L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 31, July 1, 1997
... Rubber Stamp For Tyranny
By Kent Van Cleave
Special to The Libertarian Enterprise
"I'm sorry, yer honor. We tried, but we caint all agree on th'
verdict. Eight o' us figure he broke the law, an' that's that -- but
the other four keep votin' to acquit."
"I see. Well, are you satisfied that each juror is voting his
conscience and fully intending to do the right thing?"
"Yeah ... I mean, yes, yer honor. Them what's holdin' out says
the law is just plain wrong -- that a man caint be proppity, so's ya
caint make nobody turn in them runaway slaves. I dunno..."
"Very well, Mr. Foreman. You've done your duty. Tell the jury
we'll reconvene in a half hour and release the defendant."
Scenes like this preceded some of the most important legal
reforms in American history. The power of a juror to judge the law as
well as the facts of a case went effectively unchallenged, far into
our second century as a nation. That doctrine, commonly called "jury
nullification" today, was explicitly acknowledged by jurists,
beginning prominently with the first Chief Justice of the Supreme
Court, John Jay. It was treasured by political theorists as our best
guarantee that the American people would never come to be governed by
a body of bad law.
Things have changed.
"I'm sorry, your honor. We've tried, but we just can't agree on a
"Mr. Foreman, you were all instructed to reach a unanimous
verdict -- guilty or not guilty. Now go back and tell your fellow
jurors to find one way or the other. I don't care how long it takes."
"Um ... your honor, I really don't believe there's going to be
any movement here. A third of the jury seems determined to acquit,
out of a sincere belief that the law is wrong -- some say
"Well, let me explain to you why they are about to change their
minds. You each swore an oath to judge the facts of the case, and to
follow the law as I gave it to you. There are serious penalties for
violating that oath. Now, since I didn't even mention the
Constitution, let alone declare the law under which the defendant is
charged to be unconstitutional, there will be no more talk of
unconstitutionality. You must accept the law as I have explained it
without question, and base your verdict on that. Any juror who
obstructs justice by allowing some amateur prejudice about the law to
interfere with his or her duty in this matter will answer to me. Is
Something like this, in general terms, is what happened on June
23, 1997, in the trial of Chuck Knight, a member of the so-called
"Viper Militia." I don't know whether the issue of constitutionality
was ever raised by the jury, though the defense was specifically
denied the opportunity to raise such arguments in court, and the
judge admonished the jury to disregard any literature "purporting to
be about juries" (pamphlets by the Fully Informed Jury Association)
that may have come into their possession.
I don't know whether the judge ever threatened the jury as
illustrated above, though their speedy verdict upon reconvening would
be consistent with that scenario. We do know that a Colorado juror,
Laura Kriho, was recently prosecuted and convicted for exactly the
sort of "obstruction of justice" mentioned here.
When the jurors in the Knight case emerged from the courthouse to
face a gaggle of reporters and cameramen, some were crying.
"We just didn't want to do it," Chuck Waun explained in a quavery
voice. "We fought it. We don't like the broadness, the scope of the
"It was very hard," said Bill Rogers. "Chuck seemed like a good
man. It was hard."
The jurors had been torn. "Well, because you didn't want to find
the guy guilty," Waun continued. "But, when you do your duty under
the law ... he broke the law."
John O'Keefe's synopsis bespeaks both the conflict and the
confusion pervading the situation: "They all felt that maybe he
wasn't guilty, but the law states he's guilty."
Guilty, yet not guilty?
The jury apparently didn't think Chuck Knight deserved their
condemnation, or even harsh words. But he might get five years come
September 8. Why? Because they felt they had no choice but to uphold
a law they felt was wrong. How sad.
We have now witnessed a new procedure for American citizens to
defend their constitutional rights when charged under an
First, you go to prison.
That's right. If the judge doesn't subscribe to the plain English
interpretation of the Bill of Rights that your defense relies upon,
he will rule all constitutional arguments out of order -- and
probably threaten the defense attorney with contempt penalties for
even hinting that they exist.
The jury hears testimony to the effect that you engaged in
behaviors that are proscribed by the legislation in question. The
judge instructs them to find you guilty under the law if they agree
you committed the acts alleged. He also disabuses them of any notion
they have about voting their consciences with respect to the law.
Unless some juror undertakes a personal risk by going against the
judge's instructions -- a risk even if he or she wisely refuses to
explain the holdout, insisting only, "I'm incontrovertibly convinced
that the accused is innocent. That's all I have to say." -- you're
off to prison.
Ah, but your rights haven't been violated -- just inconvenienced.
You'll get your chance to appeal ... if you can afford it, and if you
survive imprisonment during the appeal process.
Is this a great country, or what?
You might wonder what theory of jurisprudence is operating here.
After much thought, I think I can help.
It all comes down to professionalism. Surely the best way to
administer justice is to make sure that all the decisions are made
by qualified legal professionals. It just wouldn't do to have
ordinary laymen -- on juries, for example -- deciding questions of
constitutionality, even for single cases.
And let's face it: the Founders were a bunch of amateurs. Many of
them were self-educated, without a degree to their names. They
couldn't have appreciated the needs of Modern America, for which the
literal wording of the Constitution is simply inadequate. Worst of
all, the mechanism they provided for change (constitutional
amendment) is so unwieldy. Much better for highly trained jurists
to reinterpret the Constitution according to today's needs.
Unfortunately for Chuck Knight, this trend applies to his case --
in spades. The Ninth Circuit Court, to which he must appeal, has
decided that the words "the right of the people" in the Second
Amendment actually mean "the right of the States." That court
recently ruled that an individual has no standing to appeal on Second
Perhaps all is not lost for Knight, however. The foregoing
indicates to me that he has good grounds for appeal because of denial
of due process under the Fifth Amendment. After all, no one should be
stigmatized by a felony conviction and beaten down by imprisonment
before the constitutional questions pertaining to his case are
settled. If the law is unconstitutional, he should never have been
arrested in the first place.
Furthermore, I think a defendant has a right to a jury that is
fully informed of their power to judge the law as well as the facts.
No jurist I'm aware of has ever denied that power; the prevailing
strategy today is to do whatever is necessary to keep the jury
ignorant of it. Guilt, in the legal sense, comes from breaking a
just law. And since the jury (not the judge or the law) determines
the question of guilt, they must know what all their options are
for ensuring that justice is rendered to the accused.
So what are the constitutional issues in the Knight case?
Knight was charged with one count of conspiring to make illegal
destructive devices -- explosive devices designed or redesigned for
use as weapons and not registered with the government.
One might suspect that such devices would be needed by any
citizen militia facing an enemy that uses armor, air or naval power,
bunkers, buildings, supply dumps, etc. -- that is, any serious enemy
The agility with which both sides evaded the fact that the
defendant, his attorney, the judge, the prosecutors, and all male
members of the jury were members of the (unorganized) militia, by
law, was truly remarkable. Even fancier footwork was employed,
however, to skirt the fact that the prospective enemy our forefathers
most feared was our own government gone bad -- making registration of
weapons of any type with the government a very bad idea.
One might also suspect that conspiring to exercise a
constitutional right (such as keeping and bearing whatever arms are
needed to defend against whatever enemies might arise) simply can't
be illegal, thanks to the First Amendment.
One would be right in both cases. But the government has decided
that the American people cannot be ultimately responsible for their
own self-defense, for armed and competent citizens would then have
the wherewithal to victimize unarmed and incompetent ones (as any
normal government ... er, person ... would certainly do, don't you
know). That decision was implemented, not by the prescribed method
of constitutional amendment, but by winks and nods. It is backed by
the full force of all three branches of the federal government.
I think the jury in the Knight trial was dimly aware that the
underlying issue was self-defense, but they were also snowed by the
government's insinuation that defense -- especially on a large scale
for which powerful weapons are required -- is always the job of
No need for citizens to worry about a tyrannical government.
Tyranny is a thing of the past, you see. It was replaced by
democracy. (And quit mumbling abo ut the "tyranny of the majority"
the founders also warned against.) Power no longer corrupts, for
democracy renders our elected officials and their appointees
Contrary to the selfish grumblings of anti-government wackos,
it's not tyranny if a few innocent citizens are killed by federal
police raids of their homes. The police were just acting in good
faith on what they had every reason to expect to be reliable tips
from two-time losers looking for an easy plea bargain.
It's not tyranny if a few (well, quite a few) government
agencies acquire much of their funding by confiscating the property
of citizens who were never suspected of any wrongdoing whatsoever.
"Overexuberance ... yeah, that's what it was. Hey, don't get
huffy, we apologize! What do you want ... your property back?"
Sure, there are times when excuses for government agents just
can't be made with a straight face. These willful violators of the
rights of Americans are penalized quickly and severely as examples of
Government's unwavering commitment to justice. They are mercilessly
given lateral transfers, leaves of absence with pay ... sometimes
even (shudder) promotions and medals!
Certainly the necessary expropriation of half of our earnings
doesn't qualify as tyranny! The prerevolutionary imposition by King
George's minions of a stamp tax of a few pennies -- now, that was
No, tyranny by Our Government is just a paranoid fantasy of
right- wing white-supremacist militia groups.
Well, I see I've red-lined the sarcasmometer. I'll throttle back
Chuck Knight's case was a simple one: a single charge under a law
that violated only the Second Amendment, complicated only by Fifth
Amendment procedural issues. Most of the other Vipers were charged
with "conspiracy to instruct" charges that involved talking about
(protected by the First Amendment) teaching (also protected by the
First Amendment) subject matter protected by the Second Amendment.
But the government has found an ingenious strategy for playing
First Amendment rights against Second Amendment rights, demonstrated
clearly by the Viper Team case (and by the Georgia Militia trial
earlier this year): Our Government still honors your right to talk
about government tyranny. It still honors your right to own and
practice with whatever weapons it hasn't yet succeeded in
proscribing. Here's the kicker:
You may not, however, exercise these rights jointly. Weapons
practice, for people who deny the constitutional authority of
existing government agencies or agents, now constitutes an overt act
in preparation for overthrowing Our Government. You might have every
intention of supporting and defending the Constitution of the United
States; that is irrelevant. You now owe your allegiance to Our
Here's where it all stands, a year after the Vipers were
arrested: All but two members pled "guilty," noting that they would
likely spend less time in prison than if they had gone to trial,
appealed, and had their convictions overturned (either by a miracle
in the Ninth Circuit or at sucker's odds in the Supreme Court).
Only Wally Sanville has been incarcerated near family, as the
judge instructed. The Bureau of Prisons has decided to ignore the
judge's instructions in all other instances, and has scattered the
rest of them outside Arizona. Wanna bet other prisoners were entering
Arizona prisons at the same time?
After Knight's trial, one member remains to be tried: Chris
Floyd, the youngest, whose defense differs little from Knight's, and
who I wouldn't be surprised to see plead "guilty" in the face of
Chuck Knight plans to appeal, and appealing he is: All-American
good looks, wholesome and good-tempered, hard-working, honest and
very articulate. If ever America needed a poster guy for victims of
government abuse and constitutional vandalism, he's it.
The issues are as clear as we'll ever get them, and the Ninth
Circuit is as statist as they come. We face the perf ect opportunity
to force a public confrontation between the new American fascism and
the intellectual heirs of the American Revolution.
It's not an opportunity to be squandered.
As usual, opportunity has a cost. Attorney Ivan Abrams hasn't
been paid enough for the first trial to be able to meet his upcoming
July bills. His practice (the sole support for him and his two
children) is suffering after his long absence from Bisbee, Ariz.
Transcripts of Chuck's trial will probably cost $6,000 to $8,000 --
and then you start paying for the appeal. Frankly, I think the
combined legal and PR efforts will require about $30,000.
Never one to miss an opportunity to rub Government's nose in what
it's done, Ernest Hancock of S.A.F.E. (Second Amendment is For
Everyone) has jumped into the fray, planning a raffle and other
fundraising and PR efforts. S.A.F.E.'s "Viper Militia" T-shirt (of
which a few in large and medium sizes are still available at $18
each, postage paid) may soon be joined by other Viperwear(TM) and
In the meantime, there's an immediate need to meet past and
current expenses for the defense. Contributions to the Charles Knight
Legal Defense Fund may be sent in care of S.A.F.E., 10412 N. 8th Ave.
#3, Phoenix, AZ 85021.
Kent Van Cleave is completing his Master's in philosophy at
Arizona State University while building (along with most of the rest
of Arizona's Libertarian Party leadership) a gold coin business
dedicated to mobilizing opposition to government abuses while
preparing Americans for the potential failure of that opposition. He
designed the "Viper Militia" T-shirt, and has a few other tricks up
Get your Viperwear(TM) T-shirt: "The Viper Militia as seen by...."
Hilarious, sharp 4-color design. Postage-paid with donation of $18 or
more to SAFE (memo: Dean Pleasant Viper Defense Fund), 10412 N. 8th
Ave. #3, Phoenix, AZ 85021. State shirt size(s) and number of each.
Preview the design by visiting http://www.nguworld.com/viper.
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Enterprise, Number 31, July 1, 1997.