L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 147, November 12, 2001
1 + 2 = FREE
In TLE#146, Charles Novins makes the point that the US vs Emerson decision by the 5th Circuit Court of Appeals, citing the individual right to keep and bear arms, reverses 60 years of judicial precedent since US vs Miller 1939.
However, the ruling by the SCOTUS in Miller was also that the right to keep and bear arms was an individual right, but only when referring to weapons of military utility, usefull by a militia. Emerson finally dismisses the "military utility" and "militia" elements, returning the first clause of the 2nd Amendment to its subordinate status.
In Emerson, we have an "individual right" again, but this time subject to prior restraint. Had anyone informed Dr. Emerson that, due to a boiler-plate standard restraining order, he was to leave his guns locked up?
Oh, forgive me, I'd forgotten that "ignorance of the law is no defense" idiocy.
Mr. Novins is very correct in his conclusion, however. It is time for peaceful people to start being arrested, in large numbers, for peacefully carrying arms.
I believe that the defense at the trials must then rest upon the principle of "Prior Restraint" of an individual right.
A convicted criminal, while I believe this should only be the result on an individual basis, is someone who has been adjudicated as disallowed to carry their private arms. Dr. Emerson was in no way so adjudicated.
A mental defective, while I believe this should only be the result on an individual basis, is someone who has been determined to be disallowed to carry their private arms, and they can appeal. Dr. Emerson was in no way so determined.
Just as with any peaceful carrying of a weapon, Emerson was charged as a paperwork felon. He unknowingly, without harm or endangerment to anyone, broke a law based in prior restraint.
If someone was being prosecuted for writing a book, the usual example of "prior restraint", it wouldn't matter if the subject of the book was "dangerous". Why do we allow prior restraint to exist at all if it has already been determined and adjudicated as itself illegal?
And concerning "yelling fire in a crowded theater", even that is not by itself a restriction on the freedom of speech. To use prior restraint to prevent anyone from yelling "fire" would be patently absurd. How else would someone communicate that there actually *IS* a fire?
Inalienable human rights are absolute. Actions and their repercussions are also prosecutable. "Reasonable restrictions" is collectivist propaganda, the rationalization of prior restraint. It is the one real flaw in the 5th Circuit Court Emerson decision. It leaves in place and even re-enforces the obvious prior restraint that Dr. Emerson is charged under, and the prior restraint that requires Mr. Novins to leave his home unarmed or discover he has made himself a felon by the act of "not hurting anyone."
Curt Howland [Howland@Priss.com]
Sean Gruber's essay "Good Cop, Bad Cop" which I see at http://www.webleyweb.com/tle/libe144-20011022-08.html includes one of my favorite Lenin catch phrases:
My family starved to death in the Ukraine during Stalin's so-called Harvest of Despair, except for one great-uncle who was shot to death for being an intellectual. Seven million and more Ukrainians died during that planned famine.
Lenin certainly said that you cannot make an omelette without breaking a few eggs. My response is always: I cannot make chickens if you insist on breaking all the eggs!
The state is initiatory force. It is evil.
The individual is free to risk or spend his life as he wishes. But if even one egg, even a robin's egg, which does not belong to that individual, is broken by him, he owes compensation. He has committed either crime or tort, and must pay a suitable and meaningful compensation, perhaps to include his life. And it doesn't matter if he wears a uniform, carries a badge, says he is part of the all-important gang who "really run things," has a subpoena or a warrant, or is otherwise authorized or licensed to kill.
Putting uniforms and badges on criminals doesn't make them good.
Sic semper tyrannis.
Amos J. Vaden [firstname.lastname@example.org]