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81

THE LIBERTARIAN ENTERPRISE
Number 81, July 17, 2000
Bastille Day

Letters to the Editor

Send Letters to TLE@johntaylor.org


Letter from Jonathan Taylor

Letter from E.J. Totty

Letter from Jack Jerome

Letter from Charles Curley

Letter from Jonathan Taylor

Letter from Paul Birch


Several local high school students, presented with the choice of submitting to Maryland's mandatory volunteerism or not graduating high school, came up with a pretty gosh darn good idea.

They volunteered their time with NORML.

Caught this story on the radio, so unfortunately, I don't have a source to quote, but the spokesperson from NORML said something smug, along the lines of "We think this is a great way for students to become involved in issues they consider important, and we earnestly hope that other students will take advantage of this opportunity."

High School indeed.

Jonathan Schattenwurm@aol.com

Dear John,

Not that the following is necessary, or that better men than I haven't analyzed the 'official' ACLU position on firearms prohibitions, restrictions, and regulations; but after reading the ACLU position one more time this morning, this being Independence Day, what better time than now to express these thoughts?

The ACLU professes to be the preeminent civil liberties defender in the USA. I say otherwise, especially when a simple reading of their position on gun control can be disassembled and thoroughly discredited for what it really is: disingenuous, obfuscatory, and totally dishonest. And that, when placed in a side-by-side comparison with their other positions, it fails several important tests of corollary and related truths.

The most simplistic - yet thoroughly effective analysis possible, is the parallel construction statement.

If two statements utter the same intent, then the inference can be drawn from either that both result in the same thing, such as in the following:

A 'well regulated militia' is necessary to 'the security of a free state'.

A 'well balanced diet' is necessary to 'good health'.

A 'proper outlook on life' is necessary to 'succeed'.

The 'quality 'a'' is necessary to 'achieve quality 'b''. These are merely simple statements that express the need for one aspect, in order to realize a second.

Note that in no case of the above, is anything stated as specifying in the affirmative, an express intent of objective, merely that one thing is necessary to another, or more directly, that in no case is the first deemed to derogate - or confer in any way - an aspect of control (or possession) in the second.

For instance, in the first, there is no connection to giving the state any authority to keep and bear arms, since arms are not even mentioned. It arrives by corollary inference, that the state is the collection of its citizens, and thence it might amass arms in their name through their participation. But in no case can the corporate entity of the state be inferred as having the 'right' to anything. More directly, the state might keep, but in no case can it 'bear'. More on this later.

Nor in the second case above does one find the right to take food from another person; as in the third may a person wishing to succeed find no right to demand the succor of another's life.

In this regard then, all of the statements above qualify as coequal, in the essence that any of the related terms in any of those sentences can be substituted in any of the other sentences, and the meaning is identical. Thus it follow along the lines of a series or simultaneous equations, where the terms of one equation can be substituted in another equation, and the results will still be true.

Here is a direct quote from the ACLU website:

http://www.aclu.org/library/aaguns.html
"We believe that the constitutional right to bear arms is primarily a collective one, intended mainly to protect the right of the states to maintain militias to assure their own freedom and security against the central government. In today's world, that idea is somewhat anachronistic and in any case would require weapons much more powerful than handguns or hunting rifles. The ACLU therefore believes that the Second Amendment does not confer an unlimited right upon individuals to own guns or other weapons nor does it prohibit reasonable regulation of gun ownership, such as licensing and registration."

An interesting statement unto itself. According to Black's Law Dictionary, Sixth Edition, page 168, the term "Bill of Rights" is given this unique definition: "First ten Amendments to the U.S. Constitution providing for individual rights, freedoms, and protections (see Appendix infra)."

I wonder then, how it is that the ACLU can rely on Black's for most of its positions, yet defers to a rather esoteric view that the Second Amendment is somehow collective. Another author has previously uttered that such a contention as the ACLU's was never held by any of the founders, and it is certainly not once mentioned - even obliquely - in any surviving document of the period.

Black's Law Dictionary addresses all types of 'rights', but none of those definitions even alludes to such a thing as 'collective rights'. Thus we are left to consider that this rogue term is yet another specious liberal contraption intended to be used as a 'mole' in another guise when later needed, if it is allowed to remain aloft unchallenged.

The corollary test is as follows. In the above website quote, "to protect the right of the states to maintain militias to assure their own freedom and security against the central government." One wonders who was responsible for that cute little distortion.

First, in the body of the original Constitution, Art. I, Sec. 8, and again in Sec. 10, the militia is spoken of as being controlled by the Congress. The express prohibition against the states from having "troops" in time of peace speaks directly at the states having an "army", or a group of men under arms - full time. In no case does it prohibit the state militias from existence; else wise, how could the congress call forth the militia for service? You cannot logically call forth something, if it does not already exist. Alexander Graham Bell, could not have effectively called for Watson over his telephonic contraption ("Watson! Come here, I need you!"), if Watson didn't already exist, now could he? Then neither could the congress call forth the militia in the same happenstance. You either already have something, or you must constitute it from scratch. Funny thing: The Constitution makes no reference to establishing a militia, just calling it forth ...

And upon inspection of the second corollary: "To raise and support Armies ... " Any student of American History, ought know that the founders had a rather severe aversion to a standing army. They knew that the militia, in the name of the armed citizens - in each of the states - was the surest guarantor of liberty. The connection is severed between a fully constituted body of men under arms into a standing army, and the mere collection of men with arms, and properly referred to as a militia.

An army is a full-time organization, the militia is called into service only as needed. Note too, that there is no requirement in the original Constitution to restrict funding for the militia as is the case with the armies (re-authorized every two years). The militia simply isn't funded, since it is already in existence and the men thereto already possess their own arms. In the same vein then, the original Constitution forbade the states from maintaining standing armies in time of peace.

The Second Amendment does nothing in any regard as to guaranteeing the corporate entities of the states the possession of arms. If in the first instance, the original Constitution was emphatic in its concern over a standing army, the Amendment in question never addressed the concern of a standing army as acceptable for the states, as the equivalent language is entirely absent, and no negating statement to the original prohibition is anywhere to be gleaned. Further to this, it is imperative to understand the distinction between 'keeping and bearing'.

A state can bear arms against others in time of war only. People can keep and bear arms at all times. An agent of the state may bear arms, both as a personal liberty, and as a function of office. But that is not the state. Therefore it makes no sense to proclaim, as the ACLU does, that the right of the people to keep and bear arms applies to the states power to arm itself, since the federal constitution already provides the authority through congressional edict - and at no other time. Therefore, the Second Amendment cannot be interpreted as giving the states anything at all.

Further to this, is the understanding that the Constitution was the enabling document which gave to the federal government the original power to raise and support armies; no power is - in any guise - derived from the Second Amendment authorizing the states to raise their own armies. The only option for the states, when faced with federal aggression, is their own body of armed men in the name of their respective militias.

And finally, in another quote from the ACLU website: "The ACLU agrees with the Supreme Court's long-standing interpretation of the Second Amendment [as set forth in the 1939 case, U.S. v. Miller] that the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia. Except for lawful police and military purposes, the possession of weapons by individuals is not constitutionally protected. Therefore, there is no constitutional impediment to the regulation of firearms." --Policy #47"

From that comment we can derive the following: " . . . the individual's right to bear arms applies only to the preservation or efficiency of a well-regulated militia."

I would have added: " . . . as far as that particular Amendment goes. However, the rights embodied in the Ninth Amendment surely encompass the guarantee that the citizen has every right to possess arms in pursuance of the protection of his own life, liberty and property, no matter where he might find himself."

Since, by virtue of the statement that 'a' is necessary to 'b', then it follows that if 'a' is necessary for 'b' to succeed, then it is imperative that 'c' not be denied, since 'a' cannot exist without 'c'.

(a) = militia
(b) = free state
(c) = the people and their right to arms

A free state requires a well regulated militia, and since the militia are the people themselves with their own arms united in the common interest of preserving its security, then the corollary: The United States is a government of the people - not a despot. We do not serve the government, it serves us; therefore we control. If we control, we possess the power to arm ourselves.

It follows that for the state (which is the people themselves, and not some sovereign, or king, or dictator) in the name of the people to be secure, they need to be able to assemble as a united whole, and act in concert with arms - their own arms, and that cannot happen if the right to possess those arms does not exist. You simply cannot make a logical statement out of - A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms does not exist.

That statement rests upon its own petard.

Change the word 'free' to 'oppressed', the term 'militia' to 'army', and it makes all the sense in the world.

In conclusion then, a free state is one where the people have rights - they are not slaves or servants to a master; and in order to protect the integrity of that state, the people must have all the rights necessary to continue as free citizens of that state, including the right to keep and bear arms not being infringed.

In more colloquial terms:
A well regulated militia being necessary to the security of that collection of people known otherwise as a 'state', the right of those people to keep and bear arms shall not be infringed - if you are expecting them to show up willingly in that state's defence. Otherwise, the 'free' state will, in effect, cease to exist.

E.J. Totty echeghlon@seanet.com

Hi JC,

I was having a rare moment of peace at a local rapid food franchise, and overheard some old locals casually making conversation. I'm not a evesdropper by nature, but they were loud and colourful locals, so I bent my ear toward them. They were casually discussing the death of an old aquaintance, 84 years old. They found him in state, as it were in his bed at the rooming-house they all frequent.

I was a little taken aback by the turns in their conversation, which included the demise of baseball in D.C., highways ruining their neighborhoods, and all the new damned laws. Various and casual references to death, quite disturbing, really. These old duffers had seen a lot of miles, and it weighed heavily on them. They had a refreshing callousness talking of the death of a friend, and some of their familiar ways of life.

It made me think of us, in this magazine, talking casually and frankly about the demise of freedom. Have we gotten so used to government closing all the loopholes and piling us on with laws? We are reduced to web sites and discussion groups about our lost heritage.

Any lone Libertarian can stand toe to toe with any bleeding heart liberal or autocratic Republican. Our ideas are well thought out and follow direct logic. So why aren't we up there with voices that count?

Conspiracy theorists blame the media that "locks" us out, ignoring us because the idea of freedom is too extreme. Republicans, who should embrace our ideals say the same thing about us as Democrats do, evil anarchists, those Libertarians go too far!

I will go as far as to say that, on the whole we are complacent, well fed, quiet armchair quarterbacks. We allow libertarian principles to stand in the way of real organization.

Libertarians, by nature abhore any form of organization, or ever reliquishing individual control. This appears to be a fatal flaw, and the main reason we are ignored. I state that we should never be ignored. I personally try to do my share in getting my Libertarian views out, but I have yet to run into another Libertarian who does the same. Somebody else has got to be out there.

Are many of us, like those old guys in Mickey D's, yammering dispassionately over a corpse of an old friend? Or will we do our damndest to rescuscitate liberty or fight for its memory? I've made my decision, now [let's] get off our collective asses and make a real difference.

Liberty, Jack Jerome paratime98@yahoo.com

[Larry Baird BEDOYA2@aol.com] wrote:

"Now, let's get to the mechanics of the actual licensing of concealed carry. Requirements vary from state to state, but all want your fingerprints, and most importantly the make, model and SERIAL NUMBER of the firearm listed on your permit. THIS IS GUN REGISTRATION and a majority of the delegates at the LP convention voted to endorse it. Some states go so far as requiring a psychological examination by a government approved psychologist. We know that psychology is not an exact science like mathematics, so all the government has to do is find an anti-gun psychologist to declare every applicant nuts."

While I agree with the tenor of Mr. Baird's analysis, as one of the few people to have ever actually read all 50 states' firearms laws, I would like to address a factual error or two. There is far too much urban mythology on both sides of the gun control issue, and we do our respective sides no favor by repeating it.

Most states that have CCW permitting have what is called "Florida style" CCW permits. These do not require any information about the firearm to be carried, and in fact one permit is valid for any firearm, whether the permittee owns it or not. Examples include Pennsylvania, Wyoming and, of course, Florida. Some states do require such information, such as New York.

I would agree that such states are engaged in gun registration, but such states typically have gun registration for all firearms, and CCW permittees typically already have registered their guns. Again, New York is typical here.

Even so, CCW permitting is contrary to the intent of the Framers of the Second Amendment. They anticipated an armed citizenry prepared to confront and overthrow, if necessary, the government. This implies military action, and that in turn implies all standard military precautions. One of those is the concept of "need to know". The government has no "need to know" who among the citizenry owns guns, or for that matter who is willing to carry one in public in self defense. Certainly the people in the latter class are the first people to be rounded up in the event of gun confiscation.

Regardless of this factual issue, I agree with Mr. Baird that adoption by the LP of a pro-CCW permit position is utterly reprehensible.

The Wyoming Libertarian Party does not require membership in the National LP, and does accept membership from outside the state. It has a very strong pro-gun position. I invite the TLE readers to check out our membership requirements, at http://www.geocities.com/wyolp/join.html.

Charles Curley ccurley@trib.com

My letter to Metallica
- - -
To whom it may concern,

Good afternoon, my name is Jonathan Taylor, and I'm a longtime fan of Metallica. I am writing you today, in the hopes that this letter both reaches you and finds you well, to discuss a subject which I'm sure you're absolutely sick to death of hearing about, the whole Napster situation.

As a computer programmer, and as a 21 year old who grew up both with the Internet and Metallica, I have some knowledge both of the media at hand and its relative availability, which you are apparently ignorant of, by your own admission of having "never visited" any of the sites in question.

There are hundreds upon hundreds of sites upon the internet which have MP3s available. There are probably ten that I don't know about for every one that I do, and Metallica, being a large name, is relatively easy to find. I think you guys usually fall in somewhere behind Brittney Spears at #2 or so on the "top ten searches today" list, at least at most of the sites I visit.

I will virtually guarantee you this - I have seen it happen in my misspent youth as a 'hacker' (many hours of which were spent listening to your albums), I have seen it with so-called "Warez" (software which is no longer sold, which individuals then make available free of charge - a technical violation of software piracy laws, aggressively attacked by the S.P.A, and somewhat comparable to your situation), I have seen it beginning to happen to a lesser extent with MP3s - you will never get all of Metallica's music off the internet. Even if the entire format is illegalized, you will have the classic hydra situation - you'll chop off one site, and three will grow back. Rightly or wrongly, that's the way it works. If there is demand for the material, SOMEONE will make it available, and let's face it, there is a huge demand for Metallica.

I am not going to touch upon the legality of the matter - I expect you are probably in the right, but my expertise is computers, not corporate law. There, I expect you are much better qualified to speak than am I. As for the morality, I think you guys are on shaky ground. Again, this is a technical question. In order to create the type of CD quality recording that you are worried about, a user would need to buy the CD-R drive, which is not inexpensive, spend the time downloading the music (on your average 56k modem, with your average piss-poor connection, with your average 3-5 minute song, that proposition is no less than half an hour to fourty five minutes, per song.), then spend the time copying the songs (to get a good 'burn', with no skips, and true CD quality, you're looking at several hours for a 10-track CD).

Basically, to download, say "And Justice" (the whole album), offa Napster and burn it to CD, you're looking at a good solid day of work.

Now, on the other hand, one could borrow the album from a friend, use freely-available or inexpensive software, and make a copy of the CD onto another CD, for much less time and effort. That operation is basically point and click, no download time required and no hassle.

So, unless you are going to try and bankrupt my company, and ban writeable CDs or CD burning software (we use it to distribute the programs we write), then I don't think you are gonna win the battle to "keep control" of your CD-quality, studio edited recordings. Again, rightly or wrongly, those are the facts - in this case, however, I feel more qualified to speak, and I will tell you that you are not putting bootleggers intent on what I would consider theft out of business. You are hurting the average Metallica fan, who just spent an hour downloading "Call of Cthulu" so he can listen to his favorite song while he surfs the net on his computer.

Bootlegs will always exist, whether in the form of tapes in the mail, 'burned' CDs on the street corner, or MP3s on the internet. The difference is, people who buy bootlegged tapes or albums are paying someone other than you for an entire album - MP3s are free (it is hard for me to consider it 'theft', when no one is really gaining anything except the ability to listen to your music, which is freely available on radio, anyway), and MP3s require signifigant amounts of effort for just one song. Plus, bootleg tapes and records are highly illegal - MP3s are not. And already, it is ten times harder to make a CD from MP3s than it is to simply burn a copy from a friend. If you continue to work on stomping MP3 trade, you will kill the format, because it is much easier to just make a copy, like kids have done since tapes first came out. I think that what you label a network of people "trafficking in stolen goods" are actually more in the right than people who spend hours and hours and hours taping entire albums of up and coming metal bands and distributing hundreds and hundreds of copies to all their friends. In a day, how many tapes can you make from a single CD? Given a whole day, you might be able to make one CD from MP3, including download time.

Now that the logical part is over, I have to tell you how absolutely sick this whole thing makes me. I have very few delusions about any member of the band ever reading this, but maybe you'll at least get a tally sheet somewhere in your mansions that lists one more vote against what you are doing. You have turned the actions of a bunch of kids - evidenced by the fact that you named several universities in your lawsuit originally - into a federal case. What happened to anti-authority? What happened to "Kill Em All" - wasn't that originally supposed to be "Kill all the record execs for not letting us name our album 'Metal up your ass?'" You seem pretty chummy with the record execs now. I have bought every album Metallica has ever cut, every video, and a couple of t-shirts and posters back in the day, too, but I'm here to tell you that you will never, ever get another penny out of me ever again, and I will try my hardest to persuade all of my friends of the same thing - not a difficult task, most of them feel the same way I do, as do a great many people in my generation. Whoever advised you towards this course of action is not only grossly ignorant of the technology involved, but has no idea what he's talking about if he thinks you're winning fans and upping album sales with this. What you are doing is absolutely sickening, not because you are legally wrong - as I said, I don't know corporate law, and yes, you probably have a case, but because you have absolutely betrayed every ideal that made me enjoy your music. I will continue to listen to all your old albums - and yes, MP3s - that I own, but as far as I'm concerned, everything you do from here on out is nothing but the same sellout trash that you rose to stardom by railing against. You are within your rights to pursue legal action against whomever you want for whatever cause, or for none at all - after all, you've got the money, now, to pay the lawyers - and I am within my rights to choose to not support that action by never feeding another dime into your band or your organization.

Sincerely,
Jonathan Taylor Schattenwurm@aol.com

P.S - And please, if you have to continue to speak in public, could you pretty please stop referring to the band in the third person? A simple 'We' would do - I understand you're aging, but you're starting to remind me of Bob Dole, for christ's sake.

Dear Sir,

Many of your correspondents attack the constitutionality and effectiveness of the so-called war on drugs. It would be invidious of me to mention names, as I find their views crude and extreme, but perhaps you will permit me to clarify a few points, from the possibly more objective vantage of the other side of the Atlantic.

The existence of anti-drug laws does not violate the constitution of the United States (though certain of the federal regulations and activities may do so). The prohibition of alcohol on a state by state basis required no constitutional amendment; only when the prohibitionists wished to extend their previously effective but limited policy of state-wise prohibition to the entire Union by federal law was an amendment necessary. Moreover, federal taxation, control or prohibition of the importation or interstate transport of alcoholic liquors would still have been constitutionally feasible even in the absence of this amendment.

Nothing in the constitution forbids the several states from enacting anti-drug legislation, nor the federal government from acting against smuggling from state to state or into the territory of the Union from elsewhere.

It is no doubt true that both federal and local agencies frequently violate the law, most especially the constitutional provision of due process, but this is neither unique to nor essential for the enforcement of anti-drug laws.

Libertarians who wish to rely upon the American constitution should realise that for the most part it does NOT guarantee individual rights; it guarantees the political "rights" of the several states against encroachment by the federal government. It is within the constitutional power of each state to enact almost arbitrarily unjust and oppressive laws (so long as they are enforced impartially in accordance with due process of law). For example, freedom of speech and religion is guaranteed against any Act of Congress. It is NOT guaranteed against the legislatures of the states.

It is sometimes claimed that the 14th Amendment "incorporates" the Bill of Rights guarantees into state law, but this claim is false (see Raoul Berger's "Government by Judiciary -- The Transformation of the Fourteenth Amendment"). It arises out of a misrepresentation of the phrase "due process", which simply means in accordance with specified procedures. Furthermore, the 13th, 14th and later amendments are themselves mostly of dubious constitutionality, since they were never ratified in accordance with the procedure originally laid down in the constitution. The Civil War amendments, for example, were pushed through by puppet legislatures in the conquered Confederate states.

Please don't misunderstand me. I am certainly not saying that legislation violating individual rights is morally justified, only that it is not in general unconstitutional. There are exceptions: the 2nd Amendment could have said that Congress shall not infringe the right to bear arms (implying that the states could); instead it left the right unqualified (implying that NO court or legislature can infringe it). Even this is not quite the bulwark of liberty that American libertarians like to claim. An armed citizenry is no guarantee against oppression; many communist countries and other tyrannies have armed their populace to the teeth; and today's America, though still well-armed, is hardly free. At best, unless a substantial fraction of the population is willing to fight to the death at the drop of a hat to defend its smallest rights, it does no more than constrain the governing power to leaven its oppressive acts with circumspection.

Back to drugs. Despite the politicians' rhetoric, which we ought not to dignify by repetition, there is no war on drugs, barely even a police crackdown. A real war would be very different. In a real war, street level dealers would be scooped up and given a choice; shop their suppliers or die; and ditto all the way to the top. Resistance would be met with overwhelming firepower, up to and including cruise missiles and stealth bombers to obliterate the druglords' Columbian strongholds. In a few weeks at most, the entire drug distribution network would be wiped out. Problem solved.

There is no war on drugs today. Instead the drug problem is being contained mainly through the normal enforcement methods of the criminal law. Contained, as crime is always contained; not eliminated, as the enemy in an all-out war. To call this a failure is like refusing to weed your garden because it will need weeding all over again next week. Again, I'm not saying that I approve of current policies and practises (it would hardly be possible to approve of all of them). I am saying that they do not constitute a war.

For politicians drug crime is a convenient excuse for ever more authoritarian laws. But don't be deceived. If the drug problem evaporated overnight, or all drug usage were decriminalised, there would be plenty more excuses waiting in the wings.

To sum up. The American Constitution is a bent reed. Even if it were uniformly enforced it would fail adequately to protect individual rights of life, liberty and property. Laws seeking to regulate the manufacture, importation, distribution and use of drugs are neither intrinsically unconstitutional nor necessarily unjust; and the politicians' so-called War on Drugs does not exist.

Paul Birch
paul@paulbirch.force9.net
http://www.paulbirch.force9.co.uk


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