ...................................................................... 131
(1). To present a Second Amendment Case by Invitation of U.S. Supreme Court..........131
(2). To determine whether unconstitutional conditions exist over the Second
Amendment. ................................................................................................................131

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(3). To Compel Negotiated Rulemaking with the U.S. Coast Guard, the BATFE and
the MARITIME ADVISORY COMMITTEE FOR OCCUPATIONAL SAFETY AND HEALTH
(MACOSH) of the U.S. Department of Labor as Special Procedures Under Rule
16(C)(9) Federal Rules Of Civil Procedure, 33 C.F.R. § 1.05-60, 5 U.S.C. § 560-
570a, and 5 U.S.C. Appendix - FEDERAL ADVISORY COMMITTEE ACT............................ 131
(4). To resurrect open carry in intrastate, interstate, and maritime travel. ...................... 131
M. To Sue for Equal Justice Under the Law ...................................................................................132
(1). To Achieve Justice for Obstructions of Justice by the Hostile Federal Courts......... 132
(2). To Challenge the Constitutionality of Rule 5.1(a)(1)(A) of the Federal Rules of
Civil Procedure............................................................................................................ 133
(3) To challenge the constitutionality of the Eleventh Amendment. .............................. 133
(4). To determine whether a U.S. seaman has a private right of action against the
United Nations PROGRAMME OF ACTION TO PREVENT, COMBAT AND ERADICATE THE
ILLICIT TRADE IN SMALL ARMS AND LIGHT WEAPONS IN ALL ITS ASPECTS (UN Document
A/CONF.192/15)......................................................................................................... 135
(5). To determine whether Pacer Online Docket Fees are part of the Seamen’s Suit
Law............................................................................................................................. 135
N. To Sue for Seamen’s Rights Under the Law ..............................................................................135
O. Arbitrary Exercise of Government Power ..................................................................................140
(1). To Incorporate the Second Amendment through the Fourteenth Amendment. ........ 140
(2). To determine whether the U.S. Department of Justice and the FBI have a duty to
investigate allegations of extortion and corruption against federal judges and their
court clerks.................................................................................................................. 140
(3). To determine the role of the Citizen’s Arrest Warrant in the Checks and Balance
System of the Constitution of the United States............................................................ 141
(4). To Determine what role the U.S. Merchant Marine has in homeland security when
the U.S. Department of Homeland Security has superintendence of the Merchant. ....... 141
(5). To determine whether the federal courts are waging a judicial war against the
Constitution of the United States.................................................................................. 141
PART 4. IN DEFENSE OF PRO SE CIVIL LITIGATION ....................................................................................143
Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1
A. The Congress Has Killed the Private Bill (First Amendment Right to Petition) ..........................144
B. 2008 UPDATE: Neither the House nor the Senate have passed any Private Bills from January
3 to June 30, 2008..........................................................................................................................145
C. The Plaintiff has the Right to Challenge the Constitutionality of a Statute (Case Law) ...............148
(1). Change of Conditions............................................................................................ 148
(2). Change of Circumstances ...................................................................................... 149
(3). Compelling Constitutional Reasons ....................................................................... 149
C. Right to Petition ........................................................................................................................149

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D. Kathleen M. Sullivan’s, Unconstitutional Conditions, 10 Harv.L.Rev. 1413 (May 1989)........... 150


PART 5. FEDERAL QUESTIONS PRESENTED (28 U.S.C. § 1331)................................................................... 153
Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1
A. Human Rights Law................................................................................................................... 154
B. Constitutional Law (The Checks and Balance System) .............................................................. 155
C. Corruption and Obstructions of Justice (18 U.S.C. § 1505)........................................................ 158
D. Application of the RICO Act Against the U.S. Government ...................................................... 160
E. Maritime Law ........................................................................................................................... 160
PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS .............................................................................. 163
Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1
A. Plaintiff has a Private Right of Action under the AMERICAN DECLARATION ON THE RIGHTS AND
DUTIES OF MAN through the Treaty Clause of the U.S. Constitution ............................................... 164
(1). The Preamble to the American Declaration on the Rights and Duties of Man .........164
(2) The Invoked Articles of the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES
OF MAN in support of my demand for my Seventh Amendment right to a civil jury trial
in defense of my own injuried rights.............................................................................164
(3) The Invoked Articles of the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES
OF MAN in support of my demand for my Seventh Amendment right to a civil jury trial
in defense of the rights of third parties..........................................................................166
B. Plaintiff has a Private Right of Action under Article XVIII (Right to a Fair Trial), and Article
XXIV (Right of Petition) (among others) of the American Declaration of the Rights and Duties
of Man, 1948 through the Treaty Clause of the U.S. Constitution has already been taken by the
Plaintiff with his Human Rights Complaint against the United States now Pending at the Inter-
American Commission on Human Rights (Petition No. 1142-06) ................................................... 170
C. PLAINTIFF’S NOTE: David B. Kopel, Paul Gallant & Joanne D. Eisen, The Human Right of
Self-Defense, 22 BYU Journal of Public Law 43-178 (Fall 2007) (136 pages) is incorporated
into this Part 6 as part of my claims in this complaint.................................................................... 171
D. The Conclusion in David B. Kopel, Paul Gallant & Joanne D. Eisen, The Human Right of
Self-Defense 22 BYU Journal of Pulbic Law 33 (Fall 2007)........................................................... 171
E. With the Heller Opinion, the Second Amendment’s Individual Right to Keep and Bear Arms
Became a Fundamental Change of Circumstances for the Emergence of a New Peremptory
Norm of General International Law (jus cogens) Achieving Human Rights Status as Obligatio
Erga Omnes upon the Member States of the United Nations .......................................................... 172
F. Natural Rights are Human Rights .............................................................................................. 173
G. Heller Impacts Maritime and International Human Rights Treaties............................................ 175
(1). Articles 39-51 of the United Nations Charter..........................................................175
(2). Convention on the Prevention and Punishment of the Crime of Genocide,
December 9, 1948 ........................................................................................................178
(3). United Nations’ Declaration On Human Rights Defenders .....................................178

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(4). The Inter-American Convention Against Corruption.............................................. 178


(5). United Nations Convention Against Corruption..................................................... 179
(6). International Covenant On Civil And Political Rights............................................ 179
(7). United Nations’ Universal Declaration on Human Rights ...................................... 179
(8). American Declaration of the Rights and Duties of Man ......................................... 180
H. Citing from David Sloss, When Do Treaties Create Individually Enforceable Rights?................180
I. United Nations at War Against the Second Amendment..............................................................183
J. The Human Rights Case of Jessica Gonzales: You Have No Individual Right to Police
Protection ......................................................................................................................................184
K. The Human Rights Record of the United States 2002-2007 .......................................................185
L. Other Constitutions: Human Rights are Created by God. Not by Government. ...........................186
M. Other Constitutions: Personal Self-Defense ..............................................................................187
N. Other Constitutions: Self-Defense Against Tyranny...................................................................189
O. Other Constitutions: Right and Duty of Citizens to Resist or Revolt Against Domestic or
Foreign Tyranny ............................................................................................................................190
P. Other Constitutions: Security against home invasion ..................................................................192
PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS ..............................................................201
Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1
A. The Right to Openly Keep and Bear Arms (Open Carry) in Intrastate, Interstate, and
Maritime Travel is the Constitutional Norm ...................................................................................202
B. Open Carry in Intrastate, Interstate, and Maritime Travel is a Near-Absolute Human Right
Notwithstanding Prohibited Person Status under 18 U.S.C. § 922 et seq.........................................202
C. Judge Ellen Segal Huvelle Wrongfully Denied Mandamus Relief ..............................................203
(1). Mandamus: Reserved for Extraordinary Situations: ............................................... 204
(2). First Condition for Mandamus Relief: The plaintiff has a clear right to relief ......... 204
(3). Second Condition for Mandamus Relief: The defendant has a clear duty to act ...... 204
(4). Third Condition for Mandamus Relief: There is no other adequate remedy
available to the plaintiff. .............................................................................................. 204
(5). This Court has the duty to affirm Mandamus Relief............................................... 204
D. There Are No Federal Laws or Regulations on the Second Amendment Rights of U.S.
Seamen to Possess or Carry a Handgun, Whether Concealed Carry or Open Carry, Between the
Jurisdictions of Domestic Law and Maritime Law..........................................................................206
(1). “National Open Carry Handgun” is an Inherent Human Right of Self-Defense....... 206
E. The U.S. Department of Homeland Security Has General Superintendence Over the U.S.
Merchant Marine and Merchant Personnel But Ignores the Role of Seamen’s Second
Amendment Rights in Homeland Security......................................................................................206

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(1). That small arms training falls under the GENERAL REQUIREMENTS AND
CLASSIFICATIONS FOR ABLE SEAMEN, 46 U.S.C. § 7306(a)(3): .......................................207
(2). That 33 C.F.R. § 104.220 COMPANY OR VESSEL PERSONNEL WITH SECURITY DUTIES
requires the following: .................................................................................................207
(3). That the International Maritime Organization’s Maritime Safety Committee policy
on, Piracy and Armed Robbery Against Ships: Guidance to Shipowners and Ship
Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and
Armed Robbery Against Ships, MSC/Circ.623/Rev.3, dated May 29, 2002,
paragraphs 45 and 46 states:.........................................................................................208
F. Case Law on Vested Rights (Sorted by Year) ............................................................................ 210
(1) Calder v. Bull, 3 Dall 386 (1796)............................................................................210
(2). Marbury v. Madison 5 U.S. 137, 163 (1803) .........................................................210
(3). Cockrum v. State, 24 Texas 394 (1859)..................................................................210
(4). Wilson v. State, 33 Arkansas, 557, at 560 (1878) (striking a ban on open carry).....211
(5). Union Pacific Railway Company v. Botsford, 141 U.S. 250, at 251 (1891).............211
(6). Yick Wo v. Hopkins, 118 U.S. 356, at 369 (1886) ...................................................211
(7) Coppage v. Kansas, 236 U.S. 1 (1915) [Unconsitutional Conditions] ......................211
(8). Olmstead v. United States 277 U.S. 438, 485 (1928) ..............................................214
(9). Murdock v. Pennsylvania 319 US 105 (1942) ........................................................214
(10). West Virginia State Board of Education v. Barnette 319 U.S. 624, 638-639
(1943) ..........................................................................................................................214
(11). American Communications Association, C.I.O., et al v. Douds, Regional
Director of the National Labor Relations Board, 339 U.S. 382, 442-443 (1950)............215
(12). Lucas v. Colorado General Assembly 377 U.S. 713, 736-737 (1964)...................215
(13). Jordan v. Gardner 986 F.2d 1521 (9th Cir. 1993) ................................................215
(14). People v. Banks 6 Cal.4th 926, 949 (1993)..........................................................215
G. Case Law on the Private Right of Action (Sorted by Year)........................................................ 215
(1). United States v. Lee, 106 U.S. 196, at 220 (1882)...................................................215
(2). Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370 (7th Cir. 1985).........215
(3). Robert A. Buell, v. Betty Mitchell, Warden, No. 99-4271, 6th Cir., 274 F.3d at 373
(December 4, 2001) .....................................................................................................216
(4). Robert A. Buell, v. Betty Mitchell, Warden, No. 99-4271, 6th Cir., 274 F.3d at 373
(December 4, 2001) .....................................................................................................217
(5). Robert A. Buell, v. Betty Mitchell, Warden, No. 99-4271, 6th Cir. (December 4,
2001) ...........................................................................................................................217
(6). Diana Renkel v. United States 6th Circuit, No. 05-3420; 456 F.3d 640 (6th Cir.
2006) ...........................................................................................................................218
H. Case Law on Constitutional Rights (Sorted by Year)................................................................. 219

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(1). United States v. Lee, 106 U.S. 196, at 220 (1882) .................................................. 219
(2). Juliard v. Greeman, 110 U.S. 421 (1884) .............................................................. 219
(3). Kentucky Railroad Tax Cases, 115 U.S. 321, 337 (1885) ....................................... 219
(4). Boyd v. United States, 116 U.S. 616 at 635 (1885)................................................. 219
(5). Logan v. United States 144 US 263 (1892) ............................................................ 219
(6). Duncan v. Missouri, 152 U.S. 377, 382 (1894) ...................................................... 220
(7). Mountain Timber Co. v. Washington, 243 US 219 (1917) ..................................... 220
(8). Miller v. United States 230 F 486 at 489 (1913)..................................................... 220
(9). Davis v. Wechler, 263 U.S. 22, 24 (1923).............................................................. 220
(10). Olmstad v. United States, 277 U.S. 438 (1928) .................................................... 220
(11). Lawrence v. State Tax Commission, 286 US 276, at 282 (1932)........................... 220
(12). Perry v. United States, 294 U.S. 330, 358 (1935)................................................ 220
(13). Smith v. Allwright, 321 U.S. 649 at 664 (1944).................................................... 220
(14). Kent v. Dulles, 357 U.S. 116, 125 (1958)............................................................. 220
(15). Walter Process Equipment v. Food Machinery, 382 U.S. 172 (1965) ................... 221
(16). Simmons v. United States, 390 U.S. 377 (1968) ................................................... 221
(17). Chandler v. Judicial Council, 398 U.S. 74, at 140 (1970) .................................... 221
(18). Chandler v. Judicial Council, 398 U.S. 74, at 140 (1970) .................................... 221
(19). Sherar v. Cullen, 481 F. 2d 946 (1973)................................................................ 221
(20). Goss v. Lopez, 419 US 565 (1975)....................................................................... 221
(21). United States v. Chadwick, 433 U.S. 1, at 16 (1976) ............................................ 221
(22). Owen v. City of Independence 445 U.S. 622, 657 1980)....................................... 221
(23). Forrester v. White, 484 U.S. 219, at 227-229 (1988)............................................ 221
(24). Mireles v. Waco, 502 U.S. 9, at 11-12 (1991) ...................................................... 222
(25). Hartford Fire Ins. Co. v. California, 509 U.S. 764 (1993) ................................... 223
PART 8. PLAINTIFF’S RELIGIOUS RIGHTS DECLARATIONS .........................................................................225
Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1
A. God, Guns, & Freedom .............................................................................................................226
B. What Rights Do We Have?........................................................................................................226
(1). Natural Rights (Black’s Law Dictionary)............................................................... 226
(2). Civil Rights (Civil Liberties) (Black’s Law Dictionary)......................................... 226
(3). Religious Freedom (Black’s Law Dictionary) ...................................................... 226
C. Second Amendment As A Religious Right Explained ................................................................226
(1). Inherent Rights Defined ........................................................................................ 226

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(2). Inalienable Rights Defined.....................................................................................226


(3). Inherent human right includes creeds .....................................................................226
(4). Creed Defined as Confession or Articles of Faith, i.e. The Bible ............................227
D. The Unrecognized And Denied Religious Connection To The Second Amendment................... 227
(1). The Sword and The Bible as Articles of Faith, A System of Religious Belief .........228
(2). Selected Bible Verses Application to Plaintiff’s Case.............................................230
(a). Warnings of Government Genocide -- 2nd Kings 19:32-34 ............................... 230
(b). Corruption -- Ecclesiastes 3:16-17 .................................................................... 230
(c). Corruption/Bribery -- Isaiah 1:23-26................................................................. 230
(d). The Corrupted Receives Justice – Job 20:24-25 ................................................ 230
(e). Defending Against Government Abuses -- Jeremiah 5:20-31............................. 230
(f). Malicious Prosecution -- Psalms 59:1-5............................................................. 230
(g). Illegal Use of Weapons -- Numbers 35:18......................................................... 231
(h). Militias -- Ecclesiastes 4:12-13......................................................................... 231
(i). Defending the Church with Weapons -- 2 Chronicles 23:10 ............................... 231
(j). Weapons in the Workplace -- Nehemiah 4:17 .................................................... 231
(k). Lawlessness Without The Sword -- Deuteronomy 32:25. .................................. 231
(l). Weapons Making & Defense Against Persecution - Isaiah 54:16-17................... 231
(m). The Slaughter Weapon - (Sword v. Full-Auto Firearms) -- Ezekiel 9:1-2.......... 231
(n). Facing Your Enemy -- Deuteronomy 20:1......................................................... 231
(o). War -- Exodus 15:3 .......................................................................................... 231
(p). The Lord as a Warrior -- Joshua 5:13................................................................ 231
(q). Standing Watch -- Zechariah 9:8....................................................................... 232
(3). The Story of David and Goliath: Keeping Firearms Out of the Hands of Children
(Teens) Defies Religious Teachings of the Bible ..........................................................232
(a). Weapons Training For Children - 1 Samuel 17:39-40........................................ 232
(b). The Hypocrites – Isaiah 32:14-15, 18................................................................ 233
(4). The Takings Clause of the Fifth Amendment includes Non-Physical Takings.........233
PART 9. PLAINTIFF’S MARITIME DECLARATIONS ...................................................................................... 235
Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1
A. Heller impacts the Vienna Convention on the Law of Treaties 1969 and the Vienna
Convention on the Law of Treaties between States and International Organizations or between
International Organizations 1986................................................................................................... 236
B. Heller impacts the American Declaration of the Rights and Duties of Man ................................ 236
C. Second Amendment Rights of U.S. Seamen to “Open Carry Handgun” in Intrastate,
Interstate, and Maritime Travel under the First, Fourth, Fifth, Ninth, Tenth, Thirteenth, and
Fourteenth Amendments................................................................................................................ 236

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D. Second Amendment Rights of Seamen under 33 U.S.C. § 383 Resistance of Pirates by


Merchant Vessels (Suppression of Piracy)......................................................................................236
(1). 33 USC § 383. Resistance of pirates by merchant vessels (Suppression of Piracy) . 237
PART 10. CHALLENGING THE NON-INCORPORATION DOCTRINE ON THE SECOND AMENDMENT ..............239
Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1
A. Heller and Incorporation of the Second Amendment .................................................................240
B. Human rights interpretation of Michael Anthony Lawrence, Second Amendment
Incorporation through the Fourteenth Amendment Privileges and Immunities and Due Proceess
Clauses, Missouri Law Review, Vol. 72, No. 1 (Winter 2007)........................................................242
(1). Excerpts From Heller with the Phrase “Natural Rights”......................................... 242
(2). Excerpts with Phrases the Include the Word “Human”........................................... 244
(3). “Oath” for federal judges, pages 42-44 (in last footnote)........................................ 248
C. The Stare Decisis Doctrine in Planned Parenthood v. Casey 505 U.S. 833 at 854-855 (Part III.
A.) (1992); 120 L. Ed.2d. 674, 700 (1992). ....................................................................................250
PART 11. CHALLENGING THE CONSTITUTIONALITY OF SUMMARY JUDGMENT .........................................253
Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1
A. Law Review Articles for 2008...................................................................................................254
B. Law Review Articles from 2007 ................................................................................................254
C. Professor Suja Thomas discusses the Seventh Amendment Right to a Jury Trial at the
University of Cincinnati College of Law (November 8, 2007) ........................................................254
D. New York Times Sidebar: Cases Keep Flowing In, But The Jury Pool Is Idle (April 30, 2007) ..256
E. Dissenting Opinions Exposing Too Many Summary Judgments .................................................259
(1). Melvin v. Cal-Freshener Corp., 8th Circuit, No. 06-1279 (2006) ............................ 259
(2). Adickes v. S.H. Kress & Co., 398 U.S. 144, 176 (1970) ......................................... 259
(3). Montana v. Hall, 481 U.S. 400, 406-410 (1987) .................................................... 259
PART 12. CHALLENGING THE FINAL AGENCY ACTION OF THE U.S. COAST GUARD ..................................263
Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1
A. Capt. J. P. Brusseau Violated his Oath of Office when he ascribed a Personal Ideology
against the Second Amendment as a Basis for the Denial Letter, April 19, 2002.............................264
PART 13. CHALLENGING THE FEDERAL COURT RULING ............................................................................265
Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1
A. Hamrick v. President George W. Bush, U.S. District Court for DC, No. 02-1435 (2002)............266
B. Did Judge Ellen Segal Huvelle commit a fraud or make false statements (18 U.S.C. § 1001) in
her Memorandum and Order? ........................................................................................................269
(1). Excerpts from the U.S. Attorney’s Manual, Title 9: Criminal Resource Manual. .... 269
PART 14. CHALLENGING SELECTED FEDERAL LAWS .................................................................................271

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Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1


A. Interstate Transportation of Firearms 18 U.S.C. § 926A. ........................................................... 272
B. Registration of Certain Organizations 18 U.S.C. § 2386. ........................................................... 272
C. The Merchant Marine Act of 1936 ............................................................................................ 272
(1). 46 U.S.C. Appendix § 1101. Fostering Development and Maintenance of
Merchant Marine..........................................................................................................272
D. Maritime Problems; Cooperation With Others; Cargo Carriage; Recommendations 46 U.S.C
Appendix § 1122........................................................................................................................... 272
E. Maritime Education and Training under the Merchant Marine Act of 1936................................ 273
(1). 46 U.S.C. Appendix § 1295. Congressional Declaration Of Policy ........................273
F. Secretary of Transportation May Provide Additional Training on Maritime Subjects 46 U.S.C.
Appendix § 1295d. ........................................................................................................................ 273
G. Powers and Duties of Secretary of Transportation 46 U.S.C. Appendix § 1295g........................ 273
H. U.S. Coast Guard Merchant Mariner’s Document Pilot Program Public Law No. 108-293.
Section 611 ................................................................................................................................... 274
I. Seafarers International Union’s Small Arms Range and Courses Approved by Military Sealift
Command ..................................................................................................................................... 274
J. Brief Legislative History of Civil Defense (50 U.S.C. § 2251 et. seq.)........................................ 275
K. 10 U.S.C. § 311. Militia: Composition and Classes ................................................................... 276
PART 15. CHALLENGING SELECTED FEDERAL REGULATIONS ................................................................... 279
Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1
A. 46 CFR §12.05-3(a)(4) General Requirements (for Able Seamen)............................................. 280
B. 46 CFR §12.05-3(b)(4) General Requirements (for Able Seamen)............................................. 280
C. 27 C.F.R. § 478.38 Transportation of Firearms.......................................................................... 282
D. 33 CFR § 104.220 Company or Vessel Personnel with Security Duties ..................................... 283
E. 33 CFR § 104.230 Drill and exercise requirements .................................................................... 283
PART 16. CHALLENGING SELECTED STATE LAWS...................................................................................... 285
Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1
A. Federal Preemption of State Laws............................................................................................. 286
B. The List of Named State Laws: ................................................................................................. 288
C. Online Research Sites for Open & Concealed Carry.................................................................. 289
PART 17. CHALLENGING SELECTED MARITIME CONVENTIONS AND TREATIES ........................................ 297
Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1
A. PIRACY AND ARMED ROBBERY AGAINST SHIPS: Guidance to Shipowners and Ship
Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed

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Robbery Against Ships (International Maritime Organization’s Maritime Safety Committee


(MSC) Circular 623 Rev. No. 3, dated May 29, 2002)....................................................................298
B. Maritime Labour Convention, 2006 ..........................................................................................298
C. International Maritime Organization (IMO) Convention for the Suppression of Unlawful Acts
Against the Safety of Maritime Navigation, 1988...........................................................................299
D. Chapter XI-2 - Special Measures to Enhance Maritime Security of The International
Convention for Safety of Life at Sea (1974 as amended) (SOLAS)..................................................300
E. International Ship and Port Facility Security Code (ISPS Code) .................................................301
F. Chapter II: Master-Deck Department of the International Convention on Standards of
Training, Certification and Watchkeeping for Seafarers, 1978........................................................302
PART 18. RACKETEERING AND TREASON AGAINST THE CONSTITUTION BY FEDERAL JUDGES .................305
Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1
A. The RICO Act Includes the United States Government..............................................................306
B. The Civil RICO Act Includes the United Nations.......................................................................308
(1). Michael Goldsmith and Vicki Rinne, CIVIL RICO, FOREIGN DEFENDANTS, AND
“ET”, 73 Minn. L. Rev. 1023, (April, 1989) ................................................................ 308
C. The United Nations, the United States and the States are Racketeering Enterprises Over the
Second Amendment.......................................................................................................................311
(1). Definition of Enterprise under the RICO Act. ........................................................ 311
(2). Types of Enterprises. ............................................................................................ 311
D. The Private Attorney General and the Human Rights Defender..................................................315
E. Disarming the Private Attorney General.....................................................................................317
PART 19 THE CLAIMS ..................................................................................................................................323
Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1
A. The U.S. Coast Guard Final Agency Action Denial was Wrongfully Based Upon a Personal
Ideology in Violation of the Oath of Office ....................................................................................324
B. Teetering on Judicial Tyranny and Despotism............................................................................329
C. Most Federal Judges are Mad Hatters on the Wrong Side of the Looking Glass .........................330
D. Judge Edith Jones of the Fifth Circuit, “The American legal system has been corrupted almost
beyond recognition.”......................................................................................................................332
(1) Three Contemporary Threats to the Rule of Law .................................................... 332
(2) No ‘Great Awakening’ In Law School Classrooms ................................................. 333
(3) Judge Edith Jones declares that the Rule of Law has religious origins. .................... 334
E. Extortion Under Color of Official Right - Hobbs Act: Title 9 U.S. Attorneys’ Manual:
Criminal Resource Manual § 2404 .................................................................................................334

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F. Evidence of Habit/Routine Practice (Rule 406, Fed.R.Ev.) Leads to Presumptions in General


in This Civil Action of Corruption, Racketeering, and Judicial Treason Against the Constitution
(Rule 301, Fed.R.Ev.).................................................................................................................... 337
G. Evidence of U.S. Supreme Court Bias Against Second Amendment Cases and Against Pro Se
Plaintiffs with a Second Amendment Case..................................................................................... 338
H. Calendar Committee and Judge Reggie B. Walton of the U.S. District Court for DC Violated
Court Order of Judge Richard W. Roberts. .................................................................................... 344
CLAIM No. (1): Human Rights Violations .................................................................................... 346
CLAIM No. (2): Retaliation by the The U.S. Coast Guard ............................................................. 348
CLAIM No. (3): Judicial Treason Against the Constitution & Bill of Rights .................................. 348
CLAIM No. (4): Obstructions of Justice ........................................................................................ 349
CLAIM No. (5): My Human Right to a Civil Jury Trial Violated ................................................... 354
CLAIM No. (6): U.S. Marshals Service Committed Obstructions of Justice and Conspiracies to
Obstruct Justice............................................................................................................................. 356
CLAIM No. (7): Don Hamrick has a Right to a Private Bill Remedy Citing as Precedence Wilke
v. Robbins, 551 U.S. ____; 433 F. 3d 755; 1127 S.Ct. 2588 (June 25, 2007). ................................. 359
CLAIM No. (8) Civil RICO Act Treble Damages in the amount of $14 Million ............................. 360
CLAIM No. (9) $1 Million in Compensatory Damages.................................................................. 361
PART 20. STATEMENT OF PROPOSED RICO CHARGES (CLAIMS) .............................................................. 363
Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1
A. RICO charges: U.S. Attorney’s Manual, Title 4 Civil Resource Manual § 109 .......................... 368
B. RICO-related Charges: U.S. Attorney’s Manual, Title 9 Criminal Resource Manual § 110 ........ 370
C. Extortion: Hobbs Act – Generally: U.S. Attorney’s Manual, Title 9 Criminal Resource
Manual § 2402 .............................................................................................................................. 370
D. Extortion By Force or Fear – U.S. Attorney’s Manual, Title 9 Criminal Resource Manual §
2403.............................................................................................................................................. 371
(1). Did the defendant induce or attempt to induce the victim to give up property or
property rights?............................................................................................................371
(2). Did the defendant use or attempt to use the victim’s reasonable fear of physical
injury or economic harm in order to induce the victim’s consent to give up property?...371
(3). Did the defendant’s conduct actually or potentially obstruct, delay, or affect
interstate or foreign commerce in any (realistic) way or degree?...................................372
(4). Was the defendant’s actual or threatened use of force, violence or fear wrongful? ..372
E. Extortion Under Color of Official Right - Hobbs Act USAM 9 Criminal.R.M. § 2404............... 374
F. The RICO Claims...................................................................................................................... 378
(1). Robbins v. Wilkie, et al, 10th Circuit, No. 01-8037, (August 21, 2002):..................378
G. Obstructions of Justice (18 U.S.C. § 1505)................................................................................ 379

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(1) Fraud and False States by the federal bench and bar under 18 U.S.C. § 1001. ......... 379
H. Corruption in the U.S. Department of Justice.............................................................................380
(1). Justice Department Witheld Evidence from the Court............................................ 380
(2). Federal and State Gun Control Laws Violate the Thirteenth and Fourteenth
Amendments ............................................................................................................... 382
(a). “Actual Freedom” in Abraham Lincoln’s Emancipation Proclamation: ..............382
(b) “Actual Freedom” Defined in Dred Scott v. Sanford, 60 US (19 How.) 393,
417 (1857) ..............................................................................................................382
I. Exemptions to Foreign Sovereign Immunities Act of 1976 Apply to my Case Against the
United Nations...............................................................................................................................383
J. Dennis Barghaan, Assistant U.S. Attorney from Alexandria, Virginia, acting as Special
Attorney for the U.S. Department of Justice, and persons or persons unknown in the U.S.
Department of Justice criminally withheld evidence (Memorandum Opinion for the Attorney
General, Whether the Second Amendment Secures an Individual Right, dated August 24, 2004)
vital to my Second Amendment case at the U.S. District Court for DC, Case No. 03-2160 .............384
PART 21. PETITION FOR WRIT OF MANDAMUS (MY DEMANDS FOR JUSTICE) ...........................................386
Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1
A. Writ of Mandamus for Negotiated Rulemaking with the U.S. Coast Guard, the BATFE and
the Maritime Advisory Committee for Occupational Safety and Health (MACOSH) of the U.S.
Department of Labor as Special Procedures Under Rule 16(C)(9) Federal Rules Of Civil
Procedure, 33 C.F.R. § 1.05-60, 5 U.S.C. § 561-570a, and 5 U.S.C. Appendix - Federal
Advisory Committee Act.................................................................................................................387
B. Writ of Mandamus for Negotiated Rulemaking with the U.S. Coast Guard in Cooperation
with other Agencies, States, Territories, and Political Subdivisions in Accordance with 14
U.S.C. § 141. .................................................................................................................................388
C. Writ of Mandamus for Negotiated Rulemaking with the International Maritime Organization
through the U.S. State Department in accordance with 14 U.S.C. § 142..........................................392
PART 22. PETITION FOR WRIT OF PROHIBITION .........................................................................................396
Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1
A. Writ of Prohibition to Prohibit My Arrest by the U.S. Marshals Service or any other federal
or district law enforcement agency for Exercising My Right to Make Citizen’s Arrests of Federal
Judges and court clerks for felony EXTORTION UNDER COLOR OF LAW 18 U.S.C. § 872, and
felony racketeering EXTORTION UNDER COLOR OF OFFICIAL RIGHT 18 U.S.C. § 1951(a) and §
1951(b)(2) of their respective court’s filing fees in violation of the Seamen’s Suit Law 28 U.S.C.
§ 1916 in accordance with D.C. Code § 23-582(b)(2) and § 23-582(c)............................................397
B. Petition for Writ of Prohibition in Defence of Citizen’s Arrest Warrant of Federal Judges and
Court Clerks for Felony Extortion..................................................................................................397
PART 23. PETITION FOR DECLARATORY JUDGMENT ..................................................................................398
Rule 8(d)(2). Alternative Statements of a Claim. ................................................................................1
PART 24. PETITION FOR INJUNCTIVE RELIEF..............................................................................................400

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Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1


PART 25. DAMAGES ..................................................................................................................................... 402
Rule 8(d)(2). Alternative Statements of a Claim................................................................................. 1
(1) RICO Act Damages for Wrongful Detention by the U.S. Coast Guard...................................... 403
(2) RICO Act Damages for Obstructions of Justice by the U.S. Department of Justice ................... 405
(3) RICO Act Damages for Obstructions of Justice by the U.S. Marshals Service .......................... 405
(4) RICO Act Damages for the Denial of my Seventh Amendment right to a Civil Jury Trial by
the Federal Judiciary ..................................................................................................................... 405
EXHIBIT 1. STATE DEPARTMENT GIVES AWAY 8 ISLANDS OF ALASKA TO RUSSIA ...................................... 406
EXHIBIT 2. NO RIGHT TO POLICE PROTECTION DOCTRINE .......................................................................... 408
EXHIBIT 3. HELLER’S FUTURE IN THE LOWER COURTS ................................................................................ 412
EXHIBIT 4. THE LAW OF CITIZEN’S ARREST 65 COLUMBIA L.REV. 502 (MARCH 1965)............................... 419
EXHIBIT 5. DAVE KOPEL: U.N. TO WORLD: YOU HAVE NO HUMAN RIGHT TO SELF-DEFENSE ................... 421
EXHIBIT 6. THE RIGHT OF A LITIGANT TO PROCEED PRO SE: AMICUS CURIAE BRIEF IN ANDREW
PICKHOLTZ V. RAINBOW TECHNOLOGIES, INC.AND SOFTWARE SECURITY, INC............................................. 425
EXHIBIT 7. COMMENTS ON THE NINTH CIRCUIT PRO SE TASK FORCE REPORT ............................................. 430
EXHIBIT 8. DAVE B. KOPEL, MEDELLIN AND THE SECOND AMENDMENT .................................................... 438
EXHIBIT 9. FEDERAL JUDICIAL ACCOUNTABILITY & INTEGRITY LEGISLATION (J.A.I.L.) ............................ 441
EXHIBIT 10. U.S. DEPARTMENT OF STATE - INTERNATIONAL LEGAL AUTHORITIES .................................... 445
EXHIBIT 11. REPORT OF THE U.N. SECRETARY-GENERAL ON HUMAN RIGHTS DEFEENDERS ....................... 446
EXHIBIT 12. U.N. DECLARATION ON HUMAN RIGHTS DEFENDERS .............................................................. 451
EXHIBIT 13. CASTLE ROCK, CO. VS JESSICA GONZALES 545 U.S. 748 (2005) (NO INDIVIDUAL RIGHT
TO POLICE PROTECTION KILLED 3 LITTLE GIRLS) ......................................................................................... 457

EXHIBIT 14. HUMAN RIGHTS COMPLAINT: JESSICA GONZALES V. UNITED STATES ..................................... 459
EXHIBIT 15. JAMES S. GIFFORD, JUS COGENS AND FOURTEENTH AMENDMENT PRIVILEGES OR
IMMUNITIES: A FRAMEWORK OF SUBSTANTIVE, FUNDAMENTAL HUMAN RIGHTS IN A CONSTITUTIONAL
SAFE-HARBOR, 16 ARIZ. J. INT’L & COMP. LAW 484 (SPRING 1999) ............................................................ 472
EXHIBIT 16. UNITED STATES V. HOLLIS WAYNE FINCHER, 8TH CIRCUIT ...................................................... 518
EXHIBIT 17. HELLER’S FUTURE IN THE LOWER COURTS ............................................................................. 526
EXHIBIT 18. JOHN ROSS, PROHIBITION’S UGLY LEGACY BY JOHN ROSS, UNINTENDED CONSEQUENCES ..... 534
EXHIBIT 19. DAVID B. KOPEL, THE NATURAL RIGHT OF SELF-DEFENSE: HELLER’S LESSON FOR THE
WORLD, 58 SYRACUSE LAW REVIE __ (2008) ............................................................................................... 544
EXHIBIT 20. NICK BRADLEY, NATIONAL SECURITY, SWISS STYLE.............................................................. 560
EXHIBIT 21. JOHN E. WOLFGRAM, HOW THE JUDICIARY STOLE THE RIGHT TO PETITION ............................ 564

TABLE OF CONTENTS
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Part 1. Mandatory Judicial Notice of Adjudicative Facts, Rule 201(d), Fed.R.Ev.


A. Summary Judgment Dismissal is Barred Due Plaintiff’s Human Rights
Complaint against the United States alleging Judicial Bias and Loss of Integrity in
the Federal Judicial System under the Canons of Ethics

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PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

Don Hamrick FRIDAY, JULY 4TH, 2008

5860 Wilburn Road, Wilburn, Arkansas 72179, Email: 4donhamrick@gmail.com

U.S. Supreme Court Ruling on the Second Amendment as


Being an Individual Right has Become “jus cogens” For A
New Peremptory Norm of General International Law
“Petition No. 1142-06”
Paolo G. Carozza PLAINTIFF’S NOTE: The date of this letter is the “4th of July.”
Inter-American Commission on Human Rights It is Independence Day! It is the day I mailed this letter to the
1889 F Street, N.W. INTER-AMERICAN COMMISSION ON HUMAN RIGHTS because the
Washington, D.C., 20006 Federal Courts are acting like the Judicial Praetorian Guard for
Dear Mr. Carozza, the U.S. Government against its own People.

Please let the attached U.S. Supreme Court’s District of Columbia, et al v. Heller opinion be
entered into the record as evidence vindicating my human rights complaint against the United States in
Petition No. 1142-06. The Heller opinion also affects Jessica Gonzales (now Lenahan) human rights
complaint against the United States, Petition No. 1490-05.
Citing the VIENNA CONVENTION ON THE LAW OF TREATIES 1969 and the VIENNA CONVENTION ON
THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN
INTERNATIONAL ORGANIZATIONS 1986 it is my claim that the U.S. Supreme Court’s Heller opinion on the
Second Amendment includes and protects the right of armed self-defense as part of the “right to life”
provision in international human rights treaties and presents a “fundamental change of circumstances
(Article 62 of both Vienna Conventions) for the “emergence of a new peremptory norm of general
international law (“jus cogens”), (Article 64 of both Vienna Conventions) for the “right to life”
provisions in international human rights treaties through the treaty clause in Article II, Section 2 of the
CONSTITUTION OF THE UNITED STATES.
The Heller opinion also impacts the AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN
under Articles I, II, IV, V, VI, VII, VIII, IX, gun culture under Articles XIII, XV, XVII, XVIII, XXI, XXII,
XXIII, XXIV, XXV, XXVI, and duties to society under Article XXIX to which the INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS and the INTER-AMERICAN COURT ON HUMAN RIGHTS have jurisdiction.
The Heller opinion has two quotable points:
Page 9:
“Keep arms” was simply a common way of referring to possessing arms, for militiamen and everyone
else.” [Footnote 7: . . . J. Ayliffe, A NEW PANDECT OF ROMAN CIVIL LAW 195 (1734) (“Yet a Person might
keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on
the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of
Inheritance”); . . .]1

Page 1 of 3

1
Emphasis is mine.

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Page 46:
“As the Constitution of the United States, and the constitutions of several of the states, in terms more or
less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave
discussion, in some of the state courts, whether a statute prohibiting persons, when not on a
journey, or as travellers, from wearing or carrying concealed weapons, be constitutional.
There has been a great difference of opinion on the question.” 2 J. Kent, Commentaries on American
Law *340, n. 2 (O. Holmes ed., 12th ed. 1873).2

In the Page 9 quotation I construe the term “everyone else” to include merchant seamen in
interstate and maritime travel as supported by the terms “Navigation” and “Traveling” in Scalia’s
Footnote 7.
Scalia’s Page 46 quotation implies that “open carry in interstate and maritime travel” is an
“absolute or near-absolute right” not subject to any regulation at all. This inference needs clarification
by judicial challenge.
The federal statute, 18 U.S.C. § 926A - INTERSTATE TRANSPORTATION OF FIREARMS, (nearly
identical in effect to the strickened DC gun control law), is now ready for such a judicial challenge.

IMPACTED INTERNATIONAL TREATIES:


● PIRACY AND ARMED ROBBERY AGAINST SHIPS: GUIDANCE TO SHIPOWNERS AND SHIP OPERATORS,
SHIPMASTERS AND CREWS ON PREVENTING AND SUPPRESSING ACTS OF PIRACY AND ARMED ROBBERY
AGAINST SHIPS (International Maritime Organization’s Maritime Safety Committee (MSC) Circular 623
Rev. No. 3, dated May 29, 2002)
Firearms
¶45. The carrying and use of firearms for personal protection or protection of a ship is strongly
discouraged.
¶46. Carriage of arms on board ship may encourage attackers to carry firearms thereby escalating an
already dangerous situation, and any firearms on board may themselves become an attractive target for
an attacker. The use of firearms requires special training and aptitudes and the risk of accidents with
firearms carried on board ship is great. In some jurisdictions, killing a national may have unforeseen
consequences even for a person who believes he has acted in self defence.
● CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, Dec. 9, 1948
● MARITIME LABOUR CONVENTION

Page 2 of 3

2
Emphasis mine.

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THE INTERNATIONAL BILL OF HUMAN RIGHTS:


● UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948
● INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1966
● INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 1966
● OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
● SECOND OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS,
AIMING AT THE ABOLITION OF THE DEATH PENALTY

SELECTED INTERNATIONAL HUMAN RIGHTS INSTRUMENTS


● INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, 21 Dec
1965
● INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, 16 Dec 1966
● OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS 16 Dec 1966
● SECOND OPTIONAL PROTOCOL TO THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS,
AIMING AT THE ABOLITION OF THE DEATH PENALTY, 15 Dec 1989

● INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, 16 Dec 1966


● CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, 18 Dec 1979
● OPTIONAL PROTOCOL TO THE CONVENTION ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN,
10 Dec 1999

THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTS


● THE AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN
● THE AMERICAN CONVENTION ON HUMAN RIGHTS
● ADDITIONAL PROTOCOL TO THE AMERICAN CONVENTION ON HUMAN RIGHTS IN THE AREA OF ECONOMIC,
SOCIAL AND CULTURAL RIGHTS (Protocol of San Salvador)

Respectfully submitted,

Don Hamrick

Page 3 of 3

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The international reputation of the U.S. District Court for the District of Columbia
is now on the line in how it now treats my case. Dismissing my case by Summary
Judgment on Motion to Dismiss will be viewed with “strict scrutiny” under my
Seventh Amendment right to a civil jury trial by the INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS and under the AMERICAN DECLARATION ON THE RIGHTS AND
DUTIES OF MAN OF 1948. This Court would do well to Order the U.S. Attorney to
forget about filing their Motion to Dismiss and proceed directly to the Discovery
Phase because 6 years of Motions to Dismiss is a criminal offense in itself.
The statistics of seventeen cases by an unrepresented civil plaintiff
pushing the Second Amendment getting dismissed with and without prejudice
ought to be, in and of itself, criminal evidence of judicial bias sufficient to sustain
my Mandatory Judicial Notice dismissal of my case barred based on the hostile
and despicable treatment my cases have received by the federal courts. The
reputation of the federal courts are noted in law review articles presented in
this case!
“It is the manner of enforcement which gives section 1983 (title 42 of the U.S. Code - Federal statutes) its unique
importance, for enforcement is placed in the hands of the people. Each citizen acts as a private attorney general
who takes on the mantel of the sovereign guarding for all of us the individual liberties enunciated in the
Constitution. Section 1983 represents a balancing feature in our governmental structure whereby individual
Thus, it is of special import
citizens are encouraged to police those who are charged with policing us all.
that suits brought under this statute be resolved by a determination of truth rather than
by a determination that the truth shall remain hidden.” Frankenhauser v. Rizzo 59 F.R.D. 339, 343
(1973)

CAVEAT: The Bolded fonts represent my intellectual anger, NOT my emotional


anger, at how the federal courts have “enslaved” me these past 6 years
(Thirteenth Amendment implications) researching the law, perpetually reading
law review articles for new legal strategy only to be continually smacked down as

“Where a person’s good name, reputation, honor, or integrity is at stake


because of what the government is doing to him, notice and an
opportunity to be heard are essential.” Wisconsin v. Constantineau, 400
U.S. 433, 437 (January 19, 1971).

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B. Summary Judgment Dismissal is Barred due to Two Open Invitations from the
U.S. Supreme Court for Second Amendment cases and One Open Invitation for a
Right to Travel Case. My Case Presents a Right to Travel with Second Amendment
rights.
(1). First Invitation by SCOTUS: Second Amendment (1997)
The first subject matter jurisdiction invitation extended by the U.S. Supreme Court on the Second
Amendment was Justice Thomas’ concurring opinion in Printz v. United States 521 U.S. 898 (1997):
“. . . If, however, the Second Amendment is read to confer a personal right to “keep and bear arms,” a colorable
argument exists that the Federal Government’s regulatory scheme, at least as it pertains to the purely intrastate
sale or possession of firearms, runs afoul of that Amendment’s protections. As the parties did not raise this
argument, however, we need not consider it here. Perhaps, at some future date, this Court will have the
opportunity to determine whether Justice Story was correct when he wrote that the right to bear arms “has justly
been considered, as the palladium of the liberties of a republic.” 3 J. Story, Commentaries § 1890, p. 746 (1833).
(2). Second Invitation by SCOTUS: Right to Travel (1999)
The second subject matter jurisdiction invitation extended by the U.S. Supreme Court on the right to
travel as part of the privileges and immunities clause of the Fourteenth Amendment was again from Justice
Thomas, but this time in his dissent in Saenz v. Roe 526 US 489 (1999). In Saenz, California, which has the sixth
highest welfare benefit levels in the country, sought to amend its Aid to Families with Dependent Children
(AFDC) program in 1992 by limiting new residents, for the first year they live in the State, to the benefits they
would have received in the State of their prior residence. Cal. Welf. & Inst. Code Ann. §11450.03. The U.S.
Supreme Court held:
1. Section 11450.03 violates Section 1 of the Fourteenth Amendment. Pp. 8-17.
(a) In assessing laws denying welfare benefits to newly arrived residents, this Court held in
Shapiro that a State cannot enact durational residency requirements in order to inhibit the
migration of needy persons into the State, and that a classification that has the effect of imposing
a penalty on the right to travel violates the Equal Protection Clause absent a compelling
governmental interest. Pp. 8-10.
(b) The right to travel embraces three different components: the right to enter and leave another
State; the right to be treated as a welcome visitor while temporarily present in another State; and,
for those travelers who elect to become permanent residents, the right to be treated like other
citizens of that State. Pp. 10-12.
(c) The right of newly arrived citizens to the same privileges and immunities enjoyed by other
citizens of their new State--the third aspect of the right to travel--is at issue here. That right is
protected by the new arrival’s status as both a state citizen and a United States citizen, and it is
plainly identified in the Fourteenth Amendment’s Privileges or Immunities Clause, see Slaughter-
House Cases, 16 Wall. 36, 80. That newly arrived citizens have both state and federal capacities
adds special force to their claim that they have the same rights as others who share their
citizenship. Pp. 12-14.
(d) Since the right to travel embraces a citizen’s right to be treated equally in her new State of
residence, a discriminatory classification is itself a penalty. California’s classifications are
defined entirely by the period of residency and the location of the disfavored class members’
prior residences. Within the category of new residents, those who lived in another country or in a
State that had higher benefits than California are treated like lifetime residents; and within the
broad subcategory of new arrivals who are treated less favorably, there are 45 smaller classes

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whose benefit levels are determined by the law of their former States. California’s legitimate
interest in saving money does not justify this discriminatory scheme. The Fourteenth
Amendment’s Citizenship Clause expressly equates citizenship with residence, Zobel, 457 U. S.,
at 69 , and does not tolerate a hierarchy of subclasses of similarly situated citizens based on the
location of their prior residences. Pp. 14-17.
2. PRWORA’s approval of durational residency requirements does not resuscitate §11450.03.
This Court has consistently held that Congress may not authorize the States to violate the
Fourteenth Amendment. Moreover, the protection afforded to a citizen by that Amendment’s
Citizenship Clause limits the powers of the National Government as well as the States. Congress’
Article I powers to legislate are limited not only by the scope of the Framers’ affirmative
delegation, but also by the principle that the powers may not be exercised in a way that violates
other specific provisions of the Constitution. See Williams v. Rhodes, 393 U. S. 23, 29 . Pp. 17-
21.
Chief Justice Rehnquist , with whom Justice Thomas joins, dissenting.
The Court today breathes new life into the previously dormant Privileges or Immunities Clause
of the Fourteenth Amendment--a Clause relied upon by this Court in only one other decision,
Colgate v. Harvey , 296 U. S. 404 (1935), overruled five years later by Madden v. Kentucky , 309
U. S. 83 (1940). It uses this Clause to strike down what I believe is a reasonable measure falling
under the head of a “good-faith residency requirement.” Because I do not think any provision of
the Constitution--and surely not a provision relied upon for only the second time since its
enactment 130 years ago--requires this result, I dissent.
I
Much of the Court’s opinion is unremarkable and sound. The right to travel clearly embraces the
right to go from one place to another, and prohibits States from impeding the free interstate
passage of citizens. The state law in Edwards v. California , 314 U. S. 160 (1941), which
prohibited the transport of any indigent person into California, was a classic barrier to travel or
migration and the Court rightly struck it down. Indeed, for most of this country’s history, what
the Court today calls the first “component” of the right to travel , ante, at 10, was the entirety of
this right. As Chief Justice Taney stated in his dissent in the Passenger Cases , 7 How. 283
(1849):
“We are all citizens of the United States; and, as members of the same community, must have the
right to pass and repass through every part of it without interruption, as freely as in our own
States. And a tax imposed by a State for entering its territories or harbours is inconsistent with the
rights which belong to the citizens of other States as members of the Union, and with the objects
which that Union was intended to attain. Such a power in the States could produce nothing but
discord and mutual irritation, and they very clearly do not possess it.” Id., at 492.
See also Crandall v. Nevada , 6 Wall. 35, 44 (1868); Williams v. Fears , 179 U. S. 270, 274
(1900); Memorial Hospital v. Maricopa County , 415 U. S. 250, 280-283 (1974) ( Rehnquist, J.,
dissenting) (collecting and discussing cases). The Court wisely holds that because Cal. Welf. &
Inst. Code Ann. §11450.03 (West Supp. 1999) imposes no obstacle to respondents’ entry into
California, the statute does not infringe upon the right to travel. See ante , at 10. Thus, the
traditional conception of the right to travel is simply not an issue in this case.
I also have no difficulty with aligning the right to travel with the protections afforded by the
Privileges and Immunities Clause of Article IV, §2, to nonresidents who enter other States
“intending to return home at the end of [their] journey.” See ante , at 11. Nonresident visitors of
other States should not be subject to discrimination solely because they live out of State. See Paul
v. Virginia , 8 Wall. 168 (1869); Hicklin v. Orbeck , 437 U. S. 518 (1978). Like the traditional

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right-to-travel guarantees discussed above, however, this Clause has no application here, because
respondents expressed a desire to stay in California and become citizens of that State.
Respondents therefore plainly fall outside the protections of Article IV, §2.
Finally, I agree with the proposition that a “citizen of the United States can, of his own volition,
become a citizen of any State of the Union by a bon ; fide residence therein, with the same rights
as other citizens of that State.” Slaughter-House Cases , 16 Wall. 36, 80 (1873).
But I cannot see how the right to become a citizen of another State is a necessary “component”
of the right to travel, or why the Court tries to marry these separate and distinct rights. A person is
no longer “traveling” in any sense of the word when he finishes his journey to a State which he
plans to make his home. Indeed, under the Court’s logic, the protections of the Privileges or
Immunities Clause recognized in this case come into play only when an individual stops traveling
with the intent to remain and become a citizen of a new State. The right to travel and the right to
become a citizen are distinct, their relationship is not reciprocal, and one is not a “component” of
the other. Indeed, the same dicta from the Slaughter-House Cases quoted by the Court actually
treats the right to become a citizen and the right to travel as separate and distinct rights under the
Privileges or Immunities Clause of the Fourteenth Amendment. See id., at 79-80.3 At most,
restrictions on an individual’s right to become a citizen indirectly affect his calculus in deciding
whether to exercise his right to travel in the first place, but such an attenuated and uncertain
relationship is no ground for folding one right into the other.
No doubt the Court has, in the past 30 years, essentially conflated the right to travel with the
right to equal state citizenship in striking down durational residence requirements similar to the
one challenged here. See, e.g. , Shapiro v. Thompson , 394 U. S. 618 (1969) (striking down 1-
year residence before receiving any welfare benefit); Dunn v. Blumstein , 405 U. S. 330 (1972)
(striking down 1-year residence before receiving the right to vote in state elections); Maricopa
County , 415 U. S., at 280 -283 (striking down 1-year county residence before receiving
entitlement to nonemergency hospitalization or emergency care). These cases marked a sharp
departure from the Court’s prior right-to-travel cases because in none of them was travel itself
prohibited. See id., at 254-255 (“Whatever its ultimate scope . . . the right to travel was involved
in only a limited sense in Shapiro “); Shapiro, supra, at 671-672 (Harlan, J., dissenting).

3
The Court’s decision in the Slaughter-House Cases only confirms my view that state infringement on the right to
travel is limited to the kind of barrier established in Edwards v. California, 314 U. S. 160 (1941), and its discussion
is worth quoting in full:
“But lest it should be said that no such privileges and immunities are to be found if those we have been
considering are excluded, we venture to suggest some which own their existence to the Federal
government, its National character, its Constitution, or its laws.
“One of these is well described in the case of Crandall v. Nevada [, 6 Wall. 35 (1868)]. It is said to be the
right of the citizen of this great country, protected by implied guarantees of its Constitution, `to come to
the seat of government to assert any claim he may have upon that government, to transact any business he
may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has
the right of free access to its seaports, through which all operations of foreign commerce are conducted, to
the subtreasuries, land offices, and courts of justice in the several States.’ And quoting from the language
of Chief Justice Taney in another case, it is said `that for all the great purposes for which the Federal
government was established, we are one people, with one common country, we are all citizens of the
United States;’ and it is, as such citizens, that their rights are supported in this court in Crandall v.
Nevada.” 16 Wall., at 79 (footnote omitted).

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Instead, the Court in these cases held that restricting the provision of welfare benefits, votes, or
certain medical benefits to new citizens for a limited time impermissibly “penalized” them under
the Equal Protection Clause of the Fourteenth Amendment for having exercised their right to
travel. See Maricopa County, supra , at 257. The Court thus settled for deciding what restrictions
amounted to “deprivations of very important benefits and rights” that operated to indirectly
“penalize” the right to travel. See Attorney General of N. Y. v. Soto-Lopez , 476 U. S. 898, 907
(1986) (plurality opinion). In other cases, the Court recognized that laws dividing new and old
residents had little to do with the right to travel and merely triggered an inquiry into whether the
resulting classification rationally furthered a legitimate government purpose. See Zobel v.
Williams , 457 U. S. 55, 60 , n. 6 (1982); Hooper v. Bernalillo County Assessor, 472 U. S. 612,
618 (1985).4 While Zobel and Hooper reached the wrong result in my view, they at least put the
Court on the proper track in identifying exactly what interests it was protecting; namely, the right
of individuals not to be subject to unjustifiable classifications as opposed to infringements on the
right to travel.
The Court today tries to clear much of the underbrush created by these prior right-to-travel cases,
abandoning its effort to define what residence requirements deprive individuals of “important
rights and benefits” or “penalize” the right to travel. See ante , at 14-15. Under its new analytical
framework, a State, outside certain ill-defined circumstances, cannot classify its citizens by the
length of their residence in the State without offending the Privileges or Immunities Clause of the
Fourteenth Amendment. The Court thus departs from Shapiro and its progeny, and, while paying
lipservice to the right to travel, the Court does little to explain how the right to travel is involved
at all. Instead, as the Court’s analysis clearly demonstrates, see ante , at 15-17, this case is only
about respondents’ right to immediately enjoy all the privileges of being a California citizen in
relation to that State’s ability to test the good-faith assertion of this right. The Court has thus
come full circle by effectively disavowing the analysis of Shapiro , segregating the right to travel
and the rights secured by Article IV from the right to become a citizen under the Privileges or
Immunities Clause, and then testing the residence requirement here against this latter right. For all
its misplaced efforts to fold the right to become a citizen into the right to travel, the Court has
essentially returned to its original understanding of the right to travel.”
---
Justice Thomas, with whom the Chief Justice [Rhenquist] joins, dissenting.
“As The Chief Justice points out, ante at 1, it comes as quite a surprise that the majority relies on
the Privileges or Immunities Clause at all in this case. That is because, as I have explained supra ,
at 1-2, The Slaughter-House Cases sapped the Clause of any meaning. Although the majority
appears to breathe new life into the Clause today, it fails to address its historical underpinnings or
its place in our constitutional jurisprudence. Because I believe that the demise of the Privileges or
Immunities Clause has contributed in no small part to the current disarray of our Fourteenth
Amendment jurisprudence, I would be open to reevaluating its meaning in an appropriate case.
Before invoking the Clause, however, we should endeavor to understand what the framers of the
Fourteenth Amendment thought that it meant. We should also consider whether the Clause should
displace, rather than augment, portions of our equal protection and substantive due process
jurisprudence. The majority’s failure to consider these important questions raises the specter that
the Privileges or Immunities Clause will become yet another convenient tool for inventing new

4
As Chief Justice Burger aptly stated in Zobel: “In reality, right to travel analysis refers to little more than
a particular application of equal protection analysis. Right to travel cases have examined, in equal
protection terms, state distinctions between newcomers and longer term residents.” 457 U. S., at 60 , n. 6.

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rights, limited solely by the “predilections of those who happen at the time to be Members of this
Court.” Moore v. East Cleveland, 431 U. S. 494, 502 (1977).”

(3). Third Invitation by SCOTUS: Second Amendment (2008) (Again!)


Justice Scalia’s opinion in District of Columbia v. Heller, No. 07-290, 554 US ____ (June 26, 2008) held
that “[t]he Second Amendment protects an individual right to possess a firearm unconnected with service in a
militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. Justice Scalia
answered the first invitation by Justice Thomas with yet another subject matter jurisdiction invitation:
“JUSTICE BREYER chides us for leaving so many applications of the right to keep and bear
arms in doubt, and for not providing extensive historical justification for those regulations of the
right that we describe as permissible. See post, at 42–43. But since this case represents this
Court’s first in-depth examination of the Second Amend-ment, one should not expect it to clarify
the entire field, any more than Reynolds v. United States, 98 U. S. 145 (1879), our first in-depth
Free Exercise Clause case, left that area in a state of utter certainty. And there will be time
enough to expound upon the historical justifications for the exceptions we have mentioned if and
when those exceptions come before us.”
This alone insures that I get a civil jury trial.

C. Summary Judgment is Unconstitutional and a Fraud. Summary Judgment under


Bell Atlantic Corp. v. Twombly5 is a stealthy encroachment upon the Seventh
Amendment right to a Civil Jury Trial.
“It may be that it is the obnoxious thing in its mildest and least repulsive form; but illegitimate
and unconstitutional practices get their first footing in that way, namely, by silent approaches and
slight deviations from legal modes of procedure. This can only be obviated by adhering to the
rule that constitutional provisions for the security of person and property should be liberally
construed. A close and literal construction deprives them of half their efficacy, and leads to
gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty
of courts to be watchful for the constitutional rights of the citizen, and against any stealthy
encroachments thereon. Their motto should be obsta principiis. We have no doubt that the
legislative body is actuated by the same motives; but the vast accumulation of public business
brought before it sometimes prevents it, on a first presentation, from noticing objections which
become developed by time and the practical application of the objectionable law.” Boyd v. United
States, 116 U.S. 616 at 635 (1886)

5
U.S. Supreme Court, No. 05-1126 (May 21, 2007), 425 F. 3d 99

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Pleading Rule 9(b) Special Matters of Fraud, Mistake and Conditions of Mind, FEDERAL RULES OF CIVIL
PROCEDURE:
AGAINST SUMMARY JUDGMENT
John Bronsteen
Assistant Professor, Loyola University Chicago School of Law.
75 George Washington Law Review 522 (April 2007)
Introduction
For centuries, the paradigm for resolving a legal dispute was a trial.6 But about twenty-five years
ago, legal scholarship began to take note of a shift away from that paradigm.7 Empirical studies
demonstrated that most cases were resolved by settlement rather than trial, and although this trend
was lamented by a few (including most famously Owen Fiss in his article Against Settlement),8 it
was supported by two emerging pillars of the legal academy. One was the field of law and
economics, which welcomed settlement as a cheap and efficient alternative to adjudication.9 The
other was the field of alternative dispute resolution, which grouped settlement with mediation and
arbitration as less adversarial means of working through disagreements.10 Settlement was a boon
to both litigants and the court system because it avoided the costs of trial. With broad approval
from judges, parties, and academics, settlement was the new paradigm as the twentieth century
ended.
But settlement and trial are not the only ways to resolve a legal dispute, and a third option has
recently become so prominent as to mirror the focus attracted by settlement in the early 1980s.11
This new option is pretrial adjudication, typically in the form of summary judgment. When one
party sues another, the defendant refuses to settle and instead litigates—but with the hope of
never seeing a jury. After each side shows the other all of its relevant documents, propounds
interrogatories to the opposing party, and makes available its witnesses for questioning via
depositions, the parties ask the court to grant judgment in their favor on the ground “that there is

6
See, e.g., Stephan Landsman, THE CIVIL JURY TRIAL IN AMERICA, 62 Law & Contemp. Probs. 285, 285 (1999) (“Americans
have relied on juries of ordinary citizens to resolve their civil disputes since the beginning of the colonial period.”).
7
E.g., Carrie Menkel-Meadow, FOR AND AGAINST SETTLEMENT: USES AND ABUSES OF THE MANDATORY SETTLEMENT
CONFERENCE, 33 UCLA L. Rev. 485, 502 (1985) (“Over 90% of all cases (both civil and criminal) are currently settled and
taken out of the system and, thus, are unavailable for common law rule making.”); Judith Resnik, MANAGERIAL JUDGES, 96
HARV. L. REV. 374, 404 (1982).
8
Owen Fiss, Comment, AGAINST SETTLEMENT, 93 Yale L.J. 1073 (1984).
9
E.g., George Loewenstein et al., SELF-SERVING ASSESSMENTS OF FAIRNESS AND PRETRIAL BARGAINING, 22 J. LEGAL STUD.
135, 135 (1993) (“Litigation is a negative-sum proposition for the litigants—the longer the process continues, the lower
their aggregate wealth.”).
10
See, e.g., Carrie Menkel-Meadow, FOR AND AGAINST SETTLEMENT: USES AND ABUSES OF THE MANDATORY SETTLEMENT
CONFERENCE, 33 UCLA L. Rev. at 504 (1985) (“Settlement can be particularized to the needs of the parties, it can avoid
win/lose, binary results, provide richer remedies than the commodification or monetarization of all claims, and achieve
legitimacy through consent.”).
11
See Stephen B. Burbank, VANISHING TRIALS AND SUMMARY JUDGMENT IN FEDERAL CIVIL CASES: DRIFTING TOWARD
BETHLEHEM OR GOMORRAH?, 1 J. Empirical Legal Stud. 591, 600 (2004).

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no genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.”12
Judges now grant these motions so often13 that summary judgment stands alongside trial and
settlement as a pillar of our system. 14 A defendant1510 can use this mechanism to rid itself of
litigation without either risking trial or paying a settlement, and the refusal to settle might
discourage future lawsuits. Because summary judgment avoids the time and expense of trial, it
also appeals to commentators who prize efficiency.16 It is thus a staple of how today’s U.S. civil
justice system conducts business, and most view this state of affairs as a welcome development.17
Amid this movement toward an increasingly central role for summary judgment, there have been
a few cautionary voices. When the Supreme Court started us down this road twenty years ago by

12
FED. R. CIV. P. 56(c). Although a party may move for summary judgment from the beginning of a suit, Fed. R. Civ. P.
56(a)–(b), the rule gives judges discretion to continue a motion until further discovery has taken place, Fed. R. Civ. P.
56(f).
13
See Stephen B. Burbank, VANISHING TRIALS AND SUMMARY JUDGMENT IN FEDERAL CIVIL CASES: DRIFTING TOWARD
BETHLEHEM OR GOMORRAH?, 1 J. Empirical Legal Stud. at 592 (2004) (“[T]he rate of case termination by summary
judgment in federal civil cases nationwide increased substantially in the period between 1960 and 2000 . . . .”).
14
See Gillian K. Hadfield, WHERE HAVE ALL THE TRIALS GONE? SETTLEMENTS, NONTRIAL ADJUDICATIONS, AND STATISTICAL
ARTIFACTS IN THE CHANGING DISPOSITION OF FEDERAL CIVIL CASES, 1 J. Empirical Legal Stud. 705, 705 (2004) (using
electronic docketing data to reach the “surprising conclusions that a smaller percentage of cases were disposed of through
settlement in 2000 than was the case in 1970, [and] that vanishing trials have been replaced not by settlements but by nontrial
adjudication”).
15
Although summary judgment can be granted in favor of either a plaintiff or a defendant, it is granted far more
often in favor of the defendant. Stephen B. Burbank, VANISHING TRIALS AND SUMMARY JUDGMENT IN FEDERAL CIVIL CASES:
DRIFTING TOWARD BETHLEHEM OR GOMORRAH?, 1 J. Empirical Legal Stud. at 616 (2004) (“In [fiscal year] 2000, judges in the
Eastern District [of Pennsylvania] granted 293 motions for summary judgment (87 for plaintiffs and 206 for defendants) . . .
.”); D. Theodore Rave, Note, QUESTIONING THE EFFICIENCY OF SUMMARY JUDGMENT, 81 N.Y.U. L. Rev. 875, 900 n.142
(2006). Because the Administrative Office of the U.S. Courts does not keep statistics on summary judgment, Rave, supra, at
900, statistics must be calculated based on individual studies, e.g., Stephen B. Burbank, VANISHING TRIALS AND SUMMARY
JUDGMENT IN FEDERAL CIVIL CASES: DRIFTING TOWARD BETHLEHEM OR GOMORRAH?, 1 J. Empirical Legal Stud. at 616-18
(2004) (collecting data from the Eastern District of Pennsylvania), or audits of sampled electronic docket information, e.g.,
Gillian K. Hadfield, WHERE HAVE ALL THE TRIALS GONE? SETTLEMENTS, NONTRIAL ADJUDICATIONS, AND STATISTICAL
ARTIFACTS IN THE CHANGING DISPOSITION OF FEDERAL CIVIL CASES, 1 J. Empirical Legal Stud. at 712-23 (2004) (auditing
electronic data for input error and compiling “corrected” data).
16
Edward J. Brunet et al., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE 1 (2d ed. 2000) (“Rule 56 performs a
‘workhorse’ task in the federal procedural system and occupies center stage in attaining the central goal of conserving
the expenditure of judicial resources.”).
17
See E.g., BRUNET ET AL., supra note 11, at 327 (“Summary judgment should be seen as a potential expense-saving
device to avoid an unnecessary trial.”); Randy J. Kozel & David Rosenberg, Solving the Nuisance-Value Settlement Problem:
Mandatory Summary Judgment, 90 VA. L. REV. 1849, 1853 (2004) (“[M]andating summary judgment as a condition
precedent to entering into an enforceable settlement agreement eliminates the potential payoff from nuisance-value strategies,
removing any incentive to employ them.”); Georgene M. Vairo, Through the Prism: Summary Judgment After the Trilogy
(2003), in CIVIL PRACTICE AND LITIGATION TECHNIQUES IN FEDERAL AND STATE COURTS, at 1543, 1564
(ALI-ABA, Coursebook, 2006) (“Justice Rehnquist’s opinion [in Celotex] is a veritable ode to the superiority of summary
judgment as a means of fairly, efficiently and economically disposing of claims.”); see also Martin H. Redish, Summary
Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57 STAN. L. REV. 1329, 1335 (2005) (“Because
the very purpose of summary judgment is to avoid unnecessary trials, one need not be a trained logician to conclude that an
increase in the availability of summary judgment will naturally have a corresponding negative impact on the number of
trials.”).

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making it easier for judges to grant summary judgment,18 some scholars wondered whether the
intended improvements in efficiency would materialize19 or whether the right to a jury trial was
being unduly restricted.20 And recently, a few scholars have begun to voice concerns that the
summary judgment revolution might have gone too far.21 But these detractors have been all but
drowned out in a sea of support for the new regime of dispute resolution, and even the detractors
object merely to how often summary judgment is used, rather than to the fact that it is used at

18
See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). This “trilogy” drastically reduced barriers for granting summary
judgment motions. Before the trilogy, the judicial attitude toward summary judgment was perhaps best summed up by an
Alabama courthouse sign that read “No Spittin,’ No Cussin’ and No Summary Judgment.” Susan T. Wall, “NO SPITTIN,’
NO CUSSIN’ AND NO SUMMARY JUDGMENT”: RETHINKING MOTION PRACTICE, S.C. Law., June 1997, at 29, 29.
19
Samuel Issacharoff & George Loewenstein, SECOND THOUGHTS ABOUT SUMMARY JUDGMENT, 100 YALE L.J. 73, 100
(1990) (“[C]hanges that facilitate judicial disposition of cases but impede settlement may fail to relieve, if not
exacerbate, court congestion.”); see also Arthur R. Miller, THE PRETRIAL RUSH TO JUDGMENT: ARE THE “LITIGATION
EXPLOSION,” “LIABILITY CRISES,” AND EFFICIENCY CLICH´ES ERODING OUR DAY IN COURT AND JURY TRIAL COMMITMENTS ?, 78
N.Y.U. L. Rev. 982, 1047 (2003) (“[C]ritics have questioned whether the [trilogy] decisions really will produce gains in
efficiency, pointing out that summary judgment motions take time to prepare, support, and decide (realities that are
likely to have been increased by the motion’s post-1986 vitality), often slow a case’s forward progress, and typically
save time only when granted.” (citation omitted)).
20
E.g., Jack H. Friedenthal, CASES ON SUMMARY JUDGMENT: HAS THERE BEEN A MATERIAL CHANGE IN STANDARDS?, 63 Notre
Dame L. Rev. 770, 775 (1988) (“[W]hen the moving party would have the burden of persuasion at trial, the courts have
. . . strained to permit the granting of the motion by interpreting the amendment not to include a strict submission of
matters of credibility to the jury, a questionable determination.”); see also Paul W. Mollica, FEDERAL SUMMARY
JUDGMENT AT HIGH TIDE, 84 Marq. L. Rev. 141, 141–42 (2000) (“[T]he increase in summary dispositions of civil cases
stirs fear that, in the haste to resolve weak cases, courts risk overriding the constitutional imperatives of due process
and the right to a civil jury trial under the Fifth and Seventh Amendments.”).
21
E.g., Arthur R. Miller, THE PRETRIAL RUSH TO JUDGMENT: ARE THE “LITIGATION EXPLOSION,” “LIABILITY CRISES,” AND
EFFICIENCY CLICH´ES ERODING OUR DAY IN COURT AND JURY TRIAL COMMITMENTS?, 78 N.Y.U. L. Rev. 982, at 1047 (2003);
Patricia M. Wald, SUMMARY JUDGMENT AT SIXTY, 76 Tex. L. Rev. 1897, 1941 (1998) (“Its flame lit by Matsushita,
Anderson, and Celotex in 1986, and fueled by the overloaded dockets of the last two decades, summary judgment has
spread swiftly through the underbrush of undesirable cases, taking down some healthy trees as it goes.”); Rebecca
Silver, Note, STANDARD OF REVIEW IN FOIA APPEALS AND THE MISUSE OF SUMMARY JUDGMENT, 73 U. Chi. L. Rev. 731, 751–
52 (2006) (lamenting that summary judgment has become the status quo for Freedom of Information Act decisions,
even when genuine issues of material fact exist); Milton I. Shadur, AN OLD JUDGE’S THOUGHTS, CBA REC., January 2004,
at 27, 27 (“From my perspective that trend has gone much too far, to the benefit of no one involved in the justice
system . . . .”).

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all.22 Indeed, the idea of questioning the legitimacy of summary judgment altogether is widely
regarded as “a legal lunacy.”23
Against this backdrop, it makes sense that a forthcoming article titled “Why Summary Judgment
Is Unconstitutional”24 has received such intense interest and provoked such profound surprise. 25
This article by Suja Thomas contends that summary judgment violates the Seventh Amendment
to the U.S. Constitution, which guarantees the right to a jury trial in civil cases. The argument is
straightforward: when we allow a judge to keep a plaintiff’s lawsuit away from a jury on the
ground that no “reasonable jury could find for”26 the plaintiff, we have violated the constitutional
decree that “[i]n suits at common law, . . . the right of trial by jury shall be preserved.”27 Thomas
notes that the Supreme Court has always interpreted the Seventh Amendment to mean that the
jury trial right must never be limited further than it was at common law in 1791 (otherwise it
would not be fully “preserved”), and she explains that neither summary judgment nor its
equivalent existed at common law. 28
Thomas’s paper deserves the attention it has received, and its arguments are convincing with
respect to history and textual interpretation. I doubt that anyone will mount a successful rebuttal
to those points. Nonetheless, I doubt even more strongly that Thomas’s historical and interpretive
arguments alone will persuade courts to abolish summary judgment. As the last half century of
legal scholarship has demonstrated, courts temper their adherence to doctrine with a healthy dose
of concern for the practical implications of their decisions. Because summary judgment is such an
integral part of the everyday workings of the U.S. civil justice system, and because everyone

22
E.g., Edward J. Brunet et al., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE at 327 (2d ed. 2000) (“Summary judgment
should be seen as a potential expense-saving device to avoid an unnecessary trial.”); Randy J. Kozel & David Rosenberg,
SOLVING THE NUISANCE-VALUE SETTLEMENT PROBLEM: MANDATORY SUMMARY JUDGMENT, 90 VA. L. REV. 1849, 1853 (2004)
(“[M]andating summary judgment as a condition precedent to entering into an enforceable settlement agreement eliminates
the potential payoff from nuisance-value strategies, removing any incentive to employ them.”); Georgene M. Vairo,
THROUGH THE PRISM: SUMMARY JUDGMENT AFTER THE TRILOGY (2003), in CIVIL PRACTICE AND LITIGATION TECHNIQUES IN
FEDERAL AND STATE COURTS, at 1543, 1564 (ALI-ABA, Coursebook, 2006) (“Justice Rehnquist’s opinion [in Celotex] is a
veritable ode to the superiority of summary judgment as a means of fairly, efficiently and economically disposing of
claims.”); see also Martin H. Redish, SUMMARY JUDGMENT AND THE VANISHING TRIAL: IMPLICATIONS OF THE LITIGATION
MATRIX, 57 STAN. L. REV. 1329, 1335 (2005) (“Because the very purpose of summary judgment is to avoid unnecessary
trials, one need not be a trained logician to conclude that an increase in the availability of summary judgment will naturally
have a corresponding negative impact on the number of trials.”).
23
W. Mollica, FEDERAL SUMMARY JUDGMENT AT HIGH TIDE, 84 Marq. L. Rev. at 205 (2000).
24
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 VA. L. REV. 139 (2007).
25
The article has attracted, as of this writing, 5149 abstract views and 1019 downloads on the Social Science Research
Network. See Social Science Research Network,
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=886363 (last visited Mar. 23, 2007).
It was also featured on two leading Weblogs. Legal Theory Blog
http://lsolum.typepad.com/legaltheory/2006/02/suja_on_the_con.html (Feb. 22, 2006, 18:33 CST); How Appealing,
http://howappealing.law.com/022206.html#011509 (Feb. 22, 2006, 21:50 EST).
26
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Edward J. Brunet et al., SUMMARY JUDGMENT: FEDERAL LAW
AND PRACTICE at 267 (2d ed. 2000). This is the standard set out by the Supreme Court for whether summary judgment should
be granted, and it governs current practice.
27
U.S. CONST. amend. VII.
28
See Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 148-58 (2007) (outlining the
procedural mechanisms available at common law and concluding that summary judgment does not resemble those
procedures).

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assumes that the system would be crushed under the weight of innumerable trials if summary
judgment disappeared, courts will turn a blind eye to the interpretive problems raised by Thomas
and by the litigants who will cite her work. 29
I view this near-certain outcome as unfortunate—not because I believe that courts should ignore
practical considerations, but rather because I think their assumptions about such considerations
are inaccurate in this context. Specifically, I think that the civil justice system would actually
enjoy a net benefit from abolishing summary judgment, in terms of both efficiency30 and
fairness.3126 To put it another way, it would behoove us to abolish summary judgment even if we
were not constitutionally obligated to do so. My hope is that the twin problems of its
unconstitutionality and its concrete harm might together be enough to persuade courts (or
amenders of the Federal Rules of Civil Procedure) to move away from this practice rather than
embrace it. We would be better off if we returned to the old paradigms of settlement and trial than
if we maintained our current reliance on pretrial adjudication as the new dominant mode of
resolving disputes.
...
III.
A Brief Sketch of the Constitutional Issue
It is unnecessary for this Article to restate the constitutional case against summary judgment laid
out so well in Suja Thomas’s forthcoming article. 32 On the other hand, an article titled “Against
Summary Judgment” would do its readers a disservice if it failed to provide even a cursory
explanation of the point that summary judgment is unconstitutional.
The Seventh Amendment to the U.S. Constitution states that “[i]n suits at common law, . . . the
right of trial by jury shall be preserved.”33 The reference to “common law” and the word
“preserved” have prompted the Supreme Court consistently to interpret the Amendment to mean
that litigants today must be accorded no less restrictive access to a jury trial than were litigants in
1791 when the Amendment was ratified.34 There was no such thing as summary judgment in
1791,35 so on its face the practice stands on infirm constitutional footing. It could, however, be
permissible if any procedures that did exist in 1791 created a limitation on the right to jury trial
equivalent to that which summary judgment creates in our current system.36
As Thomas explains, there were five relevant procedures in 1791 that limited the right to jury
trial.37 Summary judgment is constitutional if and only if it equates to any of these procedures.
The five procedures were:

29
To her credit, Thomas anticipates this point and addresses it in a couple of paragraphs near the end of her paper. See See
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 177-79 (2007).
30
Infra Part I.C.
31
Infra Part II.A.
32
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. 139 (2007).
33
U.S. CONST. amend. VII.
34
Edward J. Brunet et al., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE at 14-15 (2d ed. 2000); Suja A. Thomas, WHY
SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 146-47 (2007).
35
Edward J. Brunet et al., SUMMARY JUDGMENT: FEDERAL LAW AND PRACTICE at 14-15 (2d ed. 2000).
36
See id.
37
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 148 (2007).

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(1) demurrer to the pleadings,


(2) demurrer to the evidence,
(3) special case,
(4) compulsory nonsuit, and
(5) new trial.38
The first three procedures shared a crucial similarity: in each, the judge made no assessment of
the facts of the case whatsoever. The demurrer to the pleadings was a sort of precursor to the
modern motion for judgment on the pleadings (i.e., the motion to dismiss under Rule 12(b)(6)). 39
One party admitted all facts alleged by the other and requested judgment in its favor. The judge
would then issue a conclusive judgment one way or the other. Unlike a modern 12(b)(6) motion,
in which the case proceeds if the motion is denied, a demurrer to the pleadings would end the
case in favor of whichever litigant received the ruling it sought. A defendant who made such a
motion would lose her right to advance her case because she would have admitted everything
alleged. 40 Thus, this procedure at most limited the right to jury trial as much as does a 12(b)(6)
motion—far less than a summary judgment motion, which allows the judge to keep the plain tiff
from a jury on the ground that the plaintiff’s evidence would be insufficient to convince a
reasonable jury.
Unlike the demurrer to the pleadings, the demurrer to the evidence might look to some like a
variation on our current practice of summary judgment. But there are determinative differences.
After all the evidence was presented at trial, one side could admit that all of the other side’s
evidence was true and ask the judge to decide the case either way by applying the law to those
admitted facts.41 Like the demurrer to the pleadings, this procedure was rare because it carried a
huge risk (one that today’s summary judgment lacks): if the judge disagreed with your claim to
win as a matter of law, then you would lose the case outright. Another difference from summary
judgment was that the procedure took place during the jury trial rather than before. But by far the
most important difference was that the judge was not asked to (indeed, was required not to) weigh
each side’s evidence and decide whether any reasonable jury could rule for one of the parties.
Instead, to pursue a demurrer to the evidence, one side had to admit everything alleged by the
other side. This resembles far more closely the standard applied to a modern 12(b)(6) motion than
to a motion for summary judgment.
The third common-law procedure, the special case, also involved a judicial determination of the
law when the facts were in no dispute. If the parties established the facts by agreement or by a
jury verdict, then they could ask the court to decide the case by a pure application of the law to
those facts.42 This differs from summary judgment for the same reasons that the demurrer to the
evidence does: the judge makes no factual assessment, and whichever party loses at this stage
automatically loses the case.

38
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 148-58 (2007).
39
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 149 (2007) (“Under demurrer to the
pleadings, the court considered only the facts alleged by the opposing party.”).
40
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 149 (2007).
41
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 150-51 (2007).
42
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 156-57 (2007).

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The fourth common-law procedure, the compulsory nonsuit, comes closer to summary judgment
but still falls short. In the compulsory nonsuit, the judge could overrule a jury verdict if there was
no evidence to support it.43 This procedure is far more like the modern judgment notwithstanding
the verdict than it is like summary judgment, because it occurred after the trial rather than before.
But it lacked even the teeth of its modern analogue because it was limited to cases where no
evidence was offered to support a necessary claim: “Whether there be any evidence, is a question
for the Judge. Whether [there be] sufficient evidence, is for the jury.”44
That leaves only the fifth common-law procedure, the new trial. This is the only procedure that
could plausibly be said to restrict the right to jury trial as much as does summary judgment. Only
via this procedure could a litigant in 1791 receive a meaningful ruling from a judge based on the
sufficiency, rather than the mere existence, of the other side’s evidence. After the trial and jury
verdict, the judge could rule in effect that no reasonable jury could have reached this conclusion,
and accordingly he would order a new jury trial.45
Of course, the standard of review is the only similarity between this procedure and summary
judgment. The timing is different—post-trial rather than pretrial—which arguably suggests that
the old procedure infringes the right to jury trial less severely. Far more important, though, is the
difference in remedy. Summary judgment causes a litigant to lose her case without ever seeing a
jury, whereas the new trial procedure of the common law merely required the litigant to retry her
case in front of another jury. Regardless whether this retrying procedure was wasteful or
otherwise bad policy, one cannot reasonably contend that such a remedy impinged the right to
jury trial as much as does the remedy in summary judgment. In 1791, a plaintiff who suffered an
adverse ruling from the new trial procedure would receive two jury trials, whereas today a
plaintiff who suffers an adverse ruling at summary judgment does not even receive one.
Thus, none of the procedural mechanisms available in 1791 restricted the right to jury trial to the
extent that it is restricted today by summary judgment. None allowed the judge to evaluate the
conflicting evidence offered by both sides and issue a judgment resolving the case on the basis of
his evaluation. Summary judgment gives the judge this power, and it is therefore used frequently
to keep cases away from juries. Because we currently employ a procedure that deprives plaintiffs
of jury trials in cases in which they would have had such trials in 1791, we are violating the
constitutional edict that “[i]n suits at common law, . . . the right of trial by jury shall be
preserved.”46
Conclusion
Summary judgment might be a wonderful procedure were it not inefficient, unfair, and
unconstitutional. It is inefficient because it gives a defendant the incentive to impose the costly
and time-consuming burden of discovery and motions practice upon the plaintiff, the court, and
itself, rather than to settle early and avoid those costs. It is unfair because it requires a judge to
decide the case in a context in which ruling for the defendant speeds along the judge’s docket,
whereas ruling for the plaintiff potentially invites a trial that would backlog the docket and bring
both criticism and an increased workload upon the judge. Summary judgment thus creates a
systemic bias against one of the two categories of litigants (plaintiffs), arguably the most

43
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 155 (2007).
44
Co. of Carpenters v. Hayward, (1780) 99 Eng. Rep. 241, 242 (K.B.) (emphasis added).
45
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. at 157-58 (2007).
46
U.S. CONST. amend. VII.

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egregious problem that can plague a civil justice system.47 Finally, summary judgment is
unconstitutional because it fails to “preserve[ ]” the “right of trial by jury” in civil cases as
mandated by the Seventh Amendment. When the Amendment was ratified, no procedure existed
that imposed the limits on the right to a jury trial that are now imposed by summary judgment.
Powerful interests are aligned in favor of summary judgment. Large corporations, the typical
defendants in important civil litigation, benefit from the procedure and would no doubt exert
inexorable political pressure to retain it.48 Judges too might support it, though only because they
would overlook the fact that without summary judgment, most cases they now adjudicate would
settle early rather than go to trial. Perhaps these interests cannot be overcome. But if that is the
case, then we should at least acknowledge that summary judgment owes its continued existence
primarily to our system’s capitulation to those who undeservedly benefit from it. In a better
world, it would not exist.
D. WWII and the Fighting Merchant Marine
Admiral Albert J. Herberger, USN (Ret), answering questions about the Merchant Marine of
WWII state: 49
During WWII, when were guns and gunners first put on U.S. ships?”
“In the Pacific, long before war was declared, some enterprising ship crews built
plywood “guns,” hoping their profile would fool the enemy ships. On November 17,
1941 Congress approved arming of merchant ships and set up the Naval Armed Guard. It
took many months for guns and crews to get aboard thousands of ships. Many of the
initial guns were of World War I vintage. Mariners in the Merchant Marine were trained
at U.S. Maritime Service Training Stations, they received on-the-job training while under
attack. Mariners assisted the Naval Armed Guard in passing ammunition, catching
cannon hot shells after firing wearing large asbestos gloves, and many were assigned
anti-aircraft gun stations.”
Did the Merchant Marine receive military training and acquire a military capability?
“Yes, in early 1940 the Coast Guard began training the Merchant Marine personnel
in gunnery and, in addition, the Merchant Marine Academy required extensive military
training of their cadets to qualify for graduation. By November 1941 (in an act of
Congress) our Government began to arm Merchant Ships and in December of that year,
Navy armed guards were assigned to many vessels.”

47
Cf. Daniel W. Shuman & Jean A. Hamilton, JURY SERVICE—IT MAY CHANGE YOUR MIND: PERCEPTIONS OF FAIRNESS OF
JURORS AND NONJURORS, 46 SMU L. Rev. 449, 450 (1992) (“Perceptions about the fairness of the judicial system are
important because they reflect belief about its legitimacy.”).
48
See Gerald Burk, CORPORATE POWER AND ITS DISCONTENTS, 53 Buff. L. Rev. 1419, 1419 (2006) (“Perhaps most
devastating for the rule of law is that artificial persons have learned to reshape legal doctrine to their advantage by
litigating rules, rather than discrete rights. In a word, corporate persons have become hegemonic. They shape the
rules of the game, professional norms, and legal outcomes.”).
49
www.usmm.org/gunnery.html

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E. WWII MEMOS: U.S. Merchant Marine Are Members of the Armed Forces
President Franklin Delano Roosevelt,50 Commander-in-Chief of the Armed Forces, stated in
correspondence between Admiral Emory S. Land, Chairman of the Maritime Commission and Head of
the War Shipping Administration, and Robert P. Patterson, Acting Secretary of War, that the U.S.
Merchant Marine was an Armed Force.
When Robert P. Patterson, Patterson, Acting Secretary of War, asked in the March 4, 1943
Memo, “Is it your desire that, for the purpose of awarding decorations, the War Department consider
officers and members of the crews of ships of the Merchant Marine as members of the armed forces?”
the President answered, “Yes.”

F. The Federal Courts have become the Judicial Praetorian Guard protecting the
United States from its own People in the war over the Bill of Rights.
By the Fourteenth Amendment, the powers of states in dealing with crime within their borders are not
limited, except that no state can deprive particular persons or classes of persons of equal and impartial justice
under the law, that law in its regular course of administration through courts of justice is due process, and when
secured by the law of the state, the constitutional requirement is satisfied, and that due process is so secured by
laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government
unrestrained by the established principles of private right and distributive justice. Leeper v. Texas, 139 U.S. 462,
463 (1891), 11 Sup. Ct. Rep. 577.
The following cases were dismissed by arbitrary exercise of government (judicial bias by interjected a
political ideology as a replacement for the Rule of Law and equal justice under the law) power under the
unconstitutional summary judgment in violation of the Seventh Amendment right to a civil jury trial under the
common law:
U.S. District Court/DC, No. 02-1434 (OBEYED 28 U.S.C. § 1916)
U.S. District Court/DC, No. 02-1435 (OBEYED 28 U.S.C. § 1916)
U.S. District Court/DC, No. 03-2160 (OBEYED 28 U.S.C. § 1916)
U.S. District Court/DC, No. 04-0422 (OBEYED 28 U.S.C. § 1916)
U.S. District Court/DC, No. 04-2040 (OBEYED 28 U.S.C. § 1916)
U.S. District Court/DC, No. 05-1993 (OBEYED 28 U.S.C. § 1916)
! DC Circuit, No. 02-5334 (VIOLATED 28 U.S.C. § 1916)
! DC Circuit, No. 04-5316 (VIOLATED 28 U.S.C. § 1916)
! DC Circuit, No. 05-5414 (VIOLATED 28 U.S.C. § 1916)
! DC Circuit, No. 05-5429 (VIOLATED 28 U.S.C. § 1916)
! 8th CIRCUIT, CASE NO. 07-2400 (VIOLATED 28 U.S.C. § 1916W)
! U.S. District Court/Little Rock, No. 06-0044. (VIOLATED 28 U.S.C. § 1916)
! U.S. Supreme Court, Nos. 03-145 (VIOLATED 28 U.S.C. § 1916)
! U.S. Supreme Court, Nos. 04-1150 (VIOLATED 28 U.S.C. § 1916)
! U.S. Supreme Court, Nos. 04M56 (VIOLATED 28 U.S.C. § 1916)

50
www.usmm.org//fdr/armedforce.html

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G. Justice Harlan’s Dissent on Arbitrary Exercise of Government Power and


Oppression in Downes v. Bidwell, 182 U.S. 244 at 376-382 (1901)
Mr. Justice Harlan, dissenting:
In Martin v. Hunter, 1 Wheat. 304, 324, 326, 331, 4 L. ed. 97, 102, 104, this court speaking by
Mr. Justice Story, said that ‘the Constitution of the United States was ordained and established,
not by the states in their sovereign capacities but emphatically, as the preamble of the
Constitution declares, by ‘the People of the United States.”
In McCulloch v. Maryland, 4 Wheat. 316, 403-406, 4 L. ed. 579, 600, 601, Chief Justice
Marshall, speaking for this court, said: ‘The government proceeds directly from the people; is
‘ordained and established’ in the name of the people; and is declared to be ordained ‘in order to
form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings
of liberty to themselves and to their posterity.’ The assent of the states, in their sovereign
capacity, is implied in calling a convention, and thus submitting that instrument to the people. But
the people were at perfect liberty to accept or reject it; and their act was final. It required not the
affirmance, and could not be negatived, by the state governments. The Constitution, when thus
adopted, was of complete obligation, and bound the state sovereignties. . . . The government of
the union, then (whatever may be the influence of this fact on the case) is emphatically and truly a
government of the people. In form and in substance it emanates from them. Its powers are granted
by them, and are to be exercised directly on them and for their benefit. This government is
acknowledged by all to be one of enumerated powers. . . . It is the government of all; its powers
are delegated by all; it represents all, and acts for all.’
Although the states are constituent parts of the United States, the government rests upon the
authority of the people of the United States, and not on that of the states. Chief Justice Marshall,
delivering the unanimous judgment of this court in Cohen v. Virginia, 6 Wheat. 264, 413, 5 L. ed.
257, 293, said: ‘That the United States form, for many and for most important purposes, a single
nation, has not yet been denied. In war, we are one people. In making peace, we are one people. .
. . In many other respects, the American people are one; and the government which is alone
capable of controlling and managing their interests . . . is the government of the Union. It is their
government, and in that character they have no other. America has chosen to be, in many respects
and to many purposes, a nation; and for all these purposes her government is complete; to all
these objects it is competent. The people have declared that in the exercise of all powers given for
those objects it is supreme. It can, then, in effecting these objects, legitimately control all
individuals or governments within the American territory.’
In reference to the doctrine that the Constitution was established by and for the states as distinct
political organizations, Mr. Webster said: ‘The Constitution itself in its very front refutes that. It
declares that it is ordained and established by [182 U.S. 244, 378] the People of the United
States. So far from saying that it is established by the governments of the several states, it does
not even say that it is established by the people of the several states. But it pronounces that it was
established by the people of the United States in the aggregate. Doubtless, the people of the
several states, taken collectively, constitute the people of the United States. But it is in this their
collective capacity, it is as all the people of the United States, that they established the
Constitution.’
In view of the adjudications of this court I cannot assent to the proposition, whether it be
announced in express words or by implication, that the national government is a government of or
by the states in union, and that the prohibitions and limitations of the Constitution are addressed
only to the states. That is but another form of saying that, like the government created by the
Articles of Confederation, the present government is a mere league of states, held together by

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compact between themselves; whereas, as this court has often declared, it is a government created
by the People of the United States, with enumerated powers, and supreme over states and
individuals with respect to certain objects, throughout the entire territory over which its
jurisdiction extends. If the national government is in any sense a compact, it is a compact between
the People of the United States among themselves as constituting in the aggregate the political
community by whom the national government was established. The Constitution speaks, not
simply to the states in their organized capacities, but to all peoples, whether of states or
territories, who are subject to the authority of the United States. Martin v. Hunter, 1 Wheat. 327,
4 L. ed. 103.
...
Although from the foundation of the government this court has held steadily to the view that the
government of the United States was one of enumerated powers, and that no one of its branches,
nor all of its branches combined, could constitutionally exercise powers not granted, or which
were not necessarily implied from those expressly granted (Martin v. Hunter, 1 Wheat. 326, 331,
4 L. ed. 102, 104) . . . This nation is under the control of a written constitution, the supreme law
of the land and the only source of the powers which our government, or any branch or officer of
it, may exert at any time or at any place. . . .To say otherwise is to concede that Congress may, by
action taken outside of the Constitution, engraft upon our republican institutions a colonial system
such as exists under monarchical governments. Surely such a result was never contemplated by
the fathers of the Constitution. If that instrument had contained a word suggesting the possibility
of a result of that character it would never have been adopted by the people of the United States. .
..
The idea prevails with some-indeed, it found expression in agruments at the bar-that we have in
this country substantially or practically two national governments; one to be maintained under the
Constitution, with all its restrictions; the other to be maintained by Congress outside and
independently of that instrument, by exercising such powers as other nations of the earth are
accustomed to exercise. It is one thing to give such a latitudinarian construction to the
Constitution as will bring the exercise of power by Congress, upon a particular occasion or upon
a particular subject, within its provisions. It is quite a different thing to say that Congress may, if
it so elects, proceed outside of the Constitution. The glory of our American system [182 U.S. 244,
381] of government is that it was created by a written constitution which protects the people
against the exercise of arbitrary, unlimited power, and the limits of which instrument may not be
passed by the government it created, or by any branch of it, or even by the people who ordained
it, except by amendment or change of its provisions. ‘To what purpose,’ Chief Justice Marshall
said in Marbury v. Madison, 1 Cranch, 137, 176, 2 L. ed. 60, 73, ‘are powers limited, and to what
purpose is that limitation committed to writting, if these limits may, at any time, be passed by
those intended to be restrained? The distinction between a government with limited and unlimited
powers is abolished if those limits do not confine the persons on whom they are imposed, and if
acts prohibited and acts allowed are of equal obligation.’
The wise men who framed the Constitution, and the patriotic people who adopted it, were
unwilling to depend for their safety upon what, in the opinion referred to, is described as ‘certain
principles of natural justice inherent in Anglo-Saxon character, which need no expression in
constitutions or statutes to give them effect or to secure dependencies against legislation
manifestly hostile to their real interests.’ They proceeded upon the theory-the wisdom of which
experience has vindicated- that the only safe guaranty against governmental oppression was to
withhold or restrict the power to oppress. They well remembered that Anglo- Saxons across the
ocean had attempted, in defiance of law and justice, to trample upon the rights of Anglo-Saxons
on this continent, and had sought, by military force, to establish a government that could at will

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destroy the privileges that inhere in liberty. They believed that the establishment here of a
government that could administer public affairs according to its will, unrestrained by any
fundamental law and without regard to the inherent rights of freemen, would be ruinous to the
liberties of the people by exposing them to the oppressions of arbitrary power. Hence, the
Constitution enumerates the powers which Congress and the other departments may exercise,-
leaving unimpaired, to the states or the People, the powers not delegated to the national
government nor prohibited to the states. That instrument so expressly declares in [182 U.S. 244,
382] the 10th Article of Amendment. It will be an evil day for American liberty if the theory of a
government outside of the supreme law of the land finds lodgment in our constitutional
jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all
violation of the principles of the Constitution.

H. Dismantling of Private Attorney General Endangers Civil Rights


By M. Wood
Virginia School of Law51
580 Massie Road
Charlottesville, Virginia 22903-1738
November 22, 2002
See Pamela S. Karlan, DISARMING THE PRIVATE ATTORNEY GENERAL, Illinois Law Review, Vol. 2003, No.1,
183-210 (2003).52
A series of decisions by the Rehnquist Court not seeking damages but are acting much as a normal
undermining the private attorney general action poses attorney general would by vindicating important
a danger to civil rights protections by weakening Congressional policies. Most civil rights statutes rely
enforcement for existing federal regulations, visiting heavily on the private attorney general, a term coined
law professor Pamela Karlan said at a National in 1943 by Judge Jerome Frank, who was referring to
Lawyers Guild-sponsored event Nov. 19. Although the litigation by private plaintiffs “to prevent [a
Court maintains in its decisions that states still have to government] official from acting in violation of his
follow federal laws such as those barring employment statutory powers.” Karlan said the Court verified the
discrimination, they have undercut citizen’s right to importance of the private attorney general in Newman
sue when laws are broken, casting out remedies the v. Piggie Park Enterprises, one of the earliest cases
political branches have tried to provide to citizens, she based on the Civil Rights Act of 1964. Piggie Park
said. recognized the “piggybacking” function of the Act,
Karlan said: Congress harnessed private plaintiffs to
Karlan said the Supreme Court’s decisions have
help obtain equal treatment for the general public.
weakened the public’s ability to enforce civil rights
laws. Traditionally the Court might “retrench” on civil
rights protections by more narrowly defining the
“That makes the Court the most dangerous protection, a decision Congress can react to and
branch of government rather than the least,” override. “When the Court makes it clear they’re
Karlan said. retrenching, the political process responds to that,”
A centerpiece of the Second Reconstruction, Karlan said. Today, Karlan alleged, the Court’s actions
private attorneys general are private plaintiffs who are are more “insidious.”

51
http://www.law.virginia.edu/html/news/2002_fall/karlan.htm
52
http://home.law.uiuc.edu/lrev/publications/2000s/2003/2003_1/Karlan.pdf

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“They’ve gotten rid of the primary mechanism for right of action to enforce disparate impact
enforcement,” Karlan said, allowing potential discrimination under Title VI of the 1964 Civil Rights
wrongdoers to take advantage of the lack of legal Act, which prohibits discrimination by federally
reprisals for their actions. funded entities. In the case, Sandoval’s attorneys
argued that requiring the state’s driver license exam to
Congress isn’t responding to the Court’s decisions
be administered in English only discriminated against
partly because legislators don’t understand the
him.
consequences of the rulings, and due to its more
conservative bent in recent years. The Court’s moves Karlan said the Court interpreted the 1964 statute
are so subtle, Karlan said, they haven’t created enough as if it were written in 2001.
pressure on the public to vote in politicians who care
“It’s about the current Supreme Court’s vision
about civil rights.
about how much regulation there should be against
Karlan said people used to think the 14th states,” she said. She said an earlier Court recognized
Amendment, which says states cannot abridge Congress’s intent to allow private actions as another
citizen’s rights, trumped the 11th Amendment, the way to enforce regulations, but the current Court has
“sovereign state immunity” amendment, which limits not genuinely considered Congressional intent in
citizens from bringing suits against states in federal legislation like the 1964 Civil Rights Act.
courts. Now, Karlan said, the branch that used to see
In Circuit City v. Adams, Adams had signed an
the 14th Amendment as a limitation on the 11th has
agreement on his Circuit City application that he
reversed course: now the 11th is a constraint on the
would settle labor disputes through arbitration, a
14th.
clause many companies now require employees to
“I call this the Eleventeenth Amendment,” she consent to. He later claimed he was discriminated
said. against because of his sexual orientation and said he
had the right to file a lawsuit. The Court determined
Karlan highlighted several cases that have
that Adams was not a worker engaged in foreign or
abridged citizens’ rights under the “Eleventeenth
interstate commerce within the meaning of the FAA—
Amendment.” Patricia Garrett was a nurse at the
only “transportation workers” were exempt from
University of Alabama Medical Center who got cancer
compulsory arbitration, despite the fact that Congress
and asked the state to accommodate her chemotherapy
writes laws assuming a very broad definition of
schedule. A week after returning to work, Garrett was
interstate and foreign commerce.
demoted, although she said she could perform her
duties. In Board of Trustees v. Garrett, the Court ruled Because the Equal Employment Opportunity
that the state had to comply with ADA laws, but also Commission (EEOC) only files a few hundred cases
said Garrett herself had no right to sue the state, thus each year, the ability to enforce employment laws is
undercutting any enforcement of the laws, Karlan said. limited by court decisions forcing private plaintiffs to
arbitrate, she said.
Concerning the Court’s rollback of the 14th
Amendment, Karlan said the Court “hasn’t done it in a Karlan said alternate dispute resolutions lack
way that is obvious to people [like Garrett] until they binding agreements, set no precedents, and generally
try to being their own lawsuit.” favor defendants because they work frequently with
the same arbiters, who need strong customer
Karlan said the Court’s Garrett decision implied
relationships to survive. Arbitration often involves
that cases are only important if the government’s
paying up front, there is no way of getting appointed
attorneys prosecute the case. This violates the idea
counsel, and plaintiffs may be liable for other
behind the private attorney general, she added, and in
attorney’s fees, all of which keeps some plaintiffs from
the end results in a decrease in the total amount of
pursuing cases.
enforcement of congressional regulations.
The mediation movement “decreases substantially
In Alexander v. Sandoval, decided in 2001 in
the enforcement of employment laws,” Karlan said.
another 5-4 decision, the Court took away the private

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“There’s never any law created, so every plaintiff has in stores to keep children from seeing them, and the
to start from square one.” Court struck down the state law, seemingly stripping
state sovereignty as well.
In Circuit City and other employment
discrimination cases, “you’re essentially defending to By weakening enforcement of federal laws, states
argue the law should be applied that’s already there.” and other federally funded bodies have little reason to
follow federal guidelines, Karlan said. That, combined
In 2001 the Court also eliminated attorney’s fees
with the Court’s chipping away of other civil rights,
from cases that fall under the “catalyst theory”
has already left its mark on the legal scene, Karlan
category—cases that prompt a defendant to change
said. She noted that the LAPD manual now encourages
their ways voluntarily— in Buckhannon Board and
police interrogators not to worry about the Miranda
Care Home v. West Virginia Department of Health
warnings because an illegally obtained confession can
and Human Resources. Although Chief Justice
still be used in other ways. The Court has ruled that if
Rehnquist downplayed the impact of the decision,
the defendant testifies in a case where an illegally
Karlan argued that such cases are the most important,
obtained confession was suppressed, the prosecutors
and eliminating attorney’s fees reduces the impetus for
can introduce the confession in the cross examination.
such suits being filed.
She said now some civil rights groups fight to
“They’ve taken away the ability to get damages in
keep cases away from the Supreme Court to avoid bad
a large number of cases,” she said. The decision itself
decisions. Civil rights groups do want the Michigan
shows the Court “has an incredibly negative vision of
affirmative action case to be heard, however, because
civil rights plaintiffs generally.” In the decision Justice
they foresee more conservative appointees in the
Scalia called attorney fees “an extraordinary boon,”
future and their chances of eking out at least a partial
and failed to recognize it as a mechanism of the law,
victory are probably better now.
she said. The decision seems to classify plaintiffs as
“vaguely quasi-criminals.” Karlan said state courts are often more progressive
than federal courts today, unlike when she attended
Karlan said the Court’s enforcement of its own
law school, and many state constitutions offer more
views is uneven, revealing that “federalism is a means
rights than the federal Constitution, such as a right to
and not a goal for the current Supreme Court.” She
an education. Some state courts are filling in laws to
argued that the Court doesn’t really want to devolve
counteract Supreme Court decisions like that of Circuit
the country back to federalism, but justices use
City, which was originally tried in California.
federalism when it’s advantageous to do so. She cited
California law now declares some contracts
Bush v. Gore’s overruling of the Florida State
unconscionable and enacted a statute to create a
Supreme Court as a prime example. In another case, a
private right of action. But state-level reforms can’t
state had a regulation on the books that required
undercut all the Court’s rulings, she warned.
cigarettes to be placed at a level of four feet or higher

I. Anarchy and Treason in the Federal Courts: Are Political Ideologies the New
Rule of Law Now?
(1) Summary Judgment is Unconstitutional: The Judge and Jury are Now
One in the Same!
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. 139 (2007).
Suja A. Thomas, WHY SUMMARY JUDGMENT IS STILL UNCONSTITUTIONAL, A REPLY TO PROFESSORS BRUNET AND
NELSON, IOWA LAW REVIEW, Vol. 93, No. 5, 2008

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Suja A. Thomas, THE UNCONSTITUTIONALITY OF SUMMARY JUDGMENT: A STATUS REPORT, 93 Iowa Law Review
__ (forthcoming 2008) Iowa Law Review Symposium on Procedural Justice
Kendall W. Hannon, NOTE, MUCH ADO ABOUT T WOMBLY? A STUDY OF THE IMPACT OF BELL ATLANTIC CORP. V.
TWOMBLY ON 12(B)(6) MOTIONS, 83 Notre Dame L. Rev. (forthcoming April 2008).
Charles B. Campbell, A “PLAUSIBLE” SHOWING AFTER BELL ATLANTIC CORP. V. TWOMBLY, Nevada Law Journal,
Vol. 9, 2008 (forthcoming)

(2) Is the Eleventh Amendment Unconstitutional?


Pamela S. Karlan, THE IRONY OF IMMUNITY: THE ELEVENTH AMENDMENT, Irreparable Injury, And Section 1983,
53 Stanford Law Review 1311-1330 (May 2002).
Randy E. Barnett, THE PEOPLE OR THE STATE?: CHISHOLM V. GEORGIA AND POPULAR SOVEREIGNTY, 93 Virginia
Law Review 1729 (2007)
Caitlin E. Borgmann, LEGISLATIVE ARROGANCE AND CONSTITUTIONAL ACCOUNTABILITY, 79 Southern California
Law Review 753 (2006)
(3) Will the Lower Federal Courts Rebel Against Heller?
Mark Tushnet, TWO ESSAYS ON DISTRICT OF COLUMBIA V. HELLER: (1) Heller and the New Originalism;
and (2) Heller and the Perils of Compromise
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1189494
Glenn H. Reynolds & Brannon P. Denning, HELLER’S FUTURE IN THE LOWER COURTS, 102 Nw. U. L.
Rev. Colloquy 406 (July 2008).
http://www.law.northwestern.edu/lawreview/colloquy/2008/23/LRColl2008n23Reynolds&Denning.pdf

J. The Federal Courts and the U.S. Department of Justice have Obstructed Justice
by Unconstitutionally Denying my Seventh Amendment Right to a Civil Jury Trial.
The federal courts’ open display of bias and hostility to my Second Amendment cases from 2002 to 2008
stand in violation of the Canons and the Good Behaviour Clause of Section 1, Article III of the Constitution of the
United States. An honest criminal investigation for corruption and obstructions of justice would certainly be
sending some federal judges to prison for supplanting their political ideologies for the Rule of Law denying my
right to equal justice under the law.
Dismissal by Summary Judgment on Motion to Dimiss in this civil action in due regard to the U.S.
Supreme Court inviting a Second Amendment case from the American people in Heller to expound on the many
applications of the right to keep and bear arms under Rule 301 Presumptions in General (Federal Rules of
Evidence).
Judge Rosemary M. Collyer of the U.S. District Court for the District of Columbia exhibited extreme
judicial bias, if not bigotry, to the rights of a seaman, a ward of the Admiralty, in her Order dated June 3, 2008
dismissing my previous case (No. 07-1616), even though the dismissal was without [legal] prejudice. I claim the
dismissal is motivated by an anti-Second Amendment political ideology.

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Like the plaintiff in Prunte, Mr. Hamrick as “failed to argue that he employed a
reasonable amount of diligence, and it seems clear that he did not.”[FN1] . . .
Moreover, “the Court does not believe that [P]laintiff’s pro se status should
excuse his lack of diligence, as [P]laintiff is an experienced federal court
litigator.” . . . Pl.’s Resp. at 3 (enumerating seventeen other cases initiated by
Mr. Hamrick in various federal courts).
[FN1] Mr Hamrick’s late request for service by the USMS does not constitute
“good cause.” See Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987)
(noting that even plaintiffs proceeding in forma pauperis “may not remain
silent and do nothing to effectuate service.”). Moreover, because Mr.
Hamrick has not been authorized to proceed in forma pauperis, but claims he
is not able to financially afford service, service by the USMS in this case would
not be appropriate. See Holmes v. United States, No. 06-796, 2008 U.S. Dist.
LEXIS 1638, at *6 (W.D. Okla. Jan. 8, 2008) (“Plaintiff is not proceeding in
forma pauperis, and accordingly, he must be prepared to proffer payment to
the Marshals Service for its attempts at serving [defendant].”).
The bolded & underscored passages of Judge Collyer’s Order above are evidence of judicial bias against a
seaman exercising his statutory right of fee exemption under the Seaman’s Suit Law, 18 U.S.C. § 1916.
Apparently, the Court Clerk failed to notify the judge that on the day I submitted my lawsuit I included a
handwritten request that the Court make a copy for the defendant United States and have the U.S. Marshals
Service deliver that complaint with the summons in accordance with Rule 4(c)(3).
Rule 4(c)(3) states that service:
“By a Marshal or Someone Specially Appointed. At the plaintiff’s request, the court
may order that service be made by a United States marshal or deputy marshal or by a
person specially appointed by the court. The court must so order if the plaintiff is
authorized to proceed in forma pauperis under 28 U.S.C. § 1915 or as a seaman under
28 U.S.C. § 1916.”
Restated for my situation:
At the plaintiff’s request, the court must so order if the plaintiff is
authorized to proceed as a seaman under 28 U.S.C. § 1916.”

Note with particularity Judge Collyer’s remark, that the [P]laintiff is an experienced federal court
litigator, enumerating seventeen other cases initiated by Mr. Hamrick in various federal courts.”
What Judge Collyer failed or refused to point out is that all of those seventeen cases were dismissed,
some with prejudice, some without prejudice, on Motion to Dismiss converting to unconstitutional Summary
Judgment dismissals. Now what the Hell(!) happened with the idea that “Pro se pleadings are to be
considered without regard to technicality; pro se litigants pleadings are not to be held to the same high
standards of perfection as lawyers.” Picking v. Pennsylvania R. Co., 151 Fed. 2nd 240; Pucket v. Cox 456 2nd
233.
If I was truly an experienced federal court litigator I would have beaten the Motion to Dismiss, and I
would have had my civil jury trial. No matter how many law review articles I read for new legal strategy every
federal judge I have encounted have used inapplicable boilerplate case law and any excuse under the sun to

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dismiss my cases. History predicates that the federal courts will treat Heller just as they treated Lopez. The federal
courts have made a mockery of justice for the unrepresented civil plaintiff.

(1). Case Law


“When we conclude that the integrity of the judicial process has been harmed, however,
and the fraud rises to the level of unconscionable plan or scheme which is designed to
improperly influence the court in its decisions, we not only can act, we should.” Toscano v.
Cir, 441 F.2d 930, 933 (9th Cir. 1971)

“That which keeps one party away from court by conduct preventing a real trial on the
issues is extrinsic fraud and forms a sufficient basis for equitable relief from judgment.”
Libro v. Walls, 103 Nev 540, 543, 746 P.2d 632, 634 (1987).
Because summary judgments are unconstitutional as found by Professor Suja A. Thomas,53 in WHY
SUMMARY JUDGMENT IS UNCONSTITUTIONAL54 and reaffirmed in WHY SUMMARY JUDGMENT IS STILL
UNCONSTITUTIONAL: A REPLY TO PROFESSORS BRUNET AND NELSON,55 my seventeen cases were
unconstitutionally dismissed. And because they were unconstitutionally dismissed their summary judgment
dismissals in their aggregate effect violated not only my Seventh Amendment right to a civil jury trial but my
human right to a civil jury trial under international human rights treaties.
By this evidence the judges issuing summary judgment dismissals with and without prejudice under the
Conley standard have operated outside the U.S. Constitution and the Bill of Rights and therefore have operated
outside their jurisdiction. When judges operate without jurisdiction they do not have absolute immunity from
liability for their unconstitutional actions.
Now we have the U.S. Supreme Court killing off Conley to relax the pleading standard so the federal
courts can consider the plausibility of not only the plaintiff’s claims but also of the defenses of the defendant
making it much easier for the federal courts to dismiss cases. This new plausible standard exacerbates the injuries
to the Seventh Amendment right to a common law civil jury trial.
Under these conditions the doctrine of res judicata does not apply, especially when I add knew claims that
have occurred after my earlier cases. “Res Judicata does not apply if new conduct caused a new injury
after the first action.” (See Yosemite Community College Dist., 785 F.2d 781).

In Twombly, the Court distinguished Swierkiewicz by stating that “we


do not require heightened fact pleading of specifics, but only
enough facts to state a claim for relief that is plausible on its face.

53
http://www.law.uiuc.edu/faculty/directory/SujaThomas
54
Suja A. Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. 139 (2007).
55
Available Online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1117636

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The Bell Atlantic v. Twombly standard for pleading under Rule 8(a)(2) of the Federal Rules of Civil
Procedure prejudicially disfavors the unrepresented civil plaintiff, i.e., Me!
Citing Weisman v. National Association of Securities Dealers, Inc., et al. 11th Circuit, No. 04-13575
(September 18, 2007):
“[T]he Supreme Court recently abrogated its oft-quoted observation that ‘a complaint should not be dismissed for
failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.’ Bell Atlantic Corp. v. Twombly, 550 U.S. __, __, 127 S. Ct. 1955, 1968
(May 21, 2007) (quoting Conley v. Gibson, 350 U.S. 41, 45-46, 78 S. Ct. 99, 102 (1957))”
(2). Kendall W. Hannon, Note, MUCH ADO ABOUT TWOMBLY? A STUDY OF THE
IMPACT OF BELL ATLANTIC CORP. V. TWOMBLY on 12(b)(6) Motions, 83 Notre
Dame L. Rev. (forthcoming April 2008)56
In a more immediate sense, the results of this study demonstrate that there is reason to be wary of the
Twombly decision right now. Congress since the Civil War has not only articulated broad swaths of civil rights
that are protected from intrusion, it has also sought, through instrumentalities like 42 U.S.C. § 1988, to
encourage the enforcement of these rights. Without access to courts, these broad civil
protections are not worth the paper they are printed on. If the lower courts are, as this
study suggests, applying the Twombly language in such a way as to impose a higher
burden on civil rights plaintiffs, the practical effect of this reality is to close the courts to
a large number of plaintiffs. Ultimately, therefore, this study suggests that this
procedural, linguistic alteration is having the same effect, though comparatively under the
radar, as a legislative rolling back of civil rights.

(3). Charles B. Campbell, A “Plausible” Showing After Bell Atlantic Corp. v.


Twombly 57
The United States Supreme Court’s decision in Bell Atlantic Corp. v. Twombly58 is creating quite
a stir. Suddenly gone is the famous loosey-goosey rule of Conley v. Gibson “that a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”59
Now a complaint must provide “enough facts to state a claim to relief that is plausible on its
face.”60 Only decided last May, Bell Atlantic has been cited in over 3,700 cases.61

56
Available Online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1091246
57
Available Online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1121964
58
127 S. Ct. 1955 (2007).
59
355 U.S. 41, 45–46 (1957), abrogated by Bell Atl. Corp., 127 S. Ct. at 1968–69.
60
127 S. Ct. at 1974.

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Already being described as a landmark decision,62 Bell Atlantic nonetheless has lawyers and
judges scratching their heads over the precise pleading standard to apply in its wake. As the
Second Circuit (mildly) put it, “Considerable uncertainty concerning the standard for assessing
the adequacy of pleadings has recently been created by the Supreme Court’s decision in Bell
Just what is a plausible “showing that the pleader is
Atlantic Corp. v. Twombly.63
entitled to relief” under Rule 8(a)(2)?
I believe an answer lies in the 26-year-old decision of the Former Fifth Circuit in In re Plywood
Antitrust Litigation.64 Plywood Antitrust requires, at a minimum, that “a complaint . . . contain
either direct or inferential allegations respecting all the material elements necessary to sustain a
recovery under some viable legal theory.”65 Already used in more than half the circuits,66 this

61
Search of Westlaw’s Keycite service conducted February 25, 2008. This figure includes citations in both opinions for the
court and in separate opinions by individual judges. For an empirical analysis of district court cases citing Bell Atlantic in the
context of Fed. R. Civ. P. 12(b)(6) motions to dismiss, see Kendall W. Hannon, Note, Much Ado About Twombly? A Study of
the Impact of Bell Atlantic Corp. v. Twombly on 12(b)(6) Motions, 83 Notre Dame L. Rev. (forthcoming April 2008).
62
Janet L. McDavid & Eric Stock, BELL ATLANTIC V. TWOMBLY, NAT’L L.J., July 30, 2007, at 12; see also John Sarratt, MR.
MICAWBER’S BAD DAY: IS NOTICE PLEADING DEAD?, N.C. Lawyers Weekly, July 2, 2007; Michael C. Dorf, THE SUPREME
COURT WREAKS HAVOC IN THE LOWER FEDERAL COURTS—AGAIN, Findlaw’s Writ, Aug. 13, 2007,
http://writ.news.findlaw.com/dorf/20070813.html; see also Andrée Sophia Blumstein, A HIGHER STANDARD: ‘TWOMBLY’
REQUIRES MORE FOR NOTICE PLEADING, Tenn. B.J., Aug. 2007, at 12 (“Of all the cases decided this term by the United States
Supreme Court, Bell Atlantic Corp. v. Twombly may be the case of the most practical, everyday significance.”) (endnote
omitted).
63
Iqbal v. Hasty, 490 F.3d 143, 155 (2d Cir. 2007); see also Allan Ides, BELL ATLANTIC AND THE PRINCIPLE OF SUBSTANTIVE
SUFFICIENCY UNDER FEDERAL RULE OF CIVIL PROCEDURE 8(A)(2): TOWARD A STRUCTURED A PPROACH TO FEDERAL PLEADING
PRACTICE, 243 F.R.D. 604, 604–05 & nn. 3 & 4 (2007) (noting confusion); Scott Dodson, PLEADING STANDARDS AFTER BELL
ATLANTIC V. TWOMBLY, 93 Va. L. Rev. in Brief 121, 126 (2007),
http://www.virginialawreview.org/inbrief/2007/07/09/dodson.pdf; Thomas P. Brown & Christine C. Wilson, BELL ATLANTIC
CORP. V. TWOMBLY: A TECTONIC SHIFT IN PLEADING STANDARDS (OR JUST A TREMOR)?, Wash. Legal Found. Legal
Backgrounder (Aug. 24, 2007), http://www.wlf.org/upload/08-24-07wilson.pdf; A. Benjamin Spencer, PLAUSIBILITY
PLEADING, 49 B.C. L. REV. (forthcoming 2008). As the Reporter to the Advisory Committee on Civil Rules put it, “One
phrase or another [in Bell Atlantic] can be made to point in almost any direction.” Edward H. Cooper, Memorandum, NOTICE
PLEADING: THE AGENDA AFTER TWOMBLY 3 in AGENDA MATERIALS 268, 270, Advisory Committee on Civil Rules Meeting,
Washington, D.C., November 8–9, 2007, http://www.uscourts.gov/rules/Agenda%20Books/CV2007-11.pdf.
64
655 F.2d 627, 641 (5th Cir. Unit A Sept. 1981), cert. dismissed sub. nom Weyerhaeuser Co. v. Lyman Lamb Co., 462 U.S.
1125 (1983).
65
Id. at 641.
66
See infra notes 202–207 and accompanying text.
The text:
The Plywood Antitrust/Car Carriers standard has been used not only in the Fifth and Seventh Circuits, but in the
First,202 Sixth,203 Eleventh,204 and District of Columbia205 Circuits as well. After Bell Atlantic, the Third206 and
Eighth207 Circuits have used the standard, too, albeit in unpublished decisions.
The footnotes:
202. Fitzgerald v. Codex Corp., 882 F.2d 586, 589 (1st Cir. 1989).

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standard paraphrases advice found in the venerable WRIGHT & MILLER for nearly 40 years.67
Properly applied, this “all . . . material elements” standard satisfies Bell Atlantic’s “plausibility”
requirement in all respects.
The Plywood Antitrust pleading standard works well after Bell Atlantic, first, because the
Supreme Court referred to the standard, albeit parenthetically, with approval in Bell Atlantic.68
Second, it does much to harmonize the Federal Rules’ goal of dispensing with pleading
technicalities while still requiring enough general factual information about a pleader’s claim to
make the notice in “notice pleading” meaningful. Finally, and perhaps most importantly, it gives
lawyers, litigants, and courts a standard they can actually use when drafting, or assessing the
sufficiency of, pleadings.

203. Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988) (quoting Car Carriers
and citing Plywood Antitrust). The Sixth Circuit has begun citing Bell Atlantic for its use of the Car
Carriers standard. League of United Latin Am. Citizens (LULAC) v. Bredesen, 500 F.3d 523, 527 (6th
Cir. 2007).
204. Roe v. Aware Woman Ctr. For Choice, Inc., 253 F.3d 678, 683 (11th Cir. 2001) (quoting Plywood
Antitrust). In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), the Eleventh
Circuit adopted as binding precedent all decisions handed down by the Former Fifth Circuit before the
close of business on September 30, 1981. Id. at 1209–10. Thus, Plywood Antitrust is binding precedent
in the Eleventh Circuit.
205. Dist. of Columbia v. Air Florida, Inc., 750 F.2d 1077, 1081 n.14 (D.C. Cir. 1984).
206. See Montville Township v. Woodmont Builders, LLC, 244 F. App’x 514, 517 (3d Cir. 2007); Haspel
v. State Farm Mut. Auto. Ins. Co., 241 F. App’x 837, 839 (3d Cir. 2007).
207. See Abdullah v. Minnesota, No. 06-4142, 2008 WL 283693, at *1 (8th Cir. Feb. 4, 2008).
67
See infra notes 182–184 and accompanying text.
The text:
The precise formulation of the Rule 8 standard utilized in Car Carriers originated in the Former Fifth Circuit’s 1981
decision in In re Plywood Antitrust Litigation.182 There the Fifth Circuit observed:
Despite the liberality of modern rules of pleading, a complaint still must contain either direct or inferential
allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. . . .
“[I]f a pleader cannot allege definitely and in good faith the existence of an essential element of his claim, it is
difficult to see why this basic deficiency should not be exposed at the point of minimum expenditure of time and
money by the parties and the court.”183
On the former point, the Fifth Circuit cited a district court decision, which in turn quoted a similar statement in the
first edition of WRIGHT & MILLER;184
The footnotes:
182. 655 F.2d 627.
183. Id. at 641 (citations omitted) (quoting Daves, 114 F. Supp. at 645).
184. Id. (citing City of Gainsville v. Florida Power & Light Co., 488 F. Supp. 1258, 1263 (S.D. Fla. 1980), in turn
quoting 5 WRIGHT & MILLER, supra note 173, § 1216, at 121–23).
68
See 127 S. Ct. at 1969 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984), in turn quoting
Sutliff, Inc. v. Donovan Cos., 727 F.2d 648, 654 (7th Cir. 1984), in turn quoting Plywood Antitrust, 655 F. 2d at 641.).

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...
III.
The Road Now Taken?69
By sweeping away Conley’s “no set of facts” standard, Bell Atlantic opens the way for the more
moderate interpretation of Rule 8(a)(2) suggested by Professors Wright, Miller, Moore, and
Hazard and utilized in cases such as Daves. The road not taken in Conley may be the road now
taken a half century later. Moreover, Bell Atlantic itself suggests how the new standard can be
formulated for future cases.
Professor Hazard’s suggestion that Rule 8(a)(2), properly interpreted, requires a factual “narrative
in ordinary language . . . setting forth all elements of a claim under applicable substantive law” 70
is similar to the Car Carriers requirement—quoted in Bell Atlantic—of “direct or inferential
allegations respecting all the material elements necessary to sustain recovery under some viable
legal theory.”71 It also echoes Judge Clark’s formulation of a moderate form of notice pleading
for code jurisdictions.72
The precise formulation of the Rule 8 standard utilized in Car Carriers originated in the Former
Fifth Circuit’s 1981 decision in In re Plywood Antitrust Litigation.73 There the Fifth Circuit
observed:
Despite the liberality of modern rules of pleading, a complaint still must contain either direct or
inferential allegations respecting all the material elements necessary to sustain a recovery under
some viable legal theory. . . . “[I]f a pleader cannot allege definitely and in good faith the
existence of an essential element of his claim, it is difficult to see why this basic deficiency
should not be exposed at the point of minimum expenditure of time and money by the parties and
the court.”74
On the former point, the Fifth Circuit cited a district court decision, which in turn quoted a similar
statement in the first edition of WRIGHT & MILLER;75 thus, the Plywood Antitrust formulation
is really just a paraphrase of WRIGHT & MILLER. On the latter point, the Fifth Circuit was

69
NOTE ON COINCIDENTAL USE OF “The Road Now Taken.” See Randy E. Barnett, THE PEOPLE OR THE STATE?:
CHISHOLM V. GEORGIA AND POPULAR SOVEREIGNTY, 93 Virginia L. Rev. 1729 at 1737 (2007) (Another reason for teaching
Chisholm is that it represents the “road not taken” with respect to constitutional amendments.) My emphasis on the “road
not taken” applies to “what if” Chisholm v. Georgia was the correct interpretation of the U.S. Constitution that a State could
be sued by citizen’s of another State and the Second Amendment was incorporated through the Fourteenth Amendment to
apply to the States. The Second Amendment right to open carry in intrastate, interstate, and maritime travel would probably
be preserved even today! The “road not taken” indeed!
70
Geoffrey C. Hazard, Jr., From Whom No Secrets Are Hid, 76 TEX. L. REV. at 1685 (1998). I omit Professor Hazard’s use
of the adjective “detailed” in reference to the factual narrative because it could be understood to suggest a greater level of
detail than the Car Carriers line of cases requires.
71
Car Carriers, 745 F.2d at 1106 (quoting Sutliff, 727 F.2d at 654, in turn quoting Plywood Antitrust, 655 F.2d at 641).
72
See Charles E. Clark, Handbook on the Law of Code Pleading § 38, at 240 (2d ed. 1947).
73
655 F.2d 627.
74
Id. at 641 (citations omitted) (quoting Daves, 114 F. Supp. at 645).
75
Id. (citing City of Gainsville v. Florida Power & Light Co., 488 F. Supp. 1258, 1263 (S.D. Fla. 1980), in turn quoting 5
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216, at 121–23 (1969)

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quoting Daves v. Hawaiian Dredging Co.,18576 the case quoted at length in the same section of
WRIGHT & MILLER; the same excerpt, along with a citation to Daves, also appears in Bell
Atlantic.77
These authorities suggest an appropriate interpretation of the Rule 8(a)(2) pleading standard after
Bell Atlantic: factual allegations in plain language touching (either directly or by inference) all
material elements necessary to recover under substantive law—but freed from the technicalities
of common law and code pleading. One of the benefits of the Plywood Antitrust/Car Carriers
formulation of the standard is that it directs attention to “allegations” on “the material elements
necessary to sustain recovery” without reference to either the “facts” or the “cause of action” that
so plagued code pleading.
A major reason for rejecting the Ninth Circuit’s plea to add code pleading language to Rule
8(a)(2) was the fear that such language would revive battles over what constituted “facts” and the
proper definition of a “cause of action.”78 By avoiding the language of the codes, the Plywood
Antitrust/Car Carriers formulation encourages courts to focus on the Rules’ textual standard of
“entitle[ment] to relief,” as measured by the elements necessary to recover, without returning to
the technicalities of code pleading.
Moreover, measuring “entitle[ment] to relief” by “the material elements necessary to sustain
recovery” finds support in the history of Rule 8. In upholding a government antitrust complaint in
United States v. Employing Plasterers Association,79 the Supreme Court noted that, “where a
bona fide complaint is filed that charges every element necessary to recover, summary dismissal
of a civil case for failure to set out evidential facts can seldom be justified.”80 Judge Clark later
quoted this language from Employing Plasterers in his paper Special Pleading in the “Big
Case”?81

76
114 F. Supp. at 645. Although the Former Fifth Circuit attributed its quotation from Daves to the late Chief Justice Burger,
the excerpt is from the district court’s opinion. Id. The district court’s opinion does not indicate that it is quoting (or
paraphrasing) the defendants’ argument; there is no citation of any kind for this statement. See id. A review of the Daves case
file shows that the defendants argued at some length that the plaintiffs had not satisfied Rule 8, but their argument contains
no statements from which the excerpt appears to have been taken. See Mem. Supp. Defs.’ Mot. to Dismiss or for Summ. J.,
supra note 172, at 16–19.
77
Bell Atl., 127 S. Ct. at 1966 (quoting 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1216,
at 233–34 (3d ed. 2004), in turn quoting Daves, 114 F. Supp. at 645).
78
See Advisory Comm. on Rules for Civ. Proc., Report of Proposed Amendments to the Rules of Civil Procedure for the
United States District Courts at 19 (1955), http://www.uscourts.gov/rules/Reports/CV10-1955.pdf [hereinafter “1955
REPORT”]. The entire 1955 Report is reprinted in 12A Charles Alan Wright et al., Federal Practice and Procedure App. F
(3d ed. 2007). The 1955 Report’s proposed note to Rule 8 is reprinted in 2 James Wm. Moore et al., Moore’s Federal
Practice § 8App.01[3] (3d ed. 1997).
79
347 U.S. 186 (1954).
80
Id. at 189 (emphasis added).
81
21 F.R.D. at 49.

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The Supreme Court’s decision in Swierkiewicz v. Sorema S.A. does not reject, as some have
suggested,82 requiring a complaint to allege the elements of a claim under substantive law.
Swierkiewicz rejected using an evidentiary standard as a pleading standard; it did not reject
measuring the sufficiency of a complaint by whether it alleged all of the elements necessary to
recover.83
For example, one of the plaintiff’s claims in Swierkiewicz was a Title VII claim for national-
origin discrimination. 84 There are two elements of a statutory claim for national-origin
discrimination: (1) an adverse employment action (e.g., firing, demoting, refusing to hire); and (2)
the plaintiff’s national origin was a “motivating factor” in the employer’s decision. 85
Swierkiewicz had plainly alleged both of those elements in his complaint. 86 The Second Circuit’s
“heightened pleading” standard required more than the two statutory elements of national-origin
discrimination, however. It required allegations of all four elements of a McDonnell Douglas87
prima facie case: “(1) membership in a protected group; (2) qualification for the job in question;
(3) an adverse employment action; and (4) circumstances that support an inference of

82
See 2 James Wm. Moore et al., Moore’s Federal Practice § 8.04[1a] (3d ed. 2007) (“The Supreme Court . . . has rejected
the idea that courts should measure a pleading’s adequacy by the elements of a claim.”). The third edition of MOORE’S
FEDERAL PRACTICE was published in 1997, after Professor Moore’s death in 1994.
83
See John P. Lenich, Notice Pleading Comes to Nebraska: Part I – Pleading Claims for Relief, Neb. Lawyer, Sept. 2002, at
7 n.12 (“The authors [of Moore’s Federal Practice] are wrong.”).
84
Section 703(a)(1) of Title VII of the Civil Rights Act of 1964 provides:
It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin . . . .
42 U.S.C. § 2000e–2(a)(1) (2000).
85
See id. Model jury instructions confirm this:
To prove his [her] claim, plaintiff must prove by a preponderance of the evidence: First, that defendant
[e.g., failed to hire, promote, or demoted] the plaintiff, and Second, that plaintiff’s [e.g., race, gender,
religion] was a motivating factor in defendant’s decision.
5 Leonard B. Sand et al, Modern Federal Jury Instructions ¶ 88.03[1], Instruction 88-42, at 88-133 (2007).
86
Among other things, Swierkiewicz alleged:
20. Mr. Chavel demoted Mr. Swierkiewicz on account of his national origin (Hungarian) and his age (he
was 49 at the time).
....
37. Plaintiff’s age and national origin were motivating factors in SOREMA’s decision to terminate his
employment.
Am. Compl. ¶¶ 20, 37, reprinted in Jt. App. at 25a, 27a, Swierkiewicz, 534 U.S. 506 (No. 00-1853), 2001 WL 34093952.
87
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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discrimination.”88 The Supreme Court rejected making McDonnell Douglas’s “evidentiary


standard” into a “pleading requirement.”89 In particular, the Court observed that
it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the
McDonnell Douglas framework does not apply in every employment discrimination case. For
instance, if a plaintiff is able to produce direct evidence of discrimination, he may prevail without
proving all the elements of a prima facie case. . . . It . . . seems incongruous to require a plaintiff,
in order to survive a motion to dismiss, to plead more facts than he may ultimately need to prove
to succeed on the merits if direct evidence of discrimination is discovered.90
What the Court rejected in Swierkiewicz was requiring a complaint to allege all the elements of
the McDonnell Douglas evidentiary standard. The Court did not reject requiring a plaintiff to
allege all the elements of a statutory claim. Swierkiewicz does not suggest that the plaintiff’s
complaint would have been sufficient if it had failed to allege an adverse employment action or
plaintiff’s national origin as a motivating factor for that action (the required statutory elements).
Thus, Swierkiewicz does not reject requiring a complaint to allege all the elements of a claim
under substantive law.
In fact, Bell Atlantic itself is an exercise in measuring “entitle[ment] to relief” by “the material
elements necessary to sustain recovery.” The first element of an offense under section 1 of the
Sherman Act is “that the defendants entered into an agreement or conspiracy.”91 The Court held
in Bell Atlantic that plaintiffs had failed to allege sufficient facts to suggest that such an
agreement or conspiracy was “plausible.” Accordingly, the plaintiffs had failed to establish that
they were “entitled to relief” under Rule 8(a)(2) because they failed to allege sufficiently one of
“the material elements necessary to sustain recovery” under section 1 of the Sherman Act.
The Plywood Antitrust/Car Carriers interpretation of Rule 8(a)(2) remains a break from the
technical horrors that often accompanied code pleading, and continues to permit the Rule to be
construed liberally to avoid dismissals for “foot faults” in pleading. True, it represents a
somewhat higher standard than the literal terms of Conley’s “no set of facts” language permitted.
As Professor Hazard’s article suggests, however, this interpretation is “quite possible” again now
that Rule 8 is no longer “turned . . . on its head” by Conley v. Gibson.
...
Conclusion
In the wake of Bell Atlantic, some have expressed the “hope[] that trial judges, long overworked
but fearful of reversal by the circuit court, will now be unshackled, free to dismiss the large
number of meritless cases that clog dockets and cost defendants untold losses in time and
money.”92241 Bell Atlantic does suggest a greater willingness to dismiss cases at the pleading
stage—especially the “big cases” where “big” lawyers have plenty of time and talent to lay out

88
534 U.S. at 510.
89
534 U.S. at 510–11.
90
Id. at 511.
91
See 4 Leonard B. Sand et al, Modern Federal Jury Instructions ¶ 79.04[1], Instruction 79-41, at 79-82, ¶ 79.05[1],
Instruction 79-46, at 79-98.
92
William F. Patry, Patry on Copyright § 19:2 (2007)

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their case adequately. If the Plywood Antitrust/Car Carriers formulation of the Rule 8(a)(2)
pleading standard prevails, however, district courts will not be “unshackled,” but will instead be
more closely focused on the text of Rule 8(a)(2), particularly the requirement of showing
“entitle[ment] to relief,” instead of Conley v. Gibson’s now abrogated “hyperbole.”
(4). Barry G. Sher, Kevin C. Logue and Asa R. Danes BELL ATLANTIC CORP. V.
TWOMBLY: THE SUPREME COURT TIGHTENS PLEADING STANDARDS FOR
ANTITRUST CONSPIRACY AND BEYOND; StayCurrent: A Client Alert from Paul
Hastings, May 2007, Paul, Hastings, Janofsky & Walker LLP, 875 15th
Street, N.W., Washington, DC 20005, (18 Offices Worldwide)
INTRODUCTION
On May 21, 2007, the United States Supreme Court issued an important decision pertaining to the
pleading standards in an antitrust action under Section 1 of the Sherman Act, 15 U.S.C. § 1. In
Bell Atlantic Corp. v. Twombly, No. 05-1126, the Supreme Court reversed the judgment of the
Court of Appeals for the Second Circuit, 425 F.3d 99 (2d Cir. 2005), and held in a 7-2 decision
that to satisfy the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure, and
survive a motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which
relief may be granted in a § 1 case, an allegation of parallel conduct and a bare assertion of an
agreement will not suffice. 93 The Court required “plausible grounds to infer an agreement” in
violation of Section 1, [15 U.S.C. § 1] and determined that stating such “plausible grounds”94
requires “enough fact to raise a reasonable expectation that discovery will reveal evidence of
illegal agreement.”
The decision is likely to have an impact well beyond the antitrust context.95 The Court took
head on what has for decades been the primary formulation of the pleading standard on a motion
to dismiss in federal and many state courts. That formulation – as every defense lawyer has seen
quoted in innumerable oppositions filed by plaintiffs – is that a complaint should not be dismissed
for failure to state a claim “unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41,
45-46 (1957).96 The Supreme Court in Twombly stated that this language has been “questioned,
criticized, and explained away long enough,” and that it “is best forgotten as an incomplete,
negative gloss on an accepted pleading standard.” Referring to the Dickens character, the Court
expressed concern that any other approach allows plaintiffs to pursue cases based on nothing
more than “Mr. Micawber’s optimism.” The Court was concerned that parties are subjected to
costly discovery, which plaintiffs use both as a lever to increase the settlement value of cases and
to seek support for claims even where one has not been pleaded. Twombly should become a
significant tool for defendants in combating such tactics.
Section 1 of the Sherman Act prohibits contracts, combinations or conspiracies in restraint of
trade or commerce. Because unilateral action cannot violate § 1, a hotly contested issue in § 1

93
Plaintiff Don Hamrick’s emphasis.
94
Plaintiff Don Hamrick’s emphasis.
95
Plaintiff Don Hamrick’s emphasis.
96
Plaintiff Don Hamrick’s emphasis

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claims is whether the challenged conduct resulted from concerted action – an agreement or
conspiracy. If direct evidence of a conspiracy – such as a recorded conversation in the proverbial
smoke-filled room – is not available, plaintiffs are required to plead facts from which a
conspiracy properly can be inferred.
One way that plaintiffs have attempted in the past to plead concerted action without direct
evidence is by alleging parallel conduct, where competitors in an industry have acted in the
same or similar fashion. The problem with that approach is that parallel business conduct, where
one or more companies adopt the practices of their competitors, does not, standing alone,
violate the antitrust laws. Lower courts, such as the district court in Twombly, have therefore
held that dismissal is appropriate when a plaintiff fails to plead so-called “plus factors”97 – facts
tending to exclude the possibility that the conduct was the result of lawful activities – when a § 1
claim is based on parallel conduct. In Twombly, however, the Second Circuit held that pleading
plus factors is not required under the circumstances of the case.
The proper pleading standard in antitrust actions has taken on critical importance in recent years,
as the cost and burden of discovery in such cases can be enormous and can cause significant
disruption to the ongoing operations of a business or an industry. Without fully developed factual
allegations, this burden may be imposed on defendants who are swept into litigation alleging a
widespread – even industry-wide – conspiracy without facts which, if true, would show each
defendant’s alleged role in the conspiracy and provide notice of the charges that must be
defended.
BACKGROUND
The Twombly case arose in the context of the TELECOMMUNICATIONS ACT OF 1996, which was
intended to promote competition in local telephone service markets. The TELECOMMUNICATIONS
ACT required INCUMBENT LOCAL EXCHANGE CARRIERS (ILECs) to open local telephone and
Internet service, which had been previously provided by government-sanctioned regional
monopolies, to competition from COMPETITIVE LOCAL EXCHANGE CARRIERS (CLECs). ILECs, in
exchange, were allowed to compete for long-distance service and local telephone service
customers in territories traditionally serviced by other ILECs.
Plaintiffs, representatives of a putative class of subscribers of local telephone or high-speed
Internet service, alleged that the ILECs violated § 1 by conspiring to thwart efforts of CLECs to
enter their respective local telephone markets and by agreeing not to compete with other ILECs to
provide local telephone service in each other’s territories. Plaintiffs alleged no facts showing that
defendants reached any agreement, but instead alleged parallel conduct by the ILECs.
Specifically, plaintiffs relied primarily on allegations that ILECs were not attempting to expand
into each other’s markets, even though the areas they serviced often were not contiguous and
were in some instances entirely surrounded by their competitors’ territories. While this conduct
could be entirely consistent with unilateral behavior, plaintiffs alleged that defendants’ decisions
not to move into adjacent local phone service markets constituted anomalous parallel conduct that
would be unlikely in the absence of a conspiracy not to compete, and that the conspiracy was
motivated by each ILEC’s desire to maintain a monopoly in its territory. Plaintiffs also pointed to

97
Scott Dodson, PLEADING STANDARDS AFTER BELL ATLANTIC CORP. V. TWOMBLY, 93 Virginia Law Review in Brief 121-128,
124 (July 9, 2007) uses the term “notice-plus.” Posting of Scott Dodson to Civil Procedure Prof Blog,
http://lawprofessors.typepad.com/civpro/2007/05/prof_scott_dods.html (May 21, 2007).
Also available Online at: http://www.virginialawreview.org/inbrief/2007/07/09/dodson.pdf

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a statement made by the CEO of one of the ILECs that competing in the territory of another ILEC
“might be a good way to turn a quick dollar but that doesn’t make it right.”
THE DISTRICT COURT DECISION
The district court dismissed the complaint, concluding that pleading parallel conduct, without
pleading plus factors, is insufficient for purposes of Rule 12(b)(6). The district court noted that
parallel conduct is often legitimate and therefore does not violate the antitrust laws.
The court also recognized that, under existing precedent, to defeat summary judgment a plaintiff
would be required to demonstrate that the parallel conduct resulted from an agreement, and that a
plaintiff can satisfy that standard by establishing at least one plus factor tending to exclude
independent self-interest as an explanation for defendants’ parallel behavior. The court reasoned
that because parallel conduct alone does not violate § 1, plus factors must be pleaded in order to
state a substantive element of the claim upon which relief could be granted.
Further, the court reasoned that pleading plus factors is necessary to give defendants notice of
plaintiffs’ theory of the conspiracy and enable defendants to defend the claim. The court
concluded that plaintiffs failed to state a viable § 1 claim because all businesses are expected,
acting on their own, to resist rivals’ efforts to take their customers, and there is nothing suspicious
about a company’s decision not to enter a new line of business. The court held that no conspiracy
could be inferred from that conduct, and that plaintiffs failed to allege any other facts to support
an inference of conspiracy.
THE SECOND CIRCUIT DECISION
The Second Circuit vacated the judgment of the district court, concluding that the district court
applied the wrong pleading standard when it required the plaintiffs to plead plus factors and
concluded that the plaintiffs’ allegations were sufficient to give the defendants fair notice of the
claim and its grounds. The circuit court stated that antitrust claims are not subject to the
heightened pleading requirements of Rule 9(b), and that Rule 8 requires only that the complaint
contain “a short and plain statement” of the claim showing that the pleader is entitled to relief to
provide defendants with fair notice of the basis for the complaint and enable them to answer and
prepare for trial.
Although the Second Circuit acknowledged that parallel conduct could just as easily be legitimate
unilateral business conduct, it nevertheless held that the inquiry regarding plus factors is limited
to the summary judgment stage because plus factors are evidence of conspiracy, and evidence
need not be pleaded under Rule 8. The circuit court held that, at the pleading stage, the factual
predicate pleaded for a § 1 claim need only include conspiracy among the realm of “plausible
possibilities,” and that pleading facts that indicate parallel conduct can state a plausible
conspiracy.
The Second Circuit concluded that dismissal under Rule 12(b)(6) required a court to find that
there is no set of facts that would permit a plaintiff to demonstrate that the particular parallel
conduct asserted was the product of collusion rather than coincidence.
THE SUPREME COURT DECISION
In reversing the Second Circuit, the Supreme Court began its analysis by acknowledging that a
showing of parallel business behavior is admissible circumstantial evidence from which an
agreement may be inferred. However, it reiterated that such parallel conduct alone is
insufficient to establish an agreement or itself constitute a Sherman Act offense, concluding

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that it is consistent with conspiracy but just as much in line with rational and competitive business
strategy unilaterally prompted by common perceptions of the market.
The Court acknowledged that, under Rule 8, a complaint does not need detailed factual
allegations, but concluded that a plaintiff’s obligation to provide the “grounds” of his or her
“entitle[ment] to relief” requires factual allegations that must be enough to raise a right to
relief above the speculative level on the assumption that all of the complaint’s allegations
are true.
In the antitrust context, the Court noted that a parallel conduct allegation gets a § 1 complaint
close to stating a claim, but without some further factual enhancement it stops short of the line
between possibility and plausibility. “Hence, when allegations of parallel conduct are set out in
order to make a § 1 claim, they must be placed in a context that raises a suggestion of a preceding
agreement, not merely parallel conduct that could just as well be independent action. The need at
the pleading stage for allegations plausibly suggesting (not merely consistent with)
agreement reflects the threshold requirement of Rule 8(a)(2) . . . .”
This “plausibility requirement” serves the practical purpose of preventing a plaintiff with a
largely groundless claim from using costly discovery to increase the settlement value of the case.
The Court specifically addressed the expense of discovery in antitrust actions, noting that the
potential expense was obvious in the Twombly case where the plaintiffs represented a putative
class of at least 90 percent of subscribers of local telephone or high-speed Internet service against
the largest telecommunications companies in the country for unspecified instances of antitrust
violations that occurred over a seven-year period. The Court was not persuaded by the argument
that judicial supervision could limit abuse of the discovery process.
The Court agreed with the district court that plaintiffs’ claim of conspiracy in Twombly was based
on parallel conduct, and not an independent allegation of an agreement among ILECs. The Court
also agreed that nothing in the complaint suggests that the ILECs’ resistance to CLECs was
anything more than “the natural, unilateral reaction of each ILEC intent on keeping its regional
dominance.” Also, the Court ruled that the ILECs’ reluctance to enter each other’s markets was
not suggestive of conspiracy because there was an alternative explanation, specifically that the
ILECs would concentrate on the market segment that they formerly dominated as monopolies,
expecting their competitors to do the same thing.
The Court in Twombly was not persuaded by plaintiffs’ argument that its decision would be
contrary to Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), which held that a “complaint in an
employment discrimination lawsuit [need] not contain specific facts establishing a prima facie
case of discrimination under the framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973).” In Swierkiewicz, the Supreme Court reversed on the grounds that the circuit
court had impermissibly applied what amounted to a heightened pleading standard by requiring
that the plaintiff allege “specific facts” beyond those necessary to state his claim and the grounds
showing entitlement to relief. In Twombly, the Court distinguished Swierkiewicz by stating that
“we do not require heightened fact pleading of specifics, but only enough facts to state a
claim for relief that is plausible on its face. Because the plaintiffs here have not nudged their
claims across the line from conceivable to plausible, their complaint must be dismissed.”
The Twombly decision criticized the Second Circuit’s reliance on a frequently quoted passage set
forth in the seminal case of Conley v. Gibson, 355 U.S. 41, 45-46 (1957), which states that “a
complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle

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him to relief.” The Court concluded that the Second Circuit may have read this passage in
isolation in formulating its understanding of the proper pleading standard for a § 1 claim. As
Justice Stevens, who was joined in part by Justice Ginsburg, pointed out in dissent, the Conley
passage has been relied on for 50 years by federal courts and has served as the model for the law
in many states. The Court, however, rejected an interpretation of Conley’s “no set of facts”
language that would permit a complaint to survive a motion to dismiss whenever the pleadings
left open the possibility that a plaintiff might later establish some set of undisclosed facts to
support recovery. The Court listed criticisms of the “no set of facts” language as a literal
pleading standard, and characterized the passage as an “incomplete, negative gloss” of an
accepted standard: “once a claim has been stated adequately, it may be supported by showing
any set of facts consistent with the allegations in the complaint.” The Court stated that the
Conley “no set of facts” language “has earned its retirement.”
IMPACT OF THE DECISION
By requiring that an antitrust conspiracy complaint must allege facts sufficient to provide
“plausible grounds to infer an agreement,” as opposed to mere parallel competitor or industry
action, the Twombly decision may provide companies swept up in widespread antitrust
litigation with a strong basis for seeking dismissal of conclusory pleadings. In addition,
because there is no statutory stay of discovery in antitrust litigation while a motion to dismiss is
being considered, this decision may provide grounds for more courts to stay discovery pending a
decision on a motion to dismiss, so that the burden and substantial expense of antitrust discovery
may be avoided, or at least postponed, until it is determined that a complaint is viable. Moreover,
because the Supreme Court “retired” the longstanding Conley “no set of facts” standard used
by federal courts and many state courts in assessing motions to dismiss generally, the Twombly
decision may give rise to closer scrutiny of complaints and support efforts to stay or avoid
costly discovery in a variety of cases outside of the antitrust context.
Now a complaint must provide “enough facts to state a claim to relief that is plausible on its
face.”98
K. Judicial Bias and Hostility in the Lower Federal Courts toward Second
Amendment Cases is Common Knowledge
(1). Glenn H. Reynolds, Brannon P. Denning, HELLER’S FUTURE IN THE LOWER
COURTS, 102 Northwestern Law Review Colloquy 406 (2008):99
The Supreme Court has released its long-awaited opinion in District of Columbia v. Heller,100 and
the buzz has been considerable. Though much has been made of the majority’s historic ruling and
of the narrowness of that majority, many commentators have missed an important point. What
Heller is most notable for is its complete and unanimous rejection of the “collective rights”
interpretation that for nearly seventy years held sway with pundits, academics, and—most
significantly—lower courts.

98
127 S. Ct. at 1974.
99
http://www.law.northwestern.edu/lawreview/colloquy/2008/23/LRColl2008n23Reynolds&Denning.pdf
100
No. 07-290, slip op. (U.S. June 26, 2008) (link).

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The repudiation of this extensive body of case law101 suggests that the real test of Heller will
occur once the lower courts, traditionally hostile to an individual rights interpretation of the
Second Amendment, face the in-evitable follow-up cases challenging other restrictive gun laws.
Experience with other seemingly groundbreaking Supreme Court decisions in recent years, such
as United States v. Lopez, suggests that lower-court foot-dragging may limit Heller’s reach,
though this time around there will likely be considerably more scrutiny and more vigorous
litigation efforts. If the lower courts present a challenge to the implementation of Heller, they also
provide litigants with an opportunity. Given the fact that the Heller majority declined to give a
detailed accounting of the proper standard of review to be used in subsequent Second
Amendment cases, litigants have a rare opportunity to write on a tabula much more rasa than is
ordinarily the case in constitutional litigation, making use of recent scholarship on the crafting of
constitutional decision rules that implement constitutional provisions.
(2). Glenn H. Reynolds, Brannon P. Denning, HELLER’S FUTURE IN THE LOWER
COURTS, 102 Northwestern Law Review Colloquy 406 (2008) SECTION II. THE
LOWER COURTS AND THE HELLER DECISION:
It is impossible to review the Second Amendment jurisprudence from the federal
courts of appeals (excepting only Parker v. District of Columbia,102 the lower-court
version of Heller, and United States v. Emerson) without noting two things: a
significant hostility toward individual rights arguments, and a surprisingly deep
investment in their own case law, despite its rather tenuous anchor in the Supreme Court’s
decisions. This raises the question: what will they do when presented with gun-rights cases post-
Heller?
There is some reason to expect that the answer will be “not much.” The last constitutional
revolution led by the Supreme Court—via its Lopez and Morrison103 decisions limiting
Congressional power—essentially petered out in the face of lower-court resistance. 104 In light of
Gonzales v. Raich,105 which upheld the application of federal drug control laws to local,
noncommercial, medical marijuana, lower court reluctance to read Lopez and Morrison looked
prescient. Will that happen again with the Second Amendment?

101
See Brannon P. Denning, CAN THE SIMPLE CITE BE TRUSTED?: LOWER COURT INTERPRETATIONS OF UNITED STATES v.
MILLER AND THE SECOND AMENDMENT, 26 Cumb. L. Rev. 961 (1996) (criticizing the case law citing United States v. Miller as
authority for rejecting an individual rights interpretation).
102
478 F.3d 370, 395 (D.C. Cir. 2007) (concluding ―that the Second Amendment protects an indi-vidual right to keep and
bear arms ), aff’d sub nom. District of Columbia v. Heller, No. 07-290 (June 29, 2008).
103
United States v. Morrison, 529 U.S. 598 (2000) (invalidating the civil-suit provision of the Violence Against Women Act
as beyond Congress’s commerce power)
104
See Glenn H. Reynolds & Brannon P. Denning, LOWER COURT READINGS OF LOPEZ, OR WHAT IF THE SUPREME COURT
HELD A CONSTITUTIONAL REVOLUTION AND NOBODY CAME? 2000 Wis. L. Rev. 369 (2000) [he-reinafter Reynolds & Denning,
Constitutional Revolution]; Brannon P. Denning & Glenn H. Reynolds, RULINGS AND RESISTANCE: THE NEW COMMERCE
CLAUSE JURISPRUDENCE ENCOUNTERS THE LOWER COURTS, 55 ARK. L. REV. 1253 (2003) [hereinafter Denning & Reynolds,
Rulings and Resistance] (discussing lower court cases following Morrison).
105
545 U.S. 1 (2005) (upholding application of the Controlled Substances Act to noncommercial marijuana grown and
possessed for local, medicinal use under state law)

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In Lopez, the Supreme Court struck down the Gun Free School Zones Act as being in excess of
Congress’s enumerated power to regulate commerce among the several states. In the years
following Lopez, hundreds of cases flooded the lower courts, most brought by defendants
convicted of violating various federal criminal statutes, claiming that those laws also exceeded
Congress’s commerce power.106 In the five years after Lopez, however, only one law—the civil
suit provision eventually invalidated in Morrison—was struck down by a federal appellate
court.107 Even after Morrison, when the Court not only reaffirmed Lopez but seemed to add, “and
we mean it,” courts were still reluctant to rigorously analyze federal statutes using the Lopez-
Morrison framework. Though before Raich signaled a retreat, lower courts were beginning to
uphold as-applied challenges to particular federal statutes.108 Will Heller suffer Lopez’s fate,
serving more as casebook fodder than as actual authority? On the surface, there are some
analogies between the Commerce Clause and the Second Amendment that suggest that, like
Lopez, Heller itself may end up as so much sound and fury, signifying nothing—or at least
nothing much.
First, there are the institutional prejudices of the courts of appeals, favoring the status quo and
possessing a desk-clearing mentality. Like the bureaucrats they increasingly resemble, the
members of the appellate judiciary do not like to rock the boat. In addition, the courts of appeals
have a history of more-or-less open hostility to claims of a private right to arms. The vast
majority of cases to date suggest that, to the extent they can, they will try to rule against such a
right. Second, as was true following Lopez, there are few federal firearms laws that are vulnerable
under Heller. Indeed, Justice Scalia’s opinion took some pains to make clear what the Court was
not calling into question:
[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms
in sensitive places such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms.109
Indeed the very enumeration of “presumptively lawful regulatory measures” seemed calculated to
reduce expectations among, for example, felons convicted of possessing firearms in violation of
federal law that Heller represented a “Get Out of Jail Free” card.
Third, the Heller majority’s refusal to be pinned down on a specific standard of review might also
leave an opening for lower courts to confine Heller to its facts.110 20 For example, a court might
read Heller as standing for the proposition that anything less than an absolute ban could pass

106
Several of these challenges are discussed in Glenn H. Reynolds & Brannon P. Denning, LOWER COURT READINGS OF
LOPEZ, OR WHAT IF THE SUPREME COURT HELD A CONSTITUTIONAL REVOLUTION AND NOBODY CAME? 2000 Wis. L. Rev. 369
(2000).
107
Brzonkala v. Va. Polytechnic Inst. and State Univ., 169 F.3d 820 (4th Cir. 1999) (en banc), aff’d sub. nom. United States
v. Morrison, 529 U.S. 598 (2000).
108
Brannon P. Denning & Glenn H. Reynolds, RULINGS AND RESISTANCE: THE NEW COMMERCE CLAUSE JURISPRUDENCE
ENCOUNTERS THE LOWER COURTS, 55 ARK. L. REV. 1253 (2003) (describing these as-applied challenges).
109
District of Columbia v. Heller, No. 07-290, slip op. at 54–55 (U.S. June 26, 2008). A foot-note added, for good measure,
that the Court’s list of “these presumptively lawful regulatory measures . . . does not purport to be exhaustive.” Id. at 55 n.26.
110
See id. at 63 (“[S]ince this case represents this Court’s first in-depth examination of the Second Amendment, one should
not expect it to clarify the entire field . . . .”).

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muster. Even if a reviewing court adopts the kind of intermediate standard of review urged by the
Solicitor General,111 it might simply apply the standard in a way that defers to governmental
judgments about the necessity of regulation. A more explicit articulation of the standard to be
employed could have discouraged lower court evasion of Heller, or at least made such evasion
somewhat easier to detect, if the Court was inclined to monitor lower courts for compliance,
something that it did not do following Lopez.112
Fourth, because the majority preemptively (perhaps ―peremptorily is a better
word) signaled its view that a number of federal gun control laws would not be called
into question by Heller,113 the most promising targets—local gun bans similar to the District’s
and restrictive state gun laws—lie beyond the immediate scope of Heller because the Second
Amendment remains outside those provisions of the Bill of Rights that have been incorporated
through the Fourteenth Amendment and applied to states.114 Thus, the true test of Heller’s reach
will turn on whether the Court will be willing to entertain one of the proliferating number of cases
challenging these laws.115 If the Court does not, then, like Lopez, Heller may end up having all
the robustness of a “but see” cite.116
On the other hand, there are several important differences that ought not be overlooked between
the situation following Lopez and that likely to follow Heller. Perhaps most important is the fact
that there was virtually no coordinated follow-up litigation to Lopez on the part of the public
interest bar. Most of the litigation was opportunistic: Lopez was cited in just about every appeal
on behalf of those convicted of federal criminal offenses, who, as a group, rarely present the most
sympathetic face. By contrast, several lawsuits were filed challenging gun control laws in other
communities within hours of the Heller opinion’s publication.117 Given the stakes, interest groups
challenging local laws have greater incentive than individual criminal defense attorneys to ensure
that only the best cases with the cleanest facts are brought.

111
Brief of the United States as Amicus Curiae, District of Columbia v. Heller, No. 07-290, at 8–9 (2008) (recommending
remand for analysis using intermediate scrutiny as the standard of review), available at http://www.scotusblog.com/wp/wp-
content/uploads/2008/01/us-heller-brief-1-11-08.pdf
112
Whatever one thinks of the substance of his test or how well that test implements the right guar-anteed by the Second
Amendment, Justice Breyer at least described in some detail the approach he would take. See Heller, No. 07-290, slip op. at
8–12 (Breyer, J., dissenting) (describing the ―interest-balancing approach he would employ in Second Amendment cases).
113
District of Columbia v. Heller, No. 07-290, slip op. at 54–55 (U.S. June 26, 2008)
114
United States v. Cruikshank, 92 U.S. 542 (1875) (refusing to apply the First and Second Amendments to the states). For
Heller’s discussion of Cruikshank and its continued significance in light of the Court’s incorporation of most provisions of
the Bill of Rights to the states, see Heller, No. 07-290, slip op. at 47–49 & nn.22–23.
115
The majority did drop a pointed note that the case first declining to apply the Second Amendment to the states “also said
that the First Amendment did not apply against the States and did not engage in the sort of Fourteenth Amendment inquiry
required by our later cases.” Id. at 48 n.23.
116
Cf. John Copeland Nagle, THE COMMERCE CLAUSE MEETS THE DELHI SANDS FLOWER-LOVING FLY, 97 MICH. L. REV. 174,
176 (1998) (“Whether Lopez marks a dramatic shift in Commerce Clause jurispru-dence or is instead destined to be a ‘but
see’ citation remains to be seen.”).
117
See, e.g., Maura Dolan, The 2nd Amendment: Reaction to the Court Ruling, L.A. TIMES, June 27, 2008, at A19, available
at http://www.latimes.com/news/nationworld/nation/la-na-legal27-2008jun27,0,3173451.story

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Moreover, there was relatively little public interest in Lopez or the Commerce
Clause. The Second Amendment, on the other hand, is among the most significant
provisions of the Bill of Rights from the standpoint of public engagement.118 The
public interest groups sponsoring follow-up litigation will have every incentive to
publicize lower court attempts to evade or blunt the effect of Heller and can try to
choose cert-worthy cases from among those to be litigated. Given popular interest,
the media and elected officials will have an incentive to monitor lower court implementation
of Heller. It is also possible that the lower courts’ hostility to an individual right to arms was
largely a product of the zeitgeist of an earlier era, carried forward as much by habit and stare
decisis as by any institutional interest. With the individual right theory of the Second Amendment
now not only endorsed by the Supreme Court, but also, thanks to extensive scholarship,
academically respectable (and, of course, popular with a very large majority of citizens) it may be
that today’s federal judiciary will be less hostile to the right than past courts. A related point is
that lower court judges may perceive the stakes differently in Heller than they did in Lopez.
Following Lopez to its logical conclusions suggested rethinking the foundations of the modern
New Deal state, if not mandating the unwinding of that state. At the very least, it presented an
opportunity for hundreds of criminal defendants to escape the consequences of their convictions.
Neither was an appealing option for even the most ardent advocate for limiting federal power, so
judges strenuously resisted following Lopez wherever it might lead—especially if it meant
revisiting the constitutional legitimacy of statutes like the 1964 Civil Rights Act. By contrast,
even reading Heller for all that it is worth, it is clear that significant regulations of private
firearms ownership—including various licensing regimes—are not necessarily presumptively
unconstitutional.
Finally, despite the unanimity of the Court in its conclusion that the Second Amendment
protected some individual right, the alternative limiting implementations of that right were
expressed as dissents, as opposed to partial concurrences. 119 29 Thus, there are not any narrow
concurring opinions whose authors essentially control the outcome of future cases; the alternative
approaches of the dissenters are, well, dissents. Imagine a situation, though, in which Justice
Breyer’s “interest-balancing” approach was a concurring opinion; lower courts seeking to limit
Heller might choose Justice Breyer’s standard of review in the absence of anything definite in the
majority opinion.120
In Lopez, for example, though the Court listed a number of factors bearing on whether a given
local activity “substantially affected” interstate commerce or not, the Court did not make clear
whether all factors had to be satisfied, or just some, or whether some factors were indispensible to
a find ing that regulated activity had a substantial effect on interstate commerce. In response,

118
See Jeffrey M. Jones, Public Believes Americans Have Right to Own Guns, GALLUP, Mar. 27, 2008,
http://www.gallup.com/poll/105721/Public-Believes-Americans-Right-Own-Guns.aspx (“A solid majority of the U.S. public,
73%, believes the Second Amendment to the Constitution guarantees the rights of Americans to own guns.”)
119
See, e.g., Heller, No. 07-290, slip op. at 1 (Stevens, J., dissenting); id., slip op. at 1 (Breyer, J., dissenting). Justice Breyer
seems to be feeling his way toward some sort of “undue burden” standard, though it is more of an “undue-burden-lite”
standard, as it is difficult to imagine him upholding a ban on abortion in the District of Columbia on the basis that one could
reach a friendlier jurisdiction for the price of a subway ticket. See id. at 30 (Breyer, J., dissenting) (“The adjacent states do
permit the use of handguns for target practice, and those States are only a brief subway ride away.”).
120
Likewise, Justice Stevens’s primary dissent is, if anything, less clear than Justice Scalia’s majori-ty opinion on the
appropriate standard of review. By contrast, Justice Breyer’s dissent is quite detailed.

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many lower court judges interpreted the opinion narrowly. The presence of any factor
distinguishing the statute under review from the Gun Free School Zones Act was deemed
sufficient to turn back the constitutional challenge.31 Which set of forces will prevail? It’s
impossible to say for certain, so we’ll equivocate and say, “it depends.” Bureaucrats tend to take
the path of least resistance, and least controversy. Though some foot-dragging is likely, it’s
equally likely that the kind of resistance demonstrated in response to Lopez won’t manifest itself
in response to Heller, as such resistance would likely produce far more controversy.
(3). Glenn H. Reynolds & Brannon P. Denning, HELLER’S FUTURE IN THE
LOWER COURTS, 102 Nw. U. L. Rev. Colloquy 406 (July 2008) CONCLUSION:
Though the civics-book formulation provides that the Supreme Court establishes clear principles
which lower courts should conscientiously apply, reality is considerably more complex and
frequently less satisfying. Unfortunately, as many lawyers can attest, the Supreme Court often
formulates principles that are not clear, and sometimes it fails to establish principles at all. Lower
courts, meanwhile, are not always conscientious in following the Supreme Court’s lead,
whether for reasons of bureaucratic rigidity or because they have their own agendas. Given
the Supreme Court’s light caseload, and the enormous number of cases in the lower courts, the
path taken by the federal judiciary can diverge considerably from that established by the Supreme
Court.121
Will Heller be such a case? As we have noted before, this depends—upon the behavior of
litigants, upon the predilections of lower court judges, and upon the degree and nature of
scrutiny that the process receives. For us, at least, it offers an opportunity to continue our study of
how Supreme Court precedent influences lower courts in an entirely new context, for which we
are properly grateful.

L. Rule 9(d) Pleading Official Document: Heller


Rule 9(d) Pleading Official Document or Act, Federal Rules of Civil Procedure: District of Columbia v.
Heller, U.S. Supreme Court, No. 07-290 (July 26, 2008) (The Second Amendment Protects An Individual Right
To Possess A Firearm Unconnected With Service In A Militia, And To Use That Arm For Traditionally Lawful
Purposes, Such As Self-Defense Within The Home.)
Plaintiff’s case pleads the Second Amendment protects an individual right to possess a firearm
unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense
outside the home in intrastate, interstate, and maritime travel.

M. The Unrepresented Civil Plaintiff, being a Seaman, is a Ward of the Admiralty


and Not an Attorney is Acting in the Capacity of a Private Attorney General under
the Civil RICO Act and in the Capacity of a Human Rights Defender in Accordance
with the U.N. DECLARATION ON HUMAN RIGHTS DEFENDERS (see Exhibit 12) Invoking

121
See Glenn Harlan Reynolds, Looking Ahead: October Term 2007, 2007 CATO SUP. CT. REV. 335, 350–52 (describing
the Supreme Court’s reduced influence on federal courts of appeals).

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44
PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN through the Treaty
Clause and through 28 U.S.C. § 1334 FEDERAL QUESTIONS.
I have a human rights complaint against the United States pending at the Inter-American Commission on
Human Rights, Petition No. 1142-06.
“Pleadings in this case are being filed by Plaintiff In Propria Persona, wherein pleadings are to be
considered without regard to technicalities. Propria, pleadings are not to be held to the same high standards of
perfection as practicing lawyers.” See Haines v. Kerner 92 Sct 594, also See Power 914 F2d 1459 (11th Cir1990),
also See Hulsey v. Ownes 63 F3d 354 (5th Cir 1995). also See In Re: HALL v. Bellmon 935 F.2d 1106 (10th Cir.
1991).”
Pro Se pleadings are to be considered without technicality; pro se litigants pleadings are not to be held to
the same high standards of perfection as lawyers. Picking v. Penna. Rwy. Co. 151 F.2d 240, (C.A.3, 1945);
Jenkins v. McKeithen, 395 US 411, 421 (1969); Haines v. Kerner, 404 U.S. 519 (1972) 92 S.Ct. 594; Puckett v.
Cox, 456 F.2d 233, (6th Cir. 1972).

N. Fed.R.Ev. Rule 406 Habit/Routine Practice of Treason Against the Constitution:


We the People Foundation, et al v. United States, et al, U.S. District Court for the
District of Columbia, No. 04-1211 (August 31, 2005) Has Lead the U.S. Department
of State to commit Treason By Giving Away 8 Islands of Alaska to Russia Without
the Advice or Consent of the U.S. Senate, the Governor of Alaska, the people of
Alaska, or event the people of the United States.
(1). Citing State Department Watch: Voice for the American Public’s
Interest:122
● Billions of barrels of oil and gas potential are in the hundreds of thousands of
square miles of American seabeds that the U.S. State Department is giving to
the Russians.
● President Bush has declared all offshore areas open for oil and gas
exploration.
● The State Department has given itself a special exception for the Russians
over U.S. seabeds in Arctic Ocean and Bering Sea.
● This State Department favor to the Russians is in the form of a secretly-
negotiated maritime boundary agreement. The public, State of Alaska, and
Congress were kept in the dark.
● The maritime boundary agreement puts eight American Alaskan islands and
their vast 200-mile seabeds on the Russian side.
● This is a special type of State Department foreign aid to authoritarian
regimes. Instead of cash, the State Department is giving away land and
massive seabeds.

122
www.statedepartmentwatch.org

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45
PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

● The State Department giveaway policy started with Secretary of State Henry
Kissinger in 1977 under his “détente” campaign. All Secretaries of State
since him have kept the policy.123
Henry Kissinger, as Secretary of State for President Gerald Ford, ordered the de facto giveaway
of sovereignty over 8 American Alaskan islands to the Soviet Union, along with the 200-mile
fishery conservation zones around them.
He made the order secretly upon his own declaration in January 1977 without consultation with
Congress, the State of Alaska, or the American public in general.
He ordered that a maritime boundary for the fishery conservation zones (later to be applied to
exclusive economic zones) between Alaska and Siberia would follow a line in the Bering Sea and
Arctic Ocean which was described in the treaty by which the United States obtained part of
modern-day Alaska from Russia in 1867. Kissinger’s line ignored vast developments and
additions to Alaska after 1867, including the American discovery and/or inclusion in the United
States of Wrangell, Herald, Bennett, Henrietta, and Jeannette Islands in the Arctic Ocean in 1881.
It placed these islands, plus Copper Island, Sea Lion Rock and Sea Otter Rock in the Bering Sea
(which were ceded to the United States in the 1867 treaty), on the Soviet/Russian side of the
maritime boundary. Thus effective sovereignty over them plus the tens of thousands of square
miles of fishery/exclusive economic zones were surrendered.
Kissinger asked for nothing in return for the United States.
The diplomatic message traffic is presented below.
January 21, 1977: Kissinger instructed his Undersecretary of State for Political Affairs Philip C.
Habib to wire to the U. S. Embassy in Moscow the declaration that the United States, for
maritime boundary purposes, would “respect the line set forth in the convention [treaty] signed at
Washington March 30, 1867. The Government of the United States of course anticipates that the
Government of the Union of Soviet Socialist Republics will follow a similar practice....”
January 25, 1977: The U. S. Embassy reported back that “...Khabarov [of the Soviet Treaty and
Legal Division] went over the note carefully and looked up Soviet text of the 1867 convention on
[sic] maritime boundaries between Alaska and Siberia. But he did not offer substantive comment.
He did ask, as a personal aside, whether it was not customary to negotiate or at least discuss such
matters before giving notice about enforcement provisions. He added that he was not aware that
the question had been discussed in connection with the bilateral fishing agreement signed in
November.”
February 24, 1977: The U. S. Embassy reported the position of the Soviet Government: “The
Government of the USSR has taken into account the intention of the US side, in setting forth its
fisheries jurisdiction, to respect the line established by the convention signed April [sic] 18(30),
1867 in Washington, D.C. The Government of the USSR in carrying out its measures ensuing
from the decree of the presidium of the Supreme Soviet of December 10, 1976, Temporary
Measures for the Protection of Living Resources and Regulation of Fisheries in Areas Adjacent to
the USSR Coast, intends to adhere to the same line of the Convention of April 18, 1867, in the
Arctic Ocean, Chukchi, and the Bering Seas.”
This policy has continued without any change under Presidents Jimmy Carter, Ronald Reagan,

123
www.statedepartmentwatch.org/KissingerGiveaway.htm

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46
PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

George H. W. Bush, William Clinton, and George W. Bush. All negotiations have been
conducted in strict secrecy without the knowledge and/or participation of Congress, the State of
Alaska, and the American public. No known quid pro quo for the United States has been
identified.

(2). The diplomatic message traffic of January 21, 1977

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS


47
PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS


48
PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

(3). The diplomatic message traffic of January 25, 1977

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS


49
PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS


50
PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

(4). The diplomatic message traffic of February 24, 1977

PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS


51
PART 1. MANDATORY JUDICIAL NOTICE OF ADJUDICATIVE FACTS

See also http://www.statedepartmentwatch.org/AlaskaGovSenAG.htm


http://www.statedepartmentwatch.org/AlaskaAGConfirm.htm
http://www.alamo-girl.com/0302.htm
http://www.statedepartmentwatch.org/HidingFromCongress.htm
http://www.statedepartmentwatch.org/AlaskaGiveaway.htm
See generally as relevant evidence http://www.statedepartmentwatch.org

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52
PART 2. THE PRELIMINARIES

Part 2. The Preliminaries


A. Statutory Waiver of Sovereign Immunity
(1). 46 CFR § 1.01–30 Judicial review.
(a) Nothing in this chapter shall be construed to prohibit any party from seeking judicial review of any
Commandant’s decision or action taken pursuant to the regulations in this part or part 5 of this chapter with
respect to suspension and revocation proceedings arising under 46 U.S.C. chapter 77.
(2). 46 CFR § 1.03–15 General.
(a) Any person directly affected by a decision or action taken under this chapter or under chapter III of this title,
by or on behalf of the Coast Guard, except for matters covered by subpart J of part 5 of this chapter dealing with
suspension-and-revocation hearings, shall follow the procedures contained in this section when requesting that the
decision or action be reviewed, set aside, or revised.
B. Seaman’s Suit Under 28 U.S.C. § 1916
“In all courts of the United States, seamen may institute and prosecute suits and appeals in their own names and
for their own benefit for wages or salvage or the enforcement of laws enacted for their health or safety without
prepaying fees or costs or furnishing security therefor.”
Plaintiff’s case is undeniably about safety for the U.S. Merchant Seaman in the maritime environment and
in open society. The legislative history of the Seamen’s Suit Law does not subject the fee exemption to conditions
of indigency or the filing of in forma pauperis. To imposes such conditions is an unconstitutional act of prior
restraint of a statutory right. I cannot be sustained that Congress giveth a statutory right and the Courts taketh it
away by fudicial fiat. That fiat invokes the Doctrine of Unconstitutional Conditions.
Notes on the Seaman Suit Law
June 12, 1917, ch. 27, Sec. 1, 40 Stat. 157 (H.R. 11; Pub.L.No. 21: An Act Making appropriations for sundry
civil expenses of the Government for the fiscal year ending June thirtieth, nineteen hundred and eighteen, and for
other purposes.) — Provided further, That courts of the United States shall be open to seamen, without furnishing
bonds or prepayment of or making deposits to secure fees or costs, for the purpose of entering and prosecuting
suit or suits in their own name and for the own benefit for wages or salvage and to enforce laws made for their
health and safety.
July 1, 1918, ch. 113, Sec. 1, 40 Stat. 683 (H.R. 12441; Pub.L.No. 181: An Act Making appropriations for
sundry civil expenses of the Government for the fiscal year ending June thirteenth, nineteen hundred and
nineteen, and for other purposes.) — Provided, That courts of the United States, including appellate courts,
hereafter shall be open to seamen, without furnishing bonds or prepayment of or making deposit to secure fees or
costs, for the purpose of entering and prosecuting suit or suits in their own name and for their own benefit for
wages or salvage and to enforce laws made for their health and safety.
June 25, 1948, ch. 646, 62 Stat. 955 (H.R. 3214; Pub.L.No. 773: An Act: To revise, codify, and enact into law
title 28 of the United States Code entitled “Judicial Code and Judiciary”) — 28 U.S. 1916: In all courts of the
United Stats, seamen may institute and prosecute suits and appeals in their own names and for their own benefit
for wages or salvage or the enforcement of laws enacted for their health or safety without prepaying fees or costs
or furnishing security therefor.
C. Seamen are Wards of the Admiralty
The federal courts and the Bush Administration by all appearances are abandoning the Common Defence
obligation of the U.S. Constitution as well as abandoning the duty to protect seamen against wrongful acts of
shipping companies, seafaring unions, and even against wrongful acts of the U.S. Government.

53 PRELIMINARIES
PART 2. THE
PART 2. THE PRELIMINARIES

Boyd v. United States, 116 U.S. 616, 635 (1886):


“It is the duty of the courts to be watchful for the constitutional rights of the citizen, and against any
stealthy encroachments thereon. Their motto should be obsta principiis.” 124
Chandris, Inc. v. Latsis, No. 94-325, ___ U.S. ___ (1995):
In Warner v. Goltra, 293 U.S. 155 (1934), we stated that “a seaman is a mariner of any degree, one who
lives his life upon the sea.” Id., at 157. Similarly, in Norton v. Warner Co., 321 U.S. 565, 572 (1944), we
suggested that “ ‘every one is entitled to the privilege of a seaman who, like seamen, at all times
contributes to the labors about the operation and welfare of the ship when she is upon a voyage’ “
(quoting The Buena Ventura, 243 F. 797, 799 (SDNY 1916)).
Isbrandtsen Co. v. Johnson, 343 U.S. 779, 782-784 (1952):
Whenever congressional legislation in aid of seamen has been considered here since 1872, this Court has
emphasized that such legislation is largely remedial and calls for liberal interpretation in favor of the
seamen. The history and scope of the legislation is reviewed in Aguilar v. Standard Oil Co., 318 U.S.
724, 727 -735 (1943), and notes. “Our historic national policy, both legislative and judicial, points the
other way [from burdening seamen]. Congress has generally sought to safeguard seamen’s rights.”
Garrett v. Moore-McCormack Co., 317 U.S. 239, 246 (1942). “[T]he maritime law by inveterate tradition
has made the ordinary seaman a member of a favored class. He is a ‘ward of the admiralty,’ often
ignorant and helpless, and so in need of protection against himself as well as others. . . . Discrimination
may thus be rational in respect of remedies for wages.” Warner v. Goltra, 293 U.S. 155, 162 (1934);
Cortes v. Baltimore Insular Line, 287 U.S. 367, 375, 377 (1932); Wilder v. Inter-Island Navigation Co.,
211 U.S. 239, 246-248 (1908); Patterson v. Bark Eudora, 190 U.S. 169 (1903); Brady v. Daly, 175 U.S.
148, 155-157 (1899). “The ancient characterization of seamen as `wards of admiralty’ is even more
accurate now than it was formerly.” Robertson v. Baldwin, 165 U.S. 275, 287 (1897); 5 Harden v.
Gordon, 11 Fed. Cas. No. 6,047, 2 Mason (Cir. Ct. Rep.) 541, 556.
Statutes which invade the common law or the general maritime law are to be read with a presumption
favoring the retention of longestablished and familiar principles, except when a statutory purpose to the
contrary is evident. No rule of construction precludes giving a natural meaning to legislation like this that
obviously is of a remedial, beneficial and amendatory character. It should be interpreted so as to effect its
purpose. Marine legislation, at least since the Shipping Commissioners Act of June 7, 1872, 17 Stat. 262,
should be construed to make effective its design to change the general maritime law so as to improve the
lot of seamen. “The rule that statutes in derogation of the common law are to be strictly construed does
not require such an adherence to the letter as would defeat an obvious legislative purpose or lessen the
scope plainly intended to be given to the measure.” Jamison v. Encarnacion, 281 U.S. 635, 640 (1900);
Texas & P. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437 (1907), 440. The direction of the current
of maritime legislation long has been evident on its face.
“In this country these notions were reflected early, and have since been expanded, in legislation designed
to secure the comfort and health of seamen aboard ship, hospitalization at home and care abroad. . . . The
legislation . . . gives no ground for making inferences adverse to the seaman or restrictive of his rights. . . .
Rather it furnishes the strongest basis for regarding them broadly, when an issue concerning their scope
arises, and particularly when it relates to the general character of relief the legislation was intended to
secure.” Aguilar v. Standard Oil Co., 318 U.S. 724, 728-729 (1943).

124
The Latin phrase, obsta principiis, translates to “oppose beginnings” or “oppose first attempts”.

54
PART 2. THE PRELIMINARIES
PART 2. THE PRELIMINARIES

Nicholas Schreiber v. K-Sea Transportation Corp. New York, Supreme Court, Appellate Division, April 25,
2006; 5410N Index 104992/04 107571/04:
Petitioner, as a ward of the admiralty, is entitled to heightened protection from the courts. There
is a long-standing policy to safeguard the rights of seamen, whose contracts are traditionally
viewed with solicitude:
They are emphatically the wards of the admiralty; and though not technically
incapable of entering into a valid contract, they are treated in the same manner, as
courts of equity are accustomed to treat young heirs, dealing with their
expectancies, wards with their guardians, and cestuis que trust with their trustees.
. . . If there is any undue inequality in the terms, any disproportion in the bargain,
any sacrifice of rights on one side, which are not compensated by extraordinary
benefits on the other, the judicial interpretation of the transaction, is that the
bargain is unjust and unreasonable, that advantage has been taken of the situation
of the weaker party, and that pro tanto the bargain ought to be set aside as
inequitable. (Garrett v. Moore-McCormack Co., 317 U.S. at 246, 1942 AMC at
1650, quoting Harden v. Gordon, 2000 AMC 893, 902, 11 Fed Cas 480, 485
[1823])
D. Estoppel and Seamen’s Rights
Estoppel is a legal principle that prevents a person from asserting or denying something in court that
contradicts what has already been established as the truth.
Collateral Estoppel is a legal doctrine that prevents the relitigation of facts or issues that were previously
resolved in court.
Equitable Estoppel (or, estoppel in pais) is a type of estoppel that bars a person from adopting a position
in court that contradicts his or her past statements or actions when that contradictory stance would be unfair to
another person who relied on the original position.
Estoppel by Silence is a type of estoppel that prevents a person from asserting something when she had
both the duty and the opportunity to speak up earlier, and her silence put another person at a disadvantage.
Estoppel that arises when a party is under a duty to speak but fails to do so. — also termed estoppel by standing
by; estoppel by inaction.
Promissory Estoppel is a legal doctrine used in American law as well as other legal systems, although
other legal systems may call it by a different name. Promissory estoppel allows a party to recover on a promise
even though that promise was made without consideration. Essentially it prevents, or estops, a person from
arguing that his or her promise should not be upheld. It also requires that reliance on the promise was reasonable,
and that the person trying to enforce the promise actually relied on the promise to his or her detriment. The
precise legal requirements for promissory estoppel may vary between jurisdictions.
Black’sLaw Dictionary defines promissory estoppel as:
“The principle that a promise made without consideration may nonetheless be enforced to prevent
injustice if the promisor should have reasnably expected the promissee to rely on the promise and
if the promisee did actually rely on the promise to his or her detriment.”
“The doctrine of promissory estoppel is equitable in origin and nature and arose to provide a remedy through the
enforcement of a gratuitous promise. Promissory is distinct from equitable estoppel in that the representation at
issue is promissory rather than a representation of fact. ‘Promissory estoppel and estoppel by conduct are two
entirely distinct theories. The latter does not require a promise.’” Ann Taylor Schwing, CALIFORNIA AFFIRMATIVE
DEFENSE § 34:16, at 35 (2d ed. 1996)(quoting Division of Labor Law Enforcement v. Transpacific Transp. Co.,
88 Cal.App. 3d 823, 829 (Cal.Ct.App. 1979))

55 PRELIMINARIES
PART 2. THE
PART 2. THE PRELIMINARIES

The United States Constitution is a promissory estoppel barring the States and the Federal Government
from exceeding the limits contractually imposed on the States and the Federal Government so as not to infringe
upon the freedoms, rights, and duties of the People. “Making constitutional rights inalienable because citizens
may undervalue the worth of those rights to themselves would be classic paternalism overruling individuals’
choices for their own good. Individuals’ choices may diverge from their “best” interests for many reasons: for
example, because they under-assess risk or under-value their long-term interests. Choices to waive constitutional
rights are no exceptions; invalidating such choices, even if perfectly voluntary, compels citizens to hang onto their
rights for their own good.” Kathleen M. Sullivan’s, Unconstitutional Conditions, 10 Harv.L.Rev. 1413 at 1480
(May 1989).
Black’s Law Dictionary defines EQUITABLE ESTOPPEL:
1. A defensive doctrine preventing one party [United States] from taking unfair advantage of
another [Pro Se Plaintiff] when, through false language or conduct, the person to be estopped
[Counsel for Defense & the United States] has induced another person [District Court judge &
the U.S. Congress] to act in a certain way, with the result that the other person [Pro Se Plaintiff &
the American People] has been injured in some way [Case dismissed with prejudice & the
American People left defenseless against the common criminal and now clandestine terrorists
operating in the United States through gun control laws]. ! This doctrine is founded on principles
of fraud. The five essential elements for this type of estoppel are:
(1) that there was a false representation or concealment of material facts,
(2) that the representation must have been known to be false by the party making
it, or the party must have been negligent in not knowing its falsity,
(3) that it was believed to be true by the person to whom it was made,
(4) that the party making the representation must have intended that it be acted
on, or the person acting on it must have been justified in assuming this intent,
and,
(5) that the party asserting estoppel acted on the representation in a way that will
result in substantial prejudice unless the claim of estoppel succeeds. — Also
termed estoppel by conduct; estoppel in pais.
(1). Huseman v. Icicle Seafoods, Inc., et al, In Rem, ; Ninth Circuit No. 04-
35655 (December 27, 2006)
p. 19912-19913:
Circuit Judge McKeown:
II. EQUITABLE ESTOPPEL
[4] Equitable estoppel, sometimes called fraudulent concealment, “focuses primarily on the
actions taken by the defendant in preventing a plaintiff from filing suit. . . . [including] the
plaintiff’s actual and reasonable reliance on the defendant’s conduct or representations.” Santa
Maria, 202 F.3d at 1176. For example, “conduct or representations by the defendant-employer
which tend to lull the plaintiff into a false sense of security, can estop the defendant from raising
the statute of limitations, on the general equitable principle that no man may take advantage of his
own wrong.” Atkins v. Union Pac. R.R., 685 F.2d 1146, 1149 (9th Cir. 1982) (internal quotation
marks and alterations omitted).

56
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PART 2. THE PRELIMINARIES

p. 19918-19919:
III. WARDS OF THE COURT DOCTRINE
...
[9] The “wards of the court” doctrine was created to account for the “special circumstances
attending [the seaman’s] calling,” because the “seaman, while on his vessel, is subject to the
rigorous discipline of the sea and has little opportunity to appeal to the protection from abuse of
power which the law makes readily available to the landsman.” Socony-Vacuum Oil Co. v. Smith,
305 U.S. 424, 430-31 (1939). “The physical conditions under which the seaman labors are
extremely hazardous.” Cal. Home Brands, Inc. v. Ferreira, 871 F.2d 830, 837 (9th Cir. 1989).
[10] Invocation of the “wards of the court” doctrine is to be linked to the specific policy reasons
for its creation. For example, in Socony, the Court declined to apply the common law rule of
assumption of risk, and instead used the rule of comparative negligence, because it recognized
that seamen are often in the unusual position of having to make quick decisions under hazardous
circumstances using whatever equipment they are given. See 305 U.S. at 431-32.
-----------------------
p. 19926
Circuit Judge Reinhardt, dissenting:
I. SPECIAL PROTECTIONS DUE TO SEAMEN
Equitable Estoppel in General
The Supreme Court has declared that courts should “avoid, within reasonable limits, the application of
rules of the common law which would affect [seamen] harshly because of the special circumstances
surrounding their calling.” Socony-Vacuum Oil Co. v. Smith, 305 U.S. 424, 431 (1939). Any
“ambiguities or doubts are resolved in favor of the seaman.”125 Vaughan v. Atkinson, 369 U.S. 527, 532
(1962). In no area do seamen get more protection than in the context of recovery for injuries. Thorman,
421 F.3d at 1097.

p. 19930
The ward of the court doctrine exists, in part, because seamen are too “poor, friendless, and improvident”
to assert their rights. Vaughan, 369 U.S. at 531. It also exists “because they are by the peculiarity of their
lives liable to sudden sickness from change of climate, exposure to perils, and exhausting labor.”
Chandris v. Latsis, 515 U.S. 347, 354-55 (1995).

p. 19931
Perhaps the majority’s inexplicable hostility to the legal protections due injured seamen derives in part
from a mistaken belief that seamen are no longer the “ignorant and helpless” men of old. Johnson v.
Offshore Tankers Svc. Inc., 789 F.2d 1417, 1419 (9th Cir. 1986). However, the Supreme Court reaffirmed
the ward of the court doctrine only a decade ago and the Ninth Circuit did so even more recently.
Chandris v. Latsis, 515 U.S. 347, 354 (1995); Orsini, 247 F.3d at 959.

125
Plaintiff Hamrick’s emphasis.

57 PRELIMINARIES
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PART 2. THE PRELIMINARIES

(2). Luttrell v. United States, et al., Ninth Circuit. 644 F.2d 1274 (Dec. 4, 1980)
Seamen as wards of admiralty are wards of the court, not the Executive Branch of the
government. Furthermore, any such relationship that might be claimed to exist with the executive
would be extinguished once the seamen brought suit against the United States. (See, Norris, THE
LAW OF SEAMEN. Volume I, Chapter 24, page 593 et seq., Sections 501, 503, and 512).
(b) 28 U.S.C. §§ 2201 and 2202 create additional remedies in the form of declaratory judgment
relief for federal litigants, but do not in and of themselves confer subject-matter jurisdiction on
the courts. Wells v. United States, 280 F.2d 275 (9th Cir. 1960).
(c) 42 U.S.C. §§ 1983 and 1985 when coupled with 28 U.S.C. § 1343, confer jurisdiction for
actions claiming the deprivation of civil rights under the color of state law or by conspiracy.
(d) 18 U.S.C. §§ 201, 202, 205, 208, 1001 and 1008 define crimes under federal law and do not
confer civil subject-matter jurisdiction.
Perhaps, under Rule 60(b) of the Federal Rules of Civil Procedure, the district court might have
obtained jurisdiction over appellant’s claim for relief because of newly discovered evidence or
the claim (if the complaint can be so read) that the prior judgment was obtained through extrinsic
or intrinsic fraud.
Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or
deception practiced on him by his opponent, as by keeping him away from court, . . .” United
States v. Throckmorton, 98 U.S. 61, 65-66, 25 L.Ed. 93 (1878).
The concern of the court in Throckmorton and its progeny was that because of this type of fraud,
the injured party is prevented from fairly presenting his claim or defenses or from introducing
relevant or material evidence. Id, at 66; see also 7 MOORE’S FEDERAL PRACTICE, Second Edition,
§ 60.37 (1979).

58
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PART 2. THE PRELIMINARIES

E. Resurrecting Neglected Federal Laws For Second Amendment Purposes


(1). 10 U.S.C. § 311. Militia: composition and classes
(2). 10 U.S.C. § 312. Militia duty: exemptions
(3). 10 U.S.C. § 332. Use of militia and armed forces to enforce Federal
authority
(4). 10 U.S.C. § 333. Interference with State and Federal law
(5). 10 U.S.C. § 334. Proclamation to disperse
(6). 10 U.S.C. § 351. Arming of American Vessels: During war or threat to
national security
(7). 10 U.S.C. § 7851. Composition of the Naval Militia
(8). 10 U.S.C. § 7854. Availability of material for Naval Militia
(9). 16 U.S.C. § 412. National Military Parks; Camps for military instruction;
regulations for militia
(10). 18 USC § 245(b)(1)(B). Federally Protect Activities
(11). 23 U.S.C. § 401. Highway Safety: Authority of the Secretary
(12). 23 U.S.C. § 402. Highway Safety: Highway Safety Programs
(13). 23 U.S.C. § 407. Highway Safety: Innovative Project Grants
(14). 32 U.S.C. § 109. National Guard; Maintenance of other troops
(15). 33 U.S.C. § 383. Resistance of Pirates by Merchant Vessels
(16). 42 USC § 2000a. Prohibition Against Discrimination or Segregation in
Places of Public accommodation
(17). 42 USC § 2000a-1. Prohibition Against Discrimination or Segregation
Required by any Law, Statute, Ordinance, Regulation, Rule or Order of a
State or State Agency
(18). 42 USC § 2000a-2. Prohibition Against Deprivation of, Interference
With, and Punishment for Exercising Rights and Privileges Secured by
Section 2000a or 2000a-1 of this title
(19). 42 USC § 2000a-5. Civil actions by the Attorney General
(20). 42 USC § 2000bb. Congressional Findings and Declaration of Purposes
(21). 42 USC § 2000bb-1. Free Exercise of Religion Protected

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F. Basis for Jurisdiction


(1). Under 28 U.S.C. § 1331, Federal Questions
The U.S. District Court for the District of Columbia has original jurisdiction in this civil action arising
under the United States Constitution, laws, or treaties of the United States.
(2). Under 42 U.S.C. § 1985 Conspiracy to Interfere With Civil Rights
(2) Obstructing Justice. “If two or more persons in any State or Territory conspire to deter, by force,
intimidation, or threat, any party or witness in any court of the United States from attending such court, or from
testifying to any matter pending therein, freely, fully, and truthfully; . . . or if two or more persons conspire for the
purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or
Territory, with intent to deny to any citizen the equal protection of the laws, . . . for lawfully enforcing, or
attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws.”
(3). Under 42 U.S.C. § 1985 Conspiracy to Interfere With Civil Rights
(3) Depriving Persons of Rights or Privileges. If two or more persons in any State or Territory conspire or go in
disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly,
any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the
laws; . . . the party so injured or deprived may have an action for the recovery of damages occasioned by such
injury or deprivation, against any one or more of the conspirators.
(4). Under 42 U.S.C. § 1981 Equal Rights Under the Law
(a). Statement of Equal Rights. All persons within the jurisdiction of the United States shall have the same right
in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and
equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens,
and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no
other.
(5). Under 42 U.S.C § 1982. Property Rights of Citizens
All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white
citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.
(6). Under 42 U.S.C. § 1983 Civil Action for Deprivation of Rights
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper
proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in
such officer’s judicial capacity,126 injunctive relief shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to
the District of Columbia shall be considered to be a statute of the District of Columbia.

126
Judges are not immune from liability for administrative actions that violate federal law. The collection of filing fees falls
under the administrative capacity, not the judicial capacity of the judicial officer (i.e., judges and court clerks). Therefore
injunctive relief is warranted in the Plaintiff’s case herein.

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(7). Under 42 U.S.C. § 2000h–2. Intervention by Attorney General; Denial of


Equal Protection on Account of . . . National Origin
Whenever an action has been commenced in any court of the United States seeking relief from the denial of equal
protection of the laws under the fourteenth amendment to the Constitution on account of race, color, religion, sex
or national origin, the Attorney General for or in the name of the United States may intervene in such action upon
timely application if the Attorney General certifies that the case is of general public importance. In such action the
United States shall be entitled to the same relief as if it had instituted the action.
(8). Under 42 U.S.C. § 1986. Action for Neglect to Prevent
Every person who, having knowledge that any of the wrongs conspired to be done, and mentioned in section 1985
of this title, are about to be committed, and having power to prevent or aid in preventing the commission of the
same, neglects or refuses so to do, if such wrongful act be committed, shall be liable to the party injured, or his
legal representatives, for all damages caused by such wrongful act, which such person by reasonable diligence
could have prevented; and such damages may be recovered in an action on the case; and any number of persons
guilty of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of any party
be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action
therefor, and may recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if
there be one, and if there be no widow, then for the benefit of the next of kin of the deceased. But no action under
the provisions of this section shall be sustained which is not commenced within one year after the cause of action
has accrued.
(9). Under 18 U.S.C. § 1988. Proceedings in Vindication of Civil Rights
(a) Applicability of Statutory and Common Law. The jurisdiction in civil and criminal matters conferred on the
district courts by the provisions of titles 13, [The Judiciary, today’s Title 28 of the U.S. Code], 127 24, [Civil
Rights, today’s Title 42, Chapter 21 of the U.S. Code],128 and 70 [Crimes, today’s Title 18 of the U.S. Code] 129 of
the Revised Statutes for the protection of all persons in the United States in their civil rights, and for their
vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws
are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient
in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as
modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such
civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United
States, shall be extended to and govern the said courts in the trial and disposition of the cause, and, if it is of a
criminal nature, in the infliction of punishment on the party found guilty.
(10). Under 28 U.S.C. § 1343(a), Civil Rights and Elective Franchises
The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any
person:
(1) To recover damages for injury to his person or property, or because of the deprivation of any right or privilege
of a citizen of the United States, by any act done in furtherance of any conspiracy mentioned in section 1985 of
Title 42;

127
REVISED STATUTES OF THE UNITED STATES 1873-1874, 2nd Edition, First Session of the 43rd Congress. U.S. Government
Printing Office, Washington, DC.
128
Id.
129
Id.

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(2) To recover damages from any person who fails to prevent or to aid in preventing any wrongs mentioned in
section 1985 of Title 42 which he had knowledge were about to occur and power to prevent;
(3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of
any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress
providing for equal rights of citizens or of all persons within the jurisdiction of the United States;
(4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the
protection of civil rights, including the right to vote.
(11). Under 18 U.S.C. § 1964 Civil Remedies [for Racketeering]
(a) The district courts of the United States shall have jurisdiction to prevent and restrain violations of 18 U.S.C. §
1962 by issuing appropriate orders, including, but not limited to:
1. ordering any person to divest himself of any interest, direct or indirect, in any enterprise;
2. imposing reasonable restrictions on the future activities or investments of any person, including, but
not limited to, prohibiting any person from engaging in the same type of endeavor as the enterprise
engaged in, the activities of which affect interstate or foreign commerce; or ordering dissolution or
reorganization of any enterprise, making due provision for the rights of innocent persons under 18 U.S.C.
§ 1964(a).
G. Exceptions to Jurisdiction
(1). As to 28 U.S.C. § 2680(a) it is my claim that the U.S. Coast Guard did not exercise due care in the
execution of the Final Agency Action denying my application for Second Amendment rights as a seaman
requesting the National Open Carry Handgun endorsement on the Merchant Mariner’s Document in due regard to
mandatory small arms training in accordance with OPNAVINST 3591.1C: SMALL ARMS TRAINING AND
QUALIFICATION, dated May 13, 2002; ENCLOSURE (3) QUALIFICATION CRITERIA FOR SECURITY PERSONNEL
(AFLOAT) dated May 13, 1992,130 because the Coast Guard has a ministerial duty to process, review, and approve
and not a discretionary duty to deny my application for the Second Amendment application for the endorsement
to the Merchant Mariner’s Document as mandated by the Coast Guard’s Oath of Office to support and defende
the Constitution of the United States. The Bill of Rights which includes the Second Amendment in included in the
“support and defend the Constitution” clause by inference under constitutional law.
28 U.S.C. § 2680 The provisions of Title 28, Part VI, Chapter 171 – Tort Claims Procedure and section
1346 (b) of Title 28 shall not apply to—
(a) Any claim based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation, whether or not
such statute or regulation be valid, or based upon the exercise or performance or
the failure to exercise or perform a discretionary function or duty on the part of
a federal agency or an employee of the Government, whether or not the
discretion involved be abused.

130
Current edition is OPNAVINST 3591.1E: SMALL ARMS TRAINING AND QUALIFICATION, dated February 20, 2007;
ENCLOSURE (1) RANGE REGULATIONS; ENCLOSURE (2) SMALL ARMS DRY FIRE TRAINING PROCEDURE AND GUIDELINES;
ENCLOSURE (3) QUALIFICATIONS FOR PISTOLS – M9 Beretta Pistol and the M11 9mm Compact Pistol (Selection for U.S.
civilian Able Seamen are limited to the M9 9mm Beretta Pistol; ENCLOSURE (4) QUALIFICATIONS FOR RIFLE - M14, M16
(series) rifles, M4A1, M727, and Mk-18 Carbines, Rifle selection for U.S. civilian Able Seamen limited to the M14.;
ENCLOSURE (5) QUALIFICATION CRITERIA FOR SHOTGUNS - 12-gauge 00 buckshot and slugs; ENCLOSURE (6) QUALIFICATION
CRITERIA FOR LIGHT, MEDIUM AND HEAVY MACHINE GUN PERFORMANCE E VALUATION - M60 and MK43 (variants) 7.62MM
medium machine guns, M240 (variants) 7.62MM medium machine guns, and MK46 Mod 0 (M249 Squad Automatic
Weapon (SAW)) 5.56MM light machine guns (not available to civilian Able Seamen).

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(h) Any claim arising out of assault, battery, false imprisonment, false arrest,
malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit,
or interference with contract rights: Provided, That, with regard to acts or
omissions of investigative or law enforcement officers of the United States
Government, the provisions of this chapter and section 1346 (b) of this title
shall apply to any claim arising, on or after the date of the enactment of this
proviso, out of assault, battery, false imprisonment, false arrest, abuse of
process, or malicious prosecution. For the purpose of this subsection,
“investigative or law enforcement officer” means any officer of the United
States who is empowered by law to execute searches, to seize evidence, or to
make arrests for violations of Federal law.
(k) Any claim arising in a foreign country.
It is my claim that the U.S. Coast Guard DID NOT exercise due care in regard to 28 U.S.C. § 2680(a)
because the Coast Guard DID NOT have discretion, in other words, the Coast Guard did not have the
discretionary duty to deny my Second Amendment application for the National Open Carry Handgun
endorsement on the Merchant Mariner’s Document. That duty was ministerial based upon their Oath of Office
to support and defence the Constitution of the United States and that includes the Second Amendment as
part of the Constitution through the Bill of Rights.
In like manner to the fruit of the poison tree under the Fourth Amendment it is also my claim that since
the U.S. Coast Guard cannot seek safe harbor under 28 U.S.C. § 2680(a) neither can they present a defense under
28 U.S.C. § 2680(h) and (k) Exception because their investigation of me through the NCIS, pulling me off a U.S.
Government vessel of the Preposition Fleet anchored off the coast of Lithuania (the seizure), and placing me in
the Hotel Klaipėda for 12 days (false imprisonment) because the U.S. Coast Guard misinterpreted a
publishable article on the Second Amendment (abuse of process and malicious prosecution) because the
offending incidents was initiated by the U.S. Coast Guard in Washington, DC and the violation of the
“Fifth Amendment” taking and Fourth Amendment “seizure” occurred aboard a U.S. Government
vessel, sovereign territory of the United States under maritime law. Judge Ellen Segal Huvelle of the
U.S. District Court for DC ignored these facts in my first two companion cases, Nos. 02-1434 and 02-
1435 fraudulently and criminally misconstruing the facts has occurring in a foreign country as an excuse
to dismiss my cases. This dismissal with prejudice is prima facie evidence of criminal misconduct on the
part of Judge Huvelle. The federal courts open hostility to unrepresented civil plaintiffs and to Second
Amendment cases advocating individual rights are well documented in academic law review articles.
Violating 28 U.S.C. § 2680(a) negates all other Exceptions!

H. Venue – United States as Defendant


Because the United States is the Defendant in this Tort Claims Case the U.S. District Courts in Batesville,
Arkansas (via Little Rock, Arkansas) and the District of Columbia both have original jurisdiction under 28 U.S.C.
§ 1402(b) and 28 U.S.C § 1346(b)(1). Both District Courts have proven themselves to be prejudiced and hostile to
my Seventh Amendment right to a civil jury trial. However, to set a stronger precedence I select the U.S. District
Court for the District of Columbia for Venue.
I. Representations to the Court
In accordance with Rule 11(b) Plaintiff hereby certifies that by presenting to the U.S. District Court for
the District of Columbia this civil action that it is Plaintiff’s affirmation it is the best of his knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances:

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(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary
delay or needless increase in the cost of litigation;
(2) the claims, defenses, and other legal contentions herein are warranted by existing law or by a
nonfrivolous argument for the extension, modification, or reversal of existing law or the
establishment of new law;
(3) the allegations and other factual contentions have evidentiary support (i.e., the related case as
noted above) or, if specifically so identified, are likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery; and (4) the denials of factual
contentions are warranted on the evidence or, if specifically so identified, are reasonably based on
a lack of information or belief.
J. Standing to Sue as a Private Right of Action under the AMERICAN DECLARATION
ON THE RIGHTS AND DUTIES OF MAN through the Treaty Clause and 28 U.S.C. § 1331
Federal Questions
See also Paul B. Stephan, PRIVATE REMEDIES FOR TREATY VIOLATIONS AFTER SANCHEZ-LLAMAS 11 Lewis
& Clark L. Rev. 65 (2007).
I have standing to sue the United States as a Private Right of Action under the Treaty Clause because (1)
the U.S. Coast Guard, the Federal Agencies of the Executive Branch and the Legislative Branch from 2002 to the
present have unconstitutionally denied my First Amendment right to petition the government for redress of
grievances, and (2) the Federal Courts have unconstitutionally denied my Seventh Amendment right to a civil jury
trial through the unconstitutional use of Summary Judgments on Motions to Dismiss even though I am:
(a). a victim of human rights abuses by the U.S. Government in a human rights
complaint now pending at the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
Petition No. 1142-06. Because I am defending my “human rights” I have become
a HUMAN RIGHTS DEFENDER by United Nations standards (DECLARATION ON THE
RIGHT AND RESPONSIBILITY OF INDIVIDUALS, GROUPS AND ORGANS OF SOCIETY TO
PROMOTE AND PROTECT UNIVERSALLY RECOGNIZED HUMAN RIGHTS AND
FUNDAMENTAL FREEDOMS, United Nations General Assembly Resolution
A/RES/53/144 dated March 8, 1999), by enforcing the AMERICAN DECLARATION
ON THE RIGHTS AND DUTIES OF MAN.

(b). an unrepresented civil plaintiff with a civil RICO Act case against the U.S.
Government acting in the capacity of a PRIVATE ATTORNEY GENERAL prosecuting
extortion under color of official right, 18 U.S.C. § 1951(a) and (b)(2), (Hobbs
Act);
(c). a victim of obstruction of justice by the federal courts and federal law
enforcement agencies.
(d). a victim of extortion under color of law, 18 U.S.C. § 872;
(e). a victim of constitutional rights violations by the U.S. Government.

K. Standing to Sue for Cause and Not for the Status of the Plaintiff for Violations of
My Own Civil Rights, Constitutional Rights, and Human Rights
But see Chisholm v. Georgia, 2 U.S. 419 at 466 (1793) (Justice Wilson) (Causes, and not parties to
causes, are weighed by justice, in her equal scales: On the former solely, her attention is fixed: To the latter, she
is, as she is painted, blind.)

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In rebuttal to the U.S. Attorney’s Manual, Title 4: Civil Resource Manual § 35 Standing to Sue under the
“case or controversy” clause of Article III of the Constitution there is enough “plausible” evidence to prove that I
have suffered a distinct and palpable injury as a result of the putatively illegal conduct of the officers of the U.S.
Coast Guard; of judges and court clerks in the administrative functions where they do not have immunites of any
kind from suit; of officials and agents of the U.S. Department of Transportation, the U.S. Department of Justice,
the U.S. Marshals Service, and the FBI, to name a few as defendants under the name of the United States. The
injuries to my reputation, to my constitutional rights, to my statutory rights, and to my human rights are “easily”
traceable to the challenged conduct. The injuries are extremely likely to be redressed if the requested relief is
granted.

In addition to the constitutional requirements of Article III, courts have developed a set of prudential
considerations to limit standing in federal court to prevent a plaintiff “from adjudicating “abstract questions of
wide public significance’ which amount to ‘generalized grievances’ pervasively shared and most appropriately
addressed in the representative branches.” Speculative claims that a proposed governmental action may result in
injury to a plaintiff are insufficient to confer standing. The required injury must be both real and immediate, not
conjectural or hypothetical.

The injuries to my good name and reputation first by the U.S. Coast Guart, then in a conspiracy between
the U.S. Coast Guard and the U.S. Department of Transportation, and subsequently whether in a conspiracy, or
independently by the other named departments of the United States above are not speculative, conjectural, or
hypothetical claims but real and immediate claims.

However, once Standing to Sue under any authorized catagories has been established I do have the right
under the Standing to Sue for the rights of third parties of the jus tertii doctrine to raise such speculative,
conjectural, or hypothetical claims as viable means to present prima facie challenges, “as applied” challenges, and
facial challenges to the constitutionality of selected federal laws and regulations. The federal courts have a duty
under Article III and under the checks and balance system of the Constitution to adjudicate speculative,
conjectural, and hypothetical claims after real and immediate claims have been established as a proper standing to
sue in order to prevent the Legislative and Executive Branch from taking the American People down a slippery
slope of despotic totalitarianism form of government in opposition to our Guaranteed Republican form of
Government unless the federal Judicial Branch is in collusion with such treachery.
(1). 16 CORPUS JURUS SECUNDUM § 111 Requirement of Standing:
Article III of the United States constitution gives federal courts jurisdiction only over cases and controversies, and
the doctrine of standing serves to identify those disputes which are appropriately resolved through the judicial
process.131 Thus, a person must have standing to be able to assert a challenge to the constitutionality of a statute or
government action. 132 The standing inquiry is especially rigorous when reaching the merits of the dispute would
force the court to decide whether an action taken by one of the other two branches of the federal government was
unconstitutional. 133
Although the standing inquiry often turns on the nature and source of the claim asserted, it in now way depends
on the merits of the plaintiff’s contention that particular conduct is illegal. 134 The question of standing generally
focuses on the party seeking a forum, rather than on the issues to be adjudicated.135 The essence of the

131
Whitmore v. Arkansas, 495 U.S. 149, 110 S.Ct. 1717, 109 L.E.2d 135 (1990).
132
Hines v. Elkhart General Hospital, 465 F.Supp. 421 (N.D. Ind. 1979) , judgment aff’d, 603 F.2d 646 (7th Cir. 1979).
133
Burt v. Rumsfeld, 322 F.Supp.2d 189, 189 Ed. Law Rep. 666 (D. Conn. 2004).
134
Burt v. Rumsfeld, 322 F.Supp.2d 189, 189 Ed. Law Rep. 666 (D. Conn. 2004).
135
Kaneohe Bay Cruises, Inc. v. Hirata, 75 Hawaii 250, 861 P.2d 1 (1993).

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constitutional standing question is whether the plaintiff has a personal stake in the issue presented. 136 A party has
standing to challenge a statute’s constitutionality if the party has a sufficient interest in the outcome of a
justiciable controversy to obtain judicial resolution of that controversy.137 A challenger must have some right
specifically affected, 138 and the interest that he or she seeks to protect must be within the zone of interests to be
protected by the statute or constitutional guaranty in question.139 While one need have only a slight interest to
sustain standing where issues of great public interest are presented,140 a showing only of such interest in the
subject of the suit as the public generally has is usually not sufficicient to warrant the exercise of judicial
power.141
(2). 16 CORPUS JURUS SECUNDUM § 113 Facial and As-Applied Challenges
A party may generally challenge the constitutionality of a statute only as applied to that party,142 and such a
challenge is referred to as an “as applied challenge.143
A facial challenge to the constitutional validity of a statute considers only the text of the measure itself, and not its
application to the particular circumstances of an individual.144 A party asserting a facial challenge to a statute
seeks to vindicate not only his or her own rights, but also those of others who may also be adversely impacted by
the statute in question.145 In order to challenge successfully the facial validity of a statute or a rule of practice
when no fundamental constitutional right is implicated, a party is required to demonstrate as a threshold matter
that the statute may not be applied constitutionally to the facts of his or her case.146 A person may bring a facial
challenge to a statute if the unconstitutional feature is so pervasive as to render the entire statute invalid,147 and if
the statute reaches a substantial amount of protected conduct.148

136
H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed. 2d 388 (1981); Oregon Advocacy Center v. Mink, 322 F.3d
1101 (9th Cir. 2003); Public Citinzen, Inc. v. Bomer, 274 F.3d 212 (5th Cir. 2001). [Nexus requirement: Whether or not
personal stake in outcome is sufficient to confer standing depends on whether there is a logical nexus between status asserted
and claim sought to be adjudicated.]
137
State v. City of Oak Creek, 2000 Wisconsin 9, 232 Wis. 2d 612, 605 N.W.2d 526 (2000).
138
McCord v. Stephens, 295 Ala. 162, 325 So. 2d 155 (1975); Morris v. Fleming, 128 Ariz. 271 271, 625 P.2d 334 (Ct. App.
Div. 1 1980). [Adverse parties: Adverseness of parties, which is necessary for standing, does not exist when party attacking
statute does not stand to gain if attack is sustained.] People v. Capitol News, Inc., 137 Ill. 2d 162, 148 Ill. Dec. 1, 560 N.E.2d
303, 13 A.L.R.5th 1029 (1990).
139
Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970);
Dismas Charities, Inc. v. U.S. Department of Justice, 401 F.3d 666, 2005 Fed. App. 0128P (6th Cir. 2005).
140
Right to Relief: Burt v. Rumsfeld, 322 F.Supp.2d 189, 189 Ed. Law Rep. 666 (D. Conn. 2004).
141
Plumas County Bd. Of Sup’rs v. Califano, 594 F.2d 756 (9th Cir. 1979).
142
Ghegan & Ghegan, Inc. v. Weiss, 338 Ark. 9, 991 S.W.2d 536 (1999).
143
Tobe v. City of Santa Ana, 9 Cal. 4th 1069, 40 Cal. Rptr.2d 402, 892 P.2d 1145 (1995).
144
Tobe v. City of Santa Ana, 9 Cal. 4th 1069, 40 Cal. Rptr.2d 402, 892 P.2d 1145 (1995).
145
City of Chicago v. Morales, 527 U.S. 41, 119 S.Ct. 1849, 144 L.Ed.2d 67, 72 A.L.R.5th 665 (1999).
146
Thalheim v. Town of Greenwich, 256 Conn. 628, 775 A.2d 947 (2001) [Vagueness: To be vague in all of its applications,
and thus unconstitutionally vague on its face under due process clause, a statute must necessarilky be vague as to the litigant;
hence, if the statute is not vague as to the litigant, a due process challenge must necessarily fail, as a person who engages in
some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.]
147
People v. Morgan, 203 Ill.2d 470, 272 Ill. Dec. 160, 786 N.E.2d 994 (2003).
148
State v. Dalton, 674 N.W.2d. 111 (Iowa 2004).

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(3). The Constitution of the United States of America: Analysis and


Interpretation of Cases Decided by the Supreme Court of the United States to
June 28, 2002
Article III
Sec. 2—Judicial Power and Jurisdiction Cl. 1—Cases and Controversies (pp. 690-691)
Constitutional Standards: Injury in Fact, Causation, and Redressability.—
While the Court has been inconsistent, it has now settled upon the rule that, “at an irreducible
minimum,” the constitutional requisites under Article III for the existence of standing are that the
plaintiff must personally have suffered some actual or threatened injury that can fairly be traced
to the challenged action of the defendant, and that the injury is likely to be redressed by a
favorable decision. 149
For some time, injury alone was not sufficient; rather, the injury had to be “a wrong which
directly results in the violation of a legal right,”150 that is, “one of property, one arising out of
contract, one protected against tortious invasion, or one founded in a statute which confers a
privilege.”151 The problem was that the “legal right” language was “demonstrably circular: if the
plaintiff is given standing to assert his claims, his interest is legally protected; if he is denied
standing, his interest is not legally protected.”152 The observable tendency of the Court, however,
was to find standing frequently in cases distinctly not grounded in property rights.153
In any event, the “legal rights” language has now been dispensed with. Rejection occurred in two
administrative law cases in which the Court announced that parties had standing when they
suffered “injury in fact” to some interest, “economic or otherwise,” that is arguably within the
zone of interest to be protected or regulated by the statute or constitutional provision in

149
Valley Forge Christian College v. Americans United, 454 U.S. 464, 472 (1982); Allen v. Wright, 468 U.S. 737, 751
(1984); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). See, however, United States Parole Comm’n v.
Geraghty, 445 U.S. 388 (1980), a class action case, in which the majority opinion appears to reduce the significance of the
personal stake requirement. Id. at 404 n.11, reserving full consideration of the dissent’s argument at 401 n.1, 420-21.
150
Alabama Power Co. v. Ickes, 302 U.S. 464, 479 (1938). Cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S.
123, 151-152 (1951) (Justice Frankfurter concurring). But see Frost v. Corporation Comm’n, 278 U.S. 515 (1929); City of
Chicago v. Atchison, T. & S.F. Ry., 357 U.S. 77 (1958).
151
Tennessee Power Co. v. TVA, 306 U.S. 118, 137-138 (1939).
152
C. Wright, HANDBOOK OF THE LAW OF FEDERAL COURTS at 65-66 (4th ed. 1983).
153
E.g., Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123 (1951) (indirect injury to organization and members
by governmental maintenance of list of subversive organizations); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958)
(same); Abington School Dist. v. Schempp, 374 U.S. 203, 224 n. 9 (1963) (parents and school children challenging school
prayers); McGowan v. Maryland, 366 U.S. 420, 430-431 (1961) (merchants challenging Sunday closing laws); Baker v.
Carr, 369 U.S. 186, 204-208 (1962) (voting rights).

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question. 154 Now political, 155 environmental, aesthetic, and social interests, when impaired,
afford a basis for making constitutional attacks upon governmental action.156
...
pp.693
Of increasing importance are the second and third elements of standing, causation and
redressability, recently developed and held to be of constitutional requisite. There must be a
causal connection between the injury and the conduct complained of; that is, the Court insists that
the plaintiff show that “but for” the action, she would not have been injured. And the Court has
insisted that there must be a “substantial likelihood” that the relief sought from the court if
granted would remedy the harm. 157 371
pp. 703-705
Standing to Challenge Lawfulness of Governmental Action.—
Standing to sue on statutory or other non-constitutional grounds has a constitutional content to the
degree that Article III requires a “case” or “controversy,” necessitating a litigant who has sustained
or will sustain an injury so that he will be moved to present the issue “in an adversary context and
in a form historically viewed as capable of judicial resolution.”158 Liberalization of the law of
standing in this field has been notable. The “old law” required that in order to sue to contest the
lawfulness of agency administrative action, one must have suffered a “legal wrong,” that is, “the
right invaded must be a legal right,”159 requiring some resolution of the merits preliminarily. An
injury-in-fact was insufficient.

154
Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). The “zone
of interest” test is a prudential rather than constitutional standard. The Court sometimes uses language characteristic of the
language. Thus, in Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992), the Court refers to injury in fact as “an invasion
of a legally-protected interest,” but in context, here and in the cases cited, it is clear the reference is to any interest that the
Court finds protectable under the Constitution, statutes, or regulations.
155
Department of Commerce v. United States House of Representatives, 525 U.S. 316 (1999).
156
E.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 563 (1992); Lujan v. National Wildlife Federation, 497 U.S. 871, 885
(1991); Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72-74 (1978); Village of Arlington Heights v.
Metropolitan Housing Dev. Corp., 429 U.S. 252, 261-263 (1977); Singleton v. Wulff, 428 U.S. 106, 112-113 (1976); Warth v.
Seldin, 422 U.S. 490, 498-499 (1975); O’Shea v. Littleton, 414 U.S. 488, 493-494 (1974); Linda R.S. v. Richard D., 410 U.S.
614, 617-618 (1973).
157
Lujan v. Defenders of Wildlife, 504 U.S. 555, 595 (1992); Allen v. Wright, 468 U.S. 737, 751 (1984). See also ASARCO
Inc. v. Kadish, 490 U.S. 605, 612-617 (1989) (plurality opinion). Although the two tests were initially articulated as two
facets of a single requirement, the Court now insists they are separate inquiries. Id. at 753 n. 19. To the extent there is a
difference, it is that the former examines a causal connection between the assertedly unlawful conduct and the alleged injury,
whereas the latter examines the causal connection between the alleged injury and the judicial relief requested. Id. In Steel Co.
v. Citizens for a Better Environment, 523 U.S. 83 (1998), the Court denied standing because of the absence of redressability.
An environmental group sued the company for failing to file timely reports required by statute; by the time the complaint was
filed, the company was in full compliance. Acknowledging that the entity had suffered injury in fact, the Court found that no
judicial action would afford it a remedy.
158
Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 151-152 (1970), citing Flast v. Cohen, 392 U.S. 83, 101
(1968). “But where a dispute is otherwise justiciable, the question whether the litigant is a ‘proper party to request an
adjudication of a particular issue,’ [quoting Flast, supra, 100], is one within the power of Congress to determine.” Sierra
Club v. Morton, 405 U.S. 727, 732 n.3 (1972).
159
Tennessee Power Co. v. TVA, 306 U.S. 118, 137-138 (1939). See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938);
Perkins v. Lukens Steel Co., 310 U.S. 113 (1940).

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A “legal right” could be established in one of two ways. It could be a common-law right, such
that if the injury were administered by a private party, one could sue on it;160 or it could be a
right created by the Constitution or a statute.161 The statutory right most relied on was the judicial
review section of the Administrative Procedure Act, which provided that “[a] person suffering
legal wrong because of agency action, or adversely affected or aggrieved by agency action within
the meaning of a relevant statute, is entitled to judicial review thereof.”162 Early decisions under
this statute interpreted the language as adopting the “legal interest” and “legal wrong” standard
then prevailing as constitutional requirements of standing, which generally had the effect of
limiting the type of injury cognizable in federal court to economic ones.163
In 1970, however, the Court promulgated a two-pronged standing test: if the litigant (1) has
suffered injury-in-fact and if he (2) shows that the interest he seeks to protect is arguably within
the zone of interests to be protected or regulated by the statutory guarantee in question, he has
standing. 164 Of even greater importance was the expansion of the nature of the cognizable injury
beyond economic injury, to encompass “aesthetic, conservational, and recreational” interests as
well.165 “Aesthetic and environmental wellbeing, like economic well-being, are important

160
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). This was
apparently the point of the definition of “legal right” as “one of property, one arising out of contract, one protected against
tortious invasion, or one founded on a statute which confers a privilege.” Tennessee Power Co. v. TVA, 306 U.S. 118, 137-
138 (1939).
161
Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 152 (1951) (Justice Frankfurter concurring). The Court
approached this concept in two interrelated ways. (1) It might be that a plaintiff had an interest that it was one of the purposes
of the statute in question to protect in some degree. Chicago Junction Case, 264 U.S. 258 (1924); Alexander Sprunt & Son v.
United States, 281 U.S. 249 (1930); Alton R.R. v. United States, 315 U.S. 15 (1942). Thus, in Hardin v. Kentucky Utilities
Co., 390 U.S. 1 (1968), a private utility was held to have standing to contest allegedly illegal competition by TVA on the
ground that the statute was meant to give private utilities some protection from certain forms of TVA competition. (2) It
might be that a plaintiff was a “person aggrieved” within the terms of a judicial review section of an administrative or
regulatory statute. Injury to an economic interest was sufficient to “aggrieve” a litigant. FCC v. Sanders Brothers Radio
Station, 309 U.S. 470 (1940); Associated Industries v. Ickes, 134 F.2d 694 (2d Cir.), cert. dismd. as moot, 320 U.S. 707
(1943).
162
5 U.S.C. § 702. See also 47 U.S.C. § 202(b)(6) (FCC); 15 U.S.C. § 77i(a) (SEC); 16 U.S.C. § 825a(b) (FPC).
163
FCC v. Sanders Brothers Radio Station, 309 U.S. 470, 477 (1940); City of Chicago v. Atchison, T. & S.F. Ry. Co., 357
U.S. 77, 83 (1958); Hardin v. Kentucky Utilities Co., 390 U.S. 1, 7 (1968).
164
Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970). Justices
Brennan and White argued that only injuryin- fact should be requisite for standing. Id. at 167. In Clarke v. Securities Industry
Ass’n, 479 U.S. 388 (1987), the Court applied a liberalized zone-of-interest test. But see Lujan v. National Wildlife
Federation, 497 U.S. 871, 885-889 (1990); Air Courier Conf. v. American Postal Workers Union, 498 U.S. 517 (1991). In
applying these standards, the Court, once it determined that the litigant’s interests were “arguably protected” by the statute in
question, proceeded to the merits without thereafter pausing to inquire whether in fact the interests asserted were among
those protected. Arnold Tours v. Camp, 400 U.S. 45 (1970); Investment Company Institute v. Camp, 401 U.S. 617 (1971);
Boston Stock Exchange v. State Tax Comm’n, 429 U.S. 318, 320 n. 3 (1977). Almost contemporaneously, the Court also
liberalized the ripeness requirement in review of administrative actions. Gardner v. Toilet Goods Ass’n, 387 U.S. 167 (1967);
Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). See also National Credit Union Administration v. First National Bank
& Trust Co., 522 U.S. 479 (1998), in which the Court found that a bank had standing to challenge an agency ruling
expanding the role of employer credit unions to include multi-employer credit unions, despite a statutory limit that any such
union could be of groups having a common bond of occupation or association. The Court held that a plaintiff did not have to
show it was the congressional purpose to protect its interests. It is sufficient if the interest asserted is “arguably within the
zone of interests to be protected . . . by the statute.” Id. at 492 (internal quotation marks and citation omitted). But the Court
divided 5-to-4 in applying the test. And see Bennett v. Spear, 520 U.S. 154 (1997).
165
Ass’n of Data Processing Service Org. v. Camp, 397 U.S. 150, 154 (1970).

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ingredients of the quality of life in our society, and the fact that particular environmental interests
are shared by the many rather than the few does not make them less deserving of legal protection
through the judicial process.”166
pp. 706
The Requirement of a Real Interest
Almost inseparable from the requirements of adverse parties and substantial enough interests to
confer standing is the requirement that a real issue be presented, as contrasted with speculative,
abstract, hypothetical, or moot issues. It has long been the Court’s “considered practice not to
decide abstract, hypothetical or contingent questions.”167
(4). Standing to Sue: U.S. ATTORNEY’S MANUAL, Title 4: Civil Resource
Manual § 35:
The “case or controversy” clause of Article III of the Constitution imposes a minimal
constitutional standing requirement on all litigants attempting to bring suit in federal court. In
order to invoke the court’s jurisdiction, the plaintiff must demonstrate, at an “irreducible
minimum,” that:
(1) he/she has suffered a distinct and palpable injury as a result of the putatively
illegal conduct of the defendant;
(2) the injury is fairly traceable to the challenged conduct; and
(3) it is likely to be redressed if the requested relief is granted.
See Valley Forge Christian College v. Americans United for Separation of Church and State,
Inc., 454 U.S. 464, 472 (1982); Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99
(1979); Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 37 (1976).
“In order to have standing to sue under RICO civil liability provisions, plaintiff must show a
violation of RICO, injury to business or property, and causation of the injury by the violation.”
Heckt v. Commerce Clearing House, Inc., C.A.2(N.Y.) 1990, 897 F.2D 21, 100A.L.R. Fed. 655.
“The strongest evidence that the Takings Clause [of the Fifth Amendment] originally was
intended to cover regulatory takings are the Framers’ strong leanings in favor of protection for
property rights, James Madison’s post-ratification statements, and the just compensation
philosophy contained in the writings of Blackstone, Locke, and Grotius. Although Madison’s
statements do not carry the same weight as pre-ratification commentary, they should carry some
weight because of Madison’s role in drafting the Takings Clause and the fact that he published
the Property essay so shortly after ratification. Madison’s view supports the jurisprudential
position taken by Grotius and Blackstone and clearly extends the Takings Clause to non-physical
takings.” Andrew S. Gold, Regulatory Takings and Original Intent: the Direct, Physical Takings
Thesis “Goes Too Far,” 49 Am. U.l. Rev. 181, 241 (1999).

166
Sierra Club v. Morton, 405 U.S. 727, 734 (1972), Moreover, said the Court, once a person establishes that he has standing
to seek judicial review of an action because of particularized injury to him, he may argue the public interest as a
“representative of the public interest,” as a “private attorney general,” so that he may contest not only the action which
injures him but the entire complex of actions of which his injury-inducing action is a part. Id. at 737-738, noting Scripps-
Howard Radio v. FCC, 316 U.S. 4 (1942); FCC v. Sanders Brothers Radio Station, 309 U.S. (1940). See also Gladstone
Realtors v. Village of Bellwood, 441 U.S. 91, 103 n. (1979); Havens Realty Corp. v. Coleman, 455 U.S. 363, 376 n.16 (1982)
(noting ability of such party to represent interests of third parties).
167
Alabama State Fed’n of Labor v. McAdory, 325 U.S. 450, 461 (1945).

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Plaintiff, Don Hamrick, is a United States citizen and a U.S. Merchant Seaman, (a.k.a. Able Seaman for
purposes of the U.S. Code). Plaintiff Don Hamrick reported aboard a U.S. government vessel as a new crew
member. He was required to attend a small arms recertification course as a job-related requirement for the
position of Able Seaman aboard that ship. Upon successful completion of that small arms training Plaintiff Don
Hamrick applied to the U.S. Coast Guard to have that extra training recognized by the Coast Guard in the form of
an endorsement on his Merchant Mariner’s Document to read “National Open Carry Handgun” in accordance
with 46 U.S.C. § 7306(a)(3), General Requirements and Classifications for Able Seamen Is Qualified
Professionally as Demonstrated by an Applicable Examination or Educational Requirements. The Coast Guard
denied that application with their final agency action denial under 46 C.F.R. § 1.03-15(j). Plaintiff initiated of
federal civil rights case on Second Amendment grounds at the U.S. District Court for DC.

L. Standing to Sue for the Civil Rights, Constitutional Rights, and Human Rights of
Third Parties (i.e., the Unorganized Militia, 10 U.S.C. § 311(b)(2)), under the Jus
Tertii Doctrine

(1). 16 CORPUS JURUS SECUNDUM § 116 Exceptions to Prohibition of Assertion


of Rights of Third Parties
Under certain conditions, the rights of third parties may be asserted by one who challenges the constitutionality
of legislation or other governmental action.
Application of the constitutional standing requirement is not a mechanical exercise.168 The rule that a person may
not question the constitutionality of a statute or governmental action as it applies to others is subject to
exceptions,169 and the court may allow representation of the rights of others where there is a need to protect their
rights,170 or where the cases presents issues of great public importance.171
Concern that rights are most effectively asserted by those owning them is sufficiently eased to allow surrogate
standing where there are circumstantial assurances of a litigant’s effective advocacy of third-party rights.172 Such
assaurances are provided where the relationship between a state-enforced measure, injury to the litigant, and
purpose or effect of the measure challenged naturally compel the litigant to fully and aggressively assert third
persons’ constitutional claims. 173
The “jus tertii” doctrine174 provides standing to a litigant who argues that a single application of a statute injures
him or her and impinges on the constitutional rights of a third person. 175 The application of the doctrine generally

168
Pennell v. City of San Jose, 485 U.S. 1, 108 s.Ct. 849, 99 L.Ed.2d 1 (1988).
169
Tobacco Road v. City of Novi, 490 F.Supp. 537 (E.D. Mich.) 1979).
170
Bell & Howell Co. N.L.R.B., 598 F.2d 136 (D.C. Cir. 1979).
171
Baca v. New Mexico Dept. of Public Safety, 2002-NMSC-017, 132 N.M. 282, 47 P.3d 441 (2002).
172
Nicholson v. Board of Educ. Torrance Unified School Dist., 682 F.2d 858, 5 Ed. Law Rep. 733 (9th Cir. 1982).
173
Deerfield Medical Center v. City of Deerfield Breach, 661 F.2d 328 (5th Cir. 1981); Lepelletier v. F.D.IC., 164 f.3D 37
(D.C. Cir. 1999).
174
The doctrine of jus tertii states that “a litigant must assert his or her own legal rights and interests, and cannot rest a claim
to relief on the legal rights or interests of third parties,” but that litigants may bring actions on behalf of third parties if the
litigant has suffered an injury in fact, bears a close relation to the third parties, and the third parties are somehow hindered in
their ability to protect their own interests.” Tesmer v. Granholm, 114 F.Supp.2d 603 at 608 (citing Powers v. Ohio, 499 U.S.
400, 410-411 (1991)).

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depends on the presence of some substantial relationship between the claimant and the third party,176 the third
party’s inability otherwise to assert or effectively preserve his or her rights,177 and the need to avoid dilution of
those rights that would otherwise result.178 The claimant must demonstrate that he or she has suffered a concrete,
redessable injury,179 and that he or she is very nearly as effective a proponent of the right as the third person
would be. 180 The doctrine also applies where the rights of the third party would be diluted and adversely affected
if the constitutional challenge brought by a litigant on his or her behalf should fail and the statute remain in
force. 181
(2) The Third Circuit & Just Tertii (for the Rights of Third Parties)
Citing from Michael A. Frattone, THIRD CIRCUIT SETS FORTH BALANCING TEST FOR EVALUATING JUS
TERTII STANDING IN F IRST AMENDMENT CONTEXT [OF] AMATO V. WILENTZ (1991), 38 Villanova Law Review
1117 (1993)

The series of modern cases specifically establishing jus tertii standing as a distinct legal principle
began with Barrows v. Jackson in 1953.182 In Barrows, the Court permitted a white vendor to
assert the rights of a black vendee as a defense in a suit charging the vendor with breach of a
[1122] racially restrictive covenant.183 Barrows was the first case in which the Supreme Court
expressly recognized a litigant’s standing to assert the constitutional rights of third parties.184 The
Barrows court stated that “under the peculiar circumstances ... the reasons which underlie the rule
denying standing to raise another’s rights ... are outweighed by the need to protect the
fundamental rights which would be denied.”185 Since the Barrows decision, the Supreme Court
has consistently recognized jus tertii standing to be appropriate when the policies underlying the
restrictions on such standing are not furthered.186

175
People v. Rocha, 110 Mich. App. 1, 312 N.W.2d. 657 (1981).
176
Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 s.Ct. 2077, 114 L.Ed.2d 660 (1991); Connection Distributing
Co. v. Reno, 154 F.3d 281, 1998 Fed. App. 0249P (6th Cir. 1998). [Inextricably bound up: General rule that person may not
assert constitutional rights of others does not apply where relationship between litigant and third person is such that
enjoyment of third person’s rights is inextricably bound up with activity litigant wishes to address.]
177
Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 s.Ct. 2077, 114 L.Ed.2d 660 (1991); Connection Distributing
Co. v. Reno, 154 F.3d 281, 1998 Fed. App. 0249P (6th Cir. 1998).
178
Id.
179
Id.
180
Callahan v. Woods, 658 F.2d 679 (9th Cir. 1981).
181
Carey v. Population Services, Intern., 431 U.S. 678, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977).
182
346 U.S. 249 (1953).
183
Id. at 257 (stating that “the reasons which underlie our rule denying standing to raise another’s rights ... are outweighed by
the need to protect the fundamental rights which would be denied”).
184
Id. at 255-59.
185
Id. at 257.
186
See, e.g., Secretary of State of Maryland v. Munson, 467 U.S. 947, 956 (1984). The Munson Court recognized that in
“situations where competing considerations outweigh any prudential rationale against third-party standing ... the Supreme
Court has relaxed the prudential-standing limitation.” Id. Specifically, the Court noted that “where practical obstacles prevent
a party from asserting rights on behalf of itself, for example, the Court has recognized the doctrine of jus tertii standing.” Id.;
see United States Dept. Labor v. Triplett, 494 U.S. 715, 721 (1990) (holding attorney had jus tertii standing to bring action
based on client who was deprived of legal representation, due to obstacles preventing client from asserting his own rights);
Singleton v. Wulff, 428 U.S. 106, 114-15 (1976) (holding physicians had third party standing to raise claims of patients who

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Supreme Court decisions addressing the appropriateness of jus tertii standing have provided
federal courts with guidance in determining the relevant factors for evaluating jus tertii
standing. 187

First, the litigant must have suffered a concrete, redressable injury in fact.188

Second, the court must consider whether prudential considerations should prevent the plaintiff
from advancing the claim. 189

In assessing prudential considerations, the court must examine the following three factors:

(1) the relationship between the litigant and the third party;

(2) the ability of the third party to advance his own interests; and

(3) the impact of potential litigation by the third party.190

The Supreme Court has, however, left undecided the issue of the exact role these three factors
play in evaluating jus tertii standing. 191 In some cases, the Court appears to take the position that
none of the factors are actual prerequisites to standing, and that these factors must instead be
balanced.192 In other decisions, however, the Court appears to require that third party claimants

were denied medical funding for abortions based on obstacles precluding patients from asserting own rights, while
recognizing that the rule against third party standing “should not be applied where its underlying justifications are absent”);
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459 (1958) (holding that nexus of association was sufficient to give
NAACP jus tertii standing to assert constitutional rights of its members).
There are also numerous examples where jus tertii standing is permitted in order to avoid chilling expression in the First
Amendment contexts. See, e.g., Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 756
(1976) (holding that prudential rationale against third party standing was outweighed by society’s interest in protecting free
speech and expression).
187
See Robert Allen Sedler, STANDING TO ASSERT CONSTITUTIONAL JUS TERTII IN THE SUPREME COURT, 71 Yale L.J. 599, 600
at 626-28 (1962). This commentator notes that federal courts most often assess: 1) the interest of the third party asserting jus
tertii standing; 2) the nature of the right asserted; 3) the relationship between the party asserting standing and the
rightholders; and 4) the feasibility of the rightholders asserting their own rights in an independent action. Id.; see Note,
STANDING TO ASSERT CONSTITUTIONAL JUS TERTII, 88 Harv. L. Rev. 423, at 425 (1974).
188
See Caplin & Drysdale v. United States, 491 U.S. 617, 623 n.3 (1989). If the plaintiff can allege sufficient concrete injury,
the Article III case-and-controversy requirement is satisfied. Id.
189
Id.
190
Id. at 623-24 n.3.
191
See Eisenstadt v. Baird, 405 U.S. 438, 443-46 (1972) (balancing variety of factors but failing to indicate their relative
weight); Griswold v. Connecticut, 381 U.S. 479, 481 (1965)(same).
192
See, e.g., Caplin & Drysdale, 491 U.S. at 623 n.3. The Caplin Court held that a lawyer had third party standing to raise
the Sixth Amendment rights of his client when challenging a statute that might have inhibited the client from paying his
attorney’s fees. Id. at 623 n.3, 624. The Court adopted a balancing approach and concluded that even though a criminal
defendant suffers no serious obstacles to advancing his or her own claim, the other two factors weighed strongly enough to
impart standing to the attorney. Id. at 624.
The Court has similarly held that the obstacle requirement is not necessary in First Amendment overbreadth cases. See
Secretary of State of Maryland v. Munson, 467 U.S. 947, 957 (1984) (“Although failure to show an obstacle might defeat a
party’s standing outside the First Amendment context, this Court has not found the argument dispositive in determining
whether standing exists to challenge a statute that allegedly chills free speech.”); see also Virginia v. American Booksellers

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meet each of the three factors before it will allow jus tertii standing.193 Against the background of
this equivocal Supreme Court precedent, the Third Circuit arranged the prudential limitation
factors into a cohesive framework for evaluating jus tertii standing questions in Amato v.
Wilentz.194
(3). General Principles of Third Party (Jus Tertii) Standing in Amato v.
Wilentz 952 F.2d 742; 1991 U.S. App. LEXIS 30138 (1991),
B. General Principles of Third Party Standing
The longstanding basic rule of third party standing is that “in the ordinary course, a litigant must
assert his or her own legal rights and interests, and cannot rest a claim to relief on the legal rights
or interests of third parties.” Powers v Ohio, 113 L. Ed. 2d 411, 111 S Ct 1364, 1370 (1991). The
rule serves at least two judicial purposes. First, the rule fosters judicial restraint: courts faced with
unsettled questions avoid pronouncements that are perhaps unnecessary and undesirable because
the rightholders do not wish to assert their rights. See Secretary of State of Maryland v Munson,
467 U.S. 947, 955, 104 S Ct 2839, 81 L. Ed. 2d 786 (1984); Singleton v Wulff, 428 U.S. 106, 113-
14, 96 S Ct 2868, 49 L. Ed. 2d 826 (1976) (plurality opinion). Second, the rule assures concrete,
sharp presentation of the issues and enables courts to avoid ruling on abstract grievances.
Generally, the third party will be the best advocate of its own position, and the plaintiff may place
a slightly different, self-interested “spin” on its presentation. See Munson, 467 U.S. at 955;
Singleton, 428 U.S. at 114.
The general rule against third party standing is not ironclad, however. The rule does not reflect an
Article III “Case or Controversy” requirement, but stems from prudential concerns. See, for
example, Caplin & Drysdale, Chartered v United States, 491 U.S. 617, 623 n. 3, 109 S Ct 2646,
105 L. Ed. 2d 528 (1989); Hodel v Irving, 481 U.S. 704, 711; 107 S. Ct. 2076 , 95 L. Ed. 2d 668
(1987); Craig v Boren, 429 U.S. 190, 193, 97 S Ct 451, 50 L. Ed. 2d 397 (1976). Accordingly, in
limited circumstances where the policies supporting the general rule are not served, the Supreme
Court has approved third party standing. See Singleton, 428 U.S. at 114-15. Where rightholders
are unable to raise their own rights and their relationship with the plaintiff suggests an identity of
interests, courts can be more certain that the litigation is necessary and that the issues will be
framed clearly and effectively. See id at 114-16. Moreover, other policy considerations, notably
the fear of chilling expression in First Amendment cases, may at times outweigh the policies
behind the general rule against third party standing. See, for example, Munson, 467 U.S. at
956-60.
The Supreme Court has thus recognized the dangers inherent in third party standing, yet has also
recognized that third party standing may at times be appropriate. While the Justices have
frequently disagreed on the proper outcomes in third party standing cases, the Court’s opinions do
give federal courts rather clear guidance on what factors are relevant in determining whether to
make an exception to the general rule. Where a plaintiff asserting third party standing has
suffered concrete, redressable injury (that is, the plaintiff has Article III standing), federal courts
are to examine at least three additional factual elements before allowing the suit to proceed.

Ass’n, 484 U.S. 383, 392-93 (1988) (holding that no inquiry into potential obstacles to suit needed in granting standing to
booksellers to raise purchasers’ First Amendment rights).
193
See Powers v. Ohio, 111 S. Ct. 1364, 1370-71 (1991) (stating that “we have recognized the right of litigants to bring
actions on behalf of third parties, provided three important criteria are satisfied” in upholding standing of litigant to raise
Equal Protection claims of jurors preemptorily challenged on racial grounds).
194
952 F.2d 742 (3d Cir. 1991).

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Caplin & Drysdale, 491 U.S. at 623 n. 3. First, the court must examine the relationship between
the plaintiff and the third party whose rights are asserted; second, the court must consider the
ability of the third party to advance its own rights -- whether some obstacle impedes the
rightholder’s own suit; and third, the court must inquire into the impact on third party interests --
whether the plaintiff and the third party have consistent interests. Id.
The Supreme Court has been less clear, however, about what to do with these factors. Its
jurisprudence contains seemingly inconsistent strains about whether the factors, especially the
“obstacle” factor, are in fact prerequisites to third party standing, or whether courts are instead to
balance them. In some cases, the Court has explicitly or implicitly held that an obstacle to the
rightholder’s suit is not an absolute requirement for third party standing. In Caplin & Drysdale,
for example, the Court held that a lawyer had third party standing to raise the Sixth Amendment
rights of a client when challenging a statute that might have inhibited the client from paying his
attorneys’ fees. The Court concluded that even though a criminal defendant suffers no serious
obstacles to advancing his or her own claim, the other two factors weighed strongly enough that
the lawyer had standing. Id. Similarly, the Court has held that in First Amendment overbreadth
challenges, the danger of chilling expression is so important that the showing of an obstacle is not
required. Munson, 467 U.S. at 957 (“Although [failure to show an obstacle] might defeat a party’s
standing outside the First Amendment context, this Court has not found the argument dispositive
in determining whether standing exists to challenge a statute that allegedly chills free speech.”).
See also Virginia v American Booksellers Ass’n, 484 U.S. 383, 392-93, 108 S Ct 636, 98 L. Ed.
2d 782 (1988) (no inquiry into obstacle in summarily upholding booksellers’ standing to raise
bookbuyers’ First Amendment rights in facial challenge to statute).
On the other hand, in Powers v Ohio, which upheld the standing of a litigant to raise the Equal
Protection claims of jurors peremptorily challenged due to their race, the Court’s language
seemed to require certain showings from would-be third party claimants:
We have recognized the right of litigants to bring actions on behalf of third parties, provided three
important criteria are satisfied: the litigant must have suffered an “injury in fact,” thus giving him
or her a “sufficiently concrete interest” in the outcome of the issue in dispute . . .; the litigant must
have a close relation to the third party . . .; and there must exist some hindrance to the third
party’s ability to protect his or her own interests. . . .
111 S Ct at 1370-71 (citations omitted).195 Despite this language, however, we very much doubt
that the Court in Powers intended silently to overrule its standing holdings in cases such as Caplin
& Drysdale, Munson, and American Booksellers, especially in a case where it in fact allowed
third party standing. Rather, the discussion in Powers may merely reflect that where, as in
Powers, all three conditions exist, the Court will recognize third party standing.
Furthermore, the Caplin & Drysdale balancing approach has the virtue of incorporating the
strength of the showings on each factor. For example, obstacles to suit do not come in one size.
Even if an obstacle to the third party’s suit exists, surely the severity of the hindrance is relevant.
Similarly, the extent of potential conflicts of interests between the plaintiff and the third party
whose rights are asserted matters a good deal. While it may be that standing need not be denied
because of a slight, essentially theoretical conflict of interest, we have held that genuine conflicts
strongly counsel against third party standing. See Polaroid Corp. v Disney, 862 F2d 987, 1000
(3d Cir 1988).

195
In this section of Powers, the Court did not specifically mention the third Caplin & Drysdale prong (effect on third parties’
interests), but the opinion’s later discussion of the relationship prong incorporated it. Below we will follow the same
approach of combining these closely linked factors.

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In short, we read the body of Supreme Court precedent as (1) identifying factors that are relevant
to determining third party standing and (2) rendering an overall balance of factors dispositive.196 8
Moreover, we do not read the list of factors in Powers and Caplin & Drysdale as exhaustive; in
some cases, other factors may also be relevant to the ultimate prudential decision. For example,
the Supreme Court has considered First Amendment cases different (or at least courts must
balance differently) because of the overarching fear of chilling expression. We too will consider
the potential chilling in this case, even though Essex County’s claim is not a conventional one of
statutory overbreadth. Another factor we believe that the Court would deem relevant is whether
hearing a suit between state governmental units may conflict with federal courts’ traditional
federalism concerns about interfering with essentially state matters. We will therefore address
that consideration also. All the while we will bear in mind that third party standing is exceptional:
the burden is on the County to establish that it has third party standing, not on the defendant to
rebut a presumption of third party standing.

(4) Third Party (Jus Tertii) Standing as Applied to the Plaintiff’s Case
(a). First, the litigant must have suffered a concrete, redressable injury in fact.

My claims and the exhibits provide enough information to sustain concrete, redressable injuries in fact.

(b). Second, the court must consider whether prudential considerations should prevent the plaintiff from
advancing the claim.

Biased and prejudicial prudential considerations has already cost the me six years of federal litigation
from advancing my claims.

(i). In assessing prudential considerations, the court must examine the following three factors:

(A). The relationship between the litigant and the third party;

The third party is the law-abiding American people whether or not they are the unorganized militia under
10 U.S.C. § 311(b)(2). The unorganized militia under 10 U.S.C. § 311(b)(2) is also a third party as a subset of the
American people.

(B). The ability of the third party to advance his own interests;197
There is a substantial number of the American people who are not aware of their full rights under the

196
Our decision to apply the more flexible balancing approach may conflict with the apparent requirement of a showing of an
obstacle in Frissell v Rizzo, 597 F2d 840, 848 (3d Cir 1979). Even in Frissell, however, we acknowledged exceptions to that
rule. We noted (and distinguished) cases such as Craig v Boren, where vendors of 3.2% beer were held to have standing to
assert the equal protection rights of 18-to-21-year-old men not allowed to purchase that beer -- despite no substantial obstacle
to the men’s own suit. See 597 F2d at 848 n.7. The County claims that as a would-be licensor asserting its licensee’s rights, it
escapes the general dictate in Frissell. At all events, we agree with the County that subsequent Supreme Court cases such as
Munson, Caplin & Drysdale, and Powers, have superseded Frissell’s analysis on this point. For the same reason, we are not
bound by the statement in Bowman v Wilson, 672 F2d 1145, 1152-53 (3d Cir 1982), that showings of an obstacle and of a
close relationship are requirements for third party standing.
197
Citing Kowalski v. Tesmer 543 U.S. 125 (2004), 333 F.3d 683:
In Caplin & Drysdale, the Court even permitted jus tertii standing where not all of the factors were met (“The second of
these three factors counsels against review here . . . We think the first and third factors, however, clearly weigh in petitioner’s
favor. . . . Petitioner therefore satisfies our requirements for jus tertii standing.” 491 US at 624, n 3.).

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Constitution of the United States and who cannot afford the time or the expense to pursue or preserve their rights
in the federal courts.
(C). The impact of potential litigation by the third party.
If the American people of all 50 States were fully knowledgeable of their Second Amendment rights
under the law of class actions it would create an impact upon the courts far greater than the Microsoft antitrust
case.198 Allowing my case to proceed in vindication of my own injuried rights and those injuried rights of third
parties (i.e., the American people at large in all 50 States) the impact upon of potential litigation will be lessened.

Citing Craig v. Boren, 429 U.S. 190 at 193-194 (1976):


“[O]ur decisions have settled that limitations on a litigant’s assertion of jus tertii are not
constitutionally mandated, but rather stem from a salutary “rule of self-restraint” designed to
minimize unwarranted intervention into controversies where the applicable constitutional
questions are ill-defined199 and speculative. See, e.g., Barrows v. Jackson, 346 U. S. 249, 346 U.
S. 255, 257 (1953); see also Singleton v. Wulff, 428 U. S. 106, 428 U. S. 123-124 (1976)
(POWELL, J., dissenting). These prudential objectives, thought to be enhanced by restrictions on
third-party standing, cannot be furthered here, where the lower court already has entertained the
relevant constitutional challenge and the parties have sought -- or at least have never resisted -- an
authoritative constitutional determination.200 In such circumstances, a decision by us to forgo
consideration of the constitutional merits in order to await the initiation of a new challenge
to the statute by injured third parties would be impermissibly to foster repetitive and time-
consuming litigation under the guise of caution and prudence. 201 Moreover, insofar as the
applicable constitutional questions have been and continue to be presented vigorously and
“cogently,” Holden v. Hardy, 169 U. S. 366, 169 U. S. 397 (1898), the denial of jus tertii
standing in deference to a direct class suit can serve no functional purpose. 202 Our Brother
BLACKMUN’s comment is pertinent:
“[I]t may be that a class could be assembled, whose fluid membership always included some
[males] with live claims. But if the assertion of the right is to be ‘representative’ to such an
extent anyway, there seems little loss in terms of effective advocacy from allowing its
assertion by” the present jus tertii champion. 203 Singleton v. Wulff, supra at 428 U. S. 117-
118.”

198
http://www.usdoj.gov/atr/cases/ms_index.htm
199
Plaintiff’s emphasis. In the present case the constitutional question on the Second Amendment has been sharply and
clearly defined to be an individual right regardless of the militia.
200
The lower federal courts are documented to have resisted an authoritative constitutional determination with various
degress of bias and hostility.
201
Plaintiff’s emphasis.
202
Plaintiff’s emphasis.
203
Plaintiff’s emphasis. So, what not my case?

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M. Standing to Sue as a Private Attorney General under the Civil RICO Act
(1). Citing from David F. Herr, ANNOTATED MANUAL FOR COMPLEX LITIGATION,
(Thomson West, 2006 ed., Chapter 35 Civil Rico, pp. 792-793, footnotes
generally omitted)
Congress enacted the 1920 Racketeer Influenced and Corrupt Organizations Act (RICO) to respond to the
“infiltration of organized crime and racketeering into legitimate organizations operating in interstate commerce.”
Congress targeted organized crime through a broad statutory scheme that included severe criminal penalties,
fines, imprisonment, asset forfeiture, and civil remedies in an effort to undermine the economic power of
racketeering organizations. The statute further enabled private individuals to act, in effect, as private attorneys
general204 to sue for injury to their businesses or property caused by a RICO violation.
Civil RICO claims have alleged wrongs actionable under state and common law; as well as other federal
statutes. Although the statute was targeted at organized crime, courts have broadly construed RICO’s provisions,
and its scope has extended well beyond its original aim. Early efforts by lower courts to restrict claims that
appeared to exceed RICO’s original goals were overruled by Supreme Court decisions that broadened the statute’s
reach. RICO claims can now be found in a variety of contexts, including insurance and business disputes,
antiabortion and other protests, consumer financial services litigation family law, and whistle-blower actions.
Although the nontraditional uses of RICO have continued to expand despite significant criticisms by
commentators and the courts, Congress has shown little inclination to narrow the statute’s focus or reach.
(2). Citing Paul A. Batista, CIVIL RICO PRACTICE MANUAL, 2nd Ed. 2006
Cumulative Supplement (Wolters Kluwer Law & Busines,)
§ 6.29 Agencies of the United States as RICO Defendants
In Berger v. Pierce, 933 F.2d 393 (6th Circuit, 1991) ─ which, like the Tenth, has been highly
conservative in its treatment of civil racketeering issues ─ held that a federal agency is not subject
to any civil RICO liability:
Section 1962 states a requirement of “racketeering activity” as a predicate for a civil RICO
action. Section 1961(1), in turn, defines “racketeering activity,” which requires that the defendant
be, variously, “chargeable,” “indictable,” or “punishable” for violations of specific state and
federal criminal provisions. The assertion that the [federal agency] was engaged in RICO
conspiracy under section 1926(d) was patently defective as a matter of law, since it is self-
evidence that a federal agency is not subject to state or [federal] criminal prosecution.
Berger 933 F.2d at 397.
§ 6.30 ─ Individual Federal Officials as RICO Defendants
The automatic immunity accorded to federal agencies from RICO liability does not extend
automatically to individual federal officials. While federal officials may qualify for the absolute
or limited immunity available to them in all types of federal civil litigation, they do not receive
the same underlying protection that federal agencies receive in the RICO context.
This distinction was made clear in Mceily v. United States, 6 F.3d 343, 350 (5th Circuit, 1993) in
which the Fifth Circuit held that the Federal Deposit Insurance Corporation (FDIC), “as a federal
agency, is not chargeable, indictable or punishable for violations of state and federal criminal

204
18 U.S.C. § 1964(c) (West 2003). See Rotella v. Wood, 528 U.S. 549, 557 (2000) (“The object of civil RICO is thus not
merely to compensate victims but to turn them into prosecutors, ‘private attorneys general,’ dedicated to eliminating
racketeering activity.”).

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provisions.” Id. In contrast, as McNeily stressed, individual FDIC officials could face RICO
liability, since individual federal officials can violate RICO’s predicate acts. Id. See also Brown v.
Nationsbank Corp., 188 F.3d 579, 587 (5th Circuit, 1999) (“McNeily does not support the grant of
immunity to FBI agents”).

N. Pre-Enforcement Standing to Sue


(1). Email from U.S. Marshals Service as Threatening Arrest over Citizen’s Arrest
Warrant is Obstruction of Justice

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Subject: RE: IMMINENT WARNING & NOTICE OF INTENT TO MAKE CITIZEN’S ARRESTS
Date: Tue, 13 May 2008 12:49:25 -0400
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Thread-Topic: IMMINENT WARNING & NOTICE OF INTENT TO MAKE CITIZEN’S ARRESTS
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From: “Jessup, William \(USMS\)” <William.Jessup@usdoj.gov>
To: “Don Hamrick” <4donhamrick@gmail.com>

79 PRELIMINARIES
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DATE: Tuesday, May 13, 2008 at 12:49 PM
FROM: William Jessup, (USMS) <William.Jessup@usdoj.gov>
TO: Don Hamrick <4donhamrick@gmail.com>
SUBJ: RE: IMMINENT WARNING & NOTICE OF INTENT
TO MAKE CITIZEN’S ARRESTS
Don, greetings. I hope all is well with you.
Couple things.
First, the offer is always open if you want to talk – I’m buying lunch or coffee or whatever. Just
let me know. I can come to you if you’re not in town but fairly close to DC.
Second, as has been stated before, any attempt by you to effectuate a “citizen’s arrest” on any
Federal Judicial Officer will result in your arrest and prosecution for crimes under Title 18
of the United States Code, including but not limited to 18 USC § 111.1
Again, I’m available to discuss this with you any time. Feel free to give me a call if and when you’re in
the DC area.
Kindest regards,
-Bill
William Jessup
Senior Inspector
U.S. Marshals Service
U.S. Courthouse
333 Constitution Ave, NW
Washington, DC 20001
202-353-0663 (desk)
202-631-2904 (cell)

Note that William Jessup added 18 U.S.C. § 111, ASSAULTING, RESISTING, OR IMPEDING CERTAIN OFFICERS
OR EMPLOYEES to the previous list of threats of arrest for 18 U.S.C. § 1201 KIDNAPPING, and 18 U.S.C. § 1203
HOSTAGE TAKING because I intend to exercise a common law right of citizen’s arrest for felony EXTORTION UNDER
COLOR OF LAW, 18 U.S.C. § 872 and EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering), 18 U.S.C. §
1951(a) and § 1951(b)(2) in relation to the SEAMEN’S SUIT law, 28 U.S.C. § 1916.
Also note that I directed my letter to officials at the U.S. Department of Justice, superiors to William
Jessup. Note that William Jessup, a subordinate to the Justice Department, took it upon himself to answer my
email in 42 minutes, instead of waiting for the officials at the Justice Department to answer. The Justice
Department might have seen things my way and might have offered up an alternative remedy, i.e., a full refund of
the disputed extortion of filing fees, $1,465 plus interest, which would be entirely satisfactory.
The Justice Department still has the opportunity, in spite of William Jessup usurping the authority of the
Justice Department, to respond to my letter. Again, the caveat, if the Justice Department fail or refuse to answer
my email and mailed letter the burden of remedy will be placed back on my shoulders.

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In one of my series of brief emailed rebuttals to William Jessup I provided a series of questions and answers for
him to expand on:
QUESTION: Do federal judges have immunity for administrative acts that break federal law?

ANSWER: No. Judges who break the law in their administrative duties can be arrested and
prosecuted.

QUESTION: Do my cases qualify for the filing fee exemption under the Seamen’s Suit law?

ANSWER: Yes. The U.S. District Court for DC and Charlotte, NC accepted my cases without the
filing fees. The DC Circuit, 8th Circuit, the US District Courts for DC and Little Rock
and the US Supreme Court did not. They broke the law.

QUESTION: Did federal law enforcement take my complaint, investigate, and prosecute?

ANSWER: No. The burden of remedy falls back on my shoulders with citizen’s arrest.

QUESTION: Do you accept the above as the basis in fact and law for citizen’s arrest?

ANSWER: ________ ? Provide the basis in law why you answer yes or no.

I did not get a reply from William Jessup answering the above questions.
William Jessup has predictably provided me “Pre-Enforcement Standing to Sue” under Parker v. District
of Columbia, DC Circuit, No. 04-7041, (March 9, 2007), pp. 6-9. One of the FEDERAL QUESTIONS, 28 U.S.C. §
1331, will be whether or not I have a right to make citizen’s arrest of federal judges for felony EXTORTION UNDER
COLOR OF LAW, 18 U.S.C. § 872 and EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering), 18 U.S.C. §
1951(a) and § 1951(b)(2) in relation to the SEAMEN’S SUIT law, 28 U.S.C. § 1916, and whether the burden of
remedy under the Sixth, Seventh, Ninth, and Tenth Amendments, is placed back on the citizen complainant, i.e.,
the right to make citizen’s arrest of federal judges as a remedy of last resort, when “the First Amendment does not
impose any affirmative obligation on the government to listen, to respond,” in light of We the People Foundation,
et al v. United States, et al, U.S. District Court for the District of Columbia, No. 04-1211 (August 31, 2005):
The Supreme Court, however, has held that “the First Amendment does not impose any
affirmative obligation on the government to listen, to respond . . .” See Smith v. Ark. State
Highway Employees, Local 1315, 441 U.S. 463, 465 (1979).
Id. We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No.
04-1211 (August 31, 2005). Affirmed, DC Circuit, No. 05-5359 (May 8, 2007):

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We need not resolve this debate, however, because we must follow the binding Supreme Court
precedent. See Tenet v. Doe, 544 U.S. 1, 10-11 (2005). And under that precedent, Executive and
Legislative responses to and consideration of petitions are entrusted to the discretion of those
Branches.
Certiorari, denied, January 7, 2008; Petition for Rehearing denied, February 25, 2008.

Parker v. District of Columbia


OPINION, DC Circuit, No. 04-7041, (March 9, 2007), pp. 6-9.
We recognized in Seegars that our analysis in Navegar was in tension with the Supreme Court’s
treatment of a preenforcement challenge to a criminal statute that allegedly threatened
constitutional rights. See id. (citing Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289
(1979)). In United Farm Workers, the Supreme Court addressed the subject of preenforcement
challenges in general terms:
When the plaintiff has alleged an intention to engage in a course of conduct arguably affected
with a constitutional interest, but proscribed by a statute, and there exists a credible threat of
prosecution thereunder, he “should not be required to await and undergo a criminal prosecution as
the sole means of seeking relief.”
442 U.S. at 298 (quoting Doe v. Bolton, 410 U.S. 179, 188 (1973)). The unqualified language of
United Farm Workers would seem to encompass the claims raised by the Seegars plaintiffs, as
well as the appellants here. Appellants’ assertions of Article III standing also find support in the
Supreme Court’s decision in Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988), which
allowed a pre-enforcement challenge to a Virginia statute criminalizing the display of certain
types of sexually explicit material for commercial purposes. In that case, the Court held it
sufficient for plaintiffs to allege “an actual and well-founded fear that the law will be enforced
against them,” id. at 393, without any additional requirement that the challenged statute single out
particular plaintiffs by name.205 In both United Farm Workers and American Booksellers, the
Supreme Court took a far more relaxed stance on preenforcement challenges than Navegar and
Seegars permit. Nevertheless, unless and until this court en banc overrules these recent
precedents, we must be faithful to Seegars just as the majority in Seegars was faithful to Navegar.
Applying Navegar-Seegars to the standing question in this case, we are obliged to look for an
allegation that appellants here have been singled out or uniquely targeted by the D.C. government
for prosecution. No such allegation has been made; with one exception, appellants stand in a
position almost identical to the Seegars plaintiffs. Appellants attempt to distinguish their situation
from that of the Seegars plaintiffs by pointing to “actual” and “specific” threats, Appellants’ Br.
at 21, lodged against appellants by D.C. during the course of the district court litigation. But this
is insufficient. None of the statements cited by appellants expresses a “special priority” for

205
Of course, American Booksellers can be distinguished from Navegar, Seegars, and the present case, on the ground that the
constitutional challenge at issue there implicated the First (as opposed to the Second) Amendment. The American Booksellers
Court was concerned that Virginia’s statute might chill speech without any prosecution ever taking place, 484 U.S. at 393,
thereby creating a wrong without remedy if pre-enforcement standing were denied. But in deciding whether to privilege one
amendment to the U.S. Constitution over another in assessing injury-in-fact, we note the statement of our dissenting
colleague in Seegars: “I know of no hierarchy of Bill of Rights protections that dictates different standing analysis.” 396 F.3d
at 1257 (Sentelle, J., dissenting). The Seegars majority, although it felt constrained by Navegar to reach a different result,
tacitly agreed with Judge Sentelle’s assessment that the injury-in-fact requirement should be applied uniformly over the First
and Second Amendments (and presumably all other constitutionally protected rights). Id. at 1254.

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preventing these appellants from violating the gun laws, or a particular interest in punishing them
for having done so. Rather, the District appears to be expressing a sentiment ubiquitous among
stable governments the world over, to wit, scofflaws will be punished.
The noteworthy distinction in this case—a distinction mentioned in appellants’ complaint and
pressed by them on appeal—is that appellant Heller has applied for and been denied a registration
certificate to own a handgun, a fact not present in Seegars. The denial of the gun license is
significant; it constitutes an injury independent of the District’s prospective enforcement of its
gun laws, and an injury to which the stringent requirements for pre-enforcement standing under
Navegar and Seegars would not apply. Since D.C. Code § 22-4504 (prohibition against carrying a
pistol without a license) and D.C. Code § 7-2507.02 (disassembly/trigger lock requirement)
would amount to further conditions on the certificate Heller desires, Heller’s standing to pursue
the license denial would subsume these other claims too.
This is not a new proposition. We have consistently treated a license or permit denial pursuant to
a state or federal administrative scheme as an Article III injury. See, e.g., Cassell v. F.C.C., 154
F.3d 478 (D.C. Cir. 1998) (reviewing denial of license application to operate private land mobile
radio service); Wilkett v. I.C.C., 710 F.2d 861 (D.C. Cir. 1983) (reviewing denial of application
for expanded trucking license); see also City of Bedford v. F.E.R.C., 718 F.2d 1164, 1168 (D.C.
Cir. 1983) (describing wrongful denial of a preliminary hydroelectric permit as an injury
warranting review). The interests injured by an adverse licensing determination may be interests
protected at common law, or they may be created by statute. And of course, a licensing decision
can also trench upon constitutionally protected interests, see, e.g., Dist. Intown Props. Ltd. P’ship
v. District of Columbia, 198 F.3d 874 (D.C. Cir. 1999) (reviewing District of Columbia’s denial
of a building permit under the Takings Clause); Berger v. Bd. of Psychologist Exam’rs, 521 F.2d
1056 (D.C. Cir. 1975) (reviewing District of Columbia’s denial of a license to practice
psychology under the Due Process Clause), which will also give rise to Article III injury.
O. Stigmatic Harm and Standing
Citing and adapting Thomas Healy, STIGMATIC HARM AND STANDING, 92 Iowa Law Review 417
(2007) to my case herein. Despite Allen v. Wright 468 U.S. 737 (1984) the Court has never completely ruled out
stigmatic harm as a basis for standing. Citing the Conclusion:
(1). Stigmatizing Trait
A U.S Seaman as an Unrepresented Civil Plaintiff with a civil RICO Act case where the Pro Se Civil
Plaintiff has the authority to act as a Private Attorney General applying the civil RICO Act against the Unied
States Government and against the United Nations in defense of the Second Amendment as a constitutional right
and as an international human right.
(2). Denial of Equal Treatment
Read together, [Allen v. Wright, 468 U.S. 737 (1984) and Heckler v. Mathews, 465 U.S. 728
(1984)] suggest a fairly straightforward rule: a plaintiff who alleges that he was denied equal
treatment can claim standing on the basis of stigmatic harm, while a plaintiff who alleges that
governmental action stigmatizes a group of which he is a member lacks standing unless he
personally was denied equal treatment. [Healy, 432]
[Stigmatic Harm] would give access to the federal courts to plaintiffs who have been denied
access in the past. It also would allow some claims to be heard in federal court that currently
cannot be heard there. . . . when the government does stigmatize a group, members of that group
should have standing to argue that the government’s action is unlawful. If they do not have a
meritorious claim, their cases will be dismissed. But they should not be turned away on the
supposition that their injury is abstract. As I have tried to show, this is not true. Those who are

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stigmatized by government action are not simply concerned bystanders seeking to vindicate value
interests. They suffer serious and concrete injuries and should therefore have the same standing in
federal court as other plaintiffs alleging concrete harms. [Healy, 488].
Perpetual dismissals of my cases for the last 6 years combined with federal law enforcement agencies
harassing me and my family just because I am exercising my First Amendment right to petition the Government
for redress of grievance and my Seventh Amendment right to a civil jury trial constitutes a denial of equal
treatment under the Rule of Law qualifies my case for standing on the basis of stigmatic harm.
(3). The Experience of the Stigmatized
First, because the stigmatized are marked as less than fully human, they face the “ever-present
possibility” that they will be the targets of prejudice and discrimination. . . . This threat of
discrimination is harmful in itself, producing anxiety and a feeling that one must “be
constantly on guard.” But even more harmful is the actual discrimination experienced by the
stigmatized. Research shows that “members of stigmatized groups are more likely to experience
derision, exclusion, discrimination, and violence than are those who are not stigmatized.” This
discrimination makes it harder for the stigmatized to obtain employment, housing,
education, and to develop lasting relationships with others. In the words of Goffman, “we
exercise varieties of discrimination [against the stigmatized], through which we effectively, if
often unthinkingly, reduce his life chances.” [Healy, 453-454]
The highlight text above directly applies to me as evidenced by my previous lawsuit, Hamrick v.
Hoffman, Crowley, and Seafarers International Union, U.S. District Court for DC, No. 07-1726, dismissed
without prejudiced, but ORDERED to file an Amended Complaint because Judge Rosemary M. Collyer
apparently did not like my own authored political poems I included in the Complaint criticizing the corrupt
federal judiciary and the U.S. Government. The lawsuit resulted from a breach of contract by the shipping
company (Crowley). Crowley waived the pre-employment physical to get be aboard a container ship. But because
I had been at the union clinic just long enough to be my high blood pressure taken and discovered before the
preemployment physical was canceled the clinic notified the shipping company one hour after the ship left for
Europe with me on the ship. Crowley revoked the waiver and imposed blood pressure checks. I refused the blood
pressure checks and light-duty status on the basis of breach of contract. The Master eventually threatened me with
a logging which would involve the U.S. Coast Guard (The Coast Guard as named defendants already has
Department of Transportation Bar Notices from 2004 and 2006 prohibiting me from visiting DOT, FAA, and
USCG buildings in Washington, DC because of my litigious activities over my Second Amendment cases,
another example of stigmatic harm). My employment was terminated on not fit for duty status and I was flown
back to the United States from Europe.
Stigmatization also threatens one’s self-esteem. Research has shown that most stigmatized
individuals are aware that society views them as devalued and tainted. And social scientists have
long maintained that people construct their self-identities, at least in part, on the basis of how
others react to them. Thus, the knowledge that others view them as less than fully human can
undermine the self-esteem of the stigmatized. They may even come to conclude that society is
right—that they are in fact “less worthwhile, deserving, or valuable” than others. As the social
psychologist Gordon Allport once asked rhetorically, “[W]hat would happen to your own
personality if you heard it said over and over again that you were lazy . . . and had inferior
blood”? . . . . [Healy, 454].
Implied in the above section stereotyping others as a class of people of lower standing stems from
ignorance various degrees of sociopathic behavior patterns. I did not pick a litigious fight with the
U.S. Government. In the early 1990s I initiated a course of self-education on the U.S.
Constitution, the Bill of Rights and the Second Amendment because I was indeed ignorant on
constitutional subject matters. In 2002 when I was extremely educated in constitutional law for a
layman an opportunity presented itself to me by shear chance to attend a small arms class as a

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new Able Seaman aboard a U.S. Government ammunition ship coming out of the shipyard in
Newport News, Virginia. I pass that small arms course. Finding 46 U.S.C. § 7306(a)(3) as the
basis to submit my application to the U.S. Coast Guard for an endorsement on my Merchant
Mariner’s Document for “National Open Carry Handgun.” The Coast Guard denied my
application on the basis that in provided no benefit to marine safety or security and that there
were no federal laws or regulations government my requested endorsement. Rather than rely on
the U.S. Constitution and the Second Amendment as a basis of lawful authority the Coast Guard
officer relied on his own prejudiced judgment thereby providing me with the legal cause of action
for judicial review of a final agency action. From 2002 to the present day my cases have been
treated with such disdain that I grew to feel as though I was nothing more than an annoying fly
buzzing around the courts only to get shooed away with dismissals and most were with prejudice!
So, I believe the federal courts view unrepresented civil plaintiffs as ignorant litigants.
Finally, the stigmatized are usually the targets of negative stereotypes, which can lead to self-
fulfilling prophecies. One example is what social scientists have labeled “stereotype threat.” In
lay terms, stereotype threat exists when the fear of conforming to stereotype creates self-doubt
that interferes with one’s performance. . . . [Healy, 456]
Stereotype threat involves the internalization of negative stereotypes by the stigmatized. Self-
fulfilling prophecies also occur when a negative stereotype influences the way we treat a person
and the person reacts to this treatment with behavior that confirms the stereotype.318 . . . [Healy,
457]
I began this litigious journey in 2002 with an awareness of a corrupt judicial system but naively believed
that I had an iron-clad, open and shut case for Second Amendment rights from a merchant seaman’s point of
view. I had to navigate a sharp learning curve in the Federal Rules of Civil Procedure and Appellate Procedure
and the Rules of the U.S. Supreme Court. The education was thrilling but the obstructions of justice by the federal
bench and bar proved most frustrating. I felt like a typical outcast shunned by social cliques if the federal courts
can be compared to high schools. I took a gamble on my future that I could make a difference for American
seamen as a class of people. So far all I have achieved is what appears to be a coincidental change in the Supreme
Court’s Rule 40.2.
Stigmatic harms are not insurmountable. Many stigmatized individuals develop ways of coping
with their situations. As noted above, they may attribute negative outcomes to the prejudice of
others rather than allow those outcomes to affect their self-esteem. They may also try to
compensate for, or even eliminate, their stigmatizing traits by changing their behaviors or
working harder. . . . But although these strategies can lessen the harms associated with stigma,
they also carry costs. Reflexively blaming negative outcomes on prejudice can prevent one from
understanding other reasons behind those outcomes. Attempting to change behavior can backfire
if those efforts fail, causing one to feel even worse than before. And avoiding situations that
might expose one to ridicule or prejudice limits one’s access to important resources and “severely
circumscribes one’s freedoms.” [Healy 457-458]
In short, stigmatization is a serious injury with harmful consequences. Not all stigmatized people
experience these harms in the same way, and many individuals are able to overcome these harms
and lead happy, fulfilling lives. But for the most part, “[p]eople who are stigmatized tend to
experience more negative outcomes in their work lives and in their personal lives than do the
nonstigmatized.” [Healy, 458]
(4). Questions of Causation and Redressability
It is true that much of the harm experienced by the stigmatized likely would exist even in the
absence of government action. It is also true that we cannot measure precisely the extent to which
government action in a given case contributes to stigmatic harm. But it seems clear that when

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the government stigmatizes members of a particular group, it exacerbates the harm they
experience. By reinforcing the social belief that those with a particular trait are discredited,
the government adds to the prejudice and discrimination against them, creates additional
threats to their self-esteem, and reaffirms the stereotypes that lead to selffulfilling
prophecies. The government’s role also likely increases the intensity of these harms,
particularly the threat to self-esteem. [Healy, 464].

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PART 3. THE PURPOSE OF THIS CASE

Part 3. Purpose of this Case

Rule 8(d)(2). Alternative Statements of a Claim.


In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal
on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate
citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state
that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my
claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the
Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law.
My alternative statements of claims are presented in their alternative presentations in the following
Parts of my complaint as shown here to support my primary claims in Part 19:
Part 3. Purpose of this Case
Part 4. In Defense of Pro Se Civil Litigation
Part 5. Federal Questions Presented (28 U.S.C. § 1331)
Part 6. Plaintiff’s Human Rights Declarations
Part 7. Plaintiff’s Constitutional Rights Declarations
Part 8. Plaintiff’s Religious Rights Declarations
Part 9. Plaintiff’s Maritime Rights Declarations
Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment
Part 11. Challenging the Constitutionality of Summary Judgment
Part 12. Challenging the Final Agency Action of the U.S. Coast Guard
Part 13. Challenging the Federal Court Ruling
Part 14. Challenging Selected Federal Laws
Part 15. Challenging Selected Federal Regulations
Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes
Part 17. Challenging Selected Maritime Conventions and Treaties
Part 18. Racketeering and Treason against the Constitution by Federal Judges
Part 19. The Claims
Part 20. Statement of Proposed Rico Charges (Claims)
Part 21. Petition for Writ of Mandamu (My Demands for Justice)
Part 22. Petition for Writ of Prohibition
Part 23. Petition for Declaratory Judgment
Part 24. Petition for Injunctive Relief
Part 25. Damages

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A. John S. Baker, Jr., REVISITING THE EXPLOSIVE GROWTH OF FEDERAL CRIMES, The
Heritage Foundation Legal Memorandum, No. 26, June 16, 2008
REVISITING THE EXPLOSIVE GROWTH OF FEDERAL CRIMES
John S. Baker, Jr.,
The Heritage Foundation
Legal Memorandum, No. 26, June 16, 2008
John S. Baker is Dale E. Bennett Professor of Law at the Louisiana State University Law Center.
The author thanks his research assistant, Ms. Beverly Froese, who reviewed the federal statutes
and organized the data under his direction.
Measuring the growth in the number of activities considered federal crimes is challenging.
Ideally, one compares counts of federal crimes taken at different times and employing consistent
criteria to determine what constitutes a federal crime. Obtaining comparable data, however, is
almost impossible. Nonetheless, a careful survey of laws enacted by Congress does permit
reasonable estimation of the number of federal criminal offenses.
This report follows from other attempts to count the number of federal criminal offenses or to
measure their growth. The most complete count of federal crimes, done by the U.S. Department
of Justice (DOJ) in the early 1980s, put the number at 3,000. A 1998 report by a task force of the
American Bar Association relied on the DOJ figure and other data to measure the growth of
206
federal criminal law but did not itself actually provide a count of federal crimes. In a 2004
Federalist Society monograph building on the DOJ and ABA reports, I counted new federal
crimes enacted following the point at which the ABA report finished its data collection at the
close of 1996. That report estimates that there were 4,000 federal crimes at the start of 2000.207
This report updates that total through 2007, finding 452 additional crimes created since 2007, for
a total of at least 4,450 federal crimes.208
The growth of federal crimes continues unabated. The increase of 452 over the eight-year period
between 2000 and 2007 averages 56.5 crimes per year—roughly the same rate at which Congress
created new crimes in the 1980s and 1990s. So for the past twenty-five years, a period over which
the growth of the federal criminal law has come under increasing scrutiny, Congress has been
creating over 500 new crimes per decade. That pace is not steady from year to year, however; the
data indicate that Congress creates more criminal offenses in election years.

206
Task Force on Federalization of Criminal Law, American Bar Association, THE FEDERALIZATION OF CRIMINAL LAW (1998)
[hereinafter ABA Report].
207
John Baker, Federalist Society for Law and Public Policy, MEASURING THE EXPLOSIVE GROWTH OF FEDERAL CRIME
LEGISLATION (2004) [hereinafter Federalist Society Report].
208
See app.

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This study reviews the crimes newly enacted by Congress in order to:
(1) update the number of federal crimes;
(2) measure whether Congress continues to pass federal criminal laws at the same
pace found by the ABA report; and
(3) determine whether the new crimes contain a mens rea requirement, a key
protection of the common law that protects those who did not intend to commit
wrongful acts from unwarranted prosecution and conviction.
Previous Studies
Counting the number of federal crimes might seem to be a rather straightforward matter: Simply
count all the statutes that Congress has designated as crimes. After all, unlike state law, federal
law has never had a common law of crimes. Locating purely common-law crimes requires
consulting judicial opinions, and even then, determining what is and is not a common-law crime
209
is problematic. Given that federal courts lack common-law jurisdiction over crimes, all federal
210
crimes must be statutory. So it would seem that counting statutes should be an easy task.
Making an accurate count is not as simple as counting the number of criminal statutes, however.
As the American Bar Association’s Task Force on the Federalization of Crime stated, “So large is
the present body of federal criminal law that there is no conveniently accessible, complete list of
federal crimes.”211 Not only is the number of statutes large, but the statutes are scattered and
212
complex. The situation presents a two-fold challenge:
(1) determining what statutes count as crimes and
(2) determining whether, as to the different provisions within a section or
subsection, there is more than a single crime, and if so, how many.
The first difficulty is that federal law contains no general definition of the term “crime.” Title 18
of the U.S. Code is designated “Crimes and Criminal Procedure,” but it is not a comprehensive
criminal code. Title 18 is simply a collection of statutes. It does not provide a definition of crime.
Until repealed in 1984, however, Section 1 of Title 18 began by classifying offenses into felonies
and misdemeanors, with a sub-class of misdemeanors denominated “petty offenses.” Later
amendments re-introduced classifications elsewhere in Title 18.213 The repeal and later
amendments, however, were tied to the creation of the United States Sentencing Commission, and
this new focus on sentencing has done nothing to solve—and probably has exacerbated—the
problem of determining just what should be counted as “crimes.” That issue is particularly
pertinent for offenses not listed in Title 18. Title 18 does contain many, but not all, of the federal
crimes. Other offenses carrying criminal penalties are distributed throughout the other 49 titles of
the U.S. Code. 214 These scattered criminal provisions are usually regulatory or tort-like,
sometimes making them difficult to identify.

209
See Wayne R. LaFave, 1 SUBSTANTIVE CRIMINAL LAW § 2.1(e) (2003).
210
United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812).
211
ABA Report, supra note 1, at 9.
212
The ABA report explained:
213
See 18 U.S.C. § 3581 (classification of felonies, misdemeanor and infraction in terms of sentencing); 18 U.S.C. § 3156(3)
(definition of “felony” for purposes of release and detention).
214
There are 50 titles, but Title 34 currently contains no un-repealed statutes.

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The second problem is that, whether it is codified in Title 18 or some other title, one statute does
not necessarily equal one crime. Often, a single statute contains several crimes. Determining the
number of crimes contained within a single statute is a matter of judgment. Different people may
make different judgments about the number of crimes contained in each statute, depending on the
criteria they employ. In the absence of a definition of crime, it is incumbent upon the compiler to
explain the criteria employed in making the count. Not intending to re-invent the criteria, I have
looked to previous attempts to count the number of federal crimes.
The most comprehensive effort to count the number of federal crimes was undertaken by the
Office of Legal Policy (OLP) of the U.S. Department of Justice in early 1983 in connection with
efforts to pass a comprehensive federal criminal code. Ronald Gainer, who oversaw the study,
later published an article entitled “Report to the Attorney General on Federal Criminal Code
215
Reform.” The DOJ’s count involved a review by hand of every page of the U.S. Code, and it
put the number at “approximately 3,000 federal crimes,” a figure which has been much cited
216
since. That number includes all federal offenses in the U.S. Code carrying a criminal penalty
enacted through early 1983.
In a 1998 article, “Federal Criminal Code Reform: Past and Future,” Gainer cited the figure of
“approximately 3,300 separate provisions that carry criminal sanctions for their violation.”217
This number was based on a count done by the Buffalo Criminal Law Center “employing
somewhat different measures” than the DOJ survey.218 This survey apparently considered only
“separate provisions” as constituting crimes, while the methodology used in the DOJ count often
found more than one crime in a single provision.
In 1998, the American Bar Association’s Task Force on the Federalization of Criminal Law,
chaired by former Attorney General Edwin Meese and containing this author as a member, issued
a report entitled “The Federalization of Criminal Law.” This report was concerned with the
growth in federal criminal law and thus faced the problem of identifying the number of federal
crimes enacted over periods of time. The Task Force decided, however, not to “undertake a
section by section review of every printed federal statutory section,” which would have been too
“massive” an undertaking for the Task Force’s “limited purpose.”219 The ABA report did
conclude that the 3,000 number was “surely outdated by the large number of new federal crimes
enacted in the 16 or so years since its estimation.”220 The ABA report did not attempt a
comprehensive count like DOJ, but it did provide a good measure of the growth of federal
criminal law, which demonstrated that the number of federal crimes as of the end of 1996 greatly
exceeded 3,000.
Although the ABA Report did not actually count the number of crimes, it drew the following dra-
matic conclusion from the available data:

215
Ronald Gainer, REPORT TO THE ATTORNEY GENERAL ON FEDERAL CRIMINAL CODE REFORM, 1 Crim. L.F. 99 (1989).
216
Id. at 110.
217
Ronald Gainer, FEDERAL CRIMINAL CODE REFORM: PAST AND FUTURE, 2 Buff. Crim. L. Rev. 46, 55 n.8 (1998) (emphasis
added).
218
Id.
219
ABA Report, supra note 1, at 92.
220
Id.at 94.

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The Task Force’s research reveals a startling fact about the explosive growth of federal criminal
law: More than 40% of the federal provisions enacted since the Civil War have been enacted
since 1970.221
But the ABA report’s approach actually underestimates the increase in the number of federal
crimes. According to Gainer, the DOJ effort to count crimes discovered that any attempt to count
using computer searches would consistently undercount crimes. This is why the DOJ did a
complete hand count of federal crimes, which meant reading through the many thousands of
pages of the U.S. Code. The ABA report, for its purposes, instead conducted a Westlaw search of
the statutes “us[ing] the key words ‘fine’ and ‘imprison’ (including any variations of those words
such as ‘imprisonment’).”222 As explained below, this strategy likely missed many crimes.
Methodology
This current report and the accompanying count were developed against the background of the
DOJ and the ABA Task Force reports. Like the ABA Task Force, my researchers and I could not
review thousands of pages of statutes in order to complete a count as comprehensive as the
DOJ’s, nor even review all the new crimes enacted since the DOJ completed its count in 1983.
The ABA report did not actually include a count, and even the comprehensive count by the DOJ
report gave the number in terms of an estimate. In part, that was due to the fact that the DOJ
count employed debatable criteria about how many crimes are contained in a particular statute.
Nevertheless, our count adhered to the criteria used in the DOJ count. For the current count, we
reviewed legislation from the beginning of 2000 through the end of 2007.
Building on the data in the 1998 ABA report, which run through 1996, my previous report for the
Federalist Society estimated that the U.S. Code contained 4,000 crimes as of the beginning of
223
2000. For the present report, we conducted a comprehensive search of statutory provisions
enacted from the beginning of 2000 through 2007. Like the DOJ and ABA reports, this and my
previous report consider only statutes, not regulations. As the ABA report notes, if regulations
were included, that would have added, as of the end of 1996, an additional 10,000 or so crimes.224
Another report from the early 1990s, however, estimated that “there are over 300,000 federal
regulations that may be enforced criminally.”225
For purposes of continuity, this report, like my previous one, relied on Westlaw searches using
the same terms as the ABA report. For this report, however, we went beyond the terms used by
the ABA report and found more crimes in amendments to existing laws that did not contain those
search terms. Just searching the database of statutes passed each year using the terms “fine!” and
“imprison!”—the ABA Report approach—does not yield a comprehensive list of crimes because
it does not capture statutory amendments that do not contain either of those terms. For example,
an amendment to an existing law might revise the statute by adding an additional subsection. This
subsection, due to its placement in the existing statute, might create a new crime, although it does

221
Id. at 7 (emphasis in the original); see also id. at n.9 (“[M]ore than a quarter of the federal criminal provisions enacted
since the Civil War have been enacted within the sixteen year period since 1980”).
222
ABA Report, supra note 1, at app. C, 91, n.1.
223
The Federalist Society Report looked at crimes enacted through 2003, but only drew conclusions about the number of
crimes as of the beginning of 2000. See FEDERALIST SOCIETY REPORT, supra note 2, at 8.
224
See ABA Report, supra note 1, at 10.
225
John C. Coffee, Jr., DOES “UNLAWFUL” MEAN “CRIMINAL”?: REFLECTIONS ON THE DISAPPEARING TORT/CRIME DISTINCTION
IN AMERICAN LAW, 71 B.U. L. Rev. 193, 216 (1991).

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not include either “fine!” or “imprison!.” Therefore, after using the search terms “fine!” and
“imprison!,” the search proceeded to the “Historical Notes” field for each of the years from 2000
through 2007. This produced several hundred hits for each year (the highest being about 690 in a
single year), which yielded a number of crimes which were not captured just using the ABA
search terms.
In this report, we employed the DOJ report’s methodology for counting the number of new
crimes contained within a single statute. Under the DOJ approach, statutes containing more than
one act corresponding to a common-law crime were determined to have as many crimes as there
were common-law crimes in the statute.226 On the other hand, the DOJ counted a statute as con-
taining only one crime, even though it contained multiple acts, if those acts did not constitute
common-law crimes.
Specifically, the criteria employed in this report to distinguish whether the new statutory language
did or did not create a new crime are as follows:
• Each act stated in terms corresponding to the act element of a traditional or
common-law crime (e.g., theft, burglary, fraud) is counted separately as one crime.
Thus, multiple crimes may be listed in a single section or subsection.
• Multiple acts unrelated to traditional crimes, when stated in the same section or
subsection, are treated as different ways of committing one crime. Also,
elaborations on traditional crimes (e.g., theft by fraud, misrepresentation, forgery)
are counted as one crime only if listed together in one section or subsection.
• If the same or similar non-traditional crimes are listed in separate sections or
sub-sections, each section or subsection is counted as a separate crime. Attempts
and conspiracies to commit a crime were counted as distinct crimes.
• The number of crimes listed for each section or subsection indicates only the
number of crimes added that year by a statute or amendment, which does not
necessarily equal the total number of crimes in those sections or subsections
originally enacted in an earlier year.
The Number of Federal Crimes
My 2004 report stated that “Conservatively speaking, the U.S. Code contains at least 3,500
offenses which carry criminal penalties. More realistically, the number exceeds 4,000.” The
estimate of over 4,000, as of the beginning of 2000, rested on an evaluation of the information
already covered by the counts conducted by DOJ and the ABA and new data for the years 1997
through 1999.
Since the start of 2000, Congress has created at least 452 new crimes. So the total number of fed-
eral crimes as of the end of 2007 exceeds 4,450. Ninety-one of the 452 were contained in new
laws that created 279 new crimes, and the remaining were contained in amendments to existing
227
laws. The total of 452 new crimes breaks down by year as follows: 65 for 2000; 28 for 2001;
82 for 2002; 51 for 2003; 48 for 2004; 13 for 2005; 145 for 2006; 20 for 2007. The Appendix
to this report lists all the federal statutes containing new crimes.
The data suggest a potential electoral motivation behind the growth of the federal criminal law.
Except for in 2003, the number of new crimes enacted in election years significantly surpass

226
Telephone interview with Ronald Gainer (Dec. 29, 2003).
227
The ABA report does not include a review of amendments. See ABA Report, supra note 1, at 8 n.10.

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those in non-election years. While this may be due to the two-year cycle in Congress and the time
it takes to pass a bill, work done on legislation in a previous Congress need not be completely
duplicated. Bills are, for example, frequently re-introduced at the commencement of the a new
Congress.
This study did not perform a statistical analysis of the number of crimes created in various
discrete areas of substantive law. My 2004 report, however, concluded that a large percentage of
the new crimes came in the environmental area. For the years 2000 through 2007, many of the
new crimes were in the following areas:
• National security, i.e., aircraft security, protection of nuclear and other facilities,
counterfeit/forged insignia and documents;
• Terrorism and support for terrorists;
• Protection of federal law enforcement;
• Protection of members of the armed forces;
• Protection of children from sexual exploitation; and
• Controls on the Internet.
Not surprisingly, many of the new crimes were enacted in response to the events of 9/11.
Interpretation: A Troubling Trend
As practitioners in the field know well, the number of criminal statutes does not tell the whole
story. Measuring the rate of growth certainly confirms that Congress continues to enact criminal
statutes at a brisk pace. But no matter how many crimes Congress enacts, it remains for federal
prosecutors to decide which statutes to invoke when seeking an indictment.
228
Federal prosecutors have certain favorites, notably mail and wire fraud statutes, which they
use even when other statutes might be more applicable. That, of course, does not mean that the
addition of little-used crimes is unimportant. The federal government is supposedly a government
of limited powers and, therefore, limited jurisdiction. Each new crime expands the jurisdiction of
federal law enforcement and federal courts. Regardless of whether a statute is used to indict, it is
available to establish the legal basis upon which to show probable cause that a crime has been
committed and, therefore, to authorize a search and seizure. The availability of more crimes also
affords the prosecutor more discretion and thereby greater leverage against defendants. Increasing
the number and variety of charges tends to dissuade defendants from fighting the charges,
because they usually can be “clipped” for something.
Moreover, the expansion of federal criminal law continues to occur even without new legislation.
Federal prosecutors regularly stretch their theories of existing statutes. For example, federal
courts often cooperate with prosecutors by making new laws apply retroactively. What Judge
John Noonan wrote in 1984 about bribery and public corruption continues to be generally true,
namely that federal prosecutors and federal judges have been effectively creating a common law
229
of crimes through expansive interpretations.
Ultimately, the reason the ABA report and this report track the increase of federal crimes is to
provide some measure of the extent to which federal criminal law and its enforcement are over-
reaching constitutional limits. The Supreme Court has admonished Congress twice within recent

228
18 U.S.C. §§ 1341, 1343 (mail fraud and wire fraud, respectively).
229
See John Noonan, BRIBES (1984) at 585–86, 620.

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years, when it declared federal statutes unconstitutional, that it lacks a “plenary police power.”230
The statistical measures in this and the ABA report indicate that those cases have not dissuaded
Congress from continuing to pass criminal laws at the same pace.
Judicial Interpretation of Mens Rea
A mens rea requirement has long served an important role in protecting those who did not intend
to commit wrongful acts from unwarranted prosecution and conviction. Mens rea elements, such
as specific intent, willful intent, and the knowledge of specific facts constituting the offense, are a
part of nearly all common-law crimes. These protections were generally codified into statutes, as
state legislatures adopted criminal codes, and the practice was continued in the creation of
statutes defining new crimes in addition to those recognized historically by the common law.
If anything, mens rea requirements are more important today than in the past. Historically, nearly
all crimes concerned acts that were malum in se, or wrong in themselves, such as murder, battery,
and theft. Today, however, new crimes and petty offenses created by statute almost always
concern acts that are malum prohibitum, or wrong only because it is prohibited. This category
includes petty offenses and crimes like marketing medicines not approved by the FDA and
shipping flammable materials without a sticker on the box. For malum prohibitum crimes and
petty offenses, mens rea requirements can serve to protect individuals who have accidentally or
unknowingly violated the law or, in some cases, were unaware that a law covered their particular
conduct.
For the period 2000 through 2007, the great majority of sections or subsections appeared to have
a mens rea requirement, often employing the term “knowingly” or “willfully.” Nevertheless, 55
statutory provisions (some of which contain more than one crime) contained no reference to a
mens rea requirement. Of these 55, 17 are new and 38 amend existing statutes. That means that
17 out of the total of 91 new criminal statutes did not specify a mental element.
The Appendix of this report identifies the mens rea element or the lack thereof for each of the 237
statutory provisions containing new crimes passed by Congress.
This count concerning mens rea is somewhat tentative, for several reasons. For example, whether
an offense has a mens rea requirement may depend on a judgment about the number of crimes
contained in a particular section or subsection. Consider, for example, 18 U.S.C. § 1960, which
prohibits “unlicensed money transmitting businesses” and was amended in the wake of 9/11. The
statute contains several subsections. The 2001 amendments added a new subsection expanding
the definition of “unlicensed money transmitting business.” The added section contains a
knowledge requirement. In our count, the amendment does not count as adding a crime. While
the amendment adds a mens rea, it also drops a mens rea requirement from an existing
provision. 231 If 18 U.S.C. § 1960 is counted as just one crime or if only the newly added
subsection is considered, then the crime carries a mens rea. That means, however, that the
elimination of the one mens rea requirement may escape notice. Once again, what counts as a
crime dictates conclusions about what Congress has done in passing a statute—that is, whether it
has or has not eliminated a mens rea requirement.
The linkage between the mens rea issue and meaning of “crime” goes to the heart of the moral
foundation of criminal law, as Professor John Coffee has explained:

230
United States v. Lopez, 514 U.S. 549, 566 (1995); United States v. Morrison, 529 U.S. 598, 618 (2000).
231
Previously, the relevant portion of the provision (18 U.S.C. § 1960(b)(1)(A)) read “is intentionally operated”; it now reads
“is operated.”

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[T]o define the proper sphere of the criminal law, one must explain how its purposes and methods
differ from those of tort law. Although it is easy to identify distinguishing characteristics of the
criminal law—e.g., the greater role of intent in the criminal law, the relative unimportance of
actual harm to the victim, the special character of incarceration as a sanction, and the criminal
law’s greater reliance on public enforcement—none of these is ultimately decisive.
Rather the factor that most distinguishes the criminal law is its operation as a system of moral
education and socialization. The criminal law is obeyed not simply because there is a legal threat
underlying it, but because the public perceives its norms to be legitimate and deserving of
compliance. Far more than tort law, the criminal law is a system for public communication of
values. 232
When the traditional requirement of mens rea is weakened, then, the unique features of the crimi-
nal law are undermined, to the great detriment of society. It is troubling that, in a significant
proportion of new criminal statutes enacted in recent years, Congress has neglected this crucial
component that cuts to the heart of what it means to be “guilty” of a crime.
Conclusion
As is repeated throughout this report, one’s opinion about what counts as a federal crime drives
the count of federal crimes. Simply focusing on the penalty may not be sufficient because one
penalty often applies to several acts. While federal law classifies crimes by penalties, federal law
does not provide a clear definition of crime that would allow distinctions among separate criminal
acts. That makes any count subject to argument. At the very least, however, this report can
conclude the following: Based on the growth of federal crime legislation since the count in the
early 1980s by the Office of Legal Policy in the Department of Justice, the United States Code
today includes at least 4,450 offenses which carry a criminal penalty, and the rate at which
Congress passes new crimes has not waned since at least the 1980s.
Appendix
The Appendix to this report, which lists and describes the criminal statutory provisions enacted
from 2000 through 2007, is available at
http://www.heritage.org/Research/LegalIssues/upload/2008_Baker_appendix.pdf.
B. The Over-Criminalization of Social and Economic Conduct
Source: www.OverCriminalization.com (A product of The Heritage Foundation.)233
The origin of modern criminal law can be traced to early feudal times. From its inception, the
criminal law expressed both a moral and a practical judgment about the societal consequences of
certain activity: to be a crime, the law required that an individual must both cause (or attempt to
cause) a wrongful injury and do so with some form of malicious intent. Classically, lawyers
capture this insight in two principles: in order to be a crime there must be both an actus reus (a
bad act) and a culpable mens rea (a guilty mind). At its roots, the criminal law did not punish
merely bad thoughts (intentions to act without any evil deed) or acts that achieved unwittingly
wrongful ends but without the intent to do so. The former were for resolution by ecclesiastical

232
Coffee, supra note 20, at 193–194 (emphasis added) (citation omitted).
233
For more information see Paul Rozenberg, THE OVER-CRIMINALIZATION OF SOCIAL AND ECONOMIC CONDUCT, The Heritage
Foundation Legal Memorandum: Executive Summary. No. 7. April 17, 2003, at:
http://www.overcriminalized.com/pdfs/lm_07.pdf. Paul Rosenzweig is Senior Legal Research Fellow in the Center for
Legal and Judicial Studies at The Heritage Foundation and Adjunct Professor of Law at George Mason University.

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authorities and the latter were for amelioration in the tort system. In America today, this classical
understanding of criminal law no longer holds.
The requirement of an actual act of some form is fundamental. As an initial premise, Anglo-
American criminal law does not punish thought. For a crime to have been committed there must,
typically, be some act done in furtherance of the criminal purpose. The law has now gone far
from that model of liability for an act and, in effect, begun to impose criminal liability for the acts
of another based upon failures of supervision that are far different from the common law’s
historical understanding.
Similarly, the law historically has required that before an individual is deemed a criminal he must
have acted with an intent to do wrong. Accidents and mistakes are not considered crimes. Yet
contemporary criminal law punishes acts of negligence and even acts which are accidental. In the
regulatory context, as Justice Potter Stewart has noted, there is, in effect, a standard of near-
absolute liability.
Expanded Reach of Criminal Law.
To these fundamental changes in the nature of criminal liability one must also add significant
changes in the subject matter of criminal law. At its inception, criminal law was directed at
conduct that society recognized as inherently wrongful and, in some sense, immoral. These acts
were wrongs in and of themselves (malum in se), such as murder, rape, and robbery. In recent
times the reach of the criminal law has been expanded so that it now addresses conduct that is
wrongful not because of its intrinsic nature but because it is a prohibited wrong (malum
prohibitum)--that is, a wrong created by a legislative body to serve some perceived public good.
These essentially regulatory crimes have come to be known as “public welfare” offenses.
Thus, today the criminal law has strayed far from its historical roots. Many statutes punish those
whose acts are wrongful only by virtue of legislative determination. The distortion of the classical
criminal law has arisen for a variety of reasons (some of which may have been accompanied by
benign motives). For example, the Enron scandal and similar acts of intentional corporate fraud
have led to overly broad reform proposals that may trap honest but unsophisticated corporate
managers. But whatever the cause, the distortion is not without its consequences. The landscape
of criminal law today is vastly different from what it was 100 years ago--so much so as to be
almost unrecognizable.
Lack of Judicial Constraint.
Because the courts have deliberately chosen a limited, almost self-abnegating role in constraining
the use of criminal sanctions, no effective judicial constraint currently limits the extent to which
individual conduct that bears no direct causal relationship to a societal harm may be criminalized.
Nor is there a limit on the extent to which, in the social and economic context, the legislatures
may dispense with the traditional conceptions of mens rea. The consequences of this are two-fold:
a pathological legislative approach to criminal law and an excess of prosecutorial discretion.
The legislative impetus is clear--there is a “market” of public approval for more criminal laws
and no effective consideration of countervailing costs to society. And in the absence of any
judicial check on this legislative trend, the result is a wholesale transfer of power from elected
legislative officials to prosecutors who, in many instances, are unelected and not responsible to
the public. Where once the law had strict limits on the capacity of the government to criminalize
conduct, those limits have now evaporated. Society has come, instead to rely on the conscience
and circumspection in prosecuting officers. Or, as the Supreme Court said in United States v.
Dotterweich, Americans are obliged to rely only on “the good sense of prosecutors, the wise
guidance of trial judges, and the ultimate judgment of juries” to determine criminal conduct. In
effect, the legislative branch has transferred a substantial fraction of its authority to regulate

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American social and economic conduct to those who have no expertise in the matter: prosecutors,
trial judges, and jurors who make decisions on criminalizing conduct without any ability to
consider the broader societal impacts of their decisions.
Where once, to be a criminal, an individual had to do an act (or attempt to do an act) with willful
intent to violate the law or with knowledge of the wrongful nature of his conduct, today it is
possible to be found criminally liable and imprisoned for a substantial term of years for the failure
to do an act required by law, without any actual knowledge of the law’s obligations and with no
wrongful intent whatsoever. These developments are advanced in the name of the “public
welfare”--an express invocation of broader social needs at the expense of individual liberty and
responsibility. It is, ultimately, the triumph of a Benthamite utilitarian conception of the criminal
law over the morally grounded understanding of criminal law advanced by William Blackstone.
One may, and indeed one should, doubt the wisdom of such a course. Given how the criminal law
has developed, a free people are constrained to ask the question: Are broader social needs well
served when individual liberty and responsibility suffer?
C. The Consequences of Judicial Inaction234
In effect, then, the courts have deliberately chosen a limited, almost self-abnegating role in
constraining the use of criminal sanctions. As it stands today, no effective judicial constraint
currently limits the extent to which individual conduct that bears no causal relationship to a
societal harm may be criminalized. Nor is there a limit on the extent to which, in the social and
economic context, the legislatures may dispense with the traditional conceptions of mens rea. The
consequences of this are two-fold: a pathological legislative approach to criminal law and an
excess of prosecutorial discretion.
As Professor William Stuntz has noted, American criminal law “covers far more conduct than
any jurisdiction could possibly punish.”235 This wide span of American law is the product of
institutional pressures that draw legislators to laws with broader liability rules and harsher
sentences.236 The reason is the dynamic of legislative consideration: When a legislator is faced
with a choice on how to draw a new criminal statute (either narrowly and potentially
underinclusive or broadly and potentially overinclusive), the politics of the situation naturally
cause the legislator to be overinclusive. Few, if any, groups regularly lobby legislators regarding
criminal law and those that do more commonly seek harsher penalties and more criminal laws,
rather than less. The political dynamic is exacerbated by the consideration (usually implicitly) of
the costs associated with the criminal justice system. Broad and overlapping statutes with
minimum obstacles to criminalization and harsh penalties are easier to administer and reduce the
costs of the legal system. They induce guilty pleas and produce high conviction rates, minimizing
the costs of the cumbersome jury system and producing outcomes popular with the public.23790
The final piece of the equation is legislative reliance on the existence of prosecutorial discretion.
Broader and harsher statutes may produce bad outcomes that the public dislikes, but blame for
those outcomes will lie with prosecutors who exercise their discretion poorly, not the legislators
who passed the underlying statute. As a consequence, every incentive exists for criminal
legislation to be as expansive as possible.

234
Paul Rozenberg, THE OVER-CRIMINALIZATION OF SOCIAL AND ECONOMIC CONDUCT, The Heritage Foundation Legal
Memorandum: Executive Summary. No. 7. April 17, 2003, at: http://www.overcriminalized.com/pdfs/lm_07.pdf.
235
William J. Stuntz, THE PATHOLOGICAL POLITICS OF CRIMINAL LAW, 100 Mich. L. Rev. 505, 507 (2001).
236
Id. at 510.
237
Id. at 600.

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And in the absence of any judicial check on this legislative trend, the result is a wholesale transfer
of power from elected legislative officials to prosecutors who, in many instances, are unelected
and not responsible to the public. Where once the law had strict limits on the capacity of the
government to criminalize conduct, those limits have now evaporated. Society has come, instead
to rely on the “conscience and circumspection in prosecuting officers.”238 Or, as the Supreme
Court said in Dotterweich, Americans are obliged to rely only on “the good sense of prosecutors,
the wise guidance of trial judges, and the ultimate judgment of juries” to determine criminal
conduct. 23992 In effect, the legislative branch has transferred a substantial fraction of its authority
to regulate American social and economic conduct to those who have no expertise in the matter:
prosecutors, trial judges, and jurors who make decisions on criminalizing conduct without any
ability to consider the broader societal impacts of their decisions.
Conclusion
And so, the criminal law has come to this odd and unusual point in its development. Where once,
to be a criminal, an individual had to do an act (or attempt to do an act) with willful intent to
violate the law or with knowledge of the wrongful nature of his conduct, today it is possible to be
found criminally liable and imprisoned for a substantial term of years for the failure to do an act
required by law, without any actual knowledge of the law’s obligations and with no wrongful
intent whatsoever. These developments are advanced in the name of the “public welfare”—an
express invocation of broader social needs at the expense of individual liberty and responsibility.
It is, ultimately, the triumph of a Benthamite utilitarian conception of the criminal law over the
morally grounded understanding of criminal law advanced by Blackstone. One may, and indeed
one should, doubt the wisdom of such a course. Given how the criminal law has developed, a free
people are constrained to ask the question: Are broader social needs well served when individual
liberty and responsibility suffer?

D. Recognizing the Need for Change240


Excerpt from
A MODEL FOR LEADING CHANGE: MAKING ACQUISITION REFORM WORK
Report of the Military Research Fellows
Lieutenant Colonel Charles L. Beck, Jr., US Air Force
Lieutenant Colonel Nina Lynn Brokaw, US Army,
Commander Brian A. Kelmar, US Navy
DSMC 1996-1997
Defense Systems Management College, December 1997
One of the most important roles of the leadership is recognizing the need for change. This sounds
obvious, since change could not be implemented unless you recognize the need for it, but many

238
Nash v. United States, 229 U.S. 373, 378 (1913).
239
Dotterweich, 320 U.S. at 285.
240
Pp. 3-5 to 3-6. Footnotes omitted. Published by the Defense Systems Management College Press, Fort Belvoir, Virginia
22060_5565. (Disclaimer: This book was produced in the Department of Defense (DoD) school environment in the interest
of academic freedom and the advancement of national defense_related concepts. The views expressed in this book are those
of the authors and do not reflect the official position or policy of the DoD or those of the United States Government).
www.dau.mil/pubs/mfrpts/pdf/res97.pdf

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researchers point out that this recognition can be one of the hardest aspects of change. The
“Boiling Frog” experiment has been used to illustrate the difficulty of recognizing the need for
change:
“The label comes from a classic physiological response experiment involving two live frogs, a
pan filled with water, and a bunsen burner. The first frog is placed in a pan of cold water. The
pan is then placed on a bunsen burner and the heat is turned up very gradually. If the change in
temperature is gradual enough, the frog will sit in the pan until it boils to death. The creature
could have jumped out of the pan at any time, but the change in its environment happened so
gradually that no response was triggered in the frog and death ensued If we take the remaining
frog and place it in a pan of water that is already boiling, it will not sit there but will promptly
jump out and survive. We can clearly continue to refine this experiment so that we can discover
how great the change has to be in a given time period in order to get the frog to respond, but the
analogy is clear.” [Tichy and Devanna, Transformational Leader,241 44.]
Organizations become boiled frogs because they do not recognize the changes in their
environment in time to react. There are numerous examples of companies that have not
recognized the need for change. The business news regularly carries stories of large corporations
losing market share and profits, while companies in the same line of business are making record
profits. The companies that are doing poorly may have failed to recognize the need for change.
As illustrated by the boiling frog phenomenon, these organizations are slow to realize that a
change is needed.
The leaders of the organization must recognize and believe in the need for change before it is too
late. The senior leadership may not be the first to recognize the need for change, but they must be
sold on it and make a commitment to its support. Mr. William J. Trahant of Coopers and
Lybrand expresses the need for a clear reason for change: “No organization changes, absent a
business imperative for the change. Without this business imperative, the organization can
implement a lot of organizational good ideas, but these become training exercise, without
resulting in measurable change. This training is good, but will not result in change.”
Levels of Urgency for Change
Recognition of the need for change is tied in to the level of urgency for change. The less urgent
and obvious the need for change, the harder it is to see that change is needed, as was illustrated by
the boiling frog analogy. Organizational change theorists are in general agreement that there
must be a justifiable reason for change, and that the reason must be communicated to and
believed by the workforce. However, there is disagreement as to the level of urgency that must
be conveyed. Some researchers feel that successful organizational change can only occur if there
is a strong sense of urgency. Others lean more toward a “business imperative” to generate
change. Regardless of the level of urgency they advocate, almost all researchers agree that the
less urgent the need, the harder it will be to recognize and convince others of the need for change.
Using Lewin’s model, the less urgent the need, the harder it will be to create the dissatisfaction
with the status quo that will unfreeze the organization.

241
http://www.wiley.com/cda/product/0,,0471623342%7Cdesc,00.html. “How to transform an organization, based on
fascinating, inside stories of major industrial companies and service companies (including Fortune 500 companies),
aggressive smaller firms, and European companies. Provides insights into the styles and philosophies of leaders and
executives who have transformed their companies, whether big or small, and offers practical advice on middle management’s
role in transforming large organizations.”

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E. Treason by the Federal Courts over the Full Scope of the Second Amendment
THE SIGNIFICANCE OF EMANCIPATION IN THE WEST INDIES
Frederick Douglass. [1857] (1985).
Speech, Canandaigua, New York, August 3, 1857242
“Let me give you a word of the philosophy of reform. The whole history of the progress of
human liberty shows that all concessions yet made to her august claims, have been born of
earnest struggle. The conflict has been exciting, agitating, all-absorbing, and for the time being,
putting all other tumults to silence. It must do this or it does nothing. If there is no struggle there
is no progress. Those who profess to favor freedom and yet depreciate agitation, are men who
want crops without plowing up the ground, they want rain without thunder and lightening. They
want the ocean without the awful roar of its many waters.”
“This struggle may be a moral one, or it may be a physical one, and it may be both moral and
physical, but it must be a struggle. Power concedes nothing without a demand. It never did and it
never will. Find out just what any people will quietly submit to and you have found out the exact
measure of injustice and wrong which will be imposed upon them, and these will continue till
they are resisted with either words or blows, or with both. The limits of tyrants are prescribed by
the endurance of those whom they oppress. In the light of these ideas, Negroes will be hunted at
the North, and held and flogged at the South so long as they submit to those devilish outrages,
and make no resistance, either moral or physical. Men may not get all they pay for in this world;
but they must certainly pay for all they get. If we ever get free from the oppressions and wrongs
heaped upon us, we must pay for their removal. We must do this by labor, by suffering, by
sacrifice, and if needs be, by our lives and the lives of others.” Frederick Douglass, 1857

WHY WE FIGHT:
THEORIES OF HUMAN AGGRESSION AND CONFLICT,
David Churchman,
University Press of America,
Lanham, Maryland (2005),
ISBN 0-7618-3306-4 (paperback),
The Conclusion to “Chapter 3: The Nature of Man”
The question of whether man is aggressive or peaceful by nature or by nurture has long been
disputed, is not yet resolved, and may never be. The best evidence suggests that neither position
is correct –that the question is a false dichotomy and the two interact to produce the incredible
individual and cultural variety seen across human history. Our ancestors provide controversial
evidence as to our evolution from aggressive hunters, peaceful gegetarians, or opportunistic
scavengers. Our biology, particularly our hormones and differences between the sexes, provide
insights. Fundamental drives, to pass on our genes, to defend territory, to achieve status, and to
establish an individual identity, have explanatory power. Furthermore, like other species, we
resolve or manage many of our disputes by methods other than fighting, most often vebally.
Conflict is common but it is worth remembering that people are more often altruistic and
cooperative than warlike and murderous in their relations with one another.

242
In THE FREDERICK DOUGLASS PAPERS. SERIES ONE: SPEECHES, DEBATES, AND INTERVIEWS. Volume 3: 1855-63. Edited by
John W. Blassingame. New Haven: Yale University Press, p. 204.

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The Conclusion to “Chapter 4: Aggression and the Mind”


Anger might stimulate an impetuous courage, but of all degrees of courage, that is the least
effective. By outrage, I mean taking moral offense at something. . . . Outrage, which our sense of
duty summons us to redress, on the other hand, can find expression in a wider range of behavior.
We can use expressions that anger uses, or we can purposefully go about redressing the offense in
quiet, civil, ways, our comportment no different from what it is in other endeavors. . . . Anger and
the courage it can spark are depleted rather quickly. We blow up, speak our piece, swing our fist
until retribution is accomplished, and then we move on. . . . Outrage, if we have a sense of duty,
endures until the wrong is righted, as can the courage needed to accomplish the task.

Note that the Frederick Douglass in 1857 (pre-Civil War era) and David Churchman 148 years later in
2005 discuss generaly the same subject matter: human reactions to arbitrary aggressive behavior under various
names, i.e., bullying, verbal abuse, harassment, tyranny, fascism, judicial tyrants and despots.
“Outrage, if we have a sense of duty, endures until the wrong is righted, as can the courage needed to
accomplish the task” best describes my six years of litigation in the federal courts facing hostile judges with
political ideologies against the Second Amendment and/or against unrepresented civil plaintiffs or both. And here
I am again standing up to those same hostile judges telling them to kiss my ass in regard to their war against the
Second Amendment.
Now I may be a cynic about the U.S. Supreme Court’s opinion in the Heller case that the Second
Amendment is an individual right regardless of the militia but they way I see it the U.S. Supreme Court Court
realized that they we slicing off too many rights from the Bill of Rights too frequently to get away with nullifying
the individual right of the Second Amendment. So, the U.S. Supreme Court threw a bone to the American People
in the sytle of Marie-Antoinette’s “Let them eat cake” with their Second Amendment proclamation to distract the
People from the dismal condition of their Bill of Rights. But how long with this facade stand?
My cynicism is confirmed by two law review articles:
HELLER’S FUTURE IN THE LOWER COURTS,
Glenn H. Reynolds & Brannon P. Denning,
102 Nw. U. L. Rev. Colloquy 406 (July 2008).243
TWO ESSAYS ON DISTRICT OF COLUMBIA V. HELLER
Mark Tushnet,
Harvard Public Law Working Paper No. 08-17,
(“HELLER AND THE NEW ORIGINALISM,” forthcoming in the Ohio State Law Journal. And
“HELLER AND THE PERILS OF COMPROMISE,” forthcoming in the Lewis & Clark Law Review).244
The federal courts have aggressively refused to exercise subject mater jurisdiction over the full scope of
the Second Amendment. And as their aggression to divert the redress of grievances on the full scope of Second
Amendment rights is judicial treason against the Constitution of the United States under Cohen v. Com. Wealth
of Virginia 19 U.S. 264 (Wheat) (1821):
It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it
must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure
because it approaches the confines of the constitution. We cannot pass it by because it is doubtful.
With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it

243
http://www.law.northwestern.edu/lawreview/colloquy/2008/23/LRColl2008n23Reynolds&Denning.pdf
244
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1189494

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be brought before us. We have no more right to decline the exercise of jurisdiction which is
given, than to usurp that which is not given. The one or the other would be treason to the
constitution. Questions may occur which we would gladly avoid; but we cannot avoid them. All
we can do is, to exercise our best judgment, and conscientiously to perform our duty.)

Substituting a political ideology for the Rule of Law to deny triable cases that approach the limits of
constitutional rights and freedoms is not what would be considered the best judgments of federal judges. In the
landmark case Chisholm v. Georgia, 2 U.S. 419 (Dall.) (1793) the rightfully interpreted Article III, Section 2 of
the Constitution of the United States that a State can be sued by a citizen of another State address the matter of
treason against the Constitution in subtle terminology:
Let a State be considered as subordinate to the People: But let every thing else be subordinate to
the State. The latter part of this position is equally necessary with the former. For in the practice,
and even at length, in the science of politics there has very frequently been a strong current
against the natural order of things, and an inconsiderate or an interested disposition to
sacrifice the end to the means. As the State has claimed precedence of the people; so, in the
same inverted course of things, the Government has often claimed precedence of the State; and to
this perversion in the second degree, many of the volumes of confusion concerning sovereignty
owe their existence. The ministers, dignified very properly by the appellation of the magistrates,
have wished, and have succeeded in their wish, to be considered as the sovereigns of the State.
This second degree of perversion is confined to the old world, and begins to diminish, even there:
but the first degree is still too prevalent, even in the several States, of which our union is
composed. By a State I mean, a complete body of free persons united together for their common
benefit, to enjoy peaceably what is their own, and to do justice to others.
Chisholm v. Georgia, 2 U.S. at 455 (Dall.) (1793)
I have already remarked, that in the practice, and even in the science of politics, there has
been frequently a strong current against the natural order of things; and an inconsiderate
or an interested disposition to sacrifice the end to the means. This remark deserves a more
particular illustration. Even in almost every nation, which has been denominated free, the state
has assumed a supercilious preeminence above the people, who have formed it: Hence the
haughty notions of state independence, state sovereignty and state supremacy. In despotic
Governments, the Government has usurped, in a similar manner, both upon the state and the
people: Hence all arbitrary doctrines and pretensions concerning the Supreme, absolute, and
incontrolable, power of Government. In each, man is degraded from the prime rank, which he
ought to hold in human affairs: In the latter, the state as well as the man is degraded.
Id. at 461.
The U.S. Supreme Court did not hear a Second Amendment case since United States v. Miller 307 U. S.
174, 179 (1939). It was sixty-eight (68) years between Miller and Heller. It is ludicrous to believe that the People
did not have enough interest to file Second Amendment cases, let alone appeal them to the Supreme Court of the
United States. The set of cicrumstances implies a hostile federal judicial system dismissing cases at the District
Courts and the Appeals Courts affirming the dismissals and the U.S. Supreme Court denying petitions for writ of
certiorari during those 68 years. Isn’t that treason against the Constitution under Cohens?
Of more recent years the federal courts and the U.S. Department of Justice perfidiously avoided
addressing the full scope of the Second Amendment. Addressing the full scope of Second Amendment rights
would compel the federal courts and the U.S. Department of Justice to concede that the full scope, i.e, the
Holy Grail, of the Second Amendment embodies the right to openly keep and bear arms in intrastate, interstate,
and maritime travel. They would also have to establish that the unorganized militia under 10 U.S.C. § 311(b)(1)
has power reserved to the People under the Tenth Amendment and unenumerated rights under the Ninth
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system of the Constitution of the United States without permission or authority from the State or from the United
States. Note how meticulously the federal courts and the U.S. Department of Justice avoid addressing the scope of
the Second Amendment in the following landmark cases:
(1). (August 13, 2008) United States v. Hollis Wayne Fincher, 8th Circuit, No.
07-2514 and No. 07-2888
In discussing the limitations the government can place on an individual’s right to possess
firearms, the Court noted that Miller does not protect “weapons not typically possessed by law-
abiding citizens for lawful purposes, such as short-barreled shotguns.” Heller, 128 S. Ct. at
2815-16. The Court also articulated a nonexclusive list of what it viewed to be acceptable
government regulation of firearms:
[T]he majority of the 19th-century courts to consider the question held that prohibitions on
carrying concealed weapons were lawful under the Second Amendment or state analogues.
Although we do not undertake an exhaustive historical analysis today of the full scope of the
Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding
prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the
carrying of firearms in sensitive places such as schools and government buildings, or laws
imposing conditions and qualifications on the commercial sale of arms. We also recognize
another important limitation on the right to keep and carry arms. Miller said, as we have
explained, that the sorts of weapons protected were those “in common use at the time.” We think
that limitation is fairly supported by the historical tradition of prohibiting the carrying of
“dangerous and unusual weapons.”
Id. at 2816-17 (internal citations and footnote omitted).
(2). (June 26, 2008) District of Columbia v. Heller, U.S. Supreme Court, No. 07-
290 at 52-53 and 54-56; 128 S.Ct. 2783; 554 U.S.478 F. 3d 370, affirmed.
We may as well consider at this point (for we will have to consider eventually) what types of
weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment”
could mean that only those weapons useful in warfare are protected. That would be a startling
reading of the opinion, since it would mean that the National Firearms Act’s restrictions on
machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in
warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in
tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men
were expected to appear bearing arms supplied by themselves and of the kind in common use at
the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms
“in common use at the time” for lawful purposes like self-defense. “In the colonial and
revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of
person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98
(1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254
(1973)).
Indeed, that is precisely the way in which the Second Amendment’s operative clause furthers the
purpose announced in its preface. We therefore read Miller to say only that the Second
Amendment does not protect those weapons not typically possessed by law-abiding citizens for
lawful purposes, such as short-barreled shotguns. That accords with the historical understanding

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of the scope of the right, see Part III, infra.245


III
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone
through the 19th-century cases, commentators and courts routinely explained that the right was
not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever
purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For
example, the majority of the 19th-century courts to consider the question held that prohibitions on
carrying concealed weapons were lawful under the Second Amendment or state analogues. See,
e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent
*340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do
not undertake an exhaustive historical analysis today of the full scope of the Second
Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions
on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of
firearms in sensitive places such as schools and government buildings, or laws imposing
conditions and qualifications on the commercial sale of arms.246
We also recognize another important limitation on the right to keep and carry arms. Miller said,
as we have explained, that the sorts of weapons protected were those “in common use at the
time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of
prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769);
3 B. Wilson, WORKS OF THE HONOURABLE JAMES WILSON 79 (1804); J. Dunlap, THE NEW-YORK
JUSTICE 8 (1815); C. Humphreys, A COMPENDIUM OF THE COMMON LAW IN FORCE IN KENTUCKY
482 (1822); 1 W. RUSSELL, A TREATISE ON CRIMES AND INDICTABLE MISDEMEANORS 271–272
(1831); H. Stephen, SUMMARY OF THE CRIMINAL LAW 48 (1840); E. Lewis, AN ABRIDGMENT OF
THE CRIMINAL LAW OF THE UNITED STATES 64 (1847); F. Wharton, A TREATISE ON THE CRIMINAL
LAW OF THE UNITED STATES 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384
(1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v.
Lanier, 71 N. C. 288, 289 (1874).
It may be objected that if weapons that are most useful in military service—M-16 rifles and the
like—may be banned, then the Second Amendment right is completely detached from the
prefatory clause. But as we have said, the conception of the militia at the time of the Second
Amendment’s ratification was the body of all citizens capable of military service, who would
bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true
today that a militia, to be as effective as militias in the 18th century, would require sophisticated
arms that are highly unusual in society at large. Indeed, it may be true that no amount of small
arms ould be useful against modern-day bombers and tanks. But the fact that modern
developments have limited the degree of fit between the prefatory clause and the protected right

245
Miller was briefly mentioned in our decision in Lewis v. United States, 445 U. S. 55 (1980), an appeal from a conviction
for being a felon in possession of a firearm. The challenge was based on the contention that the prior feloy conviction had
been unconstitutional. No Second Amendment claim was raised or briefed by any party. In the course of rejecting the
asserted challenge, the Court commented gratuitously, in a footnote, that “[t]hese legislative restrictions on the use of
firearms are neither based upon constitutionally suspect criteria, nor do they trench upon any constitutionally protected
liberties. See United States v. Miller . . . (the Second Amendment guarantees no right to keep and bear a firearm that does not
have ‘some reasonable relationship to the preservation or efficiency of a well regulated militia’).” Id., at 65–66, n. 8. The
footnote then cites several Court of Appeals cases to the same effect. It is inconceivable that we would rest our interpretation
of the basic meaning of any guarantee of the Bill of Rights upon such a footnoted dictum in a case where the point was not at
issue and was not argued.
246
We identify these presumptively lawful regulatory measures only as examples; our list does not purport to be exhaustive.

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cannot change our interpretation of the right.


(3). (August 24, 2004) The Conclusion in the U.S. Department of Justice
Memorandum Opinion for the Attorney General [John Aschroft] WHETHER
THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHTS.247
[W]e conclude that the Second Amendment secures an individual right to keep and to bear arms.
Current case law leaves open and unsettled the question of whose right is secured by the
Amendment. Although we do not address the scope of the right, our examination of the
original meaning of the Amendment provides extensive reasons to conclude that the Second
Amendment secures an individual right, and no persuasive basis for either the collective-right
or quasi-collective-right views. The text of the Amendment’s operative clause, setting out a “right
of the people to keep and bear Arms,” is clear and is reinforced by the Constitution’s structure.
The Amendment’s prefatory clause, properly understood, is fully consistent with this
interpretation. The broader history of the Anglo-American right of individuals to have and use
arms, from England’s Revolution of 1688-1689 to the ratification of the Second Amendment a
hundred years later, leads to the same conclusion. Finally, the first hundred years of
interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil
War period closest to the Amendment’s ratification, confirm what the text and history of the
Second Amendment require.
(4). (December 5, 2002) Silveira, et al. v. Lockyer, 9th Cir. No. 01-15098.
Despite the increased attention by commentators and political interest groups to the question of
what exactly the Second Amendment protects, with the sole exception of the Fifth Circuit’s
Emerson decision there exists no thorough judicial examination of the amendment’s meaning.
The Supreme Court’s most extensive treatment of the amendment is a somewhat cryptic
discussion in United States v. Miller, 307 U.S. 174 (1939). In that case, a criminal defendant
brought a Second Amendment challenge to a federal gun control law that prohibited the transport
of sawed-off shotguns in interstate commerce. The Court rejected the challenge to the statute. In
the only and oft-quoted passage in the United States Reports to consider, albeit somewhat
indirectly, whether the Second Amendment establishes an individual right to arms, the Miller
Court concluded:
In the absence of any evidence tending to show that possession or use of a ‘shotgun having a
barrel of less than eighteen inches in length’ at this time has some reasonable relationship to the
preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment
guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice
that this weapon is any part of the ordinary military equipment or that its use could contribute to
the common defense.
Miller, 307 U.S. at 178. The Miller Court also observed more generally that “[w]ith the obvious
purpose to assure the continuation and render possible the effectiveness of [state militias] the
declaration and guarantee of the Second Amendment were made. It must be interpreted and
applied with that end in view.” Id. Thus, in Miller the Supreme Court decided that because a
weapon was not suitable for use in the militia, its possession was not protected by the Second
Amendment. As a result of its phrasing of its holding in the negative, however, the Miller Court’s
opinion stands only for the proposition that the possession of certain weapons is not protected,
and offers little guidance as to what rights the Second Amendment does protect. Accordingly, it
has been noted, with good reason, that “[t]he Supreme Court’s jurisprudence on the scope

247
http://www.usdoj.gov/olc/secondamendment2.pdf

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of [the Second] [A]mendment is quite limited, and not entirely illuminating.” Gillespie v.
City of Indianapolis, 185 F.3d 693, 710 (7th Cir. 1999). What Miller does strongly imply,
however, is that the Supreme Court rejects the traditional individual rights view.
The only post-Miller reference by the Supreme Court to the scope of the amendment
occurred in Lewis v. United States, 445 U.S. 55, 65 n. 8 (1980), in which the Court noted, in a
footnote dismissing a Second Amendment challenge to a felon-in-possession conviction, that the
federal gun control laws at issue did not “trench upon any constitutionally protected liberties,”
citing Miller in support of this observation. In that footnote, Lewis characterized the Miller
holding as follows: “[T]he Second Amendment guarantees no right to keep and bear a firearm
that does not have ‘some reasonable relationship to the preservation or efficiency of a well-
regulated militia.’ “ Id. (quoting Miller, 307 U.S. at 178). The Lewis Court, like the Miller Court,
phrased its statements in terms of what is not protected. Lewis does, however, reinforce the strong
implication in Miller that the Court rejects the traditional individual rights model.

(5). (Revised October 18, 2001) United States v. Emerson, 5th Cir,, No. 99-
10331 (October 16, 2001)
“We reject the collective rights and sophisticated collective rights models for interpreting the
Second Amendment. We hold, consistent with Miller, that it protects the right of individuals,
including those not then actually a member of any militia or engaged in active military service or
training, to privately possess and bear their own firearms, such as the pistol involved here, that
are suitable as personal, individual weapons and are not of the general kind or type excluded by
Miller. However, because of our holding that section 922(g)(8), as applied to Emerson, does not
infringe his individual rights under the Second Amendment we will not now further elaborate
as to the exact scope of all Second Amendment rights.”

F. Eighth Circuit’s Faulty Logic on Machinegun Prohibition in United States v.


Hollis Wayne Fincher, No. 07-2514 and No. 07-2888 (August 13, 2008)
“Accordingly, under Heller, Fincher’s possession of the guns is not protected by the Second
Amendment. Machine guns are not in common use by law-abiding citizens for lawful
purposes and therefore fall within the category of dangerous and unusual weapons that the
government can prohibit for individual use. Furthermore, Fincher has not directly attacked the
federal registration requirements on firearms, and we doubt that any such attack would succeed in
light of Heller. Accordingly, because [-8-] Fincher’s possession of guns is not protected by the
Second Amendment, the district court did not abuse its discretion in preventing him from arguing
otherwise to the jury.”
United States v. Hollis Wayne Fincher, 8th Cir., No. 072514 and No. 07-2888 (Aug. 31. 2008), p. 7-8.

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“There’s a mighty big difference between good, sound reasons and reasons that
sound good.” Burton Hillis, cited in Laurence J. Peter, PETER’S QUOTATIONS:
IDEAS FOR OUR TIME (1977), p. 425.

Let’s begin the “Machine guns are not in common use by law-abiding citizens for lawful purposes
and therefore fall within the category of dangerous and unusual weapons that the government can prohibit
for individual use” line of logical reasoning with United States v. Miller, 307 U. S. 174 at 179 (1939):

THE POST HOC FALLACY OF LOGIC OVER MACHINEGUNS


False Cause: This fallacy establishes a cause/effect relationship that does not exist. There are various
Latin names for various analyses of the fallacy.

Event B. Event C.
THE FALSE ARGUMENT: Machine guns are not in
common use by law-abiding citizens for lawful purposes and . . . the government can prohibit for
therefore fall within the category of dangerous and unusual individual use.
weapons that . . .
THE INVERSE ARGUMENT: If machine guns were in
common use by law-abiding citizens for lawful purposes (the . . . the government could not prohibit
Swiss model) they would not fall within the category of machineguns for individual use.
dangerous and unusual weapons and . . .

Event A. The U.S. Government created the condition that machinguns are not in common use by
law-abiding citizens for lawful purposes by regulating and outlawing machineguns beginning with the
National Firearms Act of 1934.
The Federal Courts ignore Event A in order to maintain the Post Hoc fallacy of logic (the false cause)
between Events B and C to defend the U.S. Government’s actions prohibiting possession and ownership
of machineguns.

The two most common include these types of logical false causes:
(1) Non Causa Pro Causa (Literally, “Not the cause for a cause”): A general, catch-all category
for mistaking a false cause of an event for the real cause.
(2) Post Hoc, Ergo Propter Hoc (Literally: “After this, therefore because of this”): This type of
false cause occurs when the writer mistakenly assumes that, because the first event preceded the
second event, it must mean the first event caused the later one. Sometimes it does, but sometimes
it doesn’t. It is the honest writer’s job to establish clearly that connection rather than merely assert
it exists. Example: “A black cat crossed my path at noon. An hour later, my mother had a heart-
attack. Because the first event occurred earlier, it must have caused the bad luck later.” This is
how superstitions begin.

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(1). Jacob Sullum, WHY NO RIGHT TO MACHINE GUNS? ReasonOnline,


June 26, 2008
WHY NO RIGHT TO MACHINE GUNS?
Jacob Sullum
http://www.reason.com/blog/printer/127226.html
June 26, 2008
Justice Antonin Scalia, writing for the majority in D.C. v. Heller, distinguishes between “unusual
and dangerous weapons,” which can be banned without violating the Second Amendment,
and weapons “in common use...for lawful purposes,” which can’t. The distinction is necessary
partly to shore up his argument that “nothing in our precedents forecloses our adoption of the
original understanding of the Second Amendment”—i.e., that it protects an individual right to
arms. In particular, Scalia argues that the 1939 decision U.S. v. Miller, which gun control
supporters (including the Heller dissenters) portray as endorsing the militia-only, collective-
right view of the Second Amendment, in fact “stands only for the proposition that the Second
Amendment right, whatever its nature, extends only to certain types of weapons.” The law at
issue in Miller was a federal ban on sawed-off shotguns, and the Court said “it is not within
judicial notice that this weapon is any part of the ordinary military equipment or that its use could
contribute to the common defense.” It therefore concluded that short-barreled shotguns are not
covered by the Second Amendment, which applies only to the sort of weapons that citizens would
bring with them for militia duty.

Scalia is right that Justice John Paul Stevens’ reading of Miller—that the Second
Amendment applies only to possession of guns while serving in the organized militia—is
implausible. “Had the Court believed that the Second Amendment protects only those serving in
the militia,” Scalia writes, “it would have been odd to examine the character of the weapon rather
than simply note that the two crooks were not militiamen.”

Nevertheless, for someone determined (as Scalia apparently is) to maintain existing federal gun
laws, there are a couple of problems with accepting the Miller Court’s view of which weapons are
covered by the Second Amendment. First, the Court’s assumption that short-barreled shotguns are
not appropriate for military use was incorrect. Second, this test would mean that the Second
Amendment covers machine guns, which also are banned by federal law.248 Scalia acknowledges
this difficulty:

Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only
those weapons useful in warfare are protected. That would be a startling reading of the opinion,
since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged
in Miller) might be unconstitutional, machineguns being useful in warfare in 1939.

248
As a commenter noted, private citizens can legally possess machine guns manufactured before 1986 if they successfully
complete an onerous and expensive licensing process. The sale of new machine guns to civilians is prohibited.

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To avoid this uncomfortable result, Scalia latches onto another phrase in Miller:

We think that Miller’s “ordinary military equipment” language must be read in tandem with what
comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to
appear bearing arms supplied by themselves and of the kind in common use at the time.”

Machine guns obviously were not “in common use” at the time the Second Amendment was
adopted. But that’s not enough to avoid overturning the ban on automatic weapons, since, as
Scalia himself emphasizes, constitutional rights do not apply only to colonial-era technology:

Some have made the argument, bordering on the frivolous, that only those arms in existence in
the 18th century are protected by the Second Amendment. We do not interpret constitutional
rights that way. Just as the First Amendment protects modern forms of communications, and the
Fourth Amendment applies to modern forms of search, the Second Amendment extends, prima
facie, to all instruments that constitute bearable arms, even those that were not in existence at the
time of the founding.

Scalia needs to make this point because otherwise today’s pistols and revolvers, quite different
from the firearms available in the 18th century, would not be covered by the Second Amendment.
But why stop there? Why isn’t an M-16, eminently suitable for military use but also the sort of
weapon militia members could keep in their homes and bring with them when their services were
necessary (as Swiss and Israeli citizen-soldiers do),249 included as well? Apparently
because machine guns are not “in common use...for lawful purposes” in the United States
today. But maybe they would be if they were legal. This seems like circular reasoning to
me. 250

G. Open Carry Handgun in Intrastate, Interstate, and Maritime Travel is the


Constitutional Norm Even Though it May Not Be the Social Norm or the Legal
Norm Today
(1). Nunn v. State, 1 Ga. (1 Kel.) 243 at 251 (1846) (cited, in part, by Heller):
“The right of the people to bear arms shall not be infringed.” 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, 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, reestablished by the revolution of 1688,
conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our
own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-
crowned field of New Orleans, plead eloquently for this interpretation! And the acquisition of
Texas may be considered the full fruits of this great constitutional right.
We are of the opinion, then, that so far as the act of 1837 seeks to suppress the practice of

249
Plaintiff’s emphasis.
250
Plaintiff’s emphasis.

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carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive the citizen of
his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so
much of it, as contains a prohibition against bearing arms openly, is in conflict with the
Constitution, and void; and that, as the defendant has been indicted and convicted for carrying a
pistol, without charging that it was done in a concealed manner, under that portion of the statute
which entirely forbids its use, the judgment of the court below must be reversed, and the
proceeding quashed.
(2). State v. Chandler, 5 La. Ann. 489, at 489-490; 52 Am. Dec. 599 (1850)
(citied, in part, by Heller at 40)
The counsel of the accused requested the court to charge the jury, “that to carry weapons, either
concealed or openly, is not a crime in the State of Louisiana; that the Constitution which
guarantees to the citizen the right to bear arms cannot be restricted by the action of the
Legislature.”
The act of the 25th of March, 1813, makes it a misdemeanor to be “found with a concealed
weapon, such as a dirk, dagger, knife, pistol, or any other deadly weapon concealed in his bosom,
coat, or any other place about him, that does not appear in full view.” This law became absolutely
necessary to (p.490)counteract a vicious state of society, growing out of the habit of carrying
concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting
persons. It interfered with no man’s right to carry arms (to use its words) “in full open view,”
which places men upon an equality. 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
neccessary, and of their country, without any tendency to secret advantages and unmanly
assassinations.
(3). Andrews v. State, 50 Tenn. (3 Heisk.) 165, 8 Am. Rep. 8 (1871) (citied, in
part, by Heller at 57)
We hold, then, that the Act of the Legislature in question, so far as it prohibits the citizen “either
publicly or privately to carry a dirk, sword cane, Spanish stiletto, belt or pocket pistol,” is
constitutional. As to the pistol designated as a revolver, we hold this may or may not be such a
weapon as is adapted to the usual equipment of the soldier, or the use of which may render him
more efficient as such, and therefore hold this to be a matter to be settled by evidence as to what
character of weapon (p.187)is included in the designation “revolver.” We know there is a pistol of
that name which is not adapted to the equipment of the soldier, yet we also know that the pistol
known as the repeater is a soldier’s weapon--skill in the use of which will add to the efficiency of
the soldier. If such is the character of the weapon here designated, then the prohibition of the
statute is too broad to be allowed to stand, consistently with the views herein expressed. It will be
seen the statute forbids by its terms, the carrying of the weapon publicly or privately, without
regard to time or place, or circumstances, and in effect is an absolute prohibition against keeping
such a weapon, and not a regulation of the use of it. Under this statute, if a man should carry such
a weapon about his own home, or on his own premises, or should take it from his home to a
gunsmith to be repaired, or return with it, should take it from his room into the street to shoot a
rabid dog that threatened his child, he would be subjected to the severe penalties of fine and
imprisonment prescribed in the statute. [187.1] See Page v. State. Post 198, in note. Page v. State,
50 Tenn. (3 Heisk.) 198 (1871). This opinion appears as a note in the last four pages of Andrews.
It has been separated to this file.

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(4). State v. Reid, 1 Ala. 612 at 616, 35 Am. Dec. 44 (1840) (citied, in part, by
Heller at 57)
(Held: The act of the 1st of February, 1839, “To suppress the evil practice of carrying weapons
secretly,” does not either directly, or indirectly tend to divest the citizen of the “right to bear arms
in defence of himself and the State;” and is, therefore consistent with the 23d section of the 1 Art.
of the constitution [of Alabama].)
A statute which, under the pretence of regulating, amounts to a destruction of the right, or
which requires arms to be so borne as to render them wholly useless for the purpose of
defence, would be clearly (p.617)unconstitutional. But a law which is intended merely to
promote personal security, and to put down lawless aggression and violence, and to that end
inhibits the wearing of certain weapons, in such a manner as is calculated to exert an unhappy
influence upon the moral feelings of the wearer, by making him less regardful of the personal
security of others, does not come in collision with the constitution.

H. What is the Role of the Unorganized Militia, 10 U.S.C. § 311(b)(2) in Federalism


and Homeland Security?
Federalism and the separation of powers under the Tenth Amendment must include the unorganized
militia with their Second Amendment rights specifically and their Bill of Rights generally as a stop-gap measure
in the event of another total break down of law and order traditionally provided by the local, state and federal
governments as evidenced by the disastrous response to Hurricane Katrina in New Orleans in 2005 where police
officers themselves were looting stores with other looters all around them251 and the distrust and disbelieve of the
Katrina victims of abuse of power and authority and constitutional and human rights violations committed by
local, state, and federal governmental and law enforcement authorities by testifying before Congress of their
experiences during and after the destruction of Hurricane Katrina.
HOMELAND SECURITY AND THE LOST PROTECTION CLAUSE
Jason Mazzone
Assistant Professor of Law, Brooklyn Law School
Pages 93 and 96. (November 12, 2004)
In 1916, Congress passed the National Defense Act.252 The Act federalized the National Guard,
imposing greater federal control and providing increased funding. The Act made the Guard part
of the Army.253 The Act stated that the Militia consists of all able-bodied men between the ages

251
http://thatvideosite.com/video/614 -and- http://www.youtube.com/watch?v=X7Kc1sBntXI
But see official versions: http://www.gpoaccess.gov/serialset/creports/katrinasupp.html
http://www.gpoaccess.gov/Katrinareport/mainreport.pdf. See also, Donald C. Menzel, The Katrina Aftermath: A Failure of
Federalism or Leadership?, Public Administration Review: The Response to Hurricane Katrina (November | December 2006)
Donald C. Menzel is the Director of the Institute for Public Policy & Leadership at the University of South Florida Sarasota-
Manatee. Available online at: http://www3.interscience.wiley.com/cgi-bin/fulltext/118561452/PDFSTART.
252
NATIONAL DEFENSE ACT OF JUNE 3, 1916, 39 Stat. 166.
253
Id. pmbl:
That the Army of the United States shall consist of the Regular Army, the Volunteer Army, the Officers’ Reserve Corps, the
Enlisted Reserve Corps, the National Guard while in the service of the United States, and such other land forces as are now or
may hereafter be authorized by law.

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of 18-45.254 The Militia was divided into three classes: the National Guard, the Naval Militia, and
the Unorganized Militia.255 No program was put in place under the Act for the Unorganized
Militia. 256
...
In addition to the historical development of the National Guard as a separate institution from the
old militia, rather than its heir, several functional distinctions weigh against equating guardsmen
with the old militiamen. The cornerstone of the Constitution’s militia was universal service (by
adult white men), whereas the National Guard is an entirely voluntary corps. The militia
originated as a local institution under the authority of the states. In sharp contrast, the National
Guard is, by law, part of the national military, run by, paid for, and mobilized by the national
government.257 Indeed, “[t]he militia . . . was designed and supported as an alternative to the
professional standing army of the central government. The modern National Guard, then, is not
just different from the militia referred to in the Constitution, it is in many ways, its antithesis.” 258
The militia was not only separate from the national army, it was meant to outnumber and
overpower it. (Recall Madison’s claim about what a half million militiamen could do to a couple
of thousand regulars.)259 By contrast, today more than 1.4 million troops belong to the regular

254
Id. § 57.
255
Id. [Plaintiff’s Emphasis on “Unorganized Militia”]
256
Plaintiff’s emphasis.
257
On modern funding of the old Militia, See H. Richard Uviller & William G. Merkel, THE MILITIA AND THE RIGHT
TO ARMS, OR, HOW THE SECOND AMENDMENT FELL SILENT, at 142-43 (Durham: Duke University Press, 2002):
With the help of lobbying by the NGA, Congress has judged and continued to judge the National Guard necessary to the
nation’s security and funds it handsomely in every federal budget. . . . The states, too, fund their Guards . . . albeit very much
less generously than the federal government. . . . In contrast to the National Guard, the unorganized militia—the shadow of
the common militia so extolled by the framers of the Second Amendment—has not been funded by Congress since at
least 1903. It is unclear that any state appropriated any of the funds Congress set aside for the common militia after
Reconstruction, or that any state provided funds for the unorganized militia after 1877, or even after 1850.
258
Id. at 153. These authors conclude that there is today no functionally equivalent entity of the old militia. Id. at 154.
259
See supra text accompanying note 174 (Included herein, footnotes omitted):
Federalists also emphasized the important role the militia would perform under the Constitution to prevent abuses by a
standing national army. Some delegates to Philadelphia specifically sought to add to the Constitution a statement that the
militia was a guard “against the danger of standing armies in time of peace.” Hamilton in Federalist 29 argues that federal
control over the militia would in fact protect liberties: the militia was “the only substitute that can be devised for a standing
army; and the best possible defense against it, if it should exist.” Madison calculated that given the option of employing the
militia, the federal government would not need a very large army at all: it would never comprise more than 25,000 or 30,000
men. An army of that size prevented little risk to liberties because it would be “opposed [by] a militia amounting to near half
a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common
liberties, and united and conducted by governments possessing their affections and confidence.” In any showdown, the
militia would never “be conquered by such a proportion of regular troops.” Preventing abuses by a national army therefore
required giving the national government power to employ the militia for security purposes so it would not be tempted to
deploy federal troops instead.176 (Madison also thought the political safeguards of federalism would keep in check national
military power.) As for the militia, it would never turn against the people even when under federal command because “the
existence of subordinate governments to which the people are attached, and by which the militia officers are appointed, forms
a barrier against the enterprises of ambition.” Finally, federalists emphasized that because the militia comprised ordinary
citizens, giving the national government power to march militia units into other states would not render them an instrument of
oppression.

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United States military establishment; the Army National Guard has about 360,000 members.260
The distinction between the old militia as an alternative to a standing army and the National
Guard as the army itself is symbolized by a further difference: who takes care of the weapons.
Militiamen kept their guns at home because they might need them at any moment to rise up in
arms against oppression. Weapons for use by National Guardsmen are kept under lock and key in
federal armories: the only armed fighting Guardsmen do is at the direction of the government
itself.261
THE MINUTEMEN, THE NATIONAL GUARD AND THE PRIVATE MILITIA MOVEMENT:
WILL THE REAL MILITIA PLEASE STAND UP?
Chuck Dougherty
28 John Marshall Law Review 959, 962-970 (Summer 1995)
Though the division of the militia into organized and unorganized branches still exists today,
Congress has not explicitly defined the role of the unorganized militia.262 Nevertheless, federal
statutes do provide for civilian firearms training as part of the Civilian Marksmanship Program. 263
Although legislators have attacked the program as being outdated, 264 it has survived

260
H. Richard Uviller & William G. Merkel, THE MILITIA AND THE RIGHT TO ARMS, OR, HOW THE SECOND
AMENDMENT FELL SILENT, at 143 (Durham: Duke University Press, 2002).
261
Id. at 143-44.
262
See Keith A. Ehrman & Dennis A. Henigan, THE SECOND AMENDMENT IN THE TWENTIETH CENTURY: HAVE YOU SEEN YOUR
MILITIA LATELY?, 15 U. Dayton L. Rev. 5, at 37 n.242 (1989). See supra note 15 [in original] for federal and state provisions
calling for the existence of an unorganized militia [included herein for convenience]:
For the federal unorganized militia statute, see 10 U.S.C. S 311 (1993). The statute provides that “The militia of the United
States consists of all able-bodied males at least 17 years of age and . . . under 45 years of age . . . and of female citizens of the
United States who are members of the National Guard.” S 311(a). The statute then defines the unorganized militia as
“members of the militia who are not members of the National Guard or the Naval Militia.” S 311(b)(2).
Similar constitutional provisions or statutes exist in most states. See, e.g., Ariz. Const. art. 16, S 1; Ark. Const. art. 11, S 1;
Colo. Const. art. 17, S 1; Ind. Const. art. 12, S 1; Iowa Const. art. 6, S 1; Kan. Const. art. 8, S 1; Ky. Const. S 219; Me. Const.
art. 7, S 5; Miss. Const. art. 9, S 214; Mont. Const. art. VI, S 13, cl. 2; N.M. Const. art. 18, S 1; S.D. Const. art. 15, S 1; Wyo.
Const. art. 17, S 1; Ala. Code S 31-2-2 (1975); Alaska Stat. S 26-05-010 (1962); Cal. Mil. & Vet. Code S 121 (West 1982);
Conn. Gen. Stat. S 27-1 (1958); Del. Code Ann. tit. 20, S 121 (1974); Fla. Stat. ch. 250.02(1) (1941); Ga. Code Ann. S 38-2-
3(d) (1981); Haw. Rev. Stat. S 121-1(4) (1976); Idaho Code S 46-102 (1932); Ill. Comp. Stat. Ann. 1805/1 S 1 (Smith-Hurd
1993); La. Rev. Stat. Ann. S 29:3 (West 1950); Md. Ann. Code art. 65, S 1 (1973); Mass. Gen. L. ch. 33, S 2 (1932); Mich.
Comp. Laws S 32.509 (1992); Minn. Stat. S 190.06 (1946); Mo. Rev. Stat. S 41.050 (1985); Neb. Rev. Stat. S 55-106 (1943);
Nev. Rev. Stat. S 412.026 (1991); N.H. Rev. Stat. Ann. S 110- B:1(IV) (1983); N.J. Rev. Stat. S 38A:1-2 (1987); N.Y. Mil.
Law S 2(2) (McKinney 1988); N.C. Gen. Stat. S 127A-1 (1986); N.D. Cent. Code S 37-02-01 (1943); Ohio Rev. Code Ann.
S 5923.01 (1953); Okla. Stat. tit. 44, S 41 (1987); Or. Rev. Stat. S 396.105(3) (1983); 51 Pa. Stat. Ann. S 301(a)(1) (1984);
R.I. Gen. Laws S 30-1-2 (1989); S.C. Code Ann. S 25-1- 60 (Law. Co-op. 1976); Tenn. Code Ann. S 58-1-104(d) (1956);
Utah Code Ann. S 39-1-1(1) (1953); Vt. Stat. Ann. tit. 20, S 1151 (1987); Va. Code Ann. S 44-1 (Michie 1950); Wash. Rev.
Code S 38.04.030 (1961); Wis. Stat. S 15-5-19 (1986). A Texas statute provides for a Texas State Guard which, unlike the
unorganized militias in most states, consists entirely of volunteers. Tex. Gov’t Code Ann. S 431.052 (West 1989). The
Wisconsin Constitution mentions an unorganized militia, but leaves its membership undefined. Wis. Const. art. IV, S 29.
263
10 U.S.C. S 4311 (1993). The statute provides that “(t)he Secretary of the Army may provide for the issue of a reasonable
number of standard military rifles, and the sale of such quantities of ammunition as are available, for use in conducting rifle
practice.” Id. In addition, this program provides for the operation of rifle ranges, employment of instructors, and competitions
for certain youth groups, as well as adults who are members of a gun club affiliated with the program. 10 U.S.C. S 4308
(1993). The youth groups include the Boy Scouts of America, 4-H Clubs and Future Farmers of America. Id.
264
139 Cong. Rec. S14122-01, S14132 (daily ed. Oct. 21, 1993) (statements of Sen. Domenici). Congress enacted the
program following the Spanish-American War to heighten preparedness for combat among potential army inductees. Id.

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Congressional [p.970] debates as recently as June 1994.265 At least one senator has argued that
the program continues to add to the nation’s defense capability. 266 Additionally, a United States
Army study found that individuals who received training in the program were significantly more
effective in combat than those without such training.267 However, although Congress explicitly
created a dual- militia system, the unorganized militias of the various states have remained
largely dormant.268
...
3. The Unorganized Militia
The federal government has afforded the unorganized militia no protection from federal firearms
regulations. 269 Since the unorganized militia’s membership comprises much of the general
citizenry, Congress has indirectly applied all federal firearms regulations to this group.270 While
the unorganized militia may be entitled to some Second Amendment protection, the small role
that states have given their unorganized militias limits the extent of this right.
The unorganized militia is wholly incapable of protecting the United States from foreign
aggression, and thus cannot receive Second Amendment protection for this militia purpose. The
unorganized militia has been called upon to fill this role in the past: governors have deployed

265
139 Cong. Rec. H5435-36 (daily ed. June 29, 1994) (statement of Rep. Mahoney). Congress authorized $2.5 million to be
used in fiscal year 1994 for the Civilian Marksmanship Program. 139 Cong. Rec. S14122-01, S14132 (daily ed. Oct. 21,
1993) (statement of Rep. Schatz).
266
139 Cong. Rec. S14122-01, S14133 (daily ed. Oct. 21, 1993) (statements of Sen. Craig). “(T)he talent of well-trained men
and women for purposes of marksmanship as it relates to the defense of this country really has not changed and it will not
change, only ebb and flow with our times and with our history.” Id.
267
See James B. Whisker, The Citizen-Soldier Under Federal and State Law, 94 W. Va. L. Rev. 947, at 969-70 (1992)
(summarizing the Arthur D. Little Report to the U.S. Army, 1966). Individuals engaged in combat who had previous firearms
training suffered fewer casualties, maintained their weapons better, and fired more often and with greater accuracy than those
without such prior training. Id.
268
See infra notes 185, 188 and accompanying text for a discussion of the few times that a state has called its unorganized
militia into service.
269
See generally Ehrman & Henigan, supra note 25 (noting that federal statutes are consistent with modern Federal Courts of
Appeals decisions finding that the National Guard is the only militia protected from federal firearms regulation).
270
Congress has not treated all persons equally with respect to firearms regulations. In particular, federal statutes entirely
exclude members of several groups from ownership of firearms. See 18 U.S.C. S 922(g) (1993) (prohibiting felons, fugitives
from justice, drug addicts, aliens, those dishonorably discharged from the armed services, or those who have renounced their
United States citizenship from possessing firearms). The federal courts have consistently upheld the constitutionality of such
restrictions. See, e.g., Lewis v. United States, 445 U.S. 55, 65-66 (1980) (finding that the exclusion of felons from the right to
possess firearms was consistent with Fifth Amendment Due Process). Commentators have noted that the “people” Madison
referred to in the Second Amendment are only those entitled to the full benefits of society. See Don B. Kates, Jr., HANDGUN
PROHIBITION AND THE ORIGINAL MEANING OF THE SECOND AMENDMENT, 82 Mich. L. Rev. 204, at 266 (1983) (noting the
attitude of the Constitution’s drafters against granting rights to convicted felons). Delegates at the state ratification
conventions made comments that directly support the view that the Second Amendment right excludes felons. Id. at 222. The
Pennsylvania right to arms proposal read, in pertinent part, “(N)o law shall be passed for disarming the people or any of them
unless for crimes committed, or real danger of public injury from individuals. . . .” Id. (quoting 2 B. Schwartz, THE BILL OF
RIGHTS: A DOCUMENTARY HISTORY 665 (1971)). Samuel Adams proposed that the Second Amendment right be limited to
peaceable citizens. Id. at 224.

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their unorganized militias as recently as World War II to repel foreign invasion.271 However, the
rapid advance of weapons technology since that time has left untrained, lightly-armed individuals
unable to resist any significant foreign threat.272
Modern police forces have generally replaced the eighteenth- century militia in the role of law
enforcement.273 However, governors [p.984] have occasionally called out their state’s
unorganized militia to quell civil unrest. 274 Sheriff’s Departments across the country still use the
common law posse comitatus concept to augment their law enforcement capabilities. 275
Additionally, individuals still use personally-owned firearms to prevent criminal activity or detain
criminals until the arrival of police.276 Thus, the Second Amendment may extend some
protection to the unorganized militia in the role of law enforcement. However, the extent to which
professional police provide for law enforcement today severely limits the unorganized militia’s
role.
4. Private “Citizen” Militias
Members of private militia organizations gain no Second Amendment rights by virtue of such
membership. The debates surrounding the ratification of the Constitution make clear that the
drafters’ definition of “militia” did not include private armies.277 The Federalists and Anti-
Federalists disagreed over how militia control would be divided between the federal and state
governments, but no one argued that the militia should be independent of all governmental
control.278 The concerns of the Anti-Federalists pertaining to the militia all involved retaining
control over the militia for the state governments.279 Thus, the inclusion of the Second
Amendment in the Bill of Rights rose out of concerns over federalism, not the protection of

271
Don B. Kates, Jr., HANDGUN PROHIBITION AND THE ORIGINAL MEANING OF THE SECOND AMENDMENT, 82 Mich. L. Rev. 204,
at 271-72 (1983) Following the Japanese attack of Pearl Harbor, the Governor of Hawaii called upon armed citizens to
augment the islands’ sparse defenses in repelling the anticipated Japanese invasion. Id. at 272 n.284.
272
But cf., id. at 271 (arguing that Congress, by failing to repeal the militia statute creating the unorganized militia, has
implicitly found the unorganized militia necessary in the case of “dire military emergency.”).
273
See, e.g., Sanford Levinson, THE EMBARRASSING SECOND AMENDMENT, 99 Yale L. J. 637, at 656 (1989) (acknowledging
the argument that professional police forces have made armed citizens irrelevant to effective law enforcement).
274
See, e.g., James B. Whisker, The Citizen-Soldier Under Federal and State Law, 94 W. Va. L. Rev. 947, at 973 (1992)
(describing Virginia Governor William Mumford Tuck’s use of the unorganized militia to prevent a utility worker strike).
275
See, e.g., Street Smart, L.A. Times, Aug. 8, 1994, at B1 (describing police use of the posse comitatus power to
commandeer vehicles and solicit assistance in pursuing criminals).
276
Every month, the National Rifle Association publishes examples of individuals countering criminal activity with firearms.
See, e.g., The Armed Citizen, Am. Rifleman, Sept. 1994, at 8. But See LaFawn Oliver, Protect Your Home Against Burglary,
Lewiston Morning Trib., July 19, 1992, at D2 (noting the danger of a criminal disarming a homeowner and using the
homeowner’s gun against him or her).
277
See supra notes 36-74 [in orginal] for a discussion of these debates. Senator Joseph Biden finds the use of the term “well
regulated” to be dispositive in determining that private organizations cannot claim Second Amendment protection. Meet the
Press (NBC Television broadcast, Apr. 30, 1995) (“(The private militias) are not constitutionally mandated. . . . (The Second
Amendment) says .well regulated’ militia, meaning a government . . . controls that militia; if they (are not government
controlled), they are not a militia.”). See supra notes 157-62 and accompanying text for a discussion of the phrase “well
regulated.”
278
Keith A. Ehrman & Dennis A. Henigan, THE SECOND AMENDMENT IN THE TWENTIETH CENTURY: HAVE YOU SEEN YOUR
MILITIA LATELY?, 15 U. Dayton L. Rev. 5, at 20 (1989).
279
See supra notes 43-46 [in orginal] for a discussion of the three principal Anti-Federalist concerns that relate to the militia.

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individual [p.985] rights.280 [194] The Second Amendment should protect the individual state
militiaman in the performance of his duties; however, that protection is ancillary to the protection
afforded to the state militias. Thus, once a militia member steps outside of his role as a state actor,
his Second Amendment protection ceases to exist. The private “citizen” militias, which generally
have no state affiliation, 281 can therefore receive no special Second Amendment protection.

FEDERALISM AND THE TUG OF WAR WITHIN:


SEEKING CHECKS AND BALANCE IN THE INTERJURISDICTIONAL GRAY AREA
Erin Ryan
66 Maryland Law Review 503 (2007)
Abstract:
FEDERALISM AND THE TUG OF WAR WITHIN explores tensions that arise among the underlying
values of federalism when state or federal actors regulate within the ‘‘interjurisdictional gray area’’
that implicates both local and national concerns. Drawing examples from the failed response to
Hurricane Katrina and other interjurisdictional problems to illustrate this conflict, the Article
demonstrates how the trajectory set by the New Federalism’s ‘‘strict-separationist’’ model of dual
sovereignty inhibits effective governance in these contexts. In addition to the anti-tyranny, pro-
accountability, and localism-protective values of federalism, the Article identifies a problemsolving
value inherent in the capacity requirement of American federalism’s subsidiarity principle (that
regulatory decisionmaking should take place at the most local level possible). The progression of
federalism models informing Supreme Court interpretation over the 20th century reflects a pendulum-
like attempt to reach the proper balance between these competing values. Although the Court’s
federalism jurisprudence during the New Deal era prioritized the problem-solving value over the
‘‘check-and-balance’’ anti-tyranny value, the New Federalism decisions exalt the check-and-balance
value at the expense of the problem-solving (and all other) values, protecting the bright line posited
between mutually exclusive spheres of state and federal regulatory authority.
Interjurisdictional problems uncomfortably blur that boundary, pitting problem-solving and checks-
and-balances against one another by demanding both local and national regulatory attention. But it
is arguably the tension between these values that has made our system of government so robust------
enabling it to adjust for changing demographics, technologies, and expectations without losing its
essential character. The New Federalism’s focus on checks and balances above all else compromises its
ability to effectively mediate this critical competition, sacrificing other federalism values and
obstructing even desirable regulatory activity in the interjurisdictional gray area (such as federal
initiative that might have been taken in the wake of Katrina). The comparatively pragmatic
cooperative federalism model affords some balance, but is critiqued by New Federalism proponents as
providing insufficient checks.
To remedy the theoretical problems left unresolved by cooperative federalism and the pragmatic ones
caused by New Federalism, this Article argues that the Court should adopt a model of Balanced
Federalism that better mediates between competing federalism values and provides greater guidance for

280
See Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW 299 n.6 (2d ed. 1988) (finding that the sole concern of the second
amendment’s framers was to prevent federal interferences with the state militia). Professor Tribe concludes that the Second
Amendment is “merely ancillary to other constitutional guarantees of state sovereignty.” Id.
281
A few such organizations, including the private militias in the Florida panhandle, do claim some marginal state affiliation.
See, e.g., Santa Rosa County, Florida, Resolution No. 94-09 (Apr. 14, 1994) (establishing the Santa Rosa County Militia by
nonbinding resolution).

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regulatory decisionmaking in the interjurisdictional gray area. Where the New Federalism asks the
Tenth Amendment to police a stylized boundary between state and federal authority from crossover by
either side, Balanced Federalism asks the Tenth Amendment to patrol regulatory activity within the
gray area for impermissible compromises of fundamental federalism values. The Article concludes by
introducing the outlines of a jurisprudential standard for interpreting Tenth Amendment claims
within a model of Balanced Federalism dual sovereignty that affords both checks and balance. Such a
framework would foster a healthier dialectic between the various federalism values that, though in
tension with one another, have made our system of government so effective and enduring.
C ONCLUSION: SEEKING CHECKS AND B ALANCE IN FEDERALISM
The accelerating interdependence of modernity has revived the great dilemma of
constitutional federalism------ that is, how to define the boundaries of state and federal
jurisdiction so as to preserve checks and balances without eviscerating effective regulatory
responses to interjurisdictional problems. The Tenth Amendment, representing the most
direct (if nondirective) constitutional statement about the balance
of local and national power, has become a site of heated political contest between those
who respectively favor stronger and weaker boundaries between local and national reach.
According to the former, the interlinking cooperative federalism model that drives many
of our most ambitious regulatory endeavors impermissibly threatens the constitutionally
intended balance;282 to the latter, the strictseparationist New Federalism approach
impossibly threatens meaningful resolution of our most pressing societal problems.283 Still,
the intractability of interjurisdictional regulatory problems like Katrina, national security
maintenance, air and water pollution, and others all highlight the need to develop a
model of Balanced Federalism that can more meaningfully contend with the
interjurisdictional gray area.
The Court’s New Federalism jurisprudence points us toward a strict-separationist model of
federal-state relations that assumes a clear line between areas of properly national and
inviolate local concern, policed by the Tenth Amendment. A host of controversial
preemption cases, doctrinally silent on federalism but for their vociferous dissents, acts in

282
See, e.g., Jonathan H. Adler, JUDICIAL FEDERALISM AND THE FUTURE OF FEDERAL ENVIRONMENTAL REGULATION, 90 Iowa
L. Rev. 377, 399 (2005) (stating that the administration of federal programs through the states obscures federal
regulatory responsibility); Michael S. Greve, Against Cooperative Federalism, 70 MISS. L.J. 557, at 576 (2000)
(arguing that a system of cooperative federalism threatens central constitutional values); Roderick M. Hills, Jr., The
Political Economy of Cooperative Federalism: Why State Autonomy Makes Sense and ‘‘Dual Sovereignty’’ Doesn’t,
96 MICH. L. REV. 813, at 891-908 (1998) (decrying commandeering as inefficient, unjust in cost distribution, and
violative of the First Amendment as forced speech).
283
See, e.g., Daniel C. Esty, REVITALIZING ENVIRONMENTAL FEDERALISM, 95 Mich. L. Rev. 570, at 623-24 (1996)
(finding that environmental programs are best enforced with both state and federal cooperation); Robert A.
Schapiro, TOWARD A THEORY OF INTERACTIVE FEDERALISM, 91 Iowa L. Rev. 243, at 258 (2005) (finding that the
dualist federalist approach advanced by the Supreme Court may limit Congress’s ability to deal with various
national problems, such as environmental protection); Philip J. Weiser, FEDERAL COMMON LAW, COOPERATIVE
FEDERALISM, AND THE ENFORCEMENT OF THE TELECOM ACT, 76 N.Y.U. L. Rev. 1692 at 1733-34 (2001) (noting that
the dual federalism approach has not worked in the telecommunications context and in fact, ‘‘defied reality’’);
Phillip J. Weiser, TOWARDS A CONSTITUTIONAL ARCHITECTURE FOR COOPERATIVE FEDERALISM, 79 N.C. L. Rev. 663, at
665-66 (2001) (observing that the New Federalism rhetoric does not account for the prac- tical need for federal-
state regulatory sharing); John D. Tortorella, Note, REINING IN THE TENTH AMENDMENT: FINDING A PRINCIPLED LIMIT TO
THE NON-COMMANDEERING DOCTRINE OF UNITED STATES V. PRINTZ, 28 Seton Hall L. Rev. 1365, 1381 (1998) (stating
that Printz’s non-commandeering rule will impede Congress’s ability to implement important policy objectives).

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tacit support of the project. Yet this idealistic bright line between mutually exclusive
spheres of authority is illusory. At the margins, a gray area exists in which regulatory
problems implicate matters of both national and local obligation. Decisionmaking that
imposes the bright-line rule in the interjurisdictional gray area is doomed to arbitrariness,
unable to navigate the tension there arising between the competing federalism values of
checks and balances, accountability, localism, and problem-solving. The latter value is
especially weakened in the strict-separationist approach, promoting inefficient regulatory
response in the gray area.
Yet even if legitimate constitutional interpretation does not require the bright-line rule
approach, neither does it warrant a wholesale abandonment of the check-and-balance
value that the New Federalism privileges. The fact that federalism constraints enjoy no
natural constituency suggests that judicially enforceable constraints may be necessary if we
value federalism’s underlying principles,284 as this piece argues we should. A powerful case
can be made for the importance of the under-appreciated problem-solving value, but each
of the others continue to exert considerable normative force.285 Federalism itself remains
content-neutral, designed to realize a set of competing good government values that are
suspended in a permanent tug of war.
What is needed, simply, is balance. The embrace of a Balanced Federalism model of dual
sovereignty that anticipates interjurisdictional problems would facilitate interpretation of
the Tenth Amendment so that it can police the real boundary at issue: that between
legitimate and unjustifiable regulation within the interjurisdictional gray area. It would
facilitate interpretation of the other controversial federalism inquiries that hinge on our
conception of dual sovereignty, such as the scope of the commerce power and the
relationship between federal authority under Section Five of the Fourteenth Amendment
and state sovereign immunity under the Eleventh Amendment. In Balanced Federalism,
the Tenth Amendment functions not as the blunt bright-line rule into which it has been
caricatured by the New Federalism, but instead as the guardian of dual sovereignty by the
careful application of a jurisprudential standard made sensitive to the clash of federalism
values in the gray area. Dual sovereignty under Balanced Federalism may be less
attractively simple than New Federalism’s strict-separationist ideal, but it would be more
honest, more grounded in reality, and ultimately more useful. A judicial balancing test
such as that proposed in Part VI would assist application of Balanced Federalism Tenth
Amendment constraints to the variety of challenges that arise in the gray area, providing
guidance for courts and policymakers nationwide.
Much work is needed to bring this proposal to maturity. Still, moving toward a more
Balanced Federalism would progress the discourse at a critical time for both federalism
and regulatory law. At stake is the ability of state and federal government to take on
confounding interjurisdictional problems without compromising the important
federalism values associated with structural checks and balances, all while continuing to
promote accountability and localized diversity and innovation. Moving from the bright-
line approach to the jurisprudential standard would maintain a healthy balance between

284
See Neal Devins, THE JUDICIAL SAFEGUARDS OF FEDERALISM, 99 NW. U. L. REV. 131, at 133 (2004) (discussing
voter disregard for federalism issues), and accompanying text.
285
Indeed, those so satisfied with the New Deal expansion of federal legislative jurisdiction that anti-tyranny
constraints now seem quaint might reflect on whether the expansion of federal executive authority in the post-9/11
era alters this complacency.

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local and national power without catapulting any one federalism value over all competing
considerations. And it would help make the difference between a faltering, ponderous
response to interjurisdictional crises like Katrina and the more confident, smoothly
coordinated regulatory response of which we should be capable.

ALL THE WAY DOWN THE SLIPPERY SLOPE:


GUN PROHIBITION IN ENGLAND AND SOME LESSONS FOR CIVIL LIBERTIES IN AMERICA
Joseph E. Olson and David B. Kopel
22 Hamline L. Rev. 399 at 414 (1999)
“As a result of alcohol prohibition, the United States in the 1920s and early 1930s did have a
problem with criminal abuse of machine guns, a fad among the organized crime gangsters who
earned lucrative incomes supplying bootleg alcohol, although most such firearms were owned by
peaceable citizens. The repeal of Prohibition in 1933 had sent the American murder rate
into a nosedive, but in 1934 Congress went ahead and enacted the National Firearms Act
anyway.”286
XI.
Conclusion: Towards Closer Analysis of Slippery Slopes
While slippery slopes are frequently invoked in political and legal debate, little attention has
been paid to factors that contribute to the real, as opposed to the merely theoretical, danger that a
first step down a slippery slope may lead to severe damage or even elimination of a civil liberty.
This Essay has identified the following factors that helped lead to the destruction of the right to
arms in Great Britain:
• media sensationalism about abuses of the right and media hostility toward the exercise of the
right;
• technological changes that introduce new and socially controversial (p.463)ways of
exercising the right;
• the hesitation of extending civil liberties principles developed under old technologies to new
technologies;
• the creation of government jurisdiction, in the form of a licensing system, that created a
platform for administrative constriction of the right;
• political leaders gaining political benefits (such as diverting the public from the death
penalty, or demonstrating the leader’s compassion) from attacks on the right;
• restrictions aimed at teenagers, which over the long term reduced the number of adults
interested in the exercising of the right, and, consequently reduced the number of adults
interested in defending the right politically;
• shifting the burden of proof away from the government, which no longer had to prove the
need for new restrictions or for the denial of a permit to exercise the right, and placing the
burden on the individual, who had to prove his or her need to own a particular item;
• restrictions created by administrative fiat that further reduced adult entry into or continuance
in the activity, thus driving the exercise of the right to levels so low that rights advocates

286
Plaintiff’s emphasis. http://www.guncite.com/journals/okslip.html

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became an insignificant political group;


• the production of deliberately misleading data by the government in support of restrictive
legislation;
• registration of the property of persons who exercised the right, which was later used to
facilitate confiscation of property;
• the government’s loss of trust in ordinary citizens.
In addition, we identified one other potential factor that might encourage movement down a
slippery slope, that being the prominent success of an earlier step down the slope; this factor did
not appear to be present in England. None of the British gun controls resulted in any statistically
noticeable reduction in crime in the years after their enactment.
These factors are not the only factors that could make a slippery slope situation dangerous; but
when slippery slope arguments are raised, the presence (or absence) of these factors may
indicate how real the slippery slope danger is. The more factors that are present, the greater the
potential slippery slope risk.
This Essay has also identified several structural elements in the British system of government
that contributed to the gradual elimination of the right to arms in Great Britain:
• rights are subject to balancing against perceived government or social needs;
• the government is not constrained by internal checks and balances;
• there is a consensus that Parliament, which is, in practice, a few leaders of the majority
party, rather than the people or the law, is sovereign;
• there is no written constitution;(p.464)
• the absence of a right in a written constitution impedes the growth of rights consciousness
among the people.
Regarding most of these elements, the United States is radically different from Great Britain.
Consequently, civil liberties of all types are stronger in the United States than in Great Britain.
However, the erosion of federalism and of the separation of powers over the last half century in
the United States should caution Americans against complacency regarding the security of their
constitutional structure.
We also identified several factors about the political defense of gun rights in Great Britain that
made the arms right vulnerable to the slippery slope. Most of these factors have parallels
regarding the defense of other civil liberties in Britain:
• the right was defended only on sporting grounds, and not on the basis that it protects people
from dangerous criminals or from dangerously criminal governments;
• the right’s defenders accepted and even applauded a great deal of regulation of the right;
• the right’s defenders accepted the principle that the right could be further regulated
whenever the government saw a need, rather than only when there was a genuine necessity
for more regulation;
• the right’s defenders usually appeased the government, rather than resisting unjustifiable
government demands for more controls;
• people who exercised the right in one way were often unwilling to defend people who
exercised the right in a different way.

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As with constitutional structure, the American system is considerably more sound than the
British one. Civil liberties organizations such as the National Rifle Association and the
American Civil Liberties Union are bolder than their British counterparts, and better able to
articulate strong theories of right that can withstand heavy political assault and pressure to
balance the right against other interests.
In the United States’ political and legal debate, arguments for or against slippery slopes have
heretofore often been made in a simplistic manner, with little more than assertions that slippery
slope dangers do or do not exist. We hope that this Essay can provide a step toward a more
complex analysis of slippery slopes by highlighting some of the elements that can increase or
decrease slippery slope risks.
Slippery slopes are not inevitable, but neither are they imaginary. The British experience
demonstrates that many civil liberties, including the right to arms, really can slowly slide all the
way to the bottom of the slippery slope. While we have not aimed to convince readers to value
any particular civil liberty, such as arms, speech, or protection from warrantless searches, we
have attempted to show that it is reasonable for groups that do honor such rights, like the NRA,
ACLU, or NACDL, to refuse to acquiesce in “reasonable” infringements of those rights. Even
though, as John Maynard (p.465)Keynes observed, we are all dead in the long run, persons who
cherish a particular civil liberty want that liberty to endure not just in their own lifetimes, but in
the lives of subsequent generations. In the long run, the best way to protect a given civil liberty
from destruction may be to resist even the smallest infringements in short run.

EXPOSING THE SECOND AMENDMENT:


FEDERAL PREEMPTION OF STATE MILITIA LEGISLATION
J. Norman Heath
79 U. Det. Mercy L. Rev.39 (2001).
http://www.guncite.com/journals/heath.html
II. Militia Preemption and the Marshall Court: State Militia Law Held Invalid
Professor Laurence H. Tribe identifies in Supreme Court jurisprudence three modes of federal
preemption exercisable by Congress against the states:
(1) “express preemption,” where Congress has in so many words declared its
intention to preclude state legislation of a described sort in a given area;
(2) “implied preemption,” where Congress, through the structure or objectives of
its enactments has by implication precluded a certain kind of state regulation in
an area; and
(3) “conflict preemption,” where Congress did not necessarily focus on
preemption of state regulation at all, but where the particular state law conflicts
directly with federal law, or otherwise (p.44) stands as an obstacle to the
accomplishment of federal statutory objectives.
In addition, Professor Tribe recognizes:
Because congressional purposes can be either substantive or jurisdictional, a state action may be
struck down as an invalid interference with the federal design either because it is in substantive
conflict with the operation of a federal regulation or program or because, whatever its
substantive impact, it intrudes jurisdictionally upon a field that Congress has validly reserved for
exclusively federal regulation. It is this latter phenomenon that some describe as field (or

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“occupying the field”) preemption - which, it is worth stressing, may fall into any of the three
categories set forth above. 287

IX. Conclusion
The federal court gun-possession case pronouncements bearing on the militia and federalism are
irreconcilable with the actual constitutional status of state militia regulation as expounded by the
U.S. Supreme Court. Intentionally or otherwise, jurists have deluded themselves and the legal
community into accepting the convoluted proposition that plenary power to organize and arm the
militia was both delegated to Congress (through the Militia Clauses) and(p.72) reserved to the
states (under the Second Amendment). 288 If such a phenomenon exists in the U.S. Constitution
it is remarkable that the Supreme Court has never cited the Second Amendment as an example
of “dual sovereignty,” “dual federalism,” or “new federalism” in the course of its endless labors
to define the boundaries of state and federal power.
In actual Supreme Court jurisprudence, there is no constitutional provision other than Article I,
Section 8, Clause 16 which limits Congressional interference with the “state” militia. The
Court’s repeated citations to the preemption of state militia law when adjudicating state-federal
conflicts in other areas of regulation greatly reinforce the conclusion that state militia powers are
ordinary in their susceptibility to federal preemption. Because the Second Amendment is not a
prophylactic benefiting state legislative or executive powers, it must represent either a
nonsensical protection of federal militia powers from federal interference,289 or it represents
some type of right held directly by the people. Any benefit to the state governments from the
Second Amendment must be incidental to a citizen-held right binding on the federal
government.
The dwindling proponents of the “states’ right” interpretation of the amendment cannot point to
a single instance of a militia-related(p.73) federal law being invalidated on Second Amendment
grounds, despite the Supreme Court having had multiple opportunities spread over two centuries
to invoke the amendment for that purpose.

287
Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW § 6-28, at 1176-77 (3d ed.2000).
288
A statement found on the American Bar Association’s website reads, “The United States Supreme Court and lower federal
courts have consistently interpreted this Amendment only as a prohibition against Federal interference with State militia and
not as a guarantee of an individual’s right to keep or carry firearms.” at http://www.abanet.org/gunviol/secondamend.html.
The basis for the A.B.A.’s claim that the U.S. Supreme Court endorses the “states’ right” interpretation of the amendment is
almost certainly to be found in a disputed reading of U.S. v. Miller, see supra text accompanying note 10.
289
According to former Solicitor General Seth Waxman, this problematic interpretation might even be the preferred one. In a
letter he wrote to a member of the National Rifle Association, dated 22 August 2000, later posted on the NRA’s website,
Waxman first identified the “right” as federal: “the ‘obvious purpose’ of the Second Amendment was to effectuate
Congress’s power to ‘call forth the Militia to execute the Laws of the Union . . . .” (emphasis added). He then went on to
offer an ambiguous explanation that contradicted the previous one: “[the] courts have uniformly held that it [the Second
Amendment] precludes only federal attempts to disarm, abolish, or disable the ability to call up the organized state militia.”
Finally, the Solicitor General alluded to, “the right of the states to maintain a militia that was being preserved...” (emphasis
added), at http://www.nraila.org/research/20000901-AntiGunGroups-OOl.shtml [GunCite note: Waxman’s letter is no longer
at the aforementioned URL, but it can be viewed here - http://www.rkba.org/federal/doj/waxman-emerson.html] . Thus, in
three short paragraphs, the Department of Justice endorsed three contradictory interpretations of the amendment, none of
which recognized a “right of the people” of any description. The Second Amendment debate is characterized by a puzzling
tendency to question the validity of the “individual right” reading while failing to examine at all the validity of the “states’
right” interpretation. Solicitor General Waxman’s letter seems to have capitalized on this pattern by relying on the neglect of
the reader to critically examine the positive, rather than negative, assertions being made.

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The suspicious obstinance of the lower federal courts in clinging to the “states’ right”
interpretation presents a serious obstruction to the proper adjudication of the nature and scope of
the Second Amendment right, and thus serves only to exacerbate and prolong the current public-
policy impasse regarding gun ownership. The American public deserves a more considered,
consistent, and constitutional approach to the delineation of the Second Amendment right. The
decisions of the lower federal courts in Second Amendment cases cannot ultimately withstand
high court scrutiny; a consistent body of Supreme Court jurisprudence spanning 180 years places
federal preemption of state militia powers among the most well-settled propositions in American
constitutional law.

I. General Synopsis of this Case


There is a longstanding right to intrastate, interstate, and maritime travel. But the dispute over the right to
travel while in lawful possession of a privately owned firearm (i.e., a handgun) under the Second Amendment
right to “openly” keep and bear arms under the Fourth, Fifth, Ninth, and Tenth Amendments is pivotal to all other
rights that my case brings to this Court.
My case presents the traveling Second Amendment as the flip-side to District of Colubmia v. Heller, No.
07-290; 554 U.S. ____ (2008), firearms in the home. My case targets the unconstitutional actions of the U.S.
Coast Guard violating my First Amendment and Second Amendment rights and my right to due process as a
seaman and as a citizen of the United States in terms of tort claims for damages in the amount of $4.8 million and
the obstructions of justice, harassment, and malicious threats of arrest and denials of rights by the U.S. Coast
Guard and the U.S. Marshals Service and other obstructions of justice and denials of rights by the U.S.
Department of Justice the federal judges exhibit bias in their unconstitutional Summary Judgment dismissals of
my cases for the last 6 years as tort claims for damages in the equal amount of $4.8 million and civil RICO Act
claims for triple damages for each amount in the amount of $14.4 million combined to equal $28.8 million.
This case invokes the Jus Tertii Doctrine to sue for the rights of third parties and Article XVIII (Right to
a Fair Trial) of the human rights treaty, AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN 1948 to sue
for my own human rights and for the human rights of third parties (i.e. the unorganized militia under 10 U.S.C. §
311(b)(2), truck drivers, and American merchant seamen, to target the unconstituational fraud of the individual
States and the United States in their conspiratorial collusion and unilateral attacks on the checks and balance
system of the U.S. Constitution as expressed in not only the aggregate effect of State and Federal gun control laws
but also the unconstitutional Eleventh Amendment and other case law and legislative and executive attacks on the
privileges and immunities, rights, powers, duties, and responsibilities of citizens of the individual States and as
citizens of the United States under the Bill of Rights, Thirteenth and Fourteenth Amendments.
STATE PAROCHIALISM, THE RIGHT TO TRAVEL, AND
THE PRIVILEGES AND IMMUNITIES CLAUSE OF ARTICLE IV
Bryan H. Wildenthal
41 Stanford Law Review 1557 at 1557-1558 (July 1989):
State discrimination against out-of-staters falls into two conceptually distinct categories. On the
one hand, a state might treat its own residents more favorably than residents of other states who
are temporarily within the state’s jurisdiction, whether as travelers, day-commuters, or those just
wandering through who may lack residence in any particular state. The Court has generally
viewed this kind of resident/ nonresident discrimination as subject to the strictures of the
privileges and immunities clause of article IV.290 The commerce clause291 has also been invoked

290
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S.
CONST. art. IV, § 2, cl. 1.

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against resident/nonresident discrimination, in the context of commercial discrimination against


nonresident buyers or sellers. On the other hand, a state might discriminate among those currently
claiming residence in the state, on the basis of how recently they moved into the state or on their
motives for moving into the state. This type of policy divides residents into two classes: those
accepted as bona fide, established residents, and those disfavored as latecomers with inadequate
ties or attachment to the state, suspect motives for immigrating, or perhaps both. Because the
latecomers have, by definition, recently exercised the right to travel into the state discriminating
against them, the Court has tended to view such discrimination as impinging on that right, thereby
triggering strict scrutiny under the equal protection clause of the fourteenth amendment. This has
been the basis for the Court’s development of the so-called “right to travel” strand of equal
protection analysis.292
Id. at 1592 (July 1989):
Framing a strict scrutiny test under the privileges and immunities clause requires a re-
examination of the test traditionally employed under the clause’s jurisprudence. This has
frequently been phrased as the “peculiar evil” test, an odd, recurrent formulation which
apparently originated in Toomer v. Witsell,293 and which is merely a somewhat confusing and
darkly mysterious way of stating a classic kind of close-fit, means-ends analysis-the kind utterly
familiar in equal protection jurisprudence. That is, where some important state interest exists (an
“evil” that must be ameliorated), a classification scheme aimed at certain persons (the allegedly
“peculiar” source of the “evil”) will be up- held as advancing the interest if the fit between means
and ends is sufficiently close-if the objects of the classification truly are the “peculiar” source of
the “evil.” Toomer also offered a more straightforwardly-phrased means-ends test,294 which has
increasingly supplanted the “pe- culiar evil” language in modern Court decisions.295207 By the
time of the Piper case, a ready-made formulation existed for our present purposes: The Clause
does not preclude discrimination against nonresidents where (i) there is a substantial reason for
the difference in treatment; and (ii) the discrimination practiced against nonresidents bears a
substantial relationship to the State’s objective. In deciding whether the discrimination bears a

291
U.S. CONST. art. I, § 8, cl. 3.
292
See U.S. CONST. amend. XIV, § 1; notes 115-202 [in original] and accompanying text [pp. 1575-1591].
293
[Footnote 205 in original] 334 U.S. 385, 396-98 (1948); see also, e.g., United Bldg. & Constr. Trades Council v. Camden,
465 U.S. 208, 222 (1984); Zobel v. Williams, 457 U.S. 55, 76 (1982) (O’Connor,J., concurring in the judgment); Hicklin v.
Orbeck, 437 U.S. 518, 525-26 (1978) (each reciting “peculiar evil” test). See also the discussion of the peculiar evil test at
text accompanying [Footnote 22 in original: Text at 1561 in original: (The traditional test the Court has used to analyze
resident/nonresident distinctions under the clause is somewhat oddly phrased. It asks whether the nonresidents disadvantaged
by the state law in question “ ‘constitute a peculiar source of the evil at which the [discriminatory] statute is aimed.’ “)
[Footnote 22 in original]: Hicklin v. Orbeck, 437 U.S. 518, 525-26 (1978) (quoting Toomer v. Witsell, 334 U.S. 385, 398
(1948)) (brackets added by Hicklin Court). But see text accompanying notes 205-208 [in original; but consolidated in the first
half of this footnote herein.] (noting recent emergence of the “substantial relationship” test).
294
“[The clause] does not preclude disparity of treatment in the many situations where there are perfectly valid independent
reasons for it. Thus the inquiry in each case must be concerned with whether such reasons do exist and whether the degree of
discrimination bears a close relation to them.” Toomer, 334 U.S. at 396. Substitute “compelling state interest” for “reason”
and you have, of course, a classic statement of the strict scrutiny test.
295
See, e.g., Supreme Court of N.H. v. Piper, 470 U.S. 274, 284 (1985) (eschewing “peculiar evil” language in favor of
“substantial relationship” test); Camden, 465 U.S. at 222 (reciting “substantial relationship” and “peculiar evil” tests side by
side). It was never exactly clear how stringent the old peculiar evil test was. After all, how peculiar is “peculiar”?

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close or substantial relationship to the State’s objective, the Court has considered the availability
of less restrictive means.296

296
Piper, 470 U.S. at 284 (citations omitted).

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Compare Chisholm v. Georgia, 2 U.S. 419 at 455 (1793) (Justice Wilson):

“Let a State be considered as subordinate to the People: But let every thing else be subordinate to
the State. The latter part of this position is equally necessary with the former. For in the practice,
and even at length, in the science of politics there has very frequently been a strong current
against the natural order of things, and an inconsiderate or an interested disposition to
sacrifice the end to the means.”297

Again, Chisholm v. Georgia, 2 U.S. 419 at 461-462 (1793) (Justice Wilson).

I have already remarked, that in the practice, and even in the science of politics, there has
been frequently a strong current against the natural order of things; and an inconsiderate
or an interested disposition to sacrifice the end to the means. This remark deserves a more
particular illustration. Even in almost every nation, which has been denominated free, the state
has assumed a supercilious preeminence above the people, who have formed it: Hence the
haughty notions of state independence, state sovereignty and state supremacy. In despotic
Governments, the Government has usurped, in a similar manner, both upon the state and the
people: Hence all arbitrary doctrines and pretensions concerning the Supreme, absolute, and
incontrolable, power of Government.298 In each, man is degraded from the prime rank, which he
ought to hold in human affairs: In the latter, the state as well as the man is degraded. Of both
degradations, striking instances occur in history, in politics, and in common life. One of them is
drawn from an anecdote, which is recorded concerning Louis XIV. who has been stiled the grand
Monarch of France. This Prince, who dissused around him so much dazzling splendour, and so
little vivifying heat, was vitiated by that inverted manner of teaching and of thinking, which
forms Kings to be tyrants, without knowing or even suspecting that they are so. The oppression,
under which he held his subjects during the whole course of his long reign, proceeded chiefly
from the principles and habits of his erroneous education. By these, he had been accustomed to
consider his Kingdom as his patrimony, and his power over his subjects as his rightful and
undelegated inheritance. These sentiments were so deeply and strongly imprinted on his mind,
that when one of his Ministers represented to him the miserable condition, to which those subjects
were reduced, and, in the course of his representation, frequently used the word L’Etat, the state,
the King, though he felt the truth and approved the substance of all that was said, yet was shocked
at the frequent repetition of the expression L’Etat; and complained of it is as an indecency offered
to his person and character. And, indeed, that Kings should imagine themselves the final causes,
for which men were made, and societies were formed, and Governments were instituted, will
cease to be a matter of wonder or surpise, when we find that lawyers, and statesmen, and
philosophers, have taught or favoured principles, which necessarily lead to the same conclusion.
Another instance, equally strong, but still more astonishing, is drawn from the British
Government, as described by Sir William Blackstone and his followers. As described by him and
them, the British is a despotic Government. It is a Government without a people. In that
Government, as so described, the sovereignty is possessed by the Parliament: In the Parliament,
therefore, the supreme and absolute authority is vested: In the Parliament resides that
incontrolable and despotic power, which, in all Governments, must reside somewhere. The
constituent parts of the Parliament are the King’s majesty, the Lord’s Spiritual, the Lord’s
Temporal, and the Commons. The King and these three Estates together form the great
corporation or body politic of the Kingdom. All these sentiments are found; the last expressions

297
Plaintiff’s emphasis.
298
Plaintiff’s emphasis.

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are found verbatim in the commentaries upon the laws of England. The Parliament form the great
body politic of England! What, then, or where, are the People? Nothing ! No where! They are not
so much as even the ‘baseless fabric of a vision!’ From legal contemplation they totally
disappear! Am I not warranted in saying, that, if this is a just description; a Government, so and
justly so described, is a despotic Government?

J. To Sue For My Own Rights and Pursuit of Justice


(1). To Determine Constitutionality of Summary Judgment Dismissals of My
Previous Cases over the Second Amendment
CASE NO. 1: Hamrick v. Adm. Thomas H. Collins, et al, U.S. District Court for DC, No. 02-1434 filed July
18, 2002, COMPLAINT FOR DEFAMATION & DAMAGES, LIBEL AS A MATTER OF PRIVATE
CONCERN, INJURY TO REPUTATION, UNLAWFUL INTERFERENCE WITH THE LAWFUL
OPERATION OF A U.S. MERCHANT VESSEL, UNLAWFUL INTERFERENCE WITH A SEAMAN’S
EMMPLOYMENT ABOARD A U.S. MERCHANT VESSEL, WRONGFUL DETENTION / FALSE
IMPRISONMENT OF A U.S. MERCHANT SEAMAN IN A FOREIGN COUNTRY, HARASSMENT,
EMOTIONAL DISTRESS, AND SUBJECTION TO A MALICIOUS CRIMINAL INVESTIGATION
EXTENDING FROM PETITIONER’S EXERCISE OF F IRST AMENDMENT RIGHTS TO FREE SPEECH
AND TO PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES PURSUING SECOND
AMENDMENT RIGHTS; Dismised with Prejudice.
CASE NO. 2: Hamrick v. President Bush, et al, U.S. District Court for DC, No. 02-1435 filed July 18, 2002,
PETITION FOR WRIT OF MANDAMUS, A WRIT OF PROHIBITION, DECLARATORY JUDGEMENT
AND INJUNCTIVE RELIEF; Dismised with Prejudice; Affirmed District Court’s Dismissal with
Prejudice on October 10, 2002. Appeal filed with DC Circuit, October 28, 2002. DC Circuit
affirmed Dismissal with Prejudice. Appealed to U.S. Supreme Court. Petition for Writ of
Certiorari, No. 03-145, Denied.
CASE NO. 3: Hamrick v. President Bush, et al, U.S. District Court for DC, No. 03-2160, October 21, 2003,
AMENDED COMPLAINT – CRIMINAL & CIVIL RIGHTS COMPLAINT OF RACKETEERING AND
FRAUD UNDER THE RICO ACT FOR AN UNCONSTITUTIONAL PROTECTION SCHEME UNDER
COLOR OF LAW OVER THE SECOND AMENDMENT VIOLATING PLAINTIFF’S RIGHT TO PETITION
AND R IGHT TO DUE PROCESS AND FOR WRIT OF MANDAMUS, WRIT OF PROHIBITION,
DECLARATORY AND INJUNCTIVE RELIEF & FOR DAMAGES; Dismissed with Prejudice.
Appealed to DC Circuit, Case No. 04-5316. Appealed to U.S. Supreme Court on Rule 11
(Before Judgment of the DC Circuit); Petition for Writ of Certiorari, No. 04-1150, Denied.
CASE NO. 4: Hamrick, pro se v. United States, U.S. District Court for DC, No. 1:04MS00422, filed
September 1, 2004; MOTION FOR THE COURT TO SUMMON A SPECIAL GRAND JURY, IN RE:
HAMRICK (PRO SE) V. PRESIDENT GEORGE W. BUSH, ET AL: A SECOND AMENDMENT CASE;
TO INVESTIGATE ALLEGATIONS OF CORRUPTION AND RACKETEERING IN THE FEDERAL
JUDICIARY AND IN THE U.S. DEPARTMENT OF JUSTICE. This case sought a criminal review of
Cases 1 through 3 above. Case was dismissed because the judge sat on it doing nothing.

Because the federal courts have systematically and repetitively dismissed my Second Amendment case
because my cases advocate the Second Amendment and Ninth Amendment right to “openly” keep and bear arms
in intrastate, interstate, and maritime travel the federal courts have committed treason against the Constitution of
the United States. Collection of filing fees is not a judicial function of federal judges or their court clerks it is an
administrative function. Therefore federal judges are accountable for their acts of felony extortion under color of

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law (18 U.S.C. § 8972) and felony extortion under color of official right (racketeering) (18 U.S.C. § 1951(b)(2),
even though they may issue court orders compelling payment with the subject matter of the case qualifies for the
Seamen’s Suit Law (28 U.S.C. § 1916), the orders are still unlawfull. The evidence of bad faith behavior under
Article III is clear and unmistakeable. See Mireles v. Waco 502 U.S. 9 (1991) (Judicial immunity is an immunity
from suit, not just from ultimate assessment of damages, and it can be overcome only if a judge’s actions are
nonjudicial or were taken in the complete absence of all jurisdiction.).
(2). To Compel Intervention by the Attorney General (42 U.S.C. § 2000h–2)
To compel intervention by the Attorney General by Writ of Mandamus or by other court order to certify
this case as one of general public importance in accordance with 42 U.S.C. § 2000h–2 for relief from the denial of
equal protection of the laws under the Fourteenth Amendment to the Constitution on account national origin.
(3). To determine whether I have a civil Gideon right to court appointed
qualified attorney under the American Bar Association’s Task Force on
Access to Civil Justice’s recommendation.
To determine whether I have a civil Gideon right to court appointed qualified legal representation under
the American Bar Association’s Recommendation Adopted by the House of Delegates, August 7-8, 2006 (That
the American Bar Association urges federal, state, and territorial governments to provide legal counsel as a
matter of right at public expense to low income persons in those categories of adversarial proceedings where
basic human needs are at stake, such as those involving shelter, sustenance, safety, health or child custody as
determined by each jurisdiction.).299
(4). To determine if Mandamus Relief was wrongfully Denied
To determine whether the creation of the U.S. Department of Homeland Security on March 1, 2003 and
the transfer of the U.S. Coast Guard from the U.S. Department of Transportation to the U.S. Department of
Homeland Security provided the requisite “extraordinary situation” for mandamus relief from the U.S. Coast
Guard’s Final Agency Action denying my Second Amendment right to have the “National Open Carry Handgun”
endorsement on the Merchant Mariner’s Document and whether I have a clear right to relief and whether the
United States has a clear duty to act and whether I exhausted all other available remedies. (See See Gulfstream
Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988); Power v. Barnhart, 292 F.3d 781, 784 (D.C.
Cir. 2002); see also In re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000) (mandamus issued “only for
the most transparent violations of a clear duty to act”). And to determine whether my original Petition for Writ of
Mandamus (U.S. District Court for DC, No. 02-1435) and for damages (No. 02-1434) were wrongfully dismissed.
(5). To enforce my Seventh Amendment rights under the Common Law by
treaty under the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN.
To enforce my Seventh Amendment right to a civil jury trial under the common law after six years of
unconstitutional summary judgments for dismissals on Motions to Dismiss by invoking my rights under the
AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN through the Treaty Clause as a private right of
action in the U.S. District Court for the District of Columbia.
(6). To enforce a proper and uncorrupted judicial review of the FINAL AGENCY
ACTION of the U.S. Coast Guard.
To enforce my right to a proper and uncorrupted judicial review of the Final Agency Action of the U.S.
Coast Guard for fraudulently denying my Second Amendment application for “National Open Carry Handgun”

299
http://www.abanet.org/legalservices/sclaid/downloads/06A112A.pdf

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endorsement on the Merchant Mariner’s Document on the basis that the requested endorsement would not be in
the best interest of marine safety or security.
(7). To determine whether provisions for private rights of action should be
mandatory for all statutory rights under federal laws.
To determine whether the Seamen’s Suit law, 28 U.S.C. § 1916, has an implied private right of action to
effect citizen’s arrests by way of Citizen’s Arrest Warrants for federal judges and court clerks for 18 U.S.C. § 872
EXTORTION UNDER COLOR OF LAW and 18 U.S.C. § 1651(b)(c) EXTORTION UNDER COLOR OF OFFICIAL RIGHT
(Racketeering) and whether all statutory rights under federal laws should have provisions for private rights of
action against federal employers for violating those statutory rights as part of the checks and balance system under
the unenumerated rights of the Ninth Amendment and powers reserved to the People under the Tenth
Amendment.
(8). To determine whether allegations of obstruction of justice against the U.S.
Marshals Service are valid.
To determine whether allegations of obstruction of justice against the U.S. Marshals Service are valid in
refusing to accept, to act on, or to assist with my Citizen’s Arrest Warrant which included probable cause
evidence of extortion under color of law and under color of official right in the form of copies of Court Orders
unlawfully ordering me to pay the filing fees of the U.S. Court of Appeals for the DC Circuit as a seaman under
the Seamen’s Suit Law Law (28 U.S.C. § 1916).
(9). To apply the Federal Tort Claims Act for violations of the Seamen’s Suit
Law (28 U.S.C. § 1916).
To hold certain federal judges and their court clerks liable under the Federal Tort Claims Act for
administrative violations of the federal laws noted in Line Item H. above in light of the fact that immunity does
not extend to administrative functions of judges and court employees. See Mireles v. Waco 502 U.S. 9 (1991)
(Judicial immunity is an immunity from suit, not just from ultimate assessment of damages, and it can be
overcome only if a judge’s actions are nonjudicial or were taken in the complete absence of all jurisdiction.).
Collection of exempted filing fees is not a judicial function.
(10). To determine if six years of unconstitutional summary judgments on
motion to dismiss meets the requisite conditions for mandamus relief.
To determine whether the federal courts created an “extraordinary situation” for mandamus relief with 6-
years of dismissals through unconstutional summary judges on motions to dismiss with and without prejudice.
(See We the People Foundation, et al v. United States, et al, U.S. District Court for DC, No. 04-1211 (August 31,
2005) (“The First Amendment does not impose any affirmative obligation on the government to listen, to
respond.” affirmed by the DC Circuit, and certiorari denied by the U.S. Supreme Court); Bell Atlantic Corp. v.
Twombly, 550 U.S. __, __, 127 S. Ct. 1955 (May 21, 2007) (ratcheting up the standard of pleading to give way to
even more dismissals of civil causes under the new Plausible Standard of stating a claim to relief that a complaint
must now provide “enough facts to state a claim to relief that is plausible on its face”).
(11). To determine whether the Assistant U.S. Attorney Dennis Barghaan of
the U.S. Attorney’s Office in Alexandria committed obstructions of justice.
To determine whether the Assistant U.S. Attorney Dennis Barghaan of the U.S. Attorney’s Office in
Alexandria was brought into my case as the Special Attorney for the U.S. Department of Justice specifically to
deny my Seventh Amendment right to a civil jury trial by expediting my case to dismiss with prejudice on August
16, 2004 (see Hamrick v. President George W. Bush, et al, U.S. District Court for DC, 03-2160) in order to deny
me my right to use the U.S. Department of Justice’s Memorandum Opinion for the Attorney General, WHETHER

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300
THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT, that was released internally on August 24, 2004, just
eight days after the prejudiced dismissal of my case.
(12). To determine whether the scandal over the politically motivated firing of
eight U.S. Attorneys during the 2006 presidential election effected
obstructions of justice for my civil action at the U.S. District Court for the
Eastern District of Arkansas, Little Rock.
To determine whether politics during the presidential election of 2006 and political ideologies of judges
of the U.S. District Court for the Eastern District of Arkansas, Little Rock played a role in the dismissal of my
civil case against the United States and the United Nations (expending $1,000. to produce the 4-volume complaint
with evidence, each volume being 1-inch thick with enough copies for all parties). (see Hamrick v. United
Nations, United States, U.S. District Court, Little Rock, No. 06-0044).
(13). To determine whether the U.S. District Court in Little Rock, Arkansas
committed obstructions of justice.
To determine whether the U.S. District Court in Little Rock violated the Seamen’s Suit Law (28 U.S.C. §
1916) and Rule 4(c)(3) of the FEDERAL RULES OF CIVIL PROCEDURE by compelling payment of their filing fee.
And because I did pay their filing fee under condition of coercion whether that District Court violated Rule
4(c)(3) to have the U.S. Marshals Service serve the Summons and Complaint upon the Defendants under on the
claim by the Court Clerk that their was no storage space available to keep the 8 copies of the complaint (4
volumes x 8 copies = 32 books filling the capacity of 4 boxes) claiming that I did not have the right of service by
U.S. Marshals Service under Rule 4(c)(3) because I paid the filing fee.
(14). To determine whether I have any enforceable statutory, constitutional,
or human rights at all in the Courts of the United States.
To determine whether I have any enforceable statutory, constitutional, or human rights after six years of
unconstitutional summary judgments.

K. To Sue For the Rights of Third Parties (Jus Tertii Doctrine)


(1). The law-abiding American people at large as a whole set of People as a
Third Party.
The Second Amendment rights to open carry in intrastate, interstate, and maritime travel and not my
exclusive rights but rights belonging to the law-abiding American people at large as a whole set of people as a
third party under the Bill of Rights and under the Thirteenth and Fourteenth Amendments as not only as citizens
of the individual States but also as citizens of the United States.
(2). The Unorganized Militia, 10 U.S.C. § 311(b)(2), as a subset of the
American people at large as a Third Party.
Often ignored by State legislatures and the U.S. Congress their neglect necessitates the need for jus tertii
litigation on their behalf.

300
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(3). American Merchant Seamen as a subset of the American people at large


as a Third Party.
Also ignored by State legislastures and the U.S. Congress is the role of U.S. merchant seamen in
homeland security when the U.S. Department of Homeland Security has superintendence over the U.S. Merchant
Marine through the U.S. Coast Guard.
(4). American Truck Drivers as a subset of the American people at large as a
Third Party.
The American truck drivers represent another subset of the American people who are discriminated
against by State and Federal gun control laws and present another viable choice for a Third Party whose rights
require defending under the jus tertii doctrine.

L. To Sue in the Interest of the Second Amendment


(1). To present a Second Amendment Case by Invitation of U.S. Supreme
Court
To present a Second Amendment case to the U.S. Supreme Court to expound on the “many applications of the
right to keep and bear arms” by request of Justice Scalia in District of Columbia v. Heller, U.S. Supreme Court,
No. 07-290, at 63 (July 26, 2008).

(2). To determine whether unconstitutional conditions exist over the Second


Amendment.
To determine whether there exists a state of unconstitutional conditions in the United States over our Bill
of Rights and the Thirteenth and Fourteenth Amendments, and our human right to life under international human
rights treaties and whether and how, as an alleged free people, can we enforce those rights.

(3). To Compel Negotiated Rulemaking with the U.S. Coast Guard, the
BATFE and the MARITIME ADVISORY COMMITTEE FOR OCCUPATIONAL SAFETY
AND HEALTH (MACOSH) of the U.S. Department of Labor as Special
Procedures Under Rule 16(C)(9) Federal Rules Of Civil Procedure, 33 C.F.R.
§ 1.05-60, 5 U.S.C. § 560-570a, and 5 U.S.C. Appendix - FEDERAL ADVISORY
COMMITTEE ACT.
(4). To resurrect open carry in intrastate, interstate, and maritime travel.
To resurrect the lost Second Amendment and Ninth Amendment right to “openly” keep and bear arms in
intrastate, interstate, and maritime travel as a badge of actual freedom. See Abraham Lincoln’s EMANCIPATION
PROCLAMATION; and Dred Scott v. Sandford, 60 U.S. (19 How.) 416-417 (1857) (. . . , and to keep and carry arms
wherever they went. . .) which gave birth to the Thirteenth and Fourteenth Amendments.

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M. To Sue for Equal Justice Under the Law


(1). To Achieve Justice for Obstructions of Justice by the Hostile Federal
Courts
HELLER AND THE PERILS OF COMPROMISE
Mark Tushnet
(forthcoming in the Lewis & Clark Law Review)
in TWO ESSAYS ON DISTRICT OF COLUMBIA V. HELLER
Harvard Public Law Working Paper No. 08-17 (2008).
Describing some regulations of gun ownership and use as presumptively constitutional seems to
have been a necessary compromise, from Justice Scalia’s point of view. But compromises are
risky because they provide the opportunity for later decisionmakers to move in either direction –
toward invalidating even some of the presumptively constitutional regulations or,
importantly, toward upholding everything but the regulation struck down in Heller – while
maintaining that they are acting within the doctrine set out in Heller. As I have discussed in more
detail elsewhere, gun policy is one of the locations were Americans conduct our culture wars.
Heller’s meaning will be determined by – and in – future battles in those wars. I for one would
not be amazed to discover that the gun-rights revolution turning out much like the federalism
and takings revolutions, and for the same reason: Culture wars produce repeated battles in the
courts and symbolic victories and defeats there, but permanent victory comes from
developments elsewhere, which then yield real rather than symbolic decisions by the courts.
Note the last sentence in Mark Tushnet’s, Heller and the Perils of Compromise:
“Culture wars produce repeated battles in the courts and symbolic victories and defeats there, but
permanent victory comes from developments elsewhere, which then yield real rather than
symbolic decisions by the courts.”
Elsewhere?
Mark Tushnet may very well be hinting at a “Regulatory War.” As a U.S. Merchant
Seaman my case presents on example of a Regulatory War. With this case I am applying the
Second Amendment to federal laws and regulations from a merchant seaman’s point of view. In
effect I am waging a “Regulatory War” against the U.S. Government hell-bent on denying my
rights.
Citing Caitlin E. Borgmann, LEGISLATIVE ARROGANCE AND CONSTITUTIONAL
ACCOUNTABILITY, 79 Southern California Law Review 753 (2006)
Our Constitution promises that the government may not infringe the constitutional rights of its
citizens. For that promise to have any meaning, the government must be held accountable
for such infringements. Under our constitutional system, the judiciary exists as a check to ensure
that accountability. And yet, through artfully crafted legislation, state legislatures currently are
infringing constitutional rights with impunity, shirking their constitutional responsibility by
manipulating well-established principles designed to ensure that the government is held to
account when it harms citizens through unconstitutional actions.
Federal courts should stop this trend. Regardless of how sympathetic an underlying state goal
may be, or how frustrated a state may be by the Supreme Court’s decisions, it is far worse to
permit state legislative arrogance to go unchecked. The core constitutional principles of
federal supremacy and the balancing of power among the branches of government are threatened
by these actions, which invite an anarchy in which individual rights are constantly subject to
shifting majorities. To take constitutional responsibility is to share constitutional authority the

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way our system of government intends, not to arrogate power because of disagreements with how
other branches have exercised theirs. The federal courts should ensure that states who engage
in legislative arrogance are held accountable by hearing pre-enforcement challenges to
these acts. The legitimacy of such challenges is supported by a straightforward application of
Article III case or controversy principles and the Ex parte Young doctrine, as well as by basic
constitutional norms.
(2). To Challenge the Constitutionality of Rule 5.1(a)(1)(A) of the Federal
Rules of Civil Procedure.
Rule 5.1(a)(1)(A) on its face appears to unconstitutional prohibit a civil plaintiff from challenging the
constitutionality of federal statutes when the United States or one of its agencies or one of its officers or
employees in their official capacity are defendants.
(3) To challenge the constitutionality of the Eleventh Amendment.
To determine whether the Eleventh Amendment unconstitutionally discriminates against out-of-state
citizen’s in violation of the Fourteenth Amendment; whether the Eleventh Amendment was wrongly enacted;
whether the Eleventh Amendment violates the pre-existing privileges and immunities clause of Article IV,
Section 2; and whether the Eleventh Amendment unconstitutionally dismantles a vital mechanism in checks and
balance system of the Constitution of the United States and cascadingly threatens the guarantee of a Republican
form of Government; whether the Fourteenth Amendment nullified the Eleventh Amendment.

Chisholm v. Georgia
2 U.S. 419 at 466-468 (1793) (Justice Cushing)
(pre-Eleventh Amendment)
It is declared that ‘the Judicial power shall extend to all cases in law and equity arising under the
Constitution, the laws of the United States, or treaties made or which shall be made under their
authority; to all cases affecting ambassadors or other public ministers and consuls; to all cases
of admiralty and maritime jurisdiction; to controversies, to which the United States shall be a
party; to controversies between two or more States and citizens of another State; between citizens
of different States; between citizens of the same State claiming lands under grants of different
States; and between a State and citizens thereof and foreign States, citizens or subjects.’301 The
judicial power, then, is expressly extended to ‘controversies between a State and citizens of
another State.’302 When a citizen makes a demand against a State, of which he is not a citizen, it
is as really a controversy between a State and a citizen of another State, as if such State made a
demand against such citizen. The case, then, seems clearly to fall within the letter of the
Constitution. It may be suggested that it could not be intended to subject a State to be a
Defendant, because it would effect the sovereignty of States. If that be the case, what shall we do
with the immediate preceding clause; ‘controversies between two or more States,’ where a State
must of necessity be Defendant’ If it was not the intent, in the very next clause also, that a State
might be made Defendant, why was it so expressed as naturally to lead to and comprehend that
idea? Why was not an exception made if one was intended?303
Again what are we to do with the last clause of the section of judicial powers, viz. ‘Controversies
between a state, or the citizens thereof, and foreign states or citizens?’ Here again, States must be

301
Plaintiff’s emphasis.
302
Plaintiff’s emphasis.
303
Plaintiff’s emphasis.

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suable or liable to be made Defendants by this clause, which has a similar mode of language with
the two other clauses I have remarked upon. For if the judicial power extends to a controversy
between one of the United States and a foreign State, as the clause expresses, one of them must be
Defendant. And then, what becomes of the sovereignty of States as far as suing affects it? But
although the words appear reciprocally to affect the State here and a foreign State, and put them
on the same footing as far as may be, yet ingenuity may say, that the State here may sue, but
cannot be sued; but that the foreign State may be sued but cannot sue. We may touch foreign
sovereignties but not our own.304 But I conceive the reason of the thing, as well as the words of
the Constitution, tend to show that the Federal Judicial power extends to a suit brought by a
foreign State against any one of the United States. One design of the general Government was for
managing the great affairs of peace and war and the general defence; which were impossible to be
conducted, with safety, by the States separately. 305 Incident to these powers, and for preventing
controversies between foreign powers or citizens from rising to extremeties and to an appeal to
the sword,306 a national tribunal was necessary, amicably to decide them, and thus ward off such
fatal, public calamity. Thus, States at home and their citizens, and foreign States and their
citizens, are put together without distinction upon the same footing, as far as may be, as-to
controversies between them. So also, with respect to controversies between a State and citizens of
another State (at home) comparing all the clauses together, the remedy is reciprocal; the claim to
justice equal. As controversies between State and State, and between a State and citizens of
another State, might tend gradually to involve States in war and bloodshed, a disinterested civil
tribunal was intended to be instituted to decide such controversies, and preserve peace and
friendship. Further; if a State is entitled to Justice in the Federal Court, against a citizen of
another State, why not such citizen against the State, when the same language equally
comprehends both? The rights of individuals and the justice due to them, are as dear and precious
as those of States. Indeed the latter are founded upon the former; and the great end and object of
them must be to secure and support the rights of individuals, or else vain is Government.307

304
Plaintiff’s emphasis to compare with the Eleventh Amendment.
305
Plaintiff’s emphasis to compare the term “general defence” with the “common defence” clause of the Preamble to the
Constitution of the United States and the “great affairs of peace and war” with the “domestic Tranquility” clause of the same
Preamble to imply that the aggregate effect of gun control laws of the 50 states endangers both the common defence and
domestic Tranquility. The Eleventh Amendment endangers both.
306
Plaintiff’s emphasis. But for the want of an educated public and for the legitimate recognition of the unorganized militia
the People of the Tenth Amendment would have already resorted to “the sword” on many occasions, prime example being
the States’ and the United States failure to control the border with Mexico refusing to acknowledge that certain acts by the
Mexican drug cartel with evidence of Mexican military participation in criminal activity well inside the United States are acts
of war. See Michael Webster, Mexican Drug Cartels Out of Control in the U.S. and Mexico, American Chronicle, August 3,
2008 available online at http://www.americanchronicle.com/articles/70429.
307
Plaintiff’s emphasis. Hence the gun control laws of every State in their aggregate effect is a war against the citizens of the
United States their right to travel with their Second Amendment right to “openly” keep and bear arms because the U.S.
Supreme Court refuses to apply the Second Amendment to the States through the Fourteenth Amendment. The Eleventh
Amendment exacerbates that war against the rights of out-of-state citizens.

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(4). To determine whether a U.S. seaman has a private right of action against
the United Nations PROGRAMME OF ACTION TO PREVENT, COMBAT AND
ERADICATE THE ILLICIT TRADE IN SMALL ARMS AND LIGHT WEAPONS IN ALL ITS
ASPECTS (UN Document A/CONF.192/15).
To determine whether a U.S. seaman has a private right of action under the RICO Act and under human
rights treaties to sue the United Nations in the U.S. District Court for the District of Columbia for violating the
United Nations Charter, Article 2, Clause 7 for their Programme of Action to Prevent, Combat and Eradicate the
Illicit Trade in Small Arms and Light Weapons in All Its Aspects (UN Document A/CONF.192/15)
(5). To determine whether Pacer Online Docket Fees are part of the Seamen’s
Suit Law.
To determine whether Pacer Online Docket Fees are automatically included in the Seamen’s Suit Law as
exempted fees for American seamen.

N. To Sue for Seamen’s Rights Under the Law


(1) No Explicit Private Right of Action Stated in the Seamen’s Suit Law, 28 U.S.C. § 1916
Congress did not explicitly express a private right of action in the Seamen’s Suit Law, 28 U.S.C. § 1916
for a Seventh Amendment right to a civil jury trial as a remedy o prevent the federal judges and court clerks from
compelling payment of filing fees from seamen with cases qualifying under the Seamen’s Suit Law which would
and does criminally violate the Seamen’s Suit Law and 18 U.S.C. § 872 EXTORTION UNDER COLOR OF LAW and 18
U.S.C. § 1651(b)(c) EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering).
(2) There is an Implied Private Right of Action in the Seamen’s Suit Law, 28 U.S.C. § 1916
Citing from Paul B. Stephan in Section III Private Enforcement of Federal Statutes: An Evolving
Jurisprudence, in PRIVATE REMEDIES FOR TREATY VIOLATIONS AFTER SANCHEZ-LLAMAS, 11 Lewis & Clark L.
Rev. 65 at 71 (2007),308 and stylizing the text for display here:
“. . . Justice Brennan, writing for the Court [in Cort v. Ash 422 U.S. 66 (1975)], offered a four-point test for
determining whether courts could infer a power of private enforcement from a statute that did not expressly
address the issue.”
“In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are
relevant.”
[TEST (1).] [Is] the plaintiff “one of the class for whose especial benefit the statute was enacted,”
Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39 (1916) (emphasis supplied) – that is,
does the statute create a federal right in favor of the plaintiff?
ANSWER: Yes. I am a merchant seaman. The Seamen’s Suit Law, 28 U.S.C. § 1916 is specificly directed to
merchant seamen.
[TEST (2).] [Is] there any indication of legislative intent, explicit or implicit, either to create such a
remedy or to deny one? See, e. g., National Railroad Passenger Corp. v. National Assn. of
Railroad Passengers, 414 U.S. 453, 458 , 460 (1974) (Amtrak).”
ANSWER: Citing from Citing Isbrandtsen Co. v. Johnson, 343 U.S. 779, 782-784 (1952):

308
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Whenever congressional legislation in aid of seamen has been considered here since 1872, this
Court has emphasized that such legislation is largely remedial and calls for liberal interpretation
in favor of the seamen. The history and scope of the legislation is reviewed in Aguilar v. Standard
Oil Co., 318 U.S. 724, 727 -735 (1943), and notes. “Our historic national policy, both legislative
and judicial, points the other way [from burdening seamen]. Congress has generally sought to
safeguard seamen’s rights.” Garrett v. Moore-McCormack Co., 317 U.S. 239, 246 (1942). “[T]he
maritime law by inveterate tradition has made the ordinary seaman a member of a favored class.
He is a ‘ward of the admiralty,’ often ignorant and helpless, and so in need of protection against
himself as well as others. . . . Discrimination may thus be rational in respect of remedies for
wages.” Warner v. Goltra, 293 U.S. 155, 162 (1934); Cortes v. Baltimore Insular Line, 287 U.S.
367, 375, 377 (1932); Wilder v. Inter-Island Navigation Co., 211 U.S. 239, 246-248 (1908);
Patterson v. Bark Eudora, 190 U.S. 169 (1903); Brady v. Daly, 175 U.S. 148, 155-157 (1899).
“The ancient characterization of seamen as `wards of admiralty’ is even more accurate now than
it was formerly.” Robertson v. Baldwin, 165 U.S. 275, 287 (1897); 5 Harden v. Gordon, 11 Fed.
Cas. No. 6,047, 2 Mason (Cir. Ct. Rep.) 541, 556.
Statutes which invade the common law or the general maritime law are to be read with a
presumption favoring the retention of longestablished and familiar principles, except when a
statutory purpose to the contrary is evident. No rule of construction precludes giving a natural
meaning to legislation like this that obviously is of a remedial, beneficial and amendatory
character. It should be interpreted so as to effect its purpose. Marine legislation, at least since the
Shipping Commissioners Act of June 7, 1872, 17 Stat. 262, should be construed to make effective
its design to change the general maritime law so as to improve the lot of seamen. “The rule that
statutes in derogation of the common law are to be strictly construed does not require such an
adherence to the letter as would defeat an obvious legislative purpose or lessen the scope plainly
intended to be given to the measure.” Jamison v. Encarnacion, 281 U.S. 635, 640 (1900); Texas
& P. R. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437 (1907), 440. The direction of the
current of maritime legislation long has been evident on its face.
“In this country these notions were reflected early, and have since been expanded, in legislation
designed to secure the comfort and health of seamen aboard ship, hospitalization at home and
care abroad. . . . The legislation . . . gives no ground for making inferences adverse to the seaman
or restrictive of his rights. . . . Rather it furnishes the strongest basis for regarding them broadly,
when an issue concerning their scope arises, and particularly when it relates to the general
character of relief the legislation was intended to secure.” Aguilar v. Standard Oil Co., 318 U.S.
724, 728-729 (1943).

Citing Nicholas Schreiber v. K-Sea Transportation Corp. New York, Supreme Court, Appellate Division,
April 25, 2006; 5410N Index 104992/04 107571/04:
Petitioner, as a ward of the admiralty, is entitled to heightened protection from the courts. There
is a long-standing policy to safeguard the rights of seamen, whose contracts are traditionally
viewed with solicitude:
They are emphatically the wards of the admiralty; and though not technically incapable of
entering into a valid contract, they are treated in the same manner, as courts of equity are
accustomed to treat young heirs, dealing with their expectancies, wards with their guardians, and
cestuis quetrust with their trustees. . . . If there is any undue inequality in the terms, any
disproportion in the bargain, any sacrifice of rights on one side, which are not compensated by
extraordinary benefits on the other, the judicial interpretation of the transaction, is that the bargain
is unjust and unreasonable, that advantage has been taken of the situation of the weaker party, and
that pro tanto the bargain ought to be set aside as inequitable. (Garrett v. Moore-McCormack Co.,

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317 U.S. at 246, 1942 AMC at 1650, quoting Harden v. Gordon, 2000 AMC 893, 902, 11 Fed
Cas 480, 485 [1823])

TEST (3). [Is] it consistent with the underlying purposes of the legislative scheme to imply such a
remedy for the plaintiff? See, e. g., Amtrak, supra; Securities Investor Protection Corp. v.
Barbour, 421 U.S. 412, 423 (1975); Calhoon v. Harvey, 379 U.S. 134 (1964).”
ANSWER: Yes, by the fact that seamen arewards of the Admiralty.

TEST (4). [Is] the cause of action one traditionally relegated to state law, in an area basically the
concern of the States, so that it would be inappropriate to infer a cause of action based
solely on federal law? See Wheeldin v. Wheeler, 373 U.S. 647, 652 (1963); cf. J. I. Case Co.
v. Borak, 377 U.S. 426, 434 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388, 394 -395 (1971); id., at 400 (Harlan, J., concurring in judgment).”
ANSWER: The cause of action is strictly for the federal courts. But when the judicial, the executive, and the
legislative branch denies all available remedies under the First Amendment right to petitition the government for
redress of grievances and the Seventh Amendment right to a civil jury trial under the aggregate effect of appearing
to be generalized corruption and obstructions of justice then the only remedy left is the Ninth Amendment right
and the Tenth Amendment power reserved to the People to make citizen’s arrests with the Citizen’s Arrest
Warrant with accompanying evidence of felony violations of federal law, as in my case, the Seamen’s Suit Law,
28 U.S.C. § 1916. But because the Seamen’s Suit Law does not explicitly provide for such a private right of
action such as the Citizen’s Arrest remedy as a remedy of last resort or even the traditional Seventh Amendment
right to a civil jury trial the victim must present a civil case against the United States for a civil jury trial for a
judicial determination on the implied private right of action in the Seamen’s Suit Law.
See also, We the People Foundation, et al v. United States, et al, U.S. District Court for the District of
Columbia, No. 04-1211 (August 31, 2005):
The Supreme Court, however, has held that “the First Amendment does not impose any
affirmative obligation on the government to listen, to respond . . .” See Smith v. Ark. State
Highway Employees, Local 1315, 441 U.S. 463, 465 (1979).
Id. Affirmed, DC Circuit, No. 05-5359 (May 8, 2007) (Certiorari denied, January 7, 2008; Petition for Rehearing
denied, February 25, 2008):
We need not resolve this debate, however, because we must follow the binding Supreme Court
precedent. See Tenet v. Doe, 544 U.S. 1, 10-11 (2005). And under that precedent, Executive and
Legislative responses to and consideration of petitions are entrusted to the discretion of those
Branches.
See also, Justice Harlan’s Dissent in Downes v. Bidwell, 182 U.S. 244 at 376-382 (1901)
Mr. Justice Harlan, dissenting:
In Martin v. Hunter, 1 Wheat. 304, 324, 326, 331, 4 L. ed. 97, 102, 104, this court speaking by
Mr. Justice Story, said that ‘the Constitution of the United States was ordained and established,
not by the states in their sovereign capacities but emphatically, as the preamble of the
Constitution declares, by ‘the People of the United States.”
In McCulloch v. Maryland, 4 Wheat. 316, 403-406, 4 L. ed. 579, 600, 601, Chief Justice
Marshall, speaking for this court, said: ‘The government proceeds directly from the people; is
‘ordained and established’ in the name of the people; and is declared to be ordained ‘in order to
form a more perfect union, establish justice, insure domestic tranquillity, and secure the blessings

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of liberty to themselves and to their posterity.’ The assent of the states, in their sovereign
capacity, is implied in calling a convention, and thus submitting that instrument to the people. But
the people were at perfect liberty to accept or reject it; and their act was final. It required not the
affirmance, and could not be negatived, by the state governments. The Constitution, when thus
adopted, was of complete obligation, and bound the state sovereignties. . . . The government of
the union, then (whatever may be the influence of this fact on the case) is emphatically and truly a
government of the people. In form and in substance it emanates from them. Its powers are granted
by them, and are to be exercised directly on them and for their benefit. This government is
acknowledged by all to be one of enumerated powers. . . . It is the government of all; its powers
are delegated by all; it represents all, and acts for all.’
Although the states are constituent parts of the United States, the government rests upon the
authority of the people of the United States, and not on that of the states. Chief Justice Marshall,
delivering the unanimous judgment of this court in Cohen v. Virginia, 6 Wheat. 264, 413, 5 L. ed.
257, 293, said: ‘That the United States form, for many and for most important purposes, a single
nation, has not yet been denied. In war, we are one people. In making peace, we are one people. .
. . In many other respects, the American people are one; and the government which is alone
capable of controlling and managing their interests . . . is the government of the Union. It is their
government, and in that character they have no other. America has chosen to be, in many respects
and to many purposes, a nation; and for all these purposes her government is complete; to all
these objects it is competent. The people have declared that in the exercise of all powers given for
those objects it is supreme. It can, then, in effecting these objects, legitimately control all
individuals or governments within the American territory.’
In reference to the doctrine that the Constitution was established by and for the states as distinct
political organizations, Mr. Webster said: ‘The Constitution itself in its very front refutes that. It
declares that it is ordained and established by [182 U.S. 244, 378] the People of the United
States. So far from saying that it is established by the governments of the several states, it does
not even say that it is established by the people of the several states. But it pronounces that it was
established by the people of the United States in the aggregate. Doubtless, the people of the
several states, taken collectively, constitute the people of the United States. But it is in this their
collective capacity, it is as all the people of the United States, that they established the
Constitution.’
In view of the adjudications of this court I cannot assent to the proposition, whether it be
announced in express words or by implication, that the national government is a government of or
by the states in union, and that the prohibitions and limitations of the Constitution are addressed
only to the states. That is but another form of saying that, like the government created by the
Articles of Confederation, the present government is a mere league of states, held together by
compact between themselves; whereas, as this court has often declared, it is a government created
by the People of the United States, with enumerated powers, and supreme over states and
individuals with respect to certain objects, throughout the entire territory over which its
jurisdiction extends. If the national government is in any sense a compact, it is a compact between
the People of the United States among themselves as constituting in the aggregate the political
community by whom the national government was established. The Constitution speaks, not
simply to the states in their organized capacities, but to all peoples, whether of states or
territories, who are subject to the authority of the United States. Martin v. Hunter, 1 Wheat. 327,
4 L. ed. 103.
...
Although from the foundation of the government this court has held steadily to the view that the
government of the United States was one of enumerated powers, and that no one of its branches,

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nor all of its branches combined, could constitutionally exercise powers not granted, or which
were not necessarily implied from those expressly granted (Martin v. Hunter, 1 Wheat. 326, 331,
4 L. ed. 102, 104) . . . This nation is under the control of a written constitution, the supreme law
of the land and the only source of the powers which our government, or any branch or officer of
it, may exert at any time or at any place. . . .To say otherwise is to concede that Congress may, by
action taken outside of the Constitution, engraft upon our republican institutions a colonial system
such as exists under monarchical governments. Surely such a result was never contemplated by
the fathers of the Constitution. If that instrument had contained a word suggesting the possibility
of a result of that character it would never have been adopted by the people of the United States. .
..
The idea prevails with some-indeed, it found expression in agruments at the bar-that we have in
this country substantially or practically two national governments; one to be maintained under the
Constitution, with all its restrictions; the other to be maintained by Congress outside and
independently of that instrument, by exercising such powers as other nations of the earth are
accustomed to exercise. It is one thing to give such a latitudinarian construction to the
Constitution as will bring the exercise of power by Congress, upon a particular occasion or upon
a particular subject, within its provisions. It is quite a different thing to say that Congress may, if
it so elects, proceed outside of the Constitution. The glory of our American system [182 U.S. 244,
381] of government is that it was created by a written constitution which protects the people
against the exercise of arbitrary, unlimited power, and the limits of which instrument may not be
passed by the government it created, or by any branch of it, or even by the people who ordained
it, except by amendment or change of its provisions. ‘To what purpose,’ Chief Justice Marshall
said in Marbury v. Madison, 1 Cranch, 137, 176, 2 L. ed. 60, 73, ‘are powers limited, and to what
purpose is that limitation committed to writting, if these limits may, at any time, be passed by
those intended to be restrained? The distinction between a government with limited and unlimited
powers is abolished if those limits do not confine the persons on whom they are imposed, and if
acts prohibited and acts allowed are of equal obligation.’
The wise men who framed the Constitution, and the patriotic people who adopted it, were
unwilling to depend for their safety upon what, in the opinion referred to, is described as ‘certain
principles of natural justice inherent in Anglo-Saxon character, which need no expression in
constitutions or statutes to give them effect or to secure dependencies against legislation
manifestly hostile to their real interests.’ They proceeded upon the theory-the wisdom of which
experience has vindicated- that the only safe guaranty against governmental oppression was to
withhold or restrict the power to oppress. They well remembered that Anglo- Saxons across the
ocean had attempted, in defiance of law and justice, to trample upon the rights of Anglo-Saxons
on this continent, and had sought, by military force, to establish a government that could at will
destroy the privileges that inhere in liberty. They believed that the establishment here of a
government that could administer public affairs according to its will, unrestrained by any
fundamental law and without regard to the inherent rights of freemen, would be ruinous to the
liberties of the people by exposing them to the oppressions of arbitrary power. Hence, the
Constitution enumerates the powers which Congress and the other departments may exercise,-
leaving unimpaired, to the states or the People, the powers not delegated to the national
government nor prohibited to the states. That instrument so expressly declares in [182 U.S. 244,
382] the 10th Article of Amendment. It will be an evil day for American liberty if the theory of a
government outside of the supreme law of the land finds lodgment in our constitutional
jurisprudence. No higher duty rests upon this court than to exert its full authority to prevent all
violation of the principles of the Constitution.

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O. Arbitrary Exercise of Government Power


Citing Leeper v. Texas, 139 U.S. 462, 463 (1891), 11 Sup. Ct. Rep. 577.
“By the Fourteenth Amendment, the powers of states in dealing with crime within their borders are not limited,
except that no state can deprive particular persons or classes of persons of equal and impartial justice under the
law, that law in its regular course of administration through courts of justice is due process, and when secured by
the law of the state, the constitutional requirement is satisfied, and that due process is so secured by laws
operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government
unrestrained by the established principles of private right and distributive justice.”)
The following cases were dismissed by arbitrary exercise of government (judicial bias by interjected a
political ideology as a replacement for the Rule of Law and equal justice under the law) power under the
unconstitutional summary judgment in violation of the Seventh Amendment right to a civil jury trial under the
common law:
U.S. District Court/DC, No. 02-1434 (OBEYED 28 U.S.C. § 1916)
U.S. District Court/DC, No. 02-1435 (OBEYED 28 U.S.C. § 1916)
U.S. District Court/DC, No. 03-2160 (OBEYED 28 U.S.C. § 1916)
U.S. District Court/DC, No. 04-0422 (OBEYED 28 U.S.C. § 1916)
U.S. District Court/DC, No. 04-2040 (OBEYED 28 U.S.C. § 1916)
U.S. District Court/DC, No. 05-1993 (OBEYED 28 U.S.C. § 1916)
DC Circuit, No. 02-5334 (VIOLATED 28 U.S.C. § 1916)
DC Circuit, No. 04-5316 (VIOLATED 28 U.S.C. § 1916)
DC Circuit, No. 05-5414 (VIOLATED 28 U.S.C. § 1916)
DC Circuit, No. 05-5429 (VIOLATED 28 U.S.C. § 1916)
8th CIRCUIT, CASE NO. 07-2400 (VIOLATED 28 U.S.C. § 1916W)
U.S. District Court/Little Rock, No. 06-0044. (VIOLATED 28 U.S.C. § 1916)
U.S. Supreme Court, Nos. 03-145 (VIOLATED 28 U.S.C. § 1916)
U.S. Supreme Court, Nos. 04-1150 (VIOLATED 28 U.S.C. § 1916)
U.S. Supreme Court, Nos. 04M56 (VIOLATED 28 U.S.C. § 1916)

(1). To Incorporate the Second Amendment through the Fourteenth


Amendment.
To determine whether the Second Amendment is incorporated with the Bill of Rights through the
Fourteenth Amendment to apply to the States as well as to the United States thus enabling the Second
Amendment right to “openly” keep and bear arms in intrastate, interstate, and maritime travel as an unenumerated
right of the Ninth Amendment and whether the combination of the Second and Ninth Amendment conditions the
right to “openly” keep and bear arms in intrastate, interstate, and maritime travel as a near absolute right as a
presumption of liberty rather that as a privilege of the States’ police power in terms of regulating, restricting, or
prohibiting that right.

(2). To determine whether the U.S. Department of Justice and the FBI have a
duty to investigate allegations of extortion and corruption against federal
judges and their court clerks.
To determine Whether the U.S. Department of Justice and the FBI have a Duty to Investigate and
Prosecute Allegations Against Federal Judges and Their Court Clerks of EXTORTION UNDER COLOR OF LAW (18
U.S.C. § 872) and EXTORTION UNDER COLOR OF OFFICIEAL RIGHT (Racketeering under 18 U.S.C. § 1951(b)(2))

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as applied to the Seamen’s Suit Law (28 U.S.C. § 1916) in accordance with the U.S Attorney’s Manual, Title 9, §
131.020 INVESTIGATIVE AND SUPERVISORY JURISDICTION.
(3). To determine the role of the Citizen’s Arrest Warrant in the Checks and
Balance System of the Constitution of the United States.
To determine whether the Citizen’s Arrest Warrant as a remedy of last resort can be applied against
federal judges and their court clerks for EXTORTION UNDER COLOR OF LAW (18 U.S.C. § 872) and EXTORTION
UNDER COLOR OF OFFICIEAL RIGHT (Racketeering under 18 U.S.C. § 1951(b)(2)) for violation of the Seamen’s
Suit Law (28 U.S.C. § 1916) has a role in the Checks and Balance System of the U.S. Constitution. And to
determine whether a CITIZEN’S ARREST WARRANT under the Law of Citizen’s Arrest as implied by DC Code, §
23.582(b)(1)(A) ARRESTS WITHOUT WARRANT BY OTHER PERSONS with probable cause evidence of extortion as
noted in Line Item H. above places a burden of compliance upon the U.S. Marshals Service under 28 U.S.C. §
566(c) POWERS AND DUTIES to assistance with the execution of the Citizen’s Arrest Warrant without threats of
arrest and prosecution for 18 U.S.C. § 111 ASSAULTING, RESISTING, OR IMPEDING CERTAIN OFFICERS OR
EMPLOYEES; 18 U.S.C. § 1201 KIDNAPPING; and 18 U.S.C. § 1203 HOSTAGE TAKING as alleged by agents of the
U.S. Marshals Service.
(4). To Determine what role the U.S. Merchant Marine has in homeland
security when the U.S. Department of Homeland Security has
superintendence of the Merchant.
To determine whether the U.S. Merchant Marine and American seafarers have a role in homeland security
under the Second Amendment as an individual right. (see definition of Secretary under Title 46 Shipping of the
U.S. Code: 46 U.S.C. § 2101(34) (“Secretary”, except in part H [Identification of Vessels], means the head of the
department in which the Coast Guard is operating [which is the U.S. Department of Homeland Security]) (see also
the definition of Secretary under Title 14 U.S. Coast Guard of the U.S. Code: 14 U.S.C. § 5. “Secretary” is
defined as the Secretary of the respective department in which the Coast Guard is operating [again the U.S.
Department of Homeland Security]. (see also 14 U.S.C. § 1 U.S. Coast Guard Operating under the U.S.
Department of Homeland Security). (see also 46 U.S.C. § 2103 SUPERINTENDENCE OF THE MERCHANT MARINE
(The Secretary [of the U.S. Department of Homeland Security] has general superintendence over the merchant
marine of the United States and of merchant marine personnel insofar as the enforcement of this subtitle is
concerned and insofar as those vessels and personnel are not subject, under other law, to the supervision of
another official of the United States Government. In the interests of marine safety and seamen’s welfare, the
Secretary shall enforce this subtitle and shall carry out correctly and uniformly administer this subtitle. The
Secretary may prescribe regulations to carry out the provisions of this subtitle.
(5). To determine whether the federal courts are waging a judicial war against
the Constitution of the United States
To determine whether the federal courts are waging a judicial war against the Constitution of the United
States and against the American People’s right to a civil jury trial under the Seventh Amendment. (See We the
People Foundation, et al v. United States, et al, U.S. District Court for DC, No. 04-1211 (August 31, 2005)
(“The First Amendment does not impose any affirmative obligation on the government to listen, to respond.”
affirmed by the DC Circuit, and certiorari denied by the U.S. Supreme Court); Bell Atlantic Corp. v. Twombly,
550 U.S. __, __, 127 S. Ct. 1955 (May 21, 2007) (ratcheting up the standard of pleading to give way to even more
dismissals of civil causes under the new Plausible Standard of stating a claim to relief that a complaint must now
provide “enough facts to state a claim to relief that is plausible on its face”).

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PART 4. IN DEFENSE OF PRO SE CIVIL LITIGATION

Rule 8(d)(2). Alternative Statements of a Claim.


In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal
on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate
citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state
that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my
claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the
Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law.
My alternative statements of claims are presented in their alternative presentations in the following
Parts of my complaint as shown here to support my primary claims in Part 19:
Part 3. Purpose of this Case
Part 4. In Defense of Pro Se Civil Litigation
Part 5. Federal Questions Presented (28 U.S.C. § 1331)
Part 6. Plaintiff’s Human Rights Declarations
Part 7. Plaintiff’s Constitutional Rights Declarations
Part 8. Plaintiff’s Religious Rights Declarations
Part 9. Plaintiff’s Maritime Rights Declarations
Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment
Part 11. Challenging the Constitutionality of Summary Judgment
Part 12. Challenging the Final Agency Action of the U.S. Coast Guard
Part 13. Challenging the Federal Court Ruling
Part 14. Challenging Selected Federal Laws
Part 15. Challenging Selected Federal Regulations
Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes
Part 17. Challenging Selected Maritime Conventions and Treaties
Part 18. Racketeering and Treason against the Constitution by Federal Judges
Part 19. The Claims
Part 20. Statement of Proposed Rico Charges (Claims)
Part 21. Petition for Writ of Mandamu (My Demands for Justice)
Part 22. Petition for Writ of Prohibition
Part 23. Petition for Declaratory Judgment
Part 24. Petition for Injunctive Relief
Part 25. Damages

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A. The Congress Has Killed the Private Bill (First Amendment Right to Petition)
“While the absolute number of private bills submitted by individual members of Congress has remained
relatively steady, the number that have become private laws has shown a precipitous decline.” (Citing Matthew
Mantel, PRIVATE BILLS AND PRIVATE LAWS, 99 Law Library Journal 87, 90 (May 2007)). Footnote 24 in Mantel’s
article only listed data from 96th Congress (1979) to the 108th Congress (2003). Don Hamrick found the data to
create a more expanded chart from the 80th Congress (1947) to the present day 110th Congress (December 12,
2007).

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B. 2008 UPDATE: Neither the House nor the Senate have passed any Private Bills
from January 3 to June 30, 2008
http://www.senate.gov/reference/resources/pdf/110_2.pdf
(1) “Private Legislation”
A HISTORY OF THE COMMITTEE ON THE JUDICIARY 1813–2006
Section II–Jurisdictions History of the Judiciary Committee
“PRIVATE LEGISLATION,”
House Document No. 109-153, pp. 143-148
http://www.gpoaccess.gov/serialset/cdocuments/hd109-153/browse.html
Nearly half of all the laws enacted by Congress have been private laws. 309 Unlike public law,
which applies to public matters and deals with individuals only by classes, the provisions of
private law apply to “one or several specified persons, corporations, [or] institutions.”310
Private legislation has its foundation in the right to “petition the government for a redress of
grievances”311 guaranteed to all citizens by the First Amendment to the U.S. Constitution.
Congress sometimes chooses to enact private law to grant relief in situations where no other legal
remedies are available. Private legislation is premised on the idea that public law cannot cover all
situations equitably, and sometimes Congress must address special circumstances with specially
targeted legislation. In this sense, private law has been called “an anomaly,”312 since it is intended
to address specific problems that public law either created or overlooked.
The 1st Congress enacted 10 private laws. The 59th Congress–the historic high water mark of
private legislation–enacted 6,249. Reporters observing the 59th Congress (1905–1906) noted that,
on one occasion, 320 private pension bills passed the House in an hour and a half, “an average of
three each minute.” One reporter characterized the Chairman of the Committee of the Whole as
presiding with “auctioneer-like qualities” as these private pension measures were raised and
rapidly adopted in turn.313
Today Congress enacts very little private legislation. In the last 10 Congresses combined it has
enacted just 159 private measures, a mere two percent of the amount passed in the 1905–1906
sessions alone. In the 108th Congress, just one percent of the laws enacted by Congress were
private – the lowest percentage of private legislation enacted at any time in the nation’s history.
The first private law enacted by Congress in 1789 awarded a year-and-a-half’s pay at the rank of
Captain to a foreign citizen serving in the U.S. military.314 Since that time, Congress has enacted

309
According to data obtained from CANNON’S PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, v.7, §1028, the CALENDAR
OF THE UNITED S TATES HOUSE OF REPRESENTATIVES AND HISTORY OF LEGISLATION FROM THE 74 TH THROUGH 79TH CONGRESSES,
and the CONGRESSIONAL RECORD’S RESUME OF CONGRESSIONAL ACTIVITY FROM THE 80TH THROUGH 109TH CONGRESSES,
BETWEEN 1789 AND 2006, Congress enacted a total of 94,120 laws. Of these, 45,937 — 49 percent — have been private laws.
310
HINDS’ PRECEDENTS OF THE HOUSE OF REPRESENTATIVES, v.4, §3285.
311
U.S. CONGRESS, CONSTITUTION, JEFFERSON’S MANUAL, AND RULES OF THE HOUSE OF REPRESENTATIVES, H.Doc. 108–241,
108th Cong., 2nd sess. (Washington: GPO, 2005), §208, p. 90. (Hereafter referred to as “HOUSE MANUAL”).
312
“PRIVATE BILLS IN CONGRESS,” Harvard Law Review, vol. 79, June 1966, p. 1684.
313
“Three Pensions a Minute,” New York Times, May 12, 1906, p. 9.
314
CONGRESSIONAL QUARTERLY’S GUIDE TO CONGRESS, 5th ed., vol. I (Washington: Congressional Quarterly, Inc., 2000), p.
526.

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over 45,000 private laws dealing with issues both commonplace and extraordinary: providing
pensions or lump sum payments to soldiers and widows, satisfying sundry monetary claims
against the government, correcting military records, eliminating the “political disabilities” of
Civil War rebels, fixing immigration problems, extending patents, providing vessel
documentation, refunding tariffs or overpayments, expediting the naturalization process for a
potential Olympian, authorizing the Speaker of the House to wear a foreign military decoration,
and permitting the family of an immigrant murdered in a post 9/11 hate crime to remain in the
United States.
Historically, most private legislation introduced in the House of Representatives was considered
by various private claims Committees in the House315 or by the Committee on Immigration and
Naturalization. 316 THE 1946 LEGISLATIVE REORGANIZATION ACT,317 however, transferred
jurisdiction over both immigration and claims to the House Committee on the Judiciary, along
with jurisdiction over patents. Thus, since 1947, only a fraction of private measures dealing with
sundry matters such as public lands, vessel documentation, military awards, veterans’ benefits
and legislation relating to tax and tariffs introduced in the House have been referred to
Committees other than the House Committee on the Judiciary.
While the overall volume of private law has not been large in recent years, the internal workload
of the Judiciary Committee and of its Members and professional staff, in dealing with private
legislation has remained significant. Over the last 27 years, the House Judiciary Committee has
processed 91 percent of all private laws enacted. In addition, the importance of the task of
reviewing such legislation is as high as ever. In its truest sense, each private measure referred to
the House Judiciary Committee represents a plea for relief from a petitioner who, in theory, has
no other recourse. The problems involved may touch on some of the most important and
emotionally-charged subjects imaginable: a mother’s plea to bring an adopted child into the
United States, the death of a soldier’s toddler due to government negligence, payments justly
owed to a small business but tied up in bureaucratic red tape.
Since 1947, private immigration and claims bills have been handled in the House by
subcommittees of the full Judiciary Committee, initially known as Subcommittee No. 1 (dealing
with immigration and nationality) and Subcommittee No. 2 (dealing with claims against the
government.)318 Currently, such measures are referred to one Judiciary subcommittee, the
Subcommittee on Immigration, Border Security, and Claims, for review.
Individual private cases are examined by the Subcommittee to determine if they meet the criteria
for private relief and are in keeping with precedents and with Congress’s overarching goal of
making equitable law.
The decline in the introduction of private legislation in recent decades stems primarily from
incremental reforms made by Congress to delegate the authority to address most private
grievances administratively or through the courts. Examples of this progression include the
creation of the United States Court of Claims in 1855, the enactment of the Federal Tort Claims

315
These include the House Committees on Claims; Pensions and Revolutionary Claims; Private Land Claims; Revolutionary
Claims; Military Pensions; Invalid Pensions; Revolutionary Pensions; War Claims; and Pensions. David T. Canon, Garrison
Nelson, Charles Stewart III, Committees in the U.S. Congress, 1789–1946, vol. 1, (Washington: CQ Press, 2002), pp. VI-
XXXV.
316
U.S. Congress, House Committee on the Judiciary, HISTORY OF THE COMMITTEE ON THE JUDICIARY OF THE HOUSE OF
REPRESENTATIVES, Committee Print, 92nd Cong. 2nd sess., (Washington: GPO, 1972), p. 5.
317
P.L. 79–601, 60 Stat. 812.
318
CRS Typed Report, (TRENDS IN ACTIVITY ON PRIVATE LEGISLATION IN CONGRESS), by Richard S. Beth, p. 8.

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Act, and the passage of similar statutes permitting administrative settlement of most military
claims.319 Likewise, changes in immigration law have, at times, led to reductions in the
introduction of private legislation in Congress.320
Congress has also made numerous internal reforms that have had the effect of reducing the
amount of private legislation introduced. For example, section 131 of the 1946 Legislative
Reorganization Act barred the introduction of private bills addressing grievances that might be
resolved by the Tort Claims Procedure of Title 28, bills to grant a pension, to construct a bridge
over a navigable stream, or to correct a military or naval record. These provisions were made part
of the standing rules of the House in 1953, and are currently codified in Rule XIII, clause 4.321
As former House Judiciary Committee Chairman Emanuel Celler noted, these changes initially
did “effect some change in the private bill workload,” reducing the percentage of private
measures enacted from 55 percent immediately before the reforms, to 34 percent after their
adoption. 322
Additional reforms undertaken by the House Judiciary Committee in 1947 barred stays of
deportation simply because of the introduction of a private bill for “stowaways, deserting seamen,
and border jumpers.” The Committee realized that a large fraction of private immigration bills
were being introduced by Members, not with the hope of them becoming law, but simply to stay
deportation proceedings. The simple introduction of a relief bill meant that the alien would not be
deported while the measure was pending, whether or not the measure was ever acted upon.
The volume of private legislation introduced, and as a result, the workload of the House Judiciary
Committee, however, remained unmanageably large despite these reforms. In the 90th Congress
(1967–1968), for example, House Judiciary Subcommittee No. 2 was referred 779 private claims
bills and oversaw the enactment of 116 of them into law. Subcommittee No. 1 was referred over
6,000 private immigration bills.323 According to former Rep. William Cahill, this represented “the
largest number [of private immigration bills] ever introduced” up to that time.324 While the
Judiciary panel worked hard to meet its responsibilities – its immigration subcommittee held 37
meetings and oversaw the enactment of 216 private laws – the strain from such legislative volume
meant that it was simply, “unable to remain current.”325
In response to this challenge, the restrictions on stays of deportation for certain petitioners were
further broadened. According to Rep. Cahill, in 1967, the Committee rule “was broadened to
include those who entered the United States as transients en route to third countries and [who]
illegally remain[ed] in this country.”326 New Judiciary Committee rules adopted in 1969, and

319
CRS Typed Report, (TRENDS IN ACTIVITY ON PRIVATE LEGISLATION IN CONGRESS), by Richard S. Beth.
320
Other changes in immigration law have arguably led to increases in the introduction of private bills at certain points in
congressional history. For more information on immigration policy and its effect on private legislation, see TRENDS IN
ACTIVITY ON PRIVATE LEGISLATION IN CONGRESS, by Richard S. Beth, and CRS Report RL33024, PRIVATE IMMIGRATION
LEGISLATION, by Margaret Mikyung Lee.
321
HOUSE MANUAL, §822, p. 601.
322
Rep. Emanuel Celler, remarks in the House, CONGRESSIONAL RECORD, daily edition, vol. 95, pt. 15, May 12, 1949, p.
A2901.
323
U.S. Congress, House Committee on the Judiciary, SUMMARY OF ACTIVITIES, Committee Print, 90th Cong., 2nd sess.,
(Washington: GPO, 1968), p. 9.
324
Rep. William T. Cahill, remarks in the House, CONGRESSIONAL RECORD, vol. 115, pt. 20, Mar. 12, 1969, p. H1629.
325
Ibid., p. H1630.
326
Rep. William T. Cahill, remarks in the House, CONGRESSIONAL RECORD, vol. 115, pt. 20, Mar. 12, 1969, p. H1629.

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amended in 1971, further tightened procedures for the consideration of private immigration
measures and contributed signifi cantly to an overall decline in their introduction. Specifi cally,
the rules altered Committee policy by eliminating the stay of deportation of various additional
petitioners that used to be automatic upon the introduction of a private immigration bill. These
Judiciary Committee rules changes led the introduction of private immigration bills to “drop
sharply.”327
The marked reduction in private laws enacted in recent decades stem largely from these reforms,
but doubtless also stems in part from periodic accusations of impropriety or the appearance of
impropriety in the introduction of private measures. In 1969 and 1976, Members and staff in both
chambers were accused of soliciting and accepting bribes in exchange for the introduction of
private immigration measures.328 In addition, the widely publicized 1980 FBI Abscam bribery
sting operation revolved, in part, around requests for the introduction of private bills in exchange
for money. 329
Today, in considering private immigration bills, the Judiciary Committee generally reviews only
those cases that are of such an extraordinary nature that an exception to the law is needed and acts
favorably on only those private bills that meet certain well-defined precedents. The
Subcommittee has published detailed rules of procedure for the consideration of private
immigration and claims bills, and works regularly with Members and staff to guide them in the
framing and drafting of private legislation on behalf of their constituents.330

C. The Plaintiff has the Right to Challenge the Constitutionality of a Statute (Case
Law)
“A statute valid when enacted may become invalid by change in the conditions to which it is applied.”
Nashville, C. & St. L. R. Co. v. Walters, 294 US 405, 55 S Ct 486, (1935). “Longevity does not ensure that a
statute is constitutional.” [Per Marshall, J., as Circuit Justice.] Brennan v. U.S. Postal Service, 439 US 1345, 98 S
Ct 22 (1978). “The principle that a statute, valid, when enacted may cease to have validity, owing to a change of
circumstances, is applicable to Acts of Congress.” Hamilton v. Kentucky Distilleries & Warehouse Co. 251 US
146 (1919), 40 S Ct 106, 64 L Ed 194.
“When the United States Supreme Court is asked to invalidate a statutory provision that has been
approved by both houses of Congress and signed by the President, it should do so only for the most compelling
constitutional reasons.” Mistretta v. United States, 488 US 361, 109 S Ct 647, 102 L Ed 2d 714 (1989).
(1). Change of Conditions
“A statute valid when enacted may become invalid by change in the conditions to which it is
applied.” Nashville, C. & St. L. R. Co. v. Walters, 294 US 405, 55 S Ct 486, (1935). “Longevity does not ensure
that a statute is constitutional.” [Per Marshall, J., as Circuit Justice.] Brennan v. U.S. Postal Service, 439 US
1345, 98 S Ct 22 (1978).

327
Richard L. Madden, “Private Immigration Bills Found to Drop Sharply,” New York Times, Oct. 25, 1972, p. 14.
328
“Rep. Helstoski Denies He Got Payoffs,” New York Times, June 26, 1976, p. A5.
329
Charles R. Babcock, “FBI ‘Sting’ Ensnares Several In Congress,” The Washington Post, Feb. 3, 1980, p. A1.
330
SUBCOMMITTEE RULES OF PROCEDURE are available on the House Committee on the Judiciary’s website:
http://judiciary.house.gov/Printshop.aspx.

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(2). Change of Circumstances


“The principle that a statute, valid, when enacted may cease to have validity, owing to a change of
circumstances, is applicable to Acts of Congress.” Hamilton v. Kentucky Distilleries & Warehouse Co. 251 US
146 (1919), 40 S Ct 106, 64 L Ed 194.
(3). Compelling Constitutional Reasons
“When the United States Supreme Court is asked to invalidate a statutory provision that has been
approved by both houses of Congress and signed by the President, it should do so only for the
most compelling constitutional reasons.” Mistretta v. United States, 488 US 361, 109 S Ct 647,
102 L Ed 2d 714 (1989).
The Change of Circumstances as the basis for a constitutional challenge to state and federal laws are also
available uberrimae fidei 331 as a human rights challenge to the United Nations global gun control agenda
spearheaded by the PROGRAMME OF ACTION TO PREVENT, COMBAT AND ERADICATE THE ILLICIT TRADE IN SMALL
ARMS AND LIGHT WEAPONS IN ALL ITS ASPECTS on the basis that it is being used to attack our Second Amendment
constitutional rights and the international human right to own and possess firearms for the safety, security, and
defense of the international human right to life. The basis in international law for my allegations is found in the
United Nations INTERNATIONAL BILL OF HUMAN RIGHTS, the CONVENTION AGAINST CORRUPTION and the GENEVA
CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, just to name a few.
The Changes of Circumstances for a constitutional challenge of state and federal laws (i.e. the new Rule
5.1 of the Federal Rules of Civil Procedure) corresponds with Articles 60, 61, 62, 64 of the VIENNA CONVENTION
ON THE LAW OF TREATIES OF 1969 and the VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND
INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS OF 1986. The United States can use
these authorities to (1) force the United Nations to cease and desist, to abandon their global gun control agenda;
(2) to withdraw from the United Nations; or (3) to even cause the disbanding of the United Nations for breach of
the United Nations Charter under Article 2, clause 7 of the U.N. Charter.
Because the United States has not acted intra vires332 in a timely manner to the [Special Rapporteur’s
report, “PREVENTION OF HUMAN RIGHTS VIOLATIONS COMMITTED WITH SMALL ARMS AND LIGHT WEAPONS,”]333 and
because of the federal courts corruptive actions blocking my case from proceeding to a civil jury trial I filed my
human rights complaint against the United States with the Inter-American Commission on Human Rights on the
hope I will find a fair and unbiased international tribunal, lest the entire world is going to Hell in a handbasket.

C. Right to Petition
Citing 3 CONSTITUTION OF THE UNITED STATES OF AMERICA, ANALYSIS AND INTERPRETATION 1188 (1992)
It is no longer confined to demands for “a redress of grievances,” in any accurate meaning of
these words, but comprehends demands for an exercise by the Government of its powers in
furtherance of the interest and prosperity of the petitioners and of their views on politically
contentious matters. See Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127
(1961). The right extends to the “approach of citizens or groups of them to administrative
agencies (which are both creatures of the legislature, and arms of the executive) and to courts, the
third branch of Government. Certainly the right to petition extends to all departments of the

331
Latin. “of the utmost good faith”
332
Latin: “within the powers of,” “of or referring to an action taken within the scope of authority.”
333
www.iansa.org/un/documents/salw_hr_report_2006.pdf.

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Government. The right of access to the courts is indeed but one aspect of the right of petition.”
California Motor Transport Co. v . Trucking Unlimited, 404 U.S. 508, 510 (1972). See also
NAACP v. Claiborne Hardware Co., 458 U .S. 886, 913–15 (1982); Missouri v. NOW, 620 F.2d
1301 (8th Cir.), cert. denied , 449 U .S. 842 (1980) (boycott of States not ratifying ERA may not
be subjected to antitrust suits for economic losses because of its political nature).
The actions of the Judicial Branch of the federal government in Plaintiff’s six year litigious saga are held
as evidence of judicial bias and politicized judicial activism against Plaintiff’s case for Second Amendment rights
under Rule 406, Habit, Routine Practice of the Federal Rules of Evidence as violating Article III, Sections 1 and 2
of the Constitution:
Section. 1. . . . The Judges, both of the supreme and inferior Courts, shall hold
their Offices during good Behaviour, . . . .
Section. 2. The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and Treaties made,
or which shall be made, under their Authority; . . . — to Controversies to which
the United States shall be a Party; — to Controversies between two or more
States; — between a State and Citizens of another State [Modified by
Amendment XI]; . . . .
And the same against Plaintiff’s right to due process of the Fourteenth Amendment as well as violating
Plaintiff’s First Amendment right to petition the government for substantial redress of grievances. The across the
board shut-out of Plaintiff’s case is tantamount to only granting Plaintiff his First Amendment right to petition the
government for procedural redress of grievances as if to deceive Plaintiff in just going through the motions of
justice as if justice was actually rendered. This violates Plaintiff’s right to due process and Plaintiff construes and
alleges this judicial belligerence against Second Amendment cases falls under the RICO Act in an illegal
protection scheme where the federal government unconstitutionally forces Plaintiff to rely on the government for
personal security.

D. Kathleen M. Sullivan’s, Unconstitutional Conditions, 10 Harv.L.Rev. 1413 (May


1989)
Basic constitutional jurisprudence dictates that courts subject most government benefit decisions
to minimal scrutiny, but scrutinize government actions that directly burden preferred liberties
more closely. Unconstitutional conditions problems arise at the boundary between these two
directives: when government conditions a benefit on the recipient’s waiver of a preferred liberty,
should courts review the conditioned benefit deferentially, as a benefit, or strictly, as a burden on
a preferred liberty? . . . Professor Sullivan criticizes traditional analyses of unconstitutional
conditions for focusing wrongly on whether conditions coerce individuals, distort legislative
process, or permit alienation of constitutional rights. She articulates an alternative defense of
close scrutiny, arguing that rightspressuring conditions on government benefits skew distribution
of power between government and rightholders, as well as among rightholders themselves.
Professor Sullivan then develops this systemic approach, detailing both the circumstances in
which courts should apply close scrutiny, and those in which government justifications may be
strong enough to survive such scrutiny.334
The doctrine of unconstitutional conditions holds that government may not grant a benefit on the
condition that the beneficiary surrender a constitutional right, even if the government may

334
Kathleen M. Sullivan, “Unconstitutional Conditions,” 102 Harv.158 L.Rev. 1413 (May 1989), introduction. Italics in
original.

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withhold that benefit altogether. It reflects the triumph of the view that government may not do
indirectly what it may not do directly over the view that the greater power to deny a benefit
includes the lesser power to impose a condition on its receipt. (Id. at 1415)
[A]ssuming that some set of constitutionally preferred liberties has been agreed upon, and that
burdens on those liberties require especially strong justification, unconstitutional conditions
doctrine performs an important function. It identifies a characteristic technique by which
government appears not to, but in fact does burden those liberties, triggering a demand for
especially strong justification by the state. Part I of this Article defines the basic elements of the
technique. (Id. at 1419)
The central challenge for a theory of unconstitutional conditions is to explain why conditions on
government benefits that “indirectly” pressure preferred liberties should be as suspect as “direct”
burdens on those same rights, such as the threat of criminal punishment. (Id. at 1419)
IV. Unconstitutional Conditions as Commodification
Unconstitutional conditions doctrine has a third possible theoretical explanation: that some
constitutional rights are inalienable, and therefore may not be surrendered even through voluntary
exchange. This approach identifies the harm in unconstitutional conditions as the
commodification of rights the treatment of rights as transferable objects. (Id. at 1477)
1. Paternalism.
Making constitutional rights inalienable because citizens may undervalue the worth of those
rights to themselves would be classic paternalism overruling individuals’ choices for their own
good. Individuals’ choices may diverge from their “best” interests for many reasons: for example,
because they underassess risk or under-value their long-term interests. Choices to waive
constitutional rights are no exceptions; invalidating such choices, even if perfectly voluntary,
compels citizens to hang onto their rights for their own good. (Id. at 1480)
. . . The very existence of constitutional rights, however, unlike consumer tastes or preferences,
results from the prior “paternalistic” act of enacting a Constitution. The framers’ decision to place
constitutional rights beyond majority decisionmaking reflects the prediction that citizens will
undervalue those rights in the ordinary course of politics. Constitutional rights thus represent
commitments by a constitutional majority to override the acts of future political majorities’
political version of Ulysses and the Sirens. If the Constitution overrides the legislative choices of
improvident future political majorities, why not the trading choices of improvident future
individual rightholders? This approach would conceive unconstitutional conditions doctrine as a
mere backstop to constitutionalism itself, which among other things, places rights beyond the
reach of politics because citizens, if left to their own devices, will squander them. (Id. at 1480-81)
4. Personhood.
Another sort of argument defends inalienability not because it promotes efficiency or equality,
but because some things ought not to be traded on markets at all. Such wholesale anti-
commodification arguments rest on various theories. Some, for example, view market boundaries
as essential to a distinction between the sacred and the profane. On such a view, reverence,
mystery, and awe for something depend on its freedom from the pollution of trade. A second
variant argues that noncommodificiation can help preserve social norms of altruism or donation.
(Id. at 1484)
Such a “personhood” approach would hold that the opportunity to exchange rights for benefits
wrongly commodifies rights. . . . Inalienability here would follow from the view that
constitutional rights, like body parts and love, but unlike clothes or mass-market consumer goods,
are essential attributes of personal identity. The metaphor of constitutionally protected liberties as

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a “birthright” captures this view. Free transfer of such rights is a form of dismemberment. If
citizens could purchase and sell constitutional rights, they would have a different and inferior
conception both of those constitutional rights and of themselves. (Id. at 1485)
V. A Systemic Account of Unconstitutional Conditions
Neither coercion, corruption, nor commodification theories satisfactorily explain why conditions
on benefits that pressure preferred liberties should receive the same strict scrutiny as “direct”
constraints. . . . None of these three approaches suffices: coercion theory focuses too narrowly on
the individual beneficiary, germaneness theory focuses wrongly on [the corruption of the]
legislative process, and inalienability theory focuses too generally on problems with exchange.
(Id. at 1489-90)
This Part argues for an alternative approach grounded in the systemic effects that conditions on
benefits have on the exercise of constitutional rights. Such an approach starts from the
proposition that the preferred constitutional liberties at stake in unconstitutional conditions cases
do not simply protect individual rightholders piecemeal. Instead, they also help determine the
overall distribution of power between government and rightholders generally, and among classes
of rightholders. (Id. at 1490)
Unconstitutional conditions, no less than “direct” infringements, can skew this distribution in
three ways.
First they can alter the constitutional liberties generally declare desirable some realm of
autonomy that should remain free from government encroachment. Government freedom to
redistribute power over presumptively autonomous decisions from the citizenry to itself through
the leverage of permissible spending or regulation would jeopardize that realm. Second, an
unconstitutional condition can skew the distribution of constitutional rights among rightholders
because it necessarily discriminates facially between those who do and those who do not comply
with the condition. If government has an obligation of evenhandedness or neutrality with regard
to a right, this sort of redistribution is inappropriate. Third, to the extent that a condition
discriminates de facto between those who do and do not depend on a government benefit, it can
create an undesirable caste hierarchy in the enjoyment of constitutional rights. (Id. at 1490)
A. Constitutional Liberty as Distribution
A systemic approach to unconstitutional conditions problems recognizes that constitutional
liberties regulate three relationships: the relationship between government and rightholders,
horizontal relationships among classes of right holders, and vertical relationships among
rightholders. . . . rights-pressuring conditions on government benefits potentially skew all three.
(Id. at 1491)
Such an approach has important advantages over coercion, germaneness, and inalienability
theories in illuminating unconstitutional conditions problems. Unlike coercion and unalienability
theories, a systemic approach emphasizes the distinctive role of government: citizens’
transactions with government require different analysis than interpersonal transactions, an
analysis that focuses not on individuals but on the balance of power and freedom in the polity as a
whole. (Id. at 1491)

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PART 5. FEDERAL QUESTIONS PRESENTED

Part 5. Federal Questions Presented (28 U.S.C. § 1331)

Rule 8(d)(2). Alternative Statements of a Claim.


In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal
on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate
citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state
that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my
claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the
Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law.
My alternative statements of claims are presented in their alternative presentations in the following
Parts of my complaint as shown here to support my primary claims in Part 19:
Part 3. Purpose of this Case
Part 4. In Defense of Pro Se Civil Litigation
Part 5. Federal Questions Presented (28 U.S.C. § 1331)
Part 6. Plaintiff’s Human Rights Declarations
Part 7. Plaintiff’s Constitutional Rights Declarations
Part 8. Plaintiff’s Religious Rights Declarations
Part 9. Plaintiff’s Maritime Rights Declarations
Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment
Part 11. Challenging the Constitutionality of Summary Judgment
Part 12. Challenging the Final Agency Action of the U.S. Coast Guard
Part 13. Challenging the Federal Court Ruling
Part 14. Challenging Selected Federal Laws
Part 15. Challenging Selected Federal Regulations
Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes
Part 17. Challenging Selected Maritime Conventions and Treaties
Part 18. Racketeering and Treason against the Constitution by Federal Judges
Part 19. The Claims
Part 20. Statement of Proposed Rico Charges (Claims)
Part 21. Petition for Writ of Mandamu (My Demands for Justice)
Part 22. Petition for Writ of Prohibition
Part 23. Petition for Declaratory Judgment
Part 24. Petition for Injunctive Relief
Part 25. Damages

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A. Human Rights Law


(1) Has State and Federal gun control laws in their aggregate effect risen to levels that violate the Second
Amendment and international human rights treaties?
(2). Does the Heller opinion declaring “[t]he Second Amendment protects an individual right to possess a
firearm unconnected with service in a militia” create a “fundamental change of circumstances” for the
“emergence of a new peremptory norm of general international law (“jus cognens”) for the “right to life”
provision of human rights treaties?
(3). Does the Heller opinion opinion declaring “[t]he Second Amendment protects an individual right to
possess a firearm unconnected with service in a militia” create an “obligation erga omnes” requirement on the
United States under human rights treaties to incorporate the Second Amendment through the Privileges and
Immunities Clause of the Fourteenth Amendment thereby 7applying the Second Amendment to the States and
thusly resurrecting the Second Amendment and Ninth Amendment right to “openly” keep and bear arms in
intrastate, interstate, and maritime travel?
(4). Does the Supremacy Clause make human rights treaties mirroring our own Bill of Rights directly
enforceable as a private right of action for citizens of the United States in federal courts?
(5). Does the Supremacy Clause prohibit implementing legislation by Congress for human rights treaties
mirroring our own Bill of Rights?
(6). Does the Supremacy Clause prohibit the President and the Senate from inserting “Reservations,
Understandings, and Declarations” (RUDs) into human rights treaties mirroring our own Bill of Rights?
(7). Do “Reservations, Understandings, and Declarations” (RUDs) prohibiting a private right of action in
international human rights treaties for United States citizens violate the judicial Power clause of Article III,
Clause 2 of the Constitution of the United States which states, in part, “The judicial Power shall extend to all
Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or
which shall be made, under their Authority; — to all Cases of admiralty and maritime Jurisdiction; — to
Controversies to which the United States shall be a Party; . . . and between a State, or the Citizens thereof, and
foreign States, Citizens or Subjects.”?
(8). Is Summary Judgment unconstitutional?
(9). Are Conley v. Gibson, 355 U.S. 41 at 45-46, 48 (1957) that “The assertion of federal rights, when
plainly and reasonably made, are not to be defeated under the name of local practice,” and “that a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no
set of facts in support of his claim which would entitle him to relief “ abrogated by the new “Plausible Standard”in
Bell Atlantic Corp. v. Twombly, 550 U.S. __, __, 127 S. Ct. 1955 (May 21, 2007) of stating a claim to relief that a
complaint must now provide “enough facts to state a claim to relief that is plausible on its face” representative of
a judicial war on the American People’s right to a civil jury trial?
(10). Do I have a right to make citizen’s arrest of federal judges and their court clerks for felony
EXTORTION UNDER COLOR OF LAW, 18 U.S.C. § 872 and EXTORTION UNDER COLOR OF OFFICIAL RIGHT
(Racketeering), 18 U.S.C. § 1951(a) and § 1951(b)(2) in relation to extorted payments of filing fees as a seaman
under the SEAMEN’S SUIT law, 28 U.S.C. § 1916?
(11). Does the Seamen’ Suit law, 28 U.S.C. § 1916 directly apply to docket access fees of the PACER
Service Inc., the internet access provider to federal court dockets?
(12). Does the right to make a citizen’s arrest as a remedy of last resort extend to federal judges and their
court clerks for violations of federal laws in light of the U.S. District Court for the District of Columbia’s opinion
in We the People Foundation, et al v. United States, et al, No. 04-1211 (August 31, 2005), (affirmed by the DC
Circuit, and certiorari denied by the U.S. Supreme Court) that “the First Amendment does not impose any
affirmative obligation on the government to listen, to respond,” to complaints filed with federal agencies?

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(13). Is the right to make a citizen’s arrest of employees of the United States government a part of the
checks and balance system of the United States Constitution (i.e., under the Sixth, Seventh, Ninth and Tenth
Amendments)?
(14) Has State and Federal gun control laws in their aggregate effect risen to levels that violate
international human rights treaties?
B. Constitutional Law (The Checks and Balance System)
(1). Was Chisholm v. Georgia, 2 U.S. 419 at 466 (1793) a correct interpretation of Section 2, Article III,
of the Constitution of the United States in that “The judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under
their Authority; . . . to Controversies . . . “between a State and Citizens of another State” that a State can by sued
by a citizen of another State?
(2). Was the right of a citizen of one State to sue another State under Section 2, Article III of the
Constitution of the United States a functional part of the Checks and Balance system of the guarantee of a
Republican form of Government under Section 4, Article IV of the Constitution of the United States?
(3). Does the Eleventh Amendment unconstitutionally construe to deny or disparage the Ninth
Amendment unenumerated right of a citizen of one State to sue another State?
(4). Was the Eleventh Amendment an unconstitutional taking under the Fifth Amendment of power
reserved to the People under the Tenth Amendment and an unconstitutional taking of unenumerated rights under
the Ninth Amendment?
(5). Does treason in Article III, Section 3, Clause 1 apply to federal judges levying War against the
Constitution of the United States as stated in Cohen v. Com. Wealth of Virginia 19 U.S. 264 (Wheat) (1821) (It is
most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take
jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the
confines of the constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever
difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to
decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other
would be treason to the constitution. Questions may occur which we would gladly avoid; but we cannot avoid
them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty.)?
(6). Does the Ninth and Tenth Amendments require Congress to include provisions on private rights of
action in federal laws and regulations affecting the rights, freedoms, duties, and responsibilities of U.S. citizens?
(7). Does the “No Individual Right to Police Protection Doctrine” invoke the Second Amendment right to
keep and bear arms as an absolute right of personal safety and security for immediate armed self-defense under
the Law of Nature and especially under the Law of Human Nature?
(8). Did creation of the U.S. Department of Homeland Security in response to the terrorist attacks in 2001
establish extraordinary circumstances for the plaintiff’s Petition for Writ of Mandamus (U.S. District Court for
DC, No. 02-1435)?
(9). Does Heller (2008) create extraordinary circumstances for mandamus relief for the Plaintiff’s Petition
for Writ of Mandamus?
(10). Does Summary Judgment violate the common law right to a civil jury trial under the Seventh
Amendment?
(11). Citing Justice Breyer’s four-point test four determining whether courts could infer private
enforcement from a statute that did not expressly provide for private enforcement in Cort v. Ash, 422 U.S. 66, at
78 (1975) is a private remedy implicit in the Seamen’s Suit Law 28 U.S.C. § 1916 even though it does not
expressly provide a private remedy?

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(12). Are Pacer Internet Docket Fees automatically included under the Seamen’s Suit Law (28 U.S.C. §
1916) of exempted fees or must a United States seaman file a separate motion for the exemption to apply to the
Pacer Internet Docket Fees?
(13). When a civil case before a Court of the United States with subject matter jurisdiction concerning the
safety of seamen at sea and ashore in the United States is there a Tenth Amendment power of citizen’s arrest and
a Seventh Amendment private right of action under the Law of Citizen’s Arrest for a United States
seaman/plaintiff to enforce the Seamen’s Suit Law (28 U.S.C. § 1916) against federal judges and court clerks who
unlawfully Order and compel the seaman/plaintiff to pay the court’s filing fee (18 U.S.C. § 872 Extortion Under
Color of Law and 18 U.S.C. § 1651(b)(2) Extortion Under Color of Official Right (RICO Act)) when all
normative remedies are exhausted?
(14). Is their an implied Private Right of Action under the SEAMEN’S SUIT LAW (28 U.S.C. § 1916) to
make citizen’s arrest of federal judges and their court clerks for felony EXTORTION UNDER COLOR OF LAW (18
U.S.C. § 872) and felony EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering), (18 U.S.C. § 1951(a))
and § 1951(b)(2) in relation to extorted payments of filing fees as a seaman under the SEAMEN’S SUIT LAW (28
U.S.C. § 1916)?
(15). Does the SEAMEN’S SUIT LAW (28 U.S.C. § 1916) apply directly to Pacer Online Docket access fees?
(16). Does the right to make a citizen’s arrest under the Law of Citizen’s Arrest as a remedy of last resort
extend to federal judges and their court clerks for violations of EXTORTION UNDER COLOR OF LAW (18 U.S.C. §
872) and felony EXTORTION UNDER COLOR OF OFFICIAL RIGHT (Racketeering), (18 U.S.C. § 1951(a)) and §
1951(b)(2) in light of the U.S. District Court for the District of Columbia’s opinion in We the People Foundation,
et al v. United States, et al, No. 04-1211 (August 31, 2005), (affirmed by the DC Circuit, and certiorari denied by
the U.S. Supreme Court) that “the First Amendment does not impose any affirmative obligation on the
government to listen, to respond,” to complaints filed with federal agencies?
(17). Is the LAW OF CITIZEN’S ARREST part of the checks and balance system of the United States
Constitution (i.e., under the Sixth, Seventh, Ninth and Tenth Amendments)?
The Supreme Court, however, has held that “the First Amendment does not impose any affirmative obligation on
the government to listen, to respond . . .” See Smith v. Ark. State Highway Employees, Local 1315, 441 U.S. 463,
465 (1979).
We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 04-
1211 (August 31, 2005). Affirmed, DC Circuit, No. 05-5359 (May 8, 2007):

We need not resolve this debate, however, because we must follow the binding Supreme Court precedent. See
Tenet v. Doe, 544 U.S. 1, 10-11 (2005). And under that precedent, Executive and Legislative responses to and
consideration of petitions are entrusted to the discretion of those Branches.
Certiorari, denied, January 7, 2008; Petition for Rehearing denied, February 25, 2008.
(18). Are the FEDERAL BUREAU OF INVESTIGATION and the PUBLIC INTEGRITY SECTION, Criminal Division
of the U.S. Department of Justice required to accept, investigate, and prosecute federal judges and their court
clerks for EXTORTION UNDER COLOR OF OFFICIEAL RIGHT (18 U.S.C. § 1951(b)(2)) in accordance with the U.S
Attorney’s Manual, Title 9, § 131.020 INVESTIGATIVE AND SUPERVISORY JURISDICTION.
(19). Does the Preamble to the Constitution, the legislative Preamble to the Bill of Rights, the Bill of
Rights themselves, and the Thirteenth and Fourteenth Amendments serve as a barrier to restrictive and prohibitive
regulation of firearms through the Commerce Clause of Article 1, Section 8 in the Constitution of the United
States?

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(20). Does the Second Amendment, Fifth Amendment, Ninth Amendment, and the “privileges and
immunities” clause of the Fourteenth Amendment extend to the right to “openly” keep and bear arms in intrastate,
interstate, and maritime travel?
(21). As a person not prohibited to own and possess a firearm under 18 U.S.C. § 922, et seq. do I have the
right to own and possess firearms in intrastate and interstate travel?
(22). Is the Second Amendment a vital component of the Common Defence clause, the General Welfare
clause, and the Domestic Tranquility clause of the Preamble to the U.S. Constitution and of the Tenth
Amendment under the Bill of Rights?
(23). Is the U.S. Coast Guard required, as a non-discretionary duty under the Oath of Office to support
and defend the Constitution, to include a Second Amendment indicator, (i.e. an endorsement for National Open
Carry Handgun) on the MERCHANT MARINER’S DOCUMENT for mandatory occupational training under OPNAV
Instruction 3591.1C (May 13, 1992) SMALL ARMS TRAINING AND QUALIFICATION,335 and 46 U.S.C. § 7306(a)(3)
GENERAL REQUIREMENTS AND CLASSIFICATIONS FOR ABLE SEAMEN, in the 9mm Baretta, 12-ga shotgun, and the M-
14 rifle when there are no federal laws or regulations for or against the requested endorsement?
(24). Does 18 U.S.C. § 926A. INTERSTATE TRANSPORTATION OF FIREARMS and the aggregate effect of gun
control laws of the 48 contiguous State violate the right to travel simultaneously with the right to “openly”keep
and bear arms under the Second, Fifth, Fourth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments and does
the aggregate effect of State and Federal gun control laws impose conditions and badges of slavery as defined by
Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 416-417 (1856)?
(25). Does the Heller opinion declaring the “[t]he Second Amendment protects an individual right to
possess a firearm unconnected with service in a militia” create a constitutional obligation to incorporate the
Second Amendment through the Privileges and Immunities Clause of the Fourteenth Amendment to appy to the
States thus resurrecting the Second Amendment and Ninth Amendment right to “openly” keep and bear arms in
intrastate, interstate, and maritime travel?
(26). Is the Second Amendment right to keep and bear arms “openly” in intrastate, interstate, and
maritime travel an unenumerated near-absolute right of the Ninth Amendment?
(27). Is there a Seventh Amendment right of private enforcement of federal statutes for U.S. Citizen’s
acting in the capacities of a victim, a private attorney general as implied by the guarantee of a Republican Form of
Government and as implied by the Checks and Balance System of the Constitution of the United States, and as
implied by the Tenth Amendment powers reserved to the People, and as a human rights defender under the United
Nations’ DECLARATION ON THE RIGHT AND RESPONSIBILITY OF INDIVIDUALS, GROUPS AND ORGANS OF SOCIETY TO
PROMOTE AND PROTECT UNIVERSALLY RECOGNIZED HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS, United
Nations General Assembly Resolution A/RES/53/144 dated March 8, 1999, as implied by the Treaty Clause?
(28). Is it the duty of a U.S. Marshal or a Deputy U.S. Marshal, under 28 U.S.C. § 566(d) Powers and
Duties (Each United States marshal, deputy marshal, and any other official of the Service as may be designated
by the Director may carry firearms and make arrests . . . for any felony cognizable under the laws of the United
States if he or she has reasonable grounds to believe that the person to be arrested has committed or is
committing such felony) to accept a Citizen’s Arrest Warrant for named federal judges and court clerks when there
is attached to the Citizen’s Arrest Warrant undeniable evidence in the form of Memorandums and Orders of
Courts of the United States, that on their face orders the seaman/plaintiff to unlawfully pay filing fees of the
courts in clear violation of the Seamen’s Suit Law (28 U.S.C. § 1916)?
(29). In light of Heller does 18 U.S.C. § 926(A) Interstate Transporation of Firearms violate the Second
Amendment?

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(30). In light of Heller does 50 U.S.C. § 2386 interpreted to require the registration of the “unorganized
militia” under 10 U.S.C. § 311(b)(2) present a conflict of laws under the Doctrine of Unconstitutional Conditions?

C. Corruption and Obstructions of Justice (18 U.S.C. § 1505)


(1). Did the U.S. Government act as a racketeering enterprise specifically against my cases during the past
6-year litigious pursuit for Second Amendment rights and/or generally against the Second Amendment in an
unlawful and an unconstitutional protection scheme in violation of the RICO Act?
(2). Did the U.S. Coast Guard unlawfully retaliate on 2004 and 2006 with Bar Notices because I named
the U.S. Coast Guard as a Defendant in my lawsuit in defense of my Second Amendment right and/or for
published criticisms critical of the U.S. Coast Guard on the Internet?
(3). Did the federal courts corruptively and unconstitutionally dismiss my cases from 2002 to 2008 and
thereby not only violate my Seventh Amendment right to a civil jury trial under the Constitution of the United
States but also my human rights to a civil jury trial under ARTICLE II. Denial of Equal Justice Under the Law;
ARTICLE XVIII Denial of a Fair Civil Trial (Seventh Amendment); ARTICLE XXIV Denial of Right to Petition
for Redress (First Amendment); ARTICLE XXVI Denial of Due Process Rights (Fifth & Fourteenth Amendments)
of the AMERICAN DECLARATION ON THE RIGHTS AND DUTIES OF MAN ?
(4). Is the federal judiciary waging a War against the People’s civil and constitutional rights? (See Kelo v.
New London 545 U.S. 469 (2005) (erosion of the Fifth Amendment takings clause in this eminent domain case);
We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 04-
1211 (August 31, 2005); affirmed DC Circuit, No. 05-5359 (May 8, 2007); certiorari denied January 7, 2008;
Petition for Rehearing denied February 25, 2008 (the First Amendment does not impose any affirmative
obligation on the government to listen, to respond); Bell Atlantic Corp. v. Twombly, 550 U.S. __, __, 127 S. Ct.
1955 (May 21, 2007) (crippling the Seventh Amendment right to a civil jury trial by relaxing the standards on
Motion to Dismiss and Summary Judgment with the new Plausible Standard).
(5). Were the judicial opinions in my Second Amendment cases from 2002 to 2008 fraudulent and
unconstitutional (i.e., 18 U.S.C. § 1001 FRAUD AND FALSE STATEMENTS)?
Hamrick v. President George W. Bush, et al, U.S. District Court for the District of Columbia, No. 02-1435, Judge
Ellen Segal Huvelle, October 9, 2002, denying with prejudice my PETITION FOR WRIT OF MANDAMUS, WRIT
OF PROHIBITION, DECLARATORY JUDGMENT, AND INJUNCTIVE RELIEF
Hamrick v. Admiral Thomas H. Collins, USCG, et al, U.S. District Court for the District of Columbia, No. 02-
1434, Judge Ellen Segal Huvelle, December 26, 2002, denying with prejudice my COMPLAINT FOR
DEFAMATION AND DAMAGES, LIBEL AS A MATTER OF PRIVATE CONCERN, INJURY TO REPUTATION,
UNLAWFUL INTERFERENCE WITH THE LAWFUL OPERATION OF A MERCHANT VESSEL, UNLAWFUL
INTERFERENCE WITH A SEAMAN’S EMPLOYMENT ABOARD A MERCHANT VESSEL, WRONGFUL
DETENTION/FALSE IMPRISONMENT OF A U.S. MERCHANT SEAMAN IN A FOREIGN COUNTRY,
HARASSMENT, EMOTIONAL DISTRESS, AND SUBJECTION TO A MALICIOUS CRIMINAL INVESTIGATION
EXTENDING FROM PETITIONER’S EXERCISE OF FIRST AMENDMENT RIGHTS TO FREE SPEECH AND
TO PETITION THE GOVERNMENT FOR REDRESS OF GRIEVANCES PURSUING SECOND AMENDMENT
RIGHTS
Hamrick v. President George W. Bush, et al, U.S. District Court for the District of Columbia, No. 03-2160, Judge
Reggie B. Walton, August 16, 2004, denied with prejudice my CIVIL RIGHTS COMPLAINT OF
RACKETEERING AND FRAUD UNDER THE RICO ACT FOR AN UNCONSTITUTIONAL PROTECTION
SCHEME UNDER COLOR OF LAW OVER THE SECOND AMENDMENT VIOLATING THE PLAINTIFF’S
RIGHT TO PETITION AND RIGHT TO DUE PROCESS AND FOR WRIT OF MANDAMUS, WRIT OF
PROHIBITION, DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF & FOR DAMAGES.

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(6). Did Dennis Barghaan, Assistant U.S. Attorney from Alexandria, Virginia, acting as Special Attorney
for the U.S. Department of Justice, and persons or persons unknown in the U.S. Department of Justice criminally
withhold evidence (Memorandum Opinion for the Attorney General, WHETHER THE SECOND AMENDMENT
SECURES AN INDIVIDUAL RIGHT, dated August 24, 2004)336 vital to my Second Amendment case at the U.S. District
Court for DC, Case No. 03-2160?
(7) Did Judge Reggie B. Walton abuse the Federal Rules of Civil Procedure and criminally obstruct
justice when he issued his Scheduling Order (No. 03-2160)?
(8) Does the Preamble to the Constitution, the legislative Preamble to the Bill of Rights, the Bill of Rights
themselves, the Thirteenth and Fourteenth Amendments serve as a barrier to restrictive and prohibitive regulation
of firearms through the Commerce Clause of Article 1, Section 8?
(9) Does the Second Amendment extend to the right to keep and bear arms in intrastate and interstate
travel?
(10) Does the Plaintiff, as a U.S. citizen, have the right to own and possess firearms in intrastate and
interstate travel?
(11) Is the Second Amendment a vital component of the Common Defence clause, the General Welfare
clause, and the Domestic Tranquility clause of the Preamble to the U.S. Constitution and of the Tenth
Amendment under the Bill of Rights? (1) Do I, as a U.S. Citizen and as a U.S. Merchant Seaman, have any
specifically enforceable rights under the petition clause of the First Amendment or under the Bill of Rights in
general without the threat of arrest and prosecution to pursue Second Amendment rights and to pursue justice for
obstruction of justice thereof?
(12) Is the U.S. Coast Guard required, as a non-discretionary duty, to include a Second Amendment
indicator, (i.e. an endorsement for National Open Carry Handgun) on the MERCHANT MARINER’S DOCUMENT for
mandatory occupational training under OPNAV Instruction 3591.1C (May 13, 1992) SMALL ARMS TRAINING AND
QUALIFICATION,337 and 46 U.S.C. § 7306(a)(3) GENERAL REQUIREMENTS AND CLASSIFICATIONS FOR ABLE SEAMEN,
in the 9mm Baretta, 12-ga shotgun, and the M-14 rifle when there are no federal laws or regulations for or against
the requested endorsement?
(13) Does the 18 U.S.C. § 926A. INTERSTATE TRANSPORTATION OF FIREARMS and the aggregate effect of
gun control laws of the 48 contiguous State violate the right to travel simultaneous with the right to keep and bear
arms under the Second, Fifth, Fourth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments and does the
aggregate effect of State and Federal gun control laws imposing conditions and badges of slavery as defined by
Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 416-417 (1856):
“It would give to persons of the Negro race, who were recognized as citizens in any one State of the Union, the
right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and
without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or
night without molestation, unless they committed some violation of law for which a white man would be punished;
and it would give them the full liberty of speech in public and in private upon all subjects upon which its own
citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they
went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and
inevitably producing discontent and insubordination among them, and endangering the peace and safety of the
State.”

336
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The Supreme Court, however, has held that “the First Amendment does not impose any affirmative obligation on
the government to listen, to respond . . .” See Smith v. Ark. State Highway Employees, Local 1315, 441 U.S. 463,
465 (1979).
We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 04-
1211 (August 31, 2005). Affirmed, DC Circuit, No. 05-5359 (May 8, 2007):

We need not resolve this debate, however, because we must follow the binding Supreme Court precedent. See
Tenet v. Doe, 544 U.S. 1, 10-11 (2005). And under that precedent, Executive and Legislative responses to and
consideration of petitions are entrusted to the discretion of those Branches.
Certiorari, denied, January 7, 2008; Petition for Rehearing denied, February 25, 2008.
D. Application of the RICO Act Against the U.S. Government
(1). Did the U.S. Government act as a racketeering enterprise against the Plaintiff over his First
Amendment right to petition the government for redress of grievances in his 6-year litigious pursuit for Second
Amendment rights in violation of the RICO Act to sustain the allegation that the United States government
conducted racketeering activities in an unlawful and an unconstitutional protection scheme over the Second
Amendment
(2). Did the U.S. Coast Guard unlawfully retaliate against the Plaintiff for exercising First Amendment
rights in his pursuit for Second Amendment rights in publishing criticism specifically of the U.S. Coast Guard or
criticisms generally of the U.S. Government?
E. Maritime Law
(1). Do the Firearms provisions in ¶44 and ¶45 of the PIRACY AND ARMED ROBBERY AGAINST SHIPS:
GUIDANCE TO SHIPOWNERS AND SHIP OPERATORS, SHIPMASTERS AND CREWS ON PREVENTING AND SUPPRESSING
ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS,338 International Maritime Commission, Maritime Safety
Commission’s Circular 623/Rev.2, dated June 20, 2001 (currently Rev.3, dated May 29, 2002), negate, nullify, or
void the Second Amendment?
(2). Did Capt. J. P. Brusseau, USCG, Coast Guard act with “deliberate indifference” to Plaintiff’s Second,
Ninth, Thirteenth and Fourteenth Amendment rights and Tenth Amendment powers by denying Plaintiff’s
application for the National Open Carry Handgun endorsement on his Merchant Mariner’s Document for U.S.
Government required small arms training as a pre-requisite for employment aboard a U.S. Government
ammunition ship, and subsequently initiated a criminal investigation through the European division of the Naval
Criminal Investigative Service (NCIS) in retaliation for a publishable “Op-Ed” article emailed to Capt. Brusseau.
(3). Does the Firearms provisions in Paragraphs 44 and 45 of the International Maritime Commission,
Maritime Safety Commission’s Circular 623/Rev.2, dated June 20, 2001 (currently Rev.3, dated May 29, 2002),
titled, PIRACY AND ARMED ROBBERY AGAINST SHIPS: GUIDANCE TO SHIPOWNERS AND SHIP OPERATORS,
SHIPMASTERS AND CREWS ON PREVENTING AND SUPPRESSING ACTS OF PIRACY AND ARMED ROBBERY AGAINST
SHIPS,339 stand superior in law to the U.S. Constitution’s Second Amendment’s right to keep and bear arms?
(4). Did Capt. J. P. Brusseau, USCG, Coast Guard act with “deliberate indifference” to Plaintiff’s Second,
Ninth, Thirteenth and Fourteenth Amendment rights and Tenth Amendment powers by denying Plaintiff’s
application for the National Open Carry Handgun endorsement on his Merchant Mariner’s Document for U.S.
Government required small arms training as a pre-requisite for employment aboard a U.S. Government

338
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339
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ammunition ship, and subsequently initiated a criminal investigation through the European division of the Naval
Criminal Investigative Service (NCIS) in retaliation for a publishable “Op-Ed” article emailed to Capt. Brusseau.

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162 PRESENTED
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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS

Part 6. Plaintiff’s Human Rights Declarations

Rule 8(d)(2). Alternative Statements of a Claim.


In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal
on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate
citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state
that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my
claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the
Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law.
My alternative statements of claims are presented in their alternative presentations in the following
Parts of my complaint as shown here to support my primary claims in Part 19:
Part 3. Purpose of this Case
Part 4. In Defense of Pro Se Civil Litigation
Part 5. Federal Questions Presented (28 U.S.C. § 1331)
Part 6. Plaintiff’s Human Rights Declarations
Part 7. Plaintiff’s Constitutional Rights Declarations
Part 8. Plaintiff’s Religious Rights Declarations
Part 9. Plaintiff’s Maritime Rights Declarations
Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment
Part 11. Challenging the Constitutionality of Summary Judgment
Part 12. Challenging the Final Agency Action of the U.S. Coast Guard
Part 13. Challenging the Federal Court Ruling
Part 14. Challenging Selected Federal Laws
Part 15. Challenging Selected Federal Regulations
Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes
Part 17. Challenging Selected Maritime Conventions and Treaties
Part 18. Racketeering and Treason against the Constitution by Federal Judges
Part 19. The Claims
Part 20. Statement of Proposed Rico Charges (Claims)
Part 21. Petition for Writ of Mandamu (My Demands for Justice)
Part 22. Petition for Writ of Prohibition
Part 23. Petition for Declaratory Judgment
Part 24. Petition for Injunctive Relief
Part 25. Damages

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS

A. Plaintiff has a Private Right of Action under the AMERICAN DECLARATION ON THE
RIGHTS AND DUTIES OF MAN through the Treaty Clause of the U.S. Constitution
(1). The Preamble to the American Declaration on the Rights and Duties of
Man
All men are born free and equal, in dignity and in rights, and, being endowed by
nature with reason and conscience, they should conduct themselves as brothers
one to another.
The fulfillment of duty by each individual is a prerequisite to the rights of all.
Rights and duties are interrelated in every social and political activity of man.
While rights exalt individual liberty, duties express the dignity of that liberty.
Duties of a juridical nature presuppose others of a moral nature which support
them in principle and constitute their basis.
Inasmuch as spiritual development is the supreme end of human existence and
the highest expression thereof, it is the duty of man to serve that end with all his
strength and resources.
Since culture is the highest social and historical expression of that spiritual
development, it is the duty of man to preserve, practice and foster culture by
every means within his power.
And, since moral conduct constitutes the noblest flowering of culture, it is the
duty of every man always to hold it in high respect.

(2) The Invoked Articles of the AMERICAN DECLARATION ON THE RIGHTS AND
DUTIES OF MAN in support of my demand for my Seventh Amendment right to
a civil jury trial in defense of my own injuried rights.
Article I. Right to life, liberty and personal security.
Every human being has the right to life, liberty and the security of his person.
Article II. Right to equality before law.
All persons are equal before the law and have the rights and duties established in this
Declaration, without distinction as to race, sex, language, creed or any other factor.
Article IV. Right to freedom of investigation, opinion, expression and dissemination.
Every person has the right to freedom of investigation, of opinion, and of the expression
and dissemination of ideas, by any medium whatsoever.
Article V. Right to protection of honor, personal reputation, and private and family life.
Every person has the right to the protection of the law against abusive attacks upon his
honor, his reputation, and his private and family life.
Article XIII. Right to the benefits of culture.
Every person has the right to take part in the cultural life of the community, to enjoy the
arts, and to participate in the benefits that result from intellectual progress, especially
scientific discoveries.

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He likewise has the right to the protection of his moral and material interests as regards
his inventions or any literary, scientific or artistic works of which he is the author.
Article XVII. Right to recognition of juridical personality and civil rights.
Every person has the right to be recognized everywhere as a person having rights and
obligations, and to enjoy the basic civil rights.

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Article XVIII. Right to a fair trial.


Every person may resort to the courts to ensure respect for his legal rights. There should
likewise be available to him a simple, brief procedure whereby the courts will protect him
from acts of authority that, to his prejudice, violate any fundamental constitutional rights.
Article XXI. Right of assembly.
Every person has the right to assemble peaceably with others in a formal public meeting
or an informal gathering, in connection with matters of common interest of any nature.
Article XXII. Right of association.
Every person has the right to associate with others to promote, exercise and protect his
legitimate interests of a political, economic, religious, social, cultural, professional, labor
union or other nature.
Article XXIV. Right of petition.
Every person has the right to submit respectful petitions to any competent authority, for
reasons of either general or private interest, and the right to obtain a prompt decision
thereon.
Article XXV. Right of protection from arbitrary arrest.
No person may be deprived of his liberty except in the cases and according to the
procedures established by pre-existing law.
No person may be deprived of liberty for nonfulfillment of obligations of a purely civil
character.
Every individual who has been deprived of his liberty has the right to have the legality of
his detention ascertained without delay by a court, and the right to be tried without undue
delay or, otherwise, to be released. He also has the right to humane treatment during the
time he is in custody.
Article XXVI. Right to due process of law.
Every accused person is presumed to be innocent until proved guilty.
Every person accused of an offense has the right to be given an impartial and public
hearing, and to be tried by courts previously established in accordance with pre-existing
laws, and not to receive cruel, infamous or unusual punishment.

(3) The Invoked Articles of the AMERICAN DECLARATION ON THE RIGHTS AND
DUTIES OF MAN in support of my demand for my Seventh Amendment right to
a civil jury trial in defense of the rights of third parties.
Article I. Right to life, liberty and personal security.
Every human being has the right to life, liberty and the security of his person.
Article II. Right to equality before law.
All persons are equal before the law and have the rights and duties established in this
Declaration, without distinction as to race, sex, language, creed or any other factor.
Article III. Right to religious freedom and worship.

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Every person has the right freely to profess a religious faith, and to manifest and practice
it both in public and in private.
Article IV. Right to freedom of investigation, opinion, expression and dissemination.
Every person has the right to freedom of investigation, of opinion, and of the expression
and dissemination of ideas, by any medium whatsoever.
Article V. Right to protection of honor, personal reputation, and private and family life.
Every person has the right to the protection of the law against abusive attacks upon his
honor, his reputation, and his private and family life.
Article VI. Right to a family and to protection thereof.
Every person has the right to establish a family, the basic element of society, and to
receive protection therefore.
Article VII. Right to protection for mothers and children.
All women, during pregnancy and the nursing period, and all children have the right to
special protection, care and aid.
Article VIII. Right to residence and movement.
Every person has the right to fix his residence within the territory of the state of which he
is a national, to move about freely within such territory, and not to leave it except by his
own will.
Article IX. Right to inviolability of the home.
Every person has the right to the inviolability of his home.
Article X. Right to the inviolability and transmission of correspondence.
Every person has the right to the inviolability and transmission of his correspondence.
Article XI. Right to the preservation of health and to well-being.
Every person has the right to the preservation of his health through sanitary and social
measures relating to food, clothing, housing and medical care, to the extent permitted by
public and community resources.
Article XII. Right to education.
Every person has the right to an education, which should be based on the principles of
liberty, morality and human solidarity.
Likewise every person has the right to an education that will prepare him to attain a
decent life, to raise his standard of living, and to be a useful member of society.
The right to an education includes the right to equality of opportunity in every case, in
accordance with natural talents, merit and the desire to utilize the resources that the state
or the community is in a position to provide.
Every person has the right to receive, free, at least a primary education.
Article XIII. Right to the benefits of culture.
Every person has the right to take part in the cultural life of the community, to enjoy the
arts, and to participate in the benefits that result from intellectual progress, especially
scientific discoveries.

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He likewise has the right to the protection of his moral and material interests as regards
his inventions or any literary, scientific or artistic works of which he is the author.
Article XIV. Right to work and to fair remuneration.
Every person has the right to work, under proper conditions, and to follow his vocation
freely, insofar as existing conditions of employment permit.
Every person who works has the right to receive such remuneration as will, in proportion
to his capacity and skill, assure him a standard of living suitable for himself and for his
family.
Article XV. Right to leisure time and to the use thereof.
Every person has the right to leisure time, to wholesome recreation, and to the
opportunity for advantageous use of his free time to his spiritual, cultural and physical
benefit.
Article XVI. Right to social security.
Every person has the right to social security which will protect him from the
consequences of unemployment, old age, and any disabilities arising from causes beyond
his control that make it physically or mentally impossible for him to earn a living.
Article XVII. Right to recognition of juridical personality and civil rights.
Every person has the right to be recognized everywhere as a person having rights and
obligations, and to enjoy the basic civil rights.
Article XVIII. Right to a fair trial.
Every person may resort to the courts to ensure respect for his legal rights. There should
likewise be available to him a simple, brief procedure whereby the courts will protect him
from acts of authority that, to his prejudice, violate any fundamental constitutional rights.
Article XIX. Right to nationality.
Every person has the right to the nationality to which he is entitled by law and to change
it, if he so wishes, for the nationality of any other country that is willing to grant it to him.
Article XX. Right to vote and to participate in government.
Every person having legal capacity is entitled to participate in the government of his
country, directly or through his representatives, and to take part in popular elections,
which shall be by secret ballot, and shall be honest, periodic and free.
Article XXI. Right of assembly.
Every person has the right to assemble peaceably with others in a formal public meeting
or an informal gathering, in connection with matters of common interest of any nature.
Article XXII. Right of association.
Every person has the right to associate with others to promote, exercise and protect his
legitimate interests of a political, economic, religious, social, cultural, professional, labor
union or other nature.
Article XXIII. Right to property.
Every person has a right to own such private property as meets the essential needs of
decent living and helps to maintain the dignity of the individual and of the home.

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Article XXIV. Right of petition.


Every person has the right to submit respectful petitions to any competent authority, for
reasons of either general or private interest, and the right to obtain a prompt decision
thereon.
Article XXV. Right of protection from arbitrary arrest.
No person may be deprived of his liberty except in the cases and according to the
procedures established by pre-existing law.
No person may be deprived of liberty for nonfulfillment of obligations of a purely civil
character.
Every individual who has been deprived of his liberty has the right to have the legality of
his detention ascertained without delay by a court, and the right to be tried without undue
delay or, otherwise, to be released. He also has the right to humane treatment during the
time he is in custody.
Article XXVI. Right to due process of law.
Every accused person is presumed to be innocent until proved guilty.
Every person accused of an offense has the right to be given an impartial and public
hearing, and to be tried by courts previously established in accordance with pre-existing
laws, and not to receive cruel, infamous or unusual punishment.
Article XXVII. Right of asylum.
Every person has the right, in case of pursuit not resulting from ordinary crimes, to seek
and receive asylum in foreign territory, in accordance with the laws of each country and
with international agreements.
Article XXVIII. Scope of the rights of man.
The rights of man are limited by the rights of others, by the security of all, and by the just
demands of the general welfare and the advancement of democracy.

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PART 6. PLAINTIFF’S HUMAN RIGHTS DECLARATIONS

B. Plaintiff has a Private Right of Action under Article XVIII (Right to a Fair
Trial), and Article XXIV (Right of Petition) (among others) of the American
Declaration of the Rights and Duties of Man, 1948 through the Treaty Clause of the
U.S. Constitution has already been taken by the Plaintiff with his Human Rights
Complaint against the United States now Pending at the Inter-American Commission
on Human Rights (Petition No. 1142-06)
In 2006, after four years of unconstitutional summary judgments340 on Motions to Dismiss in violation of
my Seventh Amendment right to a civil jury trial under the common law I exercised my Private Right of Action in
accordance with the AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN under Articles I (Right to life),
II (Right to equality before law), IV (Right to freedom of investigation, opinion, expression and dissemination), V
(Right to protection of honor, personal reputation, and private and family life), VI (Right to a family and to
protection thereof), VII (Right to protection for mothers and children), VIII (Right to residence and movement),
IX (Right to inviolability of the home), the right to be a part of the gun culture under Articles XIII (Right to the
benefits of culture), XV (Right to leisure time and to the use thereof ), XVII (Right to recognition of juridical
personality and civil rights), XVIII (Right to a fair trial), XXI (Right of assembly), XXII (Right of association),
XXIII (Right to property, i.e. the right to own and possess firearms notwithstanding violations/convictions under
the law), XXIV (Right of petition, i.e. We the People Foundation, et al v. United States, et al, U.S. District Court
for the District of Columbia, No. 04-1211 (August 31, 2005), (affirmed by the DC Circuit, and certiorari denied
by the U.S. Supreme Court) that “the First Amendment does not impose any affirmative obligation on the
government to listen, to respond”) , XXV (Right of protection from arbitrary arrest), XXVI (Right to due process
of law), and Article XXIX (Duties to society) to which the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS and
the INTER-AMERICAN COURT ON HUMAN RIGHTS have jurisdiction and filed my human rights complaint against the
United States (Petition No. 1142-06).
At contest here is the U.S. Supreme Court’s doctrine that “the First Amendment does not
impose any affirmative obligation on the government to listen, to respond or, in this context,
to recognize the association and bargain with it.” See Smith v. Ark. State Highway Employees,
Local 1315, 441 U.S. 463, 465 (1979).
We the People Foundation, et al v. United States, et al, U.S. District Court for the District of Columbia, No. 04-
1211 (August 31, 2005)
The Supreme Court, however, has held that “the First Amendment does not impose any
affirmative obligation on the government to listen, to respond or, in this context, to
recognize the association and bargain with it.” See Smith v. Ark. State Highway Employees,
Local 1315, 441 U.S. 463, 465 (1979). Plaintiffs’ claims that the defendants are obligated to
“properly” respond to plaintiffs’ petitions shall thus be dismissed for failure to state a claim upon
which relief may be granted.
We the People Foundation, et al v. United States, et al, THE APPEAL: DC Circuit, No. 05-5359 (May 8,
2007)

340
Suja A. Thomas, THE UNCONSTITUTIONALITY OF SUMMARY JUDGMENT: A STATUS REPORT, 93 Iowa Law Review __
(forthcoming 2008) Iowa Law Review Symposium on Procedural Justice; Suja A. Thomas, WHY SUMMARY JUDGMENT IS STILL
UNCONSTITUTIONAL: A REPLY TO PROFESSORS BRUNET AND NELSON, 93 Iowa Law Review, __ (forthcoming 2008); Suja A.
Thomas, WHY SUMMARY JUDGMENT IS UNCONSTITUTIONAL, 93 Va. L. Rev. 139 (2007).

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C. PLAINTIFF’S NOTE: David B. Kopel, Paul Gallant & Joanne D. Eisen, The
Human Right of Self-Defense, 22 BYU Journal of Public Law 43-178 (Fall 2007)
(136 pages) is incorporated into this Part 6 as part of my claims in this complaint.
The law review article is available online at: http://www.law2.byu.edu/jpl/Vol22.1/Kopel.pdf.
The above law review article is included in this complaint in its entirety by reference to the URL above.
D. The Conclusion in David B. Kopel, Paul Gallant & Joanne D. Eisen, The Human
Right of Self-Defense 22 BYU Journal of Pulbic Law 33 (Fall 2007)
Conclusion341
As Grotius wrote in his introduction:
I have used in proof of this law, the testimony of philosophers, historians, poets,
and lastly even of orators. Not that they are indiscriminately to be relied on as
impartial authority, since they often bend to the prejudices of their sect, the
nature of their argument, or the interest of their cause, but where many minds of
different ages and countries concur in affirming the same general sentiment, this
general concurrence must be referred to some general cause; which in the
questions we have undertaken to examine, can be no other than a right induction
from the principles of natural justice, or some common consent. The former
indicates the law of nature, the latter the law of nations…
So wrote Grotius in his introduction.342 The human right of self-defense is affirmed by the
concurrence of many minds of different ages—Grotius knew this, and as this Article has
elaborated, the concurrence has continued in the nearly four centuries since Grotius. We have
cited fewer orators and poets than did Grotius, and we have enjoyed the benefit of many sources
which did not exist at the time of Grotius, including the written constitutions all over the world,
the Universal Declaration of Human Rights, and the vast structure of international law that was
built on the foundation of Grotius. We have only rarely touched on the many heated arguments
between the great scholars, or the tremendous differences in practices between leading systems of
law, or how the modern world’s constitutions and treaties are based on strikingly diverse views of
civilization and justice. We have not addressed all the differences among our many sources
because, regarding self-defense, “many minds of different ages and countries concur in affirming
the same general sentiment.”
To examine the evidence is to discover what the Special Rapporteur so artfully concealed: the
overwhelming consensus among the sources of international law, from ancient times to the
present, among diverse legal systems, religions, and nations: self-defense is a fundamental human
right.
In this Article, we do not claim that the evidence produced thus far proves the existence of a
universal international human right to possess and carry firearms in all circumstances. We do
suggest that the evidence of an international human right to self-defense is clear. The existence of
a right of personal defense undoubtedly must imply some right to defensive training, and to the

341
http://www.davekopel.org/2A/LawRev/The-Human-Right-of-Self-Defense.pdf
342
1 GROTIUS, Prolog. § 41, quoted in HENRY WHEATON, ELEMENTS OF INTERNATIONAL LAW: WITH A SKETCH OF THE
HISTORY OF THE SCIENCE 29 n. 13 (2002)(1836). While this Article has usually quoted from the 2005 edition of Grotius, we
chose to use the alternative translation quoted in Wheaton because its English flows more naturally than does the 2005 text’s
version of the same quote.

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possession of some type of defensive arms. However, we have only attempted to suggest some
possible lines of exploration for subsequent scholarly analysis of the derivative rights to defensive
arms and defensive training. It does seem apparent that it would be a violation of human rights
law for a government to forbid self-defense, to forbid defensive training, or to forbid the
possession of reasonably necessary defensive arms. No government has the legitimate authority
to forbid a person from exercising her human right to defend herself against a violent attack, or to
forbid her from taking the steps and acquiring the tools necessary to exercise that right.
E. With the Heller Opinion, the Second Amendment’s Individual Right to Keep and
Bear Arms Became a Fundamental Change of Circumstances for the Emergence of
a New Peremptory Norm of General International Law (jus cogens) Achieving
Human Rights Status as Obligatio Erga Omnes upon the Member States of the
United Nations
Citing the VIENNA CONVENTION ON THE LAW OF TREATIES 1969 343 and the VIENNA CONVENTION ON THE
LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL
ORGANIZATIONS 1986 it is my claim that the U.S. Supreme Court’s Heller opinion on the Second Amendment as
being an individual right presents a “fundamental change of circumstances” (Article 62 of both Vienna
Conventions) for the “emergence of a new peremptory norm of general international law” (“jus cogens”),
(Article 64 of both Vienna Conventions) for the “right to life” provision in international human rights treaties
through the treaty clause in Article II, Section 2 of the CONSTITUTION OF THE UNITED STATES. I now present this
argument to the Federal Court under the Treaty Clause as a FEDERAL QUESTION under 28 U.S.C. § 1331.344
The Heller opinion also impacts the “right to life provisions in Article 4 of THE AMERICAN CONVENTION
345
ON HUMAN RIGHTS; in Article 3 of the United Nations UNIVERSAL DECLARATION ON HUMAN RIGHTS; in Article
6, Clause 1 of the United Nations COVENANT ON CIVIL AND POLITICAL RIGHTS.346
The Heller opinion has two quotable points:
Page 9:
“Keep arms” was simply a common way of referring to possessing arms, for militiamen and
everyone else.” [Footnote 7: . . . J. Ayliffe, A NEW PANDECT OF ROMAN CIVIL LAW 195 (1734)

343
The Vienna Convention on the Law of Treaties, done at Vienna May 23, 1969 and signed by the United States on April
24, 1970 (Treaty Doc.: Ex. L, 92nd Cong., 1st Sess.); submitted to Senate November 22, 1971. U.S. Department of State:
TREATIES PENDING IN THE SENATE (Updated as of July 7, 2008). Not yet ratified. See http://www.state.gov/s/l/treaty/pending/
344
Cohens v. Virginia, 19 U.S. 264, at 404 (6 Wheaton 264) (1821) (It is most true that this Court will not take jurisdiction if
it should not; but it is equally true that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid
a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever
doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more
right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would
be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can
do is to exercise our best judgment and conscientiously to perform our duty. In doing this on the present occasion, we find
this tribunal invested with appellate jurisdiction in all cases arising under the Constitution and laws of the United States. We
find no exception to this grant, and we cannot insert one.). [Emphasis is mine.]
345
THE AMERICAN CONVENTION ON HUMAN RIGHTS, done at San Jose November 22, 1969 and signed by the United States on
June 1, 1977 (Treaty Doc.: Ex. F, 95th Cong., 2nd Sess.); submitted to Senate February 23, 1978. Not yet ratified. U.S.
Department of State: TREATIES PENDING IN THE SENATE (Updated as of July 7, 2008).
See http://www.state.gov/s/l/treaty/pending/
346
THE COVENANT ON CIVIL AND POLITICAL RIGHTS was ratified by the United States in 1992.

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(“Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting,
Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or
such Arms as accrued to him by way of Inheritance”); . . .]347
Page 46:
“As the Constitution of the United States, and the constitutions of several of the states, in terms
more or less comprehensive, declare the right of the people to keep and bear arms, it has been a
subject of grave discussion, in some of the state courts, whether a statute prohibiting persons,
when not on a journey, or as travellers, from wearing or carrying concealed weapons, be
constitutional. There has been a great difference of opinion on the question.” 2 J. Kent,
Commentaries on American Law *340, n. 2 (O. Holmes ed., 12th ed. 1873).348
In the Page 9 quotation I construe the term “everyone else” to include merchant seamen in interstate and
maritime travel as supported by the terms “Navigation” and “Traveling” in Scalia’s Footnote 7.
Scalia’s Page 46 quotation implies that “open carry in interstate and maritime travel” is an “absolute or
near-absolute right” not subject to any regulation at all. This inference needs clarification by judicial challenge.
F. Natural Rights are Human Rights
Black’s Law Dictionary defines natural right as “[a] right that is conceived as part of natural law and that
is therefore thought to exist independently of rights created by government or society, such as the right to life,
liberty, and property.” See Natural Law.
Black’s Law Dictionary defines human rights as [t]he freedoms, immunities, and benefits that, according
to modern values (esp. at an international level), all human beings should be able to claim as a matter of right in
the society to which they live. See Universal Declaration of Human Rights.
Black’s Law Dictionary defines “right to travel” as [a] person’s constitutional right – guaranteed by the
Privileges and Immunities Clause – to travel freely between states.
My approach to the Second Amendment, (the flip-side to Heller), applies to the right to “openly” keep
and bear arms in interstate and maritime travel for personal safety and security and in defense of self and others
and for property as not only a constitutional right but also as a human right under the “right to life” provision of
human rights treaties. My approach is proper because Scalia’s opinion uses the term “natural right” to descibe the
Second Amendment on the following pages in Justice Scalia’s Heller opinion:
Page 6 in Footnote 6:
“. . . See Heyman, Natural Rights and the Second Amendment, in THE SECOND AMENDMENT IN
LAW AND HISTORY 179, 193–195 (C. Bogus ed. 2000). . .”); on page 10 in Footnote 7 (“. . . W.
Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833) (with
reference to colonists’ English rights: “The right of every individual to keep arms for his defence,
suitable to his condition and degree; which was the public allowance, under due restrictions of the
natural right of resistance and self-preservation; . . .”)
Page 12:
“Justice James Wilson interpreted the Pennsylvania Constitution’s arms-bearing right, for
example, as a recognition of the natural right of defense “of one’s person or house”—what he
called the law of “self preservation.” 2 Collected Works of James Wilson 1142, and n. x (K. Hall
& M. Hall eds. 2007) (citing Pa. Const., Art. IX, §21 (1790));”

347
Emphasis is mine.
348
Emphasis is mine.

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Page 20:
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 provision 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;
Page 21,
“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: Mar. 17, New York Journal, Supp. 1, Apr.
13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936);”
Page 39.
“In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second
Amendment as protecting the “natural right of self-defence” and therefore struck down a ban
on carrying pistols openly.”

I construe the term “natural right” to be the same by definition as the term “human right.” This
equivalent usage is proper and acceptable. The Heller opinion therefore becomes a “fundamental change of
circumstances” introducing the “emergence of a new peremptory norm of general international law (“jus
cogens”) (See Articles 62 and 64 of the VIENNA CONVENTION ON THE LAW OF TREATIES 1969 and the
VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN
INTERNATIONAL ORGANIZATIONS, 1986)

G. U.S. Department of State, Bureau of International Information Programs on


Access to the Courts and Equal Justice for All
Citing Robert J. Grey, Jr., ACCESS TO THE COURTS: EQUAL JUSTICE FOR ALL,349 in Issues of Democracy:
Access to the Courts - Equal Justice for All, U.S. Department of State, Bureau of International Information
Programs, August 2004, 6-11:
A fundamental value in the American system of justice is that the stability of our society depends
upon the ability of the people to readily obtain access to the courts, because the court system is
the mechanism recognized and accepted by all to peacefully resolve disputes. Denying access to
the courts forces dispute resolution into other arenas and results in vigilantism and violence.
EQUAL JUSTICE IN PRACTICE
When discussing the idea of access to the courts, mere access in the theoretical or legal sense is
not enough; rather, it is the results that flow from the decisions made by the courts that give it
meaning. For example, the value of “access” is evident when the courts decide that no one,

349
Available Online at http://usinfo.state.gov/journals/itdhr/0804/ijde/ijde0804.pdf

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especially those in positions of power, is above the law, or when access requires the right to
counsel in cases where one’s liberty is in jeopardy.
G. Heller Impacts Maritime and International Human Rights Treaties
(1). Articles 39-51 of the United Nations Charter
United Nations Charter
Article 2, Clause 7:
Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall require the
Members to submit such matters to settlement under the present Charter; but this principle shall
not prejudice the application of enforcement measures under Chapter VII – ACTION WITH
RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION.
Chapter VII
ACTION WITH RESPECT TO THREATS TO THE PEACE,
BREACHES OF THE PEACE, AND ACTS OF AGGRESSION
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace,
or act of aggression and shall make recommendations, or decide what measures shall be taken in
accordance with Articles 41 and 42, to maintain or restore international peace and security.
Article 40
In order to prevent an aggravation of the situation, the Security Council may, before making the
recommendations or deciding upon the measures provided for in Article 39, call upon the parties
concerned to comply with such provisional measures as it deems necessary or desirable. Such
provisional measures shall be without prejudice to the rights, claims, or position of the parties
concerned. The Security Council shall duly take account of failure to comply with such
provisional measures.
Article 41
The Security Council may decide what measures not involving the use of armed force are to be
employed to give effect to its decisions, and it may call upon the Members of the United Nations
to apply such measures. These may include complete or partial interruption of economic relations
and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the
severance of diplomatic relations.
Article 42
Should the Security Council consider that measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as
may be necessary to maintain or restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of Members of the
United Nations.
Article 43
All Members of the United Nations, in order to contribute to the maintenance of international
peace and security, undertake to make available to the Security Council, on its call and in
accordance with a special agreement or agreements, armed forces, assistance, and facilities,
including rights of passage, necessary for the purpose of maintaining international peace and
security.

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Such agreement or agreements shall govern the numbers and types of forces, their degree of
readiness and general location, and the nature of the facilities and assistance to be provided.
The agreement or agreements shall be negotiated as soon as possible on the initiative of the
Security Council. They shall be concluded between the Security Council and Members or
between the Security Council and groups of Members and shall be subject to ratification by the
signatory states in accordance with their respective constitutional processes.
Article 44
When the Security Council has decided to use force it shall, before calling upon a Member not
represented on it to provide armed forces in fulfilment of the obligations assumed under Article
43, invite that Member, if the Member so desires, to participate in the decisions of the Security
Council concerning the employment of contingents of that Member’s armed forces.
Article 45
In order to enable the United Nations to take urgent military measures, Members shall hold
immediately available national air-force contingents for combined international enforcement
action. The strength and degree of readiness of these contingents and plans for their combined
action shall be determined within the limits laid down in the special agreement or agreements
referred to in Article 43, by the Security Council with the assistance of the Military Staff
Committee.
Article 46
Plans for the application of armed force shall be made by the Security Council with the assistance
of the Military Staff Committee.
Article 47
There shall be established a Military Staff Committee to advise and assist the Security Council on
all questions relating to the Security Council’s military requirements for the maintenance of
international peace and security, the employment and command of forces placed at its disposal,
the regulation of armaments, and possible disarmament.
The Military Staff Committee shall consist of the Chiefs of Staff of the permanent members of
the Security Council or their representatives. Any Member of the United Nations not permanently
represented on the Committee shall be invited by the Committee to be associated with it when the
efficient discharge of the Committee’s responsibilities requires the participation of that Member
in its work.
The Military Staff Committee shall be responsible under the Security Council for the strategic
direction of any armed forces placed at the disposal of the Security Council. Questions relating to
the command of such forces shall be worked out subsequently.
The Military Staff Committee, with the authorization of the Security Council and after
consultation with appropriate regional agencies, may establish regional sub-committees.
Article 48
The action required to carry out the decisions of the Security Council for the maintenance of
international peace and security shall be taken by all the Members of the United Nations or by
some of them, as the Security Council may determine.
Such decisions shall be carried out by the Members of the United Nations directly and through
their action in the appropriate international agencies of which they are members.
Article 49

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The Members of the United Nations shall join in affording mutual assistance in carrying out the
measures decided upon by the Security Council.
Article 50
If preventive or enforcement measures against any state are taken by the Security Council, any
other state, whether a Member of the United Nations or not, which finds itself confronted with
special economic problems arising from the carrying out of those measures shall have the right to
consult the Security Council with regard to a solution of those problems.
Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective self-
defence if an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and security. Measures
taken by Members in the exercise of this right of self-defence shall be immediately reported to the
Security Council and shall not in any way affect the authority and responsibility of the Security
Council under the present Charter to take at any time such action as it deems necessary in order to
maintain or restore international peace and security.

Article 51 of United Nations Charter (citing again from THE HUMAN RIGHT OF SELF-DEFENSE) affirms
“the inherent right” of self-defense.350 Frey accurately states that Article 51 is directly concerned with the defense
of states, and not of individuals. 351 We agree.
But what Frey elides is that the right of national self-defense is the child of the right of personal
self-defense—as we detailed supra.352 Notably, the U.N. Charter does not purport to grant states
a right of self-defense. The charter simply recognizes an “inherent” right. In the French text of the
U.N. charter, it is a “droit naturel” (natural right or natural law). As Yoram Dinstein observes,
“The choice of words has overtones of jus naturale, which appears to be the fount of the right to
self-defense.”353 (“Jus naturale” is Latin for “natural law”; as discussed above, jus naturale
included a strong right of personal defense. 354)
Given the U.N. Charter’s choice of language which explicitly invoked natural right, it was not
surprising that the International Court of Justice wrote: “The Court therefore finds that Article 51
of the Charter is only meaningful on the basis that there is a ‘natural’ or ‘inherent’ right of self-
defense….”355
Elucidating Article 51, Dinstein writes: “The legal notion of self-defence has its roots in inter-
personal relations, and is sanctified in domestic legal systems since time immemorial. From the

350
See also General Treaty for the Renunciation of War (“Kellogg-Briand Pact”) 94 L.N.R.S. 57 (1928); 22 AM. J. INT’L L.
109-13 (formal notes exchanged between the signatories, reserving the right to selfdefense).
351
Frey Report at 13, para. 39 (“ Article 51 was not intended to apply to situations of self-defence for individual persons.”)
352
See David B. Kopel, Paul Gallant, and Joanne D. Eisen, titled, THE HUMAN RIGHT OF SELF-DEFENSE.
353
DINSTEIN, at 179. Dinstein goes on to reject the overtone, because he rejects the whole concept of natural law, for
reasons detailed supra at text accompanying notes .
354
See supra text accompanying notes – (natural law and the classical founding scholars of international law), and – (Roman
law jus naturale).
355
Military and Paramilitary Activities (Nicaragua v. United States), 1986 I.C.J. Rep. 14, 94, para. 176.

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dawn of inter-State relations, writers sought to apply this concept to inter-State relations,
particularly in connection with the just war doctrine.”356
If one explicitly recognizes the existence of the child, then one can scarcely deny the implication
that a parent exists. “I admit that there was a person named Martin Luther King, Jr., but I deny the
existence of Martin Luther King, Sr.” The previous sentence is illogical—and so is Frey’s claim
that the explicit recognition of the natural, inherent right of national self-defense in Article 51 can
be reconciled with the denial of the natural, inherent right of personal self-defense.

(2). Convention on the Prevention and Punishment of the Crime of Genocide,


December 9, 1948
Article 2. In the present Convention,357 genocide means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article 3. The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.

(3). United Nations’ Declaration On Human Rights Defenders


Article 6. Obstruction of Justice.
Article 9. The Right to Effective Remedy of Human Rights Violations.
Article 13. Obstruction of Justice.

(4). The Inter-American Convention Against Corruption

356
DINSTEIN, at 176; see also M. A Weightman, Self-Defense in International Law , 37 VIR. L. R EV. 1095, 1099-1102
(1951).
357
CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE, December 9, 1948, ratified by the United
States on November 25, 1988.

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Article III.1. Abuse of Authority, (Equivalent to 18 U.S.C. § 4. Misprision of Felony).


Article III.1 1. Obstruction of Justice.
Article IV. Acts of Corruption (18 U.S.C. § 872 Extortion Under Color of Law).

(5). United Nations Convention Against Corruption


Article 11. Measures Relating to the Judiciary and Prosecution Services.
Article 19. Abuse of Functions.
Article 24. Concealment.
Article 25. Obstruction of Justice.
Article 27. Participation and Attempt.
Article 28. Knowledge, Intent and Purpose as Elements of an Offence.
Article 30. Prosecution, Adjudication and Sanctions.
Article 32. Protection of . . . Victims.
Article 33. Protection of Reporting Persons.
Article 34. Consequences of Acts of Corruption [“Citizen’s Arrest Warrant”].
Article 39. Cooperation Between National Authorities and the Private Sector.

(6). International Covenant On Civil And Political Rights


Article 14.1. Denial of Equal Justice Under the Law,
Article 15.1. Threatened False Arrest (As applied against U.S. Marshals Service).
Article 16. Denial of Equal Justice Under the Law.

(7). United Nations’ Universal Declaration on Human Rights


Article 6.
Everyone has the right to recognition everywhere as a person before the law.
Article 7.
All are equal before the law and are entitled without any discrimination to equal protection of the
law. All are entitled to equal protection against any discrimination in violation of this Declaration
and against any incitement to such discrimination.
Article 8.
Everyone has the right to an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the constitution or by law.
Article 9.
No one shall be subjected to arbitrary arrest, detention or exile.
Article 10.
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial
tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 12.
No one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks.

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Article 13.
(1) Everyone has the right to freedom of movement and residence within the borders of each
state.
Article 29.
(1) Everyone has duties to the community in which alone the free and full development of his
personality is possible.
(2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as
are determined by law solely for the purpose of securing due recognition and respect for the rights
and freedoms of others and of meeting the just requirements of morality, public order and the
general welfare in a democratic society.
(3) These rights and freedoms may in no case be exercised contrary to the purposes and
principles of the United Nations.

(8). American Declaration of the Rights and Duties of Man


Article II. Denial of Equal Justice Under the Law.
Article XVIII. Denial of a Fair Civil Trial (Seventh Amendment).
Article XXIV. Denial of Right to Petition for Redress (First Amndment). 358
Article XXVI. Denial of Due Process Rights (Fifth & Fourteenth Amendments).
H. Citing from David Sloss, When Do Treaties Create Individually Enforceable
Rights?
WHEN DO TREATIES CREATE INDIVIDUALLY ENFORCEABLE RIGHTS?
The Supreme Court Ducks the Issue in Hamdan and Sanchez-Llamas
David Sloss
45 Columbia Journal of Transnational Law 20 (2006)359
ABSTRACT
In both Hamdan v. Rumsfeld and Sanchez-Llamas v. Oregon, government briefs asserted that
there is a “long-established presumption” that treaties do not create judicially-enforceable
individual rights. In his dissent in Sanchez-Llamas, Justice Breyer challenged this claim. The
debate about whether the Supreme Court should adopt such a presumption is part of a broader
conflict between the “nationalist” and “transnationalist” models of treaty enforcement. The
transnationalist model applies a presumption in favor of domestic judicial remedies for violations
of treaty-based individual rights. In contrast, the nationalist model applies a presumption against
individual remedies for treaty violations. This article analyzes the historical foundations of both
models. It demonstrates that doctrines involving the domestic judicial enforcement of treaties
have changed dramatically in the past thirty years. Between 1789 and 1975, there was not a
single judicial decision endorsing the nationalist presumption against private enforcement of
treaty rights. In contrast, there were dozens of Supreme Court decisions that applied the
transnationalist pre sumption in favor of domestic judicial remedies. Although the nationalist
presumption against individual enforcement of treaties has gained widespread accep-tance in the

358
See pages 13-18 of this Warning & Notice of Intent.
359
Available Online at http://law.slu.edu/sloss/Publications/Sloss%20Columbia%20Article.pdf

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lower courts in the past thirty years, the Supreme Court has never endorsed that presumption.
The Court’s decisions in Hamdan and Sanchez-Llamas declined to endorse either the nationalist
or transnationalist presumption, but the Court’s ultimate resolution of the conflict between the
nationalist and transnationalist models will have significant implications for U.S. foreign
relations, separation of powers, and the rule of law.
VI. CONCLUSION
We can learn much about the legal thought of past generations by focusing on what the courts did
not say. The propositions that did not need to be stated because courts took them for granted may
be as revealing as what the courts did say. During the first fifty years of U.S. constitutional
history, the Supreme Court consistently decided treaty cases in accordance with the
transnationalist model: they assumed that treaties have the status of law in our domestic
constitutional system, that some treaty provisions create primary rights for individuals, and that
individuals whose treaty rights are violated are entitled to remedies in domestic courts. The Court
occasionally stated these assumptions explicitly. However, the best evidence that the Justices
shared these assumptions is the Court’s consistent record of awarding remedies to individuals
whose treaty rights were violated, even in cases where the political branches had not authorized
the courts to provide remedies for treaty violations. Thus, the nationalist claim that there is a
long-standing presumption that treaties do not create individually enforceable rights is utterly
false. The truth is that the transnationalist model explains the actual record of Supreme Court
decisions in treaty cases for most of U.S. history.
This does not mean that the nationalist presumption against private enforcement of treaties is
indefensible. Rather, it means that the nationalists cannot win the debate by citing precedents that
do not actually support their position. The strongest defense of the nationalist model is an
argument that relies on changed circumstances. The world is a very different place today than it
was in 1789, or 1839, or even 1939. The United States is a superpower; we confront enemies who
have demonstrated their willingness to use unconventional means to attack us. There is a
considerable risk that some of those enemies may acquire weapons of mass destruction. In these
circum-stances, the President arguably needs a greater degree of flexibility in framing and
implementing national security policy than he did 100 or 200 years ago. During the twentieth
century, the Court adopted several doctrinal innovations that supported the increasing
concentration of foreign affairs power in the executive branch.360 Nationalists may contend that
adoption of the nationalist presumption against private enforcement of treaties would be a
sensible next step in the evolution of foreign affairs doctrine.
If the Court takes this step, though, it should acknowledge honestly that it is embracing a novel
doctrinal innovation. Moreover, before the Court endorses this doctrinal innovation, it should
consider the potential negative consequences. Adoption of the nationalist presumption against
private enforcement of treaties would yield three different types of harmful consequences. These
relate to federal supremacy, separation of powers, and U.S. foreign relations.
Under the Articles of Confederation, the federal government was powerless to halt treaty
violations by state government officers.361 The Framers solved this problem by including treaties
in the text of the Supremacy Clause: they gave treaties the status of supreme federal law and

360
See G. Edward White, THE TRANSFORMATION OF THE CONSTITUTIONAL REGIME OF FOREIGN RELATIONS, 85 VA. L. REV. 1
(1999).
361
See Carlos Manuel Vazquez, Treaty-Based Rights and Remedies of Individuals, 92 COLUM. L. REV. 1082, at 1101–04.
(1992)

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made treaties directly binding on state courts.362 In recent years, state and local governments
have routinely violated U.S. obligations under Article 36 of the VCCR,363 just as state
governments violated U.S. treaty obligations before adoption of the Constitution. The treaty
violations persist because state courts and lower federal courts have invoked the nationalist
presumption against private enforcement as a justification for their refusal to en-force the
treaty.364 In Sanchez-Llamas v. Oregon,365 the Supreme Court had an opportunity to halt the
ongoing treaty violations, but it failed to deliver. The Court in Sanchez-Llamas did not endorse
the nationalist presumption against private enforcement of treaties.366 However, the Court
applied a nationalist approach to treaty interpretation,367 adopting a restrictive view of the scope
of legal protection accorded to foreign nationals under the treaty. By restricting the range of
judicial remedies available to individual victims of Article 36 violations, the Court effectively
signaled to state and local officers that they can continue to violate the treaty without fearing
judicial sanctions.368 Thus, application of the nationalist model perpetuates the very problem of
treaty violations by state officers that the Fram-ers thought they solved by including treaties in the
text of the Supremacy Clause.
The second harmful consequence associated with the nationalist model relates to separation of
powers. In Hamdan v. Rumsfeld, the Supreme Court ruled that Common Article 3 of the Geneva
Conventions is a part of U.S. federal law, that Common Article 3 grants rights to individual
Guantanamo detainees, and that it would violate the rights of those detainees to subject them to

362
See U.S. CONST. art. VI, cl. 2 (stipulating that treaties are “the supreme Law of the Land” and that “Judges in every State
shall be bound thereby”). See also Carlos Manuel Vazquez, TREATY-BASED RIGHTS AND REMEDIES OF INDIVIDUALS , 92
COLUM. L. REV. 1082, at 1104–10; Martin S. Flaherty, HISTORY RIGHT?: HISTORICAL SCHOLARSHIP, ORIGINAL
UNDERSTANDING, AND TREATIES AS “SUPREME LAW OF THE LAND,” 99 Colum. L. Rev. 2095, at 2120–26 (1999).
363
See David Sloss, WHEN DO TREATIES CREATE INDIVIDUALLY ENFORCEABLE RIGHTS? 45 Columbia Journal of Transnational
Law 20 (2006), notes 65–69 and accompanying text.
364
See, e.g., State v. Sanchez-Llamas, 108 P.3d 573 (Or. 2005). See also David Sloss, WHEN DO TREATIES CREATE
INDIVIDUALLY ENFORCEABLE RIGHTS? 45 Columbia Journal of Transnational Law 20 (2006), notes 69, 70, 74–77 and
accompanying text.
365
126 S. Ct. 2669 (2006).
366
See David Sloss, WHEN DO TREATIES CREATE INDIVIDUALLY ENFORCEABLE RIGHTS? 45 Columbia Journal of Transnational
Law 20 (2006), notes 75–77 and accompanying text.
367
Recall that the transnationalist model applies the twin canons of good faith and liberal interpretation, whereas the
nationalist model applies the canon of deference to the executive branch. See supra notes 32–38 and accompanying text. The
Court in Sanchez-Llamas explicitly invoked the nationalist canon of deference to the executive branch in support of its
decision. See Sanchez-Llamas, 126 S. Ct. at 2685. In contrast, the Court’s opinion makes no reference to the canons of good
faith and liberal interpretation. Moreover, the Court’s decision is contrary to both those canons. The canon of good faith
counsels courts to interpret a treaty in accordance with the agreed international understanding of its terms, but the Sanchez-
Llamas majority explicitly rejected the agreed international understanding of Article 36 of the VCCR, as reflected in
decisions by the International Court of Justice. See id. at 2683–86. The canon of liberal interpretation counsels courts to
interpret a treaty to provide the broadest possible protection for the rights of foreign nationals, but the Court interpreted
Article 36 in a manner that left both petitioners, and countless other foreign nationals, without any meaningful remedy for the
acknowledged violation of their treaty-based individual rights.
368
The Court specifically rejected two proposed remedies for Article 36 violations: application of the exclusionary rule and
preemption of state procedural default rules to enable individuals to raise Article 36 claims in post-conviction proceedings in
state court. See Sanchez-Llamas, 126 S. Ct. at 2678–87. The Court’s opinion leaves open the possibility that individuals can
obtain judicial remedies for Article 36 violations by raising ineffective-assistance-of-counsel claims. See supra notes 126–28
and accompanying text. However, since this remedial mechanism does not affect the state officers who violated the treaty in
the first place, it provides no incentive for them to comply with the treaty.

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trial by military com-mission.369 If the Court had endorsed the nationalist presumption against
private enforcement of treaties, it might well have ruled that the Geneva Conventions are not
judicially enforceable. 370 In that case, the Court would presumably have denied relief to Hamdan
on the grounds that individual claimants cannot enforce the Geneva Conventions in U.S. courts.
Thus, even though the Supreme Court held that the proposed military commission proceedings
violate federal law, and that they violate Hamdan’s federal rights, a court apply-ing the nationalist
presumption would disclaim the power to halt those ongoing violations. That type of rationale is
squarely at odds with core rule-of-law principles. When federal courts turn a blind eye to
executive action that violates federal law, they distort the constitutional balance of power by
ceding too much power to the President and diminishing the relative powers of the legislative and
judicial branches.371 Thus, courts that apply the nationalist model abdicate their constitutional
responsibility to restrain illegal executive action, thereby distorting the balance of power among
the branches.
Finally, judicial application of the nationalist model harms the United States’ international
reputation. U.S. violations of the VCCR and the Geneva Conventions contribute to a growing
perception that the United States is hostile to international law. More specifically, other countries
accuse the United States of trying to develop an inter-national system in which other states are
constrained by international law, but the United States is free to pursue its national interests, un-
fettered by the requirements of international law. Proponents of the nationalist model may object
that it is inappropriate for courts to concern themselves with international perceptions of U.S.
behavior. That objection, though, merely serves to highlight the intellectual gulf between the
Marshall Court and modern nationalists. According to a leading historical account, the Marshall
Court’s decisions manifested “deep concern that the United States be known for its adherence to
international law and its respect for treaty obligations. . . . In construing treaties of the Untied
States, the Court exercised great liberality in broadening the rights of the signatory powers and
those claiming under them.”372 Modern courts would do well to follow Chief Justice Marshall’s
transnationalist approach.

I. United Nations at War Against the Second Amendment


United Nations’ War of Aggression Against the Individual’s Human Right of Self-Defense is a Breach
of Treaty (The U.N. Charter, Article 2, Clause 7) Under the VIENNA CONVENTION ON THE LAW OF TREATIES OF
1969 and the VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS
OR BETWEEN INTERNATIONAL ORGANIZATIONS OF 1986.

369
See 126 S. Ct. 2749, 2793–97 (2006).
370
Even if the Court adopted the nationalist presumption against private enforcement, it could reasonably have held that the
federal habeas statute grants individuals a private right of action that empowers them to enforce the Geneva Conventions by
filing a habeas corpus petition. However, courts that have endorsed the nationalist presumption have generally held that the
Geneva Conventions are not judicially enforceable in a habeas corpus action. See, e.g., Hamdan v. Rumsfeld, 415 F.3d 33,
38–40 (D.C. Cir. 2005).
371
In the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600, Congress has authorized the President to
utilize military commissions similar to the ones that the President initially tried to establish without congressional
authorization. The fact of congressional authorization clearly mitigates concerns about unchecked executive power in this
context. Nevertheless, the nationalist model is problematic because it encourages judges to turn a blind eye to unlawful
executive action.
372
George Lee Haskins & Herbert A. Johnson, FOUNDATIONS OF POWER: JOHN MARSHALL, 1801–15, at 557 (1981) (History
of the Supreme Court of the United States Vol. 2).

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The human right of armed self defense is not explicitly covered in either of the Vienna Conventions
above, hereinafter referred to as Vienna ‘69 and Vienna ‘86. Both Vienna Conventions affirm that the rules of
customary international law will continue to govern questions not regulated by the provisions of the those two
Vienna Conventions, The United Nations’ PROGRAMME OF ACTION TO PREVENT, COMBAT AND ERADICATE THE
ILLICIT TRADE IN SMALL ARMS AND LIGHT WEAPONS has the potential to become a customary international norm
that may very will forcibly obligate the United States into repealing the Second Amendment.

J. The Human Rights Case of Jessica Gonzales: You Have No Individual Right to
Police Protection
What better example to expose a federal judicial system at war with the United States Constitution, the
Bill of Rights, and against the with the people themselves than the tragic and horrifying case of Jessica Gonzales
(now Lenahan).

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K. The Human Rights Record of the United States 2002-2007


Because the United States fails to include itself in its annual COUNTRY REPORTS ON HUMAN RIGHTS
PRACTICES, China issues their own annual HUMAN RIGHTS RECORD OF THE UNITED STATES. The Chinese reports
from 2002 to 2007 focus on six basic categories of human rights violations by the United States:
THE HUMAN RIGHTS RECORD OF THE UNITED STATES (2002-2007)
Information Office of the State Council of China
CATEGORIES HUMAN RIGHTS
I. Ineffective Protection of Life and Security of Person (2002)
I. On Life, Freedom and Personal Safety (2003)
I. On Life, Liberty and Security of Person (2004)
1
I. On Life and Security of Person (2005)
I. On Life, Property and Security of Person (2006)
I. On Life, Property and Personal Security (2007)
II. Serious Human Rights Violation by Law Enforcement Officials (2002)
II. On Political Rights and Freedom (2003, 2004, 2005)
II. On Infringements upon Human Rights by Law Enforcement and Judicial Organs
2 (2005)
II. On Human Rights Violations by Law Enforcement and Judicial Departments (2006,
2007)
III. On Civil and Political Rights (2006, 2007)
III. Money-driven Democracy (2002)
IV. Poverty, Hunger and Homelessness (2002)
3 III. On Living Conditions of US Laborers (2003)
III. On Economic, Social and Cultural Rights (2004)
IV. On Economic, Social and Cultural Rights (2005, 2006, 2007)
VI. Deep-rooted Racial Discrimination (2002)
4 IV. On Racial Discrimination (2003, 2004)
V. On Racial Discrimination (2005, 2006, 2007)
V. Women and Children Are in Worrisome Situation (2002)
V. On Conditions of Women, Children and Elderly People (2003)
5
V. On The Rights of Women and Children (2004, 2005, 2007)
VI. On the Rights of Women, Children, the Elderly and the Disabled (2006)
VII. Blunt Violations of Human Rights in Other Countries (2002)
VIII. Double Standards in International Field of Human Rights (2002)
VI. On Infringement upon Human Rights of Other Nations (2003)
6
VI. On the Infringement of Human Rights of Foreign Nationals (2004)
VII. On the United States’ Violation of Human Rights in Other Countries (2005, 2006)
VII. On the Violation of Human Rights in Other Countries (2007)

2007 http://mwcnews.net/index.php?option=com_content&task=view&id=21087
2006 http://news.xinhuanet.com/english/2007-03/08/content_5817027.htm
2005 http://english.people.com.cn/200603/09/eng20060309_249259.html
2004 http://english.peopledaily.com.cn/200503/03/eng20050303_175406.html
2003 http://english.people.com.cn/200403/01/eng20040301_136190.shtml
2002 Part 1: http://www.china-embassy.org/eng/zt/zfbps/t36550.htm
Part 2: http://www.china-embassy.org/eng/zt/zfbps/t36549.htm
Part 3: http://www.china-embassy.org/eng/zt/zfbps/t36548.htm

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L. Other Constitutions: Human Rights are Created by God. Not by Government.


" Footnote 263 in David B. Kopel, Paul Gallant, and Joanne D. Eisen, titled, THE HUMAN RIGHT OF SELF-
DEFENSE notes that human rights are included in the constitutions of 16 nations:
The constitutions of at least sixteen nations explicitly affirm that human rights are inherent (or
“natural” or created by God); they affirm human rights are recognized by governments, but not
created by governments.373
Afghanistan Const., art. 23, “Life is a gift of God and a natural right of human
beings.”
Andorra Const., art. 4 “The Constitution recognizes the intangibility of the
human dignity and guarantees the person’s inviolable
and imprescriptible rights….”
Azerbaijan Const., art. 24 “Everyone…possess inviolable and inalienable rights
and liberties.”
Belive Const., pmbl. “inalienable rights with which all members of the
human family are endowed by their Creator….”
Egypt Const., art. 41 “Individual freedom is a natural right not subject to
violation….”
Ethiopia Const., art. 10 “Human rights and freedoms, emanating from the
nature of mankind, are inviolable and inalienable.”
Liberia Const., art. 11, “All persons…have certain natural, inherent and
inalienable rights….”
Lithuania Const., art. 18 “The rights and freedoms of individuals shall be
inborn.”
Luxembourg Const., art. 11 “The State guarantees the natural rights of the
individual….”
Paraguay Const., art. 4 “The right to the life is inherent to the human person.”
Saint Lucia Const., Part II, sched. III, b “ all persons have been endowed equally by God with
inalienable rights….”
Saudi Arabia Const., art. 26 “The state protects human rights in accordance with
the Islamic Shari’ah.”
Spain Const., art. 10 “inviolable rights which are inherent….”
Syria const., art. 25 “Freedom is a sacred right.”
Trinidad & Tobago Const., pmbl. “the equal and inalienable rights with which all
members of the human family are endowed by their
Creator….”
Turkey Const., art. 12 “Everyone possesses inherent fundamental rights….”

373
SELF-DEFENSE. The following list is from footnote 263 of SELF-DEFENSE.

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M. Other Constitutions: Personal Self-Defense


The International Court of Justice is instructed to use as a source of law “the general principles” from the
laws of “civilized nations.”374 Without arguing about what nations currently count as “uncivilized”, we note that
personal self-defense is part of the law of every legal system in the world today.375 In addition, many nations have
constitutionalized self-defense, in a variety of forms.
Before surveying the constitutions, we must acknowledge that around the world, many constitutional
rights are honored only in the breach. For example, the constitution of Zimbabwe guarantees the right of free
assembly376 but all forms of dissent are ruthlessly suppressed. Recently, opposition leader Morgan Tsvangirai was
badly beaten by the government.377 In Kenya, the constitution is clear: “No person shall be deprived of his life
save in execution of the sentence of a court….”378 However, shoot-to-kill orders were recently issued to police
who executed the orders with a series of extrajudicial killings. 379 Even so, the expression of a standard in a
national constitution is a signal of the importance of that standard in the national and international community,
such that even governments which do not obey the standard feel compelled to assert that they do.380
From Antigua to Nigeria to Zimbabwe, there are thirteen nations which use nearly-identical language to
constitutionalize self-defense:
# Antigua & Barbuda, CONST, art. 4:
1. No person shall be deprived of his life intentionally save in execution of the sentence of a court
in respect of a crime of treason or murder of which he has been convicted.
2. A person shall not be regarded as having been deprived of his life in contravention of this
section if he dies as the result of the use, to such extent and such circumstances as are
permitted by law, of such force as is reasonably justifiable
a. for the defence of any person from violence or for the defence of property;
b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
c. for the purpose of suppressing a riot, insurrection or mutiny; or

374
Supra.
375
See Schlomit Wallerstein, Justifying the Right to Self-Defense: A Theory of Forced Consequences , 91 VA. L. REV. 999,
999 (2005) (“the right to self-defense is recognized in all jurisdictions”).
376
ZIMBABWE const. Ch. III, art. 21 (1) (“no person shall be hindered in his freedom of assembly and association… and in
particular to form or belong to political parties…”).
377
See Tsvangirai Held in Intensive Care , BBC News, Mar. 14, 2007. Concerning breach of Zimbabwe’s guarantees
(“Zimbabwean opposition leader Morgan Tsvangirai is being treated in an intensive care unit as doctors examine wounds he
received in police custody…. He and dozens of other activists were arrested at a rally on Sunday.”)
378
KENYA CONST., ch. 5, art. 71(1).
379
See Cyrus Ombati, Govt Burns 8,000 Guns As Minister Orders Police to Kill Thugs , THE EAST AFRICAN
STANDARD (Nairobi), Mar. 16, 2007. (Internal Security minister John Michuki stated: “An illegal weapon in the hands of a
criminal has no other purpose except to kill an innocent person. It is, therefore, justifiable for the law enforcers to take equal
measure against such a person.”).
380
“Hypocrisy is the tribute that vice pays to virtue.” François, Duke of La Rochefoucauld. “If a State acts in a way prima
facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or justifications contained
within the rule itself, then whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude
is to confirm rather than weaken the rule.” Nicaragua v. United States, at 98.

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d. in order lawfully to prevent the commission by that person of a criminal offence, or if he dies
as the result of a lawful act of war.
# the Bahamas, CONST., art. 16.
# Barbados, CONST., art. 12.
# Belize, CONST., art. 4.
# Grenada, CONST., art 2.
# Guyana, CONST., art. 138.
# Jamaica, CONST., art. 14.
# Malta, CONST., § 33.
# Nigeria, CONST., art. 33.
# St. Kitts & Nevis, CONST., art. 4.
# Saint Lucia, CONST., art. 2.
# Saint Vincent and the Grenadines, CONST., art. 2.
# Zimbabwe. CONST., art. 12:
(1) No person shall be deprived of his life intentionally save in execution of the sentence of a
court in respect of a criminal offence of which he has been convicted.
(2) A person shall not be regarded as having been deprived of his life in contravention of
subsection (1) if he dies as the result of the use, to such extent and in such circumstances as
are permitted by law, of such force as is reasonably justifiable in the circumstances of the
case
(a) for the defence of any person from violence or for the defence of property;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) for the purpose of suppressing a riot, insurrection or mutiny or of dispersing an unlawful
gathering; or
(d) in order to prevent the commission by that person of a criminal offence; or if he dies as the
result of a lawful act of war.
(3) It shall be sufficient justification for the purposes of subsection (2) in any case to which that
subsection applies if it is shown that the force used did not exceed that which might lawfully
have been used in the circumstances of that case under the law in force immediately before
the appointed day.
# Slovakia uses a variation of the formula, CONST., art. 15:
(1) Everyone has the right to life. Human life is worthy of protection even prior to birth.
(2) No one must be deprived of life.
(3) Capital punishment is not permitted.
(4) If someone was deprived of life as a result of an action that does not represent a criminal act,
this does not constitute a violation of rights according to this Article.

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N. Other Constitutions: Self-Defense Against Tyranny


As Grotius, Pufendorf, and many other legal and moral philosophers have elaborated, self-
defense against tyranny is just a larger application of self-defense against a lone criminal. Many
nations have constitutionalized the right of self-defense against tyrants. In five countries, the
constitutionalization is framed as a constitutional intention to assist the liberation of other nations
from tyranny:
Algeria Const., art. 27: “Algeria associates itself with all the peoples fighting for their political
and economic liberation, for the right of self determination and against
any racial discrimination.” Art: 33: “Individual or associative defense of
the fundamental human rights and individual and collective liberties is
guaranteed.”
Angola Const., art. 16: “The Republic of Angola shall support and be in solidarity with the
struggles of peoples for national liberation and shall establish relations
of friendship and cooperation with all democratic forces in the world.”
Cuba Const., art. 12 : The Republic of Cuba espouses the principles of anti-imperialism and
internationalism, and
(h) considers wars of aggression and of conquest international crimes;
recognizes the legitimacy of the struggle for national liberation, as well
as of armed resistance to aggression; and considers that its solidarity
with those under attack and with the peoples that struggle for their
liberation and self-determination constitutes its internationalist duty;
Portugal Const., art. 7(3): “Portugal recognizes the right of peoples to revolt against all forms of
oppression, in particular colonialism and imperialism.”
Suriname Const., art 7. 1. The Republic of Suriname recognizes and respects the right of
nations to self determination and national independence on the basis of
equality, sovereignty and mutual benefit….
4. The Republic of Suriname promotes the solidarity and collaboration
with other peoples in the combat against colonialism, neo-colonialism,
racism, genocide and in the combat for national liberation, peace and
social progress.

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O. Other Constitutions: Right and Duty of Citizens to Resist or Revolt Against


Domestic or Foreign Tyranny
In thirteen nations, the constitution affirms a right and duty of citizens to resist or revolt against domestic or
foreign tyranny:
Andorra Const., article 5: “The Universal Declaration of Human Rights is binding in
Andorra.”381
Argentina Const. 382, § 36: (1) This Constitution shall rule even when its observance is
interrupted by acts of force against the institutional order and the
democratic system. These acts shall be irreparably null.
(2) Their authors shall be punished with the penalty foreseen in
Section 29, disqualified in perpetuity from holding public offices and
excluded from the benefits of pardon and commutation of sentences.
(3) Those who, as a consequence of these acts, were to assume the
powers foreseen for the authorities of this Constitution or for those of
the provinces, shall be punished with the same penalties and shall be
civil and criminally liable for their acts. The respective actions shall
not be subject to prescription.
(4) All citizens shall have the right to oppose resistance to those
committing the acts of force stated in this section.
(5) He who, procuring personal enrichment, incurs in serious
fraudulent offense against the Nation shall also attempt against the
democratic system, and shall be disqualified to hold public office for
the term specified by law.
(6) Congress shall enact a law on public ethics which shall rule the
exercise of public office.
Congo Const., article 17: “Any citizen may oppose the execution of an order received when it
touches the rights and liberties contained in the present Constitution.”
Greece Const., art. 120(4) “Observance of the Constitution shall be committed to the patriotism
of the Greeks who shall have the right and the obligation to resist by
any means anybody who tries to subvert it violently.”
Guatemala Const., art. 45: Action against violators and legitimacy of resistance. The action to
judge the violators of the human rights is public and can be exerted by
means of simple denunciation, without caution nor some formality.
The resistance of the town for the protection and defense of the rights
and guarantees briefed in the Constitution is legitimate. 383

381
Original in Spanish. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr
The Universal Declaration affirms the right of violent resistance to tyranny, so the incorporation of the Universal Declaration
into a national constitution thereby incorporates the rightfulness of resisting tyranny. (Kopel, et al)
382
Section (2), (5), and (6) omitted in Kopel, et al, THE HUMAN RIGHT OF SELF DEFENSE. Section (2), (5), and (6), in their
operation is the parallel function of the “Common Defence” clause in the Preamble to the United States Constitution and the
Powers reserved to the People in the Tenth Amendment of the Bill of Rights to the United States Constitution.
383
Original in Spanish. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr

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Honduras Const., art. 3: Nobody must be obedient to an usurping government nor to those
who assume functions or uses public by the force of the average arms
or using procedures that break or do not know what this Constitution
and the laws establish. The acts verified by such authorities are null.
the town must right to resort to the insurrection in defense of the
constitutional order.384
Hungary Const., art. 2(3): “No activity of any person may be directed at the forcible acquisition
or exercise of public power, nor at the exclusive possession of such
power. Everyone has the right and obligation to resist such activities
in such ways as permitted by law.”
Lithuana Const. art. 3: “(1) No one may limit or restrict the sovereignty of the People or
make claims to the sovereign powers of the People. (2) The People
and each citizen shall have the right to oppose anyone who
encroaches on the independence, territorial integrity, or constitutional
order of the State of Lithuania by force.”
Mauritania Const., pmbl.: Trusting in the omnipotence of Allah, the Mauritanian people
proclaims its will to guarantee the integrity of its territory, its
independence, and its national unity and to take upon itself its free
political economic and social development. Believing strongly in its
spiritual values and in the spreading of its civilization “it also
solemnly proclaims its attachment to Islam and to the principles of
democracy as they have been defined by the Universal Declaration of
Human Rights of 10 Dec 1948 and by the African Charter of Human
and Peoples Rights of 28 June 1981 as well as in the other
international conventions which Mauritania has signed.” Judging that
liberty, equality, and the dignity of Man may be assured only in a
society which establishes the primacy of law, taking care to create the
durable conditions for a harmonious social development respectful of
the precepts of Islam, the sole source of law, but responsive as well to
the exigencies of the modern world, the Mauritanian people proclaims
in particular the inalienable guarantee of the following rights and
principles:
- the right to equality;
- the fundamental freedoms and rights of human beings;
- the right of property;
- political freedom and freedom of labor unions;
- economic and social rights; and
- the rights attached to the family, the basic unit of Islamic society.
Conscious of the necessity of strengthening its ties with brother
peoples, the Mauritanian people, a Muslim, African, and Arab people,
proclaims that it will work for the achievement of the unity of the
Greater Maghreb of the Arab Nation and of Africa and for the
consolidation of peace in the world. (incorporating right of resistance

384
Id.

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articulated in the Universal Declaration and the African Charter. See


supra text accompanying notes - , - .).385
Peru Const. art. 46: “Nobody have to be obedient to an usurping government, nor to those
who they assume public functions in violation of the Constitution and
the laws. The civil populace has the right of insurgency in defense of
the constitutional order. The acts are null of those who usurp public
functions.”386
Portugal Const., art. 21: “Everyone has the right to resist any order that infringes his rights,
freedoms, or safeguards and to repel by force any form of aggression
when recourse to public authority is impossible…” See also id., at __
(Portuguese constitution shall be construed “in accordance with the
Universal Declaration of human rights.”; as discussed at note __,
supra, the Universal Declaration recognizes the right of violent self-
defense against tyranny.)
Romania const., art 20 (1) Constitutional provisions concerning the citizens’ rights and
liberties shall be interpreted and enforced in conformity with the
Universal Declaration of Human Rights, with the covenants and other
treaties Romania is a party to. (2) Where inconsistencies exist
between the covenants and treaties on fundamental human rights
Romania is a party to and internal laws, the international regulations
shall take precedence. (incorporating right of resistance articulated in
the Universal Declaration of Human Rights.
Slovakia Const., art. 32: “Citizens have the right to put up resistance to anyone who would
eliminate the democratic order of human rights and basic liberties
listed in this Constitution, if the activity of constitutional bodies and
the effective use of legal means are rendered impossible.”
P. Other Constitutions: Security against home invasion
Finally, a very common item in constitutions which include a Bill of Rights is the right to security against home
invasion. Sometimes—as in the United States’ Fourth Amendment [U.S. CONST., amend. 4.]—the right is stated
in terms that apply only to home invasions by the government. Very frequently, however, the right is stated in
terms which are not limited to government actors.
Afghanistan Const., art. 38.1-2: “Other than the situations and methods indicated in the
law, no one, including the state, is allowed to enter or
inspect a private residence without prior permission of the
resident or holding a court order.”
Andorra Const., art. 14: “Inviolability of the dwelling shall be guaranteed. No one
shall enter a dwelling or any other premises against the
will of the owner or without a warrant, except in case of
flagrant delicto.”
Angola Const., art. 44: “The State shall guarantee the inviolability of the home
and the secrecy of correspondence, with limitations
especially provided for by law.”

385
Italics parts omitted in original. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr
386
Spanish in original. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr

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Antigua & Barbuda., ch. 2(3)(c): “protection for his family life, his personal privacy, the
privacy of his home and other property and from
deprivation of property without fair compensation,…”
Armenia Const., art. 21: “Everyone is entitled to privacy in his or her own
dwelling. It is prohibited to enter a person’s dwelling
against his or her own will except under cases prescribed
by law.”
Azerbaijan Const., art. 33.1-2: “Everyone has the right for sanctity of his/her home.
Except cases specified by law or decision of law court
nobody has the right to enter private home against the will
of its inhabitants.”
Bahamas Const., ch. 3.15(c): “protection for the privacy of his home and other property
and from deprivation of property without compensation…”
Belarus Const., art. 29: “The right of the people to be secure in their houses and
other legitimate effects shall be guaranteed. No person
shall have the right, save in due course of law to enter the
premises or other legal property of a citizen against one’s
will.”
Belgium Const., art. 15 “The domicile is inviolable; no visit to the individual’s
residence can take place except in the cases provided for
by law and in the form prescribed by law.”
Belize Const., art. II.9.1 “Except with his own consent, a person shall not be
subjected to the search of his person or his property or the
entry by others on his premises.”
Benin Const., art. 20: “The domicile shall be inviolable. House visits or searches
may be carried out only according to the forms and
conditions provided by law.”387

Bolivia Const., art. 21: “All house is an asylum inviolable; at night it will not be
possible to be entered her without consent of which it
inhabits it and by day only the entrance to requisition
written and motivated of competent authority will be
crossed, except for the case of crime ‘in fragantí.’ “388
Brazil Const., art. 5: XI - the home is the inviolable refuge of the individual,
and no one may enter therein without the consent of the
dweller, except in the events of flagrante delicto 389 or

387
Original in Spanish. English version found online at:
http://www.chr.up.ac.za/hr_docs/constitutions/docs/BeninC(englishsummary)(rev).doc
388
Original in Spanish. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr
Translation of “in fragantí” not readily available.
389
“being caught in the act” Latin.

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disaster, or to give help, or, during the day, by court


order;390
Bulgaria Const., art. 33.1-2 “The home is inviolable. No one shall enter or stay inside a
home without its occupant’s consent, except in the cases
expressly stipulated by law. Entering a home or staying
inside without the consent of its occupant or without the
judicial authorities’ permission shall be allowed only for
the purposes of preventing an immediately impending
crime or a crime in progress, for the capture of a criminal,
or in extreme necessity.”
Burkina Faso Const., art. 6: “The residence, the domicile, private and family life,
secrecy of correspondence of every person are inviolable.
It can only be affected according to the forms and in the
cases specified by the law.”391
Burundi Const., art. [43]:392 “No one cannot be the subject of interference arbitrary in
its private life, its family, her residence or its
correspondence, nor of attacks to its honor and its
reputation. It can be ordered searchings or house searches
only under the forms and the conditions envisaged by the
law.”393
Cambodia Const., art. 40: “The right to privacy of residence and to the secrecy of
correspondence by mail, telegram, fax, telex and telephone
shall be guaranteed.”
China Const., art 39. “The home of citizens of the People’s Republic of China is
inviolable. Unlawful search of, or intrusion into, a citizen’s
home is prohibited.”
Cuba Const., art. 56: “The home is inviolable. Nobody can enter the home of
another against his will, except in those cases foreseen by
law.”
Domican Republic Const.: art. 8.3 “The inviolability of the home. No home visit can
be verified but in the cases anticipated by the law and with
the formalities that it prescribes.”394
Egypt Const., art. 44 “Homes shall have their sanctity and they may not be
entered or inspected except by a causal judicial warrant as
prescribed by the law.”
El Salavador Const., art. 20: “The home is inviolable and it will only be able to be
entered by consent of the person who inhabits it, by

390
Original in Spanish. English version found online at http://www.v-brazil.com/government/laws/titleII.html
391
Original in Spanish. English version found online at
http://www.chr.up.ac.za/hr_docs/constitutions/docs/Burkina%20FasoC%20(englishsummary)(rev).doc
392
Art. 23 in original. There correct article number corresponding to the text indicates “article 43” not “23.”
393
Original in French. English version online at http://www.idlo.int/texts/leg5567.pdf
394
Original in Spanish. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr

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judicial mandate, flagrant crime or imminent danger of its


perpetration, or by serious risk of the people.”395
Eritrea Const., art. 18(2): “No person shall be subjected to unlawful search,
including his home or other property; there shall be no
unlawful entry of his premises and no unlawful seizure of
his personal possessions; nor shall the privacy of his
correspondence, communication or other property be
violated.
Estonia Const., art. 33: “The home is inviolable. No one may forcibly enter or
search anyone’s dwelling, property or place of work,
except in such cases and in accordance with procedures
determined by law for the protection of public order or
health, or the rights and liberties of others, or in order to
prevent a criminal act, to capture a criminal offender or to
establish facts in a criminal investigation.”
Ethiopia Const., art. 26.1: “Everyone has the right to privacy. This right shall include
the right not to be subjected to searches of his home,
person or property, or the seizure of any property under his
personal possession.”
Germany Const. (Grundgesetz), art. 13.1: “The home is inviolable.”
Grenada Const., ch. 1.7: “Except with his own consent, no person shall be subjected
to the search of his person or his property or the entry by
others on his premises.”
Guatemala Const., art. 23: “Inviolability of the house. The house is inviolable.
Nobody will be able to penetrate in other people’s
dwelling without permission of that inhabits it, safe by
written order of competent judge in which never specifies
the reason for the diligence and before the six nor after the
eighteen hours, Such diligence will be always made in the
presence of the interested one, or of its agent chief
executive.”396
Guyana Const., art. 40.1(c): “protection for the privacy of his home and other property
and from deprivation of property without compensation.”
Honduras Const., art. 99: “The home is inviolable. No entrance or registry will be
able to be verified without consent of the person who
inhabits it or resolution of competent authority. However,
it can be levelled off, in case of urgency, to prevent the
commission or impunity of crimes or to avoid serious
damages to the person or the property.”397
Hong Kong Const., art. 29: “The homes and other premises of Hong Kong residents
shall be inviolable. Arbitrary or unlawful search of, or

395
Ib.
396
Ib.
397
Original in Spanish. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr

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intrusion into, a resident’s home or other premises shall be


prohibited.”
Ireland Const., art. 40.5: “The dwelling of every citizen is inviolable and shall not
be forcibly entered save in accordance with law.”
Iran Const., art. 22: “The dignity, life, property, rights, residence, and
occupation of the individual are inviolate, except in cases
sanctioned by law.”
Italy Const., art. 14: “(1) Personal domicile is inviolable. (2) No one’s domicile
may be inspected, searched, or seized save in cases and in
the manner laid down by law conforming to the guarantee
of personal liberty.”
Jamaica Const., art. 19.1: “Except with his own consent, no person shall be subject
to the search of his person or his property or the entry by
others on his premises.”
Jordan Const., art. 10: “Dwelling houses shall be inviolable and shall not be
entered except in the circumstances and in the manner
prescribed by law.”
Kuwait Const., art. 38: “Places of residence shall be inviolable. They may not be
entered without the permission of their occupants except in
the circumstances and manner specified by law.”
Latvia Const., art. 96: “Everyone has the right to inviolability of their private life,
home and correspondence.”
Lebanon Const., art. 14: “The citizen’s place of residence is inviolable. No one may
enter it except in the circumstances and manners
prescribed by law.”
Liberia Const., art. 16: “No person shall be subjected to interference with his
privacy of person, family, home or correspondence except
by order of a court of competent jurisdiction.”
Libya Const., art. 12: “The home is inviolable and shall not be entered or
searched except under the circumstances and conditions
defined by the law.”; art. 24.1: “A person’s dwelling place
shall be inviolable.”
Luxembourg Const., art. 15: “The home is inviolable. No domiciliary visit may be
made except in cases and according to the procedure laid
down by the law.”
Macedonia Const., art. 26.1: “The inviolability of the home is guaranteed.”
Madagascar Const., art. 13.1: “Everyone shall be assured of protection of his person, his
residence, and his correspondence.”
Mongolia Const., art. 16.13: “Privacy of citizens, their families, correspondence, and
homes are protected by law.”
Nepal Const., art. 22: “Except as provided by law, the privacy of the person,
house, property, document, correspondence or information
of anyone is inviolable.”

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Nicaragua Const., art. 26:398 “All persons have the right to:
1. privacy and the privacy of their family;
2. the inviolability of their home, correspondence, and
communications;
3. respect for their honor and reputation.
A private home may be searched only with a warrant from
a competent judge or expressly authorized official to
prevent a crime from being committed or to avoid damage
to persons or goods, in accordance with the procedures
established by law. The law shall determine the cases and
the procedures for an examination of private documents,
fiscal records and related documents, when such is
indispensable for the investigation of matters before the
Courts or for fiscal reasons. Illegally seized letters,
documents and other private papers shall be null and void
in legal proceedings or elsewhere.”
Nigeria Const., art. 37: “The privacy of citizens, their homes, correspondence,
telephone conversations and telegraphic communications
is hereby guaranteed and protected.”
Oman Const., art. 27: “Dwellings are inviolable and it is not permitted to enter
them without the permission of the owner or legal
occupant, except in the circumstances specified by the
Law and in the manner stipulated therein.”
Panama Const., art. 26: “The home or the residence is inviolable.”399
Paraguay Const., 400 art. 33 & 34: “About the Right to Privacy
(1) Personal and family privacy, as well as the respect of
private life, are inviolable. Individual behavior that does
not affect public order as established by law or the rights
of third parties is exempted from the authority of public
officials.
(2) The protection of the privacy, dignity, and private
image of each individual is hereby guaranteed.
Article 34 About the Inviolability of Private Premises
Every private premises is inviolable. Private premises can
only be searched or closed by a court order in accordance
with the law. By way of exception, it can be searched or
closed without a court order in case of flagrante delicto401

398
English version found online at http://www.leftjustified.com/leftjust/lib/sc/ht/wtp/nicaragu.html
399
Original in Spanish. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr
400
English version found online at http://servat.unibe.ch/icl/pa00000_.html
401
“caught in the act”

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or to prevent the imminent perpetration of a crime or to


avoid personal harm or property damage.
Peru Const., art. 2.9:402 “Every individual has the right:
9. [to] the inviolability of his home. No one may enter the
home or conduct any investigation or search without
authorization from the inhabitant or a court warrant except
in the case of flagrante delicto 403 or very grave danger of
the same. Exceptions for reasons of health or serious risk
are governed by law.”
Portugal Const., art. 34: “The individual’s home and the privacy of his
correspondence and other means of private communication
are inviolable.…No one may enter the home of any person
at night without his consent.”
Qatar Const., art. 37: “The sanctity of human privacy shall be inviolable, and
therefore interference into privacy of a person, family
affairs, home of residence, correspondence, or any other
act of interference that may demean or defame a person
may not be allowed save as limited by the provisions of
the law stipulated therein.”
Romania Const., art. 27.1: “The domicile and the residence are inviolable. No one
may enter or remain in the domicile or residence of a
person without consent.”
Russian Federation Const., art. 25: “The home is inviolable. No one has the right to enter the
home against the will of persons residing in it except in
cases stipulated by the federal law or under an order of a
court of law.”
Rwanda Const., art. 22: “The private lives of individuals shall not be infringed
upon in any way.…Domiciles shall be inviolable.”
Saint Kitts & Nevis Const., art. 9.1: “Except with his own consent, a person shall not be
subject to the search of his person or his property or the
entry by others on his premises.”
Saint Lucia Const.: art. 7.1 (same as St. Kitts).
Saint Vincent & The Grenadines Const., art. 7.1 (same as St. Kitts).
Slovakia Const., art. 21.1: “A person’s home is inviolable. It must not be entered
without the resident’s consent.”
Saudi Arabia Const., art. 37: “The home is sacrosanct and shall not be entered without
the permission of the owner or be searched except in cases
specified by statutes.”
South Korea Const., art. 16: “All citizens are free from intrusion into their place of
residence.”

402
English version available online at http://www.idlo.int/texts/leg6577.pdf
403
“being caught in the act.”

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Spain Const., art. 18.2: “The home is inviolable.”


Suriname Const., art. 17.1: “Everyone has a right to respect of his privacy, his family
life, his home and his honor and good name.”
Switzerland Const., 13.1: “Every person has the right to respect for his or her private
and family life, home, and secrecy of mail and
telecommunication.”
Syria Const., art. 31: “Homes are inviolable.”
Thailand Const., § 35 “A person is protected for his or her peaceful habitation in
and for possession of his or her dwelling place. The entry
into a dwelling place without consent of its possessor or
the search thereof shall not be made except by virtue of the
law.”
Trinidad & Tobago Const., art. 4(c): “the right of the individual to respect for his private and
family life.”
Tunisia Const., art. 9: “The inviolability of the home and the secrecy of
correspondence are guaranteed, save in exceptional cases
established by the law.”
Turkey Const., art. 21.1: “The domicile of an individual shall not be violated.”
Uruguay Const., art. 11: “The home is an asylum inviolable. At night nobody will
be able to enter him without consent of its head, and by
day, only of express order of competent Judge, in writing
and in the cases determined by the law.”404
Venezuela Const., art. 47: “The domestic home and all deprived enclosure of person
are inviolable.”405
Vietnam Const., art. 73.1-2 “The citizen is entitled to the inviolability of his domicile.
No one is allowed to enter the domicile of another person
without his consent, except in cases authorised by the
law.”
Zambia Const., art. 17.1: “Except with his own consent, no person shall be subjected
to the search of his person or his property or the entry by
others on his premises.”
Zimbabwe Const., art. 17.1: “Except with his own consent or by way of parental
discipline, no person shall be subjected to the search of his
person or his property or the entry by others on his
premises.”

404
Original in Spanish. Translated by Altavista Babel Fish Translation online. http://babelfish.altavista.com/tr
405
Id.

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS

Part 7. Plaintiff’s Constitutional Rights Declarations

Rule 8(d)(2). Alternative Statements of a Claim.


In order to eliminate the propensity for bias against the unrepresented civil plaintiff for dismissal
on the fictitious grounds of failure to state a claim upon which relief can be granted by use of boilerplate
citations to inapplicable case law under Rule 12(b)(6) of the Federal Rules of Civil Procedure I hereby state
that I am stating my claims in alternative statements in this complaint (pleading) such that if any one of my
claims are sufficient then my complaint (pleading) is sufficient in its entirety under Rule 8(b)(2) of the
Federal Rules of Civil Procedure for my Seventh Amendment right to a civil jury trial under common law.
My alternative statements of claims are presented in their alternative presentations in the following
Parts of my complaint as shown here to support my primary claims in Part 19:
Part 3. Purpose of this Case
Part 4. In Defense of Pro Se Civil Litigation
Part 5. Federal Questions Presented (28 U.S.C. § 1331)
Part 6. Plaintiff’s Human Rights Declarations
Part 7. Plaintiff’s Constitutional Rights Declarations
Part 8. Plaintiff’s Religious Rights Declarations
Part 9. Plaintiff’s Maritime Rights Declarations
Part 10. Challenging the Non-Incorporation Doctrine on the Second Amendment
Part 11. Challenging the Constitutionality of Summary Judgment
Part 12. Challenging the Final Agency Action of the U.S. Coast Guard
Part 13. Challenging the Federal Court Ruling
Part 14. Challenging Selected Federal Laws
Part 15. Challenging Selected Federal Regulations
Part 16. Challenging Selected State Codes, Statutes, and Municipal Codes
Part 17. Challenging Selected Maritime Conventions and Treaties
Part 18. Racketeering and Treason against the Constitution by Federal Judges
Part 19. The Claims
Part 20. Statement of Proposed Rico Charges (Claims)
Part 21. Petition for Writ of Mandamu (My Demands for Justice)
Part 22. Petition for Writ of Prohibition
Part 23. Petition for Declaratory Judgment
Part 24. Petition for Injunctive Relief
Part 25. Damages

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PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS

A. The Right to Openly Keep and Bear Arms (Open Carry) in Intrastate, Interstate,
and Maritime Travel is the Constitutional Norm
Citing District of Columbia v. Heller, 554 U.S. ___ (2008) (Slip Opinion No. 07-290 at 54):
“[I]n 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.” District of Columbia v. Heller, 554 U.S. ___ (2008) (Slip Opinion No.
07-290 at 40)
“[T]he majority of the 19th-century courts to consider the question held that prohibitions on
carrying concealed weapons were lawful under the Second Amendment or state analogues.
See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 25.” District of
Columbia v. Heller, 554 U.S. ___ (2008) (Slip Opinion No. 07-290 at 54)
“Few laws in the history of our Nation have come close to the severe restriction of the District’s
handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia
Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld
a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the
Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol
“publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187,
violated the state constitutional provision (which the court equated with the Second Amendment).
That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State
v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating,
amounts to a destruction of the right, or which requires arms to be so borne as to render
them wholly useless for the purpose of defence, would be clearly unconstitutional”).” District
of Columbia v. Heller, 554 U.S. ___ (2008) (Slip Opinion No. 07-290 at 57).

“Facts do not cease to exist because they are ignored.” Aldous Huxley, PROPER STUDIES: A
NOTE ON DOGMA, p. 205 (1917).
“Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of
our passions, they cannot alter the state of facts and evidence.” John Adams (1732-1826), U. S.
President, December 1770.
“There are some acts of justice which corrupt those who perform them.” Joseph Joubert (1754-
1824), Pensees.
“There is no crueler tyranny than that which is perpetrated under the shield of law and in the
name of justice.” Charles-louis De Secondat, Baron De Montesquieu (1742).

B. Open Carry in Intrastate, Interstate, and Maritime Travel is a Near-Absolute


Human Right Notwithstanding Prohibited Person Status under 18 U.S.C. § 922 et
seq.
In the Heller opinion Justice Scalia cited case law at the State level striking down severe gun control laws
that approached the District of Columbia handgun ban.
“Open carry” is covered in

202 RIGHTS DECLARATIONS


PART 7. PLAINTIFF’S CONSTITUTIONAL
PART 7. PLAINTIFF’S CONSTITUTIONAL RIGHTS DECLARATIONS

1. State v. Reid, 1 Ala. 612, 616-617, 35 Am. Dec. 44 (1840) (A statute which, under the pretence of regulating,
amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly
useless for the purpose of defence, would be clearly unconstitutional.)
2. pages 57 (Nunn v. State, 1 Ga. 243, 250–251 (1846) (We are of the opinion, then, that so far as the act of 1837
seeks to suppress the practice of carrying certain weapons secretly, that it is valid, inasmuch as it does not deprive
the citizen of his natural right of self-defence, or of his constitutional right to keep and bear arms. But that so
much of it, as contains a prohibition against bearing arms openly, is in conflict with the Constitution, and
void.)
3. page 40 (State v. Chandler, 5 La. Ann. 489, 489–490 (1850) (The act of the 25th of March, 1813, makes it a
misdemeanor to be “found with a concealed weapon, such as a dirk, dagger, knife, pistol, or any other deadly
weapon concealed in his bosom, coat, or any other place about him, that does not appear in full view.” This law
became absolutely necessary to counteract a vicious state of society, growing out of the habit of carrying
concealed weapons, and to prevent bloodshed and assassinations committed upon unsuspecting persons. It
interfered with no man’s right to carry arms (to use its words) “in full open view,” which places men upon an
equality. 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 neccessary, and of their country, without any tendency to
secret advantages and unmanly assassinations.); and
4. page 57 (Andrews v. State, 50 Tenn. at 187 (1871) (It will be seen the statute forbids by its terms, the carrying
of the weapon publicly or privately, without regard to time or place, or circumstances, and in effect is an absolute
prohibition against keeping such a weapon, and not a regulation of the use of it. Under this statute, if a man
should carry such a weapon about his own home, or on his own premises, or should take it from his home to a
gunsmith to be repaired, or return with it, should take it from his room into the street to shoot a rabid dog that
threatened his child, he would be subjected to the severe penalties of fine and imprisonment prescribed in the
statute.).

C. Judge Ellen Segal Huvelle Wrongfully Denied Mandamus Relief


In Judge Ellen Segal Huvelle’s Order dismissing my first case, No. 02-1435 she cited boilerplate case law
without due regard to the merits of my case (extreme judicial prejudice to my right to due process). She stated:
The remedy of mandamus is an extraordinary one, and is reserved for extraordinary situations. 406 See
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). Under well-established Circuit law,
mandamus relief is available only if three conditions are met:407
(1) the plaintiff has a clear right to relief;
(2) the defendant has a clear duty to act; and
(3) there is no other adequate remedy available to the plaintiff.
Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002); see also In re Bluewater Network, 234 F.3d 1305, 1315
(D.C. Cir. 2000) (mandamus issued “only for the most transparent violations of a clear duty to act”).

406
Plaintiff’s emphasis.
407
Plaintiff’s emphasis.

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(1). Mandamus: Reserved for Extraordinary Situations:


The terrorist attacks of September 11, 2001 is an extraordinary situation. The creation of the U.S.
Department of Homeland Security in response to the terrorist attack of September 11, 2001 is an extraordinary
situation. The transfer of the U.S. Coast Guard from the U.S. Department of Transportation to the U.S.
Department of Homeland Security is an extraordinary situation. The transfer of superintendence of the U.S.
Merchant Marine from the U.S. Department of Transportation to the U.S. Department of Homeland Security is an
extraordinary situation.
(2). First Condition for Mandamus Relief: The plaintiff has a clear right to
relief
In 2002 I had a clear right to Mandamus relief with the combine effect of the extraordinary situations
listed at subparagraph (1) above. In 2008 I still have the same extradinary situations listed at subparagraph (1)
above but the U.S. Supreme Court handed me another clear right to Mandamus relief in the form of the U.S.
Supreme Court’s opinion in District of Columbia v. Heller, No. 07-290 (June 26, 2008) stating that the Second
Amendment is an individual right.
(3). Second Condition for Mandamus Relief: The defendant has a clear duty
to act
I have clearly shown that the United States has a very poor human rights record in how it treats its how
People. I have clearly shown that the United States has the highest prison population than any other nation in the
world. It is a substantial and proven claim that disarming the American people through gun control laws is not the
the solution to murders, violent crimes, and property crimes. Academic law review articles frequently right about
the road not taken under many areas of the Constitution of the United States. This case highlights one road not
taken and suggests that it is time long overdue to take that road to an armed society under the Second Amendment
as the constitutional norm that it is and social norms will form in compliance with the Second Amendment. The
law and social norms are interdependent. The United States Government has a clear duty to respect the Second
Amendment for its intended purpose as part of the checks and balance system under the Constitution of the
United States.
(4). Third Condition for Mandamus Relief: There is no other adequate
remedy available to the plaintiff.
I have exhausted all remedies available from the U.S. Coast Guard, the U.S. Congress (petition for a
private bill was administratively rejected), from the Executive Branch, and even from the federal Judicial Branch
(hence my human rights complaint so noted on pages 1-3 of this complaint.).
(5). This Court has the duty to affirm Mandamus Relief.
Citing Cohen v. Com. Wealth of Virginia 19 U.S. 264 (Wheat) (1821):
It is most true that this Court will not take jurisdiction if it should not: but it is
equally true, that it must take jurisdiction if it should. The judiciary cannot, as the
legislature may, avoid a measure because it approaches the confines of the
constitution. We cannot pass it by because it is doubtful. With whatever doubts,
with whatever difficulties, a case may be attended, we must decide it, if it be
brought before us. We have no more right to decline the exercise of jurisdiction
which is given, than to usurp that which is not given. The one or the other would
be treason to the constitution. Questions may occur which we would gladly
avoid; but we cannot avoid them. All we can do is, to exercise our best judgment,
and conscientiously to perform our duty.)

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(a). Capt. Fink, USCG, Commanding Officer, National Maritime Center, Arlington,
Virginia issued the initial denial of Petititoner’s application for National Open Carry Handgun
endorsement on his Merchant Mariner’s Document in his letter dated February 22, 2002.
(b). Capt. Fink stated in the above letter:
“This is in response to your application dated January 10, 2002, for an endorsement on
your merchant mariner’s document that would entitle you to carry a handgun. MMDs
serve the purposes of identifying the mariner and providing evidence of his or her
professional qualifications. An endorsement authorizing carriage of a handgun is beyond
the scope of the professional requirements for the crew on board a merchant vessel and is
not authorized by regulation.”
(c). Capt. Fink did not cite the regulation he referred to in his letter to Plaintiff because
there is no Coast Guard regulation in existence that prohibits authorizing my endorsement for
“National Open Carry Handgun” but the Second Amendment to the U.S. Constitution.
(d). The intent and purpose of the Bill of Rights, the first ten amendments to the U.S.
Constitution, as explained in the Preamble to the Bill of Rights, is to “prevent misconstruction or
abuse of its powers, that further declaratory and restrictive clauses should be added: And as
extending the ground of public confidence in the Government, will best ensure the beneficent ends
of its institution.”
(e). National Open Carry Handgun is a right of the First, Second, Ninth, Tenth,
Thirteenth, and Fourteenth Amendments, inclusively.
(f). The constitutional right of National Open Carry Handgun is inseparable from the
constitutional right to travel the various states under the Second, Ninth, Tenth, and Thirteenth
Amendments for the lawful purpose of personal security in defense of life and liberty. These
rights still retain constitutional status and protections in opposition to federal, state, and local laws
and ordinances. Federal, state, county, and city laws and ordinances that infringe and prohibit this
right are “repugnant to the constitution” and are “null and void” in terms of their constitutionality
and must be stricken. (Marbury v. Madison)
(g). The Federal Government, the Coast Guard and the States all have a legal and
constitutional obligation to obey an under-enforced constitutional norm, the National Open Carry
Handgun right of the Second, Ninth, Tenth, Thirteenth and Fourteenth Amendments which
extends beyond its interpretation by the federal judiciary to the full dimensions of the concept
which the norm embodies.408
(h). The Federal Government, the Coast Guard and the States are required to fashion their
own conceptions of the constitutional norm of National Open Carry Handgun and measure their
conduct by reference to this concept.409
(i). The Federal Government, the Coast Guard and the States all have an obligation to use
their ‘best efforts’ to avoid unconstitutional conduct.410

408
Paraphrasing. Denning, Brannon P., Gun Shy: the Second 20 Amendment as an “Underenforced Constitutional Norm, 21
Harv. J.L. & Pub. Pol’y 719, (Summer 1998) discussing Lawrence Gene Sager’s Fair Measure: The Legal Status of
Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212 (1978).
409
Id.
410
Id.

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(j). The Coast Guard acted with “deliberate indifference” to Plaintiff’s Second, Ninth,
Tenth, and Thirteenth Amendment rights by denying Plaintiff’s application, and thereby violated
Plaintiff’s civil, religious, and constitutional rights.
(k). The Coast Guard acted with error when initiating a criminal investigation through the
U.S. Navy Criminal Investigative Service against Plaintiff for exercising First Amendment rights
pursuing Second Amendment rights.
D. There Are No Federal Laws or Regulations on the Second Amendment Rights of
U.S. Seamen to Possess or Carry a Handgun, Whether Concealed Carry or Open
Carry, Between the Jurisdictions of Domestic Law and Maritime Law.
(1). “National Open Carry Handgun” is an Inherent Human Right of Self-
Defense
The Second Amendment right to openly keep and bear arms for personal safety, security and self-defense
against the common criminal of society and against government tyranny, whether implied or explicitly included,
under the right to life provisions of international human rights treaties and especially so under the United Nations
CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE.
Federal and State gun control laws violate the Bill of Rights to the U.S. Constitution and the privileges
and immunities of the Fifth and Fourteenth Amendments and the U.S. citizenship of the Fourteenth Amendment.
The United Nations global gun control agenda violates the United Nations Charter, Article 2, Clause 7 to
which United States has the international remedy under the VIENNA CONVENTION ON THE LAW OF TREATIES 1969
and VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR
BETWEEN INTERNATIONAL ORGANIZATIONS 1986

E. The U.S. Department of Homeland Security Has General Superintendence Over


the U.S. Merchant Marine and Merchant Personnel But Ignores the Role of
Seamen’s Second Amendment Rights in Homeland Security
Because there are no federal laws or regulations for or against Don Hamrick’s requested endorsement for
National Open Carry Handgun on the Merchant Mariners Document, Capt. Brusseau should have given full
weight of the Second Amendment to Don Hamrick’s application and acted in accordance with the “Oath of
Office” [CG-9556 (Rev. 8-05)] that states:
“Having accepted this appointment, I, [Capt. Brusseau], do solemnly swear (or affirm) that I will
support and defend the Constitution of the United States against all enemies, foreign and
domestic, that I will bear true faith and allegiance to the same, that I take this obligation freely,
without any mental reservation or purpose of evasion, and that I will well and faithfully discharge
the duties of the office on which I am about to enter. So help me God.”
That Capt. Brusseau abandoned his duty to support and defend the constitutional rights of seamen under
the Bill of Rights by ignoring Don Hamrick’s individual right under the Second Amendment as an Able Seaman
in their administrative final agency action in favor of a treasonous political ideology more in line with the United
Nations global gun control agenda attacking the Second Amendment.
That in 2002, U.S. civilian Able Seamen taking employment aboard U.S. Government vessels of the
Ready Reserve Fleet and of the Pre-Position Fleet in support of the U.S. military are required to have small arms
training in accordance with OPNAVINST 3591.1C: SMALL ARMS TRAINING AND QUALIFICATION, dated May 13,

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2002; ENCLOSURE (3) QUALIFICATION CRITERIA FOR SECURITY PERSONNEL (AFLOAT) dated May 13, 1992,411
through the Military Sealift Command, shipping companies, and the Seafarers International Union.
(1). That small arms training falls under the GENERAL REQUIREMENTS AND
CLASSIFICATIONS FOR ABLE SEAMEN, 46 U.S.C. § 7306(a)(3):
“To qualify for an endorsement as able seaman authorized by this section, an applicant must provide satisfactory
proof that the applicant is qualified professionally as demonstrated by an applicable examination or educational
requirements .”
(2). That 33 C.F.R. § 104.220 COMPANY OR VESSEL PERSONNEL WITH SECURITY
DUTIES requires the following:
Company and vessel personnel responsible for security duties must have knowledge, through training or
equivalent job experience, in the following, as appropriate:
(a) Knowledge of current security threats and patterns;
(b) Recognition and detection of dangerous substances and devices;
(c) Recognition of characteristics and behavioral patterns of persons who are likely to threaten
security;
(d) Techniques used to circumvent security measures;
(e) Crowd management and control techniques;
(f) Security related communications;
(g) Knowledge of emergency procedures and contingency plans;
(h) Operation of security equipment and systems;
(i) Testing and calibration of security equipment and systems, and their maintenance while at sea;
(j) Inspection, control, and monitoring techniques;
(k) Relevant provisions of the Vessel Security Plan (VSP);
(l) Methods of physical screening of persons, personal effects, baggage, cargo, and vessel stores;
and
(m) The meaning and the consequential requirements of the different Maritime Security
(MARSEC) Levels.
(n) Relevant aspects of the TWIC program and how to carry them out.
That 33 C.F.R. § 104.220 COMPANY OR VESSEL PERSONNEL WITH SECURITY DUTIES places unarmed
company and vessel personnel with security duties at grave risk of personal injury or death when security duties

411
Current edition is OPNAVINST 3591.1E: SMALL ARMS TRAINING AND QUALIFICATION, dated February 20, 2007;
ENCLOSURE (1) RANGE REGULATIONS; ENCLOSURE (2) SMALL ARMS DRY FIRE TRAINING PROCEDURE AND GUIDELINES;
ENCLOSURE (3) QUALIFICATIONS FOR PISTOLS – M9 Beretta Pistol and the M11 9mm Compact Pistol (Selection for U.S.
civilian Able Seamen are limited to the M9 9mm Beretta Pistol; ENCLOSURE (4) QUALIFICATIONS FOR RIFLE - M14, M16
(series) rifles, M4A1, M727, and Mk-18 Carbines, Rifle selection for U.S. civilian Able Seamen limited to the M14.;
ENCLOSURE (5) QUALIFICATION CRITERIA FOR SHOTGUNS - 12-gauge 00 buckshot and slugs; ENCLOSURE (6) QUALIFICATION
CRITERIA FOR LIGHT, MEDIUM AND HEAVY MACHINE GUN PERFORMANCE E VALUATION - M60 and MK43 (variants) 7.62MM
medium machine guns, M240 (variants) 7.62MM medium machine guns, and MK46 Mod 0 (M249 Squad Automatic
Weapon (SAW)) 5.56MM light machine guns (not available to civilian Able Seamen).

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require that they approach and confront suspicious persons. It is unrealistic and suicidal to expect company
personnel to comply with 33 C.F.R. § 104.220 while unarmed.
(3). That the International Maritime Organization’s Maritime Safety
Committee policy on, Piracy and Armed Robbery Against Ships: Guidance to
Shipowners and Ship Operators, Shipmasters and Crews on Preventing and
Suppressing Acts of Piracy and Armed Robbery Against Ships,
MSC/Circ.623/Rev.3, dated May 29, 2002, paragraphs 45 and 46 states:
Firearms
45 The carrying and use of firearms for personal protection or protection of a ship is strongly
discouraged.
46 Carriage of arms on board ship may encourage attackers to carry firearms thereby escalating an
already dangerous situation, and any firearms on board may themselves become an attractive
target for an attacker. The use of firearms requires special training and aptitudes and the risk of
accidents with firearms carried on board ship is great. In some jurisdictions, killing a national
may have unforeseen consequences even for a person who believes he has acted in self
defence.
Pirates/armed