The NRA is an Organization of Radicals with their National Reciprocity for Concealed Carry!

__don-hamrick-wearing-suit-33Here I defend my position that National Open Carry in intrastate, interstate, nautical, and maritime travel as the constitutional norm (an even a human rights norm) even though it is NOT presently the social norm, nor the legal norm. Under this constitutional standard anyone who advocates National Reciprocity for Concealed Carry as the Constitutional Norm, the Social Norm, and/or the Legal Norm, such as the NRA, are radicals.

As I noted earlier someone using the NRAHQ server visiting my blog. That’s a good thing. However, since then, there has been no more visits to this blog by the NRA. Nor have I received any emails from the NRA. I presume my National Open Carry is still perceived as a threat to the NRA’s National Reciprocity for Concealed Carry.

The following is new text that I have added to the Introduction in my Admiralty Lawsuit against the U.S. Government:

PART 3. Introduction

The U.S. Department of Homeland Security and the U.S. Coast Guard have an absolute ministerial duty to protect merchant marine personnel and their combined constitutional rights to openly keep and bear arms in intrastate, interstate, nautical, and maritime travel under the Second, Fifth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments; the Common Defence Clause of the Preamble to the Constitution of the United States; the Supremacy Clause of Article IV, Clause 2; and statutorily under the General Supervision Clause of 46 U.S.C. § 2103 mandated by the Oath of Office, 5 U.S.C. § 3331 to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” This absolute duty to protect merchant marine personnel in their right to travel with their Second Amendment rights includes federal legislative and regulatory preemption of state gun control laws and local gun control ordinances/codes that interfere with or prohibit right of merchant marine personnel to travel while openly armed.

Rule E(a)(2) of the Supplemental Rules for Admiralty or Maritime Claims and Asset Forfeiture Actions states:

In actions to which this rule is applicable the complaint shall state the circumstances from which the claim arises with such particularity that the defendant or claimant will be able, without moving for a more definite statement, to commence an investigation of the facts and to frame a responsive pleading.

           Rule 9(b) Pleading Special Matters of the Federal Rules of Civil Procedure states:

In alleging fraud …, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.

           Rule 8(d)(2) Alternative Statements of [Claims] of the Federal Rules of Civil Procedure states:

A party may set out 2 or more statements of a claim … alternatively or hypothetically, either in a single count … or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

           This Complaint makes Admiralty and Non-Admiralty claims with Notice Pleadings and Issue Pleadings interchangeably in order to comply with the particularity clauses of Rule E(a)(2) and Rule 9(b), and the Alternative Statements of Rule 8(d)(2). This Complaint is structured and presented in the following parts with appended exhibits:

Part 1.           The Preliminaries

Part 2.           The Parties

Part 3.           Introduction

Part 4.           My 22 Theories for Which Relief is Sought in this Admiralty Maritime Petitory Quasi In Rem Suam Et Jus Tertii Action

Part 5.           Demand for De Novo Judicial Review of Final Agency Action as a Matter of Right

Part 6.           Demand For De Novo Judicial Review of Hamrick  v. President George W. Bush, Nos. 02-1435 And 02-1434 And All Subsequent Cases for the Plaintiff

Part 7.           Facial and As‑Applied Pre-Enforcement Challenges To Federal Laws and Regulations and Certain Federal Rules Rules of Civil and Appellate Procedure and Rules of the Supreme Court of the United States

Part 8.           Evidence for National Open Carry

Part 9.           Notice Pleading: Quo Warranto to President Obama—Rule 25(d) Federal Rules of Civil Procedure

Part 10.         Demand for Writ of Peremptory Mandamus

Part 11.         Admiralty Claims Against The U.S. Coast Guard And The U.S. Deparment Of Homeland Security

Part 12.         Admiralty Claims for Violations of My Second and Ninth Amendment Rights to Interstate, Nautical, and Maritime Travel

Part 13.         Non-Admiralty Claims Against the Federal Judiciary

Part 14.         Claims Against the United States Over the Second Amendment

Part 15.         Dual Claim: No Federal Common Law for Open Carry In Interstate, Nautical, or Maritime Travel For Seamen Under The Supremacy Clause

Part 16.         Issue Pleading: The Direct Horizontal Effect Doctrine Under The Supremacy Clause Prevails Over the State Action Doctrine

Part 17.         The Demand for Damages and Other Relief

Part 18.         Certification of Service By U.S. Marshals Service

Exhibit 1.       FCC Order And Reconsideration On Prb-1

Exhibit 2.       Amateur Radio Antenna Restrictions and H.R. 2160

Exhibit 3.       U.S. District Court for Hawaii

Exhibit 4.       Evidence of Judicial Bias/Bigotry Against The Plaintiff

Exhibit 5.       Evidence: Government Oppression & Despotism

Exhibit 6.       Evidence: DHS Domestic Extremism Lexicon

Exhibit 7.       Evidence: DHS Rightwing Extremism Report

Exhibit 8.       Transcript: Jews for the Preservation of Firearms Ownership, “2A for the USA” Documentary Video on the Second Amendment, October 18, 2008

Exhibit 9.       Plaintiff’s Annotated Transcript: Jews for the Preservation of Firearms Ownership, “No Guns for Negroes” Documentary Video on the Second Amendment, May 27, 2009

Exhibit 10.      Transcript of Gert Wilders’ Speech

Exhibit 11.      Sital Kalantry, The Intent-To-Benefit: Individually Enforceable Rights Under International Treaties, 44 Stanford Journal Of International Law 63 (Winter 2008)

Exhibit 12.      International Study Debunks Myth That More Guns Means Higher Murder Rates

Exhibit 13.      Excerpts From House Committee On Transportation and Infrastructure Hearing, May 19, 2009.      

Exhibit 14.      Dave B. Kopel, Bloody Pirates, America’s 1st Freedom, NRA Publications, July 2009

Exhibit 15.      Bar Notice of 2004

Exhibit 16.      Bar Notice of 2006


1.     The Origin of the Right to Protection and the Duty to Protect

The origin of the right to protection is found in common law tradition and natural rights theory. See Steven J. Heyman, The First Duty of Government: Protection, Liberty and the Fourteenth Amendment, 41 Duke L. J. 507 (1991), and Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 Michigan L. Rev. 391 (Dec. 2008). The following is a brief chronological outline of the right to protection and the duty to protect:

♦ 1215: The Magna Carta of 1215:

paragraph 39: No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.);

paragraph 40: (To no one will we sell, to no one will we refuse or delay, right or justice.). [1]


♦ 1608: Calvin’s Case, 7 Coke Report 1a, 77 Eng. Rep. 377 at 382 (1608). (Protection implies subjection, and subjection protection).[1]

And therefore it is holden in 20 H. 7. 8. a. that there is a liege or ligeance between the King and the subject. And Fortescue, cap. 13. Rex (b) ad tutelam legis corporum et bonorum subditorum erectus est. And in the Acts of Parliament of IO R. 2. cap. 5. and 11 R. 2. cap. 1. 14 H. 8. cap. 2. &c. subjects are called liege people; and in the Acts of Parliament in 34 H. 8. cap. 1. and 35 H. 8. cap. 3. &c. the King is called the liege lord of his subjects. And with this agreeth M. Skeene in his book De Expositione Verborum, (which book was cited by one of the Judges which argued against the plaintiff) ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; and he is called their liege lord, because he should maintain and defend them. Whereby it appeareth, that in this point the law of England and of Scotland is all one. Therefore it is truly said that protectio trahit subjectionem, et subjectio protectionem.[2]


[2] Latin: protectio trahit subjectionem, et subjectio protectionem (protection implies subjection, and subjection protection).

♦ 1690: John Locke, Second Treatise of Government. Chapter 9. Of the Ends of Political Society and Government, § 123 (1690):[3]

IF man in the state of Nature be so free as has been said, if he be absolute lord of his own person and possessions, equal to the greatest and subject to nobody, why will he part with his freedom, this empire, and subject himself to the dominion and control of any other power? To which it is obvious to answer, that though in the state of Nature he hath such a right, yet the enjoyment of it is very uncertain and constantly exposed to the invasion of others; for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very insecure. This makes him willing to quit this condition which, however free, is full of fears and continual dangers; and it is not without reason that he seeks out and is willing to join in society with others who are already united, or have a mind to unite for the mutual preservation of their lives, liberties and estates, which I call by the general name—property.


♦ 1765–1769: William Blackstone, Commentaries on the Laws of England, Book 1–Rights of Persons; Chapter 6–Of the King’s Duties (1765–1769):[4]

I PROCEED next to the duties, incumbent on the king by our constitution; in consideration of which duties his dignity and prerogative are established by the laws of the land: it being a maxim in the law, that protection and subjection are reciprocal. And these reciprocal duties are what, I apprehend, were meant by the convention in 1688, when they declared that king James had broken the original contract between king and people. But however, as the terms of that original contract were in some measure disputed, being alleged to exist principally in theory, and to be only deducible by reason and the rules of natural law; in which deduction different understandings might very considerably differ; it was, after the revolution, judged proper to declare these duties expressly; and to reduce that contract to a plain certainty. So that, whatever doubts might be formerly raised by weak and scrupulous minds about the existence of such an original contract, they must now entirely cease; especially with regard to every prince, who has reigned since the year 1688.


♦ 1787: James Madison, Federalist Papers,[5] No. 10 The Utility of the Union as a Safeguard Against Domestic Faction and Insurrection (continued) (1787).[6]

Among the numerous advantages promised by a well constructed Union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. The friend of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice. He will not fail, therefore, to set a due value on any plan which, without violating the principles to which he is attached, provides a proper cure for it. The instability, injustice, and confusion introduced into the public councils, have, in truth, been the mortal diseases under which popular governments have everywhere perished; as they continue to be the favorite and fruitful topics from which the adversaries to liberty derive their most specious declamations. The valuable improvements made by the American constitutions on the popular models, both ancient and modern, cannot certainly be too much admired; but it would be an unwarrantable partiality, to contend that they have as effectually obviated the danger on this side, as was wished and expected. Complaints are everywhere heard from our most considerate and virtuous citizens, equally the friends of public and private faith, and of public and personal liberty, that our governments are too unstable, that the public good is disregarded in the conflicts of rival parties, and that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority. However anxiously we may wish that these complaints had no foundation, the evidence, of known facts will not permit us to deny that they are in some degree true. It will be found, indeed, on a candid review of our situation, that some of the distresses under which we labor have been erroneously charged on the operation of our governments; but it will be found, at the same time, that other causes will not alone account for many of our heaviest misfortunes; and, particularly, for that prevailing and increasing distrust of public engagements, and alarm for private rights, which are echoed from one end of the continent to the other. These must be chiefly, if not wholly, effects of the unsteadiness and injustice with which a factious spirit has tainted our public administrations.

By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.

There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.

The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. A zeal for different opinions concerning religion, concerning government, and many other points, as well of speculation as of practice; an attachment to different leaders ambitiously contending for pre-eminence and power; or to persons of other descriptions whose fortunes have been interesting to the human passions, have, in turn, divided mankind into parties, inflamed them with mutual animosity, and rendered them much more disposed to vex and oppress each other than to co-operate for their common good. So strong is this propensity of mankind to fall into mutual animosities, that where no substantial occasion presents itself, the most frivolous and fanciful distinctions have been sufficient to kindle their unfriendly passions and excite their most violent conflicts.



♦ 1788: James Madison, Federalist Papers, No. 51 The Structure of the Government Must Furnish the Proper Checks and Balances Between the Different Departments (1788).[7]

Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.


♦ 1825: Corfield v. Coryell, 6 Federal Cases 546 (C.C.E.D. Pa. 1825) (No. 3230) (the right to travel interstate was grounded upon the Privileges and Immunities Clause of U.S. Const. Art. V, § 2):[8]

The inquiry is, what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added, the elective franchise, as regulated and established by the laws or constitution of the State in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, and the enjoyment of them by the citizens of each State, in every other State, was manifestly calculated (to use the expressions of the preamble of the corresponding provision in the old Articles of Confederation) “the better to secure and perpetuate mutual friendship and intercourse among the people of the different States of the Union.”


♦ 1826: James Kent, Commentaries of American Law (1826), Vol. II, Part IV, Of the Law Concerning the Rights of Persons, Lecture XXIV, Of the Absolute Rights of Persons (1826):[9]

While the personal security of every citizen is protected from lawless violence, by the arm of the government, and the terrors of the penal code; and while it is equally from unjust and tyrannical proceedings on the part of the government itself, by the provisions to which we have referred; every person is also entitled to the preventive arm of the magistrate as a further protection from threatened or impending danger….The municipal law of our own, as well as of every other country, has likewise left with individuals the exercise of the natural right of self-defense, in all those cases in which the law is either too slow, or too feeble to stay the hand of violence. Homicide is justifiable in every case in which it is rendered necessary in self-defense, against the person who comes to commit a known felony with force against one’s person, or habitation, or property, or against the person or property of those who stand in near domestic relations. The right of self-defense in these cases is founded in the law of nature, and is not, and cannot be superseded by the law of society.


♦ 1856: Dred Scott v. Sandford, 60 U.S. 393 at 417 (How.) (1856).[10] 

[Citizenship] would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.)


♦ 1863: President Abraham Lincoln’s Emancipation Proclamation of January 1, 1863 which states:

“That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.”

♦ 1865: Thirteenth Amendment. (Ratified in 1865)

Section. 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section. 2. Congress shall have power to enforce this article by appropriate legislation.

♦ 1866: Civil Rights Act of 1866, ch. 31, 14 Stat. 27 (1866) (codified as amended at 18 U.S.C. § 242 (2006) and 42 U.S.C. §§ 1981–1982 (2000)).

♦ 1868: Fourteenth Amendment. (Ratification disputed on due process claims).

This Complaint challenges the general principle that the U.S. Constitution is a “charter of negative rather than positive liberties” which was applied in Jackson v. City of Joliet, 715 F.2d 1200, 1203 (7th Cir. 1983) and DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), denying a constitutional duty to protect the life of citizens from threats emanating from non-state actors.[11]

[11] Stephen Gardbaum, The Myth and the Reality of American Constitutional Eceptionalism, 107 Michigan Law Review 391, at 455 (Dec. 2008).

This Complaint argues that the Right to Protection and the Duty to Protect under the Common Defence Clause of the Preamble to the Constitution, the Second, Fifth, Ninth, Tenth, Thirteenth, and Fourteenth Amendment are incorporated through the Supremacy Clause and NOT through the Fourteenth Amendment applies to the Federal and State Governments under the Four Corners Doctrine of constitutional interpretation. This incorporation is known as the Direct Horizontal Effect under comparative constitutional law.

Citing Stephen Gardbaum, The Myth and the Reality of American Constitutional Eceptionalism, 107 Michigan Law Review 391, 455-458 (Dec. 2008):

I believe the general principle [that the U.S. Constitution is a “charter of negative rather than positive liberties”] is open to serious question. First, I find persuasive Steven Heyman’s argument in The First Duty of Government: Protection, Liberty, and the Fourteenth Amendment, 41 Duke Law Journal 507 (1991)], that the DeShaney majority’s claim that neither he text nor the history of the Fourteenth Amendment supports a constitutional right to protection is wrong on originalist grounds.[12] Second, the general principle is not in fact well established in the Court’s jurisprudence. Notwithstanding the outcomes of these two cases, the principle itself was and is dicta; cases really requiring a holding that states have no constitutional duty of protection at all have not beed decided, and may well be decided differently.

In a well-researched and elegantly written article, Heyman argues that prior Fourteenth Amendment, the long-established Lockean and common law “first duty of government” to protect life, liberty, and property of its citizens from each other was quintessentially and exclusively a task of state government, which is why such a positive right to protection appears in several of the earliest state constitutions but not in the federal one.[13] Following the Civil War, however, state governments in the South proved they could no longer be trusted to fulfill this “first duty” absent nationaloversight, given their manifest and intentional failure to protect new black citizens. Accordingly, the right to protection by the state was purposefully incorporated into the federal Constitution by the Fourteenth Amendment,[[14]] primarily as one of the traditional “privileges and immunities” of citizenship newly guaranteed against the stastes but also by implication in the Due Process and Equal Protection Clauses. In response to Chief Justice Rehnquist’s argument to the contrary in DeShaney, Heyman convincingly shows why the framers of the Fourteenth Amendment could not plausibly ave intended to leave the duty of protection purely to state “democratic political processes.”[15] 

[12] Steven J. Heyman, The First Duty of Government: Protection, Liberty, and the Fourteenth Amendment, 41 Duke Law Journal 507 (1991).

[13] Id. The Pennsylvania Constitution of 1776 declared that “[e]very member of society hath a right to be protected in the enjoyment of life liberty and property.” Pa. Const. of 1776, art. VIII. Similar provisions soon appeared in the constitutions of Delaware, Massachusetts (“Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty and property, according to standing laws.” Mass. Const. of 1780. Pt. I, art. X), and New Hampshire (“Every member of the community has a right to be proected by it, in the enjoyment of hislife, liberty, and property.” N.H. Const. of 1784, art 12). Heyman, The First Duty of Government: Protection, Liberty, and the Fourteenth Amendment, 41 Duke Law Journal 507, at 512 (1991). The Massachusetts, thus creating state constitutional rights to protection against private violence.

[14] [Plaintiff’s Note:The framers of the Fourteenth Amendment ignored incorporation through the Supremacy Clause.]

[15] Steven J. Heyman, The First Duty of Government: Protection, Liberty and the Fourteenth Amendment, 41 Duke Law Journal 507 (1991); see also DeShaney, 489 U.S. at 196.

Independent of the proper originalist understanding of the Due Process Clause, however, the general principle that the U.S. Constitution is exclusively a charter of negative rights against government is not well established in the Court’s jurisprudence and so has not in fact achieved the axiomatic status that is sometimes claimed for it. Whether or not murder and theft laws, for example, are truly discretionary as a matter of federal constitutional law remains an open question because, being nonexistent, the permissibility of such gaps in the law has not been tested.[16] Apart from the well-known exceptions to the general principle where government is responsible for an individual’s predicament, such as the duty to provide adequate medical care, food, and clothing to those it has imprisoned or involuntarily committed,[17] there is, I believe a case to be made for the existence of mare “absolute” duties in addition to such “conditional” ones.[18] 

[16] Accordingly, my point here is different than Frank Michelman’s argument that in practice there may not be much difference in actual protection between the United States and other countries, even though in the United States such duties are statutory rather than constitutional. See Frank I. Michelman, The Protective Function of the State in the United States and Europe: The Constitutional Question, in European and US Constitutionalism, at 131, 141-51 (Andras Sajo & Renata Uitz eds., 2005).

[17] See Young v. Romeo, 457 U.S. 307, 321-22 (1982) (holding that the state is obligated to providew involuntarily committed mental patients with adequate food, shelter, clothing, and medical care); Estelle v. Gamble, 429 U.S. 97, 104-05 (1976) (holding that the state is required to provide adequate medical care to incarcerated prisoners). But see David A. Strauss, Due Process, Government Inaction, and Private Wrongs, 1989 Sup. Ct. Rev. 53, 63-68 (arguing that the Court’s exception for custodial arrangements is not really an exception at all because the principle underlying the exception implies that the government as affirmative duties to every person in society).

[18] See David P. Currie, Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864, 881-82 (1986) (distinguishing between absolute positive duties and conditional ones triggered by voluntary state conduct).

In DeShaney, Jackson, and the more recent case of Town of Castle Rock v. Gonzalez,[19] the fact that the social service officials and police officers—and thereby the state—may not have had a constitutional duty to protect individual citizens in the particular circumstances of the cases does not mean that more general legal protection against private violence is also discretionary. Even if an individual state official does not have a duty to help X enforce his contract against Y, it does not follow that the state is constitutionally free not to provide a general system for the legal enforcement of contracts.[20] Nor does the fact that an individual police officer is not under a constitutional duty to help a property owner eject a trespasser from her land mean that having a legal system of property protection is discretionary. In other words, there is a distinction between a protective right to legislation or common law rules on the one hand and rights to action by individual government officials on the other.[21] Whether a general system of private property and contracts is constitutionally required in the United States, as distinct from specific prohibitions on governmental taking of private property without just compensation and arbitrary regulation, is, I believe, a difficult and open question; it is at least not obviously the case that they are not.[22]

[19] 545 U.S. 748 (2005) (holding that plaintiff did not have a property interest in police enforcement of the restraining order against her husband for procedural due process purposes).

[20] This point is consistent with my critique of Sunstein’s argument against the distinction between negative and positive rights, see [footnote 257 in original below] because my critique was of the conceptual point that negative rights always require government assistance; i.e., that a purely negative constitutional right cannot and does not exist. I insisted above that different negative and positive rights to property atre entirely possible and conceivable—and that Sunstein had assumed rather than argued for the proposition that the United States has a positive right to property. Id. So my argument here that the United States may in fact have positive rights to property or contract, rather than the perfectly coherent negative negative right, does not undermine the general distinction between the two.

[Footnote 257 in original: Although not the first to do so, Cass Sunstein has recently cast doubt on the general distinction by arguing (1) that many seemingly negative constitutional rigts—such as the right to private property, freedom of contract, and criminal procedure rights—“require government assistance, not governmental abstinence” and (2) that “[a]ll constitutional rights [and not only positive ones] have budgetary implications; all constitutional rights cost money.” Cass Sunstein, Why Does the American Constitution Lack Social and Economic Guarantees? at 94-95, in American Exceptionalism and Human Rights, (Michael Ignatieff ed., 2005).

In making this first argument, Sunstein’s implicit assumption about the scope of the of th constitutional rights to private proterty and freedom of contract in the United States begs an important question. If, post-Lochner and post-New Deal, there are such extensive constitutional rights as he implies—as distinct from the more limited (and seemingly negative) rights against government takings of property without just compensation or governmentdeprivates of property without due process, and freedom of contract only agagainst arbitrary government regulation, it is incumbent on him to make this case. In other words, there are, or may be, distinct negative and positive rights concerning property and contract. It is certainly possible for property and contract rights to mandate governmental assistance as a matter of constitutional law, but is is not inherent or necessary. Whether or not they do in the United States or elsewhere, the basic conceptual distinction between negative and positive rights appears to survive this challenge.]

[21] I am grateful to Dick Fallon for encouraging me to make this distinction explicit. John Goldberg has explicated the general idea of a constitutional right to law (or body of laws) in making a powerful case that ehre is a constitutional right to a general protective law of torts to redress private wrongs. John C.P. Goldberg, The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs, 115 Yale L. J. 524 (2005). He also distinguishes this positive right from the right to benefits and argues that the right to law should from a third branch of due process, “structural due process.” Id. 

[22] David Strauss has also argued for a constitutional right to a minimum level of protection against private wrongs in the areas of torts and property. David A. Strauss, Due Process, Government Inaction, and Private Wrongs, 1989 Sup. Ct. Rev. 53, 63-68.

In rejecting the constitutional due process claim in DeShaney, the majority opinion noted that “Randy DeShaney was subsequently tried and convicted of child abuse.”[23] Similarly, in Castle Rock, had the father who murdered his three daughters not been killed in a shout-out at the police station, he would presumably have been convicted of homicide. The Court’s affirmation in this second case that, under DeShaney, the police had no constitutional duty to enfore the restraining order that might have prevented the murders[24] does not answer the separate questions of whether the existence of the homicide law is left to state political processes. The criminal law is, of course, a form of state protection of one individual from another, so in neighter case was the majority faced with a situation of no legal redress—a situation in which the fathers’ action was lawful. In other words, the existence of state criminal law may satisfy the protective constitutional duty imposed on states. After all, in the German First Abortion Case, the content that [Germany’s Bundesverfassungsgericht, (Federal Constitutional Court (FCC))] gave to the state’s protective duty was a presumptive requirement that the life of the fetus be protected by the crimninal law, that abortion be generally criminalized;[25] and in DeShaney, Joshua’s life was so protected by the state. Moreover, although in a slightly different context, the majority opinion in Castle Rock expressly rejected the notion that such protection is “‘valueless’—even if the prospect of those sanctions ultimately failed to prevent [the father] from committing three murders and a suicide.”[26] Accordingly, and notwithstanding the more general dicta in all three cases, I take the larger question of the general constitutional requirement of protection as far from settled by them. The issue—and the difference between the United States and certain other countriess—may well be not whether there are absolute duties to protect but rather their scope.

[23] DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 193 (1989). Strauss notes this point in arguing that the actual holding in DeShaney was significantly narrower than the general charter of negative libertieds principle because the state did not deny Joshua all protection against private violence. See David A. Strauss, Due Process, Government Inaction, and Private Wrongs, 1989 Sup. Ct. Rev. 53, at 56. 

[24] Castle Rock, 545 U.S. at 755, 768.

[25] See BVerfGE 1 (1975) (F.R.G.).

[26] Castle Rock, 545 U.S. at 760

2.     The Right to Protection in Early American Constitutionalism

Citing Steven J. Heyman, The First Duty of Government: Protection, Liberty and the Fourteenth Amendment, 41 Duke L. J. 507, at 520–21 (1991):

American thought during the Revolutionary era was deeply influenced by all of these sources—the common law tradition of Coke and Blackstone, the history of English constitutionalism and the Glorious Revolution, and the natural rights theory of Locke’s Second Treatise.[27] What integrated all these sources into a coherent worldview for Americans, as Bernard Bailyn and Gordon Wood have shown, was radical Whig ideology.[28] As we have seen, it was a basic tenet of Whig ideolog6y that protection was a primary purpose of government.

It was a canon of radical Whig thought that government existed to protect the natural rights o fits subjects. As John Trenchard and Thomas Gordon wrote in Cato’s Letters:[29]

[M]utual Protection and Assistance is the only reasonable purpose of all reasonable Societies. To make such Protection practicable, Magistracy was formed, with power to defend the Innocent from Violence, and to punish those that offered it . . . . In order to this . . . End, the Magistrate is intrusted with conducting and applying the united Force of the Community; and with exacting such a Share of every Man’s Property and his Property from foreign and domestick Injuries.[30]

[27] See Bernard Bailyn, The ideological Origins of the American Revolution at 22–54 (1967); Gordon S. Wood, The Creation of the Revolution: The Authority to Tax  at 6–10 (1969).

[28] See Bernard Bailyn, The ideological Origins of the American Revolution at 34 (1967); Gordon S. Wood, The Creation of the Revolution: The Authority to Tax  at 14–17 (1969)

[29] Steven J. Heyman, The First Duty of Government: Protection, Liberty and the Fourteenth Amendment, 41 Duke L. J. 507, at 516 (1991)

[30] Cato’s Letters No. 62, at 245 (London 3d ed. 1733). On Cato’s Letters, see Bernard Bailyn, The ideological Origins of the American Revolution at 35–36 (1967).

In recent years, radical Whig writers such as Trenchard and Gordon have often portrayed as “classical republicans” who subordinated individual rights to the good of the community, in contrast to Lockean liberals who founded government on the protection of individual rights. See e.g., Daniel A. Farber & Suzanna Sherry, A History of the American Constitution 11‑13 (1990). As this passage indicates, however, these writers were in complete accord with Locke on the government’s obligation to protect natural rights.

In this way, the concept of protection became a fundamental principle of American constitutionalism. It played an important role in the Revolutionary controversy, and became a basic element of the newly formed governments.

The first state constitutions after the American Revolution were strongly influenced by social contract theory. Most of the first state constitutions included a bill of rights which generally began by declaring the natural rights of mankind. Several states declared that “government is, or ought to be, instituted for the common benefit, protection, and security of the people”:

Virginia Declaration of Rights § 3, reprinted in 10 Sources and Documents of United States Constitutions 49 (William F. Swindler ed., 1973-1979) (hereinafter referred to as State Constitutions).

Massachusetts Constitution of 1776, Declaration of Rights, art. V, reprinted in 8 State Constitutions at 94.

New Hampshire Constitution of 1784, part I, art. X, reprinted in 6  State Constitutions at 345.

Pennsylvania Constitution of 1776, Declaration of Rights, art. V, reprinted in 8 State Constitutions at 278.

Rhode Island Declaration of Rights of 1776, § 2, reprinted in 8 State Constitutions at 387.

Vermont Constitution of 1777, preamble, reprinted in 9 State Constitutions at 487.

A number of states expressly recognized protection at the right of every individual.

Delaware Declaration of Rights and Fundamental Rules of 1776, art. 10, reprinted in 2 State Constitutions  at 198.

Massachusetts Constitution of 1780, part I, art. X, reprinted in 2 State Constitutions at 94 (Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to the standing laws. He is obliged, consequently, to contribute his share to the expense of this protection, to give his personal service, or an equivalent, when necessary; but no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people.).

New Hampshire Constitution of 1784, Bill of Rights, art. XII, reprinted in 6 State Constitutions at 345.

cf. New York Constitution of 1777, art. XL, reprinted in 7 State Constitutions at 179 (“it is the duty of every man who enjoys the protection of society to be prepared and willing to defend it.”)

Vermont’s first constitution (and all subsequent constitutions) contain similar provision as New York. See Vermont Constitution of 1777, ch. I, art. IX, reprinted in 9 State Constitutions at 490. Vermont was not admitted into the Union until 1791.

Most of the first state constitutions included a bill of rights which generally began by declaring the natural rights of mankind:

Connecticut Constitution Ordinance of 1776, art. I, reprinted in 2 State Constitutions at 143–44.

           Delaware Declaration of Rights of 1776, reprinted in 2 State Constitutions at 197–99.

Maryland Declaration of Rights of 1776, reprinted in 4 State Constitutions at 372–75.

Massachusetts Constitution of 1780, part I, reprinted in 5 State Constitutions at 93–96.

New Hampshire Constitution of 1784, part I, reprinted in 6 State Constitutions at 344–47.

North Carolina Constitution of 1776, Declaration of Rights, reprinted in 7 State Constitutions at 402–04.

Pennsylvania Constitution of 1776, Delcaration of Rights, reprinted in 8 State Constitutions at 278–79.

Virginia Declaration of Rights of 1776, reprinted in 10 State Constitutions at 48-50. Virginia’s Declaration of Rights, the first to be adopted asserted:

That all men are by nature equally free and independent and have certain inherent rights, of which when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

Virginia Declaration of Rights § 1, reprinted in 10 State Constitutions at 49.

Similar provisons:

           Massachusetts Constitution of 1780, part I, art. I, reprinted in 5 State Constitutions at 344.

Pennsylvania Constitution of 1776, Declaration of Rights, art. I, reprinted in 8 State Constitutions at 278.

3.     The Right to Protection in the Classical Legal Tradition has Three Major Elements  

A. Status of the Individual

To be under the protection of the law meant to have the status of a freeman and a citizen. When the U.S. Coast Guard and other federal agencies, in league with the U.S. Department of Justice and the federal courts deny substantive rights, i.e., the Seventh Amendment right to a civil jury trial over the Second Amendment the status of the individual is reduced to a slave with no enforcement rights.

B. Substantive Rights

Protection meant that the law recognized and secured an individual’s right to life, liberty, and property. Substantive rights included positive rights protected by the Government through positive laws, such as laws protective the positive right and duty to openly keep and bear arms in intrastate, interstate, nautical, and maritime travel for the merchant seamen.

C. Enforcement of Rights

The specific ways in which government prevented violations of substantive rights, or redressed and punished such violations. However, when civil rights are concerned in the case of recent history as evidenced by the judicial roll back of civil rights in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) the enforcement of rights through the Seventh Amendment right to a civil jury trial becomes next to impossible, especially so for an unrepresented civil plaintiff who happens to be a merchant seamen seeking enforcement of his rights as a ward of the Admiralty. The federal courts refusing to defend the rights of individual citizens against violations by the United States Government becomes prima facie evidence of treason against the Constitution of the United States.

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