I participated recently in a long and thoughtful online discussion on a forum frequented by people interested or involved in the “militia movement”. My contributions and positions are clearly identified. The other participants only by initials, which may not be their own.
We can clearly see the broad divide between the notion that our institutional government must hold the monopoly on both interpretation and enforcement of the law we-the-people made, and the notion that we ourselves must hold that government accountable to (and by) the principles for which we created it.
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The militia is in the 2nd Amendment along with “shall not be infringed” specifically to stand AGAINST federal and state tyranny. We do not require any government permission to exist nor regulation to control. Making that argument reinforces that “well regulated” means government regulated, and not the 1775 context of “working like a well regulated clock or machine” meaning well disciplined and working as it should. If we existed at the behest and control of government then what did the founders even bother declaring independence for? Free people do not ask permission to be free, to be armed, or to stand against tyranny.
In terms of the idea of militia “raids” on grand jury indicted individuals, that seems to be a matter of opinion these days more than fact. We have seen the federal government weaponized, outside of any legality, to raid political opponents for purposes of silencing opposition. With that being said the law is now a two tiered system being applied unequally. That means that, as we cannot agree on laws and their application then no law exists as no law is just in unequal application.
In setting up a new government and declaring independence the founders broke the kings law and set up their own system of legalities. Can it not be argued then that the militias, under constitutional leadership and with proper agreed upon restraints and roles, could not also act as temporarily appointed law enforcement by elected (not appointed) leadership if the situation were to continue to devolve and society further break down?
We are at a point where there are open calls from the left to KILL political opponents and those they simply don’t agree with for any reason. We have crossed that Rubicon and if the situation warrants it, we must defend our localities and work the law based purely on constitutional standards as any other laws would fail to apply.
C
Amen and amen again. These are the same points I’m standing on, though I go about it with too many words.
Law repugnant to the Constitution is law repugnant to me as well, regardless of how old or how often repeated. If it was written so it could be interpreted by the Common Man, it needs no deliberation to redefine today.
… It’s at the very least quite clear that the 2nd was written to control a power-hungry government – not to limit the ability of The People to do so.
As I’m turning your original question over, I keep coming back to a single critical difference between any type of gang and a Militia: Rule of Law.
Not law that has been whittled and masked and tortured until its unrecognizable, but Law as it was described in the 2 Founding Documents in question. To get simpler than that would be to go to (partly) the foundation of those documents in the 10 Commandments.
Rule of Law, which emphasizes the importance of individual liberty that does not stifle that same liberty in others. In any Type of gang you’ve described, Self – whether it costs someone else or not – is the guiding principle.
G
“Rule of Law” is definitely a solid guidepost, and that should not include just the founding documents, but the body of federal and state laws as well. Some we might not like, and we’re free to advocate to change them – and hopefully they will be changed.
C
I’d agree to that, with the caveat of holding state law over federal law in most cases, always checking against the US Constitution. Drilling Rule of Law into members’ heads seems like it would be absolutely paramount as part of SOP as well.
G
As for F‘s proposition that “In terms of the idea of militia “raids” on grand jury indicted individuals, that seems to be a matter of opinion these days more than fact” I find it utterly astonishing that anyone who values liberty and the rule of law could say that with a straight face. Really, we’re going to have a group of five randomly selected, unelected people write up a piece of paper (that is not a warrant) ordering a militia (that has not been trained as law enforcement officers, is not certified as law enforcement officers, has no legal authority under the Virginia code and who do not have qualified immunity) to carry out an armed “raid” on someone’s home to “collect evidence?” What if they refuse to let the militia into their house? Is the militia going to force entry? Are they going to shoot the subject of this “raid” if he resists, and perhaps his wife and children as well? When the militia members are subsequently charged with felonies for murder, unlawful arrest, deprivation of civil rights, impersonating police officers and who knows what else, who’s paying for their criminal defense and supporting their families while these militia members sit in solitary confinement in a maximum security prison for three years awaiting trial? Oh, and who’s going to pay for the lawyers?
As for Scalia’s opinion in US v. Williams, here’s a direct quote for you: “the grand jury cannot compel the appearance of witnesses and the production of evidence, and must appeal to the court when such compulsion is required. See, e. g., Brown v. United States, 359 U.S. 41, 49 (1959)” I would invite you to read the opinion, because a lot of what you maintain is utterly contrary to the text of the opinion.
F
My views are rather anarcho-individualist in nature, so I have a fairly unique perspective on “law”. I consider it a construct that is contrary to the natural order of things and consider laws more guidelines than rules and ultimately my thoughts are “if you leave me alone and don’t try to kill me I will be friendly and wont put your ass in the dirt”
That being said, Reread what I typed. I mentioned an elected official and the constitution as the guiding document.
The point you missed is that we have no agreement on what is law as different groups are treating different notions as laws, literally making up shit and calling it law (like the CDC during Covid or ATF any time) or ignoring laws they do not agree with entirely.
For a society to function, the people participating in that society must all be in agreement that even though some may not agree with a law, that as a society we will all follow the laws as written because our elected reps in the legislative branch passed it via democratic process, the executive branch agreed to enforce those laws, and the judicial branch declares the laws constitutional and in accordance with the founding documents and intent.
As it sits right now we have many factions all interpreting laws different ways, writing plainly unconstitutional laws, and planning to or actively ignoring laws.
Just look how many interpretations of the idea of laws are just in this one chatroom and WE can’t even wholly agree.
With that being said the laws, just or otherwise, are currently being applied based on political affiliation, virtue signals, tribal loyalties, and social struggle sessions. Example, an antifa puke firebombs a cop car, gets arrested in NYC and immediately has the charges dropped by the woke DA. A patriot jaywalks in that same jurisdiction and is charged with insurrection for willingly breaking the law. Unjust charge and unjust application of law, but we have seen numerous examples of this double standard for years now. There are people held without charge for years now as political prisoners for walking into a building that the police ushered them into and did no harm at all while there, yet they rot in solitary as “insurrectionists” still regardless of all evidence showing that the whole J6 thing was orchestrated and executed by feds and informants.
This is why I say law is not law and YES if the law is applied unequally and unjustly then I say there is no law other than the constitution and that law which governs basic decent human interaction. Don’t kill except in defense. Don’t steal except out of most dire necessity to survive. Don’t lie to harm someone else or give yourself advantage and so on. Basically don’t fuck with me and I wont fuck with you.
As for saying it with a straight face, I can say and do many things with a straight face that would shock the shit out of people and still sleep like a kitten that night. Is it or is it not John’s opinion? Is it so strange a notion that trained militia groups under an elected official (as I stated and not just a random nobody who is basically a thug leader) with a legal grand jury warrant stating the specific items to be seized or persons to be arrested is not outside the realm of acceptable or possible under the conditions of a societal breakdown, civil war (which we ARE currently in, or other factor that causes the law to no longer be justly applied by a government that is against its own people?
Things are collapsing, tough times require risk and tough choices to be made. The founders made their choices and I say again, the founders broke every law in the kings rulebook when they declared independence from England. They tried for years and years to simply have representation and finally broke when it was ordered that the colonists be disarmed and the powder magazine seized and emptied in Williamsburg (along with numerous other acts such as the tea tax and other injustices like the Boston massacre)
We are currently in the throes of an attempt to disarm us through both traditional legislative means as well as collusion with banks, federal agencies, corporations, and delivery services to deny that right and dry up the firearms industry in America.
I come right back around to my argument that law currently is not law and solutions must be found at the local level. Even if that is just a coordinated group of militia denying access to a county by federal agents with the backing of the local sheriff then so be it. Anything that protects our local turf is all that counts now because the law is no longer just, is now repugnant to the founding documents, and we need to start from the foundation to rebuild the house divided.
G
There is no such things as a “legal Grand Jury warrant.” Grand Juries cannot issue warrants, which is patently obvious from the clear text of US v. Williams and Brown v. US. Believing so in the face of such clear evidence is simply insanity. No entity should ever be able to request a warrant and approve that same warrant, just like no prosecutor should be able to act as a jury himself in a trial. This basic check and balance has existed in English Common law for over five centuries, remains within US law both common and code, and is a basic foundational bulwark against tyranny.
But if you’re in favor of tyranny as long as it’s executed by the right people, well, welcome to the French Revolution.
F
Greg I really think you are just seeing what you want to see and accusing allies of wanting tyranny won’t get you very far in life. Might want to rethink a few things before responding.
G
I understand, but the implications of what I’m seeing are really disturbing to me. Thanks for the gut check, though. It’s always the best folks for you that advise you to reflect for a bit and make sure you’re on course.
John Leyzorek
Greg is correct in his partial quote of Scalia’s opinion. Without pasting the whole passage here, I have to add that he also repeatedly affirmed that the GJ’s authority to investigate is not limited by judge or prosecutor. He says that the judge may deny a GJ request for a warrant if it invades the subject’s fundamental rights. But if it does not, it seems that a judge’s cooperation with GJ in the mater of issuing a requested warrant must be essentially non-discretionary, so the term “GJ warrant” is substantially true if procedurally false.
Greg’s derogatory comparison of the randomly-chosen members of a grand jury to an “official” is also interesting. “We-the-People” are the actor in the preamble to the Constitution. We are the top of the inverted pyramid of importance and authority in our system. We are all fallen, and make mistakes, but I would rather be investigated by a random group of my peers than by any member of the coterie of power, and it is clear to me that that is precisely why the GJ has been a persistent institution for a thousand years of our common law.
I do not think that any honest student of history can deny that government has slaughtered more ordinary people than private thugs, or gangs. What I am trying to show is that our founders knew this, and intended we-the-people to be a real check on its powers and activities.
Is that messier than a rigidly organized and all-powerful institutional system? Absolutely! I am with Jefferson when he said, “Malo periculosam, libertatem quam quietam servitutem”
G
Here is the full quotation. Everyone should be able to come to their own independent understanding of the text.
True, the grand jury cannot compel the appearance of witnesses and the production of evidence, and must appeal to the court when such compulsion is required. See, e. g., Brown v. United States, 359 U.S. 41, 49 (1959). And the court will refuse to lend its assistance when the compulsion the grand jury seeks would override rights accorded by the Constitution, see, e. g., Gravel v. United States, 408 U.S. 606 (1972) (grand jury subpoena effectively qualified by order limiting questioning so as to preserve Speech or Debate Clause immunity), or even testimonial privileges recognized by the common law, see In re Grand Jury Investigation of Hugle, 754 F. 2d 863 (CA9 1985) (same with respect to privilege for confidential marital communications) (opinion of Kennedy, J.). Even in this setting, however, we have insisted that the grand jury remain “free to pursue its investigations unhindered by external influence or supervision so long as it does not trench upon the legitimate rights of any witness called before it.” United States v. Dionisio, 410 U.S. 1, 17-18 (1973). Recognizing this tradition of independence, we have said that the Fifth Amendment’s “constitutional guarantee presupposes an investigative body `acting independently of either prosecuting attorney or judge’. . . .” Id., at 16 (emphasis added) (quoting Stirone, supra, at 218).
NOTE: the case involves whether the Brady decision (that prosecutors are required to disclose exculpatory information to the defense in a criminal proceeding) applies to Grand Jury proceedings. The opinion holds that it does not, largely because the function of a Grand Jury’s purpose is to determine whether probable cause exists sufficient to render an indictment, rather than to determine guilt or innocence in a trial. The exculpatory evidence disclosure requirement does exist in a criminal trial, where a case could be dismissed if prosecutors withheld evidence favorable to the defendant preventing the defense from offering that information to a jury.
Of course this esoteric decision regarding judicial procedure has grave implications on whether the militia can start busting down people’s doors in order to collect evidence of their nefarious activities to undermine “We The People”. If you read the full decision through really foggy reading glasses after imbibing a sufficient quantity of hops-infused manna from Heaven, perhaps you’ll discern the “militia busting caps and breaking down doors” part that my feeble mind has apparently not grasped. If you’ve met that threshold, please let me know how to do the same, because I do actually like that stuff. 11B FTW and all that, ya know.
John Leyzorek
Thanks for the full quote.
My reading glasses are not as new and shiny as they could be, but sour goat’s milk is the only fermented product I imbibe.
Nobody but you, Greg, is talking about militia busting caps and breaking down doors. It is interesting that Scalia said that, “grand jury cannot compel the appearance of witnesses and the production of evidence“, but later in the same passage the phrase, “grand jury subpoena” appears. My understanding of the word, “subpoena” is that it is an instrument that compels someone to appear or provide evidence.
And how, in fact, does,
“free to pursue its investigations unhindered by external influence or supervision so long as it does not trench upon the legitimate rights of any witness called before it.” United States v. Dionisio, 410 U.S. 1, 17-18 (1973). Recognizing this tradition of independence, we have said that the Fifth Amendment’s “constitutional guarantee presupposes an investigative body `acting independently of either prosecuting attorney or judge’. . . .“
, especially the last 8 words, square with GJ being totally dependent on a judge for warrants?
Most people comply peacefully with subpoenas and search warrants. I think most sober individuals charged with executing such documents, meeting refusal, would look hard for other recourse before “busting caps and breaking down doors”. Gang-leaders might not. But all the militia people I have met, admittedly a tiny sample, have been clearly committed to keeping peace and supporting the rule of law.
I think that is the distinction we were looking for, at the beginning of the conversation.
F
If I may, when I think of militia executing a warrant I think of it as the same as police doing so. A knock on the door with an explanation that you have with you a warrant, explaining in a professional manner what the warrant is for and answering questions while also allowing the subject of the warrant to examine the document. All peaceful just as current law enforcement does things. I never thought of it as a group of kitted up hillbillies busting down a door in the dead of night to drag someone outside for summary execution or any craziness like that. If that were the case we wouldn’t even have the pretense of following the constitution.