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United States District Court for the Eastern District of Arkansas,

Northern Division, Batesville, Arkansas


Don Hamrick, pro se ) 18 U.S.C. § 1964(c) RICO Treble Damages
5860 Wilburn Road ) 42 U.S.C. § 1983; § 1985; § 1986; § 1988
Wilburn, AR 72179 ) 42 U.S.C. § 1402(a)(1)
PLAINTIFF ) 42 U.S.C. § 2000h-2
v. ) Civil Action No. 06-0044GH (Recusal Demanded)
President George W. Bush, et al ) (Judge broke federal law denying: 28 U.S.C. § 1916
White House ) by compelling payment of filing fee: 18 U.S.C. § 872
1600 Pennsylvania Ave. ) and administratively violated Rule 4(c)(2) Fed.R.Cv.Pro.)
Washington, DC 20500 ) Jury Trial Demanded
DEFENDANTS ) Damages Sought: $9 million (RICO Treble)

P LAINTIFF ’S P REEMPTIVE O BJECTION TO


A NTICIPATED M OTION TO D ISMISS AND
MOTION FOR INTERVENTION BY THE U.S. ATTORNEY GENERAL

P RESENTING STIGMATIC H ARM


AS AN A DDITIONAL S TANDING TO S UE

THE P LAINTIFF AS “P RIVATE A TTORNEY G ENERAL”

M OTION FOR TEMPORARY INJUNCTION ON TWIC/MMC &


FOR N EGOTIATED R ULEMAKING
IN L IEU OF D EFENDANTS’ M OTION TO D ISMISS
TO NEGOTIATE WITH THE DEFENDANTS , THE BATFE
AND SELECT MEMBERS OF CONGRESS
UNDER SPECIAL PROCEDURES OF RULE 16(C )(9) FED .R.CIV .P.
(SEE 5 U.S.C. § 560 AND 33 C.F.R. § 1.05–60)
TO ENACT FEDERAL PREEMPTION OF STATE GUN CONTROL LAWS AND
THE REPEAL /REVISION OF SECLECTED FEDERAL GUN CONTROL LAWS
AND REGULATIONS THAT PROHIBIT , INTERFERE WITH , OR OTHERWISE
INFRINGE UPON THE RIGHT TO OPENLY KEEP AND BEAR ARMS IN
INTERSTATE & INTRASTATE TRAVEL FOR THE PEOPLE & FOR THE
PLAINTIFF ’S NATIONAL OPEN CARRY HANDGUN ENDORSEMENT ON HIS
MERCHANT MARINER ’S DOCUMENT
AS ONE CONDITION FOR SETTLEMENT
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Table of Contents
1. In the Interest of Justice I Request that the Defense Counsel Confer with Each of the
Named Defendants for Their Input to Any Pleadings on Their Behalf,
(i.e. Motion to Dismiss) in Clear Understanding of the Merits of My Case. . . . . . . . . . . . . 9

2. In the Interest of Justice I Proposes Partial Conditions for Settlement at this Early Stage
under Rule 16(a)(5) and 16(c)(9) & (12) FED .R.CV .PRO . FOR A PRETRIAL CONFERENCE
FOR THE PURPOSE OF “FACILITATING SETTLEMENT OF THE CASE ” THAT THE DEFENDA NTS
SHALL WAIVE THEIR RIGHT TO FILE THEIR MOTION TO DISMISS IN FAVOR OF NEGOTIATED
RULE MAKING A ND $3 MILLION SETTLEMENT WHEREUPON THE PLAINTIFF W ILL FORGO HIS
RICO ACT CLAIMS FOR $9 MILLION IN TREBLE DAMAGES THEREBY SIGNIFICA NTLY
SIMPLIFYING HIS CASE FOR SECOND AMENDMENT RIGHTS AT TRIA L . . . . . . . . . . . . . . . . . . . . . 9
42 U.S.C. § 2000h–2. Intervention by Attorney General; denial of equal protection on
account of race, color, religion, sex or national origin . . . . . . . . . . . . . . . . . . . . . . . 9

3. The Plaintiff as a Private Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10


III. Three Forms of the Private Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

4. Bowers v. Devito, 686 F.2d 616 (7th Cir. 1982) No Right to Police Protection . . . . . . . . . . . . . 12
There is a constitutional right not to be murdered by a state officer, for the state
violates the Fourteenth Amendment when its officer, acting under color of
state law, deprives a person of life without due process of law. Brazier v. Cherry,
293 F.2d 401, 404-05 (5th Cir. 1961). But there is no constitutional right to be
protected by the state against being murdered by criminals or madmen.
It is monstrous if the state fails to protect its residents against such predators
but it does not violate the due process clause of the Fourteenth Amendment
or, we suppose, any other provision of the Constitution. The Constitution is a
charter of negative liberties; it tells the state to let people alone; it does not
require the federal government or the state to provide services, even so
elementary a service as maintaining law and order. Discrimination in
providing protection against private violence could of course violate the
equal protection clause of the Fourteenth Amendment. But that is not alleged
here. All that is alleged is a failure to protect Miss Bowers and others like her
from a dangerous madman, and as the State of Illinois has no federal
constitutional duty to provide such protection its failure to do so is
not actionable under section 1983. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

5. Stigmatic Harm as Plaintiff’s Additional Cause for Standing to Sue . . . . . . . . . . . . . . . . . . . . 13


(1) has suffered an “injury in fact” that is (a) concrete and particularized and
(b) actual or imminent, not conjectural or hypothetical . . . . . . . . . . . . . . . . . . . . . 14
(2) the injury is fairly traceable to the challenged action of the defendant . . . . . . . . . . . . . 14
(3) it is likely, as opposed to merely speculative, that the injury will be redressed
by a favorable decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

6. Thomas Healy, Stigmatic Harm and Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15


II. An Alternative View of Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
III. The Nature of Stigmatic Harm . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. A Mark of Disgrace . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
B. The Experience of the Stigmatized . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
C. Stigmatic Harm as a Concrete Injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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7. The Hypocrisy of the Judicial and Executive Branches of the U.S. Government in Regard
to the Separation of Powers Doctrine That Induces In the Federal Government a
Schizoidic Pattern of Racketeering Activity Over the Second Amendment.
In Other Words: The Government Goes Loony Over the Second Amendment . . . . . . . . 34

8. AMY CONEY BARRETT , STARE DECISIS AND DUE PROCESS , 74 UNIVERSITY OF COLORADO LAW
REVIEW 1011, 1074-1075 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
2. Does Distinguishing Dampen the Preclusive Effect of Stare Decisis? . . . . . . . . . . . . . . . 34
3. The Due Process Question . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

9. Assistant U.S. Attorney Dennis Barghaan’s Fraudulent Use of Inapplicable Case Law . . . . . 41

10. Excerpt from the Dred Scott Case in 1856 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

11. Excerpt from Lincoln’s Emancipation Proclamation of 1863 . . . . . . . . . . . . . . . . . . . . . . . . . 44

12. Exposing Assistant U.S. Attorney Dennis Barghaan’s Fraud, Misconduct &
Hypocrisy On Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

13. Dissenting Opinions of Justices Brennan, Marshal, and Blackmun in DeShaney


Vindicates My Case for Second Amendment Rights: . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

14. Wilson v. State, 33 Ark. 557 (1878) (But to prohibit the citizen from wearing or carrying
a war arm, except upon his own premises or when on a journey traveling through the
country with baggage, or when acting as or in aid of an officer, is an unwarranted
restriction upon his constitutional right to keep and bear arms. ¶ If cowardly and
dishonorable men sometimes shoot unarmed men with army pistols or guns, the
evil must be prevented by the penitentiary and gallows, and not by a general
deprivation of a constitutional privilege). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

15. Judge Sentelle’s Dissenting Opinion in Seegars v. Gonzales, 396 F.3d 1248
(D.C. Cir. 2005), cert. denied, 126 S. Ct. 1187 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

16. Is the U.S. Department of Justice Adhering to their Mission Statment’s “Fair and
Impartial Administration of Justice for all Americans? I Think Not! . . . . . . . . . . . . . . . . 56

17. M. Elizabeth Magill, Beyond Powers and Branches in Separation of Powers Law,
University of Virginia School of Law, Public Law and Legal Theory Research Papers
Series, Working Paper No. 01-10. December 2001: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Part II: Beyond Powers and Branches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58

18. BOOK REVIEW: POPULA R ? CONSTITUTIONALISM ? THE PEOPLE THEM SELVES :


POPULAR CONSTITUTIONA LISM AND JUDICIAL REVIEW . By Larry D. Kramer. New York:
Oxford University Press. 2004. Pp. xii, 363. $29.95 (cloth). . . . . . . . . . . . . . . . . . . . . . . . 67
I. Introduction: Popular Constitutionalism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67

19. Matthew Adler, POPULAR CONSTITUTIONALISM AND THE RULE OF RECOGNITION : WHOSE
PRACTICES GROUND U.S. LAW ? University of Pennsylvania Law School, Public Law
and Legal Theory Research Paper Series, Research Paper No.54, September 2004 . . . . . 68

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20. The U.S. Coast Guard Committed Fraud Upon the U.S. Government Regarding the
Merchant Mariner’s Document . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

21. Citing Shelly Parker, et al v. District of Columbia, DC Circuit, No. 04-7041 (filed
July 14, 2005, still pending) Appellant’s “SECOND MOTION TO ISSUE BRIEFING
SCHEDULE AND SET ORAL ARGUMENT ON THE MERITS ,” pp. 6-7 . . . . . . . . . . . . . . . . . . . . . . . . 70
A. Administrative Exhaustion Is Not Required In Purely Constitutional Cases . . . . . . . . . . 70
B. Futile Acts Are Not Required To Sustain Standing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70

22. Must I Be Arrested by the Feds in Order to Have My Case Taken Seriously? . . . . . . . . . . . . 71

23. Congress Owes the American People a “Clear Duty” toRepeal Federal Statutes that
Excessively Burdens, Infringe, or Prohibits the Practical Exercise of Second
Amendment Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

24. As to My RICO Act Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72


46 CFR § 1.01–30 Judicial review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
46 CFR § 1.03–15 General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73

25. Damning Evidence of a Conspiracy to Obstruct Justice and Evidence of Racketeering an


Unlawful and an Unconstitutional Protection Scheme Over the Second Amendment . . 74

26. The Origin of the Thirteenth and Fourteenth Amendments Are Based on the Infamous
Slavery Case of Dred Scott V. Sandford, 60 u.s. (How.) 393, 416-417, (1856) . . . . . . . . . . 76

27. FEDERAL PREEMPTION of State Gun Control Laws is not entirely fanciful as Judge
Huvelle Maliciously Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
USAM 4-3.100 Authority of the Attorney General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
USAM 4-3.140 Exceptions to the Redelegation of the Attorney General's Authority . . . . . . 82
USAM 4-3.200 Bases for the Compromising or Closing of Claims Involving the
United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

29. Title 28 Code of Federal Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84


28 C.F.R. § 0.160 Offers That May Be Accepted by Assistant Attorneys General. . . . . . . . . 84
28 C.F.R. § 0.161 Acceptance of certain offers by the Deputy Attorney General or
Associate Attorney General, as appropriate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84

30. Title 33 Code of Federal Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85


33 C.F.R. § 1.05–60 Negotiated Rulemaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

31. Special Procedures under Rule 16(c)(9) Federal Rules of Civil Procedure . . . . . . . . . . . . . . 86

32. Negotiated Rulemaking With the U.S. Government Under the United States Code . . . . . . . 86
5 U.S.C. § 569. Encouraging Negotiated Rulemaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86
5 U.S.C. § 566. Conduct of Committee Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86

33. Federal Advisory Committee Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88


5 U.S.C. Appendix - FEDERAL ADVISORY COMMITTEE ACT § 2. Findings and Purpose . . . . . . 88

34. U.S. CONSTITUTION , ARTICLE VI, CLAUSE 3: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

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35. The Heritage Foundation’s Backgrounder, No. 1379, dated June 22, 2000,
PIRACY IN ASIA : A GROWING BARRIER TO MARITIME TRADE , by Dana R. Dillon
(footnotes omitted) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89

36. International Maritime Organization, “PIRACY AND ARMED ROBBERY AGAINST SHIPS :
GUIDANCE TO SHIPOW NERS AND SHIP OPERATORS , SHIPMASTERS AND CREWS ON
PREVENTING AND SUPPRESSING ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS ,
Maritime Safety Committee’s Circular, MSC/Circ. 623/Rev.2, dated 20 June 2001 . . . . . 90

37. CORPUS JURIS SECUNDUM: VOLUME 87: TREATIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94


II. Construction and Operation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
87 C.J.S. § 6. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
III. Duration, Modification, Suspension, and Termination . . . . . . . . . . . . . . . . . 94
87 C.J.S. § 10. Generally — Effect of abrogation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
87 C.J.S. § 11. Modification or amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
87 C.J.S. § 12. Manner of termination — Termination by constitutional
amendment or by Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
87 C.J.S. § 12. Manner of termination — Effect of War . . . . . . . . . . . . . . . . . . . . . . . . . . . 94

38. IV. Relation To, and Conflict With, Other Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95


87 C.J.S. § 13. Generally . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
87 C.J.S. § 14. Acts of Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
87 C.J.S. § 15. State Constitutions and Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

39. The Second Amendment as a Civil Right in the United States . . . . . . . . . . . . . . . . . . . . . . . 95


16A C.J.S. § 444. Basic Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
16A C.J.S. § 446. Bill of Rights in General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95
16A C.J.S. § 511 Personal Security . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
a. In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
Reputation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96
16A C.J.S. § 478 The Right to Travel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
16A C.J.S. § 480 Durational Residency Requirements to Right to Travel . . . . . . . . . . . . . . 97
16A C.J.S. § 482 Involuntary Servitude . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

40. International Treaties & Conventions Violating the U.S. Constitution & Bill of Rights . . . . . 98
IMO/STCW 1995 Amended Standards of Training, Certification and
Watchkeeping Convention . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
International Convention for the Safety of Life at Sea (SOLAS), 1974 . . . . . . . . . . . . . . . . 98
Paragraphs 44 and 45 of IMO/Maritime Safety Committee MSC/Circ. 623/Rev.3
dated 29 May 2002, PIRACY AND ARMED ROBBERY AGAINST SHIPS : GUIDANCE TO
SHIPOW NERS AND SHIP OPERATORS , SHIPMASTERS AND CREWS ON PREVENTING
ACTS OF PIRACY AND ARMED ROBBERY AGAINST SHIPS . . . . . . . . . . . . . . . . . . . . . . . . . 98

41. Repealing or Revising Federal Gun Control Laws & Regulations . . . . . . . . . . . . . . . . . . . . . 98


27 CFR § 178.38, Transportation of Firearms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98

42. 18 U.S.C. § 921 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98


18 U.S.C. § 921(a)(18) The term ''Secretary'' or ''Secretary of the Treasury''
means the Secretary of the Treasury or his delegate. . . . . . . . . . . . . . . . . . . . . . . . 98

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43. 18 U.S.C. § 922 Unlawful Acts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
18 U.S.C. § 922(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
18 U.S.C. § 922(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
18 U.S.C. § 922(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
18 U.S.C. § 922(a)(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
18 U.S.C. § 922(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
18 U.S.C. § 922(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
18 U.S.C. § 922(b)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
18 U.S.C. § 922(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
18 U.S.C. § 922(b)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
18 U.S.C. § 922(b)(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
18 U.S.C. § 922(o)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
18 U.S.C. § 922(o)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
18 U.S.C. § 922(o)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
18 U.S.C. § 922(q)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
18 U.S.C. § 922(q)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
18 U.S.C. § 922(q)(3)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
18 U.S.C. § 922(q)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
18 U.S.C. § 926A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
18 U.S.C. § 930 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

44. Federal Preemption of Selected State Gun Control Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . 102

Larry Pratt, DEATH BY A THOUSAND CUTS , April 2006, www.gunowners.org . . . . . . . . . . . . . . . . 104

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106

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8
1. IN THE INTEREST OF J USTICE I R EQUEST THAT THE D EFENSE C OUNSEL C ONFER WITH
E ACH OF THE N AMED D EFENDANTS FOR T HEIR INPUT TO A NY P LEADINGS ON T HEIR
B EHALF, (I.E. M OTION TO D ISMISS) IN C LEAR U NDERSTANDING OF THE M ERITS OF M Y
C ASE.
2. IN THE INTEREST OF J USTICE I P ROPOSES P ARTIAL C ONDITIONS FOR S ETTLEMENT
AT THIS E ARLY S TAGE UNDER R ULE 16(a)(5) and 16(c)(9) & (12) F ED.R.C V.P RO. FOR
A P RETRIAL C ONFERENCE FOR THE P URPOSE OF “F ACILITATING S ETTLEMENT OF THE
C ASE” THAT THE D EFENDANTS S HALL W AIVE T HEIR R IGHT TO F ILE T HEIR M OTION TO
D ISMISS IN F AVOR OF N EGOTIATED R ULE M AKING AND $3 M ILLION S ETTLEMENT
W HEREUPON THE P LAINTIFF WILL F ORGO H IS RICO A CT C LAIMS FOR $9 M ILLION IN
T REBLE D AMAGES T HEREBY S IGNIFICANTLY S IMPLIFYING H IS C ASE FOR S ECOND
A MENDMENT R IGHTS AT T RIAL
See pages 80-88 for my proposed “special procedures” to settle this dispute..

TITLE 42 THE PUBLIC HEALTH AND WELFARE


CHAPTER 21—CIVIL RIGHTS
SUBCHAPTER IX—MISCELLANEOUS PROVISIONS
42 U.S.C. § 2000h–2. Intervention by Attorney General; denial of equal protection on
account of race, color, religion, sex or national origin
Whenever an action has been commenced in any court of the United States seeking
relief from the denial of equal protection of the laws under the Fourteenth
Amendment to the Constitution on account of race, color, religion, sex or national
origin, the Attorney General for or in the name of the United States may intervene in
such action upon timely application if the Attorney General certifies that the case is
of general public importance. In such action the United States shall be entitled to the
same relief as if it had instituted the action.

I hereby move that this Motion and the Civil RICO Act Complaint serve as my timely
application to the Attorney General requesting intervention (i.e., legal representation) in my RICO
Act case by the U.S. Attorney General because I have been denied equal protection under the law
on account of national origin (i.e. I am an Arkansas resident who unknowingly filed cases in the
wrong U.S. District Court in the District of Columbia (See 28 U.S.C. § 1402(a)(1)) and the judges of
that Court refused to transfer my case to the U.S. District Court for the Eastern District of Arkansas,
Northern Division even though I fully apprised the judges of my Arkansas resident status and the
laws cited herein. (See 28 U.S.C. § 1406(a) and § 1404(a)).

My four years of litigation in the wrong U.S. District Court (See 28 U.S.C. § 1402(a)(1)):

9
Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that “if
a court is without authority, its judgments and orders are regarded as nullities. They are not
voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in
opposition to them. They constitute no justification and all persons concerned in executing such
judgments or sentences are considered, in law, as trespassers.” Elliot v. Piersol, 1 Pet. 328, 340, 26
U.S. 328, 340 (1828).

28 U.S.C. § 1402(a)(1), United States as Defendant:


Any civil action in a district court against the United States under subsection (a) of
section 1346 of this title may be prosecuted only:
(1) Except as provided in paragraph (2), in the judicial district where
the plaintiff resides;

Because I was not aware of the above law during these four years and because no judge or
court clerk ever thought to compare my Arkansas address on every complaint, motion, and judicial
notice of adjudicative facts with the above law on jurisdiction I wasted 4 years of federal litigation
and many thousands of dollars from my wages as a seaman on court cases that are VOID FOR LACK
OF JURISDICTION in the federal courts of Washington, DC.

On August 1, 2006 I filed my Motion to transfer my RICO Act case from the U.S. District
Court for the District of Columbia to the U.S. District Court for the Eastern District of Arkansas (Little
Rock), Northern Division (Batesville), in accordance with the above law.

On August 14, 2006 Judge Reggie B. Walton issued a Minute Order denied my motion without
prejudice when in my view is a blatant violation of federal law on jurisdiction. This makes for classic
misconduct of the most egregious kind — holding a case hostage in a Court that has no jurisdiction.

3. T HE P LAINTIFF AS A P RIVATE A TTORNEY G ENERAL

Black's Law Dictionary defines the phrase "private attorney general" in these terms:

The "private attorney general" concept holds that a successful private party plaintiff
is entitled to recovery of his legal expenses, including attorneys fees, if he has
advanced the policy inherent in public interest legislation on behalf of a significant
class of persons.1, 2

1
BLACK'S LAW DICTIONARY 129 (6th ed. 1990) (subdefinition of "Attorney General") (quoting Dasher v.
Hous. Auth. of Atlanta, 64 F.R.D. 722, 729 (N.D. Ga. 1974)).
2
Quoting William B. Rubenstein, ON WHAT A "PRIVATE ATTORNEY GENERAL" I S — AND WHY IT MATTERS,
57 Vand. L. Rev. 2129, 2149 (November 2004); Available Online at http://ssrn.com/abstract=743544

10
See 18 U.S.C. § 1964(c). See also, Rotella v. Wood, 528 U.S. 549, 557 (2000) (“Both statutes3
share a common congressional objective of encouraging civil litigation to supplement Government
efforts to deter and penalize the respectively prohibited practices. The object of civil RICO is thus
not merely to compensate victims but to turn them into prosecutors, ‘private attorneys general,’
dedicated to eliminating racketeering activity.”4 Id. , at 187 (citing Malley-Duff , 483 U. S., at 151)
(civil RICO specifically has a “further purpose [of] encouraging potential private plaintiffs
diligently to investigate”). The provision for treble damages is accordingly justified by the expected
benefit of suppressing racketeering activity, an object pursued the sooner the better.).

For the purposes of this Civil RICO Act Complaint I construe the term “significant class of
persons” to mean specifically law-abiding persons in the U.S. merchant marine and to mean
generally law-abiding U.S. citizens under the Fourteenth Amendment having rights to travel
the various states while exercising their Second Amendment right to openly keep and bear
arms for personal safety and security (private interests) and for the security of a free State (a public
interest and a governmental interest of the U.S. Government to which the U.S. Department of Justice
ought to consider taking on a less adversarial position in defending against the merits of my case).

3
(1) The Clayton Antitrust Act of 1914, Act of Oct. 15, 1914, ch. 323, 38 Stat. 730, codified at 15
U.S.C. § 12 through 15 U.S.C. § 27 and 29 U.S.C. § 52 and 29 U.S.C. § 53, was enacted to remedy deficiencies
in antitrust law created under the Sherman Antitrust Act of 1890 that allowed corporations to dissolve labor
unions. The Clayton Act empowers private parties injured by violations of the Act to sue for treble damages
under Section 4 and injunctive relief under Act Section 16. The Clayton Act is enforced by the Federal Trade
Commission and the Antitrust Division of the U.S. Department of Justice.
(2) The Organized Crime Control Act of 1970 (Pub.L. 91-452, 84 Stat. 922 October 15, 1970), Part of the Act
created the Racketeer Influenced and Corrupt Organizations Act also known as the RICO Act,
4
This objective of encouraging prompt litigation to combat racketeering is the most obvious answer
to Rotella’s argument that the injury and pattern discovery rule should be adopted because “RICO is to be
read broadly” and “ ‘liberally construed to effectuate its remedial purposes,’ ” Sedima, S. P. R. L.
v. Imrex Co., 473 U. S. 479, 497-498 (1985) (quoting Pub. L. 91-452, §904(a), 84 Stat. 947).

11
Citing from William B. Rubenstein, ON WHAT A "PRIVATE ATTORNEY GENERAL " IS — AND WHY IT
MATTERS , 57 Vand. L. Rev. 2129, 2142 (November 2004):5

III. THREE FORM S OF THE PRIVATE ATTORNEY GENERAL


The private attorney general concept is deployed in the legal literature in at least
three distinct ways, each of which presents a different mix of the public and private
features of lawyering:
(1) some private attorneys general substitute for the public attorney
general;
(2) some private attorneys general supplement the public attorney
general; and
(3) some private attorneys general simulate an attorney general, acting
as the advocate for a group, but solely for a group of private persons.

As a civil plaintiff with a Civil RICO Act Complaint for Second Amendment rights I would
be categorized as #(2) private attorney general supplemental to the “U.S. Attorney General” because
I seek to enforce certain laws based on my own injury in fact by litigiously pursuing my own
interests. Although my interests my be modest compared to the breadth of the statutory provision
that I am derivatively attempting to enforce but for the corruption and obstructive acts of the federal
judges presiding over my cases there exists the public interests and public policy.6 Therefore, in that
respect I am pursuing both my own interests and a public interest for a change in public policy
defining and expanding the Scope of the Second Amendment, which is a constitutional chore that
the U.S. Government refuses to perform.

I have cited many examples of misconduct by Assistant U.S. Attorney Dennis Barghaan,
defense counsel for the U.S. Government in my previously aborted Civil RICO Act Complaint such
as withholding vital evidence vindicating the merits of my case which is fully explained in the
Complaint.

4. B OWERS V. D EVITO, 686 F.2 D 616 (7 TH C IR. 1982) N O R IGHT TO P OLICE


P ROTECTION:
There is a constitutional right not to be murdered by a state officer, for the state
violates the Fourteenth Amendment when its officer, acting under color of state law,
deprives a person of life without due process of law. Brazier v. Cherry, 293 F.2d 401,
404-05 (5th Cir. 1961). But there is no constitutional right to be protected by the state
against being murdered by criminals or madmen. It is monstrous if the state fails to

5
Available Online at http://ssrn.com/abstract=743544
6
Adaptively paraphrasing William B. Rubenstein, ON WHAT A "PRIVATE ATTORNEY GENERAL" IS — AND WHY
IT MATTERS , 57 Vand. L. Rev. at 2147 (November 2004).

12
protect its residents against such predators but it does not violate the due process
clause of the Fourteenth Amendment or, we suppose, any other provision of the
Constitution. The Constitution is a charter of negative liberties; it tells the state to let
people alone; it does not require the federal government or the state to provide
services, even so elementary a service as maintaining law and order. Discrimination
in providing protection against private violence could of course violate the equal
protection clause of the Fourteenth Amendment. But that is not alleged here. All that
is alleged is a failure to protect Miss Bowers and others like her from a dangerous
madman, and as the State of Illinois has no federal constitutional duty to provide such
protection its failure to do so is not actionable under section 1983.

5. S TIGMATIC H ARM AS P LAINTIFF’S A DDITIONAL C AUSE FOR S TANDING TO S UE


I construe and allege that all federal and state gun control laws in their aggregate effect are
nothing more that a fraudulent attempt to appease the phobic of society by presenting a facade of
a safe and gun-free society which, in fact and law is a government sanctioned dilution in blatant
defiance of Bowers.

The implication is that personal security and safety from violent criminal attacks resulting
in bodily injury or death (murder) can only be prevented or mitigated in the instantaneous need for
protection by the exercise of Second Amendment rights to openly keep and bear arms. Those who
have pursued the Second Amendment rights to keep and bear arms, either concealed or openly have
met with resistance, criticism, scorn and ridicule and prosecution by society and government in the
same manner that African-Americans faced just because of their race. Prejudice and bigotry has
shifted from race as a threat to society to firearms. In both cases denying a U.S. citizen the right to
openly possess a firearm in public was and continues to be the badge of slavery. In this regard,
denying me the right to possess a firearm in interstate travel is an Government sanction act of
imposing slavery and involuntary servitude in violation of the Thirteenth and Fourteenth
Amendments.

This set of circumstances introductions Stigmatic Harm for gun owners as a cause for
Standing to Sue to which the Assistant U.S. Attorney, Dennis Barghaan, exacerbates with his denial
of or belligerently ignoring facts in my case. I now critique Mr. Barghaan’s Motion to Dismiss my
Civil RICO Act Case from the U.S. District Court for the District of Columbia after winning my appeal
at the DC Circuit on Second Amendment grounds.

On Page 19 of Mr. Barghaan’s Motion to Dismiss cites boilerplate case law stating that three
factors must be achieved before I have standing to sue: (1) has suffered an “injury in fact” that is (a)
concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the

13
injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to
merely speculative, that the injury will be redressed by a favorable decision.

(1) has suffered an “injury in fact” that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical;

a. Coast Guard denied my Second Amendment rights on April 19, 2002.

b. Coast Guard initiated a criminal investigation of me through the U.S. Naval Criminal
Investigation Service because I exercised First Amendment rights pursuing Second Amendment
rights while I was aboard a U.S. Government ship anchored off the coast of Lithuania where upon
I was found to be innocent of Coast Guard allegations.

c. The Department of Transportation, on September 17, 2004, issued a Bar Notice prohibiting
me from visiting any DOT, FAA, and U.S. Coast Guard headquarters building in Washington, DC
because I posted an article on the Internet criticizing the U.S. Coast Guard while I was a civil
plaintiff with a case for mandamus relief and a tort claims case for damages in Washington, DC.

d. The Department of Transportation, on August 11, 2006, issued their second Bar Notice
because I was did not receive their 2004 Bar Notice and I attempted to visit the U.S. Coast Guard
headquarters building in Washington DC as an unrepresented civil plaintiff with a Civil RICO Act
case in accordance with the “Private Attorney General Doctrine.”

e. Earlier in 2006 I was criminally interrogated by the U.S. Marshals Service because I
exercised First Amendment rights pursuing Second Amendment rights as an unrepresented
civil plaintiff with a Civil RICO Act case in accordance with the “Private Attorney General Doctrine.”

f. All these criminal investigations of me for exercising constitutional rights invokes the
Stigmatic Harm Doctrine for the purpose of Standing whereby I achieve standing for Government
retaliation and harassment.

(2) the injury is fairly traceable to the challenged action of the defendant
Absolutely!
(3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable
decision.
Absolutely!

14
6. T HOMAS H EALY, S TIGMATIC H ARM AND S TANDING
(Dec. 23, 2005)
(discussing how law has at times reinforced stigmatization of certain groups)7
If the government violates the law in a way that stigmatizes a particular group, does a
member of that group have standing to challenge the violation in federal court? In the
well-known case of Allen v. Wright, the Supreme Court said no. According to the Court,
stigmatic harm is too abstract and generalized to support standing in most cases. To
permit standing on the basis of stigmatic harm alone, the Court stated, would “transform
the federal courts into no more than a vehicle for the vindication of the value interests
of concerned bystanders.”
This Article revisits that decision. It begins by explaining that, in spite of Allen, the Court
has never completely ruled out stigmatic harm as a basis for standing. In equal
protection, electoral districting and establishment clause cases, the Court has sometimes
invoked stigmatic harm as a basis for standing, while in its recent opinion in Lawrence
v. Texas the Court relied on stigmatic harm to reach an issue that was not necessary to
the resolution of the case. The Article then makes the normative claim that stigmatic
harm should be a sufficient injury for purposes of standing. Drawing on social science
research, it examines the nature of stigma, the role of law in creating and reinforcing
stigma, and the harms experienced by the stigmatized. This research shows that
stigmatic harm is every bit as concrete as other injuries recognized by the Court as
sufficient for standing. Finally, after considering a number of possible objections, the
Article describes various scenarios in which plaintiffs might rely on stigmatic harm as
a basis for standing.
- Excerpt -
II. AN ALTERN ATIVE VIEW OF STANDING
Before doing so, however, there is a preliminary issue I should discuss. Some scholars
have argued that the injury-in-fact requirement at the heart of the Supreme Court’s
standing doctrine is incoherent.190 According to these scholars, it makes no sense to

7
Available Online at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=895194
190
See Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND ARTICLE III, 91
Mich. L. Rev. at 186-191 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 221-224
(1988). Other scholars have argued that the injury-in-fact requirement is not supported by the text of Article
III or by historical practice. See Raoul Berger, STANDING TO SUE IN PUBLIC ACTIONS: IS IT A CONSTITUTIONAL
REQUIREMENT?, 78 Yale L.J. 816, 837-40 (1969); Evan Caminker, THE CONSTITUTIONALITY OF QUI TAM ACTIONS, 99
Yale L.J. 341, 345; Louis L. Jaffe, JUDICIAL CONTROL OF ADMINISTRATIVE ACTION, 462-67 (1965); Stephen L. Winter,
THE METAPHOR OF STANDING AND THE PROBLEM OF SELF-GOVERNANCE, 40 Stan. L. Rev. at 1418-25 (1988); Cass R.
Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND ARTICLE III, 91 Mich. L. Rev. at 177
(1992). But the Court has not accepted these arguments, and some scholars have challenged them. See Ann
Woolhandler and Caleb Nelson, Does History Defeat Standing Doctrine, 102 Mich. L. Rev. at 691 (2004)
(arguing that history does support the injury-in-fact requirement); Bradley S. Clanton, STANDING AND THE
ENGLISH PREROGATIVE WRITS: THE ORIGINAL UNDERSTANDING, 63 Brook. L. Rev. 1001 (1997) (same). Edward
Hartnett has attacked the injury-in-fact requirement from a slightly different angle. He argues that the ability
of the United States to bring criminal prosecutions to vindicate the public interest in compliance with the law
demonstrates that Article III does not require an injury in fact. See Edward Hartnett, THE STANDING OF THE
UNITED STATES: HOW CRIMINAL PROSECUTIONS SHOW THAT STANDING DOCTRINE IS LOOKING FOR ANSWERS IN ALL THE
WRONG PLACES, 97 Mich. L. Rev. 2239, 2255-58 (1999). In a recent case, the Supreme Court appeared to
respond to this argument, stating that the United States has standing to bring criminal prosecutions because

15
ask whether a plaintiff has been injured “in fact.” Every plaintiff alleges that some
interest important to him has been infringed, they argue, even if that interest is simply
a desire to ensure that the government acts lawfully.191 So a decision that a plaintiff
has not been injured “in fact” is really a decision that the interest the plaintiff asserts
is not one the courts are willing to recognize.192 Yet the only way for courts to
determine what interests they are willing to recognize is by reference to legal
norms.193 Therefore, it is wrong to claim that standing turns on a factual inquiry that
is “independent of evaluation and of legal conventions.”194 As Cass Sunstein argues,
“there can be no such law-free inquiry. It is a conceptual impossibility, indeed a form
of metaphysics.”195
The conclusion that Sunstein and other prominent scholars draw from this analysis
is that standing doctrine should not turn on whether the plaintiff has suffered an
injury in fact.196 Instead standing should turn on whether the substantive law at issue
gives the plaintiff a cause of action – in other words, whether the plaintiff has a
meritorious claim.197 If this sounds familiar, it should. This is the view of standing
that prevailed before the Court’s 1970 decision in [Association of Data Processing
Service Organizations v. Camp, 397 U.S. 150 (1970)]. Indeed, Sunstein and others
maintain that Data Processing was a mistake that has thrown standing doctrine
seriously off course.198 The Court never should have abandoned the legal interest test,
they argue, because asking whether the plaintiff has a legally enforceable right is the

violations of the law constitute an “injury to its sovereignty.” See Vermont Agency of Natural Resources v.
Untied States ex rel. Stevens, 529 U.S. 765, 771 (2000).
191
See Gene R. Nichol, Jr., INJURY AND THE DISINTEGRATION OF ARTICLE III, 74 Cal. L. Rev. 1915, 1925
(1986); Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND ARTICLE III, 91 Mich.
L. Rev. at 189 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 231 (1988).
192
See William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 231-32 (1988).
193
See Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND ARTICLE III, 91
Mich. L. Rev. at 192 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 231 (1988).
194
Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND ARTICLE III, 91 Mich.
L. Rev. at 236 (1992).
195
Id; see also Gene R. Nichol, THE IMPOSSIBILITY OF LUJAN’S PROJECT, 11 Duke Envtl. L & Pol’y F. 193,
202 (2001) (stating that “injury is not a self-defining, factual construct,” but is instead “a malleable, value-laden
concept”).
196
See Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND
ARTICLE III, 91 Mich. L. Rev. at 235 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 223
(1988).
197
See Cass R. Sunstein, W HAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND
ARTICLE III, 91 Mich. L. Rev. at 166-67 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at
223-24 (1988).
198
See Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS, “INJURIES,” AND
ARTICLE III, 91 Mich. L. Rev. at 185-86 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at
229-30 (1988).

16
only coherent way to determine whether the plaintiff’s claim can be heard in federal
court.199
If Sunstein is correct, one might think that asking whether stigmatic harm is sufficient
for standing is a misguided exercise. Under Sunstein’s view, we cannot determine
whether a particular injury is sufficient for standing in the abstract. We can only
determine whether the substantive law in a particular case confers a legally
enforceable right on the plaintiff.200 Put another way, questions about standing cannot
be answered at the wholesale level; they can be answered only at the retail level.201
It would therefore seem pointless to argue that stigmatic harm – or any other kind of
injury – is sufficient for standing in general. One must ask instead whether the
substantive law in a given case confers a right on the plaintiff not to be stigmatized.
Sunstein’s theory of standing deserves serious consideration. But dealing properly
with all questions it raises would require an extended analysis that does not seem
appropriate here.202 Instead, I will simply offer two reasons why Sunstein’s critique
of standing does not undermine the premise of this article.
First, whatever the merits of Sunstein’s view, the Supreme Court has not adopted it.
The Court sometimes looks to substantive law to inform its understanding of an
alleged injury.203 And it occasionally uses language reminiscent of the legal interest
test.204 But the Court still repeats the injury-in-fact requirement like a mantra at the
beginning of every standing discussion205 and has relied on it to deny standing even

199
See Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN ? OF CITIZEN SUITS, “INJURIES,” AND
ARTICLE III, 91 Mich. L. Rev. at 188-89 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at
229-31 (1988).
200
See Cass R. Sunstein, WHAT’S STANDING AFTER LUJAN? OF CITIZEN SUITS , “INJURIES,” AND
ARTICLE III, 91 Mich. L. Rev. at 189-91 (1992); William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at
231 (1988).
201
See Adam B. Cox, CITIZENSHIP, STANDING, AND IMMIGRATION LAW, 92 Cal. L. Rev. 373, 395 (2004)
(arguing that the legal conventions that inform determinations of injury “are not trans-substantive; they depend
on the specific legal claims at stake”); Harold J. Krent, LAIDLAW: REDRESSING THE LAW OF REDRESSABILITY, 12 Duke
Envtl. L. & Pol'y F. 85, 109 (2001).
202
For now, I will limit myself to the following observation. If standing is folded into the merits of the
case, it will cease to operate as a limit on what cases federal courts can hear. By the time a court decides
whether the plaintiff has standing, it will have already heard the very case that standing doctrine is designed
to determine whether it can hear. This might be an acceptable result if one thinks Article III’s case or
controversy language does not limit what cases courts can hear. But Sunstein does not make this argument.
He argues that the case or controversy limits courts to hearing cases in which the plaintiff has a cause of action
without explaining how this is any limit at all.
203
The electoral districting and establishment clause cases are good examples. See supra Part IC.
204
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (describing “injury in fact” as “an
invasion of a legally protected interest”); Warth v. Seldin, 422 U.S. 490 (1975) (stating that “the actual or
threatened injury required by Article III may exist solely by virtue of ‘statutes creating legal rights – the
invasion of which creates standing’”).
205
See e.g., Kowalski v. Tesmer, 125 S. Ct. 564, 567 (2004); Elk Grove Unified Sch. Dist. v. Newdow, 542
U.S. 1, 16-17 (2004); Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771
(2000).

17
where the substantive law clearly provided the plaintiff with a cause of action.206
Moreover, the Court has given no indication that it plans to abandon the injury-in-fact
requirement anytime soon.207 This does not mean one must embrace the Court’s
standing framework. Critiques are certainly worthwhile. But until those critiques are
accepted, it also seems worthwhile to argue for change within the existing framework.
Second, even under Sunstein’s approach, there would still be good reason to examine
the nature of stigmatic harm. As Sunstein acknowledges, many statutes impose legal
obligations on government agencies without clearly indicating who has a right to
enforce those obligations.208 The same is true of most constitutional provisions.209 The
14th amendment does not specify who can enforce the equal protection clause, nor
does the Accounts Clause210 identify who is entitled to enforce its provisions. Thus,
when determining whether a plaintiff had standing to enforce a particular legal
obligation, courts would have to consider the purpose behind that obligation and
whether it was intended to protect the interest asserted by the plaintiff.211
This task would involve a fair amount of subjectivity, and courts inevitably would
rely on judgments about what interests are worth protecting. For instance, courts
would likely be sympathetic to claims that a statute was designed to protect economic
interests because courts are familiar with such interests and are accustomed to
vindicating them.212 But courts would be skeptical of claims that a statute was
designed to protect an interest in, say, sexual fulfillment because that is not an
interest courts have traditionally been concerned with.213 As Joseph Vining explained
in his influential book Legal Identity, courts will not exercise their power unless they

206
See Raines v. Byrd, 521 U.S. 811, 815, 818, 820 n.3 (1997) (holding that members of Congress lacked
standing to challenge Line Item Veto Act even though the act expressly gave them authority to sue); Lujan, 504
U.S. at 571-78 (holding that plaintiffs failed the injury-in-fact requirement and therefore lacked standing to
challenge an administrative interpretation of the Endangered Species Act even though the act explicitly
authorized “any person” to commence a civil suit to enjoin violation of the act). The Court limited the impact
of Lujan in Federal Election Comm. v. Akins, 524 U.S. 11, 21 (1998), but it did not question the injury-in-fact
requirement.
207
See Fallon et al., Hart & Wechsler’s THE FEDERAL COURTS AND THE FEDERAL SYSTEM at 132 (5th ed. 2003)
(stating that “recent cases have not questioned the principle that Article III requires the plaintiff to show injury
from the conduct under challenge”). [hereinafter Hart & Wechsler].
208
See Cass R. Sunstein, STANDING INJURIES, 1993 Sup. Ct. Rev. 37, 53 (1993); William A. Fletcher, THE
STRUCTURE OF STANDING, 98 Yale L.J. at 265 (1988).
209
See William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 265 (1988).
210
See U.S. Const. art. I, § 9, cl. 7 (providing that “a regular Statement and Account of the Receipts and
Expenditures of all public Money shall be published from time to time”).
211
See William A. Fletcher, THE STRUCTURE OF STANDING, 98 Yale L.J. at 260-65, 271-72 (1988).
212
See Sunstein.
213
See Roe v. Wade, 410 U.S. 113, 128 (1973) (denying standing for married couple who challenged
abortion ban on ground that it harmed their “marital happiness”); see also Nichol, supra note 195, at 202
(noting that the Court would be unlikely to recognize a plaintiff’s interest in maintaining segregation or
remaining in the country undetected as an illegal alien).

18
“see” harm.214 And they will not “see” harm unless the interest asserted by the
plaintiff has been recognized as a public value.215
What this means is that even if standing turns on a retail determination there is still
value in discussing stigmatic harm at the wholesale level. Shedding light on the
devastating consequences of social stigma can help foster a public commitment to
eliminate stigma. And once elimination of stigma becomes a public value, courts will
be more willing to see protection of that value as an implicit purpose of various legal
provisions. As precedent, consider the history of environmentalism. A century ago,
no court would have taken seriously the argument that a plaintiff had standing to
challenge government actions that harmed the environment.216 As a result of the
environmental movement, however, courts came to see protection of the natural
world as a public value that warranted their intrusion into the democratic process.217
The courts’ appreciation of stigmatic harm could evolve in a similar way. In fact, one
might argue that it already has. In Allen, the Court was quick to reject stigmatic harm
as a basis for standing. But in the years since Allen, the Court has appeared
increasingly sensitive to stigmatic harm, citing it as a reason for striking down laws
based on racial and gender stereotypes.218 Perhaps we should not be surprised,
therefore, that Lawrence relied on stigmatic harm to justify a broad exercise of judicial
power. A court that can “see” stigmatic harm is more likely to do something about it.
III. THE NATURE OF STIGM ATIC HARM
But stigmatic harm is still only partly visible. In spite of the Court’s growing
sensitivity to stigmatic harm, it has never fully examined the nature of stigma or what
it means to be stigmatized.219 This is a serious oversight. The word
stigma is sometimes used casually to refer to any type of negative association.220 But
social scientists have long had a more sophisticated understanding of stigma. In this
Part, I draw on that understanding to explore the nature of stigma and the experience
of those who possess a stigmatizing trait. I also explain that stigma is a social
construct and that the law, by shaping social norms, contributes to the cultural beliefs
that generate stigma. Finally, I argue that, contrary to the Court’s conclusion in Allen,
those who are stigmatized by government action are not simply concerned bystanders
attempting to vindicate value interests. Instead, they are victims who suffer injuries

214
See Joseph Vining, LEGAL IDENTITY: THE COMING OF AGE OF PUBLIC LAW at 61 (Yale Univ. Press 1978);
215
See Vining at 61 (“What prevents the court from seeing harm is the absence, to the court’s eyes, of
a ‘you’ to be harmed; and what prevents the court from seeing a ‘you,’ a person, is the absence of any public
values to define a class for which the individual voice might speak.”); see also Nichol, supra note 41, at 326
(stating that “judges are far more likely to embrace jurisdiction if the plaintiff seems to be saying something
that the judge understands, somehow, as his own”).
216
See Nichol, supra note 191, at 1933.
217
See id. at 1933-34.
218
See Shaw v. Reno, (509 U.S. 630 (1993); Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982).
219
See R.A. Lenhardt, UNDERSTANDING THE MARK: RACE, STIGMA AND EQUALITY IN CONTEXT, 79 N.Y.U. L.
Rev. 803, 812, 815-16 (2004).
220
See e.g., Viv Bernstein, VICTORY AT DAYTONA HAS STIGMA ATTACHED, N.Y. Times, Feb. 20, 2006 at
D1.

19
every bit as concrete as the economic, aesthetic, and environmental injuries that the
Court has already recognized as sufficient for standing. For that reason, I conclude,
stigmatic harm should qualify as an injury in fact for purposes of Article III standing.
A. A Mark of Disgrace
In ancient Greece, a stigma was “a sign or mark, cut or burned into the body,
that designated the bearer as a person who was morally defective and to be avoided
– a slave, a criminal, or a traitor, for example.”221 The term continued to carry this
physical connotation through the seventeenth century, when the branding of
criminals was common.222 Today, the word stigma still refers to a mark of disgrace,
but not one physically cut or burned onto a person.223 Instead, stigma is a mark of
disgrace that attaches to a characteristic or trait society views as deeply
discrediting.224 This mark spoils the social identify of its bearer and reduces him “in
our minds from a whole and usual person to a tainted, discounted one.”225 A
stigmatized person is thus “disfavored or dishonored” in the eyes of others, “a kind
of social outcast.”226 Indeed, “by definition, we believe the person with a stigma is not
quite human.”227
In his seminal work on the subject, Erving Goffman identified three types of
stigmatizing traits.228 First, there are “abominations of the body.” These are physical
defects, such as blindness, deafness, paraplegia, and obesity. Second are “blemishes
of individual character.” These are traits that are viewed as reflecting a flawed
character, such as drug addiction, mental retardation, mental illness, homelessness,
and homosexuality. Finally, there are “tribal stigmas” – characteristics transmitted
through lineage that contaminate all members of a family. Examples of tribal stigmas
include membership in devalued racial, ethnic or religious groups.

221
See Jennifer Crocker et al., Social Stigma, in THE HANDBOOK OF SOCIAL PSYCHOLOGY 504 (4th ed. 1998).
222
See Oxford English Dictionary at 691 (noting that use of the term “stigmatize,” which means to mark
with a ‘stigma’ or brand, was “very frequent in the 17th c, with reference to the then common punishment of
branding”).
223
See Erving Goffman, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY, at 1-2 (1986).
224
See id. at 2-3.
225
Erving Goffman, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY, at 3, 19 (1986).
226
Lenhardt, supra note 219, at 809; Regina Austin, ‘THE SHAME OF IT ALL’: STIGMA AND THE POLITICAL
DISENFRANCHISEMENT OF FORMERLY CONVICTED AND INCARCERATED PERSONS, 36 Colum. Hum. Rts. L. Rev. 173, 174
(2004) (“The stigmatized are outcasts who are to be avoided and isolated. They are dehumanized and
considered defective or unwholesome.”).
227
Erving Goffman, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY, at 5 (1986); see also
Crocker, supra note 221, at 504 (stating that “the person who is stigmatized is a person whose social identity,
or membership in some social category, calls into question his or her full humanity”); Stephen C. Ainley and
Faye Crosby, STIGMA JUSTICE, AND THE DILEMMA OF DIFFERENCE, IN THE DILEMMA OF DIFFERENCE: A MULTIDISCIPLINARY
VIEW OF STIGMA 17 (1986) (“Stigma involves situations where one individual or group treats another individual
or group as less than fully human.”); John F. Dovido et al., STIGMA: INTRODUCTION AND OVERVIEW, IN THE SOCIAL
PSYCHOLOGY OF STIGMA 1 (2000) (“Stigmatization, at its essence, is a challenge to one’s humanity.”).
228
See Erving Goffman, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY, at 4 (1986).

20
Social scientists have also categorized stigmatizing traits in other ways. For instance,
some stigmatizing traits, such as physical defects, are immediately visible, while
others, such as mental illness, are only apparent upon closer examination.229
Stigmatizing traits also differ in the degree to which they are controllable.230 Those
who are mentally retarded or paralyzed can do little to change their situation, but
those who are obese, addicted to drugs, or homeless have at least some ability to
improve their circumstances. Related, but not identical, to controllability is the extent
to which the stigmatized person is responsible for the stigmatizing trait.231 A person
who is paraplegic has little ability to regain the use of his legs, but if he was injured
as a result of driving drunk, he might be viewed as responsible for his paralysis. By
contrast, a person who is obese has some ability to lose weight, but his tendency
toward obesity may be due to a genetic condition.
Although we can categorize stigmatizing traits, however, it is impossible to compile
a list of all traits and characteristics that are stigmatizing. That is because whether a
particular trait is stigmatizing depends upon the meaning that trait has in a particular
social context.232 Blacks may be stigmatized in the United States, but there is nothing
stigmatizing about being black in certain parts of the world. Homosexuality and
obesity also vary in the extent to which they are stigmatizing.233 In some cultures,
during some periods of history, being overweight was desirable,234 while sex between
men was considered a normal part of male development.235 But in the modern United
States, both obesity and homosexuality are generally considered to be stigmatizing.236
What this illustrates is that stigma is a social construct.237 There is nothing inherently
stigmatizing about any particular trait or attribute.238 Instead, attributes become

229
See Crocker, supra note 221, at 507.
230
See id.
231
See id.
232
See Stephen C. Ainley et. Al., Stigma Reconsidered, in THE DILEMMA OF DIFFERENCE:
A MULTIDISCIPLINARY VIEW OF STIGMA 3-4 (1986) (noting that “what is stigmatized is bound by culture
and epoch”).
233
See Charles Stangor and Christian Crandall, Threat and the Social Construction of Stigma, in THE
SOCIAL PSYCHOLOGY OF STIGMA, 65 (2000).
234
See Marc. C. Stafford and Richard R. Scott, Stigma, Deviance and Social Control: Some Conceptual
Issues, in THE DILEMMA OF DIFFERENCE: A MULTIDISCIPLINARY APPROACH TO STIGMA, 80 (1986) (noting that
“’fattening houses’ were used formerly in certain parts of Africa to produce beautiful women”).
235
See Stangor and Crandall, supra note 233, at 66.
236
See Stafford and Scott, supra note 234, at 77, 80; Stangor and Crandall, supra note 233, at 65-66.
237
See Ainley, supra note 232, at 4; Stafford, supra note 234, at 80 (explaining that stigma “is a relative
phenomenon, meaning that what is a stigma in one social unit (family, company, nation) may not be so in
others”); see also Gaylene Becker and Regina Arnold, Stigma as a Social and Cultural Construct in The
Dilemma of Difference: A Multidisciplinary View of Stigma, 55 (1986) (“Stigma is a concept imbued with
cultural meaning. It is not a property of the individual. . . .”).
238
See Ainley, supra note 232, at 4.

21
stigmatizing as a result of cultural beliefs that develop through a process of social
learning.239 This process generates a collective understanding about what traits are
desirable and what traits are discrediting. As a result, “broad views about what
constitutes stigma are generally shared by members of a society.”240
Because stigma is a result of social understandings and cultural beliefs, it is difficult
to pinpoint exactly how particular traits come to be stigmatized. Many of our cultural
beliefs are passed down through a process of socialization that is so pervasive as to
be almost invisible.241 But it is possible to identity some of the forces that contribute
to stigma. For instance, sociologists have observed that “beliefs about minorities and
other markable groups are transmitted by parents, the media, and other socialization
agents,” such as churches and schools.242
Law also plays a role in the social construction of stigma. As legal scholars have
increasingly come to appreciate, law not only reflects social norms, but also “helps
shape social power and norms by prefiguring preferences, prejudices and interests.”243
So it is with stigma.244 When a social understanding develops that possession of a
particular trait is deeply discrediting, law often crystallizes and reinforces that
understanding. Consider the history of Jim Crow. After the Civil War, former slaves
attempted to take their place in society as equal citizens. But Jim Crow laws
reinforced the existing prejudice and placed a stamp of inferiority on blacks, as Justice
Harlan recognized in his dissent in Plessy v. Ferguson245 and as the full court
recognized in Strauder v. West Virginia.246 It was not until the Court overturned Plessy
in Brown v. Board of Education that this legal stamp of inferiority was removed. And

239
See Larry G. Martin, Stigma: A Social Learning Perspective, in THE DILEMMA OF DIFFERENCE:
A MULTIDISCIPLINARY VIEW OF STIGMA 147-149 (1986) (“Social learning is a powerful mechanism for both the
acquisition and maintenance of behaviors that stigmatize others.”).
240
Becker and Arnold, supra note 237, at 40; see also Crocker, supra note 221, at 511.
241
See Lerita M. Coleman, Stigma: An Enigma Demystified in THE DILEMMA OF DIFFERENCE:
A MULTIDISCIPLINARY VIEW OF STIGMA, 218 (1986) (stating that “the predisposition to stigmatize is passed from
one generation to the next through social learning or socialization”).
242
See Edward E. Jones et al., SOCIAL STIGMA : THE PSYCHOLOGY OF MARKED RELATIONSHIPS 160-61
(explaining that according to the sociocultural view of stigma, “beliefs about minorities and other markable
groups are transmitted by parents, the media, and other socialization agents”).
243
See William N. Eskridge Jr., NO PROMO HOMO: THE SEDIMENTATION OF ANTIGAY DISCOURSE AND
THE CHANNELING EFFECT OF JUDICIAL REVIEW, 75 N.Y.U. L. Rev. 1327, 1327-31, 1333 (2000); Scott Burris,
DISEASE STIGMA IN U.S. PUBLIC HEALTH LAW, 30 J.L. Med. & Ethics 179, 183 (2002) (explaining how law influences
social perceptions and norms).
244
See Lee Jussim et al., Stigma and Self-Fulfilling Prophecies, in THE SOCIAL PSYCHOLOGY OF STIGMA 404
(2000) (noting that “major institutions (government, business, churches, etc) often do indeed have the power
to ‘institutionalize’ stigmas”).
245
163 U.S. 537, 562 (1896) (Harlan, J., dissenting) (arguing that a law requiring whites and blacks to
ride in separate railroad cars places a “badge of servitude” upon blacks”).
246
100 U.S. 303 (1880) (stating that the inability of blacks to serve on a jury “is practically a brand on
them, affixed by the law, an assertion of their inferiority, and an impediment to securing equal protection to
individuals of the race”).

22
even then, anti-miscegenation laws and the refusal of officials to enforce
anti-discrimination laws continued to brand African Americans as inferior.247
Law contributes to stigma in several ways. First, it signals what behavior is
appropriate toward certain groups. Thus, when law treats members of a group as
second-class citizens, it invites others to discriminate against that group as well. The
Court has recognized as much in several cases. In Strauder, for instance, the Court
noted that excluding blacks from juries was a “stimulant” to racial prejudice.248 And
in Lawrence, the Court explained that the Texas sodomy law “was an invitation to
discrimination against homosexuals in both the public and private spheres.”249
Second, when law requires or permits segregation of stigmatized groups, it makes it
more difficult for those groups to overcome the stereotypes that help to generate their
stigma. As William Eskridge has pointed out, “stereotypes weaken as people observe
non-stereotypical behavior in minorities they come to know, and prejudices weaken
as people cooperate with minorities in win-win situations.”250 But if law supports the
segregation of the stigmatized, they will be unable to eliminate those stereotypes. “By
separating blacks from whites and by forcing gay people into the closets, the law
makes it impossible for either minority to refute stereotypes associated with it or to
soften prejudices harbored against its members.”251
But law does not simply reinforce social meanings that already exist. It also constructs
categories that can then be used as a basis for stigmatization. During most of
American history, for instance, homosexuality did not exist as a separate, semantic
category. Although it was illegal to engage in sodomy, there was no category of
persons known as homosexuals. That term was first used by doctors in the early 20th
century, but only became culturally relevant as a result of emerging legal
prohibitions. Thus, Eskridge explains, “law’s stigma helped create homosexuality as
a totalizing and naturalized identity trait.”252

247
See Lenhardt, supra note 219, at 857; Lawrence Lessig, THE REGULATION OF SOCIAL MEANING, 62 U.
Chi. L. Rev. 943, 991 (1995) (“Antimiscegenation laws, then, can be seen as a tool for preserving a certain
social meaning associated with being white. They preserve this meaning by protecting and perpetuating the
perceived ‘purity’ of the white race. And by maintaining that purity, the laws helped whites preserve a social
meaning difference from blacks.”).
248
See 100 U.S. 308.
249
539 U.S. 558, 575 (2003). Indeed, according to Justice O’Connor’s concurrence, Texas stipulated
in an earlier challenge that its sodomy law “‘legally sanctions discrimination against [homosexuals] in a variety
of ways unrelated to the criminal law,’ including in the areas of employment, family issues, and housing”). See
id. at 582.
250
See Eskridge, supra note 243, at 1410.
251
See Eskridge, supra note 243, at 1333.
252
See Eskridge, supra note 243, at 1334.

23
Of course, law can also be used to combat stigma.253 For instance, the Americans with
Disabilities Act has helped to reduce the stigma of having a physical disability,254 as
have “mainstreaming laws” that require schools to teach disabled students alongside
students who are not disabled.255 Laws prohibiting discrimination on the basis of
sexual orientation have also contributed to the improved social standing of gays and
lesbians.256
But these examples do not undermine the claim that law shapes and reinforces social
norms. Instead, they support that claim by demonstrating that when law removes its
stamp of inferiority from stigmatized groups other actors in society are likely to
follow. Public officials recognize this, which is why they often fight to maintain laws
that stigmatize minority groups. When the District of Columbia proposed to repeal its
sodomy laws, which had largely gone unenforced, members of Congress objected that
the move would “decriminalize and thus legitimize sodomy.”257 Likewise,
conservatives in Massachusetts opposed that state’s gay civil rights bill on the ground
that it would be viewed as a step toward legal approval of the homosexual lifestyle.258
If law did not play an important role in shaping social norms and beliefs, such
arguments would not be heard.
B. The Experience of the Stigmatized
The discussion so far has focused on the nature of stigma and the process through
which it develops. But what about those who are stigmatized? What is life like
for them and how do they experience being stigmatized? The answer to this question
depends somewhat on the type of stigmatizing trait one possesses. Those who are
thought to be responsible for their situation are often more reviled than those who are
thought to be blameless. And those whose stigmatizing trait is visible may encounter
more overt hostility than those whose trait is concealable.259 But in general, social
scientists have identified several harms associated with being stigmatized.
First, because the stigmatized are marked as less than fully human, they face the
“ever-present possibility” that they will be the targets of prejudice and
discrimination.260 In applying for jobs, looking for housing, dating, and a host of other
social activities, the stigmatized person is conscious that he could be rejected or

253
See Martin, supra note 239, at 146.
254
See Michelle R. Hebl et al, Awkward Moments in Interactions Between Nonstigmatized and
Stigmatized Individuals, in THE SOCIAL PSYCHOLOGY OF STIGMA 298 (2000).
255
See Frederick X. Gibbons, Stigma and Interpersonal Relationships, in THE DILEMMA OF DIFFERENCE:
A MULTIDISCIPLINARY VIEW OF STIGMA 128 (1986).
256
See Hebl, supra note 254, at 298; Eskridge, supra note 243, at 1338.
257
See Eskridge, supra note 243, at 1344.
258
See Eskridge, supra note 243, at 1350.
259
See Erving Goffman, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY, at 48 (1986);
260
See Crocker, supra note 221, at 516.

24
looked down upon because of his stigma.261 This threat of discrimination is harmful
in itself, producing anxiety and a feeling that one must “be constantly on guard.”262
But even more harmful is the actual discrimination experienced by the stigmatized.
Research shows that “members of stigmatized groups are more likely to experience
derision, exclusion, discrimination, and violence than are those who are not
stigmatized.”263 This discrimination makes it harder for the stigmatized to obtain
employment, housing, education, and to develop lasting relationships with others.264
In the words of Goffman, “we exercise varieties of discrimination [against the
stigmatized], through which we effectively, if often unthinkingly, reduce his life
chances.”265
Being stigmatized also poses threats to one’s self-esteem.266 Research has shown that
most stigmatized individuals are aware that society views them as devalued and
tainted.267 And social scientists have long maintained that people construct their
self-identities, at least in part, on the basis of how others react to them.268 Thus, the
knowledge that others view them as less than fully human can undermine the
self-esteem of the stigmatized. They may even come to conclude that society is right
– that they are in fact “less worthwhile, deserving, or valuable” than others.269 As the
social psychologist Gordon Allport once asked rhetorically, “what would happen to

261
See id. at 516-17 (noting that “the stigmatized are never entirely free of the possibility of
encountering prejudice in others”).
262
See id. at 517; see also Carol T. Miller and Brenda Major, Coping With Stigma and Prejudice, in The
Social Psychology of Stigma 244-45 (2000); Hebl, supra note 254, at 288-89 (2000).
263
See Miller and Major, supra note 262, at 244.
264
See Crocker, supra note 221, at 516 (prejudice and discrimination against the stigmatized “create
barriers to obtaining resources such as employment, housing, and so on, and failure to obtain these resources
may threaten or compromise the physical well-being and comfort of stigmatized individuals”); Dovido, supra
note 227, at 5 (“even when stigma and social rejection do not jeopardize physical well-being directly, they can
do so indirectly – for example, through limiting access to health care, education, employment, and housing,
as well as through increasing stress and creating anxiety”); Hebl, supra note 254, at 388 (2000) (describing
research showing that those who are obese “are less likely to attend elite colleges, less likely to get hired, and
more likely to have a hard time finding dates” than those who are not obese); Miller and Major, supra note 262,
at 246 (noting that “African Americans have more physical health problems than European Americans,
including shorter life expectancies, higher heart disease, and higher infant mortality”).
265
See Erving Goffman, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY, at 5 (1986);
266
See Crocker, supra note 221, at 517.
267
Crocker, supra note 221, at 517; See Dovido, supra note 227, at 16; Gibbons, supra note 255, at 132-
33 (studies show that the mentally retarded and the blind are both aware of the negative attitudes others have
of them).
268
See Jennifer Crocker and Diane M. Quinn, Social Stigma and the Self: Meanings, Situations, and Self-
esteem in THE SOCIAL PSYCHOLOGY OF STIGMA 155 (2000); Delia Cioffi, The Looking-Glass Self Revisited: Behavior
Choice and Self-Perception in the Social Token, in the SOCIAL PSYCHOLOGY OF STIGMA 185 (2000).
269
See Crocker, supra note 221, at 518.

25
your personality if you heard it said over and over again that you were lazy . . . and
had inferior blood?”270
Early research supported the claim that being stigmatized lowers self-esteem.
In Kenneth Clark’s famous study, black children given a choice between playing with
black dolls and white dolls overwhelmingly chose the white dolls.271 But recently,
researchers have suggested that the relationship between stigma and self-esteem is
more complicated. Citing survey results showing little difference in self-esteem
between stigmatized and non-stigmatized groups (such as between blacks and whites,
those who are obese and those who are not), some social scientists argue that being
stigmatized does not inevitably lead to lower self-esteem.272 Instead, they maintain
that the effect of stigma on self-esteem varies depending upon the situation and the
values that are salient to that situation.273
In one study, for instance, researchers tested the self-esteem of overweight and normal
weight women after giving them a political speech to read.274 Some of the women
read a speech emphasizing the values of inclusion and equality, while others read a
speech emphasizing the values of individualism and the Protestant work ethic. In the
group that read the speech emphasizing inclusion and equality, there was no
difference in self-esteem between overweight and normal weight women.275 But in
the group that read the speech emphasizing individualism and the Protestant work
ethic, overweight women had lower self-esteem than normal weight women.276
A similar dynamic was observed in a study in which overweight and normal weight
women were told they had been rejected for a date by a male evaluator after he had
read profiles that included their weight.277 Some of the women had recently read an
article indicating that weight is controllable, while others had read an article
indicating the opposite. Researchers then administered a test of psychological well
being and found that the self-esteem of overweight women who had read that weight
is controllable was lower than the self-esteem of overweight women who had read
that weight is uncontrollable.278 Whether the women felt bad about their rejection, the
researchers concluded, turned in part on the understandings and beliefs about weight
that they brought to the situation.279

270
See Gordon W. Allport, THE NATURE OF PREJUDICE at 142 (1954).
271
See Crocker and Quinn, supra note 268, at 155.
272
See id. at 157; Crocker, supra note 221, at 531.
273
See id. at 157-58, 175.
274
See id. at 169.
275
See id. at 170-71.
276
See id. at 171.
277
See id. at 174.
278
See id.
279
See id. at 175.

26
Sociologists have also discovered that members of stigmatized groups often find ways
to protect their self-esteem. In one study, white evaluators interviewed black students
sitting on the other side of a glass partition.280 Some of the interviews were conducted
with the blinds drawn, while others were conducted with the blinds open.
Researchers found that when the black students received negative evaluations from
white evaluators who did not know their race, their self-esteem suffered.281 But when
they received negative evaluations from evaluators who were aware of their race, their
self-esteem stayed the same.282 The researchers concluded that in the latter situation
the students attributed the negative evaluations to prejudice on the part of the white
evaluators.283 In this way, they were able to protect their self-esteem from erosion.
The lesson of these studies, some sociologists argue, is that self-esteem is not a fixed,
stable trait. Instead, “self-esteem is constructed at the moment, in the situation, as a
function of the meanings that individuals bring with them to the situation, and
features of the situation that make those meanings relevant or irrelevant.”284 For this
reason, it may be incorrect to assume that being stigmatized necessarily leads to lower
self-esteem.285 But even if this is true, members of stigmatized groups certainly face
greater threats to their self-esteem as a result of being stigmatized than they would
otherwise. When white students were interviewed in the study above, for instance,
their self-esteem did not vary depending upon whether the blinds were up or down.286
Knowing that others were aware of their race did not affect how they felt about
themselves. For the black students, however, that knowledge played a key role in
shaping their self-esteem. Thus, although being stigmatized may not lower one’s
self-esteem at all times and in all places, those who are stigmatized must deal with
threats to their self-esteem not faced by the non-stigmatized.287
Finally, the stigmatized are usually the targets of negative stereotypes, which can lead
to self-fulfilling prophecies.288 One example is what social scientists have labeled

280
See id. at 164.
281
See id.
282
See id.
283
See id. at 164-65.
284
See id. at 153.
285
See Crocker, supra note 221, at 518.
286
See Crocker and Quinn, supra note 268, at 164.
287
See Miller and Major, supra note 262, at 244.
288
See Jussim, supra note 244, at 375-78, 391-92. Although stereotype and stigma are similar, they are
not identical. For one thing, not all stereotypes are stigmatizing. We may stereotype librarians as quiet and
bookish, but we do not generally stigmatize them. See id. at 376. In addition, although most stigmatized groups
are the targets of negative stereotypes, not all stigmas are associated with a stereotype. For instance, we may
stigmatize those with physical disabilities, but we do not usually stereotype them. See Monica Biernat and
John F. Dovido, Stigma and Stereotypes, in THE SOCIAL PSYCHOLOGY OF STIGMA 90 (2000).

27
“stereotype threat.”289 In lay terms, stereotype threat exists when the fear of
conforming to stereotype creates self-doubt that interferes with one’s performance.
The best-known study of this phenomenon involved a test given to two groups that
included both white and black students. 2 90 The first group was told the test was
designed to measure intellectual ability, while the second group was told it was a
non-diagnostic exercise. Researchers hypothesized that the performance of the black
students would be affected by stereotypes about their intellectual capacities. The
results proved them right. Black students who thought the test measured intellectual
ability (those in group 1) did worse than black students who thought it was a mere
exercise (those in group 2).291 By contrast, there was no difference between the scores
of white students in the first and second groups. The conclusion: black students had
internalized the negative stereotypes about their intellectual ability, and those
stereotypes fueled self-doubt that undermined their performance.292 Subsequent
studies have shown that other groups are also vulnerable to stereotype threat.293
Stereotype threat involves the internalization of negative stereotypes by the
stigmatized. But self-fulfilling prophecies also occur when a negative stereotype
influences the way we treat a person, and the person reacts to this treatment
with behavior that confirms the stereotype.294 To test this phenomenon, researchers
conducted a two-part experiment. In the first part, they watched a series of interviews
and observed that white interviewers treated black candidates more coldly than white
candidates.295 In the second part, they trained another group of interviewers to treat
white candidates in the cold manner in which the black candidates had initially been
treated. When white candidates were then interviewed in this manner, they
performed more poorly (as measured by independent judges) than white candidates
who were treated warmly.296 The lesson, according to social scientists, is that the
stereotypes we bring to interactions with the stigmatized are often self-fulfilling,
thereby helping to perpetuate both the stereotype and the stigma.297
The harms associated with stigma are not insurmountable. Many stigmatized
individuals develop ways of coping with their situation.298 As noted above, they may
attribute negative outcomes to the prejudice of others rather than allow those

289
See C.M. Steele & J. Aronson, STEREOTYPE VULNERABILITY AND THE INTELLECTUAL TEST PERFORMANCE OF
AFRICAN AMERICANS, 69 Journal of Personality and Social Psychology 797-811 (1995).
290
See id.
291
See id.
292
See id.
293
See Jussim, supra note 244, at 408.
294
See Jussim, supra note 244, at 378.
295
See id. at 380.
296
See id.
297
See id. at 380-84.
298
See Crocker, supra note 221, at 543; Miller and Major, supra note 262, at 249.

28
outcomes to affect their self-esteem. They may also try to compensate for, or even
eliminate, their stigmatizing trait by changing their behavior or working harder.299 In
some circumstances, they may simply avoid situations that would expose them to
ridicule or prejudice.300 Overweight people often avoid the beach,301 and people with
physical defects frequently stay at home.302 But although these strategies can lessen
the harms associated with stigma, they also carry costs.303 Reflexively blaming
negative outcomes on prejudice can prevent one from understanding other reasons
behind those outcomes.304 Attempting to change behavior can backfire if those efforts
fail, causing one to feel even worse than before.305 And avoiding situations that might
expose one to ridicule or prejudice limits one’s access to important resources and
“severely circumscribes one’s freedoms.”306
In short, being stigmatized is a serious injury with harmful consequences. Not
all stigmatized people experience these harms in the same way,307 and many
individuals are able to overcome these harms and lead happy, fulfilling lives.308 But
for the most part, “[p]eople who are stigmatized tend to experience more negative
outcomes in their work lives and in their personal lives than do the
nonstigmatized.”309
C. Stigmatic Harm as a Concrete Injury
Still, the question remains whether stigmatic harm should be sufficient for purposes
of standing. In holding that it is not, the Court in Allen suggested that individuals who
are stigmatized by government action do not suffer a concrete injury, at least when
they are not personally denied equal treatment. The Court also compared plaintiffs
alleging stigmatic harm to concerned bystanders attempting to vindicate value

299
See Miller and Major, supra note 262, at 253.
300
See id. at 255.
301
See id.
302
See id.; Erving Goffman, STIGMA: NOTES ON THE MANAGEMENT OF SPOILED IDENTITY, at 12 (1986)
(describing woman who never left home after becoming disfigured).
303
See id.
304
See Coleman, supra note 241, at 224 (noting that “stigmatized individuals sometimes blame the root
of their difficulties on the stigmatic trait, rather than the root of their personal difficulties”).
305
See Miller and Major, supra note 262, at 263.
306
Id. at 264.
307
See Gibbons, supra note 255, at 123 (noting that most theorists “agree there is no single common
experience associated with the process of stigmatization”); Dovido, supra note 227, at 3 (“the experience of
being devalued is [] highly dependent on social context”).
308
See Dovido, supra note 227, at 2 (stating “many people with stigmatized attributes have high
self-esteem, perform at high levels, are happy, and appear to be quite resilient, despite their negative
experiences”).
309
Crocker, supra note 221, at 521.

29
interests. The Court did not elaborate on these claims, however, and a closer analysis
strongly suggests that they are not true.
First, is stigmatic harm concrete? The difficulty in answering this question is that the
Court has never explained what it means for an injury to be concrete;310 it has simply
labeled some injuries concrete and others abstract, as if the distinction was obvious.
But the distinction is not obvious, and if we are to determine whether stigmatic harm
is sufficiently concrete for standing we need to understand what the Court means
when it uses that term.
One possibility is that the Court uses the term concrete to refer to something that is
real, not imaginary. A concrete harm would thus be one “existing in reality or in real
experience,”311 as opposed to one existing only in the imagination of the plaintiff. But
if that is the definition of concrete, stigmatic harm would certainly seem to qualify.
Social scientists have amply documented the harms suffered by the stigmatized, from
discrimination and prejudice to threats to self-esteem to self-fulfilling prophecies.
Even the Court does not appear to deny that stigmatic harm is real. Before rejecting
stigmatic harm as a basis for standing in Allen, the Court acknowledged that it is “one
of the most serious consequences of discriminatory government action.” The Court
has also relied on the existence of stigmatic harm to find equal protection violations
in cases such as Brown v. Board of Education312 and Strauder v. West Virginia.313 And
in Lawrence v. Texas, Justice Kennedy wrote that the stigma imposed by the Texas
sodomy law “is not trivial,” while Justice O’Connor explained that it “subjects
homosexuals to a lifelong penalty and stigma.”314 Thus, Allen cannot rest on a
conclusion that stigmatic harm is merely imaginary.
Another possibility is that “concrete” refers to something that can be seen or
touched.315 This definition might exclude stigmatic harm, since one cannot actually
see or touch the disgrace of stigma; one can see only the evidence of stigma in the
way people react to the stigmatized and in the way the stigmatized react to others. But
this definition would also exclude many other types of harm the Court has recognized
for standing. One cannot see or touch the harm experienced by someone who loses
the ability to enjoy a forest or to see a species of animal. Nor can one see or touch the
representational harms in Shaw v. Reno,316 the loss of opportunity in Northeastern

310
See Allen v. Wright, 468 U.S. 737, 750 (1984) (stating that “the constitutional component of standing
doctrine incorporates concepts concededly not susceptible of precise definition”); Chemerinsky, supra note
51, at 68 (explaining that “no formula exists for determining what types of injuries are adequate to allow a
plaintiff to sue in federal court”).
311
See The American Heritage College Dictionary at 289.
312
347 U.S. 483 (1954).
313
100 U.S. 303 (1880).
314
539 U.S. at 575 & 584.
315
See The American Heritage College Dictionary at 289 (defining “concrete” as “perceptible by the
senses”).
316
509 U.S. 630 (1993).

30
Florida Contractors317 and Bakke,318 or the increased competition in Data Processing.319
In fact, other than physical injury and possibly loss of money, very few types of harm
can be seen or touched.
Perhaps by concrete the Court simply means that the harm must be specific or
particular to the plaintiff.320 Indeed, the Court has often stated that plaintiffs must
allege a harm that is personal, not general or widely shared.321 And it has sometimes
used terms such as “concrete” and “personal” interchangeably.322 But there are two
problems with this definition. First, it was rejected in the recent case of Federal
Election Commission v. Akins,323 which made clear that standing will not be denied
to plaintiffs just because the injuries they suffer are widespread or widely shared.
“Where a harm is concrete, though widely shared,” the Court held, the injury-in-fact
requirement is satisfied.324 Second, even if “concrete” means personal or
particularized, stigmatic harm would seem to qualify. The Court has traditionally
defined generalized injuries as ones that are shared in common by all members of
society, such as when the government fails to follow the law.325 But stigmatic harm
is not experienced by everyone in society; it is experienced only by the members of
the stigmatized group. Moreover, even within a stigmatized group, the experience of
being stigmatized differs from person to person.326 Thus, to borrow an example from
Justice Scalia, just as all people who are denied the right to vote suffer a
particularized injury, so all people who are stigmatized suffer an injury that is specific
and personal to them.327

317
508 U.S. 656 (1993).
318
438 U.S. 265 (1978).
319
397 U.S. 150 (1970).
320
See The American Heritage College Dictionary at 289 (defining “concrete” as “of or relating to an
actual, specific thing or instance; particular”).
321
See, e.g., Raines v. Byrd, 521 U.S. 811, 818 (1997) (stating that “a plaintiff must allege personal
injury”) (internal quotations omitted); Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 n.1 (stating that “the
injury must affect the plaintiff in a personal and individual way”); Ex Parte Levitt, 302 U.S. 633, 636 1937
(stating that a plaintiff must allege some “direct injury” and that “it is not sufficient that he has merely a
general interest common to all members of the public”); Frothingham v. Mellon, 262 U.S. 447, 488 (1923)
(stating that a plaintiff must allege some “direct injury . . . and not merely that he suffers in some indefinite
way with people generally”).
322
See Lujan (Kennedy, J., concurring) (stating that a “party bringing suit must show that the action
injured him in a concrete and personal way”); Akins, 524 U.S. at 25 (stating that “the informational injury at
issue here . . . is sufficiently concrete and specific”).
323
524 U.S. 11, 24 (1998).
324
See id.
325
See Erwin Chemerinsky, FEDERAL JURISDICTION at 89-90 (4th Ed. 2003).
326
See supra note 307 and accompanying text.
327
See Akins, 524 U.S. at 35 (Scalia, J., dissenting).

31
This leads to the final possibility, which is that the Court uses the term “concrete” not
to refer to a property of the harm itself, but to distinguish between plaintiffs who
simply disagree with the government’s action and those whose interest in the case is
unrelated to their personal views. In other words, we might define a “concrete” injury
as one that is non-ideological. As with the previous possibility, there is some support
in the Court’s cases for this definition. The Court has often stated that “a mere interest
in a problem” is not sufficient for standing,328 a statement that is generally interpreted
as barring purely ideological plaintiffs.329 Moreover, the Court has made clear that the
primary goal of standing doctrine is to maintain the separation of powers by
precluding parties from using the courts to reopen battles they lost in the
political sphere.330 Thus, it makes sense to deny standing to plaintiffs who, in
the words of Allen, are merely “attempting to vindicate value interests.”
But that does not describe plaintiffs alleging stigmatic harm. It is true that such
plaintiffs are likely to disagree with the government action that stigmatizes them. And
if they succeed, their value interests may be vindicated. But their disagreement with
the government is not the source of their injury. They are injured because the
government’s action brands them with a mark of disgrace that invites discrimination
and prejudice against them, threatens their self-esteem, and makes them vulnerable
to stereotype threat and self-fulfilling prophecies. And they suffer these injuries
regardless of whether they disagree with the government’s action and regardless of
whether their value interests would be vindicated by a decision in their favor.
To see the point more clearly, imagine a law that stigmatizes African Americans. Now
imagine two plaintiffs who challenge the law. One is African American, the other is
a white liberal. Both plaintiffs may disagree with the law and hold values that are in
conflict with it. And both may feel they have been injured. The white liberal may
even experience unease and anxiety because of the way African Americans are being
treated. But any injury he suffers is due entirely to the fact that he disagrees with the
law. If his value interests did not conflict with the law, he would suffer no harm. The
African American, by contrast, suffers an injury that is unrelated to his value
interests. Even if he did not disagree with the law, he would still experience the harm
of being stigmatized.331 Thus, unlike the white plaintiff, whose injury flows entirely
from his ideological interest in the case, the African American has an interest that is
unrelated to his personal views. And if a “concrete” injury is one that is
“non-ideological,” the African American plaintiff should have standing.

328
See Sierra Club v. Morton, 405 U.S. 727 (1972) (stating that “a mere interest in a problem, no matter
how long standing the interest and no matter how qualified the organization is in evaluating the problem, is
not sufficient” for standing); Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 222 n.11 (1974)
(same); U.S. v. Richardson, 418 U.S. 166, 177 (1974) (same).
329
See Erwin Chemerinsky, FEDERAL JURISDICTION at 63 (4th Ed. 2003).
330
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 577 (1992); Allen v. Wright, 469 U.S. 737, 752
(1984).
331
One might argue that a person cannot be stigmatized by a law he agrees with. But social scientists
have shown that members of stigmatized groups often accept and contribute to the cultural beliefs that
underlie their stigma. See Coleman, supra note 241, at 224; Gibbons, supra note 255, at 132; Hebl, supra note
254, at 289; Lenhardt, supra note 219, at 842. Moreover, although an African American who supports a law
that stigmatizes him may not suffer a loss of self-esteem, he will still face the prejudice and discrimination that
the stigmatizing law invites.

32
This list may not exhaust all the possible definitions of concrete. But it is hard to see
how any definition could include all the injuries the court has recognized — aesthetic
harm, loss of opportunity, the ability to live in an integrated neighborhood, increased
competition — and yet not include stigmatic harm. Moreover, recognizing stigmatic
harm as a basis for standing does not undermine the primary goal of standing
doctrine, which is to maintain the separation of powers. Therefore, stigmatic harm
seems sufficiently concrete to support Article III standing.

33
7. T HE H YPOCRISY OF THE J UDICIAL AND E XECUTIVE B RANCHES OF THE U.S.
G OVERNMENT IN R EGARD TO THE S EPARATION OF P OWERS D OCTRINE T HAT INDUCES
IN THE F EDERAL G OVERNMENT A S CHIZOIDIC P ATTERN OF R ACKETEERING A CTIVITY
O VER THE S ECOND A MENDMENT. IN O THER W ORDS: T HE G OVERNMENT G OES L OONY
O VER THE S ECOND A MENDMENT
Even though these past four years of federal litigation is VOID FOR LACK OF JURISDICTION,
it is not all a total waste. The U.S. Department of Justice filed enough Motions to Dismiss to establish
their schizoidic position on this case such that I can use their Motions to Dismiss and the judges
Memorandum Opinions granting their Motions to Dismiss as evidence of their hypocrisy on the
Separation of Powers that is directly violating my rights to substantial and procedural due process
under the Fourteenth Amendment amounting to a denial of my First Amendment right to petition.

M ISSION S TATEMENT FOR THE U.S. D EPARTMENT OF J USTICE


“To enforce the law and defend the interests of the United States according to the law;
to ensure public safety against threats foreign and domestic; to provide federal
leadership in preventing and controlling crime; to seek just punishment for those
guilty of unlawful behavior; and to ensure fair and impartial administration of justice
for all Americans.”

8. A MY C ONEY B ARRETT, S TARE D ECISIS AND D UE P ROCESS, 74 U NIVERSITY OF


C OLORADO L AW R EVIEW 1011, 1074-1075 (2003):
2. D OES D ISTINGUISHING D AMPEN THE P RECLUSIVE E FFECT OF S TARE D ECISIS?
Cynics might argue that precedent does not bind litigants because, no matter what the
rules of stare decisis require, courts generally circumvent precedent they do not like.33
In this view, a court’s ability to distinguish cases significantly undercuts any
potentially preclusive effect of stare decisis.
The ability to distinguish cases, however, either honestly or disingenuously, does not
entirely deprive stare decisis of its bite.34 To take disingenuous distinguishing
(distinguishing the plainly indistinguishable) first: It undeniably happens, and every
lawyer has her favorite example of it. Judicial dishonesty, however, simply cannot be
the rule rather than the exception. Karl Llewellyn once described what he called the

33
See, e.g., Hiroshi Motomura, USING JUDGMENTS AS EVIDENCE, 70 Minn. L. Rev. 979, 1017 n.186
(1986) (“Stare decisis is not binding because cases can always be distinguished.”).

34
Cf. Lea Brilmayer, A REPLY, 93 Harv. L. Rev. 1727, 1728 (1980) (“Neither the cliché that any two cases
are potentially distinguishable nor the characterization of some precedents as formative or tentative solves the
problem. If taken literally, these seem to suggest that it would not make any difference whether adverse
precedents were established. Regardless of whether one perceives the proper role of stare decisis as strong or
weak, in the real world of litigation, precedents do have some binding force.”); Evan Tsen Lee,
DECONSTITUTIONALIZING JUSTICIABILITY: THE EXAMPLE OF M OOTNESS , 105 Harv. L. Rev. 603, 652 (1992) (“[T]he
undesirability of having an adverse precedent on the books is unquestionable.”).

34
“steadying factors in our appellate courts.”35 He argued that, among other things, the
education of judges, the expectations of them on the bench, and the public nature of
decisionmaking work strongly against any impulse to engage in unreasoned and
willful decisionmaking.36 Llewellyn’s description is sensible, and practice appears
to bear it out. In the main, judges do not treat precedent with thinly disguised
contempt. Instead, they write their opinions as if precedent counts.37
A court’s capacity for “honest” distinguishing (distinguishing fairly allowed by the
rules of stare decisis) does somewhat blunt a case’s effect on later litigants.38 Courts
cannot, however, fairly distinguish every case. As Frederick Schauer has observed,
the idea that a judge can, in “all or even most” cases, rationalize from precedent a
result she wants is “at least erroneous and at times preposterous.”39
Cases involving judicial review illustrate well the fact that precedent is sometimes
indistinguishable. Judicial review can affect nonparty litigants acutely. Once a court
holds a statute or a portion of a statute facially unconstitutional, it is virtually
impossible for later courts to resurrect it. For example, after United States v.
Morrison,40 it is doubtful that any litigant could successfully bring a private cause of
action under the Violence Against Women Act. After United States v. Lopez,41 it is
unlikely that any federal prosecutor could secure a conviction under the Gun-Free
School Zones Act.
Cases interpreting texts are often difficult to distinguish; thus, they too can have a
significant impact on later litigants. If a court holds that “mere possession” of a gun
qualifies as “use” of it under the federal drug trafficking statute, 4 2 later defendants
cannot persuasively argue that “use” requires “active employment.” Or, if a court
holds that a correctible vision impairment is not a “disability” under the Americans

35
Karl N. Llewellyn, THE COMMON LAW TRADITION: DECIDING APPEALS 19–61 (1960).
36
Id.
37
This is true even when they do not agree with precedent. See, e.g., infra notes 48–49 (collecting cases
in which courts follow precedent while noting disagreement with it).
38
The ability to distinguish is not logically inconsistent with preclusive effect. Courts can also
distinguish prior cases for purposes of issue preclusion, and we have no trouble considering issue preclusion
“preclusive.” See infra note92 and accompanying text.
39
Frederick Schauer, EASY CASES, 58 S. Cal. L. Rev. 399, 411 (1985).
40
United States v. Morrison, 529 U.S. 598 (2000).
41
United States v. Lopez, 514 U.S. 549 (1995). The precedential effect of Morrison and Lopez is, of
course, primarily vertical. The point remains the same, however, when one considers the impact of such
judicial review cases from a horizontal perspective.
42
Cf. United States v. Torres-Rodriguez, 930 F.2d 1375, 1385 (9th Cir. 1991) (holding that mere
possession constitutes “use” under Section 924(c)), overruled by Bailey v. United States, 516 U.S. 137, 143
(1995) (holding that “use” under Section 924(c) requires some active employment).

35
with Disabilities Act,43 later plaintiffs cannot successfully argue that it does so
qualify.
The vagueness of language does not significantly diminish the potentially broad
impact of textual interpretations on later litigants. For example, the word “use” may
have a range of possible meanings, and it may be unclear which of those meanings
Congress intended to convey in a particular statute. A court may hold that
“brandishing” a gun violates a statutory prohibition on “using” a gun. This
interpretation, to be sure, does not rule out all possible interpretations—if a later case
presents the question whether “mere possession” constitutes “use” under the same
statute, the earlier case will not answer the question. Nonetheless, the earlier case still
makes at least one interpretation concrete. And that one, concrete interpretation
(“brandishing” constitutes “use”) will govern all later cases presenting the same
interpretive question.
Even when it is distinguishable, precedent binds litigants. A litigant distinguishing
a prior case does not contest that the precedent binds her as to the issue decided in
that case. She simply argues that a different issue is at stake. Thus, a plaintiff who
challenges a crèche and menorah display on city property is bound by Lynch v.
Donnelly,44 which upheld a public crèche display, and by County of Allegheny v.
ACLU, 4 5 which upheld a public menorah display. To win, she must argue that the
display is unconstitutional despite these holdings. Whether a litigant argues by
distancing herself from precedent or by trying to come within its terms, she
acknowledges its binding effect. And even where prior cases do not control directly,
they are likely to affect the outcome simply by defining the terms of the argument. As
students of path-dependence theory have observed; “[T]he order in which cases arrive
in the courts can significantly affect the specific legal doctrine that ultimately
results.”46 This is precisely why litigants with an agenda in mind orchestrate the order
in which “test” cases arrive in the courts.47

43
Cf. Sutton v. United Airlines, 527 U.S. 471, 488–89 (1999) (holding that a correctible vision
impairment is not a disability for purposes of the Americans with Disabilities Act).
44
465 U.S. 668 (1984).
45
492 U.S. 573 (1989).
46
Oona Hathaway, Path Dependence in the Law: The Course and Pattern of Legal Change in a Common
Law System, 86 IOWA L. REV. 601, 605 (2001); see also Frank Easterbrook, Stability and Reliability in Judicial
Decisions, 73 CORNELL L. REV. 422, 425–26 (1988) [hereinafter Easterbrook, Stability and Reliability in
Judicial Decisions]; Frank Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802, 817–21 (1982);
Maxwell Stearns, Standing Back from the Forest: Justiciability and Social Choice, 83 CAL. L. REV. 1309 (1995).
Frederick Schauer has observed that first cases can “distort by ‘hogging the stage;’” they set the frame of
reference even though the first decisionmaker could not necessarily anticipate later issues that would be
affected. Frederick Schauer, Giving Reasons, 47 STAN. L. REV. 633, 655 (1995) [hereinafter Schauer, Giving
Reasons]; see also Jeffrey O. Cooper & Douglas A. Berman, Passive Virtues and Casual Vices in the Federal
Courts of Appeals, 66 BROOK. L. REV. 685, 722–23 (2001) (“[B]ecause of the binding force given to circuit
precedents, early decisions rendered in . . . imperfect settings may and often will establish how all future cases
raising the particular legal issue are litigated and decided.”).
47
Hathaway, supra note 46, at 648–50. Hathaway gives the examples of Thurgood Marshall’s strategy
in segregation cases and Justice Ruth Bader Ginsburg’s strategy in gender discrimination cases. Id.

36
Whatever theoretical arguments one might make about the ability of distinguishing
to gut stare decisis, neither judges nor litigants behave as if precedent were
meaningless. Instead, they treat precedent as having real effect on outcomes. For
example, judges sometimes publicly assert that they are following precedent despite
disagreement with either its reasoning or the result it commands.48 A recent Seventh
Circuit case is illustrative. There, the court stated:
[T]he judges of this panel believe that students involved in extracurricular activities
should not be subject to random, suspicionless drug testing as a condition of
participation in the activity. Nevertheless, we are bound by this court’s recent
precedent in Todd . . . . [W]e believe that we must adhere to the holding in Todd . .
. .49
Other opinions are to the same effect.50
The recent controversy over the legitimacy of unpublished opinions is more evidence
that the federal courts take stare decisis very seriously.51 This issue is only significant
because federal courts perceive published opinions as binding.52 Judges on both sides

48
See, e.g., Clay v. United States, 2002 WL 126094 (7th Cir. Jan. 25, 2002), rev’d, 123 S. Ct. 1072 (2003)
(“Bowing to stare decisis, we are reluctant to overrule a recently-reaffirmed precedent without guidance from
the Supreme Court.”); Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 426 (5th Cir. 1987) (bowing to
precedent but urging that it be overruled en banc); United States v. Hoover, 246 F.3d 1054, 1065 (7th Cir.
2001) (Rovner, J., concurring) (“I accept, as I must, the panel’s holding in Jackson; it is the law of this circuit
. . . . I do so, however, with great reservation as to the prudence [of the panel’s decision in that case]”); Moore
v. Willis Indep. Sch. Dist., 233 F.3d 871, 876 (5th Cir. 2000) (Wiener, J., concurring); Bellsouth Corp. v. FCC,
162 F.3d 678, 697 (D.C. Cir. 1998) (Sentelle, J., concurring) (joining majority’s result “only for reasons of stare
decisis and binding precedent, not because I believe it correct”); Geib v. Amoco Oil Co., 163 F.3d 329, 330–31
(6th Cir. 1995) (Engel, J., concurring) (“Were this issue before us as an original matter . . . I am quite certain
that I would hold [otherwise] . . . . However, I agree that we are bound to honor our prior decision as a matter
of stare decisis . . . .”). For the expression of similar sentiment with respect to vertical stare decisis, see, for
example, Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1113 (5th Cir. 1997) (Garza, J., concurring) (“For the
second time in my judicial career, I am forced to follow a Supreme Court opinion I believe to be inimical to
the Constitution.”), overruled by Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001); Sojourner T. v. Edwards,
974 F.2d 27, 31 (5th Cir. 1992) (Garza, J., concurring) (following Planned Parenthood v. Casey despite
disagreement with it); Loughney v. Hickey, 635 F.2d 1063, 1065 (3d Cir. 1980) (Aldisert, J., concurring)
(following precedent despite “vehement disagreement” with it).
49
Joy v. Penn-Harris-Madison Sch. Corp., 212 F.3d 1052, 1066 (7th Cir. 2000) (adhering to Todd v.
Rush County Sch., 133 F.3d 984 (7th Cir. 1998)).
50
See supra note 48 (collecting cases).
51
See supra note 1 (collecting post-Anastasoff literature); see also Robert J. Martineau, Restrictions on
Publication and Citation of Judicial Opinions: A Reassessment, 28 U. MICH. J.L. REFORM 119 (1994); Lauren
K. Robel, The Myth of the Disposable Opinions: Unpublished Opinions and Government Litigants in the
United States Courts of Appeals, 87 MICH. L. REV. 940 (1989); Howard Slavitt, Selling the Integrity of the
System of Precedent: Selective Publication, Depublication, and Vacatur, 30 HARV. C.R.-C.L. L. REV. 109
(1995); George M. Weaver, The Precedential Value of Unpublished Judicial Opinions, 29 MERCER L. REV. 477
(1988).
52
See, e.g., Milton S. Kronheim & Co. v. District of Columbia, 91 F.3d 193, 197 (D.C. Cir. 1996) (citing
the distinction as justification for its departure from prior unpublished opinion).

37
of the issue have made that much clear.53 If stare decisis were nothing but a “noodle,”
to borrow a word from Judge Posner,54 the distinction between published and
unpublished opinions would be of no consequence.55
Litigants, too, take stare decisis seriously. Repeat litigants settle cases that are not sure
wins for fear of the effect that a loss could have on cases coming down the pike.
Repeat players who settle also try to convince the court to vacate precedent so as to
escape its stare decisis effect. Nonparties invested in an issue file amicus briefs in an
effort to shape the precedent that will later affect them. Nonparties occasionally seek
even greater involvement. Courts grant motions for intervention as of right based on
the potential for adverse stare decisis effects.56 In the high-profile case Piscataway
Township Board of Education v. Taxman, nonparties engineered a settlement between
the parties just before oral argument in the Supreme Court for fear of the blow that

53
See Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001); Anastasoff v. United States, 223 F.3d 898 (8th
Cir.), vacated as moot on reh’g en banc, 235 F.3d 1054 (8th Cir. 2000); see also Richard S. Arnold, Unpublished
Opinions: A Comment, 1 J. APP. PRAC. & PROCESS 219 (1999); Boggs & Brooks, supra note 1; Kozinski &
Reinhardt, supra note 1; Boyce F. Martin, Jr., In Defense of Unpublished Opinions, 60 OHIO ST. L.J. 177
(1999).
54
Bethesda Lutheran Homes & Serv., Inc. v. Born, 238 F.3d 853, 858 (7th Cir. 2001).
55
Indeed, the use of unpublished opinions may be attributable at least in part to the rigidity of stare
decisis. Because it is so difficult to overrule a published opinion, the courts of appeals sometimes use
unpublished opinions to avoid precedential effect. See, e.g., Milton S. Kronheim & Co., 91 F.3d at 204–05
(Silberman, J., concurring) (noting that prior opinion was unpublished so as to avoid giving it precedential
effect, thereby preserving the opportunity to raise the issue again); see also Cooper & Berman, supra note 46,
at 739–40 (advocating use of the unpublished opinion as a way to avoid prematurely setting circuit precedent
in stone); Patricia Wald, The Rhetoric of Results and the Results of Rhetoric, 62 U. CHI. L. REV. 1371, 1374
(1995) (“I have seen judges purposely compromise on an unpublished opinion incorporating an agreed-upon
result in order to avoid a timeconsuming public debate about what law controls. I have even seen wily
would-be dissenters go along with a result they do not like so long as it is not elevated to a precedent.”).
Interestingly, Thomas R. Lee and Lance S. Lehnhof have asserted that the founding generation’s approach to
precedent “is most closely aligned with the current treatment accorded to unpublished opinions, not with the
more rigid adherence extended to their published counterparts.” Lee & Lehnhof, supra note 1, at 154.
56
See, e.g., Coalition of Ariz./N.M. Counties for Stable Econ. Growth v. Dep’t of Interior, 100 F.3d 837,
844 (10th Cir. 1996); Sierra Club v. Glickman, 82 F.3d 106, 109–10 (5th Cir. 1996); Oneida Indian Nation v.
New York, 732 F.2d 261, 265–66 (2d Cir. 1984); Corby Recreation, Inc. v. General Elec. Co., 581 F.2d 175, 177
(8th Cir. 1978); NRDC v. United States Nuclear Regulatory Comm’n, 578 F.2d 1341, 1345 (10th Cir. 1978);
Nuesse v. Camp, 385 F.2d 694, 702 (D.C. Cir. 1967); Fla. Power Corp. v. Granlund, 78 F.R.D. 441, 444 (M.D.
Fla. 1978); In re Oceana Int’l, Inc., 49 F.R.D. 329, 332 (S.D.N.Y. 1970). The adverse stare decisis effects of a
decision on nonparties do not typically require joinder under Rule 19, see Geoffrey Hazard, Indispensable
Party: The Historical Origin of a Procedural Phantom, 61 COLUM. L. REV. 1254, 1288 n.183 (1961), although
some scholars have argued that maybe they should, see Carl Tobias, Rule 19 and the Public Rights Exception
to Party Joinder, 65 N.C. L. REV. 745, 777 (1987). In addition, while courts generally refuse to certify class
actions based on adverse impact from stare decisis (because, of course, this would make all or most actions
certifiable), they have certified classes when the possibility of adverse stare decisis effects is coupled with
some sort of pre-existing legal relationship between class members. Elizabeth Barker Brandt, Fairness to the
Absent Members of a Defendant Class: A Proposed Revision of Rule 23, 1990 B.Y.U. L. REV. 909, 948 n.80
(1990) (collecting cases).

38
bad precedent in that case could deal to affirmative action.57 The preclusive power of
stare decisis is real, and those faced with its threat treat it as so.

3. T HE D UE P ROCESS Q UESTION
This preclusive effect raises serious due process issues, and, as I shall argue below,
occasionally slides into unconstitutionality. In adjudication—where, by definition,
life, liberty, or property is at stake—the Constitution guarantees litigants due process
of law.58 Due process includes the right to an opportunity to be heard on the merits
of one’s claims or defenses.59 To the extent that a rigid application of stare decisis
deprives litigants of this opportunity, it raises a due process issue.
Occasionally, a court or commentator has at least flagged this problem.60 For
example, in Northwest Forest Resource Council v. Dombeck, the D.C. Circuit
recognized that the improper application of stare decisis can offend the Due Process
Clause.61 In Dombeck, the district court had rejected the plaintiffs’ challenges to a
federal environmental plan on the ground that it was bound by the stare decisis effect
of a decision by a court in another district.62 The D.C. Circuit held that stare decisis
did not apply because a district court is not bound by decisions from another district,
and the rejection of the plaintiffs’ claims on this ground violated their “right to be
heard on the merits of their claims.”63

57
Taxman v. Bd. of Educ. of Township of Piscataway, 91 F.3d 1547 (3d Cir. 1996), cert. granted sub
nom. Piscataway Township Bd. of Educ. v. Taxman, 521 U.S. 1117 (1997), cert. dismissed, 522 U.S. 1010
(1997); see also Lisa Estrada, Buying the Status Quo on Affirmative Action: The Piscataway Settlement and
its Lessons about Interest Group Path Manipulation, 9 GEO. MASON U. CIV. RTS. L.J. 207 (1999); Linda
Greenhouse, Settlement Ends High Court Case on Preferences: Tactical Retreat, N.Y. TIMES, Nov. 22, 1997,
at A1.
58
U.S. CONST. amend. V; see also infra notes 171–73 and accompanying text (discussing adjudication
and due process).
59
Richards v. Jefferson County, 517 U.S. 793, 797–98, 797 n.4 (1996); Martin v. Wilks, 490 U.S. 755,
761–62 (1989); Blonder-Tongue Lab., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 329 (1971); Hansberry v. Lee,
311 U.S. 32, 40 (1940).
60
John McCoid has observed that if rigorously followed, the “no panel overruling” rule “seems to be
on the borderline of a denial of due process to the party who is adversely affected by the prior decision. He
has no true day in court on his claim or defense.” John McCoid, Inconsistent Judgments, 48 WASH. & LEE L.
REV. 487, 513 (1991); see also Brilmayer, supra note 22, at 306–07 (1979) (identifying a due process problem
in the application of stare decisis, albeit a due process problem of less severity than that posed by res judicata).
In a related vein, Barry A. Miller has argued that sua sponte appellate rulings can violate a litigant’s due
process right to an opportunity to be heard. Barry A. Miller, Sua Sponte Appellate Rulings: When Courts
Deprive Litigants of an Opportunity to Be Heard, 39 SAN DIEGO L. REV. 1253 (2002).
61
107 F.3d 897 (D.C. Cir. 1997). By contrast, the Sixth Circuit has dismissed the argument that rigid
application of precedent to a nonparty violates the Due Process Clause as “obviously without merit.” Kent v.
Johnson, 821 F.2d 1220, 1228 (6th Cir. 1987).
62
In Dombeck, the plaintiffs challenged the Secretary of Interior’s plan for managing forests in the
Pacific Northwest. Other groups unsuccessfully had challenged the same plan in the Western District of
Washington. Dombeck, 107 F.3d at 898.
63
Id.

39
Similarly, in Colby v. J.C. Penney Co., a district judge treated precedent from another
district as outcomedeterminative in a sex discrimination suit against J.C. Penney. 6 4
The Seventh Circuit pointed out that neither claim nor issue preclusion could apply
to the Colby plaintiff because she had not been a party to the prior suit.65 It then
reversed the district court for treating persuasive authority as authoritative. In doing
so, it observed that “within reason, the parties to cases before [this court and the
district courts of this circuit] are entitled to our independent judgment.”6666 While the
Seventh Circuit did not ground its decision in the Due Process Clause, its decision
appears to rest on due process concerns.
Both Dombeck and Colby raise more questions than they answer. In asserting that the
due process failure lay in the district court’s choice to treat persuasive precedent as
binding, Dombeck implies that the Due Process Clause would have permitted the
court to foreclose the merits of the litigants’ claims with precedent from the same
jurisdiction. The case does not explain why the rigid application of precedent offends
the Due Process Clause in the former context but not the latter. Similarly, Colby does
not explain why preclusion by out-of-circuit precedent offends fairness but preclusion
by in-circuit precedent does not. The question of whether and how the Due Process
Clause applies to the doctrine of stare decisis remains unexamined in existing
scholarship and case law.
...

C ONCLUSION
We tend to think of stare decisis as an institutional doctrine. Viewed through the lens
of issue preclusion, however, its impact on individual litigants comes into focus. The
preclusive impact of stare decisis is real, and it can affect a litigant dramatically.
Through the operation of stare decisis, litigants are bound to results obtained by those
who have gone before them. They typically lack the opportunity to press their own
arguments about whether precedent correctly interprets underlying statutory or
constitutional provisions.
The comparison to issue preclusion also illuminates the due process limit on the
courts’ application of precedent. In issue preclusion, as in the application of
precedent, adjudication is involved; adjudication triggers the Due Process Clause.
Issue preclusion handles due process limits by restricting preclusion to parties and
their privies. Stare decisis, at least as a formal matter, has chosen to handle thedue
process limit with flexibility. That flexibility, however, must be observed in substance
as well as form. Flexibilityrequires that courts allow for the possibility of
error-correction. Current stare decisis doctrine, however, does not generally allow for
this possibility. Indeed, many aspects of current stare decisis doctrine—most notably,
the combination of the nopanel-overruling rule and the stringent standards for en
banc and Supreme Court review—affirmatively work against flexibility.

64
811 F.2d 1119 (7th Cir. 1987). J.C. Penney only permitted those employees who were “heads of
household” to opt into the company’s medical and dental insurance plans. The EEOC had challenged the same
policy unsuccessfully before a district court in Detroit. Id. at 1122.
65
Id. at 1124–25.
66
Id. at 1123.

40
This Article urges the federal courts to restore flexibility to stare decisis doctrine.
Generally speaking, if a litigant demonstrates that a prior decision clearly
misinterprets the statutory or constitutional provision it purports to interpret, the
court should overrule the precedent. Reliance interests count, but they count far less
when precedent clearly exceeds a court’s interpretive authority than they do when
precedent, though perhaps not the ideal choice, was nonetheless within the court’s
discretion.
It is undeniable that attention to the participation rights of individual litigants
would bring some inefficiency to stare decisis doctrine. It has done so for issue
preclusion. But if due process indeed guarantees some opportunity to participate in
judicial decisionmaking, we should start paying attention. Otherwise, the elaborate
protections that we have in place for preclusion do not mean much.

9. A SSISTANT U.S. A TTORNEY D ENNIS B ARGHAAN’S F RAUDULENT U SE OF


INAPPLICABLE C ASE L AW
It is my understanding that in order to use case law the circumstances of a cited case must
match up to a significant number traits to the contested case to be applicable for use. But in my RICO
Act case in Washington, DC the Assistant U.S. Attorney Dennis Barghaan, defense counsel for the
defendant U.S. Government, filed a flawed and fraudulent Motion to Dismiss on August 4, 2006
using inapplicable case law alleging that the President does not have a clear duty to act under the
requirements for Mandamus relief in my Second Amendment case employing the RICO Act .

On page 10 of that Motion to Dismiss Mr. Barghaan cited Garcia v. U.S. Department of Justice,
2005 WL 3273720, at *2 (D.D.C. Aug. 31, 2005) (As this Court has appropriately identified, an official
only has a “clear duty to act” if the duty is ministerial, as opposed to discretionary, and “[a]
ministerial duty is one that admits of no discretion, so that the official has no authority to determine
whether to perform the duty.”)

I bring to this Cout’s attention that Plaintiff Guillermo Ruiz Garcia in the above cited case is
a federal inmate who filed a Freedom of Information Act request for records from the U.S.
Department of Justice under 5 U.S.C. § 552. Garcia alleged that the DOJ failed to properly respond
to his FOIA request.

Defense Counsel’s use of a federal inmate’s FOIA case is insulting to my right to due process
because I am not a federal inmate and my case is not a FOIA case. Mr. Barghaan’s use of such dirty
tactics is revolting.

41
On page 17 of Mr. Barghaan’s Motion to Dismiss he employs a very interesting choice of
words for his Section A, “MANDAMUS JURISDICTION CANNOT BE INVOKED TO MANDATE THAT THE PRESIDENT
AND CONGRESS ADOPT CERTAIN POLICY STANCES OR PROMULGATE CERTAIN REGULATIONS .”

Put more in terms of the mandamus jurisprudence itself, plaintiff certainly does not
have a “clear and indisputable right” to force various policy positions on federal
government officials, and ironically enough, it is the Constitution itself – through the
doctrine of separation of powers – that openly prohibits the same. Indeed, “[s]tated in
its simplest terms, the separation of powers doctrine prohibits each branch of the
government from ‘intrud[ing] upon the central prerogatives of another.’” United
States v. Moussaoui, 382 F.3d 453, 469 (4th Cir. 2004) (quoting Loving v. United
States, 517 U.S. 748, 757 (1996)), cert. denied, 544 U.S. 931 (2005); see also Mistretta
v. United States, 488 U.S. 361, 382 (1989) (holding that separation of powers doctrine
requires invalidation of statutes “that either accrete to a single Branch powers more
appropriately diffused among separate Branches or that undermine the authority and
independence of one or another coordinate Branch”). At its core, it is difficult to
imagine an action that would more greatly “undermine the authority and
independence” of the Executive and Legislative Branches than this Court’s ordering
officials of those branches to take certain actions that the Constitution places within
their exclusive sphere of authority.

This time Mr. Barghaan uses three criminal cases: (1) a suspected terrorist Moussaoui whose
circumstance are in no way the least bit similar to my case unless Mr. Barghaan delusionally
perceives my case as one of terrorism: The pursuit of actual freedom through litigious restoration
of Second Amendment rights (Cf. Dred Scott v. Sanford, 60 U.S. (How.) 393, 416-417, (1856),
description on the differences between a free citizen and a slave; and Cf. Abraham Lincoln’s
Emancipation Proclamation); (2) Loving v. United States, a U.S. Army private found guilty of
premeditated murder and felony murder; and (3) Mistretta v. United States, a case of indictment on
three counts centering in a cocaine sale.

Is Mr. Barghaan confused? My case is a CIVIL CASE ! My counter point in terms of mandamus
jurisprudence itself, I, as a benefactor of “We, the People” in the Preamble to the U.S. Constitution
establishing the six promises: (1) in Order to form a more perfect Union; (2) establish Justice, (3)
insure domestic Tranquility, (4) provide for the common defence, (5) promote the general Welfare,
and (6) secure the Blessings of Liberty to ourselves and our Posterity, do have a “clear and
indisputable right” to force various policy positions on federal government officials through the
“Private Attorney General Doctrine” as a civil plaintiff with a RICO Act case for the Second
Amendment, to compel the Executive and the Legislative branches of the Federal Government to take
certain actions.

It is the right of the American People to petition the Judicial branch under the First
Amendment and it is the powers reserved to the people under the Tenth Amendment that gives me

42
the authority to demand Mandamus Relief through the Judicial Branch to compel certain actions
from the Executive and Legislative Branches upon complaint and allegation of any justiciable
violations of the six promises of Government under the Preamble to the U.S. Constitution. So, in
effect it is not the Judicial Branch that would be compelling action from the Executive and
Legislative Branches of the Federal Government. It is I, a civil plaintiff acting as a Private Attorney
General under the RICO Act that would be compelling governmental action in complaince with the
U.S. Constitution with the Judicial Branch serving to confirm the legality and justiciability of my
complaint, claims, and demands for relief, In my interpretation of constitutional law the Separation
of Powers are not violated but exercised under the proper construction of the U.S. Constitution.

Mr. Barghaan’s statement, “Indeed, ‘[s]tated in its simplest terms, the separation of powers
doctrine prohibits each branch of the government from ‘intrud[ing] upon the central prerogatives of
another.’ ” would mean that there are no checks or balance in our Guaranteed Republican form of
Government. The Legislative Branch in coluson with the Executive Branch could transform our
nation into a communist country or a militaristic authoritarian or totalitarian regime and the Judicial
Branch would be powerless to stop it. Nor would the American people have the Tenth Amendment
power to rise up in defense of our Republican Form of Government under the Constitutional Right
of Self Defense under the Second Amendment’s militia clause and under the Law of Nations and
under the Law of Internal Armed Conflict when Mr. Barghaan’s view on the Separation of Powers
are taken to their extreme.

10. E XCERPT FROM THE D RED S COTT C ASE IN 1856


The legislation of the States therefore shows, in a manner not to be mistaken, the
inferior and subject condition of that race at the time the Constitution was adopted,
and long afterwards, throughout the thirteen States by which that instrument was
framed; and it is hardly consistent with the respect due to these States, to suppose
that they regarded at that time, as fellow-citizens and members of the sovereignty, a
class of beings whom they had thus stigmatized; whom, as we are bound, out of
respect to the State sovereignties, to assume they had deemed it just and necessary
thus to stigmatize, and upon whom they had impressed such deep and enduring
marks of inferiority and degradation; or, that when they met in convention to form the
Constitution, they looked upon them as a portion of their constituents, or designed
to include them in the provisions so carefully inserted for the security and protection
of the liberties and rights of their citizens. It cannot be supposed that they intended
to secure to them rights, and privileges, and rank, in the new political body
throughout the Union, which every one of them denied within the limits of its own
dominion. More especially, it cannot be believed that the large slaveholding States
regarded them as included in the word citizens, or would have consented to a
Constitution which might compel them to receive them in that character from another
State. For if they were so received, and entitled to the privileges and immunities of
citizens, it would exempt them from the operation of the special laws and from the
police [60 U.S. 393, 417] regulations which they considered to be necessary for their

43
own safety. It would give to persons of the negro race, who were recognised as
citizens in any one State of the Union, the right to enter every other State whenever
they pleased, singly or in companies, without pass or passport, and without
obstruction, to sojourn there as long as they pleased, to go where they pleased at every
hour of the day or night without molestation, unless they committed some violation
of law for which a white man would be punished; and it would give them the full
liberty of speech in public and in private upon all subjects upon which its own
citizens might speak; to hold public meetings upon political affairs, and to keep and
carry arms wherever they went. And all of this would be done in the face of the
subject race of the same color, both free and slaves, and inevitably producing
discontent and insubordination among them, and endangering the peace and safety
of the State.

11. E XCERPT FROM L INCOLN’S E MANCIPATION P ROCLAMATION OF 1863


"That on the 1st day of January, A.D. 1863, all persons held as slaves within any State
or designated part of a State the people whereof shall then be in rebellion against the
United States shall be then, thenceforward, and forever free; and the executive
government of the United States, including the military and naval authority thereof,
will recognize and maintain the freedom of such persons and will do no act or acts
to repress such persons, or any of them, in any efforts they may make for their actual
freedom.

12. E XPOSING A SSISTANT U.S. A TTORNEY D ENNIS B ARGHAAN’S F RAUD, M ISCONDUCT


& H YPOCRISY O N S EPARATION OF P OWERS
Indeed, Mr. Barghaan boasts about the Separation of Powers Doctrine but yet violates
that very doctrine with his Motion to Dismiss. Mr. Barghaan describes the differences of opinions
on the proper interpretation of the Second Amendment between the federal courts themselves and
between the federal courts and the U.S. Department of Justice in his Motion to Dismiss.

The policy and position of the U.S. Department of Justice relating to the Second Amendment
is that, “The Second Amendment secures a right of individuals generally, not a right of States or a right
restricted to persons serving in militias.” See MEMORANDUM OPINION FOR THE ATTORNEY GENERAL ,
WHETHER THE SECOND AMENDMENT SECURES AN INDIVIDUAL RIGHT , August 24, 2004.1 The conclusion from
that memorandum states:

For the foregoing reasons, we conclude that the Second Amendment secures an
individual right to keep and to bear arms. Current case law leaves open and unsettled
the question of whose right is secured by the Amendment. Although we do not
address the scope of the right, our examination of the original meaning of the
Amendment provides extensive reasons to conclude that the Second Amendment
secures an individual right, and no persuasive basis for either the collective-right or
quasi-collective-right views. The text of the Amendment's operative clause, setting out

1
Available Online at http://www.usdoj.gov/olc/secondamendment2.htm

44
a "right of the people to keep and bear Arms," is clear and is reinforced by the
Constitution's structure. The Amendment's prefatory clause, properly understood, is
fully consistent with this interpretation. The broader history of the Anglo-American
right of individuals to have and use arms, from England's Revolution of 1688-1689 to
the ratification of the Second Amendment a hundred years later, leads to the same
conclusion. Finally, the first hundred years of interpretations of the Amendment, and
especially the commentaries and case law in the pre-Civil War period closest to the
Amendment's ratification, confirm what the text and history of the Second
Amendment require.

If the policy of the U.S. Department of Justice on the Second Amendment is that it secures
an individual right and I am pursuing a Second Amendment right then why did Mr. Barghaan file
his Motion to Dismiss supporting the U.S. District Court for the District of Columbia’s opinion in
Seegars v. Ashcroft? From Mr. Barghaan’s Motion to Dismiss:

Nor does plaintiff’s resort to the Second Amendment provide him with any assistance.
As this Court recently held, “[o]ne of the leading constitutional debates centers
around the scope of the Second Amendment and whether its purpose is to protect the
sanctity of state militias or to provide a fundamental right to individuals.”2 Seegars
v. Ashcroft, 297 F. Supp. 2d 201, 218 (D.D.C. 2004) (Walton, J.), rev’d in part on other
grounds by Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir. 2005), cert. denied, 126 S.
Ct. 1187 (2006). To be sure, the United States’ present position on the scope of the
Second Amendment, articulated through, inter alia, a recent opinion authored by the
Department of Justice’s Office of Legal Counsel, is that this constitutional provision
“more broadly protects the rights of individuals . . . to possess and bear their own
firearms, subject to reasonable restrictions.” Silveria v. Lockyer, 312 F.3d 1052, 1065
(9 th Cir. 2002), cited in Seegars, 297 F. Supp.2d at 218 n.15. But notwithstanding this
position, the attorney’s duty of candor to the tribunal, see D.C. RULE OF PROFESSIONA L
CONDUCT 3.3; Va. RULE OF PROFESSIONAL CONDUCT 3.3, requires undersigned counsel
to note that this Court has already reached a conclusion contrary to the Justice
Department’s position on this score. More specifically, in Seegars, this Court held
“that the Second Amendment does not confer an individual a right to possess
firearms.” Seegars, 297 F. Supp. 2d at 235. And this conclusion destroys any
purported assistance plaintiff have derived from the Second Amendment in any of his
mandamus claims – including that which seeks to compel the Merchant Mariner
endorsement.
But even if this Court had accepted the notion that the Second Amendment confers
an individual right concerning firearms possession, it would not lead to the
conclusion that the Coast Guard was required to endorse plaintiff’s Merchant Mariner
document in the fashion he desires. Initially, as District Judge Huvelle cogently
recognized during plaintiff’s last litigative effort on this score, the mere fact that only
one court has ever explicitly concluded that the Second Amendment confers an
individual right, see United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), compels
the conclusion that a government agency did not owe plaintiff a clear duty to the

2
My emphasis

45
endorsement. Indeed, the mere existence of a legal debate on these issues renders
mandamus relief particularly inappropriate. In addition, as several courts have
noted, the Bill of Rights – including the Second Amendment – represents a charter
of negative liberties, defining not what the government must affirmatively
accomplish, but rather, what it cannot execute of its own volition. See, e.g.,
DeShaney v. Winnebago County, 489 U.S. 189, 194-95 (1989); Walker v. Rowe, 791
F.2d 507, 510 (7 Cir. 1986). Accordingly, even if the Second Amendment bore some
application to the instant scenario, it would only prevent the government from taking
certain action against plaintiff, not require that the government take affirmative action
in his favor.
Finally, even the Fifth Circuit in Emerson held that the Second Amendment’s
protection of individual rights was not limitless, and was subject to “restrictions for
particular cases that are reasonable and not inconsistent with the right of Americans
generally to individually keep and bear their private arms as historically understood
in this country.” Emerson, 270 F.3d at 261. There can be little doubt that the Coast
Guard did not owe plaintiff a “clear duty” – as that term is narrowly defined by the
operative jurisprudence – to a “National Open Carry Handgun” endorsement, even
with an interpretation of the Second Amendment that recognizes individual rights to
keep and bear arms.

Mr. Barghaan damned himself to the allegation of fraudulent use of case law when he used
Deshaney v. Winnebago County and Walker v. Rowe out of context. Those two cases more accurately
vindicate my case for the Second Amendment right to openly keep and bear arms in intrastate and
interstate travel because in those two cases the court effectively ruled that the individual has to right
to protection by the State. DeShaney is a landmark case regarding a child’s constitutional right to
safety. The Supreme Court rejected Joshua DeShaney’s substantive due process claim against social
service officials for their failure to protect him from severe abuse by his father. See Lawrence G.
Albrech, Human Rights Paradigms for Remedying Governmental Child Abuse, 40 Washburn Law
Journal 447 (2001).

13. D ISSENTING O PINIONS OF J USTICES B RENNAN, M ARSHAL, AND B LACKMUN IN


D ES HANEY V INDICATES M Y C ASE FOR S ECOND A MENDMENT R IGHTS:
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN
join, dissenting.
"The most that can be said of the state functionaries in this case," the Court today
concludes, "is that they stood by and did nothing when suspicious circumstances
dictated a more active role for them." Ante this page. Because I believe that this
description of respondents' conduct tells only part of the story and that, accordingly,
the Constitution itself "dictated a more active role" for respondents in the
circumstances presented here, I cannot agree that respondents had no constitutional
duty to help Joshua DeShaney.

46
It may well be, as the Court decides, ante, at 194-197, that the Due Process Clause as
construed by our prior cases creates no general right to basic governmental services.
That, [489 U.S. 189, 204] however, is not the question presented here; indeed, that
question was not raised in the complaint, urged on appeal, presented in the petition
for certiorari, or addressed in the briefs on the merits. No one, in short, has asked the
Court to proclaim that, as a general matter, the Constitution safeguards positive as
well as negative liberties.
This is more than a quibble over dicta; it is a point about perspective, having
substantive ramifications. In a constitutional setting that distinguishes sharply
between action and inaction, one's characterization of the misconduct alleged under
1983 may effectively decide the case. Thus, by leading off with a discussion (and
rejection) of the idea that the Constitution imposes on the States an affirmative duty
to take basic care of their citizens, the Court foreshadows - perhaps even preordains
- its conclusion that no duty existed even on the specific facts before us. This initial
discussion establishes the baseline from which the Court assesses the DeShaneys'
claim that, when a State has - "by word and by deed," ante, at 197 - announced an
intention to protect a certain class of citizens and has before it facts that would trigger
that protection under the applicable state law, the Constitution imposes upon the
State an affirmative duty of protection.
The Court's baseline is the absence of positive rights in the Constitution and a
concomitant suspicion of any claim that seems to depend on such rights. From this
perspective, the DeShaneys' claim is first and foremost about inaction (the failure,
here, of respondents to take steps to protect Joshua), and only tangentially about
action (the establishment of a state program specifically designed to help children like
Joshua). And from this perspective, holding these Wisconsin officials liable - where
the only difference between this case and one involving a general claim to protective
services is Wisconsin's establishment and operation of a program to protect children
- would seem to punish an effort that we should seek to promote. [489 U.S. 189, 205]

I would begin from the opposite direction. I would focus first on the action that
Wisconsin has taken with respect to Joshua and children like him, rather than on the
actions that the State failed to take. Such a method is not new to this Court. Both
Estelle v. Gamble, 429 U.S. 97 (1976), and Youngberg v. Romeo, 457 U.S. 307 (1982),
began by emphasizing that the States had confined J. W. Gamble to prison and
Nicholas Romeo to a psychiatric hospital. This initial action rendered these people
helpless to help themselves or to seek help from persons unconnected to the
government. See Estelle, supra, at 104 ("[I]t is but just that the public be required to
care for the prisoner, who cannot by reason of the deprivation of his liberty, care for
himself"); Youngberg, supra, at 317 ("When a person is institutionalized - and wholly
dependent on the State - it is conceded by petitioners that a duty to provide certain
services and care does exist"). Cases from the lower courts also recognize that a State's
actions can be decisive in assessing the constitutional significance of subsequent
inaction. For these purposes, moreover, actual physical restraint is not the only state
action that has been considered relevant. See, e. g., White v. Rochford, 592 F.2d 381
(CA7 1979) (police officers violated due process when, after arresting the guardian of
three young children, they abandoned the children on a busy stretch of highway at
night).
Because of the Court's initial fixation on the general principle that the Constitution
does not establish positive rights, it is unable to appreciate our recognition in Estelle
and Youngberg that this principle does not hold true in all circumstances. Thus, in

47
the Court's view, Youngberg can be explained (and dismissed) in the following way:
"In the substantive due process analysis, it is the State's affirmative act of restraining
the individual's freedom to act on his own behalf - through incarceration,
institutionalization, or other similar restraint of personal liberty - which is the
`deprivation of liberty' triggering the protections of the Due Process [489 U.S. 189,
206] Clause, not its failure to act to protect his liberty interests against harms
inflicted by other means." Ante, at 200. This restatement of Youngberg's holding
should come as a surprise when one recalls our explicit observation in that case that
Romeo did not challenge his commitment to the hospital, but instead "argue[d] that
he ha[d] a constitutionally protected liberty interest in safety, freedom of movement,
and training within the institution; and that petitioners infringed these rights by
failing to provide constitutionally required conditions of confinement." 457 U.S., at
315 (emphasis added). I do not mean to suggest that "the State's affirmative act of
restraining the individual's freedom to act on his own behalf," ante, at 200, was
irrelevant in Youngberg; rather, I emphasize that this conduct would have led to no
injury, and consequently no cause of action under 1983, unless the State then had
failed to take steps to protect Romeo from himself and from others. In addition, the
Court's exclusive attention to state-imposed restraints of "the individual's freedom to
act on his own behalf," ante, at 200, suggests that it was the State that rendered Romeo
unable to care for himself, whereas in fact - with an I. Q. of between 8 and 10, and the
mental capacity of an 18-month-old child, 457 U.S., at 309 - he had been quite
incapable of taking care of himself long before the State stepped into his life. Thus,
the fact of hospitalization was critical in Youngberg not because it rendered Romeo
helpless to help himself, but because it separated him from other sources of aid that,
we held, the State was obligated to replace. Unlike the Court, therefore, I am unable
to see in Youngberg a neat and decisive divide between action and inaction.
Moreover, to the Court, the only fact that seems to count as an "affirmative act of
restraining the individual's freedom to act on his own behalf" is direct physical
control. Ante, at 200 (listing only "incarceration, institutionalization, [and] other
similar restraint of personal liberty" in describing relevant "affirmative acts"). I would
not, however, give Youngberg [489 U.S. 189, 207] and Estelle such a stingy scope.
I would recognize, as the Court apparently cannot, that "the State's knowledge of [an]
individual's predicament [and] its expressions of intent to help him" can amount to
a "limitation . . . on his freedom to act on his own behalf" or to obtain help from
others. Ante, at 200. Thus, I would read Youngberg and Estelle to stand for the much
more generous proposition that, if a State cuts off private sources of aid and then
refuses aid itself, it cannot wash its hands of the harm that results from its inaction.
Youngberg and Estelle are not alone in sounding this theme. In striking down a filing
fee as applied to divorce cases brought by indigents, see Boddie v. Connecticut, 401
U.S. 371 (1971), and in deciding that a local government could not entirely foreclose
the opportunity to speak in a public forum, see, e. g., Schneider v. State, 308 U.S. 147
(1939); Hague v. Committee for Industrial Organization, 307 U.S. 496 (1939); United
States v. Grace, 461 U.S. 171 (1983), we have acknowledged that a State's actions -
such as the monopolization of a particular path of relief - may impose upon the State
certain positive duties. Similarly, Shelley v. Kraemer, 334 U.S. 1 (1948), and Burton
v. Wilmington Parking Authority, 365 U.S. 715 (1961), suggest that a State may be
found complicit in an injury even if it did not create the situation that caused the
harm.
Arising as they do from constitutional contexts different from the one involved here,
cases like Boddie and Burton are instructive rather than decisive in the case before

48
us. But they set a tone equally well established in precedent as, and contradictory to,
the one the Court sets by situating the DeShaneys' complaint within the class of cases
epitomized by the Court's decision in Harris v. McRae, 448 U.S. 297 (1980). The cases
that I have cited tell us that Goldberg v. Kelly, 397 U.S. 254 (1970) (recognizing
entitlement to welfare under state law), can stand side by side with Dandridge v.
Williams, 397 U.S. 471, 484 (1970) (implicitly rejecting idea that welfare is a
fundamental right), and that Goss v. [489 U.S. 189, 208] Lopez, 419 U.S. 565, 573
(1975) (entitlement to public education under state law), is perfectly consistent with
San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 29 -39 (1973) (no
fundamental right to education). To put the point more directly, these cases signal
that a State's prior actions may be decisive in analyzing the constitutional significance
of its inaction. I thus would locate the DeShaneys' claims within the framework of
cases like Youngberg and Estelle, and more generally, Boddie and Schneider, by
considering the actions that Wisconsin took with respect to Joshua.
Wisconsin has established a child-welfare system specifically designed to help
children like Joshua. Wisconsin law places upon the local departments of social
services such as respondent (DSS or Department) a duty to investigate reported
instances of child abuse. See Wis. Stat. 48.981(3) (1987-1988). While other
governmental bodies and private persons are largely responsible for the reporting of
possible cases of child abuse, see 48.981(2), Wisconsin law channels all such reports
to the local departments of social services for evaluation and, if necessary, further
action. 48.981(3). Even when it is the sheriff's office or police department that receives
a report of suspected child abuse, that report is referred to local social services
departments for action, see 48.981(3)(a); the only exception to this occurs when the
reporter fears for the child's immediate safety. 48.981(3)(b). In this way, Wisconsin
law invites - indeed, directs - citizens and other governmental entities to depend on
local departments of social services such as respondent to protect children from
abuse.
The specific facts before us bear out this view of Wisconsin's system of protecting
children. Each time someone voiced a suspicion that Joshua was being abused, that
information was relayed to the Department for investigation and possible action.
When Randy DeShaney's second wife told the police that he had "`hit the boy causing
marks and [was] a prime case for child abuse,'" the police referred her [489 U.S. 189,
209] complaint to DSS. Ante, at 192. When, on three separate occasions, emergency
room personnel noticed suspicious injuries on Joshua's body, they went to DSS with
this information. Ante, at 192-193. When neighbors informed the police that they had
seen or heard Joshua's father or his father's lover beating or otherwise abusing Joshua,
the police brought these reports to the attention of DSS. App. 144-145. And when
respondent Kemmeter, through these reports and through her own observations in the
course of nearly 20 visits to the DeShaney home, id., at 104, compiled growing
evidence that Joshua was being abused, that information stayed within the
Department - chronicled by the social worker in detail that seems almost eerie in light
of her failure to act upon it. (As to the extent of the social worker's involvement in,
and knowledge of, Joshua's predicament, her reaction to the news of Joshua's last and
most devastating injuries is illuminating: "`I just knew the phone would ring some
day and Joshua would be dead.'" 812 F.2d 298, 300 (CA7 1987).)
Even more telling than these examples is the Department's control over the decision
whether to take steps to protect a particular child from suspected abuse. While many
different people contributed information and advice to this decision, it was up to the
people at DSS to make the ultimate decision (subject to the approval of the local

49
government's corporation counsel) whether to disturb the family's current
arrangements. App. 41, 58. When Joshua first appeared at a local hospital with
injuries signaling physical abuse, for example, it was DSS that made the decision to
take him into temporary custody for the purpose of studying his situation - and it was
DSS, acting in conjunction with the corporation counsel, that returned him to his
father. Ante, at 192. Unfortunately for Joshua DeShaney, the buck effectively stopped
with the Department.
In these circumstances, a private citizen, or even a person working in a government
agency other than DSS, would doubtless feel that her job was done as soon as she had
reported [489 U.S. 189, 210] her suspicions of child abuse to DSS. Through its
child-welfare program, in other words, the State of Wisconsin has relieved ordinary
citizens and governmental bodies other than the Department of any sense of
obligation to do anything more than report their suspicions of child abuse to DSS. If
DSS ignores or dismisses these suspicions, no one will step in to fill the gap.
Wisconsin's child-protection program thus effectively confined Joshua DeShaney
within the walls of Randy DeShaney's violent home until such time as DSS took
action to remove him. Conceivably, then, children like Joshua are made worse off by
the existence of this program when the persons and entities charged with carrying it
out fail to do their jobs.
It simply belies reality, therefore, to contend that the State "stood by and did nothing"
with respect to Joshua. Ante, at 203. Through its child-protection program, the State
actively intervened in Joshua's life and, by virtue of this intervention, acquired ever
more certain knowledge that Joshua was in grave danger. These circumstances, in my
view, plant this case solidly within the tradition of cases like Youngberg and Estelle.
It will be meager comfort to Joshua and his mother to know that, if the State had
"selectively den[ied] its protective services" to them because they were "disfavored
minorities," ante, at 197, n. 3, their 1983 suit might have stood on sturdier ground.
Because of the posture of this case, we do not know why respondents did not take
steps to protect Joshua; the Court, however, tells us that their reason is irrelevant so
long as their inaction was not the product of invidious discrimination. Presumably,
then, if respondents decided not to help Joshua because his name began with a "J," or
because he was born in the spring, or because they did not care enough about him
even to formulate an intent to discriminate against him based on an arbitrary reason,
respondents would not be liable to the DeShaneys because they were not the ones
who dealt the blows that destroyed Joshua's life. [489 U.S. 189, 211]
I do not suggest that such irrationality was at work in this case; I emphasize only that
we do not know whether or not it was. I would allow Joshua and his mother the
opportunity to show that respondents' failure to help him arose, not out of the sound
exercise of professional judgment that we recognized in Youngberg as sufficient to
preclude liability, see 457 U.S., at 322 -323, but from the kind of arbitrariness that we
have in the past condemned. See, e. g., Daniels v. Williams, 474 U.S. 327, 331 (1986)
(purpose of Due Process Clause was "to secure the individual from the arbitrary
exercise of the powers of government" (citations omitted)); West Coast Hotel Co. v.
Parrish, 300 U.S. 379, 399 (1937) (to sustain state action, the Court need only decide
that it is not "arbitrary or capricious"); Euclid v. Ambler Realty Co., 272 U.S. 365, 389
(1926) (state action invalid where it "passes the bounds of reason and assumes the
character of a merely arbitrary fiat," quoting Purity Extract & Tonic Co. v. Lynch, 226
U.S. 192, 204 (1912)).

50
Youngberg's deference to a decisionmaker's professional judgment ensures that once
a caseworker has decided, on the basis of her professional training and experience,
that one course of protection is preferable for a given child, or even that no special
protection is required, she will not be found liable for the harm that follows. (In this
way, Youngberg's vision of substantive due process serves a purpose similar to that
served by adherence to procedural norms, namely, requiring that a state actor stop
and think before she acts in a way that may lead to a loss of liberty.) Moreover, that
the Due Process Clause is not violated by merely negligent conduct, see Daniels,
supra, and Davidson v. Cannon, 474 U.S. 344 (1986), means that a social worker who
simply makes a mistake of judgment under what are admittedly complex and difficult
conditions will not find herself liable in damages under 1983.
As the Court today reminds us, "the Due Process Clause of the Fourteenth
Amendment was intended to prevent government [489 U.S. 189, 212] `from abusing
[its] power, or employing it as an instrument of oppression.'" Ante, at 196, quoting
Davidson, supra, U.S., at 348. My disagreement with the Court arises from its failure
to see that inaction can be every bit as abusive of power as action, that oppression can
result when a State undertakes a vital duty and then ignores it. Today's opinion
construes the Due Process Clause to permit a State to displace private sources of
protection and then, at the critical moment, to shrug its shoulders and turn away from
the harm that it has promised to try to prevent. Because I cannot agree that our
Constitution is indifferent to such indifference, I respectfully dissent.
JUSTICE BLACKMUN, dissenting.
Today, the Court purports to be the dispassionate oracle of the law, unmoved by
"natural sympathy." Ante, at 202. But, in this pretense, the Court itself retreats into a
sterile formalism which prevents it from recognizing either the facts of the case before
it or the legal norms that should apply to those facts. As JUSTICE BRENNAN
demonstrates, the facts here involve not mere passivity, but active state intervention
in the life of Joshua DeShaney - intervention that triggered a fundamental duty to aid
the boy once the State learned of the severe danger to which he was exposed.
The Court fails to recognize this duty because it attempts to draw a sharp and rigid
line between action and inaction. But such formalistic reasoning has no place in the
interpretation of the broad and stirring Clauses of the Fourteenth Amendment.
Indeed, I submit that these Clauses were designed, at least in part, to undo the
formalistic legal reasoning that infected antebellum jurisprudence, which the late
Professor Robert Cover analyzed so effectively in his significant work entitled Justice
Accused (1975).
Like the antebellum judges who denied relief to fugitive slaves, see id., at 119-121, the
Court today claims that its decision, however harsh, is compelled by existing legal
doctrine. On the contrary, the question presented by this case [489 U.S. 189, 213] is
an open one, and our Fourteenth Amendment precedents may be read more broadly
or narrowly depending upon how one chooses to read them. Faced with the choice,
I would adopt a "sympathetic" reading, one which comports with dictates of
fundamental justice and recognizes that compassion need not be exiled from the
province of judging. Cf. A. Stone, Law, Psychiatry, and Morality 262 (1984) ("We will
make mistakes if we go forward, but doing nothing can be the worst mistake. What is
required of us is moral ambition. Until our composite sketch becomes a true portrait
of humanity we must live with our uncertainty; we will grope, we will struggle, and
our compassion may be our only guide and comfort").

51
Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and
intemperate father, and abandoned by respondents who placed him in a dangerous
predicament and who knew or learned what was going on, and yet did essentially
nothing except, as the Court revealingly observes, ante, at 193, "dutifully recorded
these incidents in [their] files." It is a sad commentary upon American life, and
constitutional principles - so full of late of patriotic fervor and proud proclamations
about "liberty and justice for all" - that this child, Joshua DeShaney, now is assigned
to live out the remainder of his life profoundly retarded. Joshua and his mother, as
petitioners here, deserve - but now are denied by this Court - the opportunity to have
the facts of their case considered in the light of the constitutional protection that 42
U.S.C. 1983 is meant to provide. [489 U.S. 189, 214]

14. W ILSON V. S TATE, 33 A RK. 557 (1878) (B UT TO PROHIBIT THE CITIZEN FROM
WEARING OR CARRYING A WAR ARM, EXCEPT UPON HIS OWN PREMISES OR WHEN ON A
JOURNEY TRAVELING THROUGH THE COUNTRY WITH BAGGAGE, OR WHEN ACTING AS OR
IN AID OF AN OFFICER, IS AN UNWARRANTED RESTRICTION UPON HIS CONSTITUTIONAL
RIGHT TO KEEP AND BEAR ARMS. ¶ IF COWARDLY AND DISHONORABLE MEN SOMETIMES
SHOOT UNARMED MEN WITH ARMY PISTOLS OR GUNS, THE EVIL MUST BE PREVENTED BY
THE PENITENTIARY AND GALLOWS, AND NOT BY A GENERAL DEPRIVATION OF A
CONSTITUTIONAL PRIVILEGE).
WILSON v. STATE OF ARKANSAS.
[Syllabus]
1. CRIMINAL PLEADING: Indictment, when should negative exceptions in a statute.
When there is an exception in the enacting clause of a statute, it must be negatived
in the indictment, but when a statute contains provisos and exceptions in distinct
clauses it is not necessary to state that the defendant does not come within the
exceptions, or to negative the proviso it contains.
2. EVIDENCE: Declarations of prisoner. Res gestae.
The statements of a defendant of his intended use of a pistol at the time he borrowed
it of the witness, and a like statement when he exhibited it to another witness, were
admissible in evidence as part of the res gestae.
3. CRIMINAL LAW: Carrying weapons: Constitutional right to bear arms.
The Legislature may to some extent regulate the mode and occasion of wearing war
arms, but to prohibit the citizen from wearing or carrying a war arm except upon his
own premises or when on a journey, or when acting as or in aid of an officer, is an
unwarranted restriction upon his constitutional right to keep and bear arms.
APPEAL from Arkansas Circuit Court.
Hon. J. A. WILLIAMS, Circuit Judge.
[Opinion]
ENGLISH, C. J.:

52
Chancy Wilson was indicted in the Circuit Court of Arkansas county, at March term,
1878, as follows:
"The grand jury, etc., etc., accuse Chancy Wilson of the crime of carrying side arms,
committed as follows, to-wit: The said Chancy Wilson in the county aforesaid, on or
about the 14th day of February 1878, did then and there unlawfully carry a pistol as
a weapon, contrary to the statute in such case made and provided, and against the
peace and dignity of the State," etc.
The defendant demurred to the indictment, the court overruled the demurrer, he was
tried and convicted, a new trial was refused him, and he took a bill of exceptions and
appealed.
I.
It is submitted for appellant that the indictment is bad, because it does not negative
the exceptions contained in the proviso of the act under which it was preferred. Acts
of 1874-5 p. 155.
When there is an exception in the enacting clause of a statute it must be negatived;
but when a statute contains provisos and exceptions in distinct clauses, it is not
necessary to state in the indictment that the defendant does not come within the
exceptions, or to negative the proviso it contains. Britton v. State, 10 Ark., 301;
Matthews v. State, Ib. 485; Shaver v. State, Ib. 259; Rone v. State, 18 Ib. 113; 1
Wharton Cr. L. (6 Ed.) p. 378.
The enacting clause of the statute makes it a misdemeanor, punishable by fine, for
any person to wear or carry as a weapon, any pistol, dirk, butcher or bowie knife,
sword or spear in a cane, brass or metal knucks, or razor. In a proviso, exceptions are
made in favor of persons on their own premises, or travelling through the country on
a journey with baggage, officers of the law engaged in the discharge of official duties,
or persons summoned by an officer to assist in the execution of process, or a private
person authorized to execute process.
It is sufficient for the indictment to charge the offense prohibited by the enacting
clause of the statute, and if the accused is within any of the exceptions mentioned in
the proviso, it is matter of defense.
It follows that the court below did not err in overruling the demurrer to the
indictment.
II.
It was proven on the trial that appellant borrowed of witness, Bowers, a large army
size six shooter, a revolving pistol, 44 caliber, eight inches in the barrel, such as is
commonly used in warfare, stating at the time he borrowed it, that he was going over
to Pearman's to shoot wild hogs. On the next day he went to Pearman's, stated to him
the purpose of his visit, and while conversing with him, before going into dinner,
pulled the pistol out of his boot, cocked it a few times to see if it would revolve, and
then put it around under his coat, and went in to dinner.
The court excluded from the jury the statement made by the appellant to Bowers,
when he borrowed the pistol from him, as to the use he intended to make of it, and
a like statement made by appellant at Pearman's where he took the pistol from his
boot in his presence, etc. These declarations were admissible as part of the res gestae.
Pitman v. State, 22 Ark., 357.
III.

53
The appellant, among other instructions, asked the court to charge the jury that if they
believed from the evidence, that the pistol carried by him was an army size pistol,
such as are commonly used in warfare, they should acquit; which was refused by the
court.
In Fife v. State, 31 Ark., 455, on review of authorities, we held that the Legislature
might constitutionally prohibit the carrying of such pistols and other arms easily
concealed about the person, as are used in quarrels, brawls and fights between
maddened individuals, but that the Constitution guaranteed to the citizens the right
to keep and bear arms for defense, etc.
And it was indicated in the opinion that the Legislature might, in the exercise of the
police power of the State, regulate the mode of wearing war arms, and no doubt the
occasions of wearing such arms may be to some extent regulated.
Thus it has been made an offense to wear a pistol, etc., concealed (Gantt's Dig., sec.
1517) and this may well apply to the character of the pistol used as a war arm.
So hunting with a gun with intent to kill game, or shootings for amusement, on the
Sabbath, are made offenses. Gantt's Dig., sec. 162.
No doubt in time of peace, persons might be prohibited from wearing war arms to
places of public worship, or elections, etc. Andrews v. State, 3 Heiskel, 182.
But to prohibit the citizen from wearing or carrying a war arm, except upon his own
premises or when on a journey traveling through the country with baggage, or when
acting as or in aid of an officer, is an unwarranted restriction upon his constitutional
right to keep and bear arms.
If cowardly and dishonorable men sometimes shoot unarmed men with army pistols
or guns, the evil must be prevented by the penitentiary and gallows, and not by a
general deprivation of a constitutional privilege.
The judgment is reversed and the cause remanded for a new trial.

If Mr. Barghaan was truly honest with the attorney’s duty of candor to the tribunal as he
claims above then he should have disclosed the fact there is a dissenting opinion by Circuit Judge
Sentelle in the Seegars case. That dissenting opinion is included herein:

15. JUDGE S ENTELLE’S D ISSENTING O PINION IN S EEGARS V. G ONZALES, 396 F.3D 1248
(D.C. C IR. 2005), CERT. DENIED, 126 S. C T. 1187 (2006):
SENTELLE, Circuit Judge, dissenting: While I commend the balanced tone and
thoroughness of the majority opinion, I find that after examining the authorities
discussed therein, I reach a different conclusion. As the court relates, plaintiffs seek
to challenge the provisions of the District of Columbia’s Criminal Code limiting the
possession of pistols, as violative of their Second Amendment rights to keep and bear
arms. The District Court held that they had no standing. Today this court has
affirmed.

54
I would find standing based on the authority of cases cited by the majority. The record
offers essentially undisputed evidence of the appellants’ intent to engage in gun-
related conduct prohibited by the challenged Code provisions, but for the existence
of those provisions. Appellants adequately allege and argue that this conduct is
protected by the Second Amendment to the United States Constitution.
The Supreme Court has said, as the majority quotes:
When the plaintiff has alleged an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed by a statute, and there exists a
credible threat of prosecution thereunder, he should not be required to await and
undergo a criminal prosecution as the sole means of seeking relief.
Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979) (citing Doe v.
Bolton, 410 U.S. 179, 188 (1973)) (internal quotation marks omitted). The majority’s
further analysis of United Farm Workers is directly on point:
In United Farm Workers, a union challenged provisions of a state statute that made it
an unfair labor practice, punishable with criminal penalties, to encourage consumer
boycotts of agricultural products by the use of “dishonest, untruthful and deceptive
publicity.” 442 U.S. at 301. The state argued that the criminal penalty provision had
not yet been applied and might never be applied to unfair labor practices. Id. at 302.
The Court found standing, saying that “the State has not disavowed any intention of
invoking the criminal penalty provision against unions that commit unfair labor
practices,” id., and that the union’s fear of prosecution was not “imaginary or wholly
speculative,” id. Thus United Farm Workers appeared to find a threat of prosecution
credible on the basis that plaintiffs’ intended behavior is covered by the statute and
the law is generally enforced.
Maj. Op. at 7. As appellants allege a similarly realistic fear of prosecution, I would
hold United Farm Workers controlling, and conclude that appellants have standing to
bring the Second Amendment challenge.
As the majority notes, a long line of cases upholds preenforcement review of First
Amendment challenges to criminal statutes by plaintiffs with bases for standing no
different than that asserted by appellants herein for their Second Amendment
challenge. For example, in Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988),
plaintiffs brought a suit challenging the constitutionality of a newly enacted Virginia
statute criminalizing the display for commercial purposes of visual or written material
that “depicts sexually explicit nudity, sexual conduct, or pseudo-masochistic abuse
which is harmful to juveniles.” Va. Code § 18.2-391(a) (Supp. 1987). The
Commonwealth of Virginia argued that plaintiffs lacked standing, because they had
not yet been prosecuted under the Act. The Supreme Court, in discussing the
standing question, declared itself “not troubled by the pre-enforcement nature of this
suit.” American Booksellers, 484 U.S. at 393. Because “the state ha[d] not suggested
that the . . . law will not be enforced,” and the Court saw no reason to assume that it
would not be, the Court found standing, “conclud[ing] that plaintiffs have alleged an
actual and well-founded fear that the law will be enforced against them.” Id. I see no
distinction between that case and this.
As the Supreme Court further noted in American Booksellers, the danger of the statute
before it could “be realized even without an actual prosecution.” Id. Needless to say,
the harm lay in self-censorship–that is, the curtailing of an otherwise constitutional
activity because of an allegedly unconstitutional criminal statute. The only difference
between that harm and the harm alleged in this case is that there it was to First

55
Amendment interests, here to Second. I know of no hierarchy of Bill of Rights
protections that dictates different standing analysis.
I acknowledge, as the majority notes, that a case from this circuit, Navegar, Inc. v.
United States, 103 F.3d 994 (D.C. Cir. 1997), is in tension with “cases upholding pre-
enforcement review of First Amendment challenges to criminal statutes.” Maj. Op. at
10. In Navegar, plaintiff-appellants sought declaratory judgment striking down as
unconstitutional provisions of the Violent Crime Control and Law Enforcement Act
of 1994, which outlawed firearm products manufactured by appellants, some by
name, and others by description. While we found standing to challenge the regulation
of the named products, we held there was no standing as to the products outlawed
only by description. See Navegar, 103 F.3d at 1001. The Navegar court found the
threat of prosecution under the provisions outlawing products by description
insufficiently imminent to support standing on the record before it. Those latter
provisions outlawed firearms in language so general that the court found “it
impossible to foretell precisely how these provisions may be applied.” Id. Further, the
Navegar court found insufficient evidence of the government’s intent to enforce the
“generic portions of the Act” against the specific parties before it. Id.
While I acknowledge that the majority is correct that Navegar can be read as
controlling the case before us and barring standing, I think it is distinguishable. The
allegedly constitutionally protected conduct in the record before us is clearly defined
and clearly unlawful under a statute that the District apparently enforces regularly,
and under which there is certainly no doubt that plaintiffs reasonably apprehend
enforcement. I would therefore find the line of cases represented by American
Booksellers, rather than Navegar, controlling.
For the reasons set forth above, I respectfully dissent.

16. IS THE U.S. D EPARTMENT OF J USTICE A DHERING TO THEIR M ISSION S TATMENT’S


“F AIR AND IMPARTIAL A DMINISTRATION OF J USTICE FOR ALL A MERICANS? I T HINK
N OT!
If ensuring fair and impartial administration of justice for all Americans is part of the
U.S. Department of Justice’s Mission Statement and if the Justice Department’s policy that the
Second Amendment “secures a right of individuals generally, not a right of States or a right restricted
to persons serving in militias” and if Mr. Barghaan truly believes in the Separation of Powers Doctrine
as he so stipulated in his Motion to Dismiss then he should have complied with his employer’s
policy on the Second Amendment and filed a Motion of Nolo Contendre. Nope! Instead, he
subscribes and caters to the U.S. District Court for the District of Columbia’s collectivist’s view on
the Second Amendment allowing the Judicial Branch to dictate what the Executive Branch is to file
in its Court. That’s not exactly Separation of Powers now is it!

The problem of whether or not a government official (i.e., an Assistant U.S. Attorney) should
govern his judgments and activities more closely in line with constitutional limits rather that

56
institutional limits is covered by the inclusion in its entirety of Brannon P. Denning GUN SHY : THE
SECOND AMENDMENT AS AN “UNDERENFORCED CONSTITUTIONAL NORM ” Harvard Journal of Law & Public
Policy, 21 Harv. J.L. & Pub. Pol’y 719 (Summer, 1998) beginning on page 329 in my Civil RICO Act
Complaint.

Mr. Barghaan committed a fraud upon the U.S. District Court for the District of Columbia by
using only part of a paragraph from Capt. J. P. Brusseau’s letter, dated April 19, 2002, as supporting
evidence for Motion to Dismiss.

I am impressed with your scholarship and zeal in formulating arguments in support


of your application for a "National Open Carry Handgun" endorsement on your
Merchant Mariner's Document, but I am not persuaded to agree with you. As you have
noted, the laws and regulations do not provide for such an endorsement nor do they
prohibit it. Instead, the matter is left to my judgment.3 My decision, after considering
all the material you have submitted, is that it would not be in the best interest of
marine safety or security4 to initiate the endorsement you have applied for. Your
appeal is therefore denied and the Commanding Officer, National Maritime Center is
directed not to place any endorsements regarding firearms on any merchant mariner's
licenses or documents.

Mr. Barghaan knew that the omitted portion of that paragraph would be the Achilles heel to
any defence the U.S. Government fabricate. Indeed! The entire case hinges upon the single
determining factor on whether or not Capt. Brusseau had discretion or whether he had the
compelling ministerial duty mandated by his Oath of Office to approve my application for the
Second Amendment endorsement for National Open Carry Handgun because open carry in interstate
travel is the undeniable constitutional norm.

I hereby use that paragraph above in its entirety as evidence supporting my allegation that
Capt. Brusseau DID NOT, in fact and law, have the discretion to deny my application for the National
Open Carry Handgun endorsement for two reasons: (1) my application for the National Open Carry
Handgun was based upon the Second, Fifth, Ninth, Tenth, Thirteenth, and Fourteenth Amendments;
and (2) Capt. Brusseau’s Oath of Office to support and defend the U.S. Constitution precluded any
discretion when my application is based on the Constitution

3
Emphasis is mine.
4
Emphasis is mine.

57
I have ample evidence in my Civil RICO Act Complaint to show that firearms possession by
those possessing Merchant Mariners Documents would, in fact and law, be in the best interest of
marine safety or security. And I have a First Amendment right to petition and a Fourteenth
Amendment right to substantial and procedural due process to prove this at trial unless the Court
believes, as Mr. Barghaan appears to believe, that I have no such rights.

17. M. E LIZABETH M AGILL, B EYOND P OWERS AND B RANCHES IN S EPARATION OF


P OWERS L AW, U NIVERSITY OF V IRGINIA S CHOOL OF L AW, P UBLIC L AW AND L EGAL
T HEORY R ESEARCH P APERS S ERIES, W ORKING P APER N O. 01-10. D ECEMBER 2001:
Part I of this Article presents and criticizes the two central features of current
separation of powers thinking. The burden of this Part is that these ideas
fail so completely that they should be abandoned, making room for a
reconceptualization of separation of powers law that forgoes reliance on the familiar,
but unhelpful, guides of three powers and three branches. Part II starts the
reconstruction effort. The criticisms offered here diagnose particular failings of
current doctrine and suggest the more promising paths that doctrine should pursue.

Part II: Beyond Powers and Branches


Conventional approaches to separation of powers aspire to identify and separate three
different powers in three different branches and to assure that some appropriate level
of authority is maintained among the three branches. As Part I argued, both parts of
that effort fail: The functions are difficult to distinguish and seem destined to blend
together at the margins, and maintaining some appropriate allocation of authority
among branches is a fruitless enterprise, in part because the inquiry itself is
incoherent--branches are not bodies with unitary interests, but are made up of diverse
entities and individuals with varying concerns that do not simply correspond to
branch affiliation. Without an understanding of how functions could be kept separate,
or how branches could be kept balanced, conventional approaches have difficulty
getting off the ground. We should see that enterprise for what it is, a failure, and
abandon it.
That failure does not mean there are no helpful ways to think about the distribution
of government authority within a separation of powers system. To be sure,
reconstruction of separation of powers law will be difficult. Identifying the precise
contours of that doctrine is beyond the scope of this Article. We cannot start that
effort, however, without understanding exactly where current law goes wrong and in
that sense this Article contributes to that effort. But the criticisms offered here do
more than clear the way for a reconceptualization of separation of powers law; they
assist in that effort. Taking seriously some of the failings of current law not only
reveals that we are asking the wrong questions, it helps identify the right ones.
Reconstructing separation of powers law must begin by recalling its aims. Most
broadly, those aims are to fragment the exercise of government authority and
guarantee that fragmentation. A more fine-grained appreciation of these objectives
understands the effort to disperse power as having two distinct aspects. One is the
diffusion of government authority among a number of decisionmakers in order to

58
assure that no single decisionmaker (or institution) exercises all that authority.117 The
point is familiar: we do not want one, or even a few, actors to control all government
authority because such an arrangement increases the risk that state power will be
abused in some unquestionably awful way. What is important on this understanding
is that a large enough range of decisionmakers share in the exercise of government
authority. It does not much matter what we call the power those decisionmakers
exercise; it just matters that government authority is diffused among them.
The effort to divide power and assure that it remains so divided also has another,
more ambitious and complicated, component: matching the exercise of certain types
of government authority with specific types of government decisionmakers.118118 This
aspect of the effort to fragment government authority is best illustrated by the widely
held intuition that individualized disputes should be adjudged by decisionmakers
who have a duty to be impartial and, at the federal level at least, are insulated from
direct electoral politics. For this sort of effort to fragment power, the type of
government power matters quite a bit because certain categories of government
authority can be appropriately exercised only by corresponding decisionmakers.
Orthodox approaches to separation of powers seek to satisfy both these aims through
the mechanisms analyzed in Part I. They aspire to identify and separate the three
functions into three institutions and assure some balance among those institutions.
In theory at least, adhering to the conventional approach would mean that power
would generally be diffused among three government institutions and that diffusion
would occur in a specific way: Three different powers would be exercised by three
corresponding branches. Of course, this Article has argued that we cannot tell the
difference between the powers in contested cases and that there is no such thing as
a branch in the sense assumed by conventional approaches. This might sound like
bad news, but it is not because that critique offers important lessons for both parts of
the fragmentation effort.
***
The most important lesson is that, if one is interested in assuring that government
authority is fragmented in a general way, the failure of the conventional approaches
need not be lamented. It is true, we cannot identify the differences between the three
powers and cannot speak coherently of balanced branches. But we do not need to
succeed with that effort in order to achieve fragmented government authority. In the
process of noticing that there is no such thing as three essential powers exercised by
three undifferentiated entities called branches, we also should have noticed that, in
fact, the exercise of government authority is highly fragmented–it is just not according
to the three-powers-in-three-branches formula. Rather, we have a much more
complicated form of fragmentation in the political system that has evolved. In that
system, government authority is dispersed among a group larger than the usual
suspects of the three branches. State power is diffused among an enormous, and
diverse, array of decisionmakers who populate what we call the branches. Within
Congress, a House committee chair; a ranking member of a Senate committee; the
Deputy Whip in the Senate or the Majority Leader in the House. Within the executive,
an agency administrator; the Director of the Office of Management and Budget; a

117
Martin H. Redish, THE CONSTITUTION AS POLITICAL STRUCTURE (1995) at 102-08; M. Elizabeth Magill,
THE REAL SEPARATION IN SEPARATION OF POWERS LAW, 86 VA. L. REV. 1127, at 229 (2000)
118
See, e.g., David P. Currie, THE DISTRIBUTION OF POWERS AFTER BOWSHER, 1986 Sup. Ct. Rev. at 21-37

59
United States Attorney. Within the judiciary, a magistrate; a bankruptcy judge; a
District Court judge; appellate judges. Each of these decisionmakers plays some
important role in the exercise of state power. If diffused government authority is what
we are after, we have it, in spades.
This kind of fragmentation is complicated, even chaotic, but it is also our assurance
against threatening concentrations of government power. These many and varied
government actors can be counted on to protect their slice of decisionmaking
authority and in that way they will naturally work against concentrations of
government authority.119119 That government decisionmakers will protect their turf
may be intuitive, but that intuition is bolstered by the fact that these actors have
diverse incentives, making the risk that a critical mass of them will collude together
to concentrate power (and hence be in a position to abuse that authority) quite slim.
These government decisionmakers operate under different selection and tenure rules
and thus have distinct constituencies (electoral or otherwise), are located within
institutions and subinstitutions with separate internal organization and norms, and
have varied ways of making policy decisions. The factors that push and pull those
decisionmakers in different directions are about as multifarious as can be imagined.
It is this kind of variation among multiple decisionmakers that supplies the kind of
political culture that we have. This political culture surely has its drawbacks. It is far
from cohesive; within its confines, it is even difficult to translate an overwhelming
electoral mandate into dramatic policy change.120 But it also has advantages: it offers
many points of entry into the policymaking process and many types of
decisionmakers with varied incentives resulting from their distinct constituencies,
institutional location, and ways of doing business. Whatever its normative merits,
however, this system exhibits the trait sought by the conventional approaches: within
it, government authority is fragmented.
That we operate in a system where government authority is highly fragmented, and
is likely to remain so, has significant implications for separation of powers doctrine.
It means that a piece of that doctrine is just concerned with the wrong thing. When
courts or commentators stress the importance of keeping the exercise of government
functions in distinct branches, or assert that one branch will be aggrandized by an
arrangement, one fear driving these claims is that the failure to separate functions or
prevent aggrandizement will lead to a dangerous concentration of government power
in one branch of government.121 At a doctrinal level, this concern about concentration

119
See James Q. Wilson, BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT, at 179-95
202-05 (1989) (key to agency officer’s success is location of external constituencies wherever they may be
found, including key committees and members in Congress, other parts of the executive, or important interest
groups)
120
See Bruce Ackerman, THE NEW SEPARATION OF POWERS, 113 Harv. L.rev. 633, 642-48 (2000). See also
David R. Mayhew, DIVIDED WE GOVERN: PARTY CONTROL, LAWMAKING, AND INVESTIGATIONS, 1946-1990 (1991)
(arguing that there is little measurable difference in significant legislative output and frequency of
Congressional investigations based on unified or divided government).
121
See Martin H. Redish, THE CONSTITUTION AS POLITICAL STRUCTURE (1995) at 102-08; Steven G.
Calabresi & Saikrishna B. Prakash, THE PRESIDENT’S POWER TO EXECUTE THE LAWS, 104 Yale l.J. at 559-65 (1994);
David P. Currie, T HE D ISTRIBUTION OF POWERS AFTER BOWSHER, 1986 Sup. Ct. Rev. at 19; 4Abner S. Greene,
CHECKS AND BALANCES IN AN ERA OF PRESIDENTIAL LAW MAKING, 61 U. Chi. L. Rev. 123, 165 (1994); Gary Lawson,
THE RISE AND RISE OF THE ADMINISTRATIVE STATE, 107 Harv. L. Rev. at 1248-49 (1994); M. Elizabeth Magill, THE
REAL SEPARATION IN SEPARATION OF POWERS LAW, 86 Va. L. Rev. at 1183-84 (2000); Thomas W. Merrill, THE

60
of state authority arises in numerous contexts: courts and commentators debate
whether administrative agencies represent an impermissible combination of
government functions,122 whether the line-item veto strengthened the executive,123
whether the legislative veto aggrandized the Congress,124 or whether the executive
has, as the result of changes over time, become “the most dangerous branch” such that
Congress should be permitted to take action to counteract that phenomenon.125 Each
of these debates is, in part, about whether a particular branch of government has or
will accumulate excessive power. But once we recognize that government power can
be, and is, diffused within a branch, that fragmentation of state power need not
(indeed cannot be comprehensibly understood to) be among branches, the concern
that an arrangement concentrates power in a branch becomes anachronistic. Whatever
else the line-item veto or the legislative veto would do--and perhaps there are separate
reasons to be concerned about them--they would barely make a dent in the extensive
fragmentation of government authority that exists. With or without those devices,
government authority would remain diffused, widely so, among varied
decisionmakers.
Whether state authority is fragmented at exactly the right level is a distinct and
difficult question. Some claim that government authority is far too fragmented in our
system.126 But trying to maintain the ideal level of diffusion of state power would be
a futile exercise. If the arguments contained in Part I.B. are correct, it would not be
possible to design a doctrine that guaranteed just the right level of dispersal of
government authority. That enterprise would flounder in much the same way that the
effort to balance the branches flounders: we would have to articulate an ideal level
of fragmented power, identify the amount of fragmentation at any point in time, and
predict whether an arrangement would threaten to undermine the appropriate level.
To be sure, it is not incoherent to talk about achieving fragmentation of state power
in the same way that it is incoherent to talk about maintaining a balance among

CONSTITUTIONAL PRINCIPLE OF SEPARATION OF POWERS, 1991 Sup. Ct. Rev. at 229.


122
See David P. Currie, THE DISTRIBUTION OF POWERS AFTER BOWSHER, 1986 Sup. Ct. Rev. at 19-20; Gary
Lawson, THE RISE AND RISE OF THE ADMINISTRATIVE STATE, 107 Harv. L. Rev. at 1237-41 (1994);
123
Clinton v. City of New York, 524 U.S. 417, 451-52 (Kennedy, J., concurring); H. Jefferson Powell
& Jed Rubenfeld, LAYING IT ON THE LINE: A DIALOGUE ON LINE ITEM VETOES AND SEPARATION OF POWERS, 47 DUKE
L.J. 1171, at 1196 (1998)(line-item veto strengthens the executive); Neal E. Devins, IN SEARCH OF THE LOST
CHORD: REFLECTIONS ON THE 1996 ITEM VETO ACT, 47 CASE W. RES. L. REV. 1605, 1624-25 (1997) (line-item veto
does not unduly strengthen the executive).
124
A. Michael Froomkin, THE IMPERIAL PRESIDENCY’S NEW VESTMENTS, 88 NW. U. L.REV. at 1368 (1994)
(legislative veto aggrandizes Congress); Abner S. Greene, CHECKS AND BALANCES IN AN ERA OF PRESIDENTIAL LAW
MAKING, 61 U. Chi. L. Rev. at 158-62 (1994);
125
William N. Eskridge, Jr. and John Frerejohn, THE ARTICLE I, SECTION 7 GAME, 80 Geo. L.j. at 533 (1992)
(power shift to the executive); Martin S. Flaherty, THE MOST DANGEROUS BRANCH, 105 Yale L.J. 1725 (1996)
(same). But see Steven G. Calabresi, SOME NORMATIVE ARGUMENTS FOR THE UNITARY EXECUTIVE, 48 Ark. L. Rev.
at 31-3 (1995) (reviewing arguments that executive is now relatively weakened compared to other branches).
126
Such claims are the centerpiece of arguments against separation of powers systems. See, e.g.,
Giovanni Sartori, COMPARATIVE CONSTITUTIONAL ENGINEERING 86-91 (1993); SEPARATION OF POWERS–DOES IT STILL
WORK? (Robert A. Goldwin and Art Kaufman, eds., 1986); Bruce Ackerman, THE NEW SEPARATION OF POWERS,
113 HARV. L.REV. 633, 642-48 (2000).

61
branches.127 Even so, the other difficulties would prevent such an effort from being
successful.
Despite the impossibility of designing a doctrine that perfectly polices the extent of
the fragmentation of government authority, we should not miss the significance of the
insight that we operate in a system where state power is widely distributed, albeit not
only on the three-branch metric. Government authority is dispersed among many
decisionmakers, and, given their varied incentives, the likelihood of that authority
being consolidated in just a few hands is very small. Completely assessing or
controlling the extent of that fragmentation is probably impossible. Nonetheless, the
amount and character of that diffusion of state power should be more than sufficient
to put to rest concerns about dangerous concentrations of power. Saying anything
more precise than that is difficult. But saying that is quite important.
***
The lesson for the more finely-tuned aspect of the fragmentation effort is more
modest. That aspect aspires to something more than generic diffusion of state power
among varied decisionmakers; state power must be dispersed in a particular
way–certain types of power must be matched with certain types of decisionmakers.128
There are complicated, not always stated, reasons for these matches. Beliefs about the
correspondence between a power and a decisionmaker are based on intuitions about
the suitability of types of decisionmakers (a single person, rather than a collegial
body, must decide this sort of question)129 or normative convictions, such as what
liberal democracy requires (a multi-member, broadly representative, elected body
must make this kind of decision).130 In pursuit of this type of fragmentation,
conventional approaches to separation of powers seek to identify the three
government functions and make certain that they are exercised by the corresponding
institution. But we cannot possibly assure the right union between power and branch
because, as Part I argued, we cannot tell the difference between the powers in
contested cases and we should not think of institutions as if they were monolithic
entities. That does not mean there are no useful ways to think about what types of

127
See supra notes 110-116 and accompanying text.
128
David P. Currie, THE DISTRIBUTION OF POWERS AFTER BOWSHER, 1986 Sup. Ct. Rev. at 21-23, 31-32, 37.
129
Allocating government authority based on institutional competence is classically associated with
the legal process school. See William N. Eskridge and Philip P. Frickey, AN HISTORICAL AND CRITICAL
INTRODUCTION TO THE LEGAL PROCESS, at pp. lx-lxi, xci-xcvi in Henry M. Hart, Jr. and Albert M. Sacks, THE LEGAL
PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (Eskridge & Frickey, eds. 1994). For an example
of a separation of powers commentator who draws on that tradition, see David P. Currie, THE DISTRIBUTION OF
POWERS AFTER BOWSHER, 1986 Sup. Ct. Rev. at 31 (executive power vested in President, inter alia, because of
“the need to concentrate executive power in the hands of a single person”).
130
See David P. Currie, THE DISTRIBUTION OF POWERS AFTER BOWSHER, 1986 SUP. CT. REV. , at 22
(legislative power vested in the Congress because “it was important to give some substantial role in lawmaking
to a body directly elected by the people” and “the value of having legislative decisions made by a collective
body in which various interests were represented”); Gary Lawson, THE RISE AND RISE OF THE ADMINISTRATIVE
STATE, 107 Harv. L. Rev. at 1239 (“Congress must make whatever policy decisions are sufficiently important
to the statutoryscheme at issue so that Congress must make them.”). See also Martin S. Flaherty, THE MOST
DANGEROUS BRANCH, 105 Yale L.J. at 1738-42 (disputes over the unitary executive can be understood as
disputes about the value of accountability versus the value of balance among the branches of government).

62
decisionmakers should exercise different kinds of government authority. It will just
make us see that effort in a new light.
Matching the exercise of certain types of power with corresponding decisionmakers
is, to say the least, an ambitious undertaking. Assertions that some actors are most
capable of, or normatively required to, exercise particular state powers entail a host
of difficult, and vexing, questions. At the broadest level, those questions include:
Which policy judgments must the legislature make and which can be left to those who
implement the law?131 What sorts of decisions should, or should not, be made by
decisionmakers who enjoy the independence afforded federal judges?132 Is the
President best suited to have expansive powers over foreign affairs and military
action?133 133 Answers to those questions depend on normative convictions that are
contested and empirical assessments that are complicated. But it is these sorts of
questions--albeit sometimes in less elevated form, as in whether administrative
agencies can adjudicate controversies or whether an Independent Counsel is
permissible--that lurk in the background of disputes about the proper allocation of
government authority. Those questions will obviously remain contested for years to
come.
That these questions are vexing does not mean that they should not be asked. But
current separation of powers doctrine asks them in the wrong way. The critique
offered here identifies a particular failing of the questions we ask in our effort to
assure the appropriate assignment of government authority and simultaneously
suggests the more promising questions that we should pursue. The basic failing is a
mismatch between the nature of the distribution of government authority and the
doctrine that purports to evaluate that distribution. Our system operates, not at the
level of powers or branches, but at the more particular level of government
decisionmaker. State power is dispersed among a large, and diverse, set of
government decisionmakers; what they do cannot neatly be sorted into three
categories or power, nor can their branch affiliation be considered the determinative
factor in how they will make their decisions. But current doctrine operates as if there
were essential powers called legislative, executive, and judicial power that can be
appropriately matched with branches called the legislative, executive, and judicial
branches. Those inquiries, as Part I argued, are fruitless. But the point goes beyond
that: for a doctrine that seeks to assure a suitable assignment of government authority
among varied actors, that abstract and lofty level is off track. The categories do not
meaningfully describe the powers exercised, nor does the doctrine ask questions that
help predict how government authority will be exercised. In other words, the doctrine
should descend from its perch and focus on the fact that is government actors, not
powers and branches, that matter.

131
This is the question at the heart of debates over the appropriateness and wisdom of Congressional
delegation of policy questions to administrative agencies. The prime modern work, which characterizes
Congressional delegation as abdication of the most serious sort, is Theodore J. Lowi, THE END OF LIBERALISM
(1969).
132
Questions about the independence and role of the federal courts arise in many contexts, most
prominently the debate over the advisability and proper scope of judicial review. The familiar classics of this
debate include Alexander Bickel, THE LEAST D ANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS
(1962) and John Hart Ely, DEMOCRACY AND DISTRUST (1980).
133
Again, this is the question at the center of many long-standing disputes. See John Hart Ely, WAR AND
RESPONSIBILITY (1993); Peter M. Shane and Harold H. Bruff, SEPARATION OF POWERS LAW 585-854 (1996).

63
Before we can determine how state power should be distributed among varied
government decisionmakers, we first need to know how those decisionmakers have
or will exercise authority. To do that, we need to understand how officials do or will
exercise their authority; this requires a different analysis than the
powers-and-branches approach that current doctrine contemplates. Under the
structure of current doctrine, the debate about the legislative veto focused on whether
a subset of the Congress was given the power to legislate.134 Discussion of the
permissibility of the line-item veto centered, in part, on whether it gave the executive
the power to legislate.135 The disputes about the Independent Counsel and the U.S.
Sentencing Commission followed a slightly different pattern: they focused, not on a
characterization of the type of power exercised, but instead on whether those
arrangements undermined the exercise of the relevant branch’s function.136 But
analyzing any of these questions by characterizing the power exercised and
discerning whether it is in the right branch, or even asking whether, as in the case of
the Independent Counsel or the Sentencing Commission, the arrangement interfered
with the branch’s exercise of its function, is the wrong way to think about them.
These questions send us looking in the wrong direction — trying to define the
meaning of executive power, or to identify a core function of a branch and judge
whether it is threatened. Those inquiries do nothing to help us determine how state
authority is likely to be exercised. To do that, we need to focus on the incentives of
government actors. And that focus must be, not at the level of a branch of
government, but at a less elevated level, one that is meaningful to those government
actors. Such analysis would work much closer to the ground — investigating the
relevant decisionmakers, the context in which they act, the process by which they
will reach their decisions, and the constraints on their actions.
To see how such a doctrine might look, consider the question of the permissibility of
the mix of powers that many administrative agencies exercise. Within the framework
of conventional approaches, there are two competing questions to ask. For some, that
debate should center on whether such agencies exercise solely the power assigned to
the branch in which they sit, executive power, or whether they also impermissibly
exercise judicial power (owing to their authority to adjudicate controversies) and
legislative power (because of the broad discretion they have to formulate the law).137
For those skeptical of such functional niceties, the question should be whether the
mix of powers those agencies exercise serves to undermine the core functions of the

134
INS v. Chadha, 462 U.S. 919 (1983).
135
See Clinton v. City of New York, 524 U.S. 417, 451-52 (1998) (Kennedy, J., concurring); Powell &
Jed Rubenfeld, LAYING IT ON THE LINE: A DIALOGUE ON LINE ITEM VETOES AND SEPARATION OF POWERS, 47 Duke L.J.
1171, at 1172-80.
136
Morrison v. Olson, 487 U.S. 654, 689-96 (1988); Mistretta v. United States, 488 U.S. 361, 382-97
(1989).
137
See e.g., CFTC v. Schor, 478 U.S. 833, 859-67 (1986) (Brennan, J., dissenting) (arguing that
adjudication of state-law counter-claim by administrative tribunal is unconstitutional exercise of judicial
power by non-Article III entity); Gary Lawson, THE RISE AND RISE OF THE ADMINISTRATIVE STATE, 107 Harv. L. Rev.
at 1237-41; supra notes 10-22 and accompanying text. Cf. Morrison v. Olson, 487 U.S. 654, 705-10 (1988)
(Scalia, J., dissenting) (arguing that prosecution is an executive function and therefore President must be able
to fire at-will prosecutor exercising that power).

64
executive, legislative, or judicial branches.138 But both routes are off track. To
evaluate whether an administrative agency should be permitted to exercise a range
of powers, we first need to understand how the agency does or can be expected to
exercise those powers. Labeling the powers or asking whether, in some broad-brush
way, a branch is threatened by the arrangement, does not help us do that. Instead, we
should seek to understand the incentives of the actors who will exercise that power
in a pointed enough way that it helps us comprehend how those powers have will be
exercised. Some legal observers pursue this kind of analysis, but far too few.139 A
sufficiently grounded inquiry into officials’ incentives requires a contextual
investigation of how state power will be exercised: understanding the organization of
the agency; the process by which its actors will make decisions; and the constraints
on its decisionmaking.140 At a minimum, the analysis must take account of the
complicated web of subconstitutional law that governs what agencies do,141141 given

138
Independent agencies arguably threaten the integrity of each branch: the executive because of
appointments arrangements that limit the President’s ability to fire at-will officials who head those agencies;
the legislative because of the expansive discretion agencies’ can have to implement the law; and the judicial
because of the adjudicatory functions some agencies are assigned. For examples of this undermine-the-branch
reasoning in the context of administrative agencies, see CFTC v. Schor, 478 U.S. 833, 851 (1986) (upholding
adjudication of state-law counter-claim by administrative tribunal, inter alia, because such adjudication did
not “impermissibly threaten the institutional integrity of the Judicial Branch”); Peter L. Strauss, THE PLACE OF
AGENCIES IN GOVERNMENT: SEPARATION OF POWERS AND THE FOURTH BRANCH, 84 Colum. L. Rev. 573 (1984)
139
Assessing the advisability of an allocation of state power can of course start with a close study of
how that power has been exercised. In an influential study, Professors Bruff and Gellhorn did just that with
the legislative veto. See Harold Bruff & Ernest Gellhorn, CONGRESSIONAL CONTROL OF ADMINISTRATIVE
REGULATIONS: A STUDY OF LEGISLATIVE VETOES, 90 Harv. L. Rev. 1369 (1977). Likewise, Professor Martin’s
arguments against the legislative veto are informed by an appreciation of the way those vetoes operated in
practice. See David A. Martin, THE LEGISLATIVE VETO AND THE RESPONSIBLE EXERCISE OF CONGRESSIONAL POWER, 68
Va. L. Rev. 253, 267-93 (1982). When an arrangement is new and must be evaluated such empirical work is
not possible. But one can still make judgments about how an official or entity might exercise government
authority by trying to understand the key officials’ likely incentives. A few legal analysts evaluate the
distribution of government authority based on the likely behavior of the officials who will exercise that
authority. See, e.g., Steven G. Calabresi, SOME NORMATIVE ARGUMENTS FOR THE UNITARY EXECUTIVE, 48 Ark. L. Rev.
23, 34-35 (1995); Victoria Nourse, THE VERTICAL SEPARATION OF POWERS, 49 Duke L.J. 749 (1999). In my view,
these efforts are grappling with the exactly the right questions, but they proceed at too lofty a level. Both works
assume that the branch affiliation of a government actor is the key predictor of that actor’s behavior. See, e.g.,
Steven G. Calabresi, SOME NORMATIVE A RGUMENTS FOR THE UNITARY EXECUTIVE, 48 Ark. L. Rev. at 35 (1995);
Victoria Nourse, THE VERTICAL SEPARATION OF POWERS, 49 Duke L. j. at 781-84 (1999) at 781-84. But predicting
how a government official will act based mainly on his branch location is too crude an analysis. That said,
these are undoubtedly steps in the right direction. Moreover, there are other models of the kind of analysis
urged here–ones that examine officials’ behavior but do so at a more particular level. Professor Martin’s careful
discussion of the effect of the legislative veto on agency-Congressional relationships, see Martin, supra, at
267-93, and Justice Scalia’s dissent in Morrison v. Olson — where he focused in a specific way on the likely
incentives of the Independent Counsel — are both models of the type of analysis that will help our thinking
about these matters, see 487 U.S. at 727-32.
140
William A. Niskanen, Jr., BUREAUCRACY AND REPRESENTATIVE GOVERNMENT (1971); James Q. Wilson,
BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT 202-05 (1989); Daryl J. Levinson, MAKING
GOVERNMENT PAY: MARKETS, POLITICS, AND THE ALLOCATION OF CONSTITUTIONAL COSTS, 67 U. CHI. L.REV. 345 (2000)
141
Many general statutes constrain agency activities; the most prominent one is the the Administrative
Procedure Act, see 5 U.S.C. §§ 551-706. Agencies are also constrained by other general instruments, such as
executive orders that direct how agencies will conduct their business, as well as the specific statutes that

65
that such constraints importantly shape the way agency authority is exercised. This
is not to suggest that understanding how government actors are likely to exercise
authority will be easy. It will not be. But focusing the doctrine in this way will at least
move it in the right direction.
Compared to the enormity of the questions sometimes at stake in the effort to achieve
the right match of government authority and government decisionmaker, the teaching
of this Article is quite modest. It does not supply answers to the fundamental
questions that underpin disputes about the proper allocation of government authority.
There are no clean answers here about the great questions — the appropriate division
of policymaking between the Congress and the executive, or the proper role of the
judiciary in a representative democracy. Nor are there clear answers about the less
elevated manifestations of those questions: Should administrative agencies be
permitted to adjudicate disputes arising under the laws they administer? Is an
Independent Counsel permissible? The reward for the effort is more incremental; the
insight is that a reconstructed separation of powers doctrine must ask a different set
of questions than it does now when it is seeking to match the exercise of classes of
government authority with corresponding decisionmakers. Finally answering the
fundamental questions may be far off, but we will not get any closer until we start
asking questions that point us in the right direction.

create the agency and grant it the authority to act in specific areas.

66
18. BOOK REVIEW: P OPULAR? C ONSTITUTIONALISM? T HE P EOPLE T HEMSELVES:
P OPULAR C ONSTITUTIONALISM AND J UDICIAL R EVIEW. By Larry D. Kramer. New
York: Oxford University Press. 2004. Pp. xii, 363. $29.95 (cloth).
Reviewed by
•Larry Alexander (Warren Distinguished Professor,
University of San Diego School of Law) and
•Lawrence B. Solum (Professor of Law, University
of San Diego School of Law)
Moderation is a fatal thing . . . . Nothing succeeds like excess.1

I. INTRODUCTION: P OPULAR C ONSTITUTIONALISM


Larry Kramer has written an awesome book, and we mean “awesome” in its original
and now archaic sense. The People Themselves is a book with the capacity to inspire
dread and make the blood run cold.2 Kramer takes the theory du jour, popular
constitutionalism (or popular sovereignty), and pushes its central normative
commitments to their limits. The People Themselves is a book that says “boo” to the
ultimate constitutional authority of the courts and “hooray” to a populist tradition that
empowers Presidents to act as “Tribunes of the People” and has even included
constitutional interpretation by mob. Along the way, Kramer offers a rich and
powerful interpretation of American constitutional history, exposing ideas that have
long been submerged, and stimulating a fundamental reappraisal of the contemporary
ascendancy of the United States Supreme Court as the ultimate and final expositor of
constitutional meaning.
This Review offers a critical assessment of The People Themselves. In Part II, we
provide a brief recapitulation of the main themes of The People Themselves, tracing
the story of popular constitutionalism from before the Revolution through the
founding era to the present day. We then undertake in Part III a careful examination
of Kramer’s central concept by answering the question, “What is popular
constitutionalism?” From analytic reconstruction, we move to normative assessment
in Part IV, which states the case in favor of judicial supremacy and against popular
constitutionalism. In Part V, we conclude this Review with observations about the
paradoxical nature of Kramer’s discussion of popular acceptance of judicial
supremacy and an observation about the value of The People Themselves: Kramer’s
book makes an important contribution to constitutional theory by pushing the idea
of popular constitutionalism to its limits.

1
Oscar Wilde, A WOMAN OF NO IMPORTANCE act I, ll. 269–70, in TWO SOCIETY COMEDIES 11, 85 (Ian Small
& Russell Jackson eds., W.W. Norton & Co. 1983) (1893).
2
See Merriam-Webster Online Dictionary, at http://www.m-w.com/cgi-bin/ dictionary?book=
Dictionary&va=awe (last visited Feb. 13, 2005).

67
19. Matthew Adler, P OPULAR C ONSTITUTIONALISM AND THE RULE OF R ECOGNITION:
W HOSE P RACTICES G ROUND U.S. L AW? University of Pennsylvania Law School,
Public Law and Legal Theory Research Paper Series, Research Paper No.54,
September 2004:
CONCLUSION
The law within each legal system is a function of the practices of some social group.
In short, law is a kind of socially grounded norm. This is a point of consensus for
modern jurisprudents in the Anglo-American tradition: not just Hart and his followers
in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the
anti-positivist Dworkin, who argues that law necessarily synthesizes moral
considerations with social facts.
But which group’s practices ground each legal system? In particular, which group’s
practices undergird U.S. law? Positivists since Hart have universally pointed to either
officials or judges as the “recognitional community” (my term): the group such that
its rules, conventions, cooperative activities, or practices in some other sense are the
social facts from which the law of a given legal system derives. So Hart and all other
positivists would identify either U.S. officials or U.S. judges as the recognitional
community for U.S. law.
This Article has grappled with the tension between the positivist’s official- or
judge-centered account of the recognitional community and the “popular
constitutionalism” now so widely defended by constitutional scholars such as Larry
Kramer, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular
constitutionalist would want to claim that U.S. citizens, not judges or officials, are the
recognitional community for U.S. law. I have termed this position “deep popular
constitutionalism.” Indeed, it turns out – I have argued – that Dworkin’s account of
law, in its ambition to generate associative duties for the citizenry as a whole, implies
deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed,
between Dworkin and the positivists.
My solution to this disagreement – to the debate between deep popular
constitutionalists and deep official or judicial supremacists -- is to dissolve it by
providing a group-relative account of law. In arguing for that account, I have shown
that throughout U.S. history a plurality of groups, both official and citizen groups,
have actively sought to advance conceptions of U.S. constitutional law. Further, I
have argued that “law,” taken either as an explanatory construct or as a normative
construct, is best specified along group-relative lines. Finally, I have explored the
implications of the group-relative account for U.S. constitutional theory.
This account may be wrong, even wrong-headed. But whatever the merits of the
group-relative account of law, I hope this Article has accomplished one thing: to put
the problem of the recognitional community on the agenda of constitutional theory.
Analytical jurisprudence is not easy reading, and for those steeped in our
constitutional history some of the literature may seem naïve in underplaying how
contested fundamental questions of U.S. law have been.257 Still, this is a literature
that constitutional scholars ignore at their peril. Works such as Hart’s The Concept
of Law,258 Dworkin’s Law’s Empire,259 and Raz’s The Concept of a Legal System260
try to determine, with the greatest intensity and rigor, just what law is – in particular,
just how the law governing some society connects to other facts about that society, or

68
about some subset within it. At some point, surely, that connection is one that the
intellectually serious constitutionalist will need to try to understand.

20. T HE U.S. C OAST G UARD C OMMITTED F RAUD U PON THE U.S. G OVERNMENT
R EGARDING THE M ERCHANT M ARINER’S D OCUMENT
On February 20, 2003 the U.S. Coast Guard published in the Federal Register their Notice of
Policy [USCG-2003-14500] titled MERCHANT MARINERS ’ DOC U M ENTS : FORMS AND PROCEDURES FOR

RENEWALS AND ISSUANCES , (Notices, Volume 68, No. 34, page 8326):

SUMMARY: The Coast Guard suspended renewing ensure that only eligible mariners receive MMDs, the
and issuing Merchant Mariners’ Documents (MMDs) Coast Guard will conduct a criminal-record review
using the previously issued form and has begun of mariners seeking renewal or re-issuance of a
renewing and reissuing MMDs using a new form. previously issued MMD, or issuance of an original
The new MMD form is more tamper-resistant and MMD. The review may include verification of
facilitates verification of an MMD holder’s identity, identities; criminal histories; and sobriety (as gauged
citizenship, and qualifications to work aboard from, among other sources, the National Drivers’
U.S.-flagged vessels. MMDs in the new form will Register). This review will be consistent with
enhance maritime security. applicable law and Coast Guard regulations set forth
in Title 46, Code of Federal Regulations (46 CFR
DATES: The Coast Guard began renewing MMDs
12.02–4). Because of the importance of establishing
using the new form on February 3, 2003.
positive proof of identity to facilitate the background
FOR FURTHER INFORMATION CONTACT: If you investigation, it will be necessary for holders of, and
have questions on this notice, call Mr. Donald J. applicants for, an MMD to be present at a Regional
Kerlin, Deputy Director, Coast Guard National Examination Center (REC) to be fingerprinted.
Maritime Center (NMC), (202) 493–1006.
Mariners may encounter delays incident to the new
SUPPLEMENTARY INFORMATION: processes’ going into practice and the delays may
persist for some weeks. Holders and new applicants
Background
seeking re-issuance, renewal, and original issuance
MMDs both serve as identity cards for merchant of their MMDs should inquire at their nearest REC,
mariners and provide information about the a list of which appears at 46 CFR 12.01–7, or contact
mariners’ professional qualifications. MMDs, in the Mr. Donald Kerlin at the National Maritime Center,
previously issued form (CG–2838 [Rev. 7–94]), serve 4200 Wilson Boulevard, Suite 630, Arlington, VA
the second of these purposes well enough; however, 22203–1804, (202) 493–1006.
they no longer serve the first with sufficient
Authority
confidence. The Coast Guard is replacing them using
a new form (CG–2838 [Rev 09/02]) that will be 46 U.S.C. 7301, 7302, 7303, 7304, 7305, 7503, 7505,
issued through a more secure process. The Coast and 49 CFR 1.46.
Guard will make every effort to effect a smooth and
Dated: February 13, 2003.
easy transition from the previously issued form to
the new form. The Coast Guard will begin issuing Kevin J. Eldridge,
MMDs in the new form to new applicants as soon as
Rear Admiral, Coast Guard, AssistantCommandant
possible.
for Governmental and Public Affairs.
The Coast Guard also is considering whether to
[FR Doc. 03–4145 Filed 2–19–03; 8:45 am]
allow mariners to replace their previously issued
MMDs with new MMDs on an accelerated basis, i.e.,’ BILLING CODE 4910–15–P
at an earlier date than current expiration date. To

69
21. Citing Shelly Parker, et al v. District of Columbia, DC Circuit, No. 04-7041
(filed July 14, 2005, still pending) Appellant’s “S ECOND M OTION TO ISSUE
B RIEFING S CHEDULE AND S ET O RAL A RGUMENT ON THE M ERITS,” pp. 6-7:
A. Administrative Exhaustion Is Not Required In Purely Constitutional Cases.
While regulatory bodies are expert at interpreting regulatory language, they lack
expertisein interpreting the Constitution. Such is the province of the federal courts.
It is black-letter law that administrative exhaustion is not required in constitutional
cases. “When federal claims are premised on [§ 1983] -- as they are here -- we have
not required exhaustion of state judicial or administrative remedies, recognizing the
paramount role Congress has assigned to the federal courts to protect constitutional
rights.” Steffel v. Thompson, 415 U.S. 452, 472-73 (1974). Thus, “exhaustion of state
judicial and administrative remedies is not a prerequisite to a section 1983 federal
court action alleging constitutional violations.” Silverman v. Barry, 727 F.2d 1121,
1123 n.3 (D.C. Cir. 1984) (citing Patsy v. Bd. of Regents, 457 U.S. 496, 516 (1982)); see
also Mathews v. Diaz, 426 U.S. 67, 76-77 (1976); Weinberger v. Salfi, 422 U.S. 749,
765-66 (1975); Gibson v. Berryhill, 411 U.S. 564, 574 (1973); Carter v. Stanton, 405 U.S.
669 (1972) (per curiam); Houghton v. Shafer, 392 U.S. 639 (1968) (per curiam); Damico
v. California, 389 U.S. 416 (1967) (per curiam); McNeese v. Board of Education, 373
U.S. 668, 671 (1963).
The question before the Court is whether the District’s decision to prohibit
law-abiding citizens from keeping working firearms in their homes violates the
Second Amendment. There is no genuine dispute about the existence of that
prohibition, nor is their any dispute about the zeal or consistency with which the
District prosecutes violations of the prohibition. Accordingly, the question in this case
is a pure question of constitutional law, and there is nothing whatever about the
administrative process that would sharpen that issue.
B. Futile Acts Are Not Required To Sustain Standing.
Closely related to the non-exhaustion doctrine in constitutional cases is the law’s
strong disdain for requiring futile acts to sustain standing. See, e.g. Int’l Brotherhood
of Teamsters v. United States, 431 U.S. 324, 365-66 (1977) (minority job applicants
need not test a “whites only” sign before filing a Title VII claim). Rejecting an
exhaustion requirement in a constitutional challenge to a portion of the Social
Security Act, the Supreme Court explained:
Exhaustion is generally required as a matter of preventing premature
interference with agency processes, so that the agency may function
efficiently and so that it may have an opportunity to correct its own
errors, to afford the parties and the courts the benefit of its experience
and expertise, and to compile a record which is adequate for judicial
review. Plainly these purposes have been served once the Secretary has
satisfied himself that the only issue is the constitutionality of a
statutory requirement, a matter which is beyond his jurisdiction to
determine, and that the claim is neither otherwise invalid nor
cognizable under a different section of the Act.
Weinberger, 422 U.S. at 765 (citation omitted).
The Supreme Court’s decision in Houghton v. Shafer, supra, presents a typical, and
particularly instructive example of this principle. In that case, an inmate challenged
the constitutionality of prison rules forbidding him from possessing certain legal

70
materials. The Third Circuit affirmed dismissal of the inmate’s section 1983 action for
lack of administrative exhaustion. The Supreme Court reversed:
As we understand the submission of the Attorney General of
Pennsylvania in this Court, the rules of the prison were validly and
correctly applied to petitioner; these rules are further said to be strictly
enforced throughout the entire correctional system in Pennsylvania. In
light of this it seems likely that to require petitioner to appeal to the
Deputy Commissioner of Correction, the Commissioner, or to the
Attorney General would be to demand a futile act. In any event, resort
to these remedies is unnecessary in light of our decisions in Monroe;
McNeese; and Damico [holding no administrative exhaustion is
required in section 1983 cases].
Houghton, 392 U.S. at 640 (citations omitted).

22. Must I Be Arrested by the Feds in Order to Have My Case Taken Seriously?
I do not have to caught and prosecuted by the State Police or federal agents for violating 18
U.S.C. § 926A by driving interstate openly wearing a handgun as a sidearm for the intended purpose
of providing for my own safety and security to have standing in a federal court.

18 U.S.C. § 926A.
Interstate Transportation of Firearms (Crimes)
Notwithstanding any other provision of any law or any rule or regulation of a State
or any political subdivision thereof, any person who is not otherwise prohibited by
this chapter from transporting, shipping, or receiving a firearm shall be entitled to
transport a firearm for any lawful purpose from any place where he may lawfully
possess and carry such firearm to any other place where he may lawfully possess and
carry such firearm if, during such transportation the firearm is unloaded, and
neither the firearm nor any ammunition being transported is readily accessible or
is directly accessible from the passenger compartment of such transporting
vehicle: Provided, That in the case of a vehicle without a compartment separate
from the driver’s compartment the firearm or ammunition shall be contained in a
locked container other than the glove compartment or console.”

71
23. C ONGRESS O WES THE A MERICAN P EOPLE A “C LEAR D UTY” TO
R EPEAL F EDERAL S TATUTES THAT E XCESSIVELY B URDENS, INFRINGE, OR
P ROHIBITS THE P RACTICAL E XERCISE OF S ECOND A MENDMENT R IGHTS
As the two volumes of evidence proves beyone doubt I fervently exhausted the legislative
approach without success because no member in Congress will listen to an individual advocating
the constitutional norm of national open carry handgun under the Bill of Rights and under the
Thirteenth and Fourteenth Amendments. And for Mr. Barghaan to even suggest such a remedy as
a preclusion to mandamus relief is evidence of a belligerent contempt for the constitutional
provisions for the restoration of the balance of power under the Tenth Amendment of the Bill of
Rights let his display of contempt for the U.S. Department of Justice’s Mission Statement “to ensure
fair and impartial administration of justice for all Americans.”

Mr. Barghaan again displays an inability to distinguish delusion from reality by refusing to
accept the fact that the creation of the U.S. Department of Homeland Security, the moving of the U.S.
Coast Guard from the DOT to the DHS and the fact that the Department of Homeland Security gained
general superintendence of the U.S. Merchant Marine as “Extraordinary Circumstances” for
mandamus relief resulting from the extra security duties placed upon U.S. civilian seafarers not only
through the legislative process but also through the regulatory process without extra compensation
or recognition of affected constitutional rights under the Second Ninth, and Tenth Amendments, and
under the Common Defence clause of the Preamble to the U.S. Constitution. These circumstance
have Fifth Amendment implications for just cause of action for the federal court to resolve.
Mandamus relief is clearly indicated and clearly visible to anyone without bias or prejudice affecting
their perception of reality.

24. A S TO M Y RICO A CT C ASE


The DC Circuit maliciously killed my RICO Act claims on the claim that I did not
demonstrate the federal government waived its sovereign immunity. Well, let me demonstrate that
waiver now.

46 CFR § 1.01–30 Judicial review.


(a) Nothing in this chapter shall be construed to prohibit any party from seeking
judicial review of any Commandant’s decision or action taken pursuant to the
regulations in this part or part 5 of this chapter with respect to suspension and
revocation proceedings arising under 46 U.S.C. chapter 77.

72
46 CFR § 1.03–15 General.
(a) Any person directly affected by a decision or action taken under this chapter or
under chapter III of this title, by or on behalf of the Coast Guard, except for matters
covered by subpart J of part 5 of this chapter dealing with suspension-and-revocation
hearings, shall follow the procedures contained in this section when requesting that
the decision or action be reviewed, set aside, or revised.

The DC Circuit (No. 04-5316) erroneously made the following clams about my RICO case but
surprisingly modified the District Court order to read as dismissed without prejudice. The DC
Circuit’s Order reads as follow (citations omitted):

As to appellant’s claims pursuant to the Racketeer Influenced and Corrupt


Organizations Act (“RICO”), 18 U.S.C. § 1962, appellant has not demonstrated the
federal government waived its sovereign immunity. In addition, the claims for
damages against the judicial defendants are barred by judicial immunity, see
Cleavinger v. Saxner, 474 U.S. 193, 199 (1985), and the claims for declaratory
judgment against those defendants are meritless. To the extent appellant is bringing
claims under criminal statutes, those statutes do not provide for a private right of
action. With respect to appellant’s claims brought pursuant to 42 U.S.C. § 1988; the
Federal Tort Claims Act, 28 U.S.C. § 1346(b); and the First, Fourth, Fifth, Sixth,
Ninth, Tenth, Thirteenth, and Fourteenth Amendments, appellant’s complaint does
not comport with Fed. R. Civ. P. 8(a), which requires a plaintiff to include “a short
and plain statement of the claim showing that the plaintiff is entitled to relief.” With
the exception of his Second Amendment claim, appellant has not preserved for appeal
any other claims. To the extent summary affirmance is granted because appellant’s
claims do not comply with Fed. R. Civ. P. 8(a), the district court order is modified to
dismiss those claims without prejudice.

Even though the DC Circuit’s Order is VOID FOR [WRONG VENUE] under 28 U.S.C. §
1402(a)(1) I must still refute the claims made by the DC Circuit.

A complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that there is no set of facts that plaintiff could prove which would entitle him to relief. Conley
v. Gibson, 355 U.S. 41, 46, 78 S. Ct. 99, 102 (1957); Fed. R. Civ. P. 12(b)(6). I can prove my case!
Further, pro se complaints must be liberally construed and should not be held to the same high
standard as formal complaints filed by attorneys. Estelle v. Gamble, 429 U.S. 97, 105, 97 S. Ct. 285,
291 (1976); Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 595 (1972); Ferranti v. Moran, 618 F.2d
888, 889 (1st Cir. 1980) .

Hence I should not be held so tightly to Fed. R. Civ. P. 8(a). To do so would be to hold me to
the high standards of an attorney.

It is under this more lenient standard that plaintiff’s complaint should be read. The Supreme
Court has held that judges can be held liable for damages in suits where actions which are

73
administrative in nature are challenged. See Forrester v. White, 484 U.S. 219, 224-225 (1988). The
Court in Forrester refused to attach judicial immunity to a judge’s decision to fire a court employee,
because the act was not judicial in nature. The Court held that truly judicial acts must be
distinguished from the administrative, legislative or executive functions that judges may
occasionally be assigned to perform. According to the Court, it is the nature of the function
performed -- adjudication -- rather than the identity of the actor who performed it -- a judge -- that
determines whether absolute immunity attaches to the act. Any time an action taken by a judge is
not an adjudication between parties, it is less likely that the act [will be found to be] a judicial one.
Cameron v. Seitz, 38 F.3d 264, 271 (6th Cir. 1994).

The claims I make in my complaint against Judges Reggie B. Walton and Ellen Segal Huvelle
are administrative in nature and those judges do not have immunity from suit from those
administrative actions and my claims, contrary to the DC Circuits proclamations, do have merit.
These facts were clearly evident in the record on appeal to the DC Circuit. It is clear that the DC
Circuit ignored those facts and used boilerplate case law in blatant contradiction to the facts on
record in order to protect the Judge Reggie B. Walton of the lower court from civil damages. This is
an obstruction of justice and a conspiracy to obstruct justice which are predicate acts under the
RICO Act.

Because the DC Circuit modified the District Court Order removing the prejudice from the
dismissal I am free to file my RICO Act claims in the U.S. District Court for the Eastern District of
Arkansas, Northern Division.

25. D AMNING E VIDENCE OF A C ONSPIRACY TO O BSTRUCT J USTICE AND E VIDENCE OF


R ACKETEERING AN U NLAWFUL AND AN U NCONSTITUTIONAL P ROTECTION S CHEME
O VER THE S ECOND A MENDMENT
It is widely known that U.S. District Court and most of the Circuit Court judges have a disdain
for the individual rights view of the Second Amendment. This fact is clearly evidenced an supported
by Judge Ellen Segal Huvelle and Judge Reggie B. Walton of the U.S. District Court for the District
of Columbia and the DC Circuit Court judges who presided over my several cases. I use their disdain
and their memorandum opinions as evidence of racketeering activities over the Second Amendment.

Mr. Barghaan used a very limited portion of Judge Ellen Segal Huvelle’s 2002 Memorandum
Opinion in his Motion to Dismiss (p. 5):

As for the Second Amendment, while it is true that the precise meaning of this
provision continues to be in dispute in both judicial and academic circles, the very

74
existence and intensity of that controversy make mandamus relief a decidedly
inappropriate vehicle for fulfilling petitioner’s demands.
....
However the Second Amendment may ultimately come to be interpreted, the current
understanding of that text certainly provides no obvious basis either for the wholesale
negation of federal and state gun laws or for the open carry endorsement that
petitioner seeks.

Mr. Barghaan used the very limited portion of Judge Huvelle’s Memorandum Opinion because
he knew that if he used even the slightest bit larger portion his Motion to Dismiss would crumble.
On that score I present the more complete Second Amendment portion of Judge Huvelle’s
Memorandum Opinion here:

Taking the latter claim first, no court has ever so much as suggested that the
Thirteenth Amendment confers any right to bear arms, and it is entirely fanciful to
suggest that its prohibition of involuntary servitude somehow unambiguously
requires the overturning of a whole variety of gun control legislation. As for the
Second Amendment, while it is true that the precise meaning of this provision
continues to be in dispute in both judicial and academic circles, c.f. United States v.
Emerson, 270 F.3d 203 (5th Cir. 2001), the very existence and intensity of that
controversy make mandamus relief a decidedly inappropriate vehicle for fulfilling
petitioner's demands. Mandamus is reserved for circumstances in which the
claimant's entitlement to relief and the defendant's obligation to provide such relief
are unambiguous and undebatable. The Second Amendment simply offers no such
clarity.
Moreover, the established law on this subject hardly supports petitioner's cause. In
United States v. Miller, 307 U.S. 174, 178 (1939), the Supreme Court found that "absent
some reasonable relationship to the preservation or efficiency of a well regulated
militia," the possession of a weapon (a short-barreled shotgun) could be proscribed
without running afoul of the Second Amendment. Miller remains the most
authoritative modern pronouncement on the amendment's meaning and its
conclusion that the right to bear arms is limited by the needs of an organized militia
has subsequently been echoed by the Supreme Court and followed in this and other
circuits. See United States v. Lewis, 445 U.S. 55, 65 n.8 (1980); Fraternal Order of
Police v. United States, 173 F.3d 898, 905-06 (D.C. Cir. 1999); accord United States v.
Haney, 264 F.3d 1161, 1165 (10th Cir. 2001) (holding that "a federal criminal gun
control law does not violate the Second Amendment unless it impairs the state's
ability to maintain a well-regulated militia"). Under this interpretation, petitioner's
claims appear largely without merit.
In sum, given the breadth of petitioner's demands and the narrowness of the
constitutional provision that he relies on to justify those demands – more specifically,
the lack of apparent connection between his right to keep and bear an unlicenced
firearm and the needs of any organized militia – petitioner can establish neither that
he has a clear right to relief nor that any of the named respondents has a clear duty
to act. However the Second Amendment may ultimately come to be interpreted, the
current understanding of that text certainly provides no obvious basis either for the
wholesale negation of federal and state gun laws or for the open carry endorsement
that petitioner seeks.

75
“. . . no court has ever so much as suggested that the Thirteenth Amendment confers any
right to bear arms, and it is entirely fanciful to suggest that its prohibition of involuntary servitude
somehow unambiguously requires the overturning of a whole variety of gun control legislation? Ohh
Please! Don’t insult my intelligence!

26. T HE O RIGIN OF THE T HIRTEENTH AND F OURTEENTH A MENDMENTS A RE B ASED ON


THE INFAMOUS S LAVERY C ASE OF D RED S COTT V. S ANDFORD, 60 U.S. (H OW.) 393,
416-417, (1856).
The legislation of the States therefore shows, in a manner not to be mistaken, the
inferior and subject condition of that race at the time the Constitution was adopted,
and long afterwards, throughout the thirteen States by which that instrument was
framed; and it is hardly consistent with the respect due to these States, to suppose
that they regarded at that time, as fellow-citizens and members of the sovereignty, a
class of beings whom they had thus stigmatized; whom, as we are bound, out of
respect to the State sovereignties, to assume they had deemed it just and necessary
thus to stigmatize, and upon whom they had impressed such deep and enduring
marks of inferiority and degradation; or, that when they met in convention to form the
Constitution, they looked upon them as a portion of their constituents, or designed
to include them in the provisions so carefully inserted for the security and protection
of the liberties and rights of their citizens. It cannot be supposed that they intended
to secure to them rights, and privileges, and rank, in the new political body
throughout the Union, which every one of them denied within the limits of its own
dominion. More especially, it cannot be believed that the large slaveholding States
regarded them as included in the word citizens, or would have consented to a
Constitution which might compel them to receive them in that character from another
State. For if they were so received, and entitled to the privileges and immunities of
citizens, it would exempt them from the operation of the special laws and from the
police [60 U.S. 393, 417] regulations which they considered to be necessary for their
own safety. It would give to persons of the negro race, who were recognised as
citizens in any one State of the Union, the right to enter every other State whenever
they pleased, singly or in companies, without pass or passport, and without
obstruction, to sojourn there as long as they pleased, to go where they pleased at every
hour of the day or night without molestation, unless they committed some violation
of law for which a white man would be punished; and it would give them the full
liberty of speech in public and in private upon all subjects upon which its own
citizens might speak; to hold public meetings upon political affairs, and to keep and
carry arms wherever they went. And all of this would be done in the face of the
subject race of the same color, both free and slaves, and inevitably producing
discontent and insubordination among them, and endangering the peace and safety
of the State.
It is impossible, it would seem, to believe that the great men of the slaveholding
States, who took so large a share in framing the Constitution of the United States, and
exercised so much influence in procuring its adoption, could have been so forgetful
or regardless of their own safety and the safety of those who trusted and confided in
them.
Dred Scott v. Sandford, 60 U.S. (How.) 393, 416-417, (1856).

76
The Dred Scott case brings us to Judge Huvelle’s remark, “while it is true that the precise
meaning of this provision continues to be in dispute in both judicial and academic circles, c.f. United
States v. Emerson, 270 F.3d 203 (5th Cir. 2001).” Excerpt from Emerson:

A. Introduction and Overview of Second Amendment Models


The district court held that the Second Amendment recognizes the right of individual
citizens to own and possess firearms, and declared that section 922(g)(8) was
unconstitutional on its face because it requires that a citizen be disarmed merely
because of being subject to a "boilerplate [domestic relations injunctive] order with
no particularized findings." Emerson, 46 F.Supp.2d at 611. The government opines
that stare decisis requires us to reverse the district court's embrace of the individual
rights model. Amici for the government argue that even if binding precedent does not
require reversal, the flaws in the district court's Second Amendment analysis do.
In the last few decades, courts and commentators have offered what may fairly be
characterized as three different basic interpretations of the Second Amendment. The
first is that the Second Amendment does not apply to individuals; rather, it merely
recognizes the right of a state to arm its militia.(9) This "states' rights" or "collective
rights" interpretation of the Second Amendment has been embraced by several of our
sister circuits.(10) The government commended the states' rights view of the Second
Amendment to the district court, urging that the Second Amendment does not apply
to individual citizens.
Proponents of the next model admit that the Second Amendment recognizes some
limited species of individual right. However, this supposedly "individual" right to bear
arms can only be exercised by members of a functioning, organized state militia who
bear the arms while and as a part of actively participating in the organized militia's
activities. The "individual" right to keep arms only applies to members of such a
militia, and then only if the federal and state governments fail to provide the firearms
necessary for such militia service. At present, virtually the only such organized and
actively functioning militia is the National Guard, and this has been the case for many
years. Currently, the federal government provides the necessary implements of
warfare, including firearms, to the National Guard, and this likewise has long been
the case. Thus, under this model, the Second Amendment poses no obstacle to the
wholesale disarmament of the American people. A number of our sister circuits have
accepted this model, sometimes referred to by commentators as the sophisticated
collective rights model.11 On appeal the government has abandoned the states' rights
model and now advocates the sophisticated collective rights model.
The third model is simply that the Second Amendment recognizes the right of
individuals to keep and bear arms. This is the view advanced by Emerson and

11
(1st Cir. 1942) Cases v. United States, 131 F.2d 916, 923;
(3d Cir. 1996) United States v. Rybar, 103 F.3d 273, 286;
(8th Cir. 1992) United States v. Hale, 978 F.2d 1016;
(10th Cir. 1977) United States v. Oakes, 564 F.2d 384;
(11th Cir. 1997) United States v. Wright, 117 F.3d 1265;
For further discussion of the sophisticated collective rights model, see Robert J. Cottrol & Raymond T.
Diamond, The Fifth Auxiliary Right, 104 Yale L. J. 995, 1003-1004 (1995) and Nelson Lund, The Ends of
Second Amendment Jurisprudence: Firearms Disabilities and Domestic Violence Restraining Orders, 4 Tex.
Rev. L. & Pol. 157, 184-86 (1999).

77
adopted by the district court. None of our sister circuits has subscribed to this model,
known by commentators as the individual rights model or the standard model. The
individual rights view has enjoyed considerable academic endorsement, especially
in the last two decades.12

Since the Fifth Circuit used the word “wholesale” above, “. . . Thus, under this model, the
Second Amendment poses no obstacle to the wholesale disarmament of the American people. . . .” and
Judge Huvelle used the same word in here Memorandum Opinion in 2002, “. . . However the Second
Amendment may ultimately come to be interpreted, the current understanding of that text certainly
provides no obvious basis either for the wholesale negation of federal and state gun laws or for the open
carry endorsement that petitioner seeks.However the Second Amendment may ultimately come to be
interpreted, the current understanding of that text certainly provides no obvious basis either for the
wholesale negation of federal and state gun laws or for the open carry endorsement that petitioner seeks.
. . .” it begs the question about whether there are too many federal and state gun controls laws. Even
if every federal and state gun control law were each, in and of themselves, a act of reasonableness,
the question is yet to be presented in a federal court on whether or not the aggregate effect of those
federal and state gun controls rises to the level of unreasonableness and therefore achieving a state
of unconstitutional conditions where the Second Amendment has effectively been nullified.

Since Emerson, in 2001, the U.S. Department of Justice adopted the individual rights view
after conducting their own investigation and research and issued their Memorandum Opinion to the
Attorney General, John Ashcroft internally on August 24, 2004 so as not to influence the Presidential
Election in November 2004. That Memorandum Opinion was no released to the public until mid-
December. Interesting fact here is that Mr. Barghaan put my RICO Act case in the U.S. District Court
fo DC on the Fast Track to dismissal with his timely Motion to Dismiss. Judge Reggie B. Walton

12
See Scott Bursor, TOWARD A FUNCTIONAL FRAMEWORK FOR INTERPRETING THE SECOND AMENDMENT, 74
Texas L. Rev. 1125 (1996); Robert J. Cottrol & Raymond T. Diamond, THE FIFTH AUXILIARY RIGHT, 104 Yale L.
J. 995 (1995); Robert Dowlut, THE RIGHT TO ARMS: DOES THE CONSTITUTION OR THE PREDILECTION OF JUDGES REIGN?,
36 Okla. L. Rev. 65 (1983); Stephen P. Halbrook, THE RIGHT OF THE PEOPLE OR THE POWER OF THE STATE: BEARING
ARMS, ARMING MILITIAS, AND THE SECOND AMENDMENT, 26 Val. U. L. Rev. 131 (1991); Stephen P. Halbrook, WHAT
THE FRAMERS INTENDED: A LINGUISTIC ANALYSIS OF THE RIGHT TO “BEAR ARMS”, 49 Law & Contemp. Probs. 151
(1986); Don B. Kates, Jr., THE SECOND AMENDMENT AND THE IDEOLOGY OF SELF-PROTECTION, 9 Const. Comm. 87
(1992); Don B. Kates, Jr., HANDGUN PROHIBITION AND THE ORIGINAL MEANING OF THE SECOND AMENDMENT, 82 Mich.
L. Rev. 204 (1983); Sanford Levinson, THE EMBARRASSING SECOND AMENDMENT, 99 Yale L. J. 637 (1989); Nelson
Lund, THE ENDS OF SECOND AMENDMENT JURISPRUDENCE: FIREARMS DISABILITIES AND DOMESTIC VIOLENCE RESTRAINING
ORDERS, 4 Tex. Rev. L. & Pol. 157 (1999); Nelson Lund, THE PAST AND FUTURE OF THE INDIVIDUAL'S RIGHT TO ARMS,
31 Ga. L. Rev. 1 (1996); Glenn H. Reynolds, A CRITICAL GUIDE TO THE SECOND AMENDMENT, 62 Tenn. L. Rev. 461
(1995); Robert E. Shalhope, THE IDEOLOGICAL ORIGINS OF THE SECOND AMENDMENT, 69 J. Am. Hist. 599 (1982);
William Van Alstyne, THE SECOND AMENDMENT AND THE PERSONAL RIGHT TO ARMS, 43 Duke L. J. 1236 (1994);
Eugene Volokh, THE COMMONPLACE SECOND AMENDMENT, 73 N.Y.U. L. Rev. 793 (1998).

78
dismissed my case on August 16, just 8 days before the internal release of the Justice Department’s
Memorandum Opinion. Was this a coincidence? Or, was their a conspiracy to withhold the
Memorandum Opinion as evidence from my case.

I note from Mr. Barghaan’s latest Motion to Dismiss (August 4, 2006) that he was pointedly
candid with the Court to state that that the Court reach

Nor does plaintiff’s resort to the Second Amendment provide him with any assistance.
As this Court recently held, “[o]ne of the leading constitutional debates centers
around the scope of the Second Amendment and whether its purpose is to protect the
sanctity of state militias or to provide a fundamental right to individuals.” Seegars v.
Ashcroft, 297 F. Supp. 2d 201, 218 (D.D.C. 2004) (Walton, J.), rev’d in part on other
grounds by Seegars v. Gonzales, 396 F.3d 1248 (D.C. Cir. 2005), cert. denied, 126 S.
Ct. 1187 (2006). To be sure, the United States’ present position on the scope of the
Second Amendment, articulated through, inter alia, a recent opinion authored by the
Department of Justice’s Office of Legal Counsel, is that this constitutional provision
“more broadly protects the rights of individuals . . . to possess and bear their own
firearms, subject to reasonable restrictions.” Silveria v. Lockyer, 312 F.3d 1052, 1065
(9 th Cir. 2002), cited in Seegars, 297 F. Supp.2d at 218 n.15. But notwithstanding this
position, the attorney’s duty of candor to the tribunal, see D.C. RULE OF
PROFESSIONAL CONDUCT 3.3; VA. RULE OF PROFESSIONAL CONDUCT 3.3,
requires undersigned counsel to note that this Court has already reached a conclusion
contrary to the Justice Department’s position on this score. More specifically, in
Seegars, this Court held “that the Second Amendment does not confer an individual
a right to possess firearms.” Seegars, 297 F. Supp. 2d at 235. [DDC 2004] And this
conclusion destroys any purported assistance plaintiff have derived from the Second
Amendment in any of his mandamus claims – including that which seeks to compel
the Merchant Mariner endorsement.

Well then, since the District Court’s opinion in Seegars that “the Second Amendment does not
confer an individual right to possess a firearms” Then it stands to reason that both Emerson and the
August 24, 2004 Memorandum Opinion of the U.S. Department of Justice support my case for Second
Amendment rights as an individual right. And since that makes my case, “in Law and Equity, arising
under this Constitution, the Laws of the United States, and Treaties made, or which shall be made,
under their Authority;” and a case . . . “of admiralty and maritime Jurisdiction;” as the “scope” of the
Second Amendment would extend to U.S. seafarers aboard U.S. ships transiting pirate waters where
attacks, boardings, an murders of ships crew have occurred and where U.S. seafarers face the same
dangers of attack and threat of being murdered while ashore in the United States and traveling
intrastate and interstate makes for one of many subject matters for jurisdiction about “Controversies
to which the United States shall be a Party” then I have achieved standing to sue the U.S. Government
for damages under the RICO Act.13

13
Quoting excerpts from Article III of the U.S. Constitution

79
The final “controversy to which the United States shall be a Party” is whether or not the
federal courts that do not subscribe to the individual rights view is using a political ideology and not
the constitutional rule of law in their case law opinions. I have clearly demonstrated that the
Motions to Dismiss and Court opinions dismissing my several cases are rife with an anti-Second
Amendment political ideology.

My case has the potential to settle controversy on the scope meaning of Second Amendment
and to prove that Article III federal courts have imposed a judicial tyranny over the American people
to the extent that a modern day version of slavery has been reestablished by the U.S. Government
as defined by Dred Scott and noted in Emerson.

27. F EDERAL P REEMPTION of State Gun Control Laws is not entirely fanciful as
Judge Huvelle Maliciously Claims
As to Judge Huvelle’s remark “. . . it is entirely fanciful to suggest that its [Thirteenth
Amendment] prohibition of involuntary servitude somehow unambiguously requires the overturning of
a whole variety of gun control legislation,”she ignores the fact that federal preemption of State laws
is found in the U.S. Constitution, Article VI, Clause 2:
“This Constitution, and the Laws of the United States which shall be
made in Pursuance thereof; and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby,
any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.”
and delegated to federal agencies’ Rulemaking Process which includes the U.S. Coast Guard.
Citing from J. Norman Heath, EXPOSING THE SECOND AMENDMENT : FEDERAL PREEMPTION OF STATE
MILITIA LEGISLATION , 79 U. Det. Mercy L. Rev.39 (2001):
“Professor Laurence H. Tribe identifies in Supreme Court
jurisprudence three modes of federal preemption exercisable14 by
Congress against the states:
(1) “express preemption,” where Congress has in so
many words declared its intention to preclude state
legislation of a described sort in a given area;
(2) “implied preemption,” where Congress, through the
structure or objectives of its enactments has by
implication precluded a certain kind of state regulation
in an area; and
(3) “conflict preemption,” where Congress did not
necessarily focus on preemption of state regulation at
all, but where the particular state law conflicts directly

14
Federal Preemption is also exercisable by federal agencies and by the U.S. Coast Guard as was done
by the Federal Communications Commission for amateur radio with PRB-1.

80
with federal law, or otherwise (p.44) stands as an
obstacle to the accomplishment of federal statutory
objectives.
In addition, Professor Tribe recognizes:
Because congressional purposes can be either
substantive or jurisdictional, a state action may be
struck down as an invalid interference with the federal
design either because it is in substantive conflict with
the operation of a federal regulation or program or
because, whatever its substantive impact, it intrudes
jurisdictionally upon a field that Congress has validly
reserved for exclusively federal regulation. It is this
latter phenomenon that some describe as field (or
“occupying the field”) preemption - which, it is worth
stressing, may fall into any of the three categories set
forth above.” 15
The Plaintiff alleges that there is ample evidence proving that state and federal gun control
laws and federal regulations since the National Firearms Act of 1933, in their accumulative effect,
have served to defeat the common defence against violent crimes in society hereby takes action to
promote the common defence with this MOTION FOR NEGOTIATED RULEMAKING .

15
Laurence H. Tribe, AMERICAN CONSTITUTIONAL LAW § 6-28, at 1176-77 (3d ed.2000)

81
28. US A TTORNEY M ANUAL (USAM) ON C OMPROMISING AND C LOSING
TITLE 4 CIVIL
4-3 COMPROMISING AND CLOSING
USAM 4-3.100 Authority of the Attorney General
The Attorney General has the inherent authority to . . . abandon
the defense of any action insofar as it involves the United States of
America, or any of its agencies, or any of its agents who are parties in
their official capacities. See Confiscation Cases, 7 Wall. 454, 458 (1868)
(action brought by an informer with expectation of financial gain);
Conner v. Cornell, 32 F.2d 581, 585-6 (8th Cir.), cert. denied, 280 U.S.
583 (1929) (dismissal of suit on behalf of restricted Indian wards of the
United States); Mars v. McDougal, 40 F.2d 247, 249 (10th Cir.), cert. denied, 282 U.S. 850 (1930); 22
Op. Att'y Gen. 491, 494; 38 Op. Att'y Gen. 124, 126; see United States v. Throckmorton, 98 U.S. 61,
70 (1878); United States v. Newport News Shipbuilding & Dry Dock Co., 571 F.2d 1283 (4th Cir.),
cert. denied, 439 U.S. 875 (1978). This authority may be exercised at any time during the course of
litigation.
The Attorney General also has the inherent authority to compromise any action insofar as
it involves the United States of America, its agencies, or any of its agents who are parties in their
official capacities. See Halbach v. Markham, 106 F. Supp. 475, 479-480 (D.N.J. 1952), aff'd, 207 F.2d
503 (3rd Cir. 1953), cert. denied, 347 U.S. 933 (1954); 38 Op. Att'y Gen. 124, 126. This authority is
not dependent upon any express statutory provision. See 38 Op. Att'y Gen. 98, 99. To the contrary,
it exists to the extent that it is not expressly limited by statute. See Swift & Co. v. United States, 276
U.S. 311, 331-2 (1928).
Note the additional authority delegated to the Attorney General by the second paragraph of section
5 within Executive Order 6166.

TITLE 4 CIVIL
4-3 COMPROMISING AND CLOSING
4-3.140 Exceptions to the Redelegation of the Attorney General's Authority
By virtue of section 1 of Directive 14-95 and notwithstanding the redelegations of authority
to compromise cases, file suits, counterclaims, and cross-claims, or to take any other action
necessary to protect the interests of the United States discussed above, such authority may not be
exercised, and the matter must be submitted to the Assistant Attorney General for the Civil Division,
when:
For any reason, the proposed action, as a practical matter, will control or adversely influence
the disposition of other claims totaling more than the respective amounts designated;
Because a novel question of law or a question of policy is presented, or for any other reason,
the proposed action should, in the opinion of the officer or employee concerned, receive the
personal attention of the Assistant Attorney General;
The agency or agencies involved are opposed to the proposed action (the views of an agency
must be solicited with respect to any significant proposed action if it is a party, if it has asked to be
consulted with respect to any such proposed action, or if such proposed action in a case would
adversely affect any of its policies);

82
The United States Attorney involved is opposed to the proposed action and requests that the
decision be submitted to the Assistant Attorney General for decision, or
The case is on appeal, except as determined by the Director of the Appellate Staff.
See Civil Division Directive No. 14-95, 28 CFR Part 0.

TITLE 4 CIVIL
4-3 COMPROMISING AND CLOSING
USAM 4-3.200 Bases for the Compromising or Closing of Claims Involving the United States
A United States Attorney should compromise or close a claim (the term "claim" is used in its
broadest sense to include, for example, a claim that arises out of a judgment entered for or against
the United States) pursuant to the authority described in USAM 4-3.120 only when one or more of
the following bases for such action are present:
F. The United States Attorney believes that compromising or closing a claim of the United
States is necessary to prevent injustice (see 38 Op. Att'y Gen. 98 (1934); 38 Op. Att'y Gen. 94 (1933));
H. The United States Attorney believes that it is less costly to compromise a claim against the
United States than to undertake further legal action in defense against the claim;or
I. The United States Attorney believes that a compromise of a claim against the United States
is substantially more favorable than the verdict or judgment that would probably result from further
litigation.

83
29. T ITLE 28 C ODE OF F EDERAL R EGULATION
Subpart Y—Authority to Compromise and Close Civil Claims and
Responsibility for Judgments, Fines Penalties, and Forfeitures
28 C.F.R. § 0.160 Offers That May Be Accepted by Assistant Attorneys General.
28 C.F.R. § 0.160(c) Any proposed (3) When the proposed settlement converts
settlement, regardless of amount or circumstances, into a mandatory duty the otherwise
must be referred to the Deputy Attorney General or discretionary authority of a department or
the Associate Attorney General, as appropriate: agency to promulgate, revise, or rescind
regulations;
(1) When, for any reason, the compromise of
a particular claim would, as a practical (4) When the proposed settlement commits
matter, control or adversely influence the a department or agency to expend funds
disposition of other claims and the that Congress has not appropriated and that
compromise of all the claims taken together have not been budgeted for the action in
would exceed the authority delegated by question, or commits a department or
paragraph (a) of this section; or agency to seek particular appropriation or
budget authorization; or
(2) When the Assistant Attorney General
concerned is of the opinion that because of (5) When the proposed settlement otherwise
a question of law or policy presented, or limits the discretion of a department or
because of opposition to the proposed agency to make policy or managerial
settlement by a department or agency decisions committed to the department or
involved, or for any other reason, the agency by Congress or by the Constitution.
proposed settlement should receive the [Order No. 1958–95, 60 FR 15674, Mar. 27,
personal attention of the Deputy Attorney 1995]
General or the Associate Attorney General,
as appropriate;

28 C.F.R. § 0.161 Acceptance of certain offers by the Deputy Attorney General or Associate
Attorney General, as appropriate.
(a) In all cases in which the acceptance of a General, as appropriate.
proposed offer in compromise would exceed the
(b) The Deputy Attorney General or the Associate
authority delegated by § 0.160, the Assistant
Attorney General, as appropriate, is authorized to
Attorney General concerned shall, when he is of the
exercise the settlement authority of the Attorney
opinion that the proposed offer should be accepted,
General as to all claims asserted by or against the
transmit his recommendation to that effect to the
United States.
Deputy Attorney General or the Associate Attorney

84
30. TITLE 33 CODE OF FEDERAL REGULATIONS
COAST GUARD REGULATIONS FOR NEGOTIATED RULEMAKING
33 C.F.R. § 1.05–60 Plaintiff’s Comments
Negotiated Rulemaking
(a) The Coast Guard may establish a negotiated
rulemaking committee under the Negotiated
Rulemaking Act of 1990 and the Federal
Advisory Committee Act (FACA) (5 U.S.C.
App. 2) when it is in the public interest.

(b) Generally, the Coast Guard will The need exists because the U.S. Congress in their
consider negotiated rulemaking when: legislative responsibilities, the Department of Homeland
Security, the U.S. Cost Guard, and the BATFE failed to
(1). There is a need for a rule; acknowledge, legislate or regulate the Second Amendment
rights of U.S. seafarers in intrastate and interstate travel.

(2). There are a limited number of The Negotiated Rulemaking will be between the Plaintiff
representatives for identifiable parties affected and the Defendants. Representatives from the Seafarers
by the rule; International Union may elect to be a party to the
Negotiated Rulemaking on the Plaintiff’s behalf.
Representatives from other seafaring unions my elect to be
present.

(3). There is a reasonable chance that balanced The Plaintiff suggests that representatives from theOffice
representation can be reached in the of the President; U.S. Senate’s Legislative Counsel (2
negotiated rulemaking committee and that the U.S.C. 271); U.S. House of Representatives’ Legislative
committee members will negotiate in good Counsel (2 U.S.C. § 281); U.S. House of Representatives’
faith; Office of the Law Revision Counsel (2 U.S.C. § 285); U.S.
House Subcommittee on the Coast Guard and Maritime
Transportation; U.S. Department of Homeland Security;
U.S. Department of Justice; U.S. Coast Guard Marine
Safety and Security Council; National Governors
Association; National Association of Counties; National
Rifle Association; Jews for the Preservation of Firearms
Ownership; Second Amendment Sisters; Second
Amendment Foundation; Gunowers of America; and the
Seafarers International Union and other seafaring labor
unions.

(4). There is a likelihood of a committee The Plaintiff concurs that their will be a consensus in a
consensus in a fixed time period; fixed time period.

(5). The negotiated rulemaking process will The Plaintiff concurs that there will be no unreasonable
not unreasonably delay the rule; delay of the rule (or rules).

(6). The Coast Guard has resources to do The Plaintiff concurs that the Coast Guard has resources
negotiated rulemaking; and to do negotiated rulemaking.

(7). The Coast Guard can use the consensus of The Plaintiff concurs that the Coast Guard can use the
the committee in formulating the NPRM and consensus of the committee in formulating the NPRM and
final rule. final rule.

85
31. S PECIAL P ROCEDURES UNDER R ULE 16(C)(9) F EDERAL R ULES OF C IVIL P ROCEDURE
The Commandant of the U.S. Coast Guard has the authority under 14 U.S.C. § 2; 93(a); § 141;
§ 631; § 632; § 633; and 33 C.F.R. § 1.05–1; § 1.05–5; § 1.05–10; § 1.05–60; to not only issue the
Merchant Mariner’s Document with the “National Open Carry Handgun/Small Arms and Light
Weapons” endorsement but to initiate NEGOTIATED RULEMAKING , under the authority of 5 U.S.C.
§ 569, and 33 C.F.R. § 1.05-60 with the Plaintiff and with representatives from the:
# Office of the President
# U.S. Senate’s Legislative Counsel (2 U.S.C. 271),
# U.S. House of Representatives’ Legislative Counsel (2 U.S.C. § 281),
# U.S. House of Representatives’ Office of the Law Revision Counsel (2 U.S.C. § 285).
# U.S. House Subcommittee on the Coast Guard and Maritime Transportation
# U.S. Department of Homeland Security
# U.S. Department of Transportation
# U.S. Department of Justice
# U.S. Coast Guard Marine Safety and Security Council
# National Governors Association
# National Association of Counties
# National Rifle Association
# Jews for the Preservation of Firearms Ownership
# Second Amendment Sisters
# Second Amendment Foundation
# Gunowners of America
# Seafarers International Union and other seafaring labor unions.

32. N EGOTIATED R ULEMAKING W ITH THE U.S. G OVERNMENT U NDER THE U NITED
S TATES C ODE
5 U.S.C. § 569. Encouraging Negotiated Rulemaking
(a) The President shall designate an agency or designate or establish an
interagency committee to facilitate and encourage agency use of
negotiated rulemaking. An agency that is considering, planning, or
conducting a negotiated rulemaking may consult with such agency or
committee for information and assistance.
5 U.S.C. § 566. Conduct of Committee Activity
(a) Duties of Committee. - Each negotiated rulemaking committee
established under this subchapter shall consider the matter proposed
by the agency for consideration and shall attempt to reach a consensus
concerning a proposed rule with respect to such matter and any other
matter the committee determines is relevant to the proposed rule.
(b) Representatives of Agency on Committee. - The person or persons
representing the agency on a negotiated rulemaking committee shall
participate in the deliberations and activities of the committee with the
same rights and responsibilities as other members of the committee,
and shall be authorized to fully represent the agency in the discussions
and negotiations of the committee.
(c) Selecting Facilitator. - Notwithstanding section 10(e) of the Federal
Advisory Committee Act, an agency may nominate either a person from

86
the Federal Government or a person from outside the Federal
Government to serve as a facilitator for the negotiations of the
committee, subject to the approval of the committee by consensus. If
the committee does not approve the nominee of the agency for
facilitator, the agency shall submit a substitute nomination. If a
committee does not approve any nominee of the agency for facilitator,
the committee shall select by consensus a person to serve as facilitator.
A person designated to represent the agency in substantive issues may
not serve as facilitator or otherwise chair the committee.
(d) Duties of Facilitator.
A facilitator approved or selected by a negotiated rulemaking
committee shall -
(1) chair the meetings of the committee in an impartial manner;
(2) impartially assist the members of the committee in
conducting discussions and negotiations; and
(3) manage the keeping of minutes and records as required
under section 10(b) and (c) of the Federal Advisory Committee
Act, except that any personal notes and materials of the
facilitator or of the members of a committee shall not be subject
to section 552 of this title.
(e) Committee Procedures.
A negotiated rulemaking committee established under this subchapter
may adopt procedures for the operation of the committee. No
provision of section 553 of this title shall apply to the procedures of a
negotiated rulemaking committee.
(f) Report of Committee.
If a committee reaches a consensus on a proposed rule, at the
conclusion of negotiations the committee shall transmit to the agency
that established the committee a report containing the proposed rule.
If the committee does not reach a consensus on a proposed rule, the
committee may transmit to the agency a report specifying any areas in
which the committee reached a consensus. The committee may
include in a report any other information, recommendations, or
materials that the committee considers appropriate. Any committee
member may include as an addendum to the report additional
information, recommendations, or materials.
(g) Records of Committee.
In addition to the report required by subsection (f), a committee shall
submit to the agency the records required under section 10(b) and (c)
of the Federal Advisory Committee Act.

87
33. F EDERAL A DVISORY C OMMITTEE A CT
5 U.S.C. Appendix - FEDERAL ADVISO RY COMMITTEE ACT § 2.
Findings and Purpose
(a) The Congress finds that there are numerous committees, boards,
commissions, councils, and similar groups which have been
established to advise officers and agencies in the executive branch of
the Federal Government and that they are frequently a useful and
beneficial means of furnishing expert advice, ideas, and diverse
opinions to the Federal Government.
(b) The Congress further finds and declares that -
(1) the need for many existing advisory committees has not been
adequately reviewed;
(2) new advisory committees should be established only when they are
determined to be essential and their number should be kept to the
minimum necessary;
(3) advisory committees should be terminated when they are no longer
carrying out the purposes for which they were established;
(4) standards and uniform procedures should govern the establishment,
operation, administration, and duration of advisory committees;
(5) the Congress and the public should be kept informed with respect
to the number, purpose, membership, activities, and cost of advisory
committees; and
(6) the function of advisory committees should be advisory only, and
that all matters under their consideration should be determined, in
accordance with law, by the official, agency, or officer involved.

88
34. U.S. C ONSTITUTION, A RTICLE VI, C LAUSE 3:
The Senators and Representatives before mentioned, and the Members
of the several State Legislatures, and all executive and judicial
Officers, both of the United States and of the several States, shall be
bound by Oath or Affirmation, to support this Constitution; but no
religious Test shall ever be required as a Qualification to any Office or
public Trust under the United States.

35. The Heritage Foundation’s Backgrounder, No. 1379, dated June 22, 2000,
P IRACY IN A SIA: A G ROWING B ARRIER TO M ARITIME T RADE, by Dana R. Dillon
(footnotes omitted) reports:
Maritime piracy is back on the foreign policy radar screen. Reported
attacks against commercial ships have tripled over the past decade,
increasing last year alone by 40 percent. Nearly two-thirds of the
attacks in 1999 occurred in Asia, with 113 of the 285 reported cases
taking place in Indonesia’s waters and ports. The risk of attack is
increasing with 90 percent of the world’s trade moving via ship and 45
percent of all shipping moving through the pirate-infested waters of
Asia. Clearly piracy is becoming an increasing threat to global trade.
The United States is the world’s largest trading nation, and although
the dollar amount of losses due to piracy is difficult to assess,
America’s reliance on trade makes any attack on ships in foreign
waters or ports, especially those of its trading partners, a maritime
concern. Both the U.S. Department of State and the U.S. Coast Guard
consider maritime piracy a problem that merits U.S. participation in
regional seminars on the issue. Although today’s pirates target their
victims in ways that may limit a direct U.S. response, several steps can
be taken to help protect maritime trade and to assist other nations in
improving their ability to combat piracy and reduce the threat. . . .
Today, acts of maritime piracy range from the classic boarding and
hijacking of a merchant vessel on the highseas to the more common act
of stealing from the ship while it is anchored. In fact, 72 percent of all
attacks on merchant vessels are committed while the ship is berthed or
anchored in port, and most of the attacks on vessels at sea occur in a
country’s territorial waters. The targets of an attack are usually the
contents of the ship’s stores and safe and the valuables of its crew.
Stealing a ship or its primary cargo on the high seas represents only a
small portion of the reported crimes.
Nevertheless, almost all reported acts of piracy involved armed
intruders who threaten and often injure, kidnap, or kill members of the
crew. . . .”

89
36. International Maritime Organization, “P IRACY AND A RMED R OBBERY A GAINST
S HIPS: G UIDANCE TO S HIPOWNERS AND S HIP O PERATORS, S HIPMASTERS AND C REWS
ON P REVENTING AND S UPPRESSING A CTS OF P IRACY AND A RMED R OBBERY A GAINST
S HIPS, Maritime Safety Committee’s Circular, MSC/Circ. 623/Rev.2, dated 20
June 2001
With the threat of armed pirates boarding a ship and killing its crew it would seem to be the
sensible thing to arm the crew when berthed, anchored, or transiting pirate waters. But, the
International Maritime Organization, in their Maritime Safety Committee’s Circular, MSC/Circ.
623/Rev.2, dated 20 June 2001, titled “Piracy and Armed Robbery Against Ships: Guidance to
shipowners and ship operators, shipmasters and crews on preventing and suppressing acts of piracy
and armed robbery against ships”states in page 8, paragraphs 44 and 45:
“44. The carrying and use of firearms for personal protection or
protection of a ship is strongly discouraged.
45. Carriage of arms on board ship may encourage attackers to carry
firearms thereby escalating an already dangerous situation, and any
firearms on board may themselves become an attractive target for an
attacker. The use of firearms requires special training and aptitudes
and the risk of accidents with firearms carried on board ship is great.
In some jurisdiction, killing a national my have unforeseen
consequences even for a person who believes he has acted in self
defence.”

The IMO/MSC exhibits faulty logic in stating “Carriage of arms on board ship may encourage
attackers to carry firearms” implying that pirates normally board ships without firearms in order to
steal goods, injure, kidnap, and kill members of the crew. The IMO/MSC further insults mariners
implying that mariners do not have the aptitudes to possess and use firearms as requiring special
training that mariner’s are incapable of comprehending when the reality of the mariner’s work
environment requires special training to operate deck machinery far more complicate than firearms.
This suggests ulterior motives and hidden agendas where Safety of Life at Sea (SOLAS) is not the
priority.

This anti-gun agenda is reflected in the Asian Co-operation Conference on Combating Piracy
& Armed Robbery Against Ships, held in Tokyo, 4-5 October 2001. I cite passages from “Preservation
of Life: An Owners Perspective” by Capt. Duncan M. Telfer, General Manager, Fleet, The China
Navigation Co. Ltd., Swire Group, Chairman of the Nautical Institute in Hong Kong:

“It is the seafarers who are placed in harms way and risk injury and life
as a result of a lack of law and order in many countries, coastal waters
and sea-lanes. It is hoped that the members of this group will have the
Authority, resources and endeavor to take action to place law and
order where it is required. The seafarer must have the knowledge and

90
confidence that they are being protected to enable them to operate our
national fleets in a safe and hindrance free environment.
...
Piracy attacks hit a 10-year high last year; 72 seafarers were killed
compared to 3 in 1999. On top of the 72 reported deaths, another 99
people were injured, up from 24 in 1999. 26 seafarers are reported to
be missing. The IMB states that “unless some positive action is taken
we are on course for a dramatic increase in this crime.” The following
quote is taken from a recent International Chamber of Commerce IMB
Shipping course:
“Modern Day Piracy, of whatever form, is a violent, bloody, ruthless
practice and is made the more fearsome by the knowledge on the part
of the victims that they are on their own and absolutely defenceless
and that no help is waiting just around the corner.”
...
Merchant seafarers are not military trained. As such they do not have
the necessary practical or theoretical skills to handle firearms. No do
they have the psychological testing for such responsibilities or
preparedness for the results of such.
...
The best onboard protection is passive. Such as extra lookouts in
known pirate areas, searchlights, fire hoses rigged, stated alarm
procedures and the ability to report immediately to a responsible
authority who can provide an effective and rapid response.
Our own company ISM procedure manuals state that: -
“Once pirates or terrorists have boarded the vessel and gained access
to the accommodation or engine room, no effort should be made to
obstruct them. The safety of personnel must not be placed at risk.”
Here we have a Hong Kong captain telling us that piracy is a violent, bloody, ruthless practice
leaving 72 seafarers dead and 99 others injured in the year 2000. Yet he insults seafarers as not
having the necessary practical or theoretical skills to handle firearms. He suggests that seafarers rely
on the mercy of pirates when there is not sane reason for such reliance. This risk of seafarers getting
killed far outweighs the remote possibility passive survival.

This brings up the question of constitutionality of treaties and international conventions.


When a treaty or international convention possessing provisions that are repugnant to the United
States Constitution, is that treaty still the Supreme law of the land? If so, isn’t this in effect, an
unconstitutional act of repealing a provision in the United States Constitution? The U.S. Coast
Guard can, should, and must address this concern at the IMO’s Maritime Security Conference in
December 2002.

91
In Time magazine online article dated August 18, 1997, Vol. 150, No. 7, titled “A Plage of
Pirates: Modern Buccaneers With Machine Guns Instead of Cutlasses are Once Again the Scourge of the
Oceans” by Helen Gibson/London noted:16
Civilian cargo ships make soft targets for pirates who have upgraded
their weapons while their victims have gradually been disarmed. “In
the old days, pirates carried cutlasses, but you did too,” says
McDowall.17 “Now we are forbidden to carry weapons on board.”
Pirates are also gaining confidence because they so often get away with
it. When Blackbeard terrorized the North Carolina coast of the U.S. in
the early 1700s navies were powerful and justice summary.
Blackbeard’s career ended when his head was sliced off by a Royal
Naval broadsword. These days, concerns over sovereignty and
territorial waters foster caution. Laments Ellen18, “There is no law
enforcement at sea by anyone – today’s navies are reluctant to
intervene in the act of piracy.”

As the United States is currently in a state of war against terrorism and piracy the Department
of Transportation has the authority to instruct the U.S. Coast Guard to formulate a set of instruction
for the Merchant Marine on “Standing Rules of Engagement” similar to the U.S. Army’s rules19 but
modified for the civilian maritime environment of our seaports and for interstate travel. This is
required as it is common sense, especially in view when combined with the ten year high in piracy
on the high seas:

“Some seaworkers’ unions are pressuring governments to do something


about the rising threat of modern piracy. This was reported in a recent
newspaper article in the Observer. Despite most Shipowners and
Unions’ wishes against arms on board some crews are now carrying
weapons for defence purposes. The British union Numast for instance,
is opposed to arming crews since this increases the potential for
violence. Whether the number of ships carrying arms will increase
remains to be seen. Prospects for a decrease in piracy incidents remain
uncertain, however, and as long as governments fail to act decisively
these kinds of defence measures will most probably increase.20

16
www.time.com/time/magazine/1997/int/970818/high_seas.a_plague_of_p.html
17
Captain Allan McDowall, British tanker master.
18
Eric Ellen, Executive Director of International Maritime Bureau’s Commercial Crime Services
19
http://call.amry.milk/products/newsltrs/96_6/roeappa1.htm
See also, http://call.amry.milk/products/newsltrs/96_6/roeappb1.htm
20
www.tortuga.myweb.nl/archive/modern/2k2repa.htm (footnotes omitted)

92
In an International Action Network on Small Arms (IANSA) article, “Crews Take Up Guns to
Fight Pirates” by Nick Patos Walsh, he reports:21

“The pirates carry weapons ranging from kitchen knives to AK47 rifles.
Last year, 21 people were shot dead in raids from the Mediterranean to
Malaysia.
“Sea-workers’ unions have launched a campaign to force the
Government to take the threat of piracy more seriously. A record seven
British ships were attacked by pirates last year and another 15 attacked
were managed or controlled by UK firms, according to the International
Maritime Bureau (IMB).
“Crews need more protection,” said Andrew Linington, of sea-worker’s
union, Numast. “Owners have resisted moves towards greater security.
Seafarers should not have to defend themselves against AK47s.”
The Commandant of the U.S. Coast Guard, then Admiral James M. Loy gave a speech at the
Propeller Club of the United States in Washington, DC on October 31, 2001. In that speech he asks:

“How do we prevent another attack? Of course, the question that


concerns us this afternoon is more specific. How do we meet the
enormous challenge of providing maritime security against terrorism and
other potential threats to the marine transportation system?”
...
“Threats to our security at home are growing, and they will continue to
grow in this new century. Separately and collectively they pose dangers
to our borders, our economy, our environment, and our safety. All of
them have a distinct maritime dimension.
“They can be conveyed towards our shores in ways that can’t always de
countered by traditional naval forces. . .”

The new Commandant, Admiral T. H. Collins, issued an ALCOAST22 directive detailing the
direction he wants the Coast Guard to take.

“The Commandant’s Direction is a document promulgated by the


Commandant to outline the strategic short term objectives of our service.
It is normally published at the beginning of a Commandant’s 4 year term
and at the midpoint. On day one, I want to share with you my areas of
emphasis for our Coast Guard. That Direction follows.”
“To ensure the high level of performance America expects and deserves,
we will . . . build robust maritime homeland security strategies,
capabilities and competencies.”

21
www.ianso.org/news/2002/feb2002/guns_pirates10202.htm
22
ALCOAST 269/02, COMDTNOTE 1000, ® 312323Z MAY 02, FM COMDT COGARD WASHDC

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37. CORPUS JURIS SECUNDUM: VOLUME 87: TREATIES
II. Construction and Operation
87 C.J.S. § 6. Generally
Generally, questions as to the construction, and operation of treaties viewed as contracts
between independent nations are questions for the political departments of the
contracting powers and not for the courts. Accordingly, respect is ordinarily due the
reasonable views of the Executive Branch concerning the meaning of an international
treaty. Nevertheless, since treaties in their effect on private rights are in the nature of
legislative acts, and are binding on the courts, it is often necessary where such rights are
involved for the courts to construe treaties. In such cases, the courts have the power, and
the duty, to construe the treaty, and they have the power to determine whether a treaty
is applicable to the case under consideration, and the duty to apply it if found applicable.
Thus, a treaty, no less than a statute, may confer judicial power.
III. DURATION , MODIFICATION , SUSPENSION , AND TERM INATION
87 C.J.S. § 10. Generally — Effect of abrogation.
In the absence o a showing that a treaty provision violates the Federal Constitution, the
courts may not abrogate or annul a treaty provision. However, where one party to a treaty
abrogates it, the other party is relieved from all obligation under it.
87 C.J.S. § 11. Modification or amendment
In the absence of a showing that a treaty provision violates the Federal Constitution,
courts may not alter, amend or add to any treaty by inserting any clause since to do so
would constitute an usurpation of power and would not be an exercise of judicial
function.
87 C.J.S. § 12. Manner of termination — Termination by constitutional amendment or by
Congress
In the United States Congress may abrogate by a formal act or resolution directly
abrogating the treaty, or by legislation which by necessary implication results in
abrogation. The intent of Congress, however, must be clear. Moreover, a treaty may be
abrogated by the adoption of an amendment to the Federal Constitution and the
enactment of a federal statute giving operative effect to such amendment which is in
conflict with such treaty provisions.
87 C.J.S. § 12. Manner of termination — Effect of War.
Treaties may be of such a nature as to their object and import that war will put an
end to them, war does not, always or necessarily dissolve or terminate treaties between
the contending powers. The question whether the stipulations of a treaty are annulled
by war depends on their intrinsic character, and provisions compatible with a state
of hostilities, unless expressly terminated, survive, and those which are incompatible
fall.23

23
The anti-gun provisions of Paragraphs 45 and 46 M.C./Circ. 623 Rev.3 dated 29 May 2002 have been
voided by the war on terror and piracy on the high seas. Seafarers have the inalienable right to defend their
lives at sea, meeting force with force with equal or superior firepower (lite infantry weapons and fully
automatic weapons).

94
38. IV. R ELATION T O, AND C ONFLICT W ITH, O THER L AWS
87 C.J.S. § 13. Generally
Without express authority from Congress, or authority otherwise clearly indicated, the
courts are bound to recognize treaties as lawfully made. However, the courts have the
authority to declare the invalidity of a treaty in a proper case where the rights of citizens
are involved.
87 C.J.S. § 14. Acts of Congress
Treaties and acts of Congress, are placed on the sam footing and are of like obligation, so
that neither having any inherent superiority over the other, either may supersede the
other. Even so, neither treaties nor laws passed pursuant to them are free from the restraints
of the United States Constitution, such as the Bill of Rights.24
87 C.J.S. § 15. State Constitutions and Statutes
The provision of the Federal Constitution that this Constitution and the laws and treaties
of the United States shall be the supreme law of the land, and binding on the judges in
every state, anything in the constitution or laws of any state to the contrary
notwithstanding, makes treaties superior to both the constitutions and laws of the several
states, including the common law of a state, insofar as it is in conflict with the provisions
of a treaty. Valid treaties areas binding within the territorial limits of the states as
throughout the dominion of the United States. States must adhere to United States
treaties and give them the same force and effect as any other federal law, since they are
considered to be of equal dignity with acts of Congress, but not superior to the Federal
Constitution.25 A treaty must be regarded as a part of the law of a state, as much as are the
state’s own local laws and constitution, and is effective and binding on the state
legislature.

39. T HE S ECOND A MENDMENT AS A C IVIL R IGHT IN THE U NITED S TATES


A. CORPUS JURIS SECUNDUM: VOLUME 16A CONSTITUTIONAL LAW
IX. Personal, Civil, and Political Rights and Freedoms Generally
16A C.J.S. § 444. Basic Rights.
The entire social and political structure of the United States rests on the cornerstone that
all men have certain basic rights which are inherent and inalienable, which exist
notwithstanding there is no specific enumerations thereof in the state constitutions.
Natural rights include the right of personal liberty, the right of personal security, and the
right to acquire and enjoy property, each of which rights is discussed in detail infra §§
472 et seq., 511, 506-510, respectively.
16A C.J.S. § 446. Bill of Rights in General
A Bill of Rights contained in a constitution has been characterized as the supreme law
of the land, and nothing else in the constitution can be construed as a limitation,
restriction or modification of any such fundamental rights. A Bill of Rights guarantees
the preservation of our natural rights.

24
United States v. Yian, 905 F. Supp160 (S.D.N.Y. 1995), aff’d, 134 f.3d 79 (2d Cir. 1998). Italics and
underlining are my emphasis for the Second Amendment rights of U.S. seafarers.
25
My emphasis for the Second Amendment rights of U.S. seafarers.

95
The purpose of the Bill of rights is to protect the people against arbitrary and
discriminatory use of political power. Broadly stated, the very purpose of the Bill of
Rights was to withdraw certain subjects from the vicissitudes of political controversy, to
place them beyond the reach of majorities and officials, and to establish them as legal
principles to be applied by the courts; and these fundamental rights may not be submitted
to vote and do not depend on the outcome of an election.
Also, the Bill of Rights is a remedy which protects the individual against invasion by the
government, or any branch thereof, and which provides a barrier to secure the rights of
minorities, and to protect the individual against the arbitrary exactions of majorities,
executives, legislatures, courts, sheriffs, and prosecutors. The rights guaranteed by the
Bill of Rights must be zealously guarded so that they may not be whittled away through
minor seemingly innocuous intrusions.
The constitutional guaranties negative any form of procedure which arbitrarily singles
out any individuals or a class and permits them to be dealt with in a manner arbitrarily
or unreasonably different from that in which others similarly situated are dealt with. In
some states, the constitutional provisions safeguarding personal rights are substantially
equivalent to the guaranties of the Fourteenth Amendment to the Federal Constitution.
16A C.J.S. § 511 Personal Security
a. In General
The right of personal security is one of the natural rights, and is guarded by various
provisions of the state and federal constitutions, derived in part from the Magna
Charta and other charters of English liberty, and reinforced by additional and more
specific injunctions. The constitution does not require the sacrifice of personal
security, and constitutional provisions for the security of the person are to be liberally
construed. The guaranties included in the right of personal security are secured
against abridgment by the states by the Fourteenth Amendment.26
The right of the people to be secure in their homes is a basic right guaranteed by a state
constitution. No right is held more sacred, or is more carefully guarded, by common law,
than the right of every individual to possession and control of his own person, free from
all restraint or interference unless by the clear and unquestionable authority of the law.
Each individual is entitled to be secure in his person, to be free from unjustified violation
by others, and to be guarded by law against any unwarranted intrusion upon his
tranquility.
...
Rights included in personal security. The right of personal security consists in a person’s
legal and uninterrupted enjoyment of his life, his limbs, his body, his health, and his
reputation. It includes the right to exist, and the right to the enjoyment of life while
existing, and it is invaded not only by a deprivation of life, but also by a deprivation of
those things which are necessary to the enjoyment of life according to the nature,
temperament, and lawful desires of the individual.
Reputation. The right to the enjoyment of a good reputation is of ancient origin and
necessary to human society, as discussed in C.J.S. Libel and Slander § 4, and is with the

26
Hague v. Committee for Industrial Organization, C.C.A.N.J., 101 F.2d 774, modified on other grounds
59 S.Ct. 954, 307 U.S. 496, 83 L.Ed. 1423.

96
constitutional guaranty of personal security; it is a fundamental right to be protected
regardless of allegation of special or economic damage.
16A C.J.S. § 478 The Right to Travel
The Right of interstate travel is a basic or fundamental right recognized andguaranteed
by the constitution, which is virtually unqualified; it is basically a right to travel
unrestricted by unreasonable government interference or regulation. . . .
Travel, in the sense of a constitutional right to travel, means more than mere locomotion;
it means migration with the intent to settle and abide. The right to travel includes the
right to enter and abide in any state. Thus, whether a specific type of travel is a
fundamental right and, therefore, within the right to travel, may depend on the intent
which motivates the movement.
The right of interstate travel must be seen as insuring new residents the same right to
vital government benefits and privileges in the states to which they migrate as are enjoyed
by other residents. Hence, the purpose of inhibiting migration by needy persons into a
state is constitutionally impermissible, and all citizens must be free to travel throughout
the United States uninhibited by statutes, rules, or regulations which unreasonably
burden or restrict this movement.
... A state cannot condition the exercise of the right to travel on wealth, or on the
voluntary relinquishment of constitutional rights.
16A C.J.S. § 480 Durational Residency Requirements to Right to Travel
A proscribed “durational residency requirement” is a requirement that the traveler not
only be a state resident but also that he maintain that status for a certain minimum period
before qualifying for benefits; it is one which subjects a new resident to a substantial
waiting period before he can apply for the benefit involved.
Durational residency requirements inherently infringe on the exercise of the right to
travel, and are prima facie invalid, to be countenanced only when they serve a
compelling state interest. ...
The determination of whether a residency requirement infringes the right to travel does
not depend on what benefits other states choose to provide, and consideration must be
given to whether the waiting period would deter migration and the extent to which the
requirement serves to penalize the exercise of the right to travel.
16A C.J.S. § 482 Involuntary Servitude
Under the Thirteenth Amendment to the Constitution of the United States, which
provides that “neither slaveryor involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall exist within the United States,
or any place subject to their jurisdiction,” and similar provisions in some state
constitutions, involuntary servitude, except as a punishment for crime, is abolished. The
Amendment has as its aim the maintenance of a system of completely free and voluntary
labor throughout the United States.
The Amendment not only prohibits governmental action support slavery or involuntary
servitude, but is an absolute declaration that slavery or involuntary servitude shall not
exist in any part of the United States. Accordingly, there is no rule of law under which
any person in this country will be forced to serve with his labor any other person whom
he does not wish to serve.

97
As used in the Amendment, “involuntary servitude” is the condition of one who is
compelled by force, coercion, or imprisonment and against his will to labor for another
whether or not he is paid, and includes “peonage.” While the leading purpose of the
Thirteenth Amendment was to abolish slavery in the United States, and such was its
primary effect, the Amendment is not limited to the abolition of slavery, but embraces,
in addition, other forms of compulsory labor, akin to slavery, which tend to produce
undesirable consequences; and the words “involuntary servitude,” as used in the
Amendment, have a more comprehensive meaning than the word “slavery.”
The purpose of the Thirteenth Amendment was not merely to abolish the physical
cruelties of slavery, but also to eradicate the badges and incidents of slavery. Subject to
the exceptions discussed infra §§ 483, 484, the Thirteenth Amendment to the federal
Constitution extends to servitude in fact involuntary, no matter under what form or name
such servitude may be disguised.
All statutes, ordinances, and official actions which violate the constitutional prohibition
against involuntary servitude are unconstitutional and void. The Amendment renders
void all statutes or contracts providing for a state of peonage.

40. INTERNATIONAL T REATIES & C ONVENTIONS V IOLATING THE U.S. C ONSTITUTION


& B ILL OF R IGHTS
C IMO/STCW 1995 Amended Standards of Training, Certification and Watchkeeping
Convention.
C International Convention for the Safety of Life at Sea (SOLAS), 1974.
C Paragraphs 44 and 45 of IMO/Maritime Safety Committee MSC/Circ. 623/Rev.3 dated 29
May 2002, PIRACY AND ARMED ROBBERY AGAINST SHIPS : GUIDA N C E TO SHIPOW NERS AND SHIP
OPERATORS , SHIPMASTERS AND CREWS ON PREVENTING ACTS OF PIRACY AND ARMED ROBBERY AGAINST
SHIPS

41. R EPEALING OR R EVISING F EDERAL G UN C ONTROL L AWS & R EGULATIONS:


C 27 CFR § 178.38, Transportation of Firearms

42. 18 U.S.C. § 921 D EFINITIONS


18 U.S.C. § 921(a)(18) The term ''Secretary'' or ''Secretary of the Treasury'' means the Secretary
of the Treasury or his delegate.

98
43. 18 U.S.C. § 922 Unlawful Acts
C 18 U.S.C. § 922(a)(3) It shall be unlawful for any person, other than a licensed importer, licensed
manufacturer, licensed dealer, or licensed collector to transport into or receive in the State
where he resides (or if the person is a corporation or other business entity, the State where
it maintains a place of business) any fire arm purchased or otherwise obtained by such
person outside that State, except that this paragraph (A) shall not preclude any person who
lawfully acquires a firearm by bequest or intestate succession in a State other than his State
of residence from transporting the firearm into or receiving it in that State, if it is lawful for
such person to purchase or possess such firearm in that State, (B) shall not apply to the
transportation or receipt of a firearm obtained in conformity with subsection (b)(3) of this
section, and (C) shall not apply to the transportation of any firearm acquired in any State
prior to the effective date of this chapter;
C 18 U.S.C. § 922(a)(4) It shall be unlawful for any person, other than a licensed importer, licensed
manufacturer, licensed dealer, or licensed collector, to transport in interstate or foreign
commerce any destructive device, machinegun (as defined in section 5845 of the Internal
Revenue Code of 1986), short-barreled shotgun, or short-barreled rifle, except as specifically
authorized by the Secretary consistent with public safety and necessity;
C 18 U.S.C. § 922(a)(5) It shall be unlawful for any person (other than a licensed importer, licensed
manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport,
or deliver any firearm to any person (other than a licensed importer, licensed manufacturer,
licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to
believe does not reside in (or if the person is a corporation or other business entity, does not
maintain a place of business in) the State in which the transferor resides; except that this
paragraph shall not apply to (A) the transfer, transportation, or delivery of a firearm made to
carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by,
a person who is permitted to acquire or possess a firearm under the laws of the State of his
residence, and (B) the loan or rental of a firearm to any person for temporary use for lawful
sporting purposes;
C 18 U.S.C. § 922(a)(9) It shall be unlawful for any person, other than a licensed importer, licensed
manufacturer, licensed dealer, or licensed collector, who does not reside in any State to
receive any firearms unless such receipt is for lawful sporting purposes.
C 18 U.S.C. § 922(b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed
dealer, or licensed collector to sell or deliver -
C 18 U.S.C. § 922(b)(1) It shall be unlawful for any licensed importer, licensed manufacturer,
licensed dealer, or licensed collector to sell or deliver any firearm or ammunition to any
individual who the licensee knows or has reasonable cause to believe is less than eighteen
years of age, and, if the firearm, or ammunition is other than a shotgun or rifle, or
ammunition for a shotgun or rifle, to any individual who the licensee knows or has
reasonable cause to believe is less than twenty-one years of age;
C 18 U.S.C. § 922(b)(2) It shall be unlawful for any licensed importer, licensed manufacturer,
licensed dealer, or licensed collector to sell or deliver - any firearm to any person in any
State where the purchase or possession by such person of such firearm would be in violation
of any State law or any published ordinance applicable at the place of sale, delivery or other
disposition, unless the licensee knows or has reasonable cause to believe that the purchase
or possession would not be in violation of such State law or such published ordinance;
C 18 U.S.C. § 922(b)(3) It shall be unlawful for any licensed importer, licensed manufacturer,
licensed dealer, or licensed collector to sell or deliver - any firearm to any person who the

99
licensee knows or has reasonable cause to believe does not reside in (or if the person is a
corporation or other business entity, does not maintain a place of business in) the State in
which the licensee's place of business is located, except that this paragraph (A) shall not
apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State
in which the licensee's place of business is located if the transferee meets in person with the
transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with
the legal conditions of sale in both such States (and any licensed manufacturer, importer or
dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to
the contrary, to have had actual knowledge of the State laws and published ordinances of
both States), and (B) shall not apply to the loan or rental of a firearm to any person for
temporary use for lawful sporting purposes;
C 18 U.S.C. § 922(b)(4) It shall be unlawful for any licensed importer, licensed manufacturer,
licensed dealer, or licensed collector to sell or deliver - to any person any destructive device,
machinegun (as defined in section 5845 of the Internal Revenue Code of 1986), short-barreled
shotgun, or short-barreled rifle, except as specifically authorized by the Secretary consistent
with public safety and necessity; and
C 18 U.S.C. § 922(b)(5) It shall be unlawful for any licensed importer, licensed manufacturer,
licensed dealer, or licensed collector to sell or deliver -(5) any firearm or armor-piercing
ammunition to any person unless the licensee notes in his records, required to be kept
pursuant to section 923 of this chapter, the name, age, and place of residence of such person
if the person is an individual, or the identity and principal and local places of business of
such person if the person is a corporation or other business entity.
C 18 U.S.C. § 922(o)(1) Except as provided in paragraph (2), it shall be unlawful for any person to
transfer or possess a machinegun.
C 18 U.S.C. § 922(o)(2)(A) This subsection does not apply with respect to a transfer to or by,
or possession by or under the authority of, the United States or any department or
agency thereof or a State, or a department, agency, or political subdivision thereof; or
C 18 U.S.C. § 922(o)(2)(B) This subsection does not apply with respect to any lawful transfer
or lawful possession of a machinegun that was lawfully possessed before the date this
subsection takes effect.
C 18 U.S.C. § 922(q)(1) The Congress finds and declares that -
(A) crime, particularly crime involving drugs and guns, is a pervasive, nationwide problem;
(B) crime at the local level is exacerbated by the interstate movement of drugs, guns, and
criminal gangs;
(C) firearms and ammunition move easily in interstate commerce and have been found in
increasing numbers in and around schools, as documented in numerous hearings in both the
Committee on the Judiciary (FOOTNOTE 2) the House of Representatives and the Committee
on the Judiciary of the Senate;
(FOOTNOTE 2) So in original. Probably should be followed by ''of''.
(D) in fact, even before the sale of a firearm, the gun, its component parts, ammunition, and
the raw materials from which they are made have considerably moved in interstate
commerce;
(E) while criminals freely move from State to State, ordinary citizens and foreign visitors may
fear to travel to or through certain parts of the country due to concern about violent crime
and gun violence, and parents may decline to send their children to school for the same
reason;

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(F) the occurrence of violent crime in school zones has resulted in a decline in the quality
of education in our country;
(G) this decline in the quality of education has an adverse impact on interstate commerce and
the foreign commerce of the United States;
(H) States, localities, and school systems find it almost impossible to handle gun-related
crime by themselves - even States, localities, and school systems that have made strong
efforts to prevent, detect, and punish gun-related crime find their efforts unavailing due in
part to the failure or inability of other States or localities to take strong measures; and
(I) the Congress has the power, under the interstate commerce clause and other provisions
of the Constitution, to enact measures to ensure the integrity and safety of the Nation's
schools by enactment of this subsection.
C 18 U.S.C. § 922(q)(2)(A) It shall be unlawful for any individual knowingly to possess a firearm
that has moved in or that otherwise affects interstate or foreign commerce at a place that the
individual knows, or has reasonable cause to believe, is a school zone.
(B) Subparagraph (A) does not apply to the possession of a firearm -
(i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the State in which the
school zone is located or a political subdivision of the State, and the law of the State or
political subdivision requires that, before an individual obtains such a license, the law
enforcement authorities of the State or political subdivision verify that the individual is
qualified under law to receive the license;
(iii) that is -
(I) not loaded; and
(II) in a locked container, or a locked firearms rack that is on a motor vehicle;
(iv) by an individual for use in a program approved by a school in the school zone;
(v) by an individual in accordance with a contract entered into between a school in the
school zone and the individual or an employer of the individual;
(vi) by a law enforcement officer acting in his or her official capacity; or
(vii) that is unloaded and is possessed by an individual while traversing school premises
for the purpose of gaining access to public or private lands open to hunting, if the entry
on school premises is authorized by school authorities.
C 18 U.S.C. § 922(q)(3)(A) Except as provided in subparagraph (B), it shall be unlawful for any
person, knowingly or with reckless disregard for the safety of another, to discharge or attempt
to discharge a firearm that has moved in or that otherwise affects interstate or foreign
commerce at a place that the person knows is a school zone.
(B) Subparagraph (A) does not apply to the discharge of a firearm -
(i) on private property not part of school grounds;
(ii) as part of a program approved by a school in the school zone, by an individual who is
participating in the program;
(iii) by an individual in accordance with a contract entered into between a school in a school
zone and the individual or an employer of the individual; or
(iv) by a law enforcement officer acting in his or her official capacity.

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C 18 U.S.C. § 922(q)(4) Nothing in this subsection shall be construed as preempting or preventing
a State or local government from enacting a statute establishing gun free school zones as
provided in this subsection.
C 18 U.S.C. § 926A, Interstate Transportation of Firearms
C 18 U.S.C. § 930

44. F EDERAL P REEMPTION OF S ELECTED S TATE G UN C ONTROL L AWS:


Inspection of individual state laws will be necessary to determine their individual and collective
impact upon the right to travel intrastate and interstate while armed with a handgun for the lawful
purpose of personal safety and security. The inspection should not be limited to just the Titles listed
below:
C Alabama Code C Montana Code Annotated
C Alaska Statutes C Nebraska Revised Statutes
C Arizona Revised Statutes C Nevada Revised Statutes
C Arkansas Code Annotated C New Hampshire Rev. Statutes Annotated
C California Penal Code C New Jersey Statutes Annotated
C Colorado Revised Statutes C New Mexico Statutes Annotated
C Connecticut General Statutes C New York Consolidated Laws
C Delaware Code Annotated C North Carolina General Statutes
C District of Columbia Code C North Dakota Century Code
C Florida Statutes Annotated C Ohio Revised Code Annotated
C Georgia Code C Oklahoma Statutes
C Hawaii Revised Statutes C Oregon Revised Statutes
C Idaho Statutes C Pennsylvania Consolidated Statutes
C Illinois Compiled Statutes C Rhode Island General Laws
C Indiana Code C South Carolina Code Annotated
C Iowa Code C South Dakota Codified Laws
C Kansas Statutes Annotated C Tennessee Code
C Kentucky Revised Statutes C Texas Penal Code
C Louisiana Revised Statutes Annotated C Utah Code
C Maine Revised Statutes C Vermont Statutes Annotated
C Maryland Code Annotated C Virginia Code
C Massachusetts General Laws C Washington Revised Code
C Michigan Compiled Laws Annotated C West Virginia Code
C Minnesota Statutes Annotated C Wisconsin Statutes
C Mississippi Code C Wyoming Statutes
C Missouri Revised Statutes

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Therefore, in defense of the American People’s rights generally and in defense of U.S. seamen’s
rights specifically in regard to the Department of Homeland Security’s Proposed Rulemaking and in
accordance with the MERCHANT MARINERS DOCUMENTS PILOT PROGRAM in Section 611 of the COAST
GUARD AND MARITIME TRANSPORTATION ACT OF 2004 (Public Law No. 108-293), the implementing of a
“National Open Carry Handgun” or a “National Open Carry Small Arms and Light Weapons”
endorsement for the Merchant Mariner’s Document and or the Merchant Mariner’s Credential the
Plaintiff files this Motion for Temporary Injunction so that the Court my grant the Plaintiff’s Motion
for Negotiated Rulemaking as a condition of settlement.

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D EATH BY A THOUSAND C UTS
by Larry Pratt, Gun Owners of America
www.GunOwners.org
April 2006
Anti-gunners, as with socialists in general, embedded in a bill that hopefully will stop
are very adept at taking only as much of our predatory lawsuits from being brought against
freedom and hard-earned money as they think the firearms industry for actions committed by
they can get away with. If they find that they criminals. The House could have told the
have overstepped, they will back off as much as Senate that their identical bill -- without the
is needed. When the coast is clear, and nobody "lock up your safety" provision -- should be
is watching, they come back for what they had voted on by the Senators, but instead, the House
to leave on the table -- plus a little bit more. capitulated to the anti-gun demands of the
Senate.
The Left has typically been willing to play
political hard ball and they are willing to The latest contribution to chipping away at
confront their opponents with the attitude that the right of the people to keep and bear arms is
"What is mine is mine, and what is yours is under way in Executive Department.
negotiable." Many gun owners, and
The Bureau of Alcohol, Tobacco, Firearms
conservatives generally, fail to admit that this is
and Explosives (BATFE) is running out of
happening, and as a result, prefer to give in
control in a fashion not seen since the 1970's.
rather than be the target of the wild charges
One example was their effort to jail a gun
leftists make whenever someone disagrees with
collector on a charge that he had illegally
them.
converted his rifle to a machine gun. It turned
As the founder and chairman of Gun out that the BATFE "expert" had not even looked
Owners of America put it in his book, inside the gun. Had he done so, he might have
Confrontational Politics, "It takes Leftist seen that one of the old parts in the gun was
Democrat legislators and confrontationally deteriorating and causing the multiple firing.
inadequate Republicans to pass socialist Defects are not illegal under federal law. (By the
programs." (p.87) way, the "expert" was probably a few shots from
having the gun blow up in his hands and kill or
This process has been quietly underway in
maim him.)
the last several years in spite of Republican
control of the Congress and Presidency. House Other bureaucratic redefinitions of the right
of Representatives Judiciary Committee to keep and bear arms is under way at the
chairman, Jim Sensenbrenner (R-WI), rammed Department of Homeland Security (DHS). From
through the Congress a renewal of a ban on the very beginning of its lamentable existence,
(plastic) guns that do not exist. He was eager to the DHS has never had a moment's thought for
work with Senator Kennedy in the Senate so it involving the people in homeland security,
could be said that Democrats are not the only even though the Constitution clearly provides
ones who ban guns. Sensenbrenner was so for the militia to be used for that purpose
eager, that he did not even negotiate a quid pro (Article I Section 8). They have preferred to
quo. The Democrats won it all on this one; the concentrate police power in Washington in the
Republicans got nothing. hands of government employees, not average
citizens.
On another occasion, Senate Republicans
agreed to the proposition that people should It has been the DHS that has steadfastly
have their guns unavailable for self defense. thrown up as many obstacles as possible to keep
That is what they did when they agreed to force pilots from being armed. As a result, only a
retail dealers to include a gun lock of some kind small percentage of the 100,000 or so airline
with each handgun they sell. This was pilots have bothered to jump the high hurdles

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for obtaining a license to carry a gun in their The application of this amazing view at the
cockpits. Congress has twice passed legislation Department of Homeland Security is to deny
directing the bureaucrats to arm the pilots, but refugee status to minority groups in Burma who
their "vicious compliance" has almost have been targeted for genocide. The immediate
completely thwarted Congress' will. It should be problem concerns 9,800 Karen refugees whose
added that the Congress has done little to hold main crime, other than not being ethnic
the bureaucrats accountable, so it is business as Burmese, is that many of them are Christians.
usual. To keep from being exterminated, some of them
have taken up arms (as a "non-state actor!").
Lately a new affront to the Second
Amendment's protection of the right of the The Department of State has given a green
people to keep and bear arms has been under light to allowing the Karen refugees asylum
way in the DHS. The Founders of our republic status in the United States. The DHS refuses to
clearly viewed rights, including the Second issue a waiver (which is necessary under our
Amendment, as universal rights which are PATRIOT and REAL ID Acts). The DHS
inherent in all men. The Declaration of anti-gunners are holding to the UN view of the
Independence even says that all men are "right of the government to keep and bear arms"
"endowed by their Creator with certain rather than the Founders view that "all men are
unalienable rights." endowed by their Creator with certain
unalienable rights."
It would be too lengthy to do so here, but an
excellent collection of the Founders' statements Now that the Karen freedom fighters have
on the universality of the rights, and the right to actually been designated a terrorist organization
keep and bear arms in particular, can be found by the DHS, which means "the US government"
in a friend of the court brief by Michele L. to foreign governments, the neighboring rulers
Lombardo, et. al. (available at of Thailand are getting ready to scoop up these
http://www.gunowners.org/fs0602.htm). unwanted minorities (they are not Thai either)
and throw them into Burma from the refugee
The clear intent of the Constitution hasn't
camps along the border areas they have
bothered the folks at DHS any more than has
inhabited for some time.
the law telling them to send the pilots packing,
so to speak. They seem to have taken a liking to If that happens, and when the Karen run out
an idea popular at the UN instead. The UN has of their limited supplies of ammunition, the
been attempting to impose a gun control treaty genocide will begin. All of which could be
on the US. It would require registration of all prevented if the folks at DHS were told by the
guns, and the stated intention of the promoters President (their boss) to issue the waiver,
of this treaty, on the record, is to keep guns out declassify the Karen as terrorists, and let these
of all private hands (or "non-state actors" in freedom fighters enter the US. Other countries
UN-speak). would also be willing (and have been willing) to
admit Karen refugees, but this is coming to an
That means that if your government is trying
end if the US continues to label these victims of
to wipe you and the rest of your minority group
oppression as terrorists.
out (for example, 800,000 Tutsis in Rwanda), it
is wrong for you to take up arms because you Let's hope that the Department of Homeland
are not the government. Security's definition of self defense as terrorism
will be changed -- and quickly.

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Respectfully submitted.

Don Hamrick
5860 Wilburn Road
Wilburn, Arkansas 72179
Email: 4donhamrick@gmail.com

CERTIFICATE OF SERVICE

On September 22, 2006, I, Don Hamrick, hereby certify that I delivered a copy of the above
by U.S. Postal Service Priority Mail to the following recipients before a defense counsel has been
assigned:

M Alberto Gonzales, Attorney General


U.S. Department of Justice
950 Pennsylvania Ave.
NW; Washington, DC 20530-0001

M Michael Chertoff, Secretary


Department of Homeland Security
Washington, DC

M R.Adm. Craig E. Bone, (for Adm. Thomas H. Collins)


Commandant (G-P)
U.S. Coast Guard
2100 Second St.
Washington, DC 20593

Don Hamrick, Petitioner, Pro Se


5860 Wilburn Road
Wilburn, Arkansas 72179
(501) 728-4235
4donhamrick@gmail.com

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