I awoke this morning with a dream still fresh in my memory; something that does not happen very often. Typically, as soon as my eyes open, memories of whatever dreams I had during the night vanish without a trace. As quickly as possible, (which isn’t so quick since my PC is getting old and takes FOREVER to boot up), I typed out the parts I wanted to use from that dream; before they too vanished into the void that forgotten dreams go to.
The basic story of this dream is that I was a young, (I wish), school teacher, and I had the hots for this new sandy blonde, (also single), teacher the school had hired. In this dream I did not buy her a box of chocolates; as often is the case for young suiting males from my era. Instead I bought her a .44 magnum pistol and a box of chocolates; which I brought to school and intended to give to her later in the day.
Somehow school officials became aware of my gift and called the police. Just as I was giving it to her the cops showed up and arrested the both of us for being in possession of a firearm on school property; even though it was unloaded and wrapped in fancy gift paper. The pertinent part of this dream is that, when I went to court, I had counter sued the police and chosen to represent myself; forsaking traditional legal counsel. I felt that a regular by the books public defender was sure to get me locked away, and if I wanted any chance of ever seeing daylight again, I was going to have to come up with a fancy defense of my own.
Throughout my trial I did not ask any questions of the witnesses providing evidence against me; refusing to cross examine any of them. I took my cue from the Ayn Rand novel, The Fountainhead, when Howard Roark only gave a lengthy closing statement in his own defense. It is that closing statement that I wish to share with you; for in my dream I was successful in convincing the jury to render a Not Guilty verdict; even though I had brought a firearm onto school property.
So, without further ado, here is my defense…
Ladies and gentlemen of the jury, as I lay out my defense I would like for you to keep one though active in the back of your minds throughout my delivery. As I offer my defense I want you to ask yourselves who the most important person in this courtroom is. Some of you might think it is me; as I’m the one being charged with a crime and it is my future at stake. Others might think it is the prosecuting attorney, or the judge. I will tell you right now, if you think those things, you’re wrong. The most important person in this room is each of you; the 12 individual jurors who have been chosen to decide whether I shall leave this courtroom a free man, or if I should spend time in prison for violating the law. Keep that thought in mind as I offer my reasoning as to why I should not be found guilty and be sent off to prison.
In 1776 a group of 56 men signed a document that would change the course of American history – the Declaration of Independence. That document laid out, not only their grievances against King George III, it also laid out certain principles that this country was to be founded upon. Allow me to read you the passage I feel is of the utmost importance to my case, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
There are 3 key points in that statement that I want you to understand. The first is that our rights do not come from government, they come from our Creator. Now you may or may not believe in God, and that choice is entirely yours to make. What is important is that those who signed that document did believe that there was an omnipotent Creator who bestowed upon man certain rights. Had they not believed that our rights are derived from our Creator, they would not have mentioned that Creator, or they would have edited that part out; as they did to numerous other passages from Jefferson’s original draft of the document.
The next point I want to make perfectly clear is that those 56 men, and the men who took up arms against their King and his army, believed that the purpose all government should serve is the preservation of those unalienable rights. They did not say that the purpose of government was to create jobs, or go off and fight foreign enemies; they said government exists to secure the rights of the governed.
The third, and final point they made is that government derives its just authority from the consent of the governed. What this means is that government works for us; it gets its power from us. We tell government what it can and cannot do; and so long as government stays within the confines of those powers we should obey the laws it enacts. The question is, what are we to do when government does not confine its actions to the powers the people have given it.
As I mentioned, the Declaration of Independence also laid out a string of grievances against King George III. One of those grievances declares that their King had, in many instances, deprived the Colonists of the right of Trial by Jury; specifically a jury of their peers. When tensions had risen to a certain point the King, or Parliament, decreed that in all legal cases against the crown the charged were to be transported back to England to stand trial; depriving them of a trial by a jury of their peers.
What is meant by peers; is it simply people from the same country? The dictionary defines a peer as one who is of equal standing with another: one belonging to the same societal group especially based on age, grade, or status. What do they mean by societal group? Does that mean that the jurors in a trial should come from the same city, the same community within that city? Could it mean that if I were a garbage collector that all the members of a jury should also be garbage collectors as well?
What about knowledge and understanding of legal principles and the history that led to the establishment of our current system of government; could that also not be taken into consideration when determining whether a jury is truly of ‘my’ peers? I wonder, how hard would it be to find 12 jurors who have spent the last 20 years of their life in an intensive study of the history of this country and the ratification of our constitution.
I am not belittling any of you sitting on the jury; I’m only showing that the Colonists had grave concerns over the King’s decision to deprive them of a trial by a jury of their peers; so much so that it was included in the constitution in Article III, Section 2, “The trial for all crimes shall be by jury and such trial shall be held in the state where the said crimes have been committed.”
The civic duty that you have all been called to now perform was of such importance that the drafters of the constitution made it a part of the Supreme Law of the Land.
Various courts since then have made reference to how important the right of trial by jury is. In Toth v. Quarles, 1955, the court held, “This right of trial by jury ranks very high in our catalogue of constitutional safeguards.” Dating back to 1765, the year King George implemented the Stamp Tax, nine Colonies had made trial by jury a part of their declarations of rights.
Then in 1968 the Supreme Court of the United States held, “Those who wrote our constitutions knew from history and experience that it was necessary to protect against unfounded criminal charges brought to eliminate enemies and against judges too responsive to the voice of higher authority. The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action. Providing an accused with the right trial by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”
The importance of trial by jury can be summed up by saying, those who inserted that language into the constitution did not want judges, or other sundry elected officials, trampling upon the rights of the people; they wanted to leave the determination of innocence or guilt up to regular citizens like you; who will be held responsible for weighing all the evidence leveled against me against the evidence I provide in my own defense.
Once you, as jurors, have done that, and if you come to a unanimous decision of innocence, no court in the world can overturn your decision; nor can these charges ever be brought against me again; for to do so would violate the double jeopardy clause of the 5th amendment, which states, “… nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb…” That is the power that you now hold; the power to ensure that justice is served.
With that power comes the solemn responsibility of opening your minds to all sides of the evidence which is laid before you; and being fair and impartial with your verdict regardless of how emotionally you may feel about the charges leveled against me. If you’ve ever seen an image of justice it is typically shown as a blindfolded woman holding up a set of scales; scales in which only the evidence provided by the prosecution and the defense are weighed against one another. Only by doing that can you fulfill the responsibility that is now yours to uphold.
Our history as a country provides a perfect example of pure justice when, as defense attorney for the soldiers accused of murder in the Boston Massacre, future President John Adams stood for justice against the angry wishes of the mob who wanted to see those soldiers hung. In his closing argument Adams told the jury to put aside its prejudices and emotions, and base their decision solely upon the facts; which is all I ask of you now. Adams exact words were, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”
Adams was successful in saving those British soldiers from the gallows; simply because the jury listened to his admonitions and found that the evidence provided by the prosecution was not sufficient to send those men off to their death. I’m hoping that by the time I’m finished I will have provided enough evidence to convince you that I have committed no crime; and therefore should be permitted to leave this courtroom a free man.
Let us now begin to address the supposed crime I am guilty of having committed; bringing a firearm onto school property. I will not deny that I did that; bring a firearm onto school property; for to me, the truth in all things is of the utmost importance, and to say I did not do that would be a lie. However, I do not believe my actions constituted a crime; and I hope to convince you of that fact. I also hope to convince you that if what I did was a crime, then the officers who arrested me should also be facing the same charges as I am right now.
The Preamble to our nation’s constitution states, “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.”
The Preamble itself grants no power to government, it merely states the purpose for which the legal document that follows is to serve. There are two key points I would like to focus on; the first of which I’ve already discussed establishing justice. That was one of the reasons this system of government was put into place. The other point is to secure the Blessings of Liberty to those who wrote it, and their posterity; which means you and I. That appears to fulfill what the signers of the Declaration of Independence felt was the purpose government should serve; the securing of the unalienable Creator given rights of the people.
Article 6 of the constitution declares, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” Think about that for a moment; that man, (and in my dream I’m assuming it was a man and not a woman), is bound to uphold and defend the constitution as much as are those you elect to office. Therefore, if he were to say that I cannot use the constitution, or the Bill of Rights, as my defense, then he would NOT be supporting and defending those documents; for how can you support something if you do not allow it to be introduced as evidence in your defense?
When the constitution was being debated among the States one of the big concerns was that it did not contain a bill of rights; listing certain rights as being beyond the ability of lawmakers to infringe upon or restrict. The opponents of the constitution raised such fears that those who supported the document consented to adding a bill of rights later if the States would agree to adopt the system of government being proposed first; which was what eventually happened.
Once this system of government was up and running the States submitted to Congress their proposals for suggested amendments. Debates were then held and the lists were reduced to 12 amendments which would be submitted to the States for their deliberation. Ten of those twelve amendments were successfully ratified as outlined by the procedure found in Article 5 for amending the constitution. Once those amendments were declared ratified, they became part of the constitution, not merely additions to it; meaning that they too were the Supreme Law of the Land.
The second of these amendments states that the right of the people to keep and bear arms shall not be infringed. Now I know that in today’s society people think government is capable of writing all manner of laws; doing all manner of things. However, the Bill of Rights was supposed to take certain rights and place them beyond the will of the public, or the lawmaking authority of our legislators. Furthermore, as the Supreme Law of the Land, the constitution was to take precedence when laws written by the States came into conflict with what powers the constitution delegated to the federal government.
What this means is that neither the State, nor the federal government can enact any law that infringes upon my right to keep and bear arms; end of story. Yet throughout its history our government has done just that; passing law after law that whittles away at that right until it is but a ghost of its former self. Certain guns are off limits to the public; you are restricted from carrying guns for your own defense unless you obtain a permit from some government entity.
Let me ask you something. Do you jurors believe that you have the right to eat…to breathe? Do you require a government permit to do these things? Do you believe that the government can tell you that you cannot breathe on public school grounds? It may sound silly to you, but it lies at the very nature of a right; that rights are things you do not need permission to do; so long as you do not bring harm to another person. Fear does not justify the restriction or limitation of a person’s ability to exercise their rights.
I would like to read just a few examples of what the courts, and assorted judges, have said pertaining to a person’s right to keep and bear arms, and about rights in general.
In 1846 the Supreme Court of the State of Georgia held, “The right of the people to keep and bear arms shall not be infringed.’ The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the milita, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right.” (Nunn v Georgia)
In 1859 the Texas Court of Criminal Appeals held, “”The right of a citizen to bear arms, in lawful defense of himself or the State, is absolute. He does not derive it from the State government. It is one of the “high powers” delegated directly to the citizen, and `is excepted out of the general powers of government.’ A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power.” (Cockrum v. State)
In 1911, in an interview for the North American Review, Justice Horace H. Lurton declared, “The contention that…the Constitution is to be disregarded if it stands in the way of that which is deemed of the public advantage…is destructive of the whole theory upon which our American Commonwealths have been founded.” Think about this one in particular; if you think that the banning of certain types of guns, or the prohibiting of a person’s right to bear them best serves the public advantage, then your thoughts contradict what these American Commonwealths were founded upon. Remember, I asked you earlier to put aside your emotions and only examine the facts.
In 1922 the court held, “The provision in the Constitution granting the right to all persons to bear arms is a limitation upon the power of the Legislature to enact any law to the contrary.” (People vs. Zerillo)
In 1943 the Supreme Court of the United States held, “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” (West Virginia Board of Education vs. Barnette)
And here is where my actions come in. In 1967 the U.S. Supreme Court held, “The right to defy an unconstitutional statute is basic in our scheme. Even when an ordinance requires a permit to make a speech, to deliver a sermon, to picket, to parade, or to assemble, it need not be honored when it’s invalid on its face.” (Walker v. Birmingham)
If the 2nd amendment to our constitution says that the right of the people to keep and bear arms shall not be infringed, then it means that no lawmaker has any authority to introduce, or vote in favor of a law that does so; and if they do, the law itself is null and void; as it violates the constitution’s restrictions imposed upon our lawmakers ability to legislate our rights away; recall People v Zerillo, 1922.
I can almost hear the murmurings inside your heads now, this guy is proposing that people go around violating the laws they don’t like. Not quite. I am, however, proposing that we, as those from whom government derives its authority, have the right to ignore laws that violate our fundamental rights; particularly those which have had constitutional restrictions placed upon government’s ability to infringe or interfere with them.
You may say that there is no precedence for that; but there is. In the years leading up to the American Civil War there were slaves that had escaped their owners and made their way North to States where they thought they would be free. However, the Fugitive Slave Act required that, if caught, these slaves were to be returned to their owners. Yet people disobeyed that law and refused to return slaves to their owners. Not only that, if they were brought up on charges of violating the law, the juries found them innocent; thereby rendering the law null and void.
It is my right to keep and to bear arms; I think I have proven that sufficiently so as not to require any additional evidence. Now you may be thinking, but we have the police to protect us; we don’t need a society of people walking around with guns to protect themselves. Are you aware that the courts have held, multiple times, that the police are under no obligation to protect you?
The lower courts have held this, such as in the case of Bowers v. DeVito, where the court held, “There is no constitutional right to be protected by the state (or Federal) against being murdered by criminals or madmen. It is monstrous if the state fails to protect its residents against such predators but it does not violate the due process clause of the Fourteenth Amendment, or, we suppose, any other provision of the Constitution. The Constitution is a charter of negative liberties: it tells the state (gov’t) to let people alone; it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.”
Then of course there are the Supreme Court cases that have upheld that principle; particularly Castle Rock v. Gonzales, where the SCOTUS ruled that the police are under no constitutional duty to protect a person from harm. That was but a reaffirmation of what the SCOTUS had held in DeShaney v. Winnebego County Department of Social Services, where it declared the failure by government workers to protect someone (even 4-year-old Joshua DeShaney) from physical violence or harm from another person (his father) did not breach any substantive constitutional duty.
I do not want to come across as disparaging to law enforcement, I believe they serve an important function in society; if they would but ensure that in their enforcement of the law our rights are not being infringed upon in the process. Nevertheless there is a saying amongst many gun owners that says, “When seconds count, the police are minutes away.” Not only that, cops can’t be everywhere all the time; therefore it devolves upon us to defend ourselves.
Now I would like for you to read something that one of our nation’s founders wrote almost 2-1/2 centuries ago, “Among the Natural Rights of the Colonists are these First. a Right to Life; Secondly to Liberty; thirdly to Property; together with the Right to support and defend them in the best manner they can–Those are evident Branches of, rather than deductions from the Duty of Self Preservation, commonly called the first Law of Nature.” (Samuel Adams, 1722)
It is our right to defend ourselves, yet how can we do so effectively when the means of doing so have been taken away from us by our government? After all, isn’t that the reason I’m standing before you now, pleading that you find me not guilty; because the government has enacted a law that says I have no right to defend myself on public school property?
The very document that establishes our system of government has a clause granting government all the powers it needs to carry into execution all its specifically delegated powers. Known as the Necessary and Proper Clause, it states that is the power of Congress, “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing powers…”
Therefore, if it is the right of all people to defend themselves, their property, and their liberty, in the best manner they can; and if our right to keep and bear arms is something the government has no authority to limit or restrict, are we, therefore, not justified in ignoring any law which limits our ability to defend our self at all times…even on public school grounds? And if we are prohibited from carrying arms for our own defense on public school grounds, what gives law enforcement the right to do so?
Does that badge and uniform grant them super powers that us mere mortals do not possess? Are they not sworn to support and defend the constitution? Are their salaries not paid out the of the taxes that are withheld from our paychecks; making them our servants, not our masters? Are they above the laws that they write for us mere mortals? How can we claim to have equality in this country when we have one class; the governed, to whom all the laws apply, and another class; the governors; to whom some of the laws do not apply?
While the man who said what I’m about to quote was not born in America, his words bear attention; for they go to the underlying principle upon which all laws should be based: What, then, is law? It is the collective organization of the individual right to lawful defense.
Each of us has a natural right—from God—to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but an extension of our faculties?
If every person has the right to defend—even by force—his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right—its reason for existing, its lawfulness—is based on individual right. And the common force that protects this collective right cannot logically have any other purpose or any other mission than that for which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force—for the same reason—cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.
If, as the Declaration of Independence says, we are all born with the rights of life, liberty and the pursuit of happiness, and if government is instituted to secure those rights, then does it not make sense that the purpose of law should be to defend those rights; not take them away from us? And if the police cannot be everywhere all the time, does that mean that our right to defend ourselves is surrendered until they can arrive? No, our rights are with us constantly; they are, as our founders said, inherent and unalienable; meaning they are as much a part of us as the color of our hair or eyes, and the cannot be taken away from us or surrendered; neither by our own free will or by legislative acts of our government.
I think I have laid out a pretty solid case proving that I did not commit any crime when I carried that firearm onto public school property; now there is but one thing that I ask you to do. Take what you have heard from me and weigh it against what the judge will tell you the law says; and if your heart tells you that the law is not just, that it deprives both you and I of a fundamental right, then I ask that you render a NOT GUILTY verdict.
Only by doing that, by basing your verdict solely upon the facts, not the instructions of the judge, can you do justice to, well, justice; and see that it is served. It is within your power to do so, as held by the 4th Circuit Court of Appeals, “If the jury feels that the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge and contrary to the evidence…If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision.”
I now lay my hopes, and my future in your hands. Just remember, some day it might be you standing here where I now stand; when your rights and freedom are at stake. I only hope that if that day ever comes, you will have a jury who will seek to ensure justice is not served, and not simply see that the law is enforced; for as Thomas Jefferson once said, “Law if often but the tyrants will, and always so when it violates the rights of the individual.”
As I said, this was just a dream I had; one in which truth and logic prevailed. If only dreams were real though, and the people would listen to facts and logic rather than their emotions…