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JUDICIAL ACCOUNTABILITY and the SLIPPERY SLOPE

Chuck Klein ©1999

Published in Guns and Ammo Magazine 5-1999.

EXCUSES IN HISTORY:

Early in this century, when even the "politically correct" had a sense of right & wrong and fair play, it was believed to be in the best interest of this country to ban the sale and consumption of alcoholic beverages. Those in power, back then, were believers in doing what they wanted to do in the legal and proper way. First they discussed passing laws to ban booze. But, after a cursory study of the Constitution it was clear there was no provision in this great body of supreme laws to permit the "majority rule" or any government body to outlaw alcohol, sans a constitutional act. Thus, the 18th Amendment was born, passed and ratified all in due order. This formal and official constitutional decree forbid "the manufacture, sale, or transportation of intoxicating liquors...." Political correctness or even majority rule is not the way this country was set up to run. We are a republic, a nation of laws, whose supreme law is the Constitution.

Fourteen years later, with the onset of the Great Depression, the "political correctness" had shifted. With this shift came three revelations. 

*  It was then considered in the best interest of the country to encourage legitimate liquor producing businesses. This not only made for a taxable commodity, but in an era of economic downturn, a major fiscal impact came from employing men in transportation, bottle, label, and box manufacturing industires.

*  Enacting amendments to the constitution are burdensome, unwieldy and time consuming. In addition, Federal politicians found it insulting and repugnant to submit to state legislators for ratification of their wise and guiding acts.

*  The federal government felt it had to find some form of employment for the now out-of-work liquor agents. Up to that time it was well established that if one worked for the government, one could expect low pay, but a layoff-free job [today it's high pay, no lay-off, PLUS a virtual termination-free environment].

Just before the repeal of prohibition informal studies and polls were taken by the PC. The preordained results indicated that the greatest threat to America was the proliferation of machine guns and other dangerous ordnance. This was evidenced by sensational news stories about mass killing by the mobsters who controlled the illicite and illegal liquor industry. Never mind that these guys were out of business with the repeal of the 18th Amendment and thus the legalization of liquor making.

The government again faced the same dilemma it had in 1917; there were no provisions in the constitution that would allow for the banning or controlling of machine guns or any other weapons. In fact the Constitution's 2nd Amendment expressly forbade infringing the right to keep and bear arms. The correct and legal way, if "the people" so desired a change, was the repeal of the 2nd Amendment or the enactment of a rider to control or ban whatever guns they wanted. But, a new amendment takes time and then there's that humbling matter of having to beg the states to ratify it. Besides, the PC was convinced it needed to find jobs for those soon to be laid-off liquor agents. The quick fix, the feel good way, the start down the slippery slope way was to just pass a federal law. Hence the National Firearms act of 1934.

To carry this to its logical conclusion, suppose they pass a gun prohibition amendment. What would become of all those the "F" agents in BATF? Would they be laid-off? Fired? Not a chance. If history repeats, as we have learned, a new PC evil will be found, laws passed and, eureka, the "F" agents will have their new assignment. Now let's see, what could be a new scourge, a cause c‚lŠbre? Maybe lone occupants of motor vehicles, or "dirty" books, magazines and movies. How would you like to have to explain to camouflaged, ankle booted and heavily armed BATF agents [hey, I didn't call them "jack-booted thugs"] why you are not car-pooling on your way to the grocery store? Or have to defend your home against "Playboy Mag" raids.

THINK IT CAN'T HAPPEN?

"They," the politically correct, our government, anti-[fill- in-the-blank] groups, news media, are setting us up just like "they" did to the tobacco makers. There is no provision in the Constitution to allow the federal or state governments to force exorbitant taxes or otherwise harass a legitimate business. What "they" did was, using government funding, establish pseudo health organizations such as the Center for Disease Control to declare and publish tainted findings that cigarettes are not only harmful to the health of Americans, but as such, the health burden to treat these unhealthy citizens cost the government money.

The fact that there is also no constitutional justification to allow, permit or require any state or federal government to treat its citizens [socialization of medicine] totally escapes the mentality of the politically correct - not to mention the judges who had had these cases before them.

Armed with false health reports "they," using tax payer money, instigated civil law suits upon civil law suits to force an out-of-court settlement. The tobacco companies, as large and rich as they are, soon realized they were no-match for the endless funding of the government. The result was exactly what the government [and the lucky {read, greedy} lawyers who handled the cases] wanted: money - lots and lots of money. The certainty that there is no constitutional basis for this rape of a legitimate industry is totally ignored by "they."

Already, the federally funded Center for Disease Control has come out with position papers saying that guns are a health risk. As this is being written, some cities, using the same tobacco- style logic of having the expense of medically treating gunshot victims with public money, have already filed suits against gun makers. Only this time, in addition to money, money, money, "they" seek an outright ban on guns. Because we have slid so far down the slippery slope "they" just might be able to get away with it.

Incompetent and cowardly lawyers AND JUDGES, afraid to go against the political correctness of the day have failed to overturn the National Firearms Act, The 1968 Gun Control Act - and most other unconstitutional laws since passed. The die has been cast, the precedent established, the ride down the slippery slope has begun. Since the ratification of the 21st Amendment [repealing prohibition] there have been only nine new amendments to the constitution. All of these new amendments apply to either voting rights or political functions. None deal with protecting former or future individual rights. Since 1933 all personal rights, privileges, guarantees or immunities spelled out in the Constitution have been dealt with exclusively by enacting laws irregardless of their constitutional legality. The attitude of the politically correct has been and still is; lets pass the law because it feels good and is good for getting votes. We have slid so far down the slope the tobacco makers knew, same as the gun manufactures know, there isn't a judge in the country that will declare the government's tactics against politically incorrect, albeit ligitimate, industries to be unconstitutional.

RULE OF LAW vs. THE SLIPPERY SLOPE: Henry Hyde, in his eloquent address to the House of Representatives [19 Dec. 98], based his entire justification for impeaching the President of the United States on the rule of law. "The phrase 'rule of law' is no pious aspiration from a civics textbook," Mr. Hyde chastised his fellow legislators. "The rule of law is what stands between all of us and the arbitrary exercise of power by the state. The rule of law is the safeguard of our liberties," he concluded. What rule of law could he be referring to other than the mother of all made-in-the-USA laws, the Constitution. It is in this sacred document where we find the rules of all laws. Here is the foundation guaranteeing freedoms and requiring compliance. The rule of law Mr. Hyde referred to in the impeachment matter is the obligation of the House of Representatives to bring articles of impeachment against a sitting president if there is probable cause to believe the accused is guilty of "treason, bribery, or other high crimes and misdemeanors." The Democrats argued that perjury - lying under oath - was not impeachable inasmuch as it was not to the level of treason, bribery or other high crimes.... What they failed to acknowledge, and what the Republicans neglected to sight, is the last word in Article II, Section 4: MISDEMEANORS. A misdemeanor is "any crime or offense inferior to a felony," [Blackstone Law Dictionary]. It seems that our forefathers, in their infinite wisdom, have decreed that the President, while he is serving his country, must be free of all criminal guilt. He shall be the leading example, the epitome, a true and just leader of the people and not involved in any criminal activity whatsoever. The democrats want to start down that slippery slope by saying the language of the constitution is not what is says it is or as George Orwell might put it, some felonies are more equal than other felonies. Further, the Democrats have also taken the adamant stand that perjury, unless committed directly against the state, per se, and not just against one of us commoners, is not an impeachable crime. To accept this reasoning will open the door [starting down a slippery slope] to future presidents arguing that even murder, unless committed against the state, is not an impeachable offense. There is one final rule of law; a law that supersedes even the Constitution. Mr. Clinton who has flouted and taunted the premiss that perjury is not of the same stature as treason, bribery, et. al., is forsaking the very foundation, the bedrock, of western civilization. On a mount, a very long time ago, ten commandments were passed directly from God to mortal man. Violation of any of these direct orders from God is most assuredly of the rank, if not higher than, treason, bribery and other high crimes and misdemeanors. Those who ignore the commandment, THOU SHALL NOT BEAR FALSE WITNESS, might consider some deep inner reflections before trivializing or excusing perjury. To protect our president from situations that could yield criminal charges, we comp him with body guards, chauffeurs, legal counsel, housing, servants, etc., etc. For example, if the President had to drive his own car, he would be open to charges [real or trumped-up] of misdemeanor traffic offenses. Such a minor charge, under our Constitution, could start a process of impeachment. However, we, his employer, afford him insolation from the public to insure he is not wrongly charged by evil, vicious and/or sensation seekers. Of course, if the President, regardless of these publicly paid forms of protection, is so stupid, pompous, insolent or arrogant as to commit a crime, any crime from treason to misdemeanors, then our Congress must impeach. No matter how popular or well intentioned the accused is, we are not a nation of majority rules where public opinion adjudicates. The atrocities of Adolf Hitler, were overwhelmingly supported by his constituency. The difference between Nazi Germany and the United States: we are a republic of laws whose constitutional foundation has survived for over 200 years. As we fail to adhere to the rules of law, we continue the slippery slide into fascism. Mr. Hyde also said, "The rule of law is like a three-legged stool. One leg is an honest judge, the second leg is an ethical bar and the third is an enforceable oath. All three are indispensable to avoid political collapse." We all know many ethical members of the bar who have tried in vein to have gun laws that violate state or federal constitutions tossed out. It's the "third leg" that causes the problems. Without the FEDERAL JUDICIAL ACCOUNTABILITY LAW the third leg is, in reality, powerless inasmuch as there is no way to force any judge to obey his oath to uphold the inalienable rights guaranteed by our constitution. With no workable enforcement of the judicial branch, i.e., legislators without the integrity to demand compliance, the stool has fallen every time "shall not be infringed" is mentioned.

 

WHOSE DEFINITION OF ETHICS??

This brings us to JUDGES and the judicial branch in general. Used to be the wearers of white robes were the most feared gangs. Now it's those who wear the black robes. These pompous fate adjusters are so powerful they don't even have to abide by their own rules. After all, what do they have to fear? Appointed for life [on the federal level] by like-thinkers they can ignore constitutional demands and controls with impunity.

Case in point: Recently a question was sent, via letter, to Thomas J. Moyer, Chief Justice of the Ohio Supreme Court. Four months later, a "Staff Counsel" responded, "Pursuant to the Code of Judicial Conduct, the Justices and employees of the Supreme Court are not permitted to give legal advise or to answer questions concerning legal issues." A copy of the Ohio Code of Judicial Conduct was enclosed. A careful study of this short, official set of Canons of Ethics found no statement saying "[judges] are not permitted to give legal advise or to answer questions concerning legal issues." In fact, Canon 2 contradicts: "(A)(1) A judge may speak, write, lecture, teach and participate in other activities concerning the law, the legal system and the administration of justice." The commentary to this section goes on to say: "...a judge is in a unique position to contribute to the improvement of the law, the legal system and the administration of justice... [and] is encouraged to do so...." In other words, the Canons recommend that judges "answer questions concerning legal issues."

In Ohio, like many other states, the state Supreme Court has jurisdiction over complaints filed against members of the bar, of which most attorneys and state court judges are members. The judges not only pass judgement on lawyers, but measure the judicial conduct of their fellow judges as well. They are in the position of acting as their own judge, jury and executioner when it comes to misconduct on the bench. This system is tantamount to the old proverb of the foxes guarding the hen house - and with the same predictable results.

Inasmuch as the aforementioned Ohio Canons lays out a code of judicial conduct it has the audacity to build into the code excuses for not disciplining fellow members. The Preamble to the Code of Ethics states: "It [the code] is not intended, however, that every transgression will result in disciplinary action." What they are saying: if one of the PC commits a crime or violates any of the Codes, we don't have to yank his license. While at the same time, if an attorney who is not PC, we have the power and right to disbar him for any transgression. Ohio should change its Code's name to Ethics by Arbitrariness and Capriciousness.

This is no surprise. Ohio is only emulating our federal system that, for example, used its power to ajudicate that the FBI agent did not commit murder - or any other crime - when he shot and killed Randy Weaver's wife. Legalities aside, where's the ethics in this?

Recently, an Ohio licensed attorney [Doris Houser Allen] was indicted for perjury, tampering with evidence and tampering with records. This was not just "code" infractions, but criminal felony violations. Ms. Allen's criminal acts caused the physical arrest and incareration of an innocent person. The Board of Commissioners on Grievances and Discipline recommended Ms. Allen be suspended from the practice of law for six months for professional misconduct. The Supreme Court of Ohio voted 5 - 2, sans comment, to dismiss the complaint. In Ohio, like most states and all federal jurisdictions, there is no appeal and no citizen panel to police lawyers.

Appointed for life, federal judges who commit misdeeds are subject to impeachment. The Bill Clinton impeachment process clearly showed what a long and drawn-out procedure it is. This is the primary reason there are such a low number of judges that are actually impeached, much less removed from office.

DUH:

It is a well-known truth the American Bar Association is anti-gun. The ABA does not deny or hide this fact. The over whelming majority of lawyers in this country are members of this trade association. Of the approximately 385K members most judges do or did belong at one time or another. Since the ABA is noted for its position against guns, per se, it stands to reason that any such member is presumed to be, at worst, anti-gun. At best, an ABA member [or in some cases, a former member] is tainted by association. If membership exposes readers of the association's publications, which are most certainly bias against firearms use or ownership, then a negative bent would not be unreasonable to assume.

Ethically, any judge who has a conflict of interest with any case before him, must excuse himself from the case - even if the conflict is not brought to his attention by either side. This happens all the time. In civil cases involving some publicly traded company in which the judge owns stock, he will bow out, usually of his own accord. In criminal matters where he is known to harbor prejudice against the defendant or the defendant's position he will yield to another judge. When was the last time you heard of a judge in a firearm related case excuse himself - even at the request of the defendant - because he belonged to a known anti-gun association?

SOLUTIONS:

Photo copy this article and send it to your U.S. Representative and Senators voicing your support for passage of a FEDERAL JUDICIAL ACCOUNTABILITY LAW. If such a law were proposed, it should read to the effect:

FEDERAL JUDICIAL ACCOUNTABILITY LAW SECTION I. In any criminal or civil jury trial the defense shall have the right to argue the law, as well as the facts, before the jury. no judge shall issue instructions or opinions to the jury after the start of the trial. FRAMER'S INTENT: As covered in Klein's preceding columns in GUNS & AMMO (Feb. 1998, and Oct. 1998) it is most important for all Americans, especially gun owners, that we reinforce this established concept of Jury Nullification. Because most judges have, in violation of their sworn duties, ignored this right and power and because there are many unconstitutional laws. This section is needed to enlighten juries of their rights and powers. Without this well established right and power, we gun owners will continue to be subject to contitutionally ignorant and anti-gun biased judges. SECTION 2. No judge shall issue any verdicts other than affirmed, denied, guilty or not guilty; nor shall a judge issue any orders, edicts, commands or decrees; contempt of court citations excepted. FRAMER'S INTENT: Judges tend to propogate power, i.e., self- appointed power. Many "laws" are the result of court cases where a sitting judge ignored a petitioner's request for a yes or no decision and instead delivered his opinion - a bias that carries the weight of law. These unrequested edicts, commands, orders and decrees are in excess of his constitutional powers. Most of these "case laws," such as school busing, affirmative action or refusals to uphold the 2nd Amendment, are in violation of The Constitution. SECTION 3. Whosoever violates sections i or 2 of this statute shall be fined not less than ten thousand dollars ($10,000). FRAMER'S INTENT: If Representative Henry Hyde (see sidebar) really means what he says about the third leg of the stool, then he and his fellow republicans should not have a problem supporting this "enforceable oath." For any law to have meaning it must have a definite and suitable penalty. Ten thousand dollars, even to a judge, is not peanuts. SECTION 4. Charges of violations of any section of this law shall be adjuciated by a judical review board comprised of twelve citizens, randomly selected from voter registrations. each judical reveiw board member shall serve not less than 12 months nor more than 24 months. compensation shall be at the same level as federal appealant court judges. FRAMER'S INTENT: To judge the judges a review board, completely independent of any of the branches of government, is necessary for open and disinterested decisions. Since the constitution was written by lay men, average men and women are certainly competent to read, understand and apply its meanings.