Second Amendment – Abrams Dicta

A person who goes to a protest dressed in military style clothing and carrying an assault rifle is not a patriot, or a freedom fighter, or any sort of a great American. They are, at best, a vigilante who lacks the most basic understanding of democracy and free speech and at worst is a thug seeking to destroy social order and the foundations of our democracy.

It doesn’t matter how many flags these nutjobs carry, or that they carry signs with patriotic clichés and catchy phrases. It doesn’t matter that they wrap themselves in a twisted interpretation of the second amendment. What matters is that they have violated the very core values necessary for democracy to function, for our communities to peacefully exist, and for our nation to be ruled by laws that apply equally to everyone.

A sitting president who condones and encourages these thuggish threats of violence, should be removed from office without delay. Any elected official who encourages armed thugs to liberate the states governed by an opposing political party in the middle of a national crisis is waging psychological warfare upon our Democracy and in my opinion is committing treason in violation of their oath to support and defend the U.S. Constitution.

Contrary to what some politicians and the know-nothing talking heads who promote conspiracy-driven paranoia say, the United States Constitution does not contain a right to armed protest or revolt. In establishing a democratic form of government, the framers of the Constitution sought to put an end to the repetitive cycle of violence that was necessary for political change in Europe at the time our nation was founded. The Framers embraced the idea of a peaceful transition of power, and that has been the established norm in American society for over 200 years. Our Constitution enshrined free speech and peaceful assembly in the First Amendment, which prohibits laws that restrain speech or peaceful assembly and guarantees a right to petition the government for redress of grievances. In creating these rights, along with regular elections, the framers rejected violence as a mechanism of change. This rejection of violence as a mechanism of change is very clear in Article 3 section 2 of the Constitution which defines treason as levying war against the states or adhering to their enemies or giving them aid and comfort.

It is only a matter of time before one of these armed protests go awry and those trigger-happy chocolate soldiers will let lose the dogs of war that they have been systematically and deliberately programmed to covet. It is impossible to know where things will go from there, but I don’t see anything good for anyone happening from that point forward.

History teaches us that democracies rarely fail in a single moment. Instead, they are dismantled over time before the eyes of citizens who fail to realize what’s happening until it’s too late. The United States is clearly following the historic pathway of other countries, including Nazi Germany, who moved from a democratic enlightened nation into an authoritarian unenlightened form of government. Nothing raises this alarm more than Donald Trump and right-wing media’s call for armed protestors to liberate their states from lawfully elected leadership by Democrats. As Harvard Political Science Professor Steve Livtskey wrote in his 2018 book “How Democracies Die”: “Authoritarian politicians cast their rivals as criminal, subversive, unpatriotic, or a threat to national security or the existing way of life.” Years of brainwashing, or conspiracy theories, or half-truths and innuendo designed to make people see themselves as “Conservative” and view their nation through a lens of “us” and “them” such that they hate other Americans, who are really not materially different from them, is fraying the social fabric necessary for us to respond to a national crisis such as the Coronavirus pandemic.

We are creeping ever closer to losing the very things that once made America great. All it’s going to take is one of these protests flaring up into a gunfight. This will likely spark two disastrous events. The right-wing militia groups, who are already looking for a justification for violence, will then likely join and the violence will expand. The President, justifying his actions by violence in the streets, an economic disaster, and a pandemic will then declare a State of Emergency, and send in Federal Troops. Elections will be suspended, and American democracy will be lost. The Republican majority Senate, eager to hold power, will block any legislative opposition, and the Judiciary, which has been packed with legal positivist judges from the Federalist Society, will go along.

Let’s hope that I’m wrong about all this, but we are following a well established historical pattern and I don’t see any exit ramps on this road.

The latest news in the oddball social and political American landscape is the occupation of a National Wildlife Refuge in Oregon by a group of militants led by the son of nutso criminal cattle rancher Cliven Bundy. This news story rivals the Trump campaign for its absolute weirdness and its appeal to disaffected people in search of a cause.

I find very little of their cause to be the least bit appealing or convincing. I don’t buy their claims of an over-reaching federal government stealing land or that they have some sort of divine or Constitutional right to private possession of public lands which they are free to utilize or extract resources from without restraint. Perhaps more significantly, I completely reject the notion that they have a Constitutional right to engage in armed resistance or rebellion against the United States Government. In numerous places the Constitution rejects the concept of sanctioning armed rebellion. For example, with regarding to Congressional powers, the Constitution says that Congress has the power:

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; U.S. Const. art. I, § 8, cl. 15

The Constitution explicitly prohibits armed rebellion and defines it as treason when it states:

“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.” U.S. Const. art. III, § 3, cl.

It is clear that our founding fathers did not contemplate armed resistance and rebellion as a protected political right.

However, there is an issue in this fiasco which does interest me. That is, the sentencing of the two ranchers, a father and son, Dwight and Steven Hammond, for setting fire to public land. A statement by the prosecutor recounting the history of case and the law violations of the Hammands can be found here and is worth taking the time to read. The trial Court judge, following their convictions after a two-week jury trial, imposed relatively short sentences of a year or less upon the two defendants. The government appealed and the Appellate Court found the Judge lacked discretion to impose less than the minimum mandatory sentence. It’s this issue of removing sentencing discretion from the trial Court judge that I find disturbing. I recognize that sentencing guidelines are designed to encourage uniformity in sentencing, but the reality is that not all crimes are the same. Especially in the federal justice system, the mandatory sentences for drug related offenses have resulted in extremely long sentences being imposed upon defendants who may have only had a minor role in the crime. This becomes even more unfair when the low level players often have little valuable information to bargain with prosecutors for a reduced sentence whereas the kingpins often are able to work deals to plea to lesser crimes in exchange for providing information to the government. As a result of these minimum mandatory sentences we now have the world’s largest prison population and the sentences our nation imposes are far more severe than those imposed in the rest of the developed world.

A few years ago I attended a week at the Chautauqua Institution where the theme of the week was Crime and Punishment. One of the speakers I heard was former Federal Judge Nancy Gertner, who is now an outspoken opponent to the federal mandatory minimum sentences that judges are required to impose. Here is what she wrote in a recent publication:

Mandatory minimum sentences distort our criminal justice system. In effect, the legislature is sentencing, when it knows little or nothing about the individual or what may work to deter him in the future. Or the prosecutor is sentencing, when he or she sees only one side — the offense — and rarely knows much about the defendant’s life. The judge is effectively a bystander. And while the judge’s decisions must be transparent, and are subject to appeal and public scrutiny, the prosecutor’s are not.

Our system of government contemplates three equal branches: The Executive (President); The Legislative (Congress); and the Judiciary. I can’t help but feel that the American judiciary has not only been weakened in the past generation, but is quickly on pathway towards being irrelevant. We now are faced with a super legislature, fueled by massive corporate donations, that is rapidly consolidating its power and intruding into and successfully limiting the function of both the Executive and Judicial branches. Our judges no longer have authority to hear the vast majority of civil contract claims due to the Federal Arbitration Act. These claims are now decided by corporate-run arbitration where the records are private and there is no right to appeal. Due to legislatively imposed mandatory minimum sentences we have lost the right as people to have a judge hear our case and determine a fair sentence based upon the facts presented at trial, including mitigating circumstances. Instead, our sentence was predetermined by politicians, who never heard our story and who may be getting campaign contributions from the for-profit prison industry.

If you think I’m over-exaggerating consider this: The leader of the group in Oregon is the son of Cliven Bundy, the man who after two trials was found to owe the United States government in excess of $1 million dollars in fees. A federal judge twice permanently prohibited Mr. Bundy from grazing his cattle on federal lands, but he continued to ignore the order with impunity. When the judge ordered seizure of Mr. Bundy’s cattle to pay the debt owed to the government, Mr. Bundy basically took up arms against the government. Two years later, neither the Executive branch nor the Legislative branches have done anything to enforce the Judge’s order. Be aware, Courts do not control the police or law enforcement, they must rely upon the executive branch of government to enforce the law. In this case, due to the lack of action by the other branches of government, the judiciary is rendered absolutely impotent. This is something that should frighten us all and is much more of a threat to American democracy than some nut jobs inhabiting a bird sanctuary.

Armed Protestors And The Politicians Who Support Them Threaten Democracy

The Real Constitutional Threat In The Oregon Militia Takeover