“TREASON” -- A TIMELY ISSUE IN THE 2016 U.S. PRESIDENTIAL ELECTION

Treason is a word loosely bandied about, but it should not be. It should be used circumspectly; and, when properly applied to a person, legal action should be taken against that person. This nation should not suffer a traitor in its midst -- not in the streets, nor in the Oval Office.

The public uses the word, ‘treason,’ as a descriptor of individuals it loathes, whether the word is properly applied to a person or not. The public uses the word, informally, as an appellation of disgrace. The public uses the word against a person to damn a person because it finds that person’s words, or conduct, or character to be shameful. Some have said Hillary Clinton has committed treason and a plausible case can be made for doing so whether the grounds were properly stated by those making the claim. Apparently not to be outdone, Clinton has said Donald Trump has committed treason, although the ground for Clinton's claim against Trump is not only legally invalid, but patently ludicrous. But, then, Hillary Clinton never let sound logic, consistency, or truth stand in the way of her absurd and baseless assertions if she felt she could score political points with those assertions.Politicians, pundits, the mainstream news media, talk radio show hosts, news analysts, all use the word ‘treason.’ They use the word loosely, cavalierly. They use it as a rhetorical device. They use it as hyperbole, for oratorical flourish. They use it for effect, to get a visceral reaction in their audience. But are they serious? Not always, certainly not invariably.But, Americans should take the word, ‘treason,’ seriously. One should be careful about calling another person a “traitor”—that is to say, a person who commits treason. It is not something to be trifled with. If the word, ‘treason,’ fits a person, then use it. Otherwise, don’t. To use it in an off-hand, matter-of-fact, lighthearted way, reduces the import and significance of it. It is not a matter of frivolity.The word, ‘treason,’ appears in our Constitution. It appears in federal criminal Statute. The founders of our Republic do not trifle with words. Our Constitution isn’t comedy. Our criminal codes aren’t slapstick skits. Nothing in the Constitution or in our criminal statutes is to be taken lightly. If treason merits death, as the federal crime of treason provides for, one should reflect upon applying treason carefully before calling a person as a “traitor”—condemning a person for the crime of treason. Yet, the mainstream media has no wish to enlighten the American public. It plays with the word, ‘treason.’ It turns the word into something frivolous. It turns the word into something frivolous. But the word was never meant to be so taken. Did Hillary Clinton commit treason? If so we will draw that conclusion from the law as applied to the facts. It is that basic; that clear; that simple. So, let us investigate this word, ‘treason.’

WHAT DOES THE WORD, ‘TREASON,’ MEAN IN LAW AND WHAT IS THE BASIS FOR OR WHAT ARE THE BASES, IF MORE THAN ONE, UPON WHICH A CHARGE OF TREASON EXISTS?

The word, ‘treason,’ is a legal term of art. Treason is an act against the Sovereign. A person who commits treason against the United States is committing a serious crime—the most serious crime imaginable—a crime against our Country as a Sovereign Nation. In recent times, it seems there were plenty of instances when federal prosecutors could have brought a charge of treason against an individual. Yet, when was the last time Government prosecutors brought a charge of treason against anyone? The Government hasn’t done so recently, notwithstanding that crimes committed against American citizens by one group of reprehensible individuals in this Country, Islamic radicals, would demonstrably satisfy the conditions for federal prosecutors to bring a charge of treason against those Islamic radicals or, at least, would provide  for a good test case.Is it difficult to make a charge of treason stick? Or, are there other reasons Government attorneys have been reluctant to bring a charge of treason against those citizens who commit acts that support a charge of treason? We must dig deeply to find answers to these questions. The Arbalest Quarrel will do so.Foremost, what does it mean for a federal prosecutor to charge a person with the crime of treason? It means that the person, so charged, has committed acts that fit the specific elements of the crime of treason. In the U.S. Constitution and in federal law “treason” is narrowly defined.Under the United States Code and under the U.S. Constitution, a person’s actions are treasonable if and only if at least one of two conditions is satisfied. The first condition is levying war against the sovereign United States. The second condition is adhering to the Nation’s enemies, giving them aid or comfort. On the surface the two conditions seem straightforward. But, they aren’t. We must ask: What does it mean to levy war against the U.S.? This goes to acts that amount to carrying out war against the United States? But, what act, overt or covert, amounts to levying war against the Nation? We pointedly will consider whether Hillary Clinton, as Secretary of State, designed and carried out foreign policy that amounted not to the safeguarding of our Nation, but to levying war against it.What does it mean to give aid and comfort to the Nation’s enemies? To answer that question, we must ask: What does the phrase ‘aid and comfort’ mean? How far does it go? To what does the phrase extend? And, what does the word, ‘enemy’ mean’ in the legal sense? Does the word, ‘enemy,’ refer only to a Nation State or group of Nation States? Or, does the word extend to a group of actors that comprise no nation? Does the word, ‘enemy,’ refer to a Nation, a group of Nations, or groups of actors with whom the United States is actually at war? Or does the word, ‘enemy,’ as used in the legal sense, extend to any Nation, or group of Nations, or to any group of actors with whom our Nation is simply not allied and with whom the Nation operates on a confrontational basis other than through war.Once we answer these questions, we may then ask this: If Hillary Clinton’s conduct as Secretary of State did not rise to the level of actually overtly levying war against this Nation, did her actions have the effect of harming this Nation to the extent, at least, of covertly levying war against the United States, or, otherwise, did her actions amount to adhering to our Nation’s enemies, giving them aid and comfort?Tangentially, we ask: If a person isn’t a citizen of the United States but lives within the United States and commits an act that includes elements of the crime of treason, can that person be lawfully charged with treason? Similarly, if a citizen, living outside the United States, commits an act that includes elements of the crime of treason, can that person be lawfully charged with treason if that person has not otherwise renounced his or her citizenship? Also, what are the implications of the requirement that at least two witnesses must testify to the act?We should consider, too, why the founders of our Nation, who, in 1787, drafted the Constitution, consciously saw need to draft the treason clause so narrowly. Even so, if our Nation’s leaders devise and implement policy damaging to the well-being of our Nation, should we not hold them accountable for their action, charging them with treason? And, if our Nation’s leaders serve a secret master—a master, not clearly identified but who, on the basis of harmful policies, is other than the American People and other than the Constitution upon which they take their oath—must they not answer to the American People for treason? If our Nation’s leaders—with the power, under the Constitution, to destroy a Nation through misuse of that power—do misuse that power, should not the American People hold them to account for deleterious decision-making by charging them with treason? If so, when might such harmful decision-making rise to the level of treason? Further, must acts of treason be actual? Can a person, including our Nation’s leaders, commit constructive treason? If our Nation’s leaders operate treacherously, duplicitously, heinously, hypocritically, deviously, should they not suffer to answer for the crime of treason? When, if ever, can we say, or ought to say, that a Nation’s leaders’ dereliction of duty or misuse of power and authority entails adhering to our Nation’s enemies, aiding and abetting this Nation’s enemies? We will ascertain how far even a narrow reading of the Constitutional and Statutory crime of treason extends.If there is a legal basis to charge Hillary Rodham Clinton with the crime of treason, or with other crimes against this sovereign Nation, including crimes of sedition, espionage, conspiracy to commit treason, and, yes, terrorism, the Arbalest Quarrel will adduce those. In dealing with the misconduct of Hillary Clinton, the impact of our findings may also extend to that of the U.S. Department of Justice.By failing to indict Hillary Clinton on several criminal counts—by failing to indict a person who should have been indicted on charges amounting to extremely serious criminal wrongdoing against this Nation, against this Nation’s Constitution, and against this Nation’s citizenry—thus paving the way for the very real possibility of planting a likely criminal in the highest Office in the Land—did Justice Department Officials commit treason too?[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

ONE MAN, JAMES B. COMEY, DIRECTOR OF THE F.B.I., COULD HAVE PREVENTED THE VERY POSSIBILITY OF SEATING A LIKELY CRIMINAL IN THE WHITE HOUSE; HE FAILED THE AMERICAN PEOPLE

The F.B.I. director, James B. Comey, is Hillary Clinton's best enabler and as that enabler, who would suffer her evil, he forsakes and abandons not only his own good character, but the well-being of a nation.

PART ONE OF TWO PARTS

“. . . you never exactly lie, but often you don’t exactly not lie, either. You tell people only what you want them to know, and not a word more or less, and let them make of it what they will.” ~Taylor Caldwell, Captains And The Kings, Part Two, Chapter 5, page 497, Doubleday & Company, Inc. (1972)

FIRST HYPOTHESIS: A MAN OF GOOD CHARACTER AND REPUTATION, BUT ONE WHO WIELDS LITTLE TO NO POWER AND WHO FALLS PREY TO CORRUPTING INFLUENCES OR WHO OTHERWISE FINDS HIMSELF COMPROMISED, BRINGS DISHONOR TO HIMSELF, TRULY; BUT SUCH A MAN HARMS ONLY HIMSELF. HE HAS LITTLE CAPACITY FOR HARMING HIS HOUSE—AN ENTIRE NATION.

SECOND HYPOTHESIS: A MAN OF GOOD CHARACTER AND REPUTATION BUT ONE WHO HAPPENS TO WIELD CONSIDERABLE POWER, AS WELL, HAS TREMENDOUS POWER TO PERSUADE. AND, IF THAT MAN SHOULD HAPPEN TO FALL PREY TO CORRUPTING INFLUENCES OR, IF THAT MAN SHOULD OTHERWISE FIND HIMSELF COMPROMISED, DISHONOR BEFALLS NOT ONLY HIMSELF BUT HIS HOUSE AND CAN, MOST ASSUREDLY, WITH HIS WORDS —HIS HALF-TRUTHS, HIS EVASIONS, HIS LIES—CONTRIBUTE TO THE DOWNFALL OF HIS HOUSE—AN ENTIRE NATION.

On Wednesday, September 28, 2016, the House Judiciary Committee held a second oversight Hearing on FBI operations.The Committee called on the F.B.I. Director, James B. Comey, once again, to appear and to testify on behalf of the Bureau. House Democrats tried, however unsuccessfully and certainly inappropriately, to steer the Hearing toward irrelevant policy matters, several of which were clearly outside the purview of the Bureau and outside the true purpose of the Hearing. But House Republicans were, fortunately, not persuaded to follow suit and kept the Hearing on target. They focused their attention on the critical matter at hand: the conduct of the F.B.I. in undertaking its criminal investigation of Hillary Clinton and her underlings.House Republicans grilled Comey on the F.B.I.’s mishandling of its investigation into Hillary Clinton’s own mishandling of classified federal Government information during her tenure as Secretary of State in the Obama Administration. Comey was, as always, perspicacious, articulate, respectful toward Congress, candid, and ostensibly sincere, rarely showing irritation. He was also cautious, attentive, intransigent, keenly observant, and adamant. He wouldn’t budge on his decision not to recommend, to the Attorney General, Loretta Lynch, indictment of Hillary Clinton on multiple federal felony charges. In Comey’s estimation, as he declared to the House Judiciary Committee, neither Hillary Clinton nor her underlings merit indictment under federal statute.Comey’s protestations are both weak and at times patently ludicrous, in light of, one, the weight of evidence screaming for indictment of Clinton—evidence Comey had himself reported in his July 5, 2016 statement to the American People; and in light, two, of the mass of inconsistencies House Republicans brought to the Director’s attention, concerning the conduct of Clinton’s cronies during the course of the F.B.I.’s criminal investigation and, too, the odd manner in which the F.B.I. conducted several of its interviews—a matter which House Republicans also brought to the F.B.I. Director’s attention.During the course of the Hearing, one inescapable and very disturbing inference, as voiced by one Republican member of the panel, could not but be drawn. It was this: the decision to let Clinton and her underlings off the hook—whosoever it was who made it—must have been decided well before the F.B.I. criminal investigation into violations of federal law had concluded—in fact, perhaps, before the criminal investigation even began. The unstated presumption, implied by the inference, is that the entire criminal investigation was an elaborate and extremely expensive but ultimately vacuous performance, predicated on necessity, no doubt and, so, definitely no hoax, for serious misconduct by the Secretary of State, Hillary Clinton, and by her underlings, did exist, and serious crimes had been, on balance, committed—but such probability of crimes the F.B.I. found were never meant to be prosecuted. Someone or some powerful vested interests here or abroad made certain that would not happen.The painful realization is that the F.B.I. has allowed Hillary Clinton and her toadies to avoid criminal prosecution for serious crimes against the Country, against this Country’s Constitution, and against this Country’s citizenry. Americans may one day—assuming this Country, as an independent Sovereign Nation still exists—bring the U.S. Department of Justice itself to account for shirking its most sacred duties to God, Country, People, and Law.

WHAT COMEY’S DECISION HAS WROUGHT FOR THE AMERICAN PEOPLE

Through the failure of the F.B.I. Director, James B. Comey, to recommend indictment of both Hillary Clinton and her cronies on felony charges and through the failure of the Attorney General, Loretta Lynch, to charge Hillary Clinton and her cronies with multiple felony counts, the Justice Department has laid the groundwork for placing the most despicable—and, let us say, to use one of Clinton’s own words, deplorable—person ever to hold public office in the highest Office of the Land—a selfish person, an amoral person, a person loathsomely consumed by the naked lust for power, rabidly consumed by the lurid desire for personal aggrandizement, and ravenously consumed by the noxious need to accumulate vast sums of money, ignominiously, through the sale of high public Office; a person who has clearly broken our Nation’s laws, has broken many of them, and has broken them many times over, and has urged and encouraged others to do so as well; a person who cares not one whit for the honor of our Country; or for our Constitution; or for our Country’s laws; or for our sacred rights and liberties—those sacred rights and liberties hard fought for by the founders of our Nation; or for our Countrymen, many of whom have sacrificed their life that we may remain a free People and a free, sovereign Nation.If Clinton wins the election both she and her cronies will have carte blanche to complete what Clinton, as Secretary of State, had begun: destruction of this Country’s laws, its Sovereignty, its economy, its culture, its heritage, its security, the rights and liberties of its citizenry—indeed, everything upon which this once mighty Nation once stood for and represented.At the September 28, 2016, Congressional Hearing, House Republicans once again asked the F.B.I. Director, lamely, to reopen its investigation into Hillary Clinton’s misconduct and those of her underlings. Comey again refused to do so; nor would he be willing to look into his Bureau’s own mishandling of the investigation.Congress is, as well, apparently unwilling to allow the Independent Counsel Reauthorization Act of 2014 out of Committee. Doing so would circumvent a recalcitrant Justice Department, reluctant to enforce our Nation’s laws.The Independent Counsel Reauthorization Act of 2014 requires the appointment of outside, independent counsel to investigate serious crimes of high public officials when the Department of Justice is unable or unwilling to uphold the laws of this Nation. Congress and the Courts take over the duty of seeing that justice is served when the Executive Branch is unable or unwilling to police itself through the U.S. Department of Justice. The failure of Congress to allow open debate and a full House vote on the Independent Counsel Reauthorization Act of 2014, means that many members of Congress, as with the Executive Branch of the federal Government, are not too keen on embracing integrity in Government. Integrity does not, apparently, rank very high in importance in the conduct of our Nation’s business.The Arbalest Quarrel has previously discussed the need for appointment of independent counsel to reinvestigate Hillary Clinton’s misconduct during her tenure as Secretary of State and has written to the sponsors of the bill, Representatives Michael Turner and Rick Allen, urging them to act. The Arbalest Quarrel Article is titled, "The Foundation of Justice undone by the Foundation, Clinton." To date we have heard not a word about action on the bill. The silence is deafening.Apparently, Congress has neither the will nor the fortitude to compel integrity in the federal Government. Is this not an act of betrayal against the Country and the American People?Clearly, there is blame aplenty to go around, but what does it take to shame the Government to act at the behest of the People to prevent the calamity of a likely criminal, Hillary Rodham Clinton, seated in the White House?_____________________________________

IS HILLARY CLINTON, LIKE THE BIG BANKS, TOO BIG TO PROSECUTE, EVEN IF—ESPECIALLY IF—HER MISCONDUCT RISES TO THE LEVEL OF TREASON?

PART TWO OF TWO PARTS

“He said to himself—though not without a dim inner protest: We are our own destiny. If we are victims at all, or conquerors, we have done it in our minds, and our will, or with our faulty judgments or our illusions. If we permit others to exploit us, in private life or in government, we chose it. Or we made the fatal error of acquiescence, and for that we should be condemned. The world forgives everything but weakness and submission. It forgives everyone but a victim. For there is always battle, even if you die in it. In any event death comes to all men. How you died was your own choice, fighting or submitting.” ~Taylor Caldwell, Captains And The Kings, Part One, Chapter 17, page 178, Doubleday & Company, Inc. (1972)

APART FROM SUBSTANTIVE AND SUBSTANTIAL EVIDENCE OF FELONY CRIMES INVOLVING, ONE, THE MISHANDLING OF CLASSIFIED INFORMATION, TWO, CORRUPTION AND BRIBERY IN HIGH PUBLIC OFFICE, AND, THREE, INTENTIONALLY LYING TO OFFICIALS OF GOVERNMENT UNDERTAKING A LEGITIMATE INVESTIGATION INTO CRIMINAL ACTIVITY, DID HILLARY RODHAM CLINTON, AS SECRETARY OF STATE, ENGAGE IN ANY CONDUCT THAT RISES TO THE LEVEL OF OUTRIGHT TREASON? IF NOT, DOES THE TOTALITY OF CLINTON’S MISCONDUCT AS SECRETARY OF STATE SUPPORT A CHARGE OF TREASON?

To answer these questions we should first take a look at the history of “treason.” We need to place the crime of “treason” in historical context. We can trace the notion of ‘treason’ to English law. An Eminent English Jurist of the Eighteenth Century, Sir William Blackstone “wrote that treason ‘imports a betraying, treachery, or breach of faith.’ Blackstone further noted that treason against the sovereign—termed ‘high treason’—amounts to the ‘highest civil crime.’” “State Treason: The History and Validity of Treason Against Individual States," J. Taylor McConkie, Brigham Young University, B.A.; Georgetown University Law Center, J.D. Trial Attorney, United States Department of Justice, Civil Division, 101 Ky. L.J. 281, 283 (2012/2013).Although U.S. law takes its cue from English law, the betrayal against the Sovereign that Blackstone talks about is betrayal against the Monarch, the King of England. Of course, the U.S. does not have a Monarch although one might argue that, in effect, we do have a Monarch. But, even as the U.S. President has, in evident ways in recent years, assumed ever more power unto himself, still, under our Constitution and our system of laws, it is the American people in whom sovereignty ultimately resides. The People of the United States as a singular body are essentially the Country. An act of betrayal against Country is, then, an act of betrayal against the People of the United States in whom ultimate power exists under our system of laws and under our Constitution.

CAN A CHARGE OF TREASON BE LEVELLED AGAINST THE HIGHEST OFFICIAL IN THE LAND?

Where power to make laws, enforce laws, and interpret laws rests in a Monarch—that power is absolute. A subject of the Sovereign can betray the Sovereign and thereby commit treason. But, the Sovereign cannot betray himself if he is the Supreme Law of the Land.In the United States, though, the U.S. President, as a citizen of the United States, is not a law unto himself—certainly not if our Constitution has any force and efficacy.Yet some U.S. Presidents have, in their deeds, if not in their words, ascribed such power to themselves. If betrayal, treachery, or breach of faith to Country is, in essence, as William Blackstone said, the sine qua non of “treason,” what specific conduct of an actor rises to the level of betrayal, treachery, or breach of faith to Country?

THE LAWS OF TREASON IN AMERICA

The crime of treason appears in two significant places. First and foremost, the crime of treason appears in the United States Constitution. Article III, Section 3, Clauses 1 and 2 set forth:“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.""The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.”Of note, the President of the United States, and other high-ranking officers are not exempt from a charge of treason levelled against them as it relates to their betrayal of the American People while in Office. The U.S. Constitution makes specific provision for this betrayal. Article II, Section 4 of the U.S. Constitution sets forth, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”The crime of treason is also codified in federal Statute. You will find the crime of treason in the United States Code: Title 18, “Crimes and Criminal Procedure:” “Part I, “Crimes;” “Chapter 115, “Treason, Sedition, and Subversive Activities.” 18 U.S.C. § 2381, titled, clearly, plainly, and succinctly, “Treason,” sets forth: “Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.”

TAKE NOTE OF TWO IMPORTANT POINTS IN THE ABOVE ACCOUNT OF TREASON AS CODIFIED IN OUR CONSTITUTION AND IN OUR STATUTES

One, the founders of our Republic felt that the crime of treason was so horrific that they made specific provision for it in the U.S. Constitution, specifically warning the highest public officials in the Land, that they, no less than any ordinary citizen, are not above the law and that they may be charged with the crime of treason if their actions ever betray their duties to Country, to the citizens of the Nation, and to the Constitution whom they are sworn to serve.Two, concomitant with and consistent with the Constitutional provision, the federal statute clarifies the Constitutional prohibition and is, to our knowledge, the only federal Statute that specifically, directly, and unequivocally, within a few words of mentioning the crime, calls for the possibility of death for those individuals who are convicted of it. Thus, Congress made abundantly clear the particular heinousness of the crime of treason.

ENDNOTE

We continue our exposition of the crime of treason in forthcoming articles. Our purpose is to ascertain whether a reasonable legal basis exists under our law and under our Constitution to indict Hillary Rodham Clinton on the charge of treason.With less than six weeks remaining before the U.S. Presidential election every American citizen has a critical choice to make. It is absolutely incumbent on all Americans—who care deeply for the continuation of our Country as an independent Sovereign Nation, beholding to no other Nation, subordinated to no other Nation, who truly believes in the rule of law and who holds to our inviolate rights and liberties as codified in our sacred Bill of Rights—to make certain that a likely criminal, Hillary Rodham Clinton, sets not one foot into the White House.There is only one way to prevent a travesty and calamity from ensuing. The stakes could not be higher. Regardless of your past or present Party affiliation, you must cast your vote for Donald Trump.How Donald Trump comports himself as U.S. President is, as we must concede, of concern. This is predicated on specific statements he has made. Yet, the Nation can survive Trump’s excesses. But, the Republic will be well lost if Hillary Clinton—a person who cares little for any American and even less for our Constitution, and especially for our Bill of Rights; and for the continuation of our Country as an independent, sovereign Nation; for our traditions, our culture, and our unique history; for our jurisprudence, and, not least of all, for our system of laws, given clear, ample, and irrefutable evidence of Clinton having broken many of them—actually becomes the 45^th U.S. President.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

HILLARY CLINTON: A FLAWED CHARACTER FOR THOSE WHO SEE THE U.S. AS FLAWED

Individuals are unique and that is to be applauded; but unethical and criminal conduct is never unique, and when such conduct occurs, it is to be brought to light and roundly condemned.

PART ONE OF TWO PARTS

“Those people who will not be governed by God will be ruled by tyrants.” ~ William Penn“We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, and licentiousness, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” ~ John Adams (Letter to the Officers of the First Brigade of the Third Division of the Militia of Massachusetts, 11 October 1798)Hillary Clinton is likely a criminal—not merely a misdemeanant, but, rather, the worst sort of criminal—a felon. Her supporters don’t want to acknowledge it. They certainly don’t want to talk about it. But they must accept the truth of it even as they choose to ignore the searing reality behind it; the transparently clear evidence for it.Moreover, even though Hillary Clinton, to date, has not been indicted on felony criminal charges, this does not mean that Hillary Clinton did not commit one or more felonies as Secretary of State. The failure of the F.B.I. to recommend an indictment to the Attorney General and the failure of the Attorney General, Loretta Lynch, to proceed with an indictment regardless of the F.B.I.’s recommendation, does not entail that Hillary Clinton didn’t commit a crime. This point is contrary to the mainstream media’s take on the matter and it is the very point that supporters of Clinton hang their hat on, postulating that, “after all Hillary Clinton is not a criminal precisely because the Department of Justice failed to bring charges against her.” Hogwash! Probable cause dictates a finding that Hillary Clinton committed several felonies, and the lack of indictment does not obviate the truth of that assertion one iota. At times prosecutors will not charge an individual with a crime for a multitude of reasons, notwithstanding that probable cause exists that an individual did in fact commit a crime. Sometimes evidence of a crime is clear and indisputable, but, the evidence may be tainted. If so, that evidence of a crime will not be admissible in a Court of law, rendering the possibility of a conviction unlikely or moot.Perhaps prosecutors go after “bigger fish to fry” and will agree not to charge an individual with a crime if that individual is willing to “turn State’s evidence” and agree to testify against another in return for leniency or freedom from prosecution. Prosecutorial discretion permits prosecutors to charge a person with all the crimes that appear in a police report or just one or a few of them. Or prosecutors can charge a person with a crime less severe or even more severe than what appears in a police arrest report. Sometimes prosecutors will bend to political pressure to bring charges against an individual when, in their best judgment, they would rather not do so.Contrariwise, as we see here, the Justice Department may decide not to bring charges against a person who, by all reasonable accounts—if we are a Nation of laws and a Nation governed by the rule of law and not by men—should have been indicted on multiple felony criminal charges and on multiple counts within any one felony.Perhaps, Hillary Rodham Clinton, like the major banks, is too big to prosecute. Perhaps, as is increasingly evident, Hillary Clinton is protected by shadowy, sinister, wholly evil, extraordinarily wealthy, and extremely powerful interests both here and abroad, who want their “puppet” in the highest Office of the Land. These secretive, powerful interests want a creature in high Office that has done and will continue to do all that they ask of it and that will be able to deliver ever more sizable returns as President of the United States. So, if the F.B.I., and the entirety of the Justice Department, of which the F.B.I. is a critical component, has not been corrupted, it definitely has been compromised. For probable cause of Clinton’s crimes is clear and irrefutable.Substantive and substantial evidence supports a finding that Hillary Clinton likely violated 18 U.S.C. § 793, “Gathering, transmitting, or losing defense information” because substantive and substantial evidence exists that she mishandled, either intentionally or through gross negligence, classified Government information during her tenure as Secretary of State.Substantive and substantial evidence also supports a finding that Hillary Clinton likely violated 18 U.S.C. § 1001 is titled, “Statements or Entries Generally,” because substantive evidence exists that she lied to the F.B.I., during the Bureau’s criminal investigation. Substantive and substantial evidence supports a finding, third, that Hillary Clinton likely violated 18 U.S.C. § 201, titled, "Bribery of public officials and witnesses," because substantive and substantial evidence exists that, while serving as Secretary of State, both she and her husband utilized the Bill, Hillary & Chelsea Clinton Foundation as an illegal conduit through which wealthy donors— including individuals, foreign governments, NGOs, and multinational corporations—paid the Clintons handsomely for personal favorable treatment at the expense of the American people and in contravention of the U.S. Constitution and in contravention of our Nation’s laws. The offering of bribes to public officials and the taking of bribes by public officials is a serious federal offense.The penalty for conviction on any one of the aforementioned laws includes incarceration in federal prison—incarceration for several years.It is unlikely that a person who is convicted of a felony can obtain employment with the federal Government—whether as a low-level civil servant, or one who holds super-grade under the General Schedule of the U.S. Government service. The F.B.I., for example, will not hire a person who has been convicted of a felony. One can only wonder whether the F.B.I. would seriously consider hiring Hillary Rodham Clinton for any position in the Bureau if she were to seek employment with the Bureau. Would all her sins be forgiven? Not hardly!Of Course, the Director of the F.B.I., James B. Comey, had made a recommendation to the Attorney General, Loretta Lynch, not to indict Hillary Rodham Clinton, and Loretta Lynch, not surprisingly, accepted that recommendation. But, one would be hard-pressed to believe that James Comey would permit Hillary Rodham Clinton to work for the F.B.I. as an agent of the F.B.I. or, for that matter, as a clerk-typist within the F.B.I., based on what he had learned about her—a tidbit, no doubt, of what the public has learned about Clinton’s misconduct—and what he shared with the American public in his unprecedented statement to the American public, on July 5, 2016, the day following and marking our day of independence from tyranny. James Comey made abundantly clear to the American people that Clinton’s mishandling of Government information falls into the category of “extremely careless.”Would James Comey permit the hiring of such a person to handle F.B.I. information? And, if Hillary Clinton was extremely careless in handling classified information coming across her desk as Secretary of State, is it not likely she would be just as careless in her handling of classified federal Government information that comes across her desk as “U.S. President” Hillary Clinton?U.S. President Barack Obama, for his part, doesn’t seem to mind. He obviously doesn’t care whether Hillary Rodham Clinton mishandled Government information in her capacity as Secretary of State, for he was off campaigning with her the very day James Comey delivered his statement to the American people, —a statement clearly damning Clinton even as Comey refused, for some unexplained and inexplicable reason, to recommend indictment, assuming that he, otherwise, wasn't compelled to recommend, to the Attorney General, no indictment on felony charges against Clinton.And, what is one to make of Obama’s assertions against Donald Trump. The President casts aspersions on Donald Trump, whom the F.B.I. has never investigated for federal crimes amounting to serious felonies and whom the F.B.I. never had to investigate for federal crimes amounting to felonies. Yet Obama tells the American people that Hillary Rodham Clinton is admirably suited to run this Country. Obama says this, oddly enough, even as Director Comey certainly must now—especially now—have serious doubts about Clinton’s ability to lead this Country—serious doubts based on the fact that the F.B.I. had a rational basis to undertake its criminal investigation of Clinton for possible violations of federal law in the first place—very serious violations of federal law—violations of specific federal law amounting to felonies. The sound conclusion to be drawn is this: probable cause exists that Hillary Clinton committed multiple felonies. This is not mere speculation. This is predicated on the findings of the Bureau as illuminated for the American people through the Director’s candid July 5, 2016 statement to the American people.So, whether Director Comey recommended an indictment of Hillary Rodham Clinton or not, that is beside the point because there is nothing in the Director’s July 5, 2016 statement to the American people that vindicates Clinton. He certainly didn’t say that Clinton did not commit a crime. To the contrary, the Director’s statement makes clear that the F.B.I. believes—contrary to the conclusions drawn by some mainstream media publications that Clinton did not violate Federal law—that she did in fact commit a crime—that the evidence supports a finding that Clinton did in fact commit more than one federal crime and that the evidence supports a finding that she committed federal crimes over an extended period of time—several instances of misconduct of each crime over an extended period of time.James B. Comey, then, did not give Hillary Rodham Clinton "a free pass" or “a clean bill of health,” when he failed to recommend an indictment against her on charges of violating federal law. Indeed, Comey’s arguments for not recommending indictment are so lame, when juxtaposed with the clear, cogent, and comprehensive litany of wrongdoing by Clinton that one comes away suspecting that Comey expects—indeed wants—the public to see through the obvious weaknesses of his arguments in support of not recommending an indictment of Clinton on federal criminal charges.First, Comey says, in his statement to the American public that, "although there is evidence of potential violations of the statutes regarding the handling of classified information, our judgment is that no reasonable prosecutor would bring such a case." That is all well and good, but for the fact that the F.B.I. wouldn't be prosecuting Hillary Clinton; the Criminal Division of the Justice Department would be handling the prosecution of Clinton and it is for the Criminal Division of the Justice Department, not for the F.B.I., to determine whether to proceed with the prosecution. So it is the Criminal Division's call whether or not, ultimately, to prosecute Clinton. There is certainly sufficient evidence to warrant a recommendation of the F.B.I. to the Attorney General. James Comey interjected a matter into his decision to recommend an indictment or not that isn't his to make. As Comey said, in that very same statement to American public, "in our system, the prosecutors make the decisions about whether charges are appropriate based on evidence the FBI has helped collect." The F.B.I. collected substantive and substantial evidence of crimes. So, if the prosecutors within the Criminal Division of the Justice Department make the decision whether charges are appropriate, why would Comey attempt to preclude the prosecutors in the Justice Department from making that decision to prosecute? Of course, the Attorney General, Loretta Lynch, could have indicted Hillary Clinton, regardless of the decision of the F.B.I. She said, though, that she would abide by the recommendation of the F.B.I., which is not what she said originally. The Attorney General is supposed to exercise independent judgment. Did she know what Comey's decision would be prior to Comey's statement to the public? Sure she knew. She must have known, just as Obama must have known, as he was flying off with Hillary Clinton, campaigning with her the very day Comey was delivering his unprecedented statement to the American public on July 5, 2016. The Director said that no one knew beforehand what he would be saying in his statement--that he had not coordinated his remarks with any one in the Justice Department or with any other part of government. That may be true. We can take that at face value. But, then, that is not to say, that Comey didn't inform the President and the Attorney General what his decision would be. They knew. They must have known, for if they didn't know, the Attorney General would not have expressed confidence in asserting that she would abide by the F.B.I. Director's decision, whatever that decision might be, and the U.S. President, for his part, would not have been encouraged to campaign with Hillary Clinton before he knew, with absolute certainty, what Comey's decision would be. For, how would it look for the President and for the Nation for Obama to be seen campaigning with Hillary Clinton on the very day that the F.B.I. Director asserts that he, the Director of the F.B.I., will be recommending indictment of Hillary Clinton on multiple federal felony charges?Second, Comey, asserts, "In looking back at our investigations into mishandling or removal of classified information, we cannot find a case that would support bringing criminal charges on these facts. All the cases prosecuted involved some combination of: clearly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here." That assertion suggests that the only time a prosecutor will bring a case is when there is specific case precedent for it. That is false. Precedent is always a great thing to have. It makes a conviction virtually certain. But, it is very rare  for a prosecutor to find two cases that have essentially identical facts. Rather, a prosecutor looks to see whether a given set of facts comply with the elements of a crime as set forth in statute. If they do, that is a sufficient basis to seriously consider bringing charges against an individual. But, again, whether the Criminal Division of the Justice Department chooses to prosecute or not, that is a decision for the Criminal Division, together with the Attorney General, to make. That is not a matter for the F.B.I. to decide because, again, the F.B.I. would not be prosecuting the case. The Criminal Division of the Justice Department has responsibility for that.Third, Comey stresses the lack of finding intentional or willful misconduct by Hillary Clinton in the mishandling of classified Government information as a ground for not recommending indictment. That assertion doesn't follow from the litany of damning evidence he presents to the public in his statement. But, be that as it may, the Statute, U.S.C. § 793, “Gathering, transmitting, or losing defense information”  doesn't require that intentional or willful misconduct be present as part of the crime, "gross negligence" is sufficient--a lesser standard. Comey's failure to even mention "gross negligence"--curiously, he does say, in his statement, that, Clinton was "extremely careless" in her handling of classified government information, which is essentially the same thing as "gross negligence"--illustrates sloppiness in Comey's remarks against recommending indictment of Clinton on federal criminal charges, and that sloppiness stands in stark and marked contrast to the cogency, the clarity, the precision in his detailing of Clinton's misconduct in that very same statement. One can only suspect that the Director of the F.B.I. intended for the American public--and certainly for attorneys--to see through the charade, to recognize that the F.B.I. has been compromised but that he feels, just the same, the need--perhaps for his own legacy--to let the public know that he had no choice in the matter--that the F.B.I., as with the entirety of the Executive Branch, does not serve the public--that something sinister and profane--even evil--has taken over our Government.Regardless, Comey’s statement to the American people, in its totality, makes very clear what he thinks of Hillary Clinton’s conduct as Secretary of State. The portrait the Director of the F.B.I. has painted of Hillary Clinton, for the American People's purview, is not a flattering one.So, another logical inference to draw from Comey’s July 5, 2016 statement to the American people is that the Director believes Hillary Rodham Clinton’s behavior as Secretary of State is morally reprehensible, and that Clinton is morally unfit to hold any position of responsibility in Government—least of all the position of President of the United States.Yet, Barack Obama continues to sing his praises of Clinton and at one and the same time casts aspersions on Trump. There is to be seen a marked inconsistency between what the public is to gather from Comey’s statement to the American people about Clinton’s conduct and what the President, Barack Obama, would have the American people believe about Clinton. Given that inconsistency, a rational person can and should dismiss, out-of-hand, Obama’s negative statements against Trump, as those statements are facially nonsensical in light of Obama’s support for a person who could not obtain employment with the F.B.I. had Clinton desired to do so because she is likely a criminal and she is certainly a security risk.In fact, Hillary Clinton would have a devil of a time securing a job with any federal agency given, one, the fact of a lengthy, intensive, and comprehensive investigation into her actions as a Cabinet Level Official of the federal Government; two, given the F.B.I.’s damning report against her and; and, three, given the fact that she is a security risk.Of course, Barack Obama has a vested interest in Hillary Clinton, for he is interested in seeing the continuation of his legacy. James Comey, though, has no vested interest in a Clinton candidacy and he certainly has no desire to support a likely criminal for President of the United States.The continuation of Obama’s legacy is something Hillary Clinton intends to promote. That legacy is something Donald Trump has no intention of promoting. None of this seems to trouble Obama, for he continues to sing his praises of Clinton and consistently maintains she is fit to serve as U.S. President. But, then, the American public should not really be surprised; nor should the public put stock in what Barack Obama has to say about Clinton. After all, Obama has, through Executive Order, made it easier for convicted felons to gain employment with the Federal Government.See, for example, the New York Post article, titled, "Obama makes it easier for felons to become government workers." That should tell the American public all it needs to know of the true worth of Obama’s remarks concerning who is and who isn’t capable of serving as President of the United States.But, it isn’t Obama that the American people need long concern themselves with. He has done his damage to this Country. One would think the American people, who voted for him, would have learned from their mistakes. For, one tacit assumption can be drawn from his remarks, as he supports Clinton and attacks Trump.A vote for Clinton is a vote for the extension of the Administrations of both Obama and Bill Clinton. Beyond the obviousness of that assertion, it should trouble any American to elect to the highest Office in the Land, a person who likely would not—indeed, probably could not—be hired at the lowest General Schedule pay Grade of the Federal Government were she to apply for a job with the Federal Government; for, a person who applies for a job with the Federal Government must undergo an F.B.I. investigation.It beggars belief that any federal agency or department would hire a person whom the F.B.I. had investigated for serious violations of federal law, regardless of the outcome of those investigation, notwithstanding Obama’s Executive Order, making it easier for criminals to secure employment in the federal Government. It is by the mere fact that the F.B.I., armed with substantive and substantial evidence of Hillary Clinton’s criminal wrongdoing, and it is by predicate acts that gave the Bureau jurisdiction to investigate Hillary Clinton at all, that Americans should think long and hard before supporting Hillary Clinton for U.S. President.Did the F.B.I. investigate Clinton for any other crimes? Is there a legitimate basis for concluding that Clinton broke any other federal laws? Did Hillary Clinton likely commit the most serious crime that any American citizen can be charged with? That is the topic of discussion in Part 2 of this article and in succeeding articles._________________________________________

HILLARY RODHAM CLINTON: A QUESTION OF TREASON

PART TWO OF TWO PARTS

ALL ELSE MAY BE FORGIVEN: THE CRIME OF TREASON CANNOT! AND THE SIN OF TREACHERY TO GOD AND COUNTRY MUST NOT!THE INFERNO CANTO XXXIICIRCLE NINE: COCYTUS ROUND TWO: ANTENORAThe Treacherous to CountryAt the bottom of the well Dante finds himself on a huge frozen lake. This is COCYTUS, the NINTH CIRCLE, the fourth and last great water of Hell, and here, fixed in the ice, each according to his guilt are punished sinners guilty of TREACHERY AGAINST THOSE TO WHOM THEY WERE BOUND BY SPECIAL TIES.The ice is divided into four concentric rings marked only by the different positions of the damned within the ice. This is Dante’s symbolic equivalent of the final guilt. The treacheries of these souls were denials of love (which is God) and of all human warmth. Only the remorseless dead center of the ice will serve to express their natures. As they denied God’s love, so are they furthest removed from the light and warmth of His Sun. As they denied all human ties, so are they bound only by the unyielding ice. ~Ciardi, John; Alighieri, Dante; MacAllister, Archibald. The Inferno (Signet Classics) Penguin Publishing Group

DOES HILLARY CLINTON’S MISCONDUCT EXTEND TO TREASON AGAINST THE UNITED STATES AND THE AMERICAN PEOPLE?

Hillary Rodham Clinton is unfit to serve as President of the United States. In fact Hillary Rodham Clinton is unfit to serve as a federal Government official in any capacity of responsibility. These two straightforward assertions are not suppositions. They are valid and logical inferences drawn from several incontrovertible facts.One, concrete evidence supports a finding Hillary Rodham Clinton had, during her tenure as Secretary of State, a Cabinet level position in the Obama Administration, either intentionally or through gross negligence, mishandled classified Government information. Doing so constitutes a serious breach of federal law, amounting to a felony if convicted.Two, concrete evidence supports a finding that Hillary Rodham Clinton had knowingly obstructed justice by lying to federal officers engaged in the legitimate criminal investigation of Clinton’s conduct. This is a serious breach of federal law, amounting to a felony if convicted.Three, concrete evidence supports a finding that Hillary Clinton engaged in an ongoing practice of corruption, having used the Bill, Hillary & Chelsea Foundation as a conduit for the selling of favors through the Department of State—a high level component of the Executive Branch of Government—to wealthy, prominent, and powerful individuals, and to multinational corporations, and to non-governmental organizations (“NGO’s”), and to foreign governments, some clearly unfriendly to the U.S. and to U.S., interests in exchange for hard cold cash. Bribery is a serious breach of federal law, amounting to a felony if convicted.Conviction on any one of the above mentioned crimes is sufficient to send a person to federal prison for several years.The mere possibility that a person has engaged in any one or more of the above crimes raises serious doubt about that person’s ability to serve this Country, and about that person’s character, namely and specifically, that person’s honesty, integrity, sincerity, sense of values, and willingness to sacrifice his or her personal needs and desires and wishes to the more sacred needs of duty to Country, duty to our Country’s Constitution and to its system of laws, and duty to our citizenry; and that duty of service does not extend to the citizenry of other Countries, contrary to what the present U.S. President, Barack Obama, says and what Hillary Clinton also ascribes to.But, let us consider whether Hillary Rodham Clinton, in her seeming service to the American people as Secretary of State, transgressed in any other way. Let us consider whether Hillary Clinton committed a crime so serious, so ignoble, and so heinous, that every other crime pales in comparison and significance. Let us consider whether evidence supports a finding that Hillary Rodham Clinton’s wrongful conduct, as Secretary of State in the Obama Administration, amounts to a crime directed against the very Sovereignty of this Nation, against this Nation’s Constitution, and against the citizens of the United States.Let us in fact ask this question: apart from likely committing serious felonies during her tenure as Secretary of State in the Obama Administration that have been detailed, did Hillary Clinton likely commit the most heinous crime of all—a crime so horrific that no one, from either political Party, will talk openly about it; that no one in either political Party will even speculate about? Did Hillary Clinton commit treason against this Nation? Is there a basis, in either the U.S. Constitution or federal Statute, or both, to indict Hillary Clinton on one or multiple counts of treason? And, may we not consider, concomitantly, that, apart from considering whether Hillary Rodham Clinton committed the crime of Treason, under our Constitution and under Federal Law, did she not also break God’s law, and commit the cardinal sin of treachery to Country?Now, to be sure, the Arbalest Quarrel is not the first party to consider the issue of treason in relation to Hillary Clinton’s conduct as Secretary of State. Some commentators and some websites have heretofore broached the subject of treason in connection with Clinton’s conduct as Secretary of State. Indeed, some commentators and some websites have even asserted, categorically, that Hillary Clinton did commit treason. But—and this is an important but—it is one thing to call a person a “traitor,” as rhetorical hyperbole, and this is more often the case than not. It is quite another to apply the term, ‘traitor,’ to a person from a legal standpoint, with all the consequences that such assertion constitutes. And, it is from the legal perspective—and not from the matter-of-fact, colloquial, rhetorical, man-in-the-street standpoint and perspective—that we look at treason here, that we consider the legal grounds, if any, for legitimately, realistically, and appropriately positing a charge of treason on Hillary Rodham Clinton.In undertaking this investigation into the merits of bringing a charge of treason against Hillary Clinton, we must always bear in mind that the worst citizens among us, along with the best, do have and should have, that protection afforded all citizens of the United States, under the Sixth Amendment to the United States Constitution. The Sixth Amendment to the U.S. Constitution says clearly, cogently, succinctly:“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense." The Sixth Amendment guarantee holds true for me; it holds true for you; and it holds true for Hillary Rodham Clinton. It holds true for all citizens of the United States.The American citizen’s natural right to defend him or herself against a criminal charge levied against that citizen is a right no less to be honored and safeguarded than the natural right to be free from unreasonable searches and seizures, as codified in the Fourth Amendment to the United States Constitution; and no less to be honored and safeguarded than the natural right of an American citizen to speak his or her mind openly and freely, as codified in the First Amendment to the United States Constitution, uninhibited by and irrespective of the current penchant for “political and social correctness” as thrust on us all because of the personal peculiar sensitivity of a few; and no less to be honored and safeguarded than the natural right of the American citizen to keep and bear arms, as codified under the Second Amendment to the United States Constitution. Also, when looking at the possibility that an American citizen’s conduct amounts to a crime—whether considered relatively minor in scope such as an inoffensive infraction, or one codified in our law that is so horrific that we consider it, as well, a mortal sin—a crime against nature and against God’s strictures—we must consider one’s conduct from the standpoint of federal and State statute and from the standpoint of individual State Constitutions and from the standpoint of the U.S. Constitution.Our criminal codes, whether enacted by State Legislatures or by the U.S. Congress, and the U.S. Constitution, and the Constitutions of the various States establish, one, the fact that certain conduct amounts to a punishable offense; two, the specific elements necessary to establish a prima facie case for the existence of a punishable offense; and, three, the penalties for conviction on that offense. In other words, our system of laws pertaining to criminal behavior requires the codification in the U.S. Constitution or the in the Constitutions of the States or in federal or State statute saying that particular behavior is criminal.So, under the U.S. Constitution and under State Constitutions, and under our federal and State system of criminal law, it is not sufficient a particular species of behavior be deemed reprehensible in order to exact a penalty for the commission of it. That is to say, if a person’s conduct isn’t statutorily prohibited, then that person’s conduct does not rise to the level of a crime, upon which a person can be charged and tried in a court of competent jurisdiction, and, if found guilty, assessed a penalty once the prohibited conduct, for which the person has been formally charged and tried, has been finally, and firmly, established and adjudicated.We point this out in exacting detail here for a reason. We do this because the discussion of treason, from a legal and philosophical perspective is not so easy to understand and to fathom as some might think.The subject of treason, seemingly simple to understand in a straightforward colloquial sense, is actually quite opaque, difficult to comprehend and to apply in the legal sense. And, it is the legal sense of “treason” you must come to know, that you must become familiar with, that you must be receptive to and come to appreciate that is important here, even if the subject matter is abstruse.That can’t be helped. Indeed our founders struggled with the very notion and concept of ‘treason’ and we’ll explain why and how in upcoming articles.So, the rhetorical use of the term, ‘treason,’ as applied, by some, to Clinton’s conduct as Secretary of State, does nothing to help us to effectively defeat Hillary Clinton on that ground. So saying, doesn’t make it so. Simply calling Hillary Clinton a traitor does not, in the mere assertion, serve to persuade anyone who is predisposed to see Clinton as someone suitable to lead this Country that she isn’t.Rather, to call Clinton a “traitor” in the absence of a good legal ground for so saying simply informs those who support Clinton in her quest for the U.S. Presidency, that those who call Clinton a traitor are wrong-headed. Better then not to use the term, ‘treason,’ or ‘traitor’ in reference to Hillary Clinton at all. For, one simply displays his or her own ineptitude. So, we must be cautious. And, at worst, so saying opens one up to a defamation action. So, we must be circumspect and careful.In the next few articles, The Arbalest Quarrel shall discuss treason, from a legal, historical, and philosophical perspective. If there is a legal basis for charging Hillary Rodham Clinton with the crime of treason, we will present the grounds for doing so. In the articles that follow we will explore the legal basis, if any, for doing just that.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

PAY TO PLAY: THE CLINTON FOUNDATION’S OPEN SECRET AND SILENT PURPOSE

Bribery At Its Worst: Selling Out America For Cold, Hard Cash

“Whereas it appeareth that however certain forms of government are better calculated than others to protect individuals in the free exercise of their natural rights, and are at the same time themselves better guarded against degeneracy, yet experience hath shewn, that even under the best forms, those entrusted with power have, in time, and by slow operations, perverted it into tyranny; and it is believed that the most effectual means of preventing this would be, to illuminate, as far as practicable, the minds of the people at large, . . . whence it becomes expedient for promoting the publick happiness that those persons, whom nature hath endowed with genius and virtue, should be rendered by liberal education worthy to receive, and able to guard the sacred deposit of the rights and liberties of their fellow citizens, and that they should be called to that charge without regard to wealth, birth or accidental condition of circumstance.” ~Thomas Jefferson, Writings: Notes on the State of Virginia/Public & Private PapersGive the Clintons one dollar, and they will send you on your way. Give the Clintons one thousand dollars, and they will deign to give you their ear. Give the Clintons one million dollars, and they will bend American policy to your advantage. Give the Clintons ten million dollars, and they will give you the keys to our Nation, laughingly sending our Nation, its People, the sacred Constitution of our Nation, and the sacred rights and liberties of the American People—all to the dark abyss of hell. ~Personal Reflections on the Clinton Dynasty by the Arbalest Quarrel.

BRIEF SUMMARY OF RECENT ARBALEST QUARREL ARTICLES ON THE CLINTON SCANDAL

American citizens who believe in the sanctity of and who work diligently to preserve and strengthen our sacred Second Amendment right to keep and bear arms believe in the inviolability of the United States Constitution. Even citizens who fail to appreciate the Second Amendment and who seek to upend it are reluctant to relinquish the U.S. Constitution in its entirety and prepared to redraft a new one. Through her actions we know Hillary Rodham Clinton scoffs at the import and purport of the Second Amendment, belittles those who support it, and has little, if any regard, for the rest of the Constitution. She believes, wrongly, that our system of laws, grounded in our Constitution, and comprising a massive body of case law, statute, and jurisprudence do not apply to her.Under her watch as an employee of the federal Government, in her capacity as Secretary of State, a Cabinet level position in the Obama Administration, Hillary Clinton mishandled classified Government information. That is fact. There is no longer any reasonable doubt about it.What does the mishandling of classified information mean? It means that legal grounds exist for charging Hillary Clinton with a felony. It means that legal grounds exist for indicting Hillary Clinton on multiple counts of violating federal law, namely and particularly, 18 U.S.C. § 793. That Statute falls within Chapter 37.Chapter 37 is titled, “Espionage and Censorship.” 18 U.S.C. § 793 is titled, “Gathering, transmitting, or losing defense information.” Specifically, 18 U.S.C. § 793(f) and (g) reads, “Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of his trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—Shall be fined under this title or imprisoned not more than ten years, or both.”Mishandling of classified information cannot be excused or cavalierly dismissed on the ground of poor judgment or innocent mistake. Hillary Clinton’s actions were calculated and callous. Hillary Clinton’s misdeeds, scrupulously catalogued by the F.B.I.—laid out in clear, cogent, and horrific detail by James B. Comey, Director of the F.B.I., in an unprecedented statement to the American people, delivered over the airwaves, on July 5, 2016, one day after the date of our Independence from tyranny—unquestionably supports Hillary Rodham Clinton’s indictment under specific federal law. Hillary Clinton compounded her misdeeds by lying about them. Lying to federal officials support Hillary Clinton’s indictment under another federal law: 18 U.S.C. § 1001 of Chapter 37.

A THIRD FEDERAL CRIME—AND ANOTHER FELONY—THAT BOTH BILL AND HILLARY CLINTON MUST ANSWER FOR: BRIBERY

Lost, though, in the moment of the Hillary Clinton private email server scandal and her intentional cover-up of her scandalous outrageous mishandling of classified data is discussion of the Bill, Hillary & Chelsea Clinton Foundation scandal. The public knows precious little about the relationship between the State Department’s foreign policy decisions and monies flowing into the Foundation. But news is trickling out. The American public has the right to know about the relationship between the State Department’s foreign policy decisions and monies flowing into the Clinton Foundation. The American public should not and must not be kept in the dark. It is patently clear that any seemingly altruistic activities of the Bill, Hillary & Chelsea Clinton Foundation are merely “a front,” “a mask,” for the sale of political favors to those willing and able to pay for such favorable treatment. The Department of Justice is silent about this. Why?The Bill, Hillary & Chelsea Foundation isn’t simply a vehicle for the performance of altruistic activities, as the Clintons claim publically. The Foundation masks seedy, nefarious, illegal activities, undermining the sovereignty of our Nation and the sanctity of our Constitution, all the while contributing to the Clintons’ accumulation of personal wealth, on a massive scale. The Clintons would deny this, of course. On the Foundation’s website, the Clintons provide only this one innocuous remark, concerning the purpose of their Foundation:“We convene businesses, governments, NGOs, and individuals to improve global health and wellness, increase opportunity for girls and women, reduce childhood obesity, create economic opportunity and growth, and help communities address the effects of climate change.” Stated purpose of the Clinton Foundation as set forth on its website. Stated purpose and goal of the Bill, Hillary & Chelsea Clinton Foundation. Pay particular attention to the first sentence of the Clinton Foundation’s stated purpose. The Clintons claim their Foundation “convenes” businesses, Governments, NGOs (nongovernmental organizations), and individuals for altruistic purposes. But, do these businesses include international holding companies and multinational corporations? Do these Governments include Russia, China, Iran, Saudi Arabia, and many others? Do these individuals include foreign nationals and wealthy, powerful oligarchs? Are these NGOs “authentic” NGOs? If so, they are tied to the United Nations. That alone should give Americans pause.

DID HILLARY CLINTON USE PRIVATE EMAIL SERVERS TO COVER HER TRACKS? OBVIOUSLY, SO!

The Clintons—Bill and Hillary—do not like to discuss the businesses, governments, individuals and NGOs who have poured hundreds of millions of dollars into their Foundation’s coffers. But the American people have the right to know and, indeed, the duty to investigate the motives of these multinational businesses, these foreign governments, these billionaires and power brokers, and these NGOs. What are their desires, wishes, and goals for flooding the Clinton Foundation, collectively, with hundreds of millions of dollars? Might not their motives transcend mere altruistic concerns? Is that not a rational inference to draw? Did Secretary of State Hillary Clinton help formulate U.S. foreign policy on the basis of monies paid to the Foundation—irrespective of how that policy might impact the well-being and security of our Nation and our People? Is that not the one billion dollar question?Did not these multinational corporations, these foreign governments, these billionaires, these UN sponsored NGOs knowingly purchase the U.S. Government policy they wanted through monies paid to the Clinton Foundation? If so, those payments amount to bribes paid to the Clintons through their Foundation. The Clinton Foundation is, then, essentially a conduit, a front for illegal payments to the Clintons—a vehicle for doling out favors—in unlawful defiance of our Nation’s laws—but favors the Clintons are in a position to deliver because of their influence and power and ability to warp and bend government policy as they wish—favors the Clintons are unabashedly willing to deliver to those ready and able and willing to pay handsomely for it.Let’s take a look.

COLLUSION BETWEEN THE STATE DEPARTMENT AND THE BILL, HILLARY & CHELSEA FOUNDATION

The New York Times reported, in 2015, in a story captioned, “Cash Flowed to Clinton Foundation Amid Russian Uranium Deal,” “how the Russian atomic energy agency, Rosatom, had taken over a Canadian company with uranium-mining stakes stretching from Central Asia to the American West. The deal made Rosatom one of the world’s largest uranium producers and brought Mr. Putin closer to his goal of controlling much of the global uranium supply chain.”The Times article goes on to say, “But the untold story behind that story is one that involves not just the Russian president, but also a former American president and a woman who would like to be the next one.At the heart of the tale are several men, leaders of the Canadian mining industry, who have been major donors to the charitable endeavors of former President Bill Clinton and his family. Members of that group built, financed and eventually sold off to the Russians a company that would become known as Uranium One.Beyond mines in Kazakhstan that are among the most lucrative in the world, the sale gave the Russians control of one-fifth of all uranium production capacity in the United States. Since uranium is considered a strategic asset, with implications for national security, the deal had to be approved by a committee composed of representatives from a number of United States government agencies. Among the agencies that eventually signed off was the State Department, then headed by Mr. Clinton’s wife, Hillary Rodham Clinton.” The New York Times categorically states that Hillary Rodham Clinton used her Department for personal gain. Worse yet, both of the Clintons—Bill and Hillary—allowed their lust for personal wealth to override their duty to protect and defend our Country. Russia is our adversary. Clintons’ supporters and cronies assert that Donald Trump threatens our national security. Yet, here the Clintons sit actually selling out our Country for personal gain. Whatever speculations Hillary Clinton’s supporters may cast upon Donald Trump, Americans need not resort to speculation to know that Bill Clinton, a past United States President, and Hillary Clinton, a past Secretary of State and U.S. Senator who seeks to become the 45^th President of the United States, do not, never have, and never will have our Nation’s best interests at heart. Their duty to Country will never outweigh their greed, and their lust for power and personal aggrandizement.As reported by the weblog, Politifact, the Clinton Foundation also received large sums of money from Middle Eastern Countries, namely, Saudi Arabia, Oman, Morocco, and Yemen. Receipt of monies from Yemen is particularly troubling, since terrorist groups are extremely active in that Country. The U.S. has conducted Drone strikes regularly in that Country, as reported in that same Politifact article.The Daily Caller reports that the Clinton Foundation took in nearly one hundred million dollars from other autocratic Middle Eastern Countries.Fox News Reports that the Clinton Foundation has taken in millions of dollars from Countries that imprison homosexuals. Curiously, Rights Groups, who fervently support the rights of homosexuals and transgender individuals, are notably “silent” about that fact. Why is that? Does that not illustrate hypocrisy?These incidents, of course, are just the tip of the ice-berg. But the gravity of the few incidents mentioned here explains Hillary Clinton’s true reason—the “true true” and “the whole true” for using private email servers. We know now that Clinton deliberately risked the hacking of her personal servers. Her use of private, personal email servers was intentional. She didn’t utilize private, personal email servers to conduct high level federal Government business—servers maintained in her home—as a matter of simple convenience. That rationale, as Hillary Clinton expressly conveyed to the public, is a hopelessly transparent ruse. We can dismiss that ridiculous notion out-of-hand.The American public can reasonably conclude that Hillary Clinton used private, personal email servers, instead of official Government servers to conduct federal Government business, precisely because she found it necessary to cover her tracks. She did so to preclude documentation of the Clinton Foundation’s illegal activities, for posterity, in the National Archives. She did so, as well, to make investigation of the illegal conduct involving the Clinton Foundation, difficult.But, if Hillary Clinton, as Secretary of State, manufactured foreign and domestic policies for the benefit of others, for personal pecuniary gain—channeling those proceeds through the Bill, Hillary & Chelsea Foundation—she committed a federal crime—a felony—beyond the two felonies the public knows about which include: the mishandling of classified Government material, 18 U.S.C. § 793, and lying to a federal official, 18 U.S.C. § 1001. The third federal crime, another felony, is that of bribery. The federal crime of bribery is set down in 18 U.S.C. § 201, titled, "Bribery of Public Officials and Witnesses." The federal crime of Bribery says:

• “For the purpose of this section—

• the term ‘public official’ means Member of Congress, Delegate, or Resident Commissioner, either before or after such official has qualified, or an officer or employee or person acting for or on behalf of the United States, or any department, agency or branch of Government thereof, including the District of Columbia, in any official function, under or by authority of any such department, agency, or branch of Government, or a juror;

• the term ‘person who has been selected to be a public official’ means any person who has been nominated or appointed to be a public official, or has been officially informed that such person will be so nominated or appointed; and

• the term ‘official act’ means any decision or action on any question, matter, cause, suit, proceeding or controversy, which may at any time be pending, or which may by law be brought before any public official, in such official's official capacity, or in such official's place of trust or profit.

• Whoever—

• directly or indirectly, corruptly gives, offers or promises anything of value to any public official or person who has been selected to be a public official, or offers or promises any public official or any person who has been selected to be a public official to give anything of value to any other person or entity, with intent—

• to influence any official act; or

• to influence such public official or person who has been selected to be a public official to commit or aid in committing, or collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

• to induce such public official or such person who has been selected to be a public official to do or omit to do any act in violation of the lawful duty of such official or person;

• being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:

• being influenced in his the performance of any official act;

• being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States; or

• being induced to do or omit to do any act in violation of the official duty of such official or person;

• directly or indirectly, corruptly gives, offers, or promises anything of value to any person, or offers or promises such person to give anything of value to any other person or entity, with intent to influence the testimony under oath or affirmation of such first-mentioned person as a witness upon a trial, hearing, or other proceeding, before any court, any committee of either House or both Houses of Congress, or any agency, commission, or officer authorized by the laws of the United States to hear evidence or take testimony, or with intent to influence such person to absent himself therefrom;

• directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity in return for being influenced in testimony under oath or affirmation as a witness upon any such trial, hearing, or other proceeding, or in return for absenting himself therefrom;

1. shall be fined under this title or not more than three times the monetary equivalent of the thing of value, whichever is greater, or imprisoned for not more than fifteen years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.

• Whoever—

• otherwise than as provided by law for the proper discharge of official duty—

• directly or indirectly gives, offers, or promises anything of value to any public official, former public official, or person selected to be a public official, for or because of any official act performed or to be performed by such public official, former public official, or person selected to be a public official; or

• being a public official, former public official, or person selected to be a public official, otherwise than as provided by law for the proper discharge of official duty, directly or indirectly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally for or because of any official act performed or to be performed by such official or person;

1. shall be fined under this title or imprisoned for not more than two years, or both.”

During the eight and one-half hour Hearing of the Full House Committee on Oversight and Government Reform held on July 7, 2016, in Washington, D.C., U.S. Congressman, Jason Chaffetz, Republican, Utah, pointedly asked the Director of the F.B.I., James Comey, whether the F.B.I. had investigated the Bill, Hillary & Chelsea Clinton Foundation and whether that investigation was “tied” to Hillary Clinton’s use of personal email servers to conduct official Government business. Comey was, on that score, curiously reticent about answering. In fact, he was tight-lipped. CHAFFETZ: Did you look at the Clinton Foundation? COMEY: I’m not going to comment on the existence or non-existence of any other investigations.CHAFFETZ: Was the Clinton Foundation tied into this investigation?COMEY: I'm not going to answer that.That little exchange, concerning the Bill, Hillary & Chelsea Clinton Foundation, is the extent of Congressional inquiry into and the extent of James Comey's responses to Congressman Jason Chaffetz's questioning of the Foundation investigation tie-in to the Hillary Rodham Clinton private email server investigation--conducted by the F.B.I.--in eight and one-half hours of Hearing. Strange! Yet, the American public has a right to know if the Democratic Party’s candidate for President of the United States, Hillary Rodham Clinton, is in bed with multinational businesses, with foreign Governments, with UN affiliated NGOs, and with wealthy, powerful individuals.The simple suggestion that a foundation—any foundation—attracting the influential individuals and entities the Clinton Foundation does, generating hundreds of millions of dollars in revenue, does so because such individuals and entities simply have altruistic concerns and wish for the foundation, to spend the monies received accordingly, does precious little, in itself, to inspire confidence. Rather, and specifically, the machinations of the Bill, Hillary & Chelsea Clinton Foundation inspires incredulity, at least, or otherwise simply defies rational belief.The Clinton Foundation does more—much more. The Clinton Foundation conducts business with major players around the world and generates tens and hundreds of millions of dollars because these players seek to influence foreign and domestic policies that benefit them. They know that Bill and Hillary Clinton wield influence within the highest levels of the U.S. Government. They know the Clintons can deliver! Selling out our Country for personal gain is the Clinton’s raison d’etre. The power brokers know this. They know that Bill and Hillary Clinton can be bought. They know that Bill and Hillary Clinton have been bought in the past, and in the present. They know that U.S. President Hillary Clinton would be willing to sell out our Country, in the future. If Hillary and Bill Clinton have manipulated the direction of this Country to benefit foreign interests and sponsors, to the detriment of U.S. interests and to the detriment of the well-being of the Nation’s citizenry, we must also consider the possibility that the Clintons have committed the most serious crime imaginable—treason.We will, in the next Arbalest Quarrel article, explore the legal grounds for indicting the two on charges of treason—the most heinous crime any American citizen can commit. The F.B.I. Director’s reticence in discussing the machinations of the Bill, Hillary and Chelsea Clinton Foundation may bespeak the worst possible horror for this Nation: that the Clintons and their Foundation is not accountable to or beholding to U.S. law and that the Clinton’s Foundation, backed by their foreign donors, is more powerful than the U.S. Government!Most disheartening and disconcerting is the fact that the Bill, Hillary & Chelsea Clinton Foundation still exists. So, in the event Hillary Rodham Clinton secures the Office of United States President, she will be in the position to use, and will undoubtedly use, and leverage the Office of U.S. President to accumulate, unto the Clinton family, ever large masses of cash. That is bad enough. Worse, Bill and Hillary Clinton will be able to formulate, will have the desire to formulate, and will in fact formulate and implement American domestic and foreign policy to benefit their donors. That policy—sold to the American People—will actually benefit those foreign and domestic actors who remit tens of millions of dollars to the Clintons, through their Foundation. Those donors will expect and will receive favorable treatment—treatment that may and, in many instances, will be detrimental—perhaps severely detrimental—to the well-being of our Nation and to the well-being of our Nation’s citizenry, in contravention to our Nation’s Constitution and to its laws.What can Congress do to prevent the travesty of a Bill and Hillary Dyarchy in this country?

CONGRESS MUST ENACT THE INDEPENDENT COUNSEL REAUTHORIZATION ACT OF 2016 AND MUST DO SO, NOW!

Since the Department of Justice will not perform its duties under the U.S. Constitution, Congress must act to demand integrity of the Executive Branch. A bill is pending before Congress to require integrity of Government: the Independent Counsel Reauthorization Act of 2016. The bill would reenact the Ethics in Government Act of 1978. Two House Republicans, Representative, Rick Allen, Republican from Georgia, and Michael Turner, Republican from Ohio, jointly introduced the new Act of 2016.Where is that bill now? Has the House acted on it? Does it intend to act on it before the General Election in November 2016? Why hasn’t the public heard about it? Are House Republicans stonewalling? If so, why?Enactment of the Independent Counsel Reauthorization Act of 2016 is the best impetus for investigating the serious misconduct of Hillary Clinton as Secretary of State, and the mysterious, likely illegal conduct of both Bill and Hillary Clinton through their “front,” the Bill, Hillary & Chelsea Clinton Foundation.Failure of House Republicans to act on the Independent Counsel Reauthorization Act of 2016, and failure of Senate Republicans to coordinate efforts with the two U.S. Congressman who sponsored this bill, says much of the reluctance of centrist Republicans to mete out justice for Hillary Clinton. Failure to act on the bill, languishing in committee since May 2016, suggests that many Republicans do not take the corruption emanating from and permeating everything the Clinton dynasty does, seriously. We can only surmise that many Republicans in Congress secretly—and some, not so secretly—desire Hillary Clinton to win the U.S. Presidency. We, at the Arbalest Quarrel, do not. We, along with all Americans, who cherish the sanctity and inviolability of our Nation’s Constitution—which has stood the test of time—and who countenance the continued sovereignty of our Nation and of our system of laws, cannot allow this to happen, must not allow this to happen.The Arbalest Quarrel will continue to delve into the criminal conduct of the Clintons in upcoming articles.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

LITTLE WHITE LIES, BIG DAMNABLE LIES, AND HILLARY RODHAM CLINTON “TRUTHS”

“I am a liar, and that’s the truth” said the inhabitant of Crete. Was the Cretan’s assertion a lie or was he telling the truth? ~Epimenides’ Paradox~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~After almost eight months of avoiding a formal Press Conference, Hillary Clinton's handlers decided to loosen Clinton's leash a bit. She spouts this drivel in response to a specific question concerning her position that the Director of the F.B.I., James Comey, said Clinton's responses to F.B.I. questions, posed to her during her interview, were truthful:"I was pointing out in both of those instances, that Director Comey had said that my answers in my FBI interview were truthful. That really is the bottom line here," she said. "What I told the FBI, which he said was truthful, is consistent with what I have said publicly. I may have short-circuited and for that I will try to clarify." Hillary Rodham’s statement in response to a journalist a gathering of black and Hispanic journalists in Washington, D.C., Clinton, on August 6, as reported by CNN.There’s no “bottom line” here—just a bottomless pit, a black hole: a deep, dark abyss constructed on lie upon lie, upon lie, upon lie. Hillary Clinton asserts Director Comey said her answers “were truthful.” That declaration is itself a lie, for that declaration contradicts Director Comey’s testimony before the Full House Committee on Oversight and Government Reform held on July 7, 2016, in Washington, D.C. The Hearing took place two days after the FBI Director delivered an unprecedented statement to the American people, laying out, in clear, cogent, damning detail the nature of and extent of Clinton’s crimes.Congressman Trey Gowdy, Republican, South Carolina, pointedly asked Director Comey whether Hillary Clinton lied to the FBI during the FBI’s interview of Clinton. He said she did.  A portion of that exchange is here:“GOWDY: Good morning, Director Comey. Secretary Clinton said she never sent or received classified information over her private e-mail. Was that true? COMEY: Our investigation found that there was classified information sent — GOWDY: So it was not true? COMEY: That’s what I said. GOWDY: OK. Well, I’m looking for a little shorter answer so you and I are not here quite as long. Secretary Clinton said there was not marked classified on her e-mails either sent or received, was that true? COMEY: That’s not true. There were a small number of portion markings on I think three of the documents. GOWDY: Secretary Clinton said ‘I did not e-mail any classified material to anyone on my e-mail, there is no classified material.’ Was that true? COMEY: There was classified material e-mail. GOWDY: Secretary Clinton said she used just one device. Was that true? COMEY: She used multiple devices during the four years of her term as secretary of State. GOWDY: Secretary Clinton said all work-related e-mails were returned to the State Department. Was that true? COMEY: No. We found work-related e-mails, thousands that were not returned.”The entire eight and one-half hour hearing is available to the public.News groups make much of Hillary Clinton’s use of the expression, “short-circuited,” in her response to a journalist at the August 6, 2016 gathering of black and Hispanic journalists. The news groups were right to do so, for the expression means nothing. Clinton’s handlers came up with it as a useful and deceitful dodge.At the news conference, Hillary Clinton says “she will try to clarify.” Yet she clarified nothing. She never does. She never will. She leaves her listeners ever more puzzled, confused. She lies and obfuscates and keeps diligently to her script, meticulously prepared for her by her speech writers. She tries to sound contrite. She can’t because contrition isn’t in her character.Americans should place more stock in another term Clinton employed at the August 6, 2016 gathering of black and Hispanic journalists. It is a neutral, matter-of-fact word, but one requiring a close look. For it says much of the insidious design to protect Clinton from exposure to legal action. The term is ‘interview.’Now, Clinton did truthfully refer to her meeting with FBI agents as an ‘interview.’ The FBI conducted an interview of Clinton, not a deposition. What’s the difference? The term, ‘deposition,’ is a legal term of art. The term, ‘interview,’ though, has many shades of meaning, colloquial as well as legal.Black’s Law Dictionary, Ninth Edition, defines ‘deposition’ as ‘a witness’s out-of-court testimony that is reduced to writing (usually by a court reporter) for later use in court or for discovery purposes.’ Black’s Law Dictionary, Ninth Edition, defines ‘testimony,’ as ‘Evidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition.’ The word, ‘interview,’ is not defined in Black’s Law Dictionary except in reference to a U.S. Patent and Trademark Office form which has no application here. But the distinction between an interview and a deposition has particular import apropos of the Clinton matter.The FBI didn’t record Clinton’s responses to the FBI agents’ questions, and Clinton didn’t formally swear, under oath, that her responses were truthful.  This means the FBI didn’t formally depose Hillary Clinton. So her assertions cannot be used at trial.Why didn’t the FBI formally depose Clinton? Certainly, the enormity of the allegations against her would seem to demand that. Why did Hillary Clinton create a personal email server system? Didn’t she appreciate the risks in doing so? Couldn’t she appreciate the risks? What does her creation of a personal email system, leading to the mishandling of secret Government information say about her judgment as a high level Government official? Again, we ask: why didn’t FBI agents formally depose or, at least, electronically record Hillary Clinton’s responses to their questions?Curiously, there is precedent for refraining from recording an interview. Both State and federal law enforcement officers had traditionally opposed recording of interviews of criminal suspects. Of course, if interviews aren’t recorded, in some manner, and if the interviewee's declarations are not under oath or affirmation, they have little if any evidentiary use in Court proceedings. But, perhaps, then, that’s the point of dispensing with the recording of interviews. Perhaps, then, that’s the point of dispensing with formal depositions. Let’s look at the history behind this approach to dispense with formal depositions in these matters.Prior to 2003, only two States required their law enforcement officers to electronically record interviews and, until recently, federal Departments, including the Department of Justice resisted recording interviews. However, “[s]ince 2003, the number of states requiring law enforcement officers to electronically record some or all interviews conducted with suspects in their custody has grown from two to at least twenty-two. Until recently, the U.S. Department of Justice (DOJ) has resisted this trend; under its previous policy, the DOJ's three chief investigative agencies -- the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) -- rarely recorded custodial interviews. However, on May 22, 2014, the DOJ announced a substantial change in its policy, creating a presumption that FBI, DEA, ATF, and United States Marshals Service (USMS) agents will electronically record custodial interviews.” Recent Administrative Policy: Criminal Procedure -- Custodial Interviews -- Department Of Justice Institutes Presumption That Agents Will Electronically Record Custodial Interviews, Dep't Of Justice, New Department Policy Concerning Electronic Recording Of Statements (2014)., 128 Harv. L. Rev. 1552 (March 10, 2015).The Department of Justice’s new policy, adopted in 2014, concerning recording custodial interviews changed. At the time of adoption of the new policy, Eric Holder was the Attorney General, appointed by President Barack Obama.Actually, the new policy was a welcome change. For, [t]he DOJ's new policy, which went into effect on July 11, 2014, flips its previous presumption against recording to one in favor of it. Agents no longer need to obtain supervisory approval to record interviews: FBI, DEA, ATF, and USMS agents are now expected to electronically record statements of individuals suspected of any federal crime in their custody when in a 'place of detention with suitable recording equipment.'" Id. Why did the DOJ change its stance concerning recording custodial interviews?“Before the recent shift, the DOJ's position was that custodial interviews generally should not be recorded. The major federal law enforcement agencies strongly resisted recording interrogations, citing fears that recording would interfere with rapport building, lay juries and judges would misinterpret acceptable interviewing techniques as improper, and the implementation would be logistically difficult. These concerns led agencies to erect barriers to electronic recording and to rely instead on note-taking and agent memory. For example, the FBI's standard procedure was for an agent to take notes during the interview and later compile a summary known as a Form 302. The Agency had an exception to this practice that allowed recording if the Special Agent in Charge (SAC) ‘deem[ed] it advisable.’ In all but the three largest FBI field offices, there is one SAC who runs the entire office. Therefore, although the FBI claimed that its policy allowed ‘flexibility’ in deciding when to record interviews, internal DOJ analysis suggests that the policy actually inhibited agents' ability to exercise discretion regarding whether or not to record their own interviews, and created a ‘heavy presumption’ against recording. Recent developments, however, expose the shortcomings of the DOJ's previous policy. After decades of experience on the state level with recording policies, many of the FBI's concerns about recording interviews have been proven false. . . . And even where the concerns may prove well-founded, exceptions to recording requirements can easily address the problem; for instance, an exception could be granted for technological difficulties.” Id.Note: the policy for recording of interviews refers to those individuals in custody. But, the FBI never held Clinton in federal custody. So the DOJ’s new policy, favoring recording interviews, doesn’t directly apply here. Still, one might ask why—given the severity of Clinton’s conduct and the damage she inflicted on the security of this Nation and its people—the FBI didn’t take Clinton into custody?Regardless, nothing suggests the FBI SAC Officer couldn’t electronically record Clinton’s responses even if the FBI had not detained her. Still,“. . . the agent and prosecutor may decide not to record an interview conducted for the purpose of gathering information related to public safety or national security.” Id. It’s the SAC Officer’s call. But, given the seriousness of Clinton’s mishandling of the nation’s secrets—a felony—one would think sufficient reason existed for electronic recording of Clinton’s responses; and one can, therefore, certainly make the rational counter argument that it is precisely because Clinton’s transgressions rose to the level of national security concerns that the FBI SAC Officer should have recorded Clinton’s responses to the FBI agents’ questioning for eventual use as evidence in a court proceeding against Clinton if the DOJ ultimately brought charges against her. Certainly, Congress would wish to review the transcript. Indeed, at the August 6, 2015 hearing, Congress pointed out its desire to obtain the SAC Officer’s Form 302 summary of the FBI’s interview of Hillary Clinton. Whether the FBI ultimately does so, that is an open question. Indeed, that is a transcendental question relating to Government’s attempt to hide nefarious, probably illegal actions from the American people.But, formal electronic transcript or no, one incontrovertible fact remains, Hillary Clinton lied to the FBI. Lying to the FBI is a federal crime—a serious federal crime under 18 U.S.C. § 1001.18 U.S.C. § 1001, sets forth:“Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully-falsifies, conceals, or covers up by any trick, scheme, or device a material fact; makes any materially false, fictitious, or fraudulent statement or representation; or makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry; shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism . . . imprisoned not more than 8 years . . . or both.”Of note, a person need not have perjured him or herself—that is to say, a person need not have testified falsely, under oath—to have violated 18 U.S.C. § 1001. When a person lies to a federal official—whether under oath or not—that person has violated federal law. Director Comey has acknowledged as much.Hillary Clinton cannot claim an excuse to lie or a license to lie to the FBI simply because she did not formally swear to tell the truth. And, her claim to have told the truth, when facts prove otherwise, do not elevate her lies to truth simply because they were uttered out of the mouth of one, in her view at least, of esteemed status, beyond the rule of law that applies to us lesser mortal citizens of the United States.Courts of law, in time past, have taken a very dim view of liars, whether their lies were produced under oath or not. The courts have denied citizenship to individuals who lied to naturalization officials. See, Petition of Ledo, 67 F. Supp. 917 (D.C. RI 1946). The Court denied citizenship to a liar, noting that, under the naturalization Statute, only a person of good moral character, who accepts the principles of our Constitution and is not predisposed to harm our Country is welcome to become a citizen. The Court held that a liar is not a person of good moral character. That is ground to deny a person his or he petition for citizenship.8 U.S.C.A. § 707(a) provides: 'No person, except as hereinafter provided in this chapter, shall be naturalized unless such petitioner, (1) immediately preceding the date of filing petition for naturalization has resided continuously within the United States for at least five years and within the State in which the petitioner resided at the time of filing the petition for at least six months, (2) has resided continuously within the United States from the date of the petition up to the time of admission to citizenship, and (3) during all the periods referred to in this subsection has been and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the United States.'8 U.S.C.A. § 707(a) is now covered by 8 USCS § 1427(a) through (c). Of note, the language, especially, pertaining to moral character remains, in the present statute, exactly as written in the older Statute.See, In re Spenser, 22 F. Cas. 921, 5 Sawy 195 (1895). The Circuit Court of Oregon pointed out that perjury is not only malum prohibitum [an act that is a crime merely because prohibited by statute] but malum in se [an act that is inherently immoral, like arson or murder] that wherever it affected the administration of justice, by introducing falsehood and fraud therein, it was at common law deemed infamous, and the person committing it held incompetent as a witness and unworthy of credit.How far we have come. A court of law may forbid citizenship to a person who lies to a federal officer on the ground our Country does not deem such a person worthy of our Country’s grace, for that person is, both by law and by nature, an immoral person. Yet, this Country now raises the specter of nominating, to the highest Office in the Land, an incorrigible liar—a person who lied to FBI. She then unabashedly compounds the lies told to the FBI by telling the American people she never lied to the FBI.We have in Hillary Rodham Clinton a person capable of turning veritable lies into inviolate truths and, when pressed, will claim she simply made a “mistake.” Those “mistakes” translate into devastation and horror. Those “mistakes” have weakened this Country and its system of laws, led directly or indirectly to the deaths of thousands of Americans, allowed for the rise and strengthening of numerous radical Islamic groups, created political instability throughout the world, promoted civil unrest, but created hundreds of millions of dollars for the Clintons as they have placed, and will undoubtedly continue to place, our Country’s assets, its traditions, its values, its very Constitution and Sovereignty—all of it—on the auction block. Nothing is sacred or “off the table” for Bill and Hillary Clinton where their insatiable greed, lust for power, and capacity for unremorseful criminal misconduct are concerned. See the documentary, “Clinton Cash.”Under present and past naturalization Statutes and under U.S. Court law decisions—decisions going back to the 19^th Century—Hillary Rodham Clinton would have been denied citizenship given her penchant for lying to federal officials. Such a person is beyond redemption. No one ought to be surprised, then, at Hillary Clinton’s audacity, as a citizen of the United States, to claim the Office of U.S. Presidency for herself, as her God-given right—and as the God-given right of her offspring in years to come.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE “TERROR WATCH LIST”—A GOOD IDEA? A GOOD IDEA GONE BAD? OR A BAD IDEA ALL ALONG?

THE “TERROR WATCH LIST”—A GOOD IDEA? A GOOD IDEA GONE BAD? OR A BAD IDEA ALL ALONG?

“Someone must have been telling lies about Josef K., he knew he had done nothing wrong but, one morning, he was arrested. . . . But even that is all beside the point, the main question is: Who is issuing the indictment?” “The Trial,” a novel by Franz Kafka, published in 1925Who is issuing the indictment, indeed? Unlike Josef K., the protagonist, in Franz Kafka’s insightful allegory, we, Americans, don’t live in a dictatorship. But, is that true? Was that statement once true, but true no longer?How is it that, “We the People of the United States, in Order to form a more perfect Union. . .” has devolved into “We the Government of the United States, in Order to form a more perfect Union. . . . ?”  The phrases—“insure domestic Tranquility,” “provide for the common defense,” “promote the general Welfare”—are lost in time. The federal Government and the media circus subsume these phrases, appearing in the Preamble to the U.S. Constitution, under the ubiquitous, deceptive expression, “national security”—an expression that appears nowhere in it. What hath this Government in the name of “We the People” wrought for the People.Understand: Nothing—absolutely nothing—Congress, or the United States President, or the President’s legions of bureaucrats do is more invidious and insidious than disemboweling and dismembering the Bill of Rights in the name of national security. We should not excuse or laud emotional trumpet calls for action before pondering the legality and ethical merits of such Government action. We should not excuse or laud emotional trumpet calls for action before considering their impact on our free Republic. We should not excuse or laud emotional trumpet calls for action before recognizing their cost—the possible loss of our precious rights and liberties. For, once lost, they’re lost forever.When emotions run high, restraint is required. The denial of gun sales to anyone whose name appears on the Government’s “terror watch list” is a recent proposal bubbling to the surface as a result of the recent carnage wrought by a home-grown self-radicalized Islamic terrorist. On Monday, June 20, 2016, the U.S. Senate voted on a measure that would do just that: preclude a person from purchasing a firearm if his or her name appears on the Government’s “terror watch list.” Fortunately, sane heads prevailed. The measure was voted down. But, we may expect further attempts by antigun Legislators in both the House and the Senate to push a measure like this one, through. [Breaking News: At the moment, June 22, 2016, the foes of the Second Amendment are staging a sit-in on the Floor of the House. They won't "sit contented" until the Second Amendment is stricken from the U.S. Constitution].Secret Government lists, such as the “terror watch list” and the “no fly list,”—and perhaps others, of which we are unaware—are problematic in a free, democratic Republic. For, once an American’s name appears on a secret government watch list, his or her rights and liberties, guaranteed under the U.S. Constitution, are in jeopardy. More to the point, such lists enable the federal Government to deny an American citizen his or her rights and liberties absent any charge of criminal wrong-doing. The Government, at the stroke of a pen, denies a person his or her rights and liberties without notice, without hearing, without reasonable means to challenge the inclusion of their name, in open court. Understand, we aren’t saying or suggesting those who seek to harm innocent Americans should have access to firearms. And, those Senators who voted down the “terror watch list” measure, on June 20, 2016, aren’t tacitly suggesting that American citizens who seek to harm innocent Americans should have access to firearms. These U.S. Senators have obviously asked themselves—and we need ask ourselves too—this profound question: Are we, Americans, ready to forsake, as a Nation, our sacred rights and liberties for the illusion of, or a mere modicum of, collective security? Is this something a free Republic, founded on a Bill of Rights and on a Constitution establishing a federal Government with carefully defined, demarcated, and limited power and authority, should accept or tolerate?The proposal came before the Senate—cavalierly bandied about by those who, despite assertions to the contrary, care not one whit about our Bill of Rights. That measure would deny Americans due process of law, a right guaranteed to all Americans under the Fifth Amendment. That measure would also deny Americans their natural right to keep and bear arms, a right codified and guaranteed to Americans under the Second Amendment.Millions of law-abiding citizens exercise their sacred right to keep and bear arms. They take responsibility for their own self-defense. They pose no threat to self or others. Are they expected to sacrifice that right, codified in the Second Amendment? Is that not asking too much of Americans? Would not that sacrifice operate as a capitulation to Islamic terrorism? Would not that sacrifice eviscerate our Bill of Rights and destroy one Amendment, in particular, that proclaims our uniqueness: that Government exists—truly exists—at the pleasure of the People and does not exist as a right unto itself?Lost in discussion—because of the frenzy of the moment—is any mention, any hint, how or whether Government intends to protect Americans from Islamist terrorists without infringing the sacred right of millions of law-abiding Americans who wish “to keep and bear arms.” Some Americans, we know, have no regard for that right. They seek to undermine it—are even counting on undermining it—in part, through application of the “terror watch list” to gun sales. They relish using a disastrous event to further a wicked agenda.What do we really know about this secret “list?”Consider: “The number of names on the terror watch list has grown steeply in the past decade, compounding the problem of inaccuracies. Whereas 288,000 names were on the list in 2005, the number had grown to 1.1  million by 2009. A Justice Department audit of the watch list in 2009 revealed a thirty-five percent rate of error, and disclosed that in seventy-two percent of the cases, the FBI failed to respond to these errors by removing the person from the watch list in a timely manner.” “Symposium: Inside America’s Criminal Justice System: The Supreme Court On The Rights Of The Accused And The Incarcerated: Bright Lines, Black Bodies: The Florence Strip Search Case And Its Dire Repercussions,” 46 Akron L. Review, 433, 461-462, Teresa A. Miller, Professor of Law, State University of New York, at Buffalo (SUNY—Buffalo)(2013).The critical problem presented by the Government’s “terror watch list” and other such “watch lists” is four-fold. One, an American loses his or her rights and liberties before commission of any crime or before probable cause exists an American has even considered committing a crime. This is a “Minority Report” scenario. Two, the Government’s “terror watch list” is secret. American citizens don’t know their name appears on the list until they seek to exercise a fundamental right and find they cannot. That alone should give all Americans pause. Three, fighting to remove one’s name from a secret list is extraordinarily difficult. The Government condemns an American citizen in secret, without notice, without hearing, without satisfactory legal recourse. Four, since the “terror watch list” is secret, the Government can add names to it at will—indiscriminately. This action results in millions of American citizens divested of their Second Amendment “right to keep and bear arms.” The existence of secret Government “watch lists” in a free society—in a free republic—makes mincemeat of one’s rights and liberties. True Congressional oversight doesn’t and cannot exist, regardless of assertions to the contrary. Such feigned oversight is window dressing, nothing more. In the name of “national security” the Government clamps down on one’s beliefs, thoughts, actions, even absent criminal wrong-doing.One academic writer says, “the insulation of national security conduct from external review obscures hard questions surrounding liberty and security, undermining the rule of law.” See, “Essay: Rule Of Law Tropes In National Security,” 129 Harvard Law Review 1566, 1566 (2016), Shirin Sinnar, Assistant Professor of Law, Stanford law School.”The problem boils down to this: whether the Government ought to deny an American citizen’s rights and liberties merely for displaying odd character traits. The existence of a “terror watch list” creates tension with the Bill of Rights.The existence and use of a “terror watch list” raises a host of questions. Do you know the factors Government uses when placing a person on a “terror watch list?” Do you know any factor?” Can you know how those factors, change, grow, evolve through time? If your name appears on a “terror watch list,” how do you contest that? What is the monetary cost for fighting Government action? How does the Government remove a name when it uncovers a mistake? When would Government act to remove a name—your name— appearing on the “list,” mistakenly? Would Government remove a name appearing on the list mistakenly? Why has the list grown from a few thousand names to tens of thousands, to hundreds of thousands, to over one million in the last several years?Suppose a person seeks to join or associate with a political group the Government targets. Would that not conflict with the free association clause of the First Amendment? Suppose a person seeks to affiliate with the Ku Klux Klan, the American Nazi Party, the American Communist Party? Should that person’s name appear on a “terror watch list?” If so, how far do we go? Suppose a person seeks to affiliate with the Green Party, the Constitution Party, the Libertarian Party, or with various groups comprising the “Tea Party.” Which affiliation warrants placing an American citizen’s name on the “terror watch list?” Should any affiliation warrant placing a person’s name on the “terror watch list.” The First Amendment sets forth in principal part, as proposed by and as elucidated by one founder of our Nation, James Madison: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable. The people shall not be restrained from peaceably assembling and consulting for their common good.” We have seen the insidious effects of fear-mongering before: the infamous McCarthy hearings of the 1950s, during the “Cold War.”We are now witnessing a new twist on an old ploy: an attempt to use a secret Government “terror watch list” to deny to hundreds of thousands, and conceivably eventually, to millions of Americans their natural right to keep and bear arms.Ought the Government suspend the civil liberties of potentially millions of law-abiding Americans if Government believes, rightly or wrongly, such harsh measures will reduce the carnage created by a few? Are we, as Americans, prepared to sacrifice, conceivably, all rights and liberties for the benefit of national security?Cannot an American citizen hold “extreme” views without fearing Government reprisal? Is it not the right of an American to hold and display views another American might find extreme, even distasteful? Are not American citizens slowly squeezed into a tight container as Government dictates to the public what is fit and proper thought, belief, and action?Are you willing to sacrifice free speech? Are you prepared to surrender your firearms? Are you willing to sacrifice freedom from unreasonable searches and seizures? Are you willing to abandon the writ of Habeas Corpus? Are you agreeable to forgoing the right to a fair and public trial? Are you prepared to give up friends and associates because the Government doesn’t approve of their idiosyncrasies? How would the founders of our Nation respond to these questions if posed to them? Do you have answers to these questions? If so, sound off.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved. 

SHOULD SCHOOL TEACHERS BE ARMED? THE UFT DOESN’T THINK SO, BUT ONE EFFECTIVE ALTERNATIVE WOULD BE TAXING TO TAX PAYERS.

CO-FOUNDER OF ARBALEST GROUP, LLC., RESPONDS TO UFT OPINION PIECE CONCERNING THE ARMING OF NEW YORK'S SCHOOL TEACHERS

The “United Federation of Teachers (UFT”), a New York City affiliate of the American Federation of Teachers, posted an article in its  publication, Teacher, titled, “Gun Fight.” The article appeared in the May 5, 2016 edition of Teacher. The editorial takes aim at the notion that arming teachers to protect students is a bad idea.Stephen L. D’Andrilli, one of three founders of the weblog, the Arbalest Quarrel, was a licensed New York teacher and receives the UFT publication, Teacher.After reading the UFT Op-Ed, Stephen felt a need to respond and did so. Stephen’s response to the Op-Ed was published in the June 2, 2016 edition of Teacher, under the Editor's title, “Editorial shoots blanks.”Stephen's response to the UFT editorial appears, in full, below:“I am responding to your recent editorial (“Gunfight”). The question posed is whether allowing educators to bring firearms to K-12 schools in New York would protect students against gun violence. The editorial considers the question from the standpoint of the 2012 Sandy Hook Elementary School tragedy.In arguing that arming educators is a bad idea, a few hypothetical situations involving armed educators are presented; outcomes are postulated; and a tacit conclusion is drawn: educators should not be allowed to bring firearms to school.The scenarios are typical straw man arguments. Nothing substantive can be deduced from them. One may argue just as readily that an armed educator would likely successfully protect the lives of his or her students from an armed aggressor. The editorial’s hypotheticals amount to straw man arguments. Straw man arguments obfuscate. They do not elucidate. Any possibility follows from a false antecedent in a counterfactual.The editorial concludes by discussing another matter entirely: the need to provide adequate mental health care for deeply disturbed individuals is no more than a stopgap. The point does not address deeply disturbed individuals who slip through the cracks; nor does it address the issue of criminals and terrorists that threaten soft targets like schools.So, if the invasion of schools by armed lunatics, terrorists, or assorted criminals cannot be contained and, through time, becomes pervasive and, if educators are not armed, what is the alternative? There is one we can think of: an armed contingent of police officers, peace officers, or private armed security to protect students, faculty, and administrators in schools. That will work, but, what will it cost? One armed guard, as the editorial staff of New York Teacher admits, will, arguably, never be enough.”

STEPHEN D'ANDRILLI'S BIO

Stephen was President and CEO of two security consulting and criminological research firms. He was also a business partner in a New York City licensed indoor gun range. Stephen is a decorated veteran police officer of the New York City Police Department. While employed with the N.Y.P.D., Stephen earned three University degrees from John Jay College of Criminal Justice. Stephen earned a Bachelor of Science degree in Police Science, a Master of Arts degree in Criminal Justice Administration and a Master in Public Administration degree.Later, Stephen served as an Adjunct Professor/Lecturer of Police Science at John Jay College of Criminal Justice. Stephen then served as a high school Social Studies Teacher for the New York City Department of Education and served as Dean and Athletic Coach for the Department. He is an expert in personal and corporate security.Stephen is a National Rifle Association Certified Firearms Instructor (pistol, rifle and shotgun) and Training Counselor, and is an active member of the International Association of Law Enforcement Firearms Instructors. He has testified on firearms, crime, and self-defense before governmental committees and at governmental hearings, on many occasions.Stephen has written many articles on these subjects and has appeared on television and radio. Major national and international newspapers, magazines and professional journals have profiled Stephen. Stephen is passionate about the Constitution and passionate about the Bill of Rights, the cornerstone of the Republic. Stephen is aware the Bill of Rights is under attack. Stephen understands that Americans must defend the Bill of Rights if they are to protect and preserve their heritage.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Stephen L. D’Andrilli (Publius) All Rights Reserved.

LEAHY DEFIES GRASSELY BY HOLDING JUDICIARY COMMITTEE HEARING ON OBAMA’S THIRD U.S. SUPREME COURT NOMINEE: MERRICK GARLAND

"And it proves, in the last place, that liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments." Alexander Hamilton, Federalist No. 78, 1788"If it be asked, What is the most sacred duty and the greatest source of our security in a Republic? The answer would be, An inviolable respect for the Constitution and Laws — the first growing out of the last.... A sacred respect for the constitutional law is the vital principle, the sustaining energy of a free government." Alexander Hamilton, Essay in the American Daily Advertiser, Aug 28, 1794

ANTI-SECOND AMENDMENT SENATE DEMOCRATS ON JUDICIARY COMMITTEE STRUGGLE TO CAPTURE A FIFTH SEAT, LIBERAL-WING MAJORITY ON THE U.S. SUPREME COURT, TO RIP APART THE SECOND AMENDMENT OF THE BILL OF RIGHTS

On Wednesday, May 18, 2016, Senator Patrick Leahy, Democrat-Vermont, Ranking member of the Senate Committee on the Judiciary, held an open hearing on Merrick Garland’s nomination. This hearing is the one Leahy had alluded to last month.No, this wasn’t a confirmation hearing on Obama’s third appointment to the U.S. Supreme Court. Senator Charles Grassley, Republican-Iowa and Chairman of the Committee, didn’t preside over the hearing; nor did he appear. No other Republican member appeared. No member of the Committee, Republican or Democrat, should have appeared because Senator Grassley didn’t sanction a hearing on Garland—any hearing. Yet, the Ranking Member of the Committee, Patrick Leahy, held a hearing anyway. He held the hearing in defiance to the will of the Chairman of the Committee. He held the hearing in defiance to the will of the Senate Majority Leader, Mitch McConnell, Republican-Kentucky.Senator Leahy admitted: “I can’t convene a confirmation hearing,” adding, “We’re in the minority.” The “minority” Leahy refers to include: Senators Feinstein, Schumer, Blumenthal, Whitehouse, Franken, Klobuchar, Durbin, and Coons. They all pressed for Garland’s nomination.Why did Senator Leahy hold a hearing against Senator Grassley’s wishes? What did Leahy and other Judiciary Committee members and members of the Democratic Party hope to carry out?Senator Leahy and other Democratic Party members of the Committee on the Judiciary held a hearing not simply to air personal grievances. They did so to push a personal agenda—one inconsistent with the Second Amendment to the U.S. Constitution. Senator Leahy and the Democratic Party Senators virulently oppose “the right of the people to keep and bear arms.” Understand, the Senate Committee on the Judiciary doesn’t merely consider U.S. Supreme Court nominations, Appellate Court nominations and District Court nominations. The Senate Committee on the Judiciary has other important roles. “The Judiciary Committee plays an important role in the consideration of nominations and pending legislation.” Senate Democrats on the Judiciary Committee draft legislation to obstruct “the right of the people to keep and bear arms.” They draft legislation to defeat the Second Amendment under the pretext of serving the citizenry. They hoodwink the public. The goals they aim toward do not serve Americans’ sacred rights and liberties. They watch Americans’ behaviors, habits, and actions to control and constrain Americans. They treat Americans like wayward children. These Legislators are deceitful. They lure us in with pious words. They are America’s betrayers.So, who appeared at Leahy’s unsanctioned, May 23, 2016 “open hearing?” Those whom you would expect: Feinstein, Schumer, Blumenthal, Whitehouse, Franken, Klobuchar, Durbin, and Coons appeared. They all support and press for Garland’s confirmation; and they all oppose “the right of the people to keep and bear arms.”

THE POSITIONS OF DEMOCRATIC PARTY MEMBERS OF THE SENATE JUDICIARY COMMITTEE ON THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS IS CLEAR, CATEGORICAL AND CERTAIN. THEY DARE TO SPEAK FOR ALL AMERICANS, PROCLAIMING:  AMERICANS DO NOT NEED AND OUGHT NOT HAVE FIREARMS.

Leahy’s position on the Second Amendment is no secret. For years Leahy pushed Obama’s antigun agenda. The New York Times reported on Leahy’s strategy in 2013. It said, “The view of Mr. Leahy, a Democrat . . . is crucial because the work of his Judiciary Committee will be central to advancing any new gun legislation.” The Committee “will hold hearings on potential gun legislation this month [January] proceed[ing] with Mr. Obama’s request to push legislation that includes a renewal of an assault weapons ban, a limit on magazine size and universal background checks.”Sheldon Whitehouse also signals hostility toward the Second Amendment. During Judge Sotomayor’s confirmation hearing, Senator Tom Coburn, Republican-Oklahoma tried to get her to issue an opinion on whether gun owners have a fundamental right to bear arms.” She wouldn’t make a pronouncement.” Sheldon Whitehouse came to her defense. He said, “he was worried that the judge had been pushed too far, perhaps, in a lobbying way, to expound on an issue that is probably going to come before the Supreme Court. He suggested that a message was being sent that nominees need to signal how they will rule on gun-rights cases. He called it almost unseemly to seek commitments on future cases.”As you might expect, U.S. Supreme Court confirmation hearings are a charade. Leahy isn’t kidding anyone. If Garland received a confirmation hearing, he would say nothing to reveal his antipathy toward the Second Amendment. We know U.S. Supreme Court candidates hide their personal jurisprudential and philosophical predilections during confirmation hearings, as coached, to avoid offending anyone, thereby strengthening their chance at confirmation. Justice Sotomayor hid her antipathy toward the Second Amendment at her confirmation hearing. Judge Garland would do so at his confirmation hearing, were one scheduled. Senator Grassley isn’t planning one. For, if a confirmation hearing were in the offing, Senators Whitehouse, Leahy, Feinstein, Schumer and others would come to his aid, lest he reveal his aversion toward the Second Amendment. Senator Grassley certainly knows this.Thus, Senator Leahy’s intimation that confirmation hearings are effective at eliciting truth is dubious and disingenuous. At the May 23, 2016 hearing, Leahy asserted, “what bothers me is because he [Garland] does not have a hearing and they’re not allowing him to have a hearing, his record is being smeared by outside groups, some of these Pacs, and others. Senate Republicans are denying a distinguished public hearing and a fair opportunity.” "No," Senator Leahy. Judge Garland's record as revealed in our letter to you isn't a smear. It's the plain, unadulterated truth--truth the American public would not learn at a public hearing. That's why Garland won't receive a confirmation hearing; and that's why Garland shouldn't receive one. No person deserves a seat on the high Court who does not respect, in fact, revere our Bill of Rights--all Ten Amendments. Obama and the Senate Judiciary Committee Democrats’ Trifecta bet is: Sotomayor, Kagan, and Garland. Obama is two for three. He aims for all three. For these three the Second Amendment is an anathema. Obama knows this. Otherwise, he wouldn’t have considered them. He wouldn’t have considered them if they were merely neutral on the Second Amendment, much less a proponent of the Second Amendment. Obama wants fanatics on the U.S. Supreme Court. He wants individuals on the U.S. Supreme Court who share his hostility toward the continued existence of our Nation's Second Amendment. Ranking member Senator Leahy and his fellow Democrats on the Judiciary Committee also want fanatics on the U.S. Supreme Court. These cohorts of Senator Leahy willingly support and do their part to promote Obama's antigun agenda.If Garland secures a seat on the high Court, the liberal-wing gains a fifth vote. The liberal-wing then has its majority. The liberal-wing of the U.S. Supreme Court strenuously opposes the fundamental right codified in the Second Amendment.Let’s consider Senator Dianne Feinstein’s position on the Second Amendment. Does the American public truly harbor any doubt? Feinstein’s resentment toward the Second Amendment is well-known, her remarks against gun ownership, legion. She took personally the failure of her bill to ban over two thousand types of firearms but continued undeterred. Charles Schumer also attacks the Second Amendment with passion. In 1994, then “Representative” Schumer, with the late Senator Howard Metzenbaum, Democrat-Ohio,  “introduced a ‘kitchen-sink’ bill that covered everything from licensing to lists of weapons to be prohibited. It proved politically ahead of its time.” Richard Blumenthal uses sporadic shooting sprees to couch attacks on the Second Amendment. He said, “he hoped that the latest [2014 Santa Barbara] shooting would ‘provide an impetus to bring back measures that would keep guns out of the hands of dangerous people who are severely troubled or deranged, like this young man was.’” Blumenthal’s remark may sound sensible. But, the remark carries dangerous implications. Millions of American’s would lose their Second Amendment rights. Even if Legislators carefully tailored a law, can Americans trust the federal government to interpret the law narrowly? Not likely! Consider, too, the difficulties in defining English words. How do we define the word, ‘severely,’ as a modifier for the word, ‘troubled’? How do we define the word, ‘deranged?’ Medical doctors don’t use these words. They are not medical terms of art. Lawyers don’t use these words either. They aren’t legal terms of art. They are rhetorical words. They merely suggest but point to nothing.Before we exclude a group of Americans from exercising their Second Amendment rights, give the matter thought. Millions of law-abiding Americans may lose their Second Amendment right “to keep and bear arms” simply because their doctors prescribe an antidepressant for them.What can we glean from Al Franken’s record on the Second Amendment? Franken is cagey, but his contempt for the Second Amendment is obvious. Sure, he sounds like a supporter of the Second Amendment. He says, “Minnesota has a long tradition of gun ownership, and I support Minnesotans’ right to own a gun for collection, protection, and sport. I also believe that the Second Amendment protects that right against both the federal government and the states. But the right to own a firearm is not one to be taken lightly. I believe Minnesota has struck the proper balance, for example, by requiring background checks and live firearms training for carry permits.” Let’s parse one phrase in that passage.We ask, “what does Al Franken mean here by ‘proper balance’ as applied to law-abiding Minnesota residents?" What does Al Franken mean by 'proper balance' as applied to all law-abiding Americans? Franken means strict gun control Consider: Al Franken “voted YES on banning high-capacity magazines of over 10 bullets.” In 2008 Franken said he supports a federal ‘assault weapons’ ban but then oddly claims he supports the Second Amendment. The claim means nothing. It’s a trick. Antigun zealots employ it, continuously, to keep proponents of the Second Amendment at bay, guessing. But Americans recognize the ploy. Antigun zealots won’t rest until the Second Amendment ceases to exist. Franken reiterates antigun sentiment through rehearsed talking points, lacking substance.Senator Klobuchar sponsored an antigun bill, heralded by Michael Bloomberg’s antigun group, “Everytown for Gun Safety.” Klobuchar suggests she, too, supports the Second Amendment. But, she doesn’t. She asserts, “I would do nothing to hurt hunting”  but she also says she voted for bans on “assault weapons” and on “high-capacity magazines”—those magazines holding over ten rounds.Senators Klobuchar and Franken don’t understand their actions belie their words.Senator Richard Durbin fiercely attacks the Second Amendment. His distaste for the Second Amendment is as virulent and venomous as Feinstein’s.To his shame Senator Durbin defends U.N. efforts to repeal our Country’s unique and sacred Second Amendment. He voted, “no,” on “Amendment SA 2774 to H.R. 2764, the Department of State’s International Aid bill: To prohibit the use of funds by international organizations, agencies, and entities (including the United Nations) that require the registration of, or taxes guns owned by citizens of the United States.” Previously cited. Senator Vitter, Republican-Louisiana, pointed out, that SA 2774 “is about an effort in the United Nations to bring gun control to various countries through that international organization. Unfortunately, that has been an ongoing effort which poses a real threat, back to 1995. In 2001, the UN General Assembly adopted a program of action designed to infringe on second amendment rights. The Vitter amendment simply says we are not going to support any international organization that requires a registration of US citizens' guns or taxes US citizens’ guns.” Previously cited. Plainly, the UN’s bold attack on America’s Bill of Rights doesn’t offend Senator Durbin. He supports UN efforts to undermine our Bill of Rights.Last, let’s not forget, Senator, Chris Coons position on the Second Amendment. Coons urges President Obama to use executive action to undermine the Second Amendment. Imagine, Coons would sacrifice the Second Amendment and Congressional Article 1, Section 1 Legislative authority to the U.S. President simply to continue a partisan antigun agenda.

A PANEL OF GARLAND SUPPORTERS GATHERED TO BUTTRESS ANTIGUN JUDGE MERRICK GARLAND’S NOMINATION

Ranking Senate Judiciary Committee Member Leahy and fellow Senate Democrats on the Committee contacted associates of Judge Merrick Garland. The panel comprised a former jurist, a law professor, an appellate law attorney and former judge, and a former U.S. Attorney.Each spouted the usual praises: “wonderful judge,” “eminently qualified,” “wonderful human being” “engaged and committed parent,” “sharp, analytical mind,” and so on. Fine traits, yes wanted of all who aspire to sit on the high Court. We have heard them before; we hear them now, constantly. But Judge Garland’s finer qualities aren’t in dispute. His judicial record is.The hour-long hearing comprised a multitude of flowery pronouncements, empty oratory, and, from the Senate Democrats, spiteful insults, criticisms, and whispers.Senator Feinstein piously declared a concern over a Supreme Court constrained, “for a substantial period of time” by a “tie,” “a four to four position.” Senator Leahy says the failure of the high Court to act on cases—given the present 4 to 4 tie—places the Federal Appellate Courts “in limbo.” But Leahy’s statement isn’t true. Feinstein’s remarks and Leahy’s lay bare an agenda, underscored by their assertions. They seek a five to four liberal-wing majority on the high Court. They say consistency among the Circuit Courts is necessary, but is it?Do we want consistency if U.S. Supreme Court rulings weaken Americans’ rights and liberties throughout the Country? Do we Americans want consistency among the Several States if U.S. Supreme Court rulings reflect foreign law antithetical to our traditions and values, and inconsistent with our Bill of Rights? Wouldn’t Americans find judicial rulings peppered and laced with alien jurisprudence and philosophy singularly bizarre? Wouldn’t Americans detest U.S. Supreme Court opinion that undermine their rights? Is not the late Justice Antonin Scalia’s philosophy and jurisprudential approach to U.S. Supreme Court decision-making worth preserving? If so, Senator Leahy’s remark we need a “fully functioning [nine Justice] Supreme Court”—with a five-to-four liberal wing majority—is to wrongheaded.Tie votes are not necessarily a bad thing. If a tie vote occurs, the decisions of the Appellate Courts remain valid. Yes, conflicts in the Circuits exist absent a U.S. Supreme Court decision. But conflicts always exist. The high Court hears only a handful of cases. A liberal wing majority would decide cases contrary to the well-being of the Bill of Rights. A liberal wing majority would also canvass cases to hear—cases involving matters best left to the States under the Tenth Amendment. Consider the remarks of Justin Driver, Professor of law at the University of Chicago. He clerked under Judge Garland from 2005 to 2006. Driver said, “The [U.S. Supreme] Court views itself as articulating general applicable principles, not merely resolving a dispute between a few parties.” How do we square that remark with Professor Driver’s other assertions? Professor Driver asserts, Judge Garland “avoids grand sweeping pronouncements, and keeps the opinions narrow,” that Judge Garland “is measured in his approach to the law,” and that “he honors existing precedent”?How might Judge Garland’s jurisprudence as a Judge on the U.S. Court of Appeals for the District of Columbia Circuit translate to the U.S. Supreme Court on Second Amendment issues? A fifth liberal-wing vote would weaken or overturn, outright, the Heller and McDonald case holdings?

A QUESTION ABOUT IDEOLOGY ON THE SUPREME COURT

Senator Leahy and his fellow Democrats on the Judiciary Committee self-righteously assert a hostility toward ideology. They proclaim the U.S. Supreme Court must remain pure, empty of “politics.” Yet, the U.S. Supreme Court, as the third Branch of Government, is, a political institution. Politics exists in the third Branch no less so than in the other two. Ideology, too, exists. Ideology is not necessarily a bad thing. Ideology defines every person. Each jurist espouses an ideology, and that ideology suffuses each jurist’s decisions. Judge Merrick Garland expressed his ideology toward the Second Amendment in the Parker and Reno cases.

JUDGE MERRICK GARLAND MUST NOT SECURE A SEAT ON THE U.S. SUPREME COURT

We know Judge Garland’s position on Second Amendment issues. We looked at his record. With Obama’s nomination of Merrick Garland to the high Court—a jurist who espouses a philosophy hostile to the Second Amendment—the assault on the Second Amendment continues. The Arbalest Quarrel amply shows Garland’s hostility to the Second Amendment in multiple articles.The conclusion is plain. If Judge Merrick Garland secures a seat on the high Court, we know he would undermine the Second Amendment. The high Court’s liberal wing would have a majority and would undo Justice Scalia’s legacy.If Judge Garland sits on the high Court as Justice Garland, the right of the people to keep and bear arms, as a sacred individual right, will come under renewed assault. Protection of our sacred rights and liberties ought to take precedence over presumed Senate protocol. Senator Leahy doesn’t think so, despite his remarks. He insists a confirmation hearing for Garland is proper. Perhaps for him, not for us. Leahy doesn’t speak for most Americans; neither does Hillary Clinton.In a May 24, 2016 editorial, the Wall Street Journal editorial staff said, “Mrs. Clinton did criticize the Supreme Court [in Heller] for being ‘wrong on the Second Amendment.’” The editorial staff also said, “Mrs. Clinton knows that four liberal Justices dissented from Heller. . . . Justice Ruth Bader Ginsburg, one of the dissenters, told a luncheon of the Harvard Club in 2009 that their dissent was crafted with an eye to helping a ‘future, wiser court’ overturn Heller.” Previously cited. The editorial staff added, poignantly, “If Mrs. Clinton selects Antonin Scalia’s replacement, she knows the Court’s liberals with get their opportunity to overturn Heller. The Second Amendment really is on the ballot this November.” Previously cited.Senator Leahy and other Senate Democrats on the Judiciary Committee want a jurist on the high Court who represent their ideology—one antithetical to the Second Amendment. Hillary Clinton won’t disappoint them if elected U.S. President. Judge Garland is their man. He isn’t ours.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

TOM COBURN ADDS HIS NAME TO THE GROWING LIST OF PRESENT AND FORMER REPUBLICANS WHO SAY THE SENATE SHOULD HOLD A VOTE ON GARLAND. THE QUESTION IS: WHY ARE SOME REPUBLICANS CAVING IN?

TOM COBURN ADDS HIS NAME TO THE GROWING LIST OF PRESENT AND FORMER REPUBLICANS WHO SAY THE SENATE SHOULD HOLD A VOTE ON GARLAND. THE QUESTION IS: WHY ARE SOME REPUBLICANS CAVING IN?

“Twelve voices were shouting in anger, and they were all alike. No question, now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.” Animal Farm, by George Orwell, 1945Can we be certain that Senate Republicans are dead-set against the confirmation of Judge Merrick Garland to a seat on the U.S. Supreme Court. Well, we know that at least one Senate Republican, Mark Steven Kirk, would like very much to see Obama’s nominee confirmed.This should come as no surprise to anyone; for Senator Kirk, the Republican, is, as we know, a virulent opponent of the right of the American people to keep and bear arms. See the Arbalest Quarrel article, titled, "Senator Kirk Can't Whitewash Merrick Garland; the Record Speaks for Itself."But, what of other Senate Republicans – those who ostensibly support the Second Amendment, such as Senator Lindsey Graham of South Carolina. Well, as we recently pointed out, the Senator made poignantly clear to CNN anchor Kate Bolduan that, if a confirmation is held, Judge Garland will be confirmed. Take a look at the Arbalest Quarrel article, titled, "Read the Fine Print: Garland's Confirmation Under the Microscope."Would that concern Senator Graham, presumably a staunch defender of the Second Amendment? Apparently not. After all, Senator Graham voted to confirm Obama’s first two short-list nominees to the high Court: Sonya Sotomayor, and Elena Kagan. The jurisprudential philosophy of these two Obama nominees is well known, and it is one diametrically opposed to that of Justices Thomas and Alito, and opposed, as well, to the jurisprudential philosophy of the late Justice Scalia.So, then, if Senator Graham harbored any doubts about the qualifications of Justices Sotomayor and Kagan, it obviously was not enough to prevent him from voting for their confirmation to the U.S. Supreme Court. The attitudes of Justices Sotomayor and Kagan toward the Second Amendment are well known and they are contrary to those held by Justices Thomas, Alito, and to the late Justice Scalia.Of course, Senator Graham may have been duped. But that is highly unlikely. He is highly intelligent. Could any United States Senator truly doubt that Obama would nominate a judge to the high Court without having given careful consideration to that person’s jurisprudential philosophy on a range of Constitutional issues and to that person’s methodology for deciding cases and to the impact that person’s jurisprudential philosophy would have on Americans’ fundamental rights through that person's written decisions.Recently, in the New York Times, former Republican Senator Tom Coburn, Oklahoma, added his voice to the growing chorus of seemingly staunch supporters of the Second Amendment who are calling for action on Obama’s nominee, Merrick Garland.Oddly enough, former Republican Senator Coburn says, according to the NY Times, in the article, titled, “Tom Coburn, Ex-Senator, Says Merrick Garland Should Get a Vote,” that Garland should get a vote but that this should not be taken to mean that Garland should be confirmed.Wait a minute! If Garland gets a vote there exists the possibility that he may be confirmed, and, according to Senator Graham, if Garland gets a vote, he would be confirmed, no doubt about it. So, then, what is the rationale for holding a vote if past and present Republican Senators agree that Garland will be confirmed, notwithstanding their remarks that Garland ought not to be confirmed to a seat on the high Court.Obviously, if there is no vote on the confirmation, Garland cannot be confirmed. It is logically impossible for Garland to be confirmed without a vote of the Senate. But, if Garland cannot possibly be confirmed, then why hold a vote at all? Does the Senate have nothing better to do than to hold a vote on Obama’s nominee to the U.S. Supreme Court if Garland could not possibly be confirmed? The entire vote issue on Garland is a red herring, and should be laid to rest until the next U.S. President assumes Office.If Coburn and others believe a vote on Obama’s nominee is required by law, that is false. While there is debate among legal academicians as to the import of the “advice and consent clause,” one point is abundantly clear, the U.S. President cannot, on his own authority, lawfully, unilaterally appoint a person to the U.S. Supreme Court.If, as is presently the case, the Senate does not consent to the nomination, allowing a vote on the nomination would not be consistent with the consent requirement. In fact there is nothing in the appointment’s clause and in the "advice and consent" clause of Article 2, Section 2 of the U.S. Constitution that discusses the matter of voting on a President’s nominee at all. In the present matter the Senate has spoken. The Senate has advised the President that it does not consent to the nomination of Judge Garland.Now, if Coburn and other like-minded Republicans were to argue that the Senate owes the President a vote on his nominee as a matter of professional courtesy, which, then, has nothing to do with the Senate’s obligation under the “advice and consent” clause well, consider: does the risk of snubbing a President’s nominee outweigh a threat posed to the continued preservation of the Second Amendment? It would seem that Tom Coburn would very much like to see Garland confirmed.As the NY Times reports Coburn saying, “I don’t know if he [Merrick Garland] deserves a hearing. . . . He deserves a vote out of the [Judiciary] committee.” “Tom Coburn, Ex-Senator, Says Merrick Garland Should Get a Vote,” Really? Coburn appears to be saying, although tacitly, that the Senate should dispense with a public hearing altogether – that the Senate should just hold a closed-door vote, out of the purview of the public. That would be fair? To whom? Certainly not to the American people who have more than a little stake in the matter.The mainstream media and those who call for a hearing, or a vote, or both, constantly carp that the Senate Judiciary Committee’s motivation for denying Garland a hearing and/or vote is simply to be attributed to “politics.” But, that’s mere subterfuge.The Senate Judiciary Committee is well aware that, if Garland receives a vote – whether that vote comes after or in lieu of a hearing – he will be confirmed. The House knows it; the Senate knows it; the President knows it; and the American people know it.If Garland is confirmed, the sanctity of the Second Amendment will be threatened in a manner never before seen. A threat – any feasible threat – to our fundamental rights ought never be casually dismissed as mere “politics.” That is why Senator Grassley’s Judiciary Committee must hold fast and not be swayed by rhetoric coming from surly Democrats, disloyal Republicans, and from the mainstream media that echoes and trumpets their sentiments.Once again, we are drawn back to Orwell’s allegory, "Animal Farm," which has as much application today as it had in Orwell’s time: “No question, now, what had happened to the faces of the pigs. The creatures outside looked from pig to man, and from man to pig, and from pig to man again; but already it was impossible to say which was which.”As between those Senate Democrats who are calling for the Senate Committee on the Judiciary to convene a hearing and/or hold a vote on Obama’s third nominee to the U.S. Supreme Court, Judge Merrick Garland, and those Senate Republicans who are calling for the Senate Committee on the Judiciary to convene a hearing and/or hold a vote on Obama’s third nominee to the U.S. Supreme Court – as we look at each of them – as we move back and forth among them – one to the other – from Democrat to Republican, and from Republican to Democrat – it becomes increasingly difficult to distinguish between them. So many Senate Democrats and Senate Republicans are looking awfully like one another. Aren’t they?[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2016 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved. 

VOISINE: A SECOND AMENDMENT CASE THAT ISN'T?

JUSTICE THOMAS SPEAKS OUT IN THE VOISINE CASE

UNITED STATES VERSUS VOISINE

PART 1: PRELIMINARY REMARKS

This is the first of a multi-part series article on the most important Second Amendment case to come before the U.S. Supreme Court since the two seminal Second Amendment cases: District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) and McDonald vs. City of Chicago, 130 S. Ct. 320, 177 L. Ed.2d 894, 2010 U.S. LEXIS 5523 (2010).  Two points must be made apropos of this remark before we undertake a comprehensive analysis of the Voisine case, at this juncture, up through the legal argument that goes to the matter whether the present case is properly considered a Second Amendment case at all; and the other point goes to the matter concerning the extent to which lower courts, throughout the Country, whether State or Federal, and the extent to which State Legislatures throughout the Country adhere to the holdings and to the reasoning of the majority opinions in the two cases. The late Justice Antonin Scalia penned the majority oAnyone who keeps abreast of the U. S. Supreme Court knows that Justice Clarence Thomas broke a ten-year silence when he posed questions to counsel during oral argument on February 29, 2016 in the case United States vs. Voisine, No. 14-10154 (S. Ct. Dec. 17, 2015). The other seven Justices retained an austere demeanor. But they must surely have been surprised at Justice Thomas’ uncharacteristic lack of reticence. The Press, for its part, was noticeably, and understandably, thunderstruck.One may speculate why Justice Thomas chose to take part in the questioning of counsel in this case, at this time. Not improbably, Justice Thomas did so, in part, out of deep respect for the memory of Justice Antonin Scalia. Justice Scalia would have had much to say in Voisine as the case touches on two landmark Second Amendment cases: District of Columbia vs. Heller, 554 U.S. 570 (2008) and McDonald vs. Chicago, 561 U.S. 742 (2010). “Heller holds that a law banning the possession of handguns in the home (or making their use in the home infeasible) violates the individual right to keep and bear arms secured by the Second Amendment.”In the subsequent McDonald case, the U.S. Supreme Court held that, “the Second Amendment creates individual rights that can be asserted against state and local governments.” Together, the two cases strengthen the Second Amendment more so than any previous holding of the high Court. The two cases constrain local, State and federal governments from whittling away at Americans’ fundamental right of the people to keep and bear arms in their individual capacity.Justice Scalia wrote the Majority Opinion in Heller, joined by Chief Justice Roberts, and Justices Thomas, Alito, and Kennedy. Justice Samuel Alito wrote the Opinion for the Majority in McDonald, joined by Chief Justice Roberts, and Justices Scalia, Thomas and Kennedy. Not surprisingly, the liberal wing of the Court, comprising Justices Ginsburg, Sotomayor, Kagan, and Breyer dissented, and they did so strenuously.Now, contrary to common belief, the U.S. Supreme Court, does not have to accept and, indeed, does not accept every case that happens to come before it. No one can appeal an adverse decision to the U.S. Supreme Court as a matter of right. Indeed, the Supreme Court grants A Petitioner’s writ of certiorari in only a few cases in any given term. And, in the Court’s information sheet, presented to those who seek to have their case heard, the Court says clearly, even bluntly, that “review on writ of certiorari is not a matter of right but of judicial discretion.”Generally, the high Court will agree to hear a case where there is disagreement and conflict among the various federal Circuit Courts of Appeal. This often takes years to develop. Even so, many cases that the high Court does agree to hear often involve arcane legal issues, very narrow in scope, that are difficult for the non-lawyer to grasp, and, so, quite understandably, difficult for anyone but a lawyer to appreciate. The Voisine case may, at first glance, appear to be just such a case. It isn’t.To be sure there is a complex, arcane issue here, but there is also a straight-forward Second Amendment issue as well. The Second Amendment issue would have been given no consideration at all but for Justice Thomas’ interjection. Be thankful that Justice Thomas spoke up during oral argument. This is not theatrics as presented by the mainstream media. Justice Thomas' questions and remarks were precise, well-honed, to the point and surely took the U.S. Government off guard.In the Opinion to be handed down in another month or so it is unlikely that the Court will not give the Second Amendment issue at least some consideration and will do so precisely because of, one, Justice Thomas’ questions to counsel for Respondent, U.S. Government, two, counsel's responses to the Court, and, three, Justice Thomas' comments. If no other Justice mentions the Second Amendment in the Majority's Opinion, or in a concurring or dissenting Opinion, Justice Thomas most certainly will.Now, a salient issue in Voisine does involve the meaning to be given a word phrase in one particular section of a lengthy federal Statute. Nonetheless, as we heretofore explained, the Voisine case is the first Supreme Court case to be heard by the high Court that does impact the Second Amendment. In fact, Petitioners did timely and properly raise a Second Amendment claim in their Briefs to the United States Court of Appeals for the First Circuit. And that claim was preserved; and that issue was ripe for review by the U.S. Supreme Court when it granted Petitioners’ Writ of Certiorari. Moreover, while the Second Amendment issue was set forth with particularity as a salient issue in Petitioners’ Brief, the Second Amendment claim was not set forth as an issue in the Government’s own Brief in Opposition to the Brief of Petitioners. And the Government, in its Brief in Opposition to the Brief of Petitioners, addressed Petitioners’ Second Amendment claim only perfunctorily, giving little thought to it, seemingly in deference to and happily therefor to the United States Court of Appeals for the First Circuit's treatment of it, for the First Circuit dismissed Petitioners' Second Amendment claim outright.In fact during oral argument before the Supreme Court, the Second Amendment was only mentioned twice and that occurred toward the end of oral argument when Justice Thomas brought the issue up. Justice Thomas did so, in part, as we said earlier, because Justice Scalia certainly would have done so had he lived. And, Justice Scalia would have done so for a very good reason, quite apart from and notwithstanding the otherwise cursory treatment of the Second Amendment issue by the United States Court of Appeals for the First Circuit Court. For Voisine is the first case to come before the Supreme Court that implicates the Second Amendment, however obliquely or tangentially, or seemingly cursorily since the high Court decided the Heller case in 2008 and, subsequently, Heller's important progeny, the McDonald case in 2010, over one-half decade ago.Although the other Justices took great pains to avoid entertaining the Second Amendment issue in Voisine – preferring to address, alone, the meaning attached to a few words in one federal Statute – Justice Thomas would not let the matter rest, much to the satisfaction of Petitioners, who clearly sought to have their Second Amendment issue heard, and much to the chagrin of Respondent, the United States Government, that sought to keep the Second Amendment issue moot.Moreover, by querying Government’s counsel on Petitioners’ Second Amendment claim, Justice Thomas may have been initiating a not so subtle payback to other Justices for a snubbing that both he and Justice Scalia suffered at the hands of those other Justices. For, both Justices Scalia and Thomas were more than a trifle perturbed that the majority of the Justices of the Supreme Court denied certiorari in Friedman vs. City of Highland Park, Illinois, 784 F.3d 406 (7th Cir. 2015). The Seventh Circuit in Friedman clearly manifested its contempt for the high Court’s holdings in Heller and McDonald. Justices Scalia and Thomas clearly wanted, and had expected, the high Court to grant certiorari in Friedman and, by failing to do so, Justices Scalia and Thomas expressed their righteous indignation by drafting a dissenting opinion in Friedman -- an unusual occurrence.Very rarely do Justices explain their reason for refusing to grant a writ of certiorari in a case. Even more rarely will one find a dissenting opinion written by a Justice, expressing disfavor in the failure of the majority of Justices to grant the writ in a case.Surely, had the Supreme Court granted Petitioner’s writ of certiorari in Friedman, Justices Scalia and Thomas would have taken the Seventh Circuit to task for patently ignoring the Heller and McDonald holdings. The Arbalest Quarrel discusses the Friedman case at length in the article, titled, “A Court Of Law That Rejects U.S. Supreme Court Precedent Undermines The Rule Of Law And Undercuts The U.S. Constitution,” posted on December 14, 2015.  For our discussion of Friedman and its importance to the Heller and McDonald cases, readers are encouraged to read our article.In spirit Justice Scalia was certainly in attendance during oral argument in Voisine. Since the Supreme Court would not entertain the Friedman case which was a direct and audacious attack by a United States Circuit Court of Appeals on the clear and cogent holdings in Heller and McDonald, Justice Thomas, on behalf of Justice Scalia, clearly intended to raise and, so, did raise Petitioner’s Second Amendment issue in Voisine – a case that the U.S. Supreme Court did decide to entertain.From the get-go it had been clear that no other Justice would weigh in on the Second Amendment implications of Voisine, and take the Government to task. Justice Thomas made certain that Justice Scalia’s disdain for a federal Government that cares not one whit for the sanctity of the Second Amendment would dare not go unchallenged.Americans who understand and can appreciate the importance of our Bill of Rights as the foundation of a free Republic and who can, in particular, understand and appreciate the importance of the Second Amendment as a critical check on the accumulation of power by the Federal Government, and by improvident State governments as well, will do well to ponder the Nation's incredible loss. Justice Scalia, together with Justice Thomas, made adamantly clear that the right of the people to keep and bear arms is an individual right unconnected to a person’s participation in a militia. The Heller decision rankles several Justices on the Supreme Court and many Globalists, both in this Country and outside it, as well, who are working quietly but incessantly and inexorably in the shadows, intent on undercutting America’s Bill of Rights, generally, and undermining America’s Second Amendment, particularly.We know, without doubt, that President Obama – or her royal Majesty, Queen Hillary Rodham Clinton – seek to nominate to the highest Court of the Land, a person who would chomp at the bit to reverse Heller and McDonald on the ground that, for them, the cases are discordant. They are discordant to these judges and to powerful, ruthless individuals because they happen to strengthen rather than weaken America’s Bill of Rights.In Part 2 of this Article, we will deal in depth, with the legal issues in Voisine and you will come to understand, one, why the high Court, apart from Justice Thomas, does not wish to deal with the impact that a negative decision in Voisine would have on the Second Amendment and, two, how it is that a specific question posed by Justice Thomas to counsel for the U.S. Government elicited from counsel a most remarkable, illuminating, and, in fact, frightening comment. You will come to see why a negative holding in Voisine does have negative implications for our Second Amendment.So it is that the mainstream media would much rather keep the dire implications of Voisine in the shadows. We, on the other hand, intend to bring the implications out, for all to see, into the light of day. In so doing, we trust we will help keep the memory of Justice Scalia alive, and in keeping Justice Scalia’s memory alive, preserve, as well, the holdings in Heller and McDonald that bespeak Justice Scalia’s devotion to the import of the Second Amendment. Ever mindful, then, are we of those who are hell-bent in destroying it.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

READ THE FINE PRINT: GARLAND’S CONFIRMATION UNDER THE MICROSCOPE

READ THE FINE PRINT: GARLAND’S CONFIRMATION UNDER THE MICROSCOPE

Liberal Law Professors Send Open Letter to Chairman of  Judiciary Committee, Senator Charles Grassley, Urging the Senator to Hold a Hearing and Vote on Obama’s Nominee to the U.S. Supreme Court, Judge Merrick Garland.

The Arbalest Quarrel Responds, Sending its Own Letter to Senator Grassley, Rebutting Claims and Assertions of Law Professors.

“For it is a truth, which the experience of ages has attested, that the people are always most in danger when the means of injuring their rights are in the possession of those of whom they entertain the least suspicion.” Alexander Hamilton, Federalist No. 25, 12/21/1787For the moment the stars seem aligned in Mr. Obama’s favor. So much so, he will suffer no one confounding his ambitions to subvert the U.S. Constitution, in order to weaken our Sovereign Nation, thus paving the way for an EU style North American Union. The universe does not bend backwards to President Obama’s beck and call, of course, but that does not stop him from using the power of the U.S. Presidency to obtain what he wants.Before leaving Office, Obama intends to fill the ninth seat on the U.S. Supreme Court. The Senate has confirmed Obama’s previous two short-list candidates to the Supreme Court, Sonia Sotomayor and Elena Kagan, and he is obsessed with and adamant about confirming his third short-list candidate to the high Court before he leaves Office: Judge Merrick Garland. That possibility conveniently materialized with the passing of Justice Scalia. Obama intends to stack the deck, 5 to 4, in favor of the liberal wing of the high Court.The mainstream media has obsequiously acted on Obama’s behalf, bombarding the American public incessantly with articles and editorials, extolling Garland’s many presumed virtues. Public Officials got into the act as well. Vice President Joe Biden heralded Garland’s candidacy in a speech he gave to law students at Georgetown Law School. That speech was followed by one Obama, himself, gave to Chicago Law School Students, where, ironically enough, the President had, at one time, taught “Constitutional law” – with emphasis, since he became President, more on the “CON” and less on the “LAW.” Harry Reid, Senate Minority Leader, added his two-cents on the Floor of the Senate, as well.The cacophony of gushing praise continues unabated through endless iterations. Most disheartening, several liberal law scholars have added their own voice to the mix. They claimed, in a letter sent by email, on March 31, addressed to Senators Grassley and Leahy, that no inference can be drawn from Garland’s judicial record to suggest that Garland would pose a threat to the preservation of the Second Amendment were he to gain a seat on the high Court.The central theme of the scholars’ letter to Senators Grassley and Leahy is that Garland’s actions in the Parker and Reno cases do not illustrate anything that might hint of the Judge’s legal and philosophical views toward the Second Amendment. We, at the Arbalest Quarrel, however, vehemently disagree with that assertion. Parker and Reno tell the public much about Garland’s jurisprudence and methodological approach to Second Amendment legal and logical analysis. The Scholars’ letter is cagey because they hesitate to assert that Garland would be an avid defender of the Second Amendment – which in definitive contrast, as we know, Justice Scalia definitely was.The Arbalest Quarrel therefore felt compelled to send out its own letter to Senator Grassley, in rebuttal to the March 31 letter the Senator received from the liberal legal scholars. We have posted our letter for your review, in an accompanying post on this site. Please see the Professors' March 31 letter sent by email to Senators Grassley and Leahy, for a side-by-side comparison.We feel it important to respond to the letter from academia for another reason. The academicians’ letter marks the first instance, we are aware of, that provides for public consumption something transcending empty praise – insofar as the letter actually discusses the Judge’s decisional law.There are two things Americans must keep uppermost in mind, concerning Obama’s most recent nomination to the U.S. Supreme Court.One, Garland’s jurisprudential philosophy toward the Second Amendment and the methodology he uses to decide legal cases are in perfect sync with those of Justices Kagan and Sotomayor. So, don’t for a second think that Judge Garland is a “centrist” – a word invented by the news media to describe him. As applied to Garland, the word is inappropriate, even deceptive. What is our justification for saying this?Consider the jurisprudential philosophy of Justices Kagan and Sotomayor, Obama’s first two short-list nominees to sit on the U.S. Supreme Court. Their view of the Second Amendment and the methodology they employ to decide cases are now well known. Their attitude toward the Second Amendment, in particular, is not one of deference. It is one diametrically opposed to that of the late Justice Scalia.It would stretch credulity to believe that Obama would nominate a person to the high Court who did not share his own views toward the Bill of Rights in general and toward the Second Amendment in particular. Justices Kagan and Sotomayor clearly share Obama’s views. Judge Merrick Garland is no different. The three Judges, Kagan, Sotomayor, and Garland, think alike, act alike, and operate as one. Together, they comprise three arms of a “Judicial Equilateral Triangle,” by which and through which Obama intends to defeat the Second Amendment.Two, if the Senate acquiesces to the shrill, belligerent cries for a hearing and vote on Garland’s nomination to a seat on the U.S. Supreme Court, Garland likely will be confirmed. How do we know this? Senator Lindsey Graham, Republican South Carolina, who met with Judge Garland, briefly discussed that meeting with Kate Bolduan, broadcast journalist for CNN, on Thursday, April 21, 2016.Yes, Senator Graham did assert there is less than a “snowball’s chance” that the Senate will relent and give Garland a hearing while Obama remains in Office. But, he added a chilling prognostication. He made poignantly clear that, if the next President were to nominate Garland and if the Senate, at that time, proceeds to a hearing and vote, Garland will be confirmed.By the way, Senator Graham, voted to confirm Obama’s previous two nominees to the Supreme Court: Sotomayor and Kagan. He made clear enough, during the CNN interview, he would vote to confirm Garland too were the Senate to hold a hearing on the nomination.During the interview on CNN, Senator Graham referred to Garland, as “a good man,” “a fine man.” The Senator added: “not one blemish on [Garland’s] record.” We must ask: is Senator Graham familiar with the Judge’s decisional law? If so, the Senator does not, apparently, see that Garland’s antagonism toward the Second Amendment constitutes “a blemish.” How many other Republicans would vote to confirm Judge Garland’s nomination to a seat on the U.S. Supreme Court?Of course if Hillary Clinton – who is virtually assured of the Democratic Party nomination for U.S. President – becomes the next President of the United States, assuming she doesn’t face criminal indictment, the Second Amendment will be under incessant attack by the three Branches of Government. It will be under attack in the Halls of Congress; it will be under attack in the Executive Office; and it will be under attack in the highest Court of the Land. The public will witness the liberal wing of the Court systematically out-voting the conservative wing, 5 to 4, on matters directly impacting the Bill of Rights, at every turn. Justice Scalia’s legacy on the high Court will be undone.The bottom line: The U.S. Senate should not and better not accede to a hearing on Obama’s nomination of Garland on the U.S. Supreme Court. We cannot let Obama stack the deck with another liberal Justice who will destroy our sacred Bill of Rights by judicial fiat. Hopefully, a Republican President will succeed Obama and nominate a Jurist to the high Court whose jurisprudential philosophy and methodology for reviewing cases is in the same vein as that of Justice Scalia. But God help the American people if Hillary Clinton becomes the 45^th President of the United States. We all know what that portends for the Nation, its citizenry, and for the Bill of Rights. It won’t be pleasant.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

JUDGE MERRICK GARLAND DOES NOT ADHERE TO THE METHODOLOGY THAT JUSTICE ANTONIN SCALIA EMPLOYED WHEN DECIDING CASES.

JUDGE MERRICK GARLAND DOES NOT ADHERE TO THE METHODOLOGY THAT JUSTICE ANTONIN SCALIA EMPLOYED WHEN DECIDING CASES.

AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO

PART 7

U.S. Supreme Court Justice Antonin Scalia always adhered to the principle that, when interpreting a Statute, a Judge should look first and foremost to the language of the Statute itself and not attempt to go beyond the language of a Statute in order to decipher its meaning or to force a particular meaning onto a Statute. This is the principle referred to as ‘textualism,’and Justice Scalia was a fervent proponent of it. He was, as well, instrumental in its development during his own tenure as Judge on the United States Court of Appeals for the District of Columbia Circuit. He further developed and refined its use when he was nominated by President Ronald Reagan to serve as an Associate Justice on the U.S. Supreme Court and confirmed by the United States Senate in 1986. He served brilliantly on the Court until his death on February 13, 2016. Other Justices began to employ the methodology of 'textualism' in their own reasoning.Justice Scalia saw, in the utilization of ‘textualism,’ a tool that guards against a Judge inadvertently, or, for that matter, deliberately thrusting that Judge’s personal judicial predilections on a case in order to force through a conclusion and a decision that a Judge wants, rather than a conclusion and decision that is founded on good law and upon sound logic. The judicial theory of ‘textualism’ means that, when a Judge seeks to discern the meaning of a Statute, the Judge looks to what the Statute actually says. That is to say, one looks to the “plain meaning” of a Statute. Textualism also requires a Judge to look only to the plain meaning of a Statute as enacted. One should not and need not go to extraneous sources for information on what a Statute might mean. To do so leads to embellishment and is an anathema to sound legal reasoning.During his tenure as a United States Supreme Court Justice, Justice Scalia had a tremendous impact, not only on the decisions handed down in numerous U.S. Supreme Court cases, but on suggesting how Justices ought to look at cases – that is to say -- the manner in which Justices ought to tackle a case -- applying sound legal and logical reasoning to a case so as to come to a sound legal and logical decision and, just as importantly, what a Justice should avoid doing when deciding a case. The methodology of textualism became incorporated in the legal reasoning of many of the Justices.The Reno case is a textbook example of poor legal and logical reasoning by the Court's majority and aptly illustrates the dangers a Jurist runs into when that Jurist goes beyond the plain meaning of a Statute as enacted. The Reno case would have been decided much differently had Justice Scalia, sitting as Judge Scalia on the United States Court of Appeals for the District of Columbia Circuit, actually heard the case. Justice Scalia would have undoubtedly taken Judges Tatel and Garland to task for looking beyond the plain meaning of 18 U.S.C. § 922(t)(2)(c)(C). For having done so, Judges Tatel and Garland came to the wrong decision in the case. And, they did, so because they looked deep into and took into account the Legislative history of the Statute in question, in order, as they argue, to decipher the meaning of the Statute. They did this when it was unnecessary to do so. They did so because they wished to come to the decision they did. This amounts to intellectual dishonesty, and, indeed, to legal and logical heresy.Judges Tatel and Garland did so, clearly enough, not to derive the correct decision, but, rather, to justify an erroneous decision that might come across as a plausibly correct one. In so doing, they relinquished judicial honesty in order to promote their own brand of legal philosophy and ideology – one that is detrimental to the sanctity of the Second Amendment of the Bill of Rights.

THE CHEVRON CASE

The decision of the Court’s majority – Judges Tatel and Garland – in the Reno case, is also grounded on a misapplication of the U.S. Supreme Court case, Chevron U.S.A. Inc. vs. Natural Resources Defense Council, Inc., 467 U.S. 837, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). Judges Tatel and Garland pointed out that, because NRA had challenged the legality of a federal Statute, administered by a government agency, the Court must employ the two-part Chevron test. That is true enough, and the first part of the test requires a Court to determine whether Congress has directly spoken to the precise issue. In this case, the precise issue is whether the meaning of the phrase, “destroy all records,”  of a gun transaction, as the phrase  “destroy all records,”  appears in the Statute subsection, 18 U.S.C. § 922(t)(2)(c)(C),  is clear and unambiguous. If so, that ends the matter. If not, then a Court must go to the second part of the Chevron test and ask whether the agency’s answer -- as exemplified in the rules that an agency promulgates to effectuate the intent of Congress as expressed in a Congressional enactment -- is based on a permissible construction of the statute. In the instant case the Justice Department has promulgated a rule creating an “audit log,” allowing for retention of information concerning a gun transaction within a six-month period.Judges Tatel and Garland decided, erroneously, that Congress did not intend that gun transaction records must be destroyed immediately because, as the Court said, Congress would have drafted the Brady Act legislation to include the word, ‘immediately.’ But, this really begs the question at issue: whether the Statute in question, 18 U.S.C. § 922(t)(2)(c), and, specifically, subsection, 18 U.S.C. § 922(t)(2)(c)(C), is inherently, intrinsically ambiguous because the word, 'immediately,' does not happen to follow the word, 'records,' in the phrase, 'destroy all records.' But, the Court's majority inferred that 18 U.S.C. § 922(t)(2)(c)(C) is inherently ambiguous because the Court's majority, Judges Tatel and Garland, decided that it must look to Legislative history to resolve the presumed ambiguity – when there was no sound legal or logical reason to do so. Having found, in Legislative history, that the House version of 18 U.S.C. § 922(t)(2)(c)(C) contained the word, 'immediately,' but that the Statutory subsection, as redrafted in the Senate version, and as ultimately enacted, did not include the word, 'immediately,' the Court's majority inferred that the omission of the word, 'immediately,' in the final version of the Brady Act, as enacted, was ambiguous as to retention of NICS records.Is this to say that the Statutory subsection as enacted is inherently ambiguous? That is unlikely. For, if that were true, one would have to surmise that Congress had decided, for some bizarre reason, to craft a Statute that Congress knew would be ambiguous. What kind of guidance would that have provided for the Second Branch of Government -- the Executive Branch -- the Branch of Government charged with executing the laws of Congress, under Article 2, Section 3 of the U.S. Constitution. Article 2, Section 3 of the U.S. Constitution  requires that the Executive "shall take care that the laws be faithfully executed." More likely, Congress realized that inclusion of a qualifier, in the phrase, "destroy all records," is unnecessary because inclusion  of the adverb, 'immediately,' to the phrase, 'destroy all records,' simply creates redundancy. Moreover, had Judges Tatel and Garland not bothered to look at the Legislative history of the Statute, 18 U.S.C. § 922(t)(2)(c), they would not have come across the House version of the Statute in the first place. The Judges simply used a House version of a bill -- that was never enacted -- to argue, after the fact, that the version of the Statute as enacted must be ambiguous, when it never was ambiguous.In looking improperly to Legislative history, Judges Tatel and Garland provided, to their minds at least, a plausible argument to buttress the result they wanted, namely that the Justice Department “audit log” and “retention rule” were consistent with the intent of Congress when Congress enacted the Brady Act, notwithstanding that law and logic dictate another result entirely: that the “audit log” and “retention rule” -- for individuals who are under no disability and, therefore,  are lawfully permitted to possess firearms and ammunition -- is not authorized and is patently illegal. Had Judges Tatel and Garland employed the sound jurisprudential methodology developed by Justice Scalia, textualism, they would have avoided the tortuous path that led them to the wrong decision. The Judges would have been compelled to find in favor of NRA, reversing the decision of the United States District Court for the District of Columbia. In that event the decision in favor of NRA would have been unanimous. All three Federal Circuit Court of Appeals Judges, Tatel, Sentelle, and Garland would be in full agreement. Judges Tatel and Garland might not have liked the result deriving from sound legal and logical reasoning, but they would have been intellectually honest about it and their judicial integrity would have be intact. The Separation of Powers Doctrine would have been adhered to, and the American People would not be faced with the prospect of an illegal Government intrusion into the exercise of the fundamental right of the people to keep and bear arms. It is not the Government's business to keep records on law-abiding citizens lawful firearms and ammunition transactions, and it was never the intent of Congress to give the federal Government authorization under the Brady Act, or under any other federal Act, for that matter, to keep tabs on firearms and ammunition that law-abiding American citizens own and possess; nor does the Brady Act, or any other Act of Congress authorize Government to keep records on the mere fact that a firearms' or ammunition transaction has taken place.That Judges Tatel and Garland allowed personal sentiment to override judicial integrity and intellectual honesty – even going so far as to canvass Congressional history to buttress a horribly wrong decision – now allows the Justice Department to maintain an illegal “audit log,” of gun transaction records, that lends itself to the creation of an illicit federal gun registry if such does not already exist. Having found 18 U.S.C. § 922(t)(2)(c)(C) to be inherently ambiguous, the Judges compounded their error by proceeding to Step 2 of the Chevron test which, "affords substantial deference to the agency's interpretation of statutory language." That may be, but it need not be, and would not be had Judges Tatel and Garland refrained from proceeding to Step 2 of the Chevron case in the first instance.The decision of Judges Tatel and Garland tells us that the Janet Reno’s rules for implementing the NICS criminal background check system is all perfectly consistent with Congressional intent in having enacted the Brady Act when the Justice Department’s actions amount to illegal usurpation of the power and authority of Congress, the First Branch of Government. The duties of the Second Branch of Government, the Executive, of which the Justice Department is a part, is limited to executing the laws that Congress creates – not creating law of its own accord. The Justice Department has done so, converting the Brady Act’s NICS instant criminal background check system into an illegal federal gun registry or, at least – in the rules that the Justice Department has promulgated – certainly paving the way for creation of an illicit federal gun registry. And, the Court's erroneous ruling in Reno gives the Justice Department's illicit actions legitimacy.In finding ambiguity in a Statute when no ambiguity exists Judges Tatel and Garland open up a door to grandiose interpretation of Congressional enactments on the part of the Executive Branch. So, if the President -- which includes the entirety of the Executive Branch departments, agencies, and bureaus under the President's control -- takes exception to restrictions in Congressional enactments, the Executive can simply ignore the restrictions and go its own way. This is what happened with the instant criminal background check as applied to individuals who seek to acquire firearms or ammunition. Judges Tatel and Garland have allowed for the creation of a hidden federal gun and ammunition registry, irrespective of and, in fact, in clear defiance of Congressional intent. The decision of the majority in the Reno case is an example, as well, of heinous Judicial activism and is an omen of things to come if Judge Garland succeeds to a seat on the U.S. Supreme Court -- giving the liberal wing of the high Court a critical fifth vote, a clear majority, and an unparalleled opportunity to pursue a Socialist agenda, inconsistent with our core values as exemplified by and preserved in our Nation's Bill of Rights. The liberal wing the high Court will, hereafter, be able to operate unimpeded by the conservative wing of the high Court.

CONCLUSION

Judge Tatel has not been nominated by President Obama to replace Justice Scalia; and, so, the damage that he might inflict on the Bill of Rights, although certainly harmful to the preservation of the Second Amendment is probably not catastrophic. But, Judge Garland has been nominated by Obama to serve as Justice Scalia’s replacement.Judge Garland, sitting on the high Court, as Justice Garland, will be in the strongest possible position not merely to subvert Justice Scalia’s decisional history; Judge Garland will be in a position to subvert Justice Scalia’s jurisprudential philosophy that also includes Justice Scalia’s legisprudential approach to statutory construction – all of which lend to the ultimate demise of the Second Amendment and much of the rest of the Bill of Rights along with it. Understandably, President Barack Obama would like to keep these facts well hidden.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE FLAWS IN JUDGE GARLAND’S REASONING

THE FLAWS IN JUDGE GARLAND’S REASONING

AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO

PART 5

RECAP

We have been taking a close look at the case, National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. 2000). We have done so because an analysis of this Second Amendment case provides us with the clearest barometer of what the American people can expect if President Obama were to successfully position Judge Merrick Garland on the United States Supreme Court as a replacement for the late Justice Antonin Scalia. Judge Garland did not write the opinion. Judge Tatel did. But, Judge Garland agreed with both the decision and the reasoning of Judge Tatel. This means that Judge Garland could have penned the opinion himself. It is clear that Judge Garland does not have a high regard for the sanctity of the Second Amendment to the U.S. Constitution. In fact, coming away from an analysis of the Reno case, it becomes apparent to the perceptive reader that Judge Garland does not have any regard for the sanctity of the Second Amendment. So, if he were to gain a seat on the U.S. Supreme Court, the American people can begin ticking off the minutes of a clock. For, it would be merely a matter of time before Judge Garland, as the fifth critical vote on the liberal wing of the Court undermines and reverses the Justice Scalia not just on the seminal Second Amendment case, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268 (2008), but on Justice Scalia’s vast jurisprudence. That should provide conscientious Americans with some necessary food for thought. But, let’s get back to the Reno case.In Part 4 of this multi-part series we began drilling down into the guts of the reasoning of Judges Tatel and Garland. A critical part of the analysis of this case has to do with the meaning of the phrase, ‘destroy all records’ in reference to gun transactions as that phrase appears in a U.S. Code Section, 18 U.S.C. § 922(t)(2)(c)(C) of the Brady Act. What does that phrase mean in the context of the Statute?

DESTROY ALL RECORDS OF THE SYSTEM MEANS JUST THAT: DESTROY THOSE RECORDS AT ONCE!

NRA argues that, in the context 18 U.S.C. § 922(t)(2)(c)(C), inclusion of the adverb, ‘immediately,’ to the phrase, ‘destroy all records,’  is redundant; that it is clear enough in the language of the Statute that Congress intended the NICS to function as a database of information to be supplied to the gun dealer immediately – which it was meant to do – and that, since the execution mandate is immediate – either to allow the transaction to proceed or not to proceed – it stands to reason that, after “the call,” destruction of the records must proceed immediately as well.The Justice Department, though, argues that, nothing in the Federal Statute constrains the Department from holding onto gun transaction records for a period of time. In other words, the Justice Department says that the language of the Brady Act, specifically, the language of the Act, set forth in subsection 18 U.S.C. § 922(t)(2)(c)(C), does not require the Justice Department to destroy the records of the gun transaction immediately.Judges Tatel and Garland agreed with the reasoning of the Justice Department. The Judges opined that the clause, “destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer,” is ambiguous as to whether the Justice Department must destroy the records of the gun transaction immediately precisely because Congress could have added the word, ‘immediately,’ in 18 U.S.C. § 922(t)(2)(c)(C), and refrained from doing so. But is that reasoning sound? Definitely not!The dissenting Judge, on the three Judge panel, Judge Sentelle, agreed with NRA, opining that Congress gave no inherent power to the Justice Department to exceed the power of Congress and that the Justice Department has done just that by promulgating a rule that the Department shall hold onto the records – if necessary, six months – after the date of transfer. Judge Sentelle correctly pointed out that: the Justice Department cannot seize for itself additional powers to decide how long it decides to retain records of a gun transfer. Let’s take dissenting Judge Sentelle’s very reasonable point a step further. Suppose that, instead of use of the words, ‘destroy all records,’ 18 U.S.C. § 922(t)(2)(c)(C) read: “keep all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.” Now, suppose Janet Reno promulgated a rule allowing the Justice Department to keep all records for six months, or, for six weeks, or for six years, or, for that matter, for sixty years after which the Department would destroy all gun transaction records.Would it be reasonable to infer that, because Congress did not add the word, ‘indefinitely,’ or the word, 'forever,' to the phrase, ‘keep all records,’ the Justice Department would be correct to devise a rule, mandating that the Department shall keep records for a specified period of time, however long or short that period of time might be because Congress did not set forth in the Statute that NICS records must be kept forever, that is to say, ‘indefinitely'? In other words, would it be reasonable to construe the phrase, ‘keep all records,’ as inherently ambiguous or vague because Congress excluded the adjective, ‘forever,’ or the adverb, ‘indefinitely,’ from the phrase, ‘keep all records’? Would the addition of the adjective word, ‘forever,’ or the adverb, ‘indefinitely,’ to the phrase ‘keep all records’ add something, indeed anything, necessary to the meaning of the phrase, ‘keep all records,’ in the context of the Statute, 18 U.S.C. § 922(t)(2)(c)? Does the phrase, ‘keep all records’ so much as suggest that Congress is leaving it up to the Justice Department to decide whether, in the promulgation of rules to give efficacy to the Statute, that the phrase, ‘keep all records’ is straightforward on its face without need for further explication through the addition of the word, ‘forever,’ or ‘indefinitely,’ to the phrase, ‘keep all records;’ and, further, that the Justice Department would be perfectly correct in interpreting Congressional intent, if the Justice Department promulgated a rule that required the Department to keep NICS records for some definite period – whatever that period of time is – but still a period of time that is less than “forever” or “indefinitely” if the language of 18 U.S.C. § 922(t)(2)(c)(C) read, ‘keep all records’ (sans addition of the word, ‘forever,’ or addition of the word, ‘indefinitely’ to the Statute)? Is it not clear enough that the phrase, ‘keep all records’ means nothing more nor less than keep all records forever (or keep all records indefinitely)? If not, what more is to be gained through inclusion of the word, ‘forever,’ or the word, ‘indefinitely’ in the phrase, ‘keep all records?’ But, consistent with the reasoning of Judge Tatel and Judge Garland, it would be perfectly reasonable for the Justice Department to decide to keep NICS records for a specific period of time, less than indefinitely or forever, precisely because the Statute does not include the adverb, ‘indefinitely’ or the adjective, ‘forever,’ in the phrase, ‘keep all records.’ That is to say, the failure of Congress to add the word, ‘forever,’ or the word, ‘indefinitely,’ to the phrase, ‘keep all records,’ manifests ambiguity or vagueness. But, that idea is nonsensical. Moreover, it would be odd, to say the least, were Judges Tatel and Garland to insist that Janet Reno and her Justice Department, in their discretion, could decide to keep all NICS records for a limited period of time simply because Congress failed to assert, in the Statute, ‘keep all records forever’ or ‘keep all records indefinitely.’Yet, for two Judges who obviously have reservations about the sanctity of the Second Amendment it is difficult to believe that they would interpret the Statute as permitting the Justice Department to hold onto firearms’ transaction records for a period of time, but not necessarily indefinitely, were Congress to draft 18 U.S.C. § 922(t)(2)(c)(C) to read, ‘keep all records’ because, on the face of the Statute, ‘keep all records’ means that the Justice Department may ‘keep all records’ for howsoever long the Department wished to keep the records. But, consistent with the Court’s reasoning in the actual case, we would expect the Court to give to the Department of Justice the discretion to decide to keep NICS records for some period of time, less than forever, simply because Congress failed to include the obligatory word, ‘forever,’ or the word, ‘indefinitely,’ in the language of the Statute as ultimately enacted.Had the Statutory section in question been drafted to read, ‘keep all records,’ instead of ‘destroy all records,’ Judges Tatel and Garland, would be compelled to argue – consistent with their reasoning in the actual decision – that inclusion of the word, ‘indefinitely,’ or inclusion of the word, ‘forever,’ in the phrase, ‘keep all records,’ is necessary to the meaning of the phrase in the context of the overall Statute because, without a qualifier, the Statute is inherently ambiguous. Thus, in the absence of inclusion of one or the other word, the Justice Department can in its judgment, reasonably, sensibly keep NICS records for a period of time, namely, a period of time however long or short, relatively speaking, but not, in any event, necessarily indefinitely or forever. This reasoning is patently absurd, and the conclusion drawn from such reasoning would certainly be reprehensible to the sensibilities of Judges Tatel. But the illogical reasoning and resultant outcome both follow from the reasoning of Judges Tatel and Garland in the Reno case, as actually decided.Clearly, the addition of the adjective, ‘forever,’ or the addition of the  adverb, ‘indefinitely,’ is unnecessary verbiage precisely because addition of the adverb or adjective to the phrase, ‘keep all records,’ adds nothing critical to the phrase’s meaning whether considered alone or in the context of the overall Statute. Thus, were Congress to have drafted legislation, requiring the Justice Department ‘to keep all records,’ that phrase can rationally, logically mean nothing more nor less than “keep all records (forever) or (indefinitely).” The addition of a qualifier is not necessary for an English speaker and for a rational thinker to have a perfectly clear understanding of the phrase’s meaning.By the same token, adding the adverb, ‘immediately,’ to the verb, ‘destroy all records’ to the Statute, as the Statute was actually drafted, does not add anything critical to the meaning of it. Inclusion of the adverb, ‘immediately,’ is simply redundant. Therefore – and quite sensibly – Congress omitted the word from the final, Senate version of the Statute, 18 U.S.C. § 922(t)(2)(c). But, the reasoning of Judges Tatel and Garland require inclusion of the word, and that is bizarre logic.Perhaps Judge Garland, who has latched onto Judge Tatel’s decision and reasoning in the Reno case, is not such a keen, critical, methodical, meticulous, and logical thinker as Obama and the mainstream media would have the U.S. Senate and the American public believe him to be. Or, on the other hand, perhaps Judge Garland knows exactly what he is doing, and he manipulates both law and logic in a legal case to suit his needs as dictated by and consistent with his philosophy pertaining to the U.S. Constitution and, particularly, pertaining to the Bill of Rights.In Part 6 of this multi-series article we look to further flaws in the reasoning of Judges Tatel and Garland, when the two United States Court of Appeals Judges for the District of Columbia Circuit as can be gleaned from an analysis of the majority opinion the Reno case – a case decision at odds with the import and purport of the Second Amendment to the United States Constitution.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE GUN CONTROL ACT OF 1968 AND THE BRADY ACT OF 1993

THE GUN CONTROL ACT OF 1968 AND THE BRADY ACT OF 1993

AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO

PART 3

THE LANGUAGE OF THE GUN CONTROL ACT OF 1968

To understand the impetus behind the Attorney General’s actions that led to NRA’s action against the Attorney General and the Department of Justice, we need to take a look at the Gun Control Act of 1968. What does it say? The Gun Control Act of 1968, as set forth in the United States Code, 18 USCS § 922(g) or (n), provides that certain individuals, including, inter alia, convicted felons; fugitives from justice; aliens who are in this Country illegally; persons who have been adjudicated mentally defectives or who have been committed to a mental institution; members of the military who had received dishonorable discharges; individuals who have been convicted of a misdemeanor of domestic violence; or those Americans who have renounced their citizenship; shall not be permitted to possess a firearm or ammunition or to transfer or otherwise transport firearms or ammunition in interstate commerce. Ostensibly, in order to assist a federally licensed dealer in firearms in ascertaining whether an individual, who seeks to own and possess a firearm and/or ammunition, is permitted under State law or under the laws of the United States to do so, Congress enacted the Brady Handgun Violence Prevention Act of 1993. The Brady Act was subsumed into the broader Gun Control Act of 1968, becoming a critical component of the original Act, for antigun groups. The Brady Handgun Violence Prevention Act requires the Attorney General to establish a “national instant criminal background check system,” better known by the acronym, “NICS.” Three provisions of the Brady Handgun Violence Prevention Act, as set forth in 18 U.S.C. § 922(t)(2)(c), require the Justice Department to destroy records of those individuals – those American citizens – who are lawfully permitted, to possess firearms and ammunition under applicable federal law. The Brady Act, 18 U.S.C. § 922(t)(2)(c), does not, however, say anything about destruction of records of those individuals who are not permitted, under 18 U.S.C. § 922(g) or 18 U.S.C. § 922(n), or under State law, to possess firearms or ammunition.The instant background check system is presented by the proponents of the Brady Handgun Violence Prevention Act of 1993, and, as mentioned by the Court in the Reno case, to be a mechanism to assist a lawful, federally licensed dealer in firearms in determining, essentially instantaneously, whether a prospective purchaser of a firearm or firearms and/or ammunition is lawfully permitted, under federal and/or State law, to possess firearms and ammunition. If so, the transfer of one or more firearms and/or ammunition for a firearm is to proceed. Otherwise, the transaction cannot lawfully proceed. But, the Brady Act, as enacted, does not permit the Justice Department to create a backdoor gun registry program. Yet, this is precisely what the Justice Department would be doing if the Justice Department were to maintain NICS records on a firearms or ammunition transaction of a person who is lawfully permitted to own firearms and ammunition, after an NICS check of the prospective buyer of firearms or ammunition demonstrates that the purchaser is under no disability that would otherwise forbid the transaction from proceeding.But, what does 18 U.S.C. § 922(t)(2)(c) actually say about the retention or the destruction of NICS records as to those citizens who are lawfully permitted to possess a firearm. In pertinent part, the Statute says just this:“If receipt of a firearm would not violate section 18 USCS § 922(g) or (n) or State law, the system shall – (A) assign a unique identification number to the transfer;(B) provide the licensee with the number; and(C) destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer.”

THE LEGAL ISSUE

The paramount legal issue in the Reno case is directed to the meaning of the third requirement of 18 U.S.C. § 922(t)(2)(c) as set forth in 18 U.S.C. § 922(t)(2)(c)(C): namely, whether the Statutory section in question, paragraph “C,” prohibits the temporary retention of NICS records after the seller has conducted the NICS gun background check and has determined that the prospective buyer of a firearm and/or ammunition is not under disability that would otherwise preclude the transfer of the firearm or ammunition from going forward. Specifically, the question is whether the clause, “destroy all records of the system with respect to the call (other than the identifying number and the date the number was assigned) and all records of the system relating to the person or the transfer,” means “destroy immediately.”NRA argues that, in the context of the Statute, the defining clause, “destroy all records of the system with respect to the call” means “destroy immediately.” What NRA is saying is that the meaning of the Statute is simple, straightforward and unambiguous; that the unambiguous meaning of the Statute, as enacted, reflects the clear, categorical, and unequivocal intention of Congress; and, lastly, that since the meaning of the Statute is unambiguous on its face, there is no need to investigate the intention of Congress further.But, the Justice Department disagreed with NRA’s interpretation of the phrase, ‘destroy all records.’ And the Justice Department’s disagreement is exemplified in the rule the Department promulgated to effectuate what the Department understood to be the intention of Congress when Congress enacted the Brady Handgun Violence Prevention Act of 1993. That is to say, the Justice Department created an “audit log.” This audit log contains details of gun purchases. Specific information relating to gun purchases and the manner for retention and the length of time of retention of specific information related to all prospective sales of guns or ammunition is codified in the Code of Federal Regulations, namely, 28 C.F.R. § 25.9. Understandably, NRA is very concerned about the Justice Department’s creation of an audit log. For, the Statute, 18 U.S.C. § 922(t)(2)(c), does not speak of an “audit log.” It does not exist in the Congressional Act itself. It is, rather, a creature of the administrative regulations promulgated by the Justice Department to give efficacy to Congressional Legislation -- as the Justice Department happens to interpret that legislation. The creation of an “audit log” originated with the Justice Department. And therein is the rub. Was this necessary? Does the creation of an audit log and rules for retention of firearms' and ammunition transactions a reasonable interpretation of Federal Statute? That is to say, is the creation of an audit log and rules for retention of firearms and ammunition transactions by the Justice Department consistent with Congressional intention?The Justice Department believes so. But NRA argues, understandably, that the existence of an audit log amounts to a backdoor registry – something the Justice Department insists that the audit log isn’t. The Brady Handgun Violence Prevention Act specifically prohibits the creation of a firearms’ registry. As dissenting Judge Sentelle said, “The Brady Act contains an express provision headed ‘Prohibition Relating to Establishment of Registration Systems with Respect to Firearms.’ Pub. L. No. 103-159, Sec. 103(i), 107 Stat. at 1542.” The Section provides that “No Department, agency, officer, or employee of the United States may require that any record or portion thereof generated by the system established under this section be recorded at or transferred to a facility owned, managed, or controlled by the United States or any State or political subdivision thereof.” Presumably, Senate and House Republicans would not have voted for the Brady Act had the Act specifically included or even allowed for the creation of such a federal firearms' registry.

WHAT IS THE JUSTICE DEPARTMENT’S AUDIT LOG?

As a Department of Government, the Justice Department is tasked with promulgating rules to implement NICS. The Justice Department’s rules for NICS are set forth in the Code of Federal Regulations, 28 C.F.R. § 25.6. This rule establishes the “Audit Log.” NRA contends, quite reasonably, that the “Audit Log” is itself a form of registration because the Justice Department is retaining records of a request to purchase a firearm and/or ammunition even if the information that the Justice Department is retaining does not specify the type or kind of weapon and/or ammunition purchased or, for that matter, whether the sales transaction was even completed. In particular the Justice Department creates a tracking number assigned to all firearms’ transactions. This tracking number is referred to as an “NTN.” 28 C.F.R. § 25.2 says this about the NTN: “NTN (NICS Transaction Number) means the unique number that will be assigned to each valid background check inquiry received by the NICS. Its primary purpose will be to provide a means of associating inquiries to the NICS with the responses provided by the NICS to the FFLs.” The audit log also includes a list of names of individuals who are approved to purchase firearms.Judges Tatel and Garland, arguing for the majority of the Court, curiously admit that the Justice Department’s Audit Log could in fact “function as a firearm registry,” which is patently illegal, but then dismiss the very point they make, by asserting that the Audit Log would not be a useful registry because of deficiencies in the system. Are the Judges then implying that the audit log is a firearms’ registry but that, as a registry, Congress and the American people should accept it, and not be concerned about it, because the audit log is not a very good registry? Does this not demonstrate a flaw in the Judges’ reasoning – bad enough for Judge Tatel, but altogether unacceptable for Judge Garland who would, if President Obama had his way, be headed for a seat on the high Court?Judges Tatel and Garland also assert that, even if the Justice Department does keep specific information of firearms’ transactions of those citizens who are permitted lawfully to possess firearms, the audit log data of permitted firearms’ transactions is purged after six months; the data isn't retained indefinitely. So, the question comes down to whether the language of the Brady Act authorizes the Justice Department to keep data, for any length of time, on individuals who are lawfully permitted to possess firearms. Once again, Judges Tatel and Garland are suggesting that keeping records for six months is no big deal. But is it a big deal? It certainly is a big deal if the intention of Congress when it enacted 18 U.S.C. § 922(t)(2)(c) of the Brady Act intended for the Justice Department never to retain records of gun or ammunition transactions that are authorized to go through which means, as NRA rationally argues that the Justice Department is required to destroy those transaction records immediately.The NRA contends, justifiably, that the Justice Department’s audit log rule is patently illegal and that the Brady Act does not permit the Justice Department to keep records for any length of time. Dissenting Judge Sentelle agreed, pointing out that for the Justice Department to promulgate rules specifying retention of records for any length of time amounts to a gross misuse of executive power.Judge Garland, though, agreeing with both the decision and reasoning of Judge Tatel who wrote the opinion for the majority in the Reno case does not see a problem, arising to Constitutional dimensions with the Executive Branch's Justice Department intruding upon the exclusive province of the Legislative Branch of Government. This requires us to ask whether Judge Garland, sitting on the United States Supreme Court, as Justice Garland, would himself utilize the third Branch of Government, the Judicial Branch, not merely to interpret the law but to make law, and, hence, actively use the power of the Judiciary not to preserve and strengthen the Bill of Rights but to weaken, allowing the Executive Branch of Government to usurp ever more powers unto itself at the expense of the People.In the next few articles we will continue our criticism of the majority opinion in the Reno case pointing to further flaws in the reasoning of Judges Tatel and Garland.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

JUDGE GARLAND SPURNS NRA OBJECTIONS TO JUSTICE DEPARTMENT COLLECTION OF GUN OWNER INFORMATION UNDER BRADY ACT

JUDGE GARLAND SPURNS NRA OBJECTIONS TO JUSTICE DEPARTMENT COLLECTION OF GUN OWNER INFORMATION UNDER BRADY ACT

PART 2

AN ANALYSIS OF THE CASE NRA VERSUS JANET RENO

INTRODUCTION

President Barack Obama and those who support the nomination of Judge Merrick Garland to the U.S. Supreme Court wax poetic about Judge Garland’s many positive traits, naming among these: great intelligence, perceptive analytical ability, meticulous, methodical attention to detail when deciding a case, personal integrity, collegiality, even modesty – and so forth and so on. But, it is most remarkable that, for all of this effulgent, indeed effusive praise, little, if anything is said by the Judge’s proponents and benefactors about the cases Judge Merrick Garland has actually decided and, too, the reasoning Judge Garland employs when deciding a case.So, to fill in that gap, we look at a critical Second Amendment case that Judge Merrick decided as Judge on the United States Court of Appeals for the District of Columbia Circuit. A close look at that case will give both the U.S. Senate and the American public a nice snapshot of how Judge Merrick Garland, sitting on the U.S. Supreme Court as Justice Associate Justice Garland, would likely decide Second Amendment cases that come before the high Court. The U.S. Court of Appeals case that we will be looking at was decided in the first year of the twenty-first century. It is titled, National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000).Our analysis of this case illustrates that, while Judge Garland may be a meticulous, methodical thinker, this does not mean he is not prone to committing errors in both law and logic; and an analysis of the Reno case illustrates many such errors. These errors are compounded by or, perhaps, due precisely to Judge Garland’s evident antipathy toward the Second Amendment. One’s ideological and philosophical bent toward the Bill of Rights does follow one – all the way to the U.S. Supreme Court.

THE IMPORT OF THE RENO CASE

The Reno case involves the proper meaning to be given to one clause in one paragraph of one section of the Gun Control Act of 1968. The case involves, what, at first glance, may seem to be an uninteresting, arcane issue of pertaining to statutory construction. Yet, the central theme of the case should be of concern to any American who expresses even a modicum of interest in the preserving the Second Amendment. The case pertains to criminal background checks on persons who wish to purchase firearms or ammunition.The use of the criminal background check system devised by the Justice Department operates as an end-run around the Second Amendment because it serves to weaken the Second Amendment of the United States Constitution. The argument evinced by antigun groups and by their proponents in State Legislatures, in the U.S. Congress, and in the White House is that criminal background checks simply help keep guns out of the wrong hands and do nothing to preclude the law-abiding citizen from possessing firearms.What is left unsaid, though, is that gun background checks are often backdoor gun registration schemes or, at least, mechanisms that can evolve into gun registration schemes. This is a decidedly bad thing to countenance in a free Republic. It is just this sort of backdoor scheme that the Justice Department created when it promulgated rules to effectuate the instant background check program enacted by Congress in 1993. The Justice Department had no authority, though, to create what amounts to or, at least, may eventually evolve into, a hidden federal firearms’ registration program. The rules that Reno’s Justice Department created to implement Congressional legislation is cause for alarm. The NRA thereupon brought action against Janet Reno, Attorney General, challenging the legality of the Justice Department’s criminal background check rules related to gun transactions. The United States District Court for the District of Columbia dismissed NRA’s Complaint against the Attorney General. NRA then appealed the adverse decision of the lower United States District Court to the United States Court of Appeals for the District of Columbia Circuit. The case was heard by a panel of three Judges, namely, Judges, Tatel, Garland, and Sentelle. Two of the three Judges, Tatel and Garland, ruled in favor of the Attorney General, against NRA, thereby affirming the decision of the lower Court, against NRA. Judge Tatel wrote the opinion for the majority. Judge Garland, Obama’s nominee to replace Justice Antonin Scalia on the United States Supreme Court agreed with both the decision and the reasoning of Judge Tatel, thereby making Judge Tatel’s opinion essentially his own as well. Judge Sentelle wrote a scathing dissenting opinion.The dissenting Judge agreed with NRA and chastised the Attorney General, Janet Reno, asserting that the national instant criminal background check system “statute establishes that Congress has unambiguously told the Attorney General that she shall not do what she is doing in the regulations.” Judges Garland and Tatel, however, disagreed with NRA's arguments, striking a blow to the Second Amendment. Since two Judges out of three ruled in favor of Janet Reno, we are stuck with bad law.To understand why the Justice Department’s actions do cause and should cause alarm to Americans who hold the Second Amendment sacrosanct and inviolate we need to take a look, briefly, at the Gun Control Act of 1968 and to the Brady Handgun Violence Prevention Act of 1993 that amends the Gun Control Act of 1968. We do so in Part 3 of this multi-series article.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

JUDGE GARLAND AND THE SECOND AMENDMENT: HOW DOES JUDGE MERRICK GARLAND FARE AGAINST JUSTICE ANTONIN SCALIA

JUDGE GARLAND AND THE SECOND AMENDMENT: HOW DOES JUDGE MERRICK GARLAND FARE AGAINST JUSTICE ANTONIN SCALIA

PART 1

PREFACE TO ANALYSIS OF THE CASE NRA VERSUS JANET RENO

To test the caliber of a person who would serve as a Justice of the United States Supreme Court – the one Court constituting the Supreme Judicial power in the Land and constituting, as well, the third essential Branch of Government, as established by Article 3, Section 1 of the United States Constitution – which says, in pertinent part, “[t]he judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish” – we do look to that person’s intelligence certainly. But great intelligence, while certainly a necessary characteristic of a Justice, does not, of itself, a great Justice make.Much has been made and, undoubtedly, will continue to be made of Judge Garland’s formidable intellectual prowess. A litany of Judge Garland’s intellectual gifts is a continuous refrain we hear from the Judge’s benefactors and proponents. But, when recited in a vacuum, as it invariably is, such praise amounts to little more than empty rhetoric.Of course a person who is gifted with great intelligence – when such intelligence is also coupled with and tempered by collegiality – another quality often attributed to Judge Garland – would seem to be a most suitable candidate to serve on the U.S. Supreme Court. But, is such a person really suitable to serve as Justice on the highest Court of the Land? If a person is indifferent to or contemptuous of our Nation’s Bill of Rights ought that person serve on the highest Court of the Land if, on balance, that person has so many strong qualities, skills, and attributes to be brought to the high Court? We do not believe so.For, such a person, who is indifferent to, places minimal emphasis on, or is altogether contemptuous of our sacred Bill of Rights, is a person who is capable of doing incredible damage to the well-being of a free Republic if confirmed by the U. S. Senate to sit on the highest Court of the Land. For the decisions of the U.S. Supreme Court Justice – even those of a dissenting Justice on the high Court – can have a decided and decisive impact – for good or ill – on our Nation’s institutions, on the continued presence of our Nation’s core values, on the nature of the education of our children, and in the well-being of every American citizen.Thus, we must look to other aspects of a person to ascertain whether, for the good of the Country and for its citizens, that person is best suited to be ensconced as a Justice in our third Branch of Government and therein do service on behalf of the American People – for life or until that Justice otherwise decides, as did Justice Sandra Day O’Connor and Justice David Souter, to retire from the high Court. The work of a Justice becomes so much more important when the other Two Branches fall short – all too often, far short – of their duty to the Nation, to its People, and to the Bill of Rights of the U.S. Constitution. So, we must ask: while character and integrity of a person are certainly critical factors for consideration, along with a perceptive mind and keen intelligence, to what does that person’s character and integrity, perceptiveness and intelligence, as a Jurist extend? Does that person exhibit reverence to and uncompromising devotion toward our Bill of Rights? Or, does that person consider our Bill of Rights dispensable?The first Ten Amendments that comprise our Bill of Rights are, together, the one critical component of the U.S. Constitution that operates as the ultimate restraint on the power of the federal Government and on its standing army to suppress the Nation’s citizenry. The Bill of Rights establishes, in no uncertain terms, that such power and authority the federal government exercises is limited and is granted to the government by the American people in whom absolute power resides and for such period of time that the federal government and its standing army do not forget in whom ultimate and absolute power resides. Thus, a person’s character and integrity, perceptiveness and intelligence are critical factors for consideration but they must be tied to a Jurist’s philosophical attitude toward the American citizenry’s Bill of Rights.So, how does Judge Merrick Garland fare, apropos of one clear and unequivocal right of the people – the Right of the People to keep and bear arms. The case, National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000) offers a clear, unmistakable, and disturbing clue. The case was decided by a three Court panel that consisted of Judges, Sentelle, Tatel, and Judge Garland, the last of whom is President Barack Obama’s nominee, whom the President has nominated to replace the late Justice, Antonin Scalia, on the high Court.The decision in the Reno case wasn’t unanimous. Judge Tatel wrote the opinion of the Court and Judge Garland agreed with it. Judge Sentelle was the lone Judge, of the three who decided the case, who dissented from the majority opinion. The two member majority, consisting of Judges Tatel and Garland, affirmed the decision of the District Court, for Defendant Appellee, Justice Department Attorney General Janet Reno, against Plaintiff Appellant, NRA, dismissing NRA’s complaint.Keep in mind that, even though Judge Garland did not write the opinion of the Court, the fact that he signed on to it means he agreed with both the decision of Judge Tatel and with Judge Tatel’s reasoning in it. What does that mean? Just this: Had Judge Garland agreed with the decision but disagreed in whole or in part with Judge Tatel’s reasoning, Judge Garland would have written his own concurring opinion; and had Judge Garland disagreed with the decision, then the decision of the District Court would have been reversed and Judge Tatel’s majority opinion would have been a minority dissenting opinion. The two members, Sentelle and Garland, would then have decided in favor of Plaintiff Appellant, NRA, against Defendant Appellee, Janet Reno, thereby reversing the decision of the lower District Court. But that did not happen! The NRA lost and so did those Americans who live in the District of Columbia, and by extension, so did Americans who live throughout the United States because of the impact that a decision of the U.S. Court of Appeals for the District of Columbia Circuit often has on the rest of the Country. The decision in the Reno case has general application beyond the District of Columbia. Moreover, other United States Circuit Courts of Appeal give deference to a decision of the United States Court of Appeals for the District of Columbia Circuit. The U.S. Court of Appeals for the District of Columbia Circuit is considered the most influential Court in our Federal and State Court System second only to the United States Supreme Court itself.In the next article we look at the particulars of the Reno case. You will come to see that, although, President Obama, argues, as do others who support the President’s nomination, that Judge Garland is a brilliant, thoughtful, meticulous jurist, Judge Garland’s reasoning, as an extension of Judge Tatel who wrote the opinion, is both legally and logically suspect in the Reno case. The reasoning is fraught with legal and logical errors.Of late, we have heard from Vice President Joe Biden, Senate Minority Leader, Harry Reid. Even a few – very few – Republican Senators have chimed in on behalf of Judge Garland. But the U.S. Senate should hold fast, and deny a confirmation hearing. Why do we say this? We say this because Judge Garland, sitting on the high Court as Justice Garland, would change the composition of the Court, and we are not talking here of the obvious change in numerical composition – back to the seeming “magic number, nine.” We are talking here of  substantive and substantial compositional changes in the temperament of the high Court; a quantum change in the manner in which the new majority of Justices – Ginsberg, Breyer, Sotomayor, Kagan, and Garland – would decide cases; the rationale the new majority would use; the peculiar legal and logical tests the new majority would employ; the upheavals to Justice Scalia’s legacy on the high Court the new majority would make; of the cases that the new majority would overturn; and a reduction in the emphasis on our National Sovereignty and on the U.S. Constitution in favor of a new international perspective the new majority would introduce. How do we know this?Analysis of actual case law always elicits the truth – the proof of the pudding. So it is that those who trumpet the greatness of Judge Garland do so without bothering to look at the cases he decided during the Judge’s tenure on the U.S. Court of Appeals for the District of Columbia Circuit. It is what Judge Garland’s supporters don’t say about Judge Garland that is worrisome. They don’t discuss the cases he decided and the legal and logical tests he employed in rendering those decisions. For what a person does as a Judge -- that Jurist's ideology and philosophy and methodology of reasoning -- goes with him when that Judge sits as a Justice on the U.S. Supreme Court.Truth always trumps rhetoric. Rhetoric is often eloquent, even effusive. Truth is often blunt; not pretty; it goes down hard. In the ultimate analysis, though, truth always trumps rhetoric. A pity that truth, unlike rhetoric, is something in consistently short supply in the realm of politics.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

THE U.S. SENATE MUST HOLD FIRM: OBAMA’S DARLING CHILD, JUDGE MERRICK GARLAND, MUST NOT GAIN JUSTICE SCALIA’S SEAT ON THE U.S. SUPREME COURT

THE U.S. SENATE MUST HOLD FIRM: OBAMA’S DARLING CHILD, JUDGE MERRICK GARLAND, MUST NOT GAIN JUSTICE SCALIA’S SEAT ON THE U.S. SUPREME COURT

Obama is tenacious. His intention to make Judge Merrick Garland a Justice of the U.S. Supreme Court will not let up. If anything, Obama’s efforts to place Judge Garland on the high Court are gathering steam. Obama is continuously thrusting Judge Garland into the limelight.Obama is well aware that, if the Senate relents and allows a hearing on Judge Garland’s confirmation, Judge Garland is very likely to become a U.S. Supreme Court Justice, replacing the late Justice Antonin Scalia. If that should occur, Obama’s goal of control over the Judiciary will be complete. Obama will be three for three on his Judicial nominees, and the liberal wing of the Judiciary will have a clear majority. The Democrats would love to see this. That is bad enough. What is worse, two Republican Senators, Mark Kirk of Illinois, and Susan Collins of Maine, have called for a hearing and vote on Obama's nominee, in defiance of Senate Mitch McConnel’s clear orders to Republican Senators that they hold firm: no hearing on Obama’s nominee, Judge Garland!Senator Kirk isn't listening to Senate Majority Leader Mitch McConnel. But, then, Senator Kirk is a virulent opponent of the Second amendment. That, we know; and Senator Susan Collins views on the Second Amendment are suspect now in light of her support for a hearing and vote on Garland’s nomination to the Supreme Court, in defiance of Senate Majority Leader, Mitch McConnel’s call to Senate Republicans to hold firm.Hardly a day goes by without Obama thrusting Judge Garland like a dart into the Senate’s eye. And the mainstream media is doing its part as a puppet of the Obama Administration to keep Garland’s name and photo before the public. The New York Times reported, Tuesday, April 12, 2015, in a news article titled, "Senator Grassley and Judge Garland Meet and Rehash the Obvious," that Judge Garland had an informal meeting over breakfast in the Senate dining room.Although several other Republican Senators have previously met with Judge Garland and have talked informally with him – and more Republican Senators will likely meet with Judge Garland in the near future – a meeting between Senator Grassley and Judge Garland is especially ominous because Senator Grassley is Chairman of the powerful Senate Judiciary Committee.Senator Charles Grassley ultimately decides whether a hearing on Obama’s nominee will take place.For all the fanfare over the finer points of Judge Garland’s intelligence, character, and seemingly benign, pleasant nature, precious little information, if any at all, is available from the mainstream media about Judge Garland’s judicial decisional history. Why is that.The New York Times reports, in the same April 12, 2016 article, that Judge Garland met with U.S. Senator Patrick J. Toomey, Republican of Pennsylvania. The Senator made this cryptic comment about Garland: “Based on a number of decisions and my conversation with Judge Garland, I’m not convinced that he would be willing to play the role of a sufficiently aggressive check on an administration.”The “decisions” Senator Toomey is referring to are case law decisions. Senator Toomey did not, unfortunately, elaborate on the point.How does Judge Garland view the Bill of Rights in light of the decisions he has handed down as United States Court of Appeals Judge for the District of Columbia Circuit? What, specifically, is Judge Garland’s position on the Second Amendment? The President isn’t saying; nor is the Vice President; nor is any Congressman; nor is the mainstream media. We, however, at the Arbalest Quarrel, will do so, as we must.To address the chasm in reporting on Garland’s decisional case law history the Arbalest Quarrel has taken a look at one particular case that provides a very clear indicator of Judge Garland’s position on the Second Amendment.In a multi-part series we peer closely at one particular case. The case is National Rifle Association of America, Inc. vs. Reno, 216 F.3d 122, 2000 U.S. App. LEXIS 15906, 342 U.S. App. D.C. 231 (D.C. Cir. 2000).While the case has been mentioned on several websites, not least of which is Ammoland Shooting Sports News, where the Arbalest Quarrel often posts, there has not been, to our knowledge, a thorough analysis of the case. The Arbalest Quarrel plunges deeply into the mind of Judge Garland. You can see for yourself what we have found. It isn’t pretty.Make no mistake, if a hearing is held on Obama’s nominee, and votes are cast, and Judge Garland is confirmed as a U.S. Supreme Court Justice, Justice Scalia’s legacy, as a staunch defender of the Second Amendment, will be systematically eroded. The two seminal Second Amendment cases, District of Columbia vs. Heller, 554 U.S. 570; 128 S. Ct. 2783; 171 L. Ed. 2d 637; 2008 U.S. LEXIS 5268 (2008) and McDonald vs. City of Chicago, 561 U.S. 742; 130 S. Ct. 3020; 177 L. Ed. 2d 894; 2010 U.S. LEXIS 5523 (2010), will either be overturned outright or whittled away to the point they cease to have legal significance. That means that four lone Justices, who comprise the conservative wing of the Court, will be unable to stop the coming onslaught wrought by the antigun establishment. The endgame – complete destruction of the Second Amendment – would be, then, just a matter of time.[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

A STUNNING RULING BY THE SUPREME COURT: HELLER STUNS MASSACHUSETTS HIGH COURT IN CAETANO STUN GUN CASE

No American citizen should take for granted, even for a moment, the importance of the U.S. Supreme Court case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). The high Court made abundantly clear: the right of the people to keep and bear arms is an individual right, independent of and unconnected to service in the military. Justice Scalia wrote the opinion for the majority of the Court. The Court’s holding is clear and cogent, categorical and unequivocal.Henceforth, so long as the Heller holding remains intact, no law can be enacted that is inconsistent with and denigrates the individual right of the American citizen to keep and bear arms. Laws enacted before Heller that are inconsistent with and which denigrate the free exercise of the individual right to keep and bear arms will be struck down. On March 21, 2016 the U.S. Supreme Court did just that. The high Court struck down just such a law. The case is Caetano vs. Massachusetts, ______ U.S. ______ (2016), 2016 U.S LEXIS 1862 (March 21, 2016). The decision of the U.S. Supreme Court was unanimous.If you are wondering why the left-wing of the Court, comprising Justices, Ginsberg, Breyer, Sotomayor, and Kagan, voted with the conservative wing of the Court, comprising Chief Justice Roberts, and Justices Alito, Thomas, and Kennedy, be advised they did so because they were compelled to do so, not because they truly wished to do so.Heller is precedential authority. Even though the left-wing of the high Court dissented from the decision in Heller, and did so strenuously, the left-wing of the Court was in the minority at the time. The majority rules. So the entire Court must abide by the precedents set by and established by the Court’s majority. This principle of jurisprudence is called stare decisis. It means a Court must abide by and uphold its earlier decisions.What binds the U.S. Supreme Court to legal precedents also binds lesser courts, both State and federal. Furthermore, neither Congress nor the U.S. President can change or ignore U.S. Supreme Court decisions. To do so not only undermines the rule of law; such disregard for U.S. Supreme Court decisions undermines the Separation of Powers Doctrine and destroys the system of checks and balances that exists among the three Branches of Government.Yet, This does not mean that the U.S. Supreme Court cannot, itself, overturn one of its own prior decisions. But, the U.S. Supreme Court is generally loathe to do so, and for good reason. For, to do so undercuts the very integrity of the Court. But, if Judge Merrick Garland, or another Judge with the same legal philosophical bent, ultimately secures a seat on the high Court, the left-wing of the Court – having a clear majority at that point – may very well overturn Heller, given their chance to do so since they never agreed with the conservative wing's majority opinion in Heller in the first place. At present, though, the liberal wing of the high Court cannot muster enough votes. It cannot use Caetano to overturn the precedent setting Heller holding outright at this juncture; so it did not try; and, as it had no alternative, the liberal wing of the high Court was compelled, albeit reluctantly -- but compelled nonetheless -- under the doctrine of stare decisis, to decide Caetano in light of the majority’s holding in Heller. But, the liberal wing sided with the conservative wing of the Court, silently -- that is to say -- sans comment. With the passing of Justice Scalia an uneasy balance now exists between the right-wing and left-wing of the Court: 4 to 4. So, then, what is Caetano all about?

ANALYSIS OF THE CAETANO CASE: FACTS OF THE CASE AND LEGAL ISSUES

In Caetano, the Appellant, a Massachusetts woman, suffered a brutal beating at the hands of her abusive boyfriend, who put her in the hospital. She had obtained numerous restraining orders against her abuser, but they all proved futile, and she constantly feared for her life. She obtained a stun gun from a friend for self-defense. One day, the Appellant’s violent ex-boyfriend paid Appellant a visit. He threatened to harm her once again and, since the abuser outweighed Appellant by 100 pounds, she could not protect herself against another assault except through the use of a weapon. She stood her ground, displayed the stun gun. The abusive ex-boyfriend got scared and left her alone. Unfortunately, for Appellant, possession of a stun gun is illegal under Massachusetts’ law, even though the fact of having it on hand may have saved her life.The police later discovered the weapon and arrested the Appellant.The trial court found her guilty of possessing a contraband weapon under State law, ALM GL ch. 140 § 131J. The State law says, in part, “No person shall possess a portable device or weapon from which an electrical current, impulse, wave or beam may be directed, which current, impulse, wave or beam is designed to incapacitate temporarily, injure or kill. . . .”Federal, State, and local law enforcement officers are exempted from application of the Massachusetts law. The penalty for violation of the law for everyone else is harsh: “Whoever violates this section shall be punished by a fine of not less than $500 nor more than $1,000 or by imprisonment in the house of correction for not less than 6 months nor more than 2½ years, or by both such fine and imprisonment.” Note: under the law, “A law enforcement officer may arrest without a warrant any person whom he has probable cause to believe has violated this section.” The Massachusetts law also shreds the Fourth Amendment to the U.S. Constitution.The Appellant was found guilty of violation of the Massachusetts Statute. Circumstances surrounding Appellants’ need for the weapon – namely to protect life and limb – were considered by the trial court to be irrelevant. The Appellant appealed the adverse decision to the Supreme Judicial Court of Massachusetts, the highest Court of the State. The Appellant argued that, under the Second Amendment, she was permitted to possess the stun gun. The Supreme Judicial Court of Massachusetts disagreed, holding “that a stun gun is not the type of weapon that is eligible for Second Amendment protection.” The Massachusetts high Court reasoned that stun guns are unprotected because they were not in common use at the time of enactment of the Second Amendment and because they fall within the general prohibition against carrying dangerous and unusual weapons.The legal issues the U.S. Supreme Court dealt with in Caetano are straightforward: first, whether a stun gun is an “arm” within the meaning of the Second Amendment; second, whether Massachusetts’ blanket prohibition on the possession of stun guns infringes the right of the people to keep and bear arms in violation of the Second and Fourteenth Amendments.

THE IMPORTANCE OF THE CAETANO CASE IN RESPECT TO THE SECOND AMENDMENT: DECISION AND REASONING OF THE COURT

In a unanimous decision, the U.S. Supreme Court relying specifically on Heller, held that the Second Amendment extends to all instruments that constitute bearable arms, even those that were not in use at the time of the founding of our Nation.There was no formal majority opinion. That is to say the decision in Caetano was handed down, per curiam. Justice Alito, joined by Justice Thomas, two conservative-wing Justices, did, however, write a concurring opinion. Were he able, Justice Scalia would most certainly have either joined Justice Thomas in Justice Alito’s concurring opinion or would have penned his own. Not surprisingly, as stated, supra, the liberal-wing Justices did not wish to weigh-in with a formal opinion of their own.The left-wing of the high Court is obviously waiting for the day it forms a majority bloc on the high Court. It will then be in the position to overturn Heller when the appropriate Second Amendment case comes before it. If Judge Merrick Garland or someone like him succeeds to Justice Antonin Scalia’s seat, then the day the left-wing of the Court has been anxiously waiting for will have arrived.The Caetano case makes plain that the Second Amendment right of the people to keep and bear arms entails the right of self-defense – a right that antigun groups object to and constantly attack.Justices Alito and Thomas Supreme Court took the Massachusetts high Court to task, attacking both the reasoning and decision of the Supreme Judicial Court of the State. In a blistering critique of the Massachusetts high Court, Justices Alito and Thomas admonished the Court, asserting that the Court professed to apply Heller but, actually wholly ignored it. Justices Alito and Thomas castigated the Supreme Judicial Court for its “ill-treatment of Heller.” The Justices said: “We held {in Heller} that the Second Amendment extends to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding. It is hard to imagine language speaking more directly to the point. Yet the Supreme Judicial Court did not so much as mention it.”Justices Alito and Thomas were not done with the Supreme Judicial Court of Massachusetts. They added that the issue of dangerousness of a weapon does not apply when a weapon, such as a stun gun, is used for a lawful purpose. The Appellant, Caetano, did in fact use the stun gun for a lawful purpose: self-defense. That is not in dispute. That fact was never in dispute. In emphasizing the point, Justices Alito and Thomas ripped apart another argument the Massachusetts high Court made when affirming the decision of the trial Court, against the Appellant.Justices Alito and Thomas also admonished the Court, and by extension, antigun groups, for assailing those who wish to exercise the fundamental right to keep and bear arms for the purpose of self-defense – a legitimate purpose under the Second Amendment. Justices Alito and Thomas pointed out that some people may have reservations about using deadly force due to moral, religious, or emotional reasons but that such reservations do not and cannot override another person’s desire to exercise his or her right of self-defense, as guaranteed under the Second Amendment.The U.S. Supreme Court thereupon remanded the case to the Supreme Judicial Court of Massachusetts with instructions essentially requiring the high Court of Massachusetts to reverse its earlier finding, affirming judgment for the State against Appellant, and enter judgment for the Appellant, Caetano, consistent with the high Court’s holding and reasoning.

DO OTHER JURISDICTIONS CRIMINALIZE POSSESSION OF STUN GUNS?

Yes. Consider just a couple. New York City, for example, criminalizes the mere possession of electronic stun guns, under NYC Administrative Code § 10-135. Violation of this Section of the Code is a Class A Misdemeanor. Under NY CLS Penal § 70.15, a person found guilty of a Class A Misdemeanor can receive a prison sentence of up to one year. In certain situations, as defined in Statute, that prison sentence can be considerably longer.Another jurisdiction in the State of New York, namely, Long Beach, New York, has an ordinance making possession of a stun gun a Class A misdemeanor: Long Beach, New York Code of Ordinances Sec. 63.The Long Beach Ordinance and the NYC code section are both illegal and must be struck down. How many other States and local governing bodies within States have such illegal laws on the books? One can only wonder. But they must be legion; and they are all illegal under Heller – at least so long as Heller remains valid law and is not overturned. If Judge Merrick Garland were to be confirmed, Heller would likely, at some point in time, be overturned. And Justice Scalia’s work would be undone.

AFTER CAETANO THE U.S. SENATE MUST PROTECT THE HELLER CASE AND ITS PROGENY

THE U.S. SENATE HAS DONE ITS JOB: IT HAS DECIDED TO WITHHOLD ITS CONSENT TO MOVE FORWARD WITH THE CONFIRMATION PROCESS OF OBAMA’S NOMINEE TO THE U.S. SUPREME COURT.

The U.S. Senate must not acquiesce to pressure. It must not move forward with a confirmation hearing and floor vote on Obama’s nomination of Judge Merrick Garland to the U.S. Supreme Court. For, we know that, under any scenario, Judge Garland – as Justice Garland – will provide the left-wing of the Court with the key vote it needs to overturn Heller. Hopefully, the U.S. Senate Committee on the Judiciary will hold fast and preclude a formal confirmation hearing and refrain from permitting an up or down vote on the Garland nomination.Under Article 2, Section 2 of the U.S. Constitution, the President nominates individuals to the high Court with the advice and consent of the Senate. The President does not, then, simply, appoint a person to the high Court. The Constitution does not permit that. The U.S. Senate can withhold its consent and it has refused, at this time, to give it, and that is its right.The Senate recognizes the danger to precedential setting cases impacting Americans’ fundamental rights and liberties, such as Heller, if the confirmation process were to proceed. Appropriately, the Senate has decided to exercise vigilance and caution in this matter at this poignant time and given the sensitive circumstances presently facing our Nation.The U.S. Senate has done everything required of it. It has performed its duties under the U.S. Constitution, as it must. The President and his sycophants in the mainstream media don’t like the Senate’s decision. But they would do well, now, to accept it and keep their mouths shut![separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

CITIZENS BEWARE: JUSTICE SERVED ON A SILVER PLATTER SET TO DESTROY THE SECOND AMENDMENT

THE POSITIONING OF JUDGE MERRICK GARLAND FOR A LIBERAL-WING TAKEOVER OF THE U.S. SUPREME COURT

PART 2A

In the previous article in this series we began with a discussion of our concern over President Obama’s nomination of Judge Merrick Garland to the U.S. Supreme Court. We analyzed a Second Amendment case brought before the United States Court of Appeals for the District of Columbia, Circuit. The case is Parker vs. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), petition for en banc hearing denied, Parker vs. District of Columbia, 2007 U.S. App. LEXIS 11029 (D.C. Cir. 2007). An analysis of that case gives an inkling as to Judge Garland’s view of Americans’ Second Amendment right of the people to keep and bear arms. It’s not good. In this Article we provide further perspective.Judge Garland presently serves as one of ten Judges on the United States Court of Appeals for the District of Columbia Circuit. Service on that Court is a stepping stone to a seat on the U.S. Supreme Court. In fact the late Justice Antonin Scalia also served as a judge on the U.S. Court of Appeals for the District of Columbia Circuit before President Reagan nominated him to the United States Supreme Court. The U.S. Senate subsequently confirmed the nomination in 1986. Justice Scalia served as an esteemed Associate Justice on the U.S. Supreme Court until his untimely death on February 13, 2016.Many legal experts consider the U.S. Court of Appeals for the District of Columbia Circuit to be the second most powerful Court in the Country. Other U.S. Circuit Courts of Appeal give considerable deference to a decision by that Court, but they are not obligated to do so. A decision by the U.S. Supreme Court, though, has binding effect over the Nation and its territories. Given the monumental impact of a U.S. Supreme Court decision, it is incumbent on the U.S. Senate to be circumspect in handling a nomination to the high Court. The decisions of the high Court impact the very fabric of society and, in fact, the existence of a free Republic. The framers of our Constitution made certain the U.S. Senate shall have the final say on all appointments to the high Court. The President shall nominate but the only the U.S. Senate can confirm the appointment. The Senate proffers its advice and consent, consistent with Article 2, Section 2 of the U.S. Constitution. Thus, the framers of our Constitution intended, and for good reason, to preclude a President from packing the Court. The U.S. Senate, though, seeks – and rightfully so – to protect the legacy of Justice Scalia, a man who devoted his life to – and focused his brilliant mind on – preserving our Bill of Rights.President Obama is improperly attempting to force the Senate’s hand in this matter and he is using the medium of a compliant Press to do so. He waxes poetic over the intellectual ability and moral character of Judge Garland and the Press echoes the President’s sentiments. One phrase President Obama uses in defining Judge Garland, though, should give the U.S. Senate and the American people pause.The President says Judge Garland is a “consensus builder.” Consider the meaning of that phrase for a moment. The President is saying Judge Garland would likely bridge the gap between the liberal wing of the Court and the conservative wing – a position, at the moment, filled by Justice Kennedy. But, Judge Garland is said to fall “to the left” of Justice Kennedy. Thus, the assertion that Judge Garland would act as a “consensus builder” on the high Court means, disconcertingly, that Judge Garland – serving as Justice Garland – would hand the liberal wing of the Court a decisive majority in every case. Justice Garland would likely support every cause promoted by the progressive left in this Country. The shattering of the Bill of Rights is not a pleasant thought to contemplate.The idea is not wild fancy. Judge Garland, sitting on the U.S. Supreme Court as Justice Garland, would take an active part in drafting opinions weakening the Second Amendment right of the people to keep and bear arms. Most news articles fail to mention Judge Garland’s clear antipathy toward the Second Amendment if those articles happen to mention the Second Amendment at all.Yet, it would be an affront to the memory of Justice Scalia to have, as his replacement, a man – regardless of ability and temperament – who would not continue Justice Scalia’s deference to our Bill of Rights.How do we know this? In our previous article we provided you with a comprehensive analysis of one Second Amendment case, Parker vs. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007), petition for en banc hearing denied, Parker vs. District of Columbia, 2007 U.S. App. LEXIS 11029 (D.C. Cir. 2007). An analysis of that case gives an inkling into the mindset of Justice Garland. He is not at all a proponent of the Second Amendment. But consider: would President Obama honestly nominate a person to serve on the high Court if that person professed a strong propensity to preserve and strengthen the Second Amendment?Do we find in President Obama’s previous two nominations, whom the U.S. Senate confirmed, namely, Justice Elena Kagan and Justice Sonja Sotomayor, to be proponents of the Second Amendment? If you think so, you should take another look at the seminal Second Amendment case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). Those two Justices, along with Justices Ruth Bader Ginsberg and Stephen Breyer – the liberal-wing of the Court – dissented from the Majority in that case.Had Judge Garland served on the high Court in lieu of Justice Scalia, at the time the Heller case was decided, the outcome would have been entirely different. Of that, there can be no reasonable doubt. The liberal-wing of the Court would have had a majority and that majority would hold that: the right of the people to keep and bear arms does not entail an individual right, and that the Second Amendment has no meaning except in respect to one who serves in a military capacity.So, contrary to protestations of President Obama, as echoed through and trumpeted by a submissive news media, the U.S. Senate is not shirking its duty by refusing to consider Judge Garland’s confirmation. President Obama tells the Senate that it must do its job, just as President Obama has done his. He says, contemptuously, even perniciously: “to suggest that someone as qualified and respected as Merrick Garland doesn’t even deserve a hearing, let alone an up-or-down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise — that would be unprecedented.” The U.S. Senate Committee on the Judiciary takes its role very seriously and it has in fact acted by choosing not to act on the Garland nomination at this time. Indeed, it has taken the only appropriate action it can take at this time – a step necessary to protect our Bill of Rights. The U.S. Senate is fulfilling its obligation under the U.S. Constitution, as the framers of the Constitution entrusted to it. Keep in mind: through Obama’s two prior nominations that the Senate confirmed, the composition of the high Court now tilts dangerously leftward. Equilibrium would be entirely lost were the Senate to confirm the nomination of Judge Garland.In the next article in this series we take a close look at a second U.S. Court of Appeals for the District of Columbia Circuit case – one that Judge Garland had a hand in – a case that bespeaks a positive legal bent away from – not toward – the preservation of the Second Amendment – a case decided by the United States Court of Appeals for the District of Columbia Circuit, eight years before Justice Scalia wrote the Majority opinion in Heller.Citizens beware! Our right to keep and bear arms is grossly threatened – more so than ever before. Stand up and demand that your elected officials protect the Second Amendment![separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.

JUSTICE: FOR OR AGAINST THE SECOND AMENDMENT? A COMMENTARY ON PRESIDENT OBAMA’S NOMINEE FOR ASSOCIATE JUSTICE ON THE U.S. SUPREME COURT: JUDGE MERRICK GARLAND

JUSTICE GARLAND: A REPLACEMENT FOR JUSTICE SCALIA? NOW, IF ONE DOES NOT SUPPORT THE BILL OF RIGHTS; OR NEVER IF ONE CARES ABOUT AMERICA’S BILL OF RIGHTS!

PART 1

PRESIDENT OBAMA'S SHORT LIST FOR JUSTICE ON THE U.S. SUPREME COURT: FIRST, SOTOMAYOR, KAGAN; THEN KAGAN; AND NOW, GARLAND

Now that President Obama has nominated a judge to the U.S. Supreme Court, a few pertinent questions arise. What will the Senate do? What ought the Senate do? And, most importantly, what do we, the American people, know about the individual Obama has nominated to replace a respected – indeed, a revered – Supreme Court Justice, a man whose shoes cannot easily be filled, Justice Antonin Scalia.Before we get to the third question, let us respond briefly to the first two. The U.S. Constitution sets forth the authority of the U.S. President to nominate an individual to the U.S. Supreme Court. But the Constitution does so with a most important caveat. Article 2, Section 2 of the U.S. Constitution sets forth, in pertinent part that the President, “. . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges of the supreme Court.”Many news sources are turning this matter into a major spectacle – castigating the U.S. Senate for allegedly dragging its feet in handling this nomination. But, there is nothing in the U.S. Constitution that requires the U.S. Senate to do anything. It need not proffer its advice and consent; and, if it does not, then the appointment cannot be made. In this instance the U.S. Senate has good reason not to proffer its advice and consent.The appointment of a Justice of the U.S. Supreme Court is not to be taken lightly. The appointment of a Supreme Court Justice is for life. A poor decision can undermine the rights and liberties of all Americans. A poor decision can weaken our Republic. The Court’s decisions mold and shape our institutions and impact the life of every American citizen for decades. So, in a very real sense, A U.S. Supreme Court Justice wields  more power than the President of the United States. Would President Obama’s nominee truly faithfully support and defend the Constitution of the United States?President Barack Obama has, to date, nominated two Justices to the United States Supreme Court, and the U.S. Senate has confirmed them. They are Justices Elena Kagan and Sonia Sotomayor, two liberal-wing Justices. No one can reasonably contest the sufficiency of the legal and judicial experience of these two Justices; nor can anyone reasonably contest the intellectual acumen of Justices Kagan and Sotomayor. In most cases, Americans may reasonably assume that the individuals, nominated by the United States President and subsequently confirmed by the U.S. Senate to serve as Justices on the U.S. Supreme Court, do have the necessary intellectual gifts, necessary moral stature and character, and necessary experience to serve as Justices on the U.S. Supreme Court. But is that enough?Many news sources suggest that the academic credentials of a nominee, along with that nominee’s intellectual capacity, and along with the breadth and depth of that nominee’s judicial and legal experiences, and, along with that nominee’s necessary moral bearing, stature and character are all the factors the U.S. Senate need consider to support confirmation of a nominee to the highest Court in the Land. But are satisfaction of those factors enough. Are those factors, alone, sufficient to support confirmation of a nominee to the U.S. Supreme Court? The answer is a resounding, “no.” For, before the United States Senate confirms a nominee, the U.S. Senate should definitely take a close look at the prior judicial decisions of a particular nominee if that nominee had happened to serve in a judicial capacity on a lower court prior to his nomination. Such is no less true of Judge Merrick Garland in the event the U.S. Senate does consider the President’s nominee at all.The U.S. Senate must ask, and the American public has a right to know, whether a given nominee – if he or she is to ascend to the position of Justice on the U.S. Supreme Court – is truly likely to render decisions faithful to the U.S. Constitution and, in particular, whether that nominee would render decisions supportive of an American citizen’s fundamental rights and liberties as codified in the Bill of Rights. The United States Senate Committee on the Judiciary, presided by Senator Chuck Grassley, Republican Iowa, obviously has its doubts in the present instance and, rightfully so, and this would account for the Committee’s reluctance to consider President Obama’s nominee – his third –  especially since Obama will soon be leaving Office and a Republican Party candidate for U.S. President may very well be taking his place.Republican Senators are asking and we must ask as well: what do Americans really know about President Obama’s nominee, Judge Merrick Garland? What is Judge Garland’s position on the Bill of Rights? Is he a strong proponent of individual Rights and Liberties, as codified in the Bill of Rights, or isn’t he?Each Justice, who presently sits on the U.S. Supreme Court, certainly has a definite idea how he or she construes the Bill of Rights. A few construe the Bill of Rights literally and narrowly, giving particular weight to our founders’ view of it. On this view a U.S. Supreme Court Justice would ascribe to the idea that our founding founders believed that, regardless of the current fashion of any particular age, the import and purport of our fundamental rights and liberties remain constant from one generation to the next. They are not to be tampered with. Justice Scalia certainly fell into this camp. Other Justices tend to consider fundamental rights and liberties of Americans apropos of conditions as they exist in American society and in the world today. Those Justices happen to think our Bill of Rights is malleable; that it is subject to change in accordance with popular opinion vis-à-vis political mandates. They have a decided predilection for legislating from the Bench. The Bill of Rights, though, has nothing to do with one’s being comfortable with it or with particular Amendments within it. The Bill of Rights is what it is. It is not a thing to be toyed with. It is not to be subjugated or changed, along with popular culture. The Bill of Rights defines clearly and explicitly what rights and liberties we, as Americans, are entitled to exercise as a free people, living in a free Republic.The point here is that a particular philosophy, regarding the Bill of Rights, has considerable impact on how a Justice ultimately will decide a case. An opinion by a simple majority of Justices on the U.S. Supreme Court affects us all. It affects America’s institutions. It affects the very nature of and continued existence of our Nation, as conceived by the founding fathers.So, contrary to what the left, reporting through a compliant media,  maintains, the question the United States Senate Committee on the Judiciary must wrestle with extends well beyond a nominee’s native ability, intellectual gifts, judicial and legal experience, and moral bearing and character. The question the United States Senate Committee on the Judiciary must wrestle with is subtle and complex. As it pertains to President Obama’s nominee, Judge Merrick Garland, the question goes to the manner in which Judge Garland perceives the Bill of Rights. For, the manner in which Judge Garland perceives our fundamental rights and liberties will color his perception of the cases that come before him. Does he tend to view our fundamental rights and liberties as Justices Breyer, Ginsburg, Kagan, and Sotomayor do – as transitory, ephemeral and infinitely malleable? Or, does Judge Garland view our fundamental rights and liberties in the same vein as Justices Alito and Thomas do, and as Justice Scalia did? Or, perhaps, Judge Garland’s perception of our fundamental rights and liberties fall somewhere in the middle, commensurate with the views of Justice Kennedy and Chief Justice Roberts.As the Wall Street Journal reports, Judge Garland says, “Fidelity to the Constitution has been the cornerstone of my professional life.” Well, one would certainly expect as much. But, that really doesn't take us anywhere. That assertion doesn’t tell us anything about how Judge Garland would really decide a case involving Americans’ fundamental rights and liberties.Each current Justice would certainly assert “fidelity to the Constitution,” and that Justice would honestly believe the assertion. The assertion is little more than a platitude. But, within the U.S. Constitution, the Bill of Rights speaks squarely to the fundamental rights and liberties of the people. In any one case before the U.S. Supreme Court, those rights and liberties will be strengthened or weakened by the Majority on the Court.

THE SECOND AMENDMENT

Of the specific Rights and Liberties expressed in the first Eight Amendments – all critical to a Free Republic – none of those Rights and Liberties speak more loudly to the unique character of the United States than does our Second Amendment. In no other Constitution of any other Nation on the face of this Earth does there exist any Right boldly setting forth: “. . . the right of the people to keep and bear arms shall not be infringed.”Yes, a few nations do permit the citizenry to keep and bear arms but in every such case that “right” is not really a right at all because the purported “right” emanates from government. It does not reside in the people. The “right” expressed is more in the nature of a grant by a nation’s government, or a license, or a privilege.But, the Second Amendment of the Bill of Rights of the United States Constitution operates as a right in the purest sense – preexistent in each individual. If there exists any doubt about that, Justice Scalia, writing for the majority, in the seminal case, District of Columbia vs. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), laid that doubt to rest.What the United States Senate Committee on the Judiciary should really be asking, assuming it decides to consider the matter of Judge Merrick Garland’s appointment to the U.S. Supreme Court – or not, as consistent with its prerogative under Article 2, Section 2 of the U.S. Constitution – is this: would Judge Garland if he were to gain the U.S. Supreme Court, tend to weaken or strengthen our Bill of Rights? We can use the Second Amendment as a good example here. How might we explicate this? Just so: would the Heller case have been decided differently if – in a parallel world – Justice Garland had worn the robes of Justice Scalia?Do we have any clues? Well, we have two important clues. The first involves the case Parker vs. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).Important Note: the Parker case is the seminal Second Amendment Heller case. The Parker case was renamed District of Columbia vs. Heller when the U.S. Supreme Court agreed to hear the case.

ANALYSIS OF THE PARKER CASE

The Appellants, Parker and others, are residents of the District of Columbia. They wanted to carry their handguns in their own homes for self-defense, but the District of Columbia prohibits anyone from having an operable handgun in the home for the purposes of immediate self-defense. The Appellants brought action against the District of Columbia, claiming that the D.C. code violated their Second Amendment “right to keep and bear arms.” The U.S. District Court for the District of Columbia sided with the Appellee government, District of Columbia, finding that the D.C. code did not violate Appellants Second Amendment right to keep and bear arms because, according to the U.S. District Court, the “right to bear arms” only accrues to one who serves in a militia.Appellants, residents of the District of Columbia, appealed. The United States Circuit Court of Appeals for the District of Columbia disagreed with the lower Court. Reversing the U.S. District Court’s decision, the United States Circuit Court of Appeals for the District of Columbia dealt squarely with the issue as to the meaning of and impact of the prefatory and operative portions of the Second Amendment and whether, on the one hand, “the right to keep and bear arms” is an individual right, as Appellant, District of Columbia residents maintain, or whether, on the other hand, “the right to keep and bear arms” is a collective right that applies only to those who serve in a militia, as the Appellee, District of Columbia had argues.In finding for the Appellant residents, against the District of Columbia, the United States Circuit Court of Appeals for the District of Columbia pointed out that the wording of the operative clause also indicates that “the right to keep and bear arms” was not created by government, but rather preserved by it. The United States Circuit Court of Appeals specifically rejected the Appellee District of Columbia’s claim that the phrase, “keep and bear arms” has only a military purpose related to the “militia.” Two of the three Judges on the Circuit Court sided with the Appellants in the case and thereupon reversed the decision of the U.S. District Court.The losing party in the Parker case, namely the District of Columbia, then petitioned the U.S. Court of Appeals for reconsideration, asking the United States Court of Appeals to hear the case en banc. What this means is that the Appellee District Columbia petitioned to have the entire United States Circuit Court of Appeals for the District of Columbia hear the case.Keep in mind that, although Judge Garland serves as Judge on the United States Court of Appeals for the District of Columbia, there are several U.S. Circuit Court Judges. Generally, a panel of three Circuit Court Judges hears a case on appeal from the lower District Court.Judge Garland did not sit on the three-man panel in the Parker case. We are not, though, left merely to speculate as to how he might have ruled in Parker had he served as one of the three original Judges who heard the case. We do have an inkling as to how Judge Garland would have ruled, and therein rests one reason, at least, why the U.S. Senate, on behalf of the American people and on behalf of the well-being of Americans’ Bill of Rights, has no desire to so much as contemplate the nomination, during the remaining months of Obama’s term as U.S. President.Likely, Judge Garland would have ruled against the Appellant D.C. residents and for the District of Columbia in Parker. We know this because of a further action involving the Parker case that transpired before the case was heard by the U.S. Supreme Court, renamed, District of Columbia vs. Heller.Now, no party, in any jurisdiction, can insist, as a matter of right, to have an entire United States Circuit Court of Appeals to reconsider its own decision. A United States Circuit Court of Appeals will do so only if a majority of the Court’s Judges agree to reconsider the decision, in which case the entirety of the Court will rehear the case – that is to say – the Court will hear the case, en banc.There are ten Judges on the D.C. Circuit. Only four of those ten agreed to hear the Parker case en banc. Notably, Judge Garland was one of those four Judges. The case is Parker vs. District of Columbia, 2007 U.S. App. LEXIS 11029 (D.C. Cir. 2007).We really do not need to spend an inordinate amount of time speculating as to why Judge Garland had sought to have the Parker case reheard by all ten United States Circuit Court of Appeals judges. Yes, Judge Garland may have thought – as some news sources infer – that the Second Amendment issue was important enough to warrant a hearing by the entire Court, so that all of the Judges could weigh in. After all, the Parker case dealt directly and squarely with the fundamental right of the people to keep and bear arms. But, likely, there was more to Judge Garland’s desire to have an en banc hearing of the case. And it is just this: if Judge Merrick Garland really feels strongly about Americans’ fundamental rights and liberties, as had Justice Scalia, it is likely that Judge Garland would have voted with the majority of the Court. That means he would have voted against taking up the Second Amendment issue again in an en banc hearing of the case. For, what more could be gained through an en banc hearing of the case? The majority opinion, which supported Appellants’ Second Amendment right to keep and bear arms, was clear, and cogent, and unequivocal.  Moreover, a vote in favor of an en banc hearing would, quite probably, invite a reversal of the decision by the three member United States Circuit Court of Appeals panel. A true advocate for the Second Amendment would never have voted in favor of a rehearing. Tactically, it would make no sense. Appellants, District of Columbia residents had already won. The case should have stopped there.Be that as it may, the Appellant, District of Columbia, having failed to secure a rehearing of the Parker case by the full United States Court of Appeals for the District of Columbia thereupon petitioned the U.S. Supreme Court. The Supreme Court, of course, agreed to hear the case. Parker vs. District of Columbia was renamed District of Columbia vs. Heller. Justice Scalia, writing for the Majority, affirmed the decision of the United States Circuit Court of Appeals for the District of Columbia by a narrow margin: 5 to 4.Granted, while it is not absolutely clear that Judge Garland would not have voted with the Majority in Heller, had he sat on the U.S. Supreme Court, the fact that he voted for en banc review of Parker, as a Judge sitting on the U.S. Circuit Court of Appeals for the District of Columbia, strongly suggests an unhappiness with and uneasiness with the panel's decision -- 2 to 1 in favor of Appellant District of Columbia residents -- a decision clearly supporting the right of the people to keep and bear arms; hence, we may reasonably conclude a general  reluctance on the part of Judge Garland to view the Second Amendment right of the people to keep and bear arms generally favorably and expansively. Imagine, then, Judge Garland's decision in Heller, had he sat on the U.S. Supreme Court. Would he not have sided with the liberal-wing in that case? And, if so, would not the Heller case have been decided differently? Would not the Heller case reflect the reasoning of the U.S. District Court in Parker, rather than the decision of the U.S. Circuit Court of Appeals for the District of Columbia in that case -- a U.S. District Court decision specifically undermining rather than strengthening the right of the people to keep and bear arms?A second and, perhaps, even stronger clue suggesting that Judge Garland is not likely to be a strong proponent of the Second Amendment -- and, indeed, someone who is likely to eviscerate the Second Amendment rather than strengthen it -- is evidenced from a perusal of the United States Court of Appeals for the District of Columbia’s decision in NRA vs. Reno, 216 F.3d 2000 (D.C. Cir. 2000). Judge Garland did have a hand in that decision and, while the case does not deal directly with the meaning of language in the Second Amendment, the case does deal with matters impacting the Second Amendment, and negatively impacting the Fourth Amendment as well.In Part 2 of this article, we will explicate the NRA case for you and explain why, more likely than not, Judge Garland is not a proponent of the Second Amendment -- not by a long shot -- and that, for this reason alone, the United States Senate Committee on the Judiciary should not consider Obama’s appointment of Judge Garland to the U.S. Supreme Court, as an Associate Justice.To be continued. . . .[separator type="medium" style="normal" align="left"margin-bottom="25" margin_top="5"] Copyright © 2015 Roger J Katz (Towne Criour), Stephen L. D’Andrilli (Publius) All Rights Reserved.