Outpost of Freedom blog

Liberty or Laws?

“nor shall be compelled in any criminal case
to be a witness against himself”

Does the Fifth Amendment Stop at Miranda?

Gary Hunt
Outpost of Freedom
June 6, 2016

The principle element in this discussion is the Fifth Amendment to the Constitution:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

The provision that is of concern is, “No person… shall be compelled in any criminal case to be a witness against himself.”  And, we must begin by understanding that, as the Preamble to the Bill of Rights says,

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

Clearly, the Fifth Amendment, then, is a prohibition against the government, “to prevent misconstruction or abuse of [the federal government’s] powers”

To understand the role of the Supreme Court, at least for nearly the past century, we need to review what Justice Brandeis explained in Ashwander v. Tennessee Valley Authority (1936), in which he explained the “rules” that the Court had adopted to avoid “passing upon a large part of all constitutional questions pressed upon it for decision.”  (See About Ashwander v. TVA)

The pertinent rules from that decision are:

2.  The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it… ‘It is not the habit of the court to decide questions of a constitutional nature unless necessary to a decision of the case…

3.  The Court will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied….

4.  The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.

7.  ‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided…

To summarize the pertinent rules:

• The Court will not decide on the constitutionality, unless absolutely necessary – rules 2 & 4.
• When the Court does rule on the constitutionality, that ruling will be as narrow as possible – rule 3.
• The Court will, whenever possible, rule on statutory construction to avoid ruling on constitutionality – rule 7.

Now with this in mind, they won’t rule on the constitutionality, unless necessary, and if they do rule on constitutionality, they will make that ruling as narrow as possible.  We will look at a Supreme Court decision that we are all familiar with, Miranda v. Arizona (1966).

In Miranda, which requires that law enforcement officers notice the person being investigated for possible criminal activity be advised that he have the right to refuse to talk and to have an attorney present.  However, in keeping with Ashwander rule #7, the ruling deals only with those in custody.

So, the question arises, why would one’s right only apply to when one is in custody (they narrow ruling)?  If one the right to not incriminate oneself, “to be a witness against himself”, would that not apply once suspicion was raised against him, or does it only apply after he is in custody?.  Wouldn’t it really be a prohibition against government, both before and after one was in custody?

If a law enforcement office, in uniform or plain clothes, with the intent of trying to elicit a confession, or information that would incriminate someone, while in custody, was prohibited by the Fourth Amendment and confirmed by the Supreme Court, then why would we assume that that prohibition did not also extend to when one was under suspicion?  After all, when one is under suspicion, the law enforcers are just a small step away from putting someone in custody.  Why would that prohibition only come into play when the actual act of custody was implemented?  Is it possible that those who ratified the Amendment intended for that form of chicanery to be acceptable?  Or, was their intention to prohibit divisive means of acquiring incriminating evidence in apparent conflict with the wording of the Amendment?

Now, we need to visit a little historical background to carry the ramifications of the intent into an understanding of changes in practices between the Eighteenth Century and modern law enforcement, to put a proper perspective on how the intent of the Amendment is circumvented.

In the Eighteenth Century, spying, intelligence gathering, and other such undercover work was carried out in higher levels of government, only.  The consequence for being caught practicing such infamy was death.  Consequently, those willing to lay their lives on the line for the greater cause of national politics carried out such work.  The idea of spying on their own citizens was out of the question.  After all, it is the job of any decent government to protect its citizens, not to treat them as they would an enemy.  The idea that such practices could be used in the lower elements of society, in pursuit of criminals rather than state secrets or wartime intelligence, was not a practice, as honor was conscientiously upheld.  To deceive alleged criminals would be to stoop to the level of criminals. Continue reading ‘Liberty or Laws? – “nor shall be compelled in any criminal case to be a witness against himself”’ »

The Harassment of the Hammonds
Act II – Decade of the Nineties
Scene 4 – May 22, 1997

Gary Hunt
Outpost of Freedom
April 21, 2016

This series is not about the two fires and subsequent conviction of Dwight and Steven Hammond.  It is about the abuse, by government agencies, in the two decades prior to the first fire.

Note: Numbers shown thus, {nn} refer to PDF page numbers in the “Hammond Legal Trailing File Part II” pdf file.

On May 22, 1997, Bob Hiller, author of the draft opinion dated February 27, faxes a revised draft {163-171}. The revised draft is as follows: Continue reading ‘The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 4 – May 22, 1997’ »

Administrative Agencies – The Fourth Branch of Government
Circumventing the Constitution

Gary Hunt
Outpost of Freedom
April 19, 2016

Suppose you lived in Washington state or Colorado.  Suppose, too, that consistent with state law, you grow, process, and use marijuana.  Now, state law says you can, but federal law says that you can’t.  What happens if the feds arrest you and charge you with a crime?

The Constitution/Bill of Rights says that the right to keep and bear arms “shall not be infringed”.  Would a federal requirement that demands that you register your firearms be such an infringement, if your state did not require such registration?  Could you be successfully prosecuted by the federal government if charged with failing to register your firearms? Continue reading ‘Administrative Agencies – The Fourth Branch of Government – Circumventing the Constitution’ »

The Bundy Affair #10
Again?

Gary Hunt
Outpost of Freedom
April 18, 2016

My last article in “The Bundy Affair” was published on October 31, 2014.  That article was “The Revenge of the BLM“, when the Bureau of Land Management tried to promulgate new rules, in favor of critters and against the People of this country.  Their effort failed, and, well, I thought that was the end of the story.

Unfortunately, the government, like a spoiled child, does not like to lose, even when they are wrong.  It appears that we have returned to that age when the King can do no wrong, and when the people do stand up to them, forcing them into compliance with the Constitution and the limitations imposed on them by that document, their vindictiveness does not abate. Continue reading ‘The Bundy Affair #10 – Again?’ »

The Harassment of the Hammonds
Act II – Decade of the Nineties
Scene 2 – June 28, 1994 – February 20, 1997

Gary Hunt
Outpost of Freedom
April 11, 2016

This series is not about the two fires and subsequent conviction of Dwight and Steven Hammond.  It is about the abuse, by government agencies, in the two decades prior to the first fire.

Note: Numbers shown thus, {nn} refer to PDF page numbers in the “Hammond Legal Trailing Part II” PDF file.

After the appeal was denied, Dwight chose to pull out the big guns.  His attorney, on June 28, 1994, filed Notice of Appeal with the Department of the Interior, Office of Hearings and Appeal {20-24}, in Arlington, Virginia.

On July 18, The Solicitor’s Office of the Department of the Interior, Northwest Region (Portland) filed a Motion and Memorandum to Dismiss the appeal {25-48}.

On July 15, 1994, the Office of Hearings and Appeals docketed the Appeal {50-51}.

On July 19, the Office of Hearings and Appeals acknowledged the receipt of the Motion to Dismiss and set August 5 as the date for Hammond to respond to that Motion {52}.

On July 21, Hammond’s attorney responds, citing the information contained in the Notice of Appeal as authority for the Office of Hearings and Appeals to hear the appeal {53-54}.

During this process, chronologically, another factor comes in to play.  Though the entire case is included with the documents, the Order for Summary Judgment {56-73} is included.  It appears that the Hammonds had filed against the Water Resource Department of Oregon and the Water Resources Commission, State of Oregon.  The action was to restore historical water rights at the “Bird Waterhole”. Continue reading ‘The Harassment of the Hammonds – Act II – Decade of the Nineties – Scene 2 – June 28, 1994 – January 22, 1997’ »

The Harassment of the Hammonds
Act I – Decade of the Eighties
Scene 5 – May 2, 1988 – May 9, 1988

Gary Hunt
Outpost of Freedom
March 23, 2016

Note: Numbers shown thus, {nn} refer to PDF page numbers in the “Hammond Legal Trailing Part I” PDF file.

In a letter from Fish and Wildlife Services, dated May 22, 1988, on letterhead, though, apparently never sent {107-109}.  It is a response to Dwight’s plight, after his meeting with Shallenberger, and references that meeting. There is no indication of who edited the document. The strike outs (light and by pencil) in that draft that are quite telling:

I am writing in response to your formal appeal regarding actions taken by the Service to regulate Your cattle trailing operation at Malheur National Wildlife Refuge. I have reviewed the correspondence surrounding this issue and have discussed the topic at length with staff from the refuge and Regional Office. I have also discussed it with Rob Shallenberger following his visit to your ranch. I’d like to express my appreciation for the courtesy you showed Rob and the information you shared with him. I’m sorry that I did not have the time available in my schedule to make the trip to Malheur myself.

After thorough review of this situation, it appears that there are some points on which we agree and others on which we do not. The Service acknowledges that the trailing route around the lower (west) end of Bridge Creek has been used historically, dating back well before you acquired the adjacent BLM allotment. We also agree that the movement of the boundary fence to the legal boundary has made your trailing operation more difficult and more costly. I will also agree that the Service took action to construct the new fence without full consultation with you and in conflict with what you believed was appropriate. I will also agree with you that the recent cooperative reseeding program with the State has the appearance of being initiated to bolster arguments in favor of maintaining the boundary fence. Continue reading ‘The Harassment of the Hammonds – Act I – Decade of the Eighties- Scene 5 – May 2, 1988 – May 9, 1988’ »

Burns Chronicles N^o 15
So, what is the Law?

Gary Hunt
Outpost of Freedom
March 21, 2016

It is appropriate to start off with some Constitutional wisdom from the Father of the Constitution, before we proceed.

It poisons the blessing of liberty itself.  It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow.  Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

James Madison, Federalist N^o 62

In the previous article, “Which Came First, the Rooster or the Egg?“, we were focused on the original charge, violation of 18 US Code § 432, which was the charge in the original Indictment, dated February 3, 2016.  Though the government did the intimidation, the defendants are charged with that crime, there is nothing to demonstrate that the defendants intimidated or threatened anybody.

Just over a month later (I guess it took the United States Attorneys that long to try and find something a little more, well, tenable, to charge the defendants with), a Superseding Indictment was filed on March 8, 2016.  It is with Count 2 of the Superseding Indictment that we will be discussing, here, along with both logical and historical perspectives. Continue reading ‘Burns Chronicles No 15 – So, what is the Law?’ »

Burns Chronicles N^o 14
Which Came First, the Rooster or the Egg?

Gary Hunt
Outpost of Freedom
March 20, 2016

Sorry about the play on words, however, in looking for a title for this article, it seemed appropriate to choose the rooster instead of the chicken, as the rooster has a specific role in the relationship.  The egg, however, is a birth, a creation of something new — that will continue to grow, eventually replacing both the rooster and the chicken, in the scheme of things.

Perhaps a few words from the Father of the Constitution might be appropriate:

[The government] can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society.  This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together.  It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny.  If it be asked, what is to restrain the [Government] from making legal discriminations in favor of themselves and a particular class of the society?  I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America- a spirit which nourishes freedom, and in return is nourished by it.
If this spirit shall ever be so far debased as to tolerate a law not obligatory on the [Government], as well as on the people, the people will be prepared to tolerate any thing but liberty.

James Madison, Federalist No. 57

Now, the original, and then only, charge against those in Oregon that participated in the opening of the Malheur National Wildlife Refuge to the public, was 18 US Code § 372.  This law was first enacted during the Civil War.  It was the 1st Session of the 37th Congress Lincoln had already called for 75,000 and suspended habeas corpus {page 1 of pdf}, before the law was enacted.

The law was first introduced on July 17, 1861 {2}, just over three months after the war had begun), and:

“provides that if five or more persons within any State or Territory shall conspire together to overthrow, Or to put down, or to destroy by force, the Government of the United States; or to oppose by force the authority of the Government of the United States; or by force to prevent, hinder, or delay, the execution of any law of the United States; or by force to seize, take, or possess any property of the United States, against the will, or contrary to the authority of the United States, or by force, or intimidation, or threat, to prevent any person from accepting or holding any office of trust, or place of confidence, under the United States, each and every person so offending shall be guilty of a high crime.”

The act was supported by Mr. Trumbull {7} when he provides a couple of examples in which this law, being far short of Treason, is to punish those who have committed specific acts against officers of the government.  In one example, he speaks of a case in Missouri where “a number of persons, by threats of violence and intimidation, prevented a postmaster from performing the duties of his office.”  He provides another, more general, example, of “route agents” were deterred from performing their duties.

In both instances, there was a “victim”, either the “postmaster” or a “route agent”, and there were specific acts that kept them from their duties. Continue reading ‘Burns Chronicles No 14 – Which Came First, the Rooster or the Egg?’ »

Burns Chronicles N^o 11
What are the III%?

Image from “The Minute Men“, by John R. Galvin

Gary Hunt
Outpost of Freedom
February 25, 2016

First, we must understand the significance of the oft-used expression, “III%” or “3%”. It is intended to suggest the percentage of the population who fought against the British during the Revolutionary War. Now, keep in mind what you just read. They fought in the Revolutionary War, whether they were militia, or Continental Army; They Fought!

Why would I bring this up? Well, a number of comments have come to me regarding my article, “Civil Defiance or Submission?” Many have suggested that they are III%er, and their duty is strictly defensive.

In a discussion with one of them, I asked if he was III%. He boldly told me that he was. Then I asked him if he was ready to fight, to do something. He said that his job as III% was strictly defensive. I asked him what he intended to defend. He told me that he was going to defend his bug-out location, his family, and his team.

My next comment was that his first stand would also be his last stand. When they come to get him, and they will eventually find him, he will fight and die, defending, or he will end up in the gray-bar hotel, for a long time.

There is little doubt that the first of the III%ers were militia. It was months before the Continental Army was formed, but the war had begun. People fought, and people died, on both sides, so the first few thousand were none other than Militia.

So, the first eighty-some men where under arms were, perhaps, defensive. Under Captain Parker, the Lexington Militia were gathered on the Green, though they were lined up along a side road that led to Woburn, the same route John Hancock and Sam Adams had taken when they left Lexington, once alerted by the alarm riders. The road to Concord was not obstructed, in the least. It was merely the presence of armed colonists, which led to the events that have now become a part of our heritage.

As the British continued to march toward Concord, word spread rapidly to the nearby towns, villages, and counties of western Massachusetts. It is what happened next that tells the tale of what the real III%ers were. As word spread, that the people of Lexington had become involved in a gunfight with the British, they did not ask why, they grabbed their muskets and headed in that direction.

There was no internet, nor telephone, radio, or any other means of notification other than the alarm riders. They did not stop to answer questions, they simply called to arms. It was sufficient that those who would soon be recognized as “Americans” had come under fire of the British.

The Militia, including that of Lexington, had transferred their “subordination to civil authority” from the Royal Governor to their local Committees of Safety. This had occurred during the previous years, as explained in “The End of the Revolution and the Beginning of Independence“. Those Committees then gave orders to their respective Militia to march to Concord, as that was known to be the objective of the British.

Within hours, several thousand had arrived near Concord. They had come from other towns, from other counties, and some were on their way from other states. There was no consideration of the fact that those in Connecticut, Rhode Island, and New York, were not from Massachusetts; had not been invited to take their arms and go to Massachusetts. They responded solely to take on the common enemy, the British. They didn’t hesitate, they were not concerned for their “bug-out location, family, and team”, rather, they were concerned for their Liberty, and their fellow colonists.

Within weeks, people from all of New England, all of the middle colonies, and some of the southern colonies had amassed around Boston, laying siege to the military might that then ruled the world. They had come to fight! They made no excuse as to why they should not go to Boston, because they were the beginning of the III%.

There were some Active Patriots (See “Active Patriots v Passive Patriots“) that came to aid those who had taken a stand in favor of the idea that public lands should be public, not treated as the private property of the government and the bureaucrats. There were Passive Patriots, those who might, as time went on, become Active Patriots and join the ranks to fight the common enemy. There were some False Patriots, whose work, while claiming to be in support of those in the Refuge, was more of a hindrance, and often served to provide more benefit to the government side than the patriot side.

Most importantly, however, was the absence of those who wear the badge of III%. Sadly, many who do wear the badge do so without due respect for its meaning, and who will find any excuse to avoid becoming involved, as only defensive, as was described above.

As I reflect on those who wear that III% badge and otherwise do not intend to serve the cause, rather, only to serve themselves, their families, and their team, I am reminded of those who receive an award simply for being there, not realizing that to wear the III% badge calls for the courage, conviction, and commitment — that which the real III% of 240 years ago had.

Burns Chronicles N^o 9
Civil Defiance or Submission?

Gary Hunt
Outpost of Freedom
February 18, 2016

“But that it was clear that no act they [the state legislature] could pass, could by any means repeal or alter the constitution, because if they could do this, they would at the same instant of time destroy their own existence as a legislature and dissolve the government thereby established.”

Bayard v. Singleton, 1 N.C. 42 (1787) [North Carolina Supreme Court]

The unfortunate circumstances of January 26, 2016, which resulted in the death of LaVoy Finicum and the arrest of Ammon Bundy, Ryan Payne, Ryan Bundy, and Brian Cavalier was a blow to an effort to expose the dishonesty of the federal government in its pursuit of acquiring land belonging to ranchers in Oregon.

In fact, the story behind what happened in Burns, Oregon actually goes much further. It had begun to show the underbelly of the beast we call the US government, its failure in obedience to the Constitution, the very document that created it, and its failure to abide by established judicial “due process of law”. Perhaps most significant is its absolute disregard for human life, and especially so if that life is of one who believes in the Constitution.

Now, many have said that what was happening at the Malheur National Wildlife Refuge was of no concern to them. Some have said, “We (the militia) are here to protect our state. What happens in Oregon is not our concern.” And, they are right, but only to an extent.

In the hours that followed the events at Lexington Green and Concord, in Massachusetts Bay Colony, Militia from Connecticut, Rhode Island, and New York, marched on dirt roads to come to the aid of those from another colony. Within days, many more colonies had sent their forces to join those surrounding Boston. Of course, it was not their concern, though they did realize what had happened in Massachusetts would, eventfully, happen in their own backyards.

Many have stated that their greatest concern is that the government will come to take their guns, and that will be the time to act. However, they fail to respond to the slow and meticulous erosion of the Second Amendment, constantly progressing, bit by bit. But, they still have their guns, so there is nothing to worry about.

However, just a week after the Indictments were issued in Oregon, a Grand Jury in Nevada issued Indictments against five people who were involved in events at the Bundy Ranch, in Nevada, in April 2014, nearly two years prior.

Both acts, Nevada and Oregon, were acts of Civil Defiance. Let’s be clear about that term. Civil Disobedience is a term applicable to participating in something that might result in ones arrest, or perhaps being assaulted by law enforcement. These activities are conducted with the hope of political change. They are, at best, inconveniences.

Civil Defiance, however, is an act in real defiance against unlawful authority. Whether firearms are used actively, or passively, there is no doubt that Civil Defiance has the possibility for not just incarceration, but death.

During the Bundy Ranch affair, hundreds of armed patriots stood defiant against the Bureau of Land Management (BLM) employees and contractors who were trying to arrest cattle for grazing on public lands. The patriot weapons were simply for self-defense, fully in compliance with the Second Amendment. BLM was the aggressor, with force of arms and a “judge’s edict”.

In Oregon, once again, the patriots’ arms were for self-defense, fully in compliance with the Second Amendment. There is no instance of those at the Refuge, or away from the Refuge, ever threatening or intimidating anyone. In fact, they had a policy to let anyone venture into the occupied area, without threat, or harm. Their arms were for self-defense.

The government, in this instance, under the control of the FBI, was the aggressor, however, unlike Nevada, the aggressor chose to shoot and kill LaVoy Finicum. As can be clearly seen in the aerial footage, Mr. Finicum never had a gun in his hand. He was lured into an ambush and shot. He had no opportunity to defend himself, even if he had been armed. Quite simply, the government that he was exposing murdered him.

So, let’s put a little perspective on things. Whether you are in Massachusetts, Nevada, Oregon, or elsewhere, what you have been reading about is your future, as much as those who have been directly affected by those events. To “reason” that “it didn’t happen to me” is both acceptance of the legitimacy of the government’s proven practice, and submission to it. When it finally gets to you, those who had more courage than you, have already been taken by the forces of government, either to prison, or to the cemetery.

If you cannot stand up for your fellow patriots, and instead, make excuses as to why you did not come to their aid, whether by location or disagreement of purpose, then you have submitted, and you can clearly see your own future.

I was asked the question “Is there anything that we can do about this?” After some thought, I realized that the Indictment from Nevada was a message that the government is in the process of taking control. This raises the question as to whether we can back them down. If more of us begin standing up by occupying federally owned facilities, like the Refuge, or by taking other inspired actions, can we demonstrate that we are not backing down; that we are not willing to Submit to their unconstitutional activities, and that we will retaliate, as they have, by expanding our efforts in response to every unlawful or unconstitutional act committed by the government?

“In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free – if we mean to preserve inviolate those inestimable privileges for which we have been so long contending – if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained – we must fight! I repeat it, sir, we must fight!! An appeal to arms and to the God of Hosts is all that is left us!”

Patrick Henry, March 23, 1775