Home > Uncategorized > Excerpt from Introduction to my Forthcoming Admiralty Lawsuit for the Second Amendment

Excerpt from Introduction to my Forthcoming Admiralty Lawsuit for the Second Amendment

Sunday, January 3, 2010 Leave a comment Go to comments

Click to download the first 13 pages of my 2010 Admiralty Lawsuit INTRODUCTION (Issue Pleading). 378 pages at 10 Mbytes

PART 3. Introduction (Issue Pleading)

 

1. Are the Federal Courts in Search of a Novel Issue of Law Regarding the Second Amendment’s Prefatory Clause or Just Using Circular Logic to Enslave the People in a State of Tyranny?

            This case is all about the link between the Second Amendment, the Common Defence Clause in the Preamble to the Constitution, and the right to intrastate, interstate, nautical and maritime travel as applied to a U.S. merchant seaman. This should present a novel approach for the Second Amendment to satisfy my Seventh Amendment right to a civil trial.

A. Hurricane Katrina Revisited: Slavery is Alive in Well in the South and Enforced by the Federal Courts:

           I am revisiting Hurricane Katrina because that disaster became the spawning ground for all kinds of civil rights and constitutional rights cases ranging from Second Amendment cases to the right to travel interstate and intrastate. My case combines all three scenarios:

1. The right to travel intrastate and interstate while openly armed with a handgun worn as a sidearm for not only personal safety and security as a prerequisite to the right of armed self-defense and for the defense of others and for the defense of one’s own private property and the private property of others, hence the intent of the Common Defence Clause in the Preamble to the Constitution. The Second Amendment “IS” the Common Defence!

2. And the seaman’s right to intrastate and interstate travel while armed while in transit to and from U.S. flag vessels (hench the MMC and TWIC card’s constitutional deficiency.

3. And the seaman’s right to arms aboard U.S. flag vessels (i.e., container ships, but excluding oil tankers for the obvious risk of explosion from firearms muzzle flash) in international waters at the discretion of the Master under maritime law for self-defense against pirates on the highes (hence, the federal question under the Treaty Clause).

           On this basis it is my Claim that the obselete Merchant Mariner’s Document (MMD) and the superceding Merchant Mariner’s Credential (MMC) and the Transportation Worker’s Identification Credential (TWIC) without identifying data on the right and duty to own and possess firearms in intrastate and interstate travel are incidences and badges of slavery in violation of the First, Second, Fourth, Fifth, Ninth, Tenth, Thirteenth and Fourteenth Amendments. I cite Dred Scott v. Sanford as the basis to allege that the U.S. Coast Guard’s denial of my Second Amendment right to travel intrastate and interstate through an endorsement on my Merchant Mariner’s Document (MMD) in 2002 and the imminent denial of that endorsement upon renewal for the new Merchant Mariner’s Credential (MMC) is and will be an incidence of slavey and the MMD and TWIC as identification documents are badges of slavery in the litteral, legalistic, and rhetorical sense comparable to the Nazis forcing Jews to wear yellow stars during World War II. Think about. The War on Terror today? The TWIC card serves the same function as the Nazis use of the yellow star as a form of identification. It all starts with the implementation of mandatory forms of identification.

[snip]

B. No Right to Machineguns for Members of the Tennessee State Guard

           In Richard Hamblen v. United States, 6th Circuit, No. 09-5025 (December 30, 2009), contesting the conviction for possession of machine guns in violation of 18 U.S.C. § 922(o) and possession of unregistered firearms in violation of 26 U.S.C. § 5861(d) as unconstitutional, either on their face or as applied to a member of the Tennessee State Guard, the Sixth Circuit opened the door for my Complaint contesting the U.S. Coast Guard’s denial of my Second Amendment application for a National Open Carry Handgun endorsement on my Merchant Mariner’s Document (now made obsolete with the new Communist‑looking, Soviet Union Passport style red-cover Merchant Mariner’s Credential (given the role of color symbolism in matters of national governments) and the denial of my proposed Merchant Marine Auxiliary for the commercial maritime industry comparible to the Coast Guard Auxiliary for the boating public.

           I note with Particularity in Pleading Fraud as a Special Matter under Rule 9(b) of the Federal Rules of Civil Procedure that the 6th Circuit in Hamblen interpreted the scope of the Second Amendment by relying on the U.S. Supreme Court’s opinion in District of Columbia v. Heller, 128 S. Ct. 2783 (2008) and DID NOT RELY ON the purpose and effect of the Common Defence Clause in the Preamble to Constitution of the United States as found on page 53 of the U.S. Senate Document No. 108-17, The Constitution of the United States of America Analysis and Interpretation Analysis of Cases Decided by the Supreme Court of the United States to June 28, 2002, 108th Congress, 2nd Session, as the controlling authority for Hamblen.

Page 53 of that document:

The Preamble

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Purpose and Effect of the Preamble

Although the preamble is not a source of power for any department of the Federal Government,[1] the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution.[2] ‘‘Its true office,’’ wrote Joseph Story in his Commentaries, ‘‘is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, to provide for the common defense.’ No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?[3]

Footnotes:

[1] Jacobson v. Massachusetts, 197 U.S. 11, 22 (1905).

[2] E.g., the Court has read the preamble as bearing witness to the fact that the Constitution emanated from the people and was not the act of sovereign and independent States, McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 403 (1819) Chisholm v. Georgia, 2 Dall. (2 U.S.) 419, 471 (1793); Martin v. Hunter’s Lessee, 1 Wheat. (14 U.S.) 304, 324 (1816), and that it was made for, and is binding only in, the United States of America. Downes v. Bidwell, 182 U.S. 244, 251 (1901); In re Ross, 140 U.S. 453, 464 (1891).

[3] 1 J. Story, Commentaries on the Constitution of the United States (Boston: 1833), 462. For a lengthy exegesis of the preamble phrase by phrase, see M. Adler & W. Gorman, The American Testament (New York: 1975), 63‑118.

           I further note with Particularity in Pleading Fraud as a Special Matter under Rule 9(b) that the U.S. Supreme Court failed or refused to include the Command Clause as Subsection 3 in the “outline” structure in Heller, Part II, Section A, Subsection 1 “Operative Clause”; Subsection 2 “Prefatory Clause”; Subsection 3 “Relationship between Prefatory Clause and Operative Clause” and further failed or refused to opine on the Relationship between the Command Clause and the Prefatory and Operative Clauses or between the Second Amendment and the Common Defence Clause in the Preamble to the Constitution (the Four Corners Doctrine) or the Guarantee of a Republican Form of Government but only considered whether a short-barreled shotgun has some reasonable relationship to the preservation or efficiency of a well regulated militia (See United States v. Miller, 307 U. S. 174 (1939)). Miller failed to consider whether a short-barreled shotgun has some reasonable relationship to the preservation or efficiency of the Common Defence or to the guarantee of a Republican Form of Government as a necessary condition for Domestic Tranquility (Preamble with the Common Defence). These considerations determine the differences between narrowly and broadly interpreting the Second Amendment and the degree of rights, liberties, freedoms, and duties that the federal courts are willing to allow to the People as though the People have no rights, liberties, freedoms, or duties but by permission of the Government.


           I further note with Particularity in Pleading Fraud as a Special Matter under Rule 9(b) that the 6th Circuit in Hamblen used the term “DISCUSSION” on page 4 of the 5-page opinion when the term “CONCLUSION” would have been the correct term for that concluding section of the opinion. The improper titling of sections is evidence of subterfuge, a mindset, meant to give an impression of impartiality (See Canons 1, Independence, 3(b)(2) Faithful to the [Tenth Amendment separation of powers and not be swayed by partisan politics in the ongoing federal government’s power grab of State powers and the powers reserved to the People under the Tenth Amendment]; and 3(b)(5), perform judicial duties without bias or prejudice.).

           In expounding on this Particularized Pleading of Fraud as a Special Matter under Rule 9(b) I further note that the nature of the United States Government has long been taking Tenth Amendment powers incrementally from the States and the Tenth Amendment powers reserved to the People beginning with the Eleventh Amendment proposed in 1794 and ratified in 1798 in a rebellious act of tyranny over the U.S. Supreme Court’s opinion in Chisolm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).[1] The road to a despotic and tyrannical United States Government began just 5 years after the ratification of the Constitution of the United States in 1789.   

 


FOOTNOTE [1] See Randy E. Barnett, The People or the State?: Chisholm v. Georgia and Popular Sovereignty, 93 Virginia L. Rev. 1729 (2007).


           I further note with Particularity in Pleading Fraud as a Special Matter under Rule 9(b) that if the Constitution of the United States was interpreted under the Four Corners Doctrine then the Common Defence Clause in the Preamble to the Constitution would be interpreted as intending to preserve the Law of Human Nature or the Natural Law of Mutual Self-Defense in society that the right of the people to associate under the First Amendment and the Ninth Amendment combined with the Fourteenth Amendment’s privileges and immunities clause, the right to intrastate, interstate, inland, inter-coastal, coastwise, and international waters in maritime travel while openly armed under the Second Amendment would today be the Supreme Law of the Land. 

           It is this intended meaning of the “security of a free state” that all (or most all) people were intended to be openly armed in their daily travels and associations in intrastate travel within a State and interstate travel among the various States.

           To defend this interpretation of the Common Defence Clause and the Second Amendment I cite Heller, Part II, Section A, Subsection 2 Prefatory Clause (“A well regulated Militia, being necessary to the security of a free State . . . .”), Subsection 2(b) “Security of a Free State”:

b. “Security of a Free State.” The phrase “security of a free state” meant “security of a free polity,” not security of each of the several States as the dissent below argued, see 478 F. 3d, at 405, and n. 10. Joseph Story wrote in his treatise on the Constitution that “the word ‘state’ is used in various senses [and in] its most enlarged sense, it means the people composing a particular nation or community.” 1 Story §208; see also 3 id., §1890 (in reference to the Second Amendment’s prefatory clause: “The militia is the natural defence of a free country”). It is true that the term “State” elsewhere in the Constitution refers to individual States, but the phrase “security of a free state” and close variations seem to have been terms of art in 18th-century political discourse, meaning a “ ‘free country’ ” or free polity. See Volokh, “Necessary to the Security of a Free State,” 83 Notre Dame L. Rev. 1, 5 (2007); see, e.g., 4 Blackstone 151 (1769); Brutus Essay III (Nov. 15, 1787), in The Essential Antifederalist 251, 253 (W. Allen & G. Lloyd eds., 2d ed. 2002). Moreover, the other instances of “state” in the Constitution are typically accompanied by modifiers making clear that the reference is to the several States—“each state,” “several states,” “any state,” “that state,” “particular states,” “one state,” “no state.” And the presence of the term “foreign state” in Article I and Article III shows that the word “state” did not have a single meaning in the Constitution.

           I further note with Particularized Pleading of Fraud as a Special Matter under Rule 9(b) that it is with particularized deliberate indifference to the true Common Defence role that the Second Amendment that it is the right, the liberty, the freedom, and the DUTY to be openly armed in all human activities where feasible and practical for the Common Defence (Isreali or Swiss Model). Anything less, such as Gun‑Free Zones for fraudulent so-called sensitive areas of schools, universities, colleges, malls, and private businesses, invites the criminal element to invade[2] those Gun-Free Zones and engage in single-shooter mass murder of disarmed people. Therefore, it is my claim that the Common Defence Clause, by construction, made the Constitution enforceable by the People not only against Government wrong-doing (the vertical effect), but also against private citizens (horizontal effect). Giving consideration to comparative constitutional law through a study of Stephen Gardbaum’s, The Horizontal Effect of Constitutional Rights, 102 Mich. L. Rev. 387 (Dec. 2003) and other law review articles on the subject it is my claim that the State Action Doctrine, established by the Civil Rights Case of 1883, is a fraud upon the More Perfect Union Clause of the Preamble to the Constitution and upon the Supremacy Clause in Article VI of the Constitution because all law, no matter what its source or type, is subject to the Constitution, even bilateral and multilateral treaties cannot subjugate the Constitution. Therefore, the following treaties to the extent that they threaten the Second Amendment cannot be enforced upon U.S. citizens in the United States or upon U.S. seafarers aboard U.S. flag vessels:


FOOTNOTE [2] See U.S. Const. Art. I, Section 8, Clause 15: “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;” The phrase “repel Invasions,” in my opinion, is not limited to a military invasion in an act of war but includes all forms of invasions, such as cultural invasions resulting from an immigration policy gone wild that becomes antithetical to the American culture so as to hazard Domestic Tranquility; internal invasions of Domestic Policies of the United States so as to hazard Domestic Tranquility and National Security as evidenced by the dumbing down of the public school system with doctrines based on marxism originated political correctness and the new threat from Islamic Sharia that threatens Dhimmitude, (slavery and loss of Second Amendment rights); and many other examples of a broad interpretation of “repel Invasions” aspect of the Common Defence.


  • United Nations Programme of Action to Prevent, Combat and Eradicate the Illicit Trade in Small Arms and Light Weapons in All Its Aspects (PoA)
  • Inter-American Convention Against the Illicit Manufacturing of and Trafficking in Firearms, Ammunition, Explosives, and Other Related Materials,
  • International Maritime Organization, Piracy and Armed Robbery Against Ships: Recommendations To Governments for Preventing and Suppressing Piracy and Armed Robbery Against Ships, MSC.1/Circ.1333, 26 June 2009
  • International Maritime Organization, Piracy and Armed Robbery Against Ships: Guidance To Shipowners and Ship Operators, Shipmasters and Crews on Preventing and Suppressing Acts of Piracy and Armed Robbery Against Ships, MSC.1/Circ.1334, 23 June 2009

           I further note with Particularity in Pleading Fraud as a Special Matter under Rule 9(b) that the federal courts bar of the Four Corners Doctrine for Constitutional Law is an act unconstitutional act so as to maintain tyrannical interpretations of the Constitution, i.e. the living Constitution interpretation that is subject to the whims of passing political influences and ideologies contrary to the rights, liberties, freedoms, and duties of the People.

           I further note with Particularized Pleading of Fraud as a Special Matter under Rule 9(b) that it is JUDICIAL TREASON against the Constitution of the United States NOT to consider the the Second Amendment as a vital component to the Common Defence as applied to the individual to act lawfully and autonomously not only in self-defense but also for the defense of others and for the Common Defence but also as a member of the unorganized (i.e., unregistered for the purposes of the United States Attorney under 18 U.S.C. § 2386(A)(1-5) and (B)(1), and (B)(2)(b) which criminalizes the unorganized militia to which it is my claim that those provisions of 18 U.S.C. § 2386 are TREASON against the Common Defence of the United States. In short it is my claim that the Government of the United Stated has developed a state of fear of the People to the extent that it no longer trusts law abiding citizens to lawfully exercise any of their constitutional rights, let alone their human rights in the current state of the Fourth Generation Warfare and the coming Fifth Generation Warfare of the total surveillance police state where all freedoms are lost to the Security of a Free State WITHOUT the practical use of the Second Amendment for the People.

           I further note with Particularized Pleading of Fraud as a Special Matter under Rule 9(b) that it is TREASON against the Constitution of the United States for the Legislative Branch to pass laws closing down the various Checks and Balance Systems provided to the People by the structure and content of the Constitution under the Four Corners Doctrine or to ignore particularized Checks and Balance Mechanisms of the Constitution giving Power to the States and the People the means to amend the Constitution in defiance of the Congress’ refusal to act under Article V or to limit or deny the People their right to petition the Congress directly under the First Amendment for redress of grievances against the United States with Petitions for Private Bills when redress is denied by the Federal Courts to the extent that little or no Private Bills have passed into Private Law today. This is by definition TYRANNY. Therefore, acts of treason abounds in the Government of the United States though it be considered as mutual difference among the three branches, hence my allegations of treason, conspiracies, and racketeering activities under color of law or under color of official right under the RICO Act.

Excerpts “•” from Heller relating to the “Common Defence” Clause:

  • Justice James Wilson interpreted the Pennsylvania Constitution’s armsbearing right, for example, as a recognition of the natural right of defense “of one’s person or house”—what he called the law of “self preservation.” [citations omitted]. That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts.[See FOOTNOTE 9 for references to “Common Defence”] These provisions demonstrate—again, in the most analogous linguistic context—that “bear arms” was not limited to the carrying of arms in a militia.
  • 2. Prefatory Clause.

The prefatory clause reads: “A well regulated Militia, being necessary to the security of a free State . . . .”

a. “Well-Regulated Militia.” In United States v. Miller, 307 U. S. 174, 179 (1939), we explained that “the Militia comprised all males physically capable of acting in concert for the common defense.”

  • The 1780 Massachusetts Constitution presented another variation on the theme: “The people have a right to keep and to bear arms for the common defence. . . .” Pt. First, Art. XVII, in 3 Thorpe 1888, 1892. Once again, if one gives narrow meaning to the phrase “common defence” this can be thought to limit the right to the bearing of arms in a state-organized military force. But once again the State’s highest court thought otherwise. Writing for the court in an 1825 libel case, Chief Justice Parker wrote:

“The liberty of the press was to be unrestrained, but he who used it was to be responsible in cases of its abuse; like the right to keep fire arms, which does not protect him who uses them for annoyance or destruction.” Commonwealth v. Blanding, 20 Mass. 304, 313–314. The analogy makes no sense if firearms could not be used for any individual purpose at all. See also Kates, Handgun Prohibition and the Original Meaning of the Second Amendment, 82 Mich. L. Rev. 204, 244 (1983) (19th-century courts never read “common defence” to limit the use of weapons to militia service).

  • Between 1789 and 1820, nine States adopted Second Amendment analogues. Four of them—Kentucky, Ohio, Indiana, and Missouri—referred to the right of the people to “bear arms in defence of themselves and the State.” See n. 8, supra. Another three States—Mississippi, Connecticut, and Alabama—used the even more individualistic phrasing that each citizen has the “right to bear arms in defence of himself and the State.” See ibid. Finally, two States—Tennessee and Maine—used the “common defence” language of Massachusetts. See Tenn. Const., Art. XI, §26 (1796), in 6 Thorpe 3414, 3424; Me. Const., Art. I, §16 (1819), in 3 id., at 1646, 1648. That of the nine state constitutional protections for the right to bear arms enacted immediately after 1789 at least seven unequivocally protected an individual citizen’s right to self-defense is strong evidence that that is how the founding generation conceived of the right. And with one possible exception that we discuss in Part II–D–2, 19th-century courts and commentators interpreted these state constitutional provisions to protect an individual right to use arms for selfdefense. See n. 9, supra; Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833).

The historical narrative that petitioners must endorse would thus treat the Federal Second Amendment as an odd outlier, protecting a right unknown in state constitutions or at English common law, based on little more than an overreading of the prefatory clause.

  • Rather, it was that the type of weapon at issue was not eligible for Second Amendment protection: “In the absence of any evidence tending to show that the possession or use of a [shortbarreled shotgun] at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument.” 307 U. S., at 178 (emphasis added). “Certainly,” the Court continued, “it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.” Ibid. Beyond that, the opinion provided no explanation of the content of the right.

This holding is not only consistent with, but positively suggests, that the Second Amendment confers an individual right to keep and bear arms (though only arms that “have some reasonable relationship to the preservation or efficiency of a well regulated militia”).

               Judicial misdirection was intentionally placed on the militia clause in the Second Amendment. Hence judicial fraud and treason against the Constitution. Had the Court employed the Four Corners Doctrine the Court would have been bound by the Rule of Law to include the Common Defence Clause in the Preamble and would have probably ruled that a shortbarreled shotgun would have some reasonable relationship to the preservation or efficiency of the Common Defence, thereby avoiding the institutional limitation of military procedures in acquisitions of firearms and other weapons of war and national defense. The National Defense, being the function of the National Government, is a subset function of the Common Defence. The Common Defence, being the superset of the National Defense, includes the People being the unorganized militia aiding in the Common Defense for Domestic Tranquility by acting autonomously from government authority not only as individuals but has a collective for the defense of society, i.e., their neighborhoods, communities, towns, cities, and counties, and their states without the prejudicial or bigoted labeling of vigilantism when done within the law and when the local, county, or State government or the United States Government abdicates its constitutional duties to provide for the Common Defence as has happened in the border invasions with Mexico and in Hurricane Katrina. The Common Defence is specifically purposed to provide the People with the constitutional duty and authority to defend themselves, their communities, their town or city, and in the extreme, their country (with presumed jusitification) and to defend the Gaurantee of a Republican Form of Government when the local, county or State Governments, or the United States Government fail or refuse to act, or is overthrown by a foreign power and cannot act for the Common Defence as has happened in The Battle of Athens, Tennessee, August 1-2, 1946 when the citizens of McMinn County were forced to take up arms and engage in a gun battle with the corrupt Sheriff and his deputies (controlled by the Tennessee state Democrat Machinde) in defense of the right of the People to an honest election of county officials. The FBI investigated and determined that the citizens who engage in the overnight gun battle (local war) had committed no violations of federal laws because the citizens were defending their right to an honest election against a corrupt government. The same cannot be said today if history were to repeat itself in different county because with the Patriot Act and all other Post 9/11 laws such armed defence against any government would be considered an act of terrorism even if done in defense of constitutional rights. This is true state of terror the American People face with the United States Government. This is by definition, the same tyranny the colonies faced with the British that triggered the American Revolution in the name of Freedom. How close are we today with another revolution?

            I further note with Particularized Pleading of Fraud as Special Matters under Rule 9(b) that it will be an act of TREASON for this Court to dismiss this case as the 6th Circuit did in Hamblen, on the fraudulent basis that my Complaint does not present a novel approach to an issue of law regarding the Second Amendment’s prefatory clause, “A well regulated Militia, being necessary to the security of a free State . . . .” because the above Particularized Pleadings of Fraud as Special Matters do, in fact and law, present a novel approach, such as my proposal to resurrect the Letters of Marque and Reprisal in the Fourth Generation Warfare that the United States has found itself in with its War on Terrorism and Piracy on the High Seas that I presented to the U.S. Coast Guard but the U.S. Coast Guard rejected.

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