Outpost of Freedom blog

The Bundy Affair #15
Free Speech and Assembly v. Conspiracy

Gary Hunt
Outpost of Freedom
August 24, 2016

The Preamble to the Constitution begins with “We the People”.  The reason for such an introduction is perhaps a bit more intricate than most understand it to be.  There are two reasons for this introduction.  The first being that the Articles of Confederation and the government created by it, were created by the states.  It was a “perpetual union“, and could not dissolve itself.  However, going to the ultimate source, the People, they had every right to reject that government for one created by themselves.  The right is clearly spelled out in the Declaration of Independence, to wit:

That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

The People’s authority then is embodied in the document that had, just a decade earlier, justified separation from British rule.  It was called into play, once again, since strife and turmoil were beginning to undermine the relationship between the states under the Articles of Confederation — a government created simply to unify the fight for Independence.

The second reason is based upon who was to approve the Constitution.  Most of the states had created new governments, via their respective constitutions.  However, the constitutions, in most states, were created and approved by the legislative body.  Each had an amendment provision, though that provision allowed the successive legislatures to change the constitution through legislative enactment.  This meant that the constitutions were an ineffective safeguard against usurpation.  By the time of the Philadelphia Convention, most states had resorted back to the people for both ratification and amendment to their constitutions.  This concept had permeated the legislative bodies, including that Convention — and the authority of the People, though through conventions, the sole source of authority.  The government could not remove the constraints placed upon it by the Constitution.

. Continue reading ‘The Bundy Affair #15 – Free Speech and Assembly v. Conspiracy’ »

Burns Chronicles N^o 24
To Plea, or, Not To Plea

Gary Hunt
Outpost of Freedom
August 16, 2016

As some of those staunch defenders of our rights, in both Burns, Oregon, and Bunkerville, Nevada, decide to make a plea agreement with the prosecutors, the Internet has both armchair quarterbacks damning them and sympathetic supporters who will stand by their decision.  However, perhaps it is necessary to look a little deeper into who those people, at both the Ranch and Refuge are, and to consider their respective objectives.

We can categorize those who participated in both events by comparing them to those who stood up against the British, 240 years ago.  In so doing, there are three general categories, so that we can consider them in a contemporary context.

The first category is, for want of a better term, the politicos.  Historically, these would be those who served on local and Provincial Committees of Safety and, those who went to Philadelphia and served in the Continental Congress.  There may be others, such as newspaper editors and others who were outspoken against the British, so that we can lump them into this category, as well.

Now, in the past two years, we have, likewise, the politicos, those whose involvement is to challenge the government concerning both rights and that which should be right.  Their objective is educational as well as political, desiring to provide understanding to other citizens as well as to attempt to get the government to stay within its limits and to remain obedient to the Constitution.

The second category is those with military inclinations.  For the most part, they had prior military and leadership experience in the French and Indian wars.  Their purpose was to use military force to protect the rights of Englishmen and defend against forces thrown against them.

In the contemporary context, it would include those with military and leadership experience who have taken the task of protecting those politicos against attempts at violent suppression of their right to seek redress of grievances and to speak freely on subjects of concern to others.

These first two categories can easily be equated to the First Amendment, for the politicos, and the Second Amendment for those with military inclinations. Continue reading ‘Burns Chronicles No 24 – To Plea, or, Not To Plea’ »

The Bundy Affair – #14
“public trial” v. Star Chamber

Gary Hunt
Outpost of Freedom
August 11, 2016

Recently, the Las Vegas Review Journal petitioned the Court to allow access to certain evidence that would be used against the Defendants.  They even asserted that they would have no problem if names were omitted from the documents.  This was filed in response to the government’s Proposed Protective Order, a request that the Court seal and keep from the public some of the discovery materials, certain evidentiary documents, and exhibits that could be used in the trial against the Defendants.  Quite simply, it is all of the evidence acquired by the government in their pursuit of the persecution of 19 people that were involved in the Bundy Ranch Affair, nearly two years before the matter was indicted by a Grand Jury.  The Court has yet to rule on the matter.

Before we proceed, the discovery material would show what the government did, what they acquired, what their practices are, and whether they had subversive agents embedded within the group that afforded protection to the Bundy Ranch in April 2014.

As you follow along in pursuit of the government’s position, and the legal precedence, some of it even distorted perversions regarding the original intent of the Founders, also keep in mind that, historically, spies and entrapment were used against enemies, and spies against foreign governments, but never sent within the population that was supposed to be protected by that government.  For, to do so essentially, makes the people an enemy of the government, or, rather, the government the enemy of the people.

So, let’s look at what the Supreme Court has said, with regard to the Sixth Amendment.

In 1979, the United States Supreme Court, in Gannett Co. v. DePasquale, 443 US 368, addressed whether the press and public could be denied access to the court and evidence in a pre-trial hearing.  Although the decision was based solely (and rightfully) on a pre-trial hearing, the decision of the Court ventured further into the entire concept of the intent and purpose of a “public trial”, as guaranteed by the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining Witnesses in his favor, and to have the assistance of counsel for his defence.

The Petitioner, Gannett Co., is a publisher and among others, published USA Today.  Greathouse and Jones were defendants in a state prosecution for second-degree murder, robbery, and grand larceny.  They requested that the public and the press be excluded from the hearing, arguing that the unabated buildup of adverse publicity had jeopardized their ability to receive a fair trial.  The trial judge granted the motion.  The following are excerpts from that decision:

Petitioner [Gannett] then moved to have the closure order set aside but the trial judge, after a hearing, refused to vacate the order or grant petitioner immediate access to the transcript, ruling that the interest of the press and the public was outweighed by the defendants’ right to a fair trial.

The New York Court of Appeals… [held] the exclusion of the press and the public from the pretrial proceeding.

The Constitution does not give petitioner [Gannett] an affirmative right of access to the pretrial proceeding, all the participants in the litigation having agreed that it should be closed to protect the fair-trial rights of the defendants.

Publicity concerning pretrial suppression hearings poses special risks of unfairness because it may influence public opinion against a defendant and inform potential jurors of inculpatory information wholly inadmissible at the actual trial.

The Sixth Amendment’s guarantee of a public trial is for the benefit of the defendant alone.  The Constitution nowhere mentions any right of access to a criminal trial on the part of the public.  While there is a strong societal interest in public trials, nevertheless members of the public do not have an enforceable right to a public trial that can be asserted independently of the parties in the litigation.  The adversary system of criminal justice is premised upon the proposition that the public interest is fully protected by the participants in the litigation. Continue reading ‘The Bundy Affair #14 – “public trial” v. Star Chamber’ »

Burns Chronicles N^o 23
Terrorism Enhanced Penalties v. Due Process

Gary Hunt
Outpost of Freedom
August 10, 2016

So far, ten of those charged in United States v. Ammon Bundy, et al, have pled guilty, and the eleventh is soon to follow. They are, as follows:

• Jason Blomgren (Joker J), pleaded guilty to a federal conspiracy charge.
• Brian Cavalier (Booda), pleaded guilty to a federal conspiracy charge and a charge of possessing firearms or dangerous weapons in a federal facility.
• Blaine Cooper, pleaded guilty to a federal conspiracy charge.
• Travis Cox, pleaded guilty to a federal conspiracy charge.
• Eric Flores, pleaded guilty to a federal conspiracy charge.
• Wesley Kjar, pleaded guilty to a federal conspiracy
• Corey Lequieu, pleaded guilty to a federal conspiracy charge.
• Joseph O’Shaughnessy, pleaded guilty to a federal conspiracy
• Ryan Payne, pleaded guilty to a federal conspiracy charge.
• Geoffrey Stanek, pleaded guilty to a federal conspiracy charge.
• Jon Ritzheimer, scheduled to plea

So, why are they pleading? Is it because they really think that they are guilty?

Most, if not all, of those above have been “intimidated” or “threatened“, by federal prosecutors, either directly, or through their appointed counsel, that a Terrorism Enhancement could result in a sentence of 30 years, possibly for each count.

For a little background, over twenty years ago, I reported on a trial (see below) that I would eventually learn to be one where the Federal Sentencing Guidelines had brought into our judicial system something that was very foreign to the system of justice, as implemented by the Founders. Perhaps it would be beneficial to begin with an understanding of the judicial system that was intended, based upon many centuries of evolution in the British Common Law.

The English Constitution, even before the Magna Carta (1215 AD), began evolving in 1080 AD, and was also the beginning of a legal evolutionary process that sometimes went backwards, but most often went forward, in an effort to provide justice rather than blind obedience to laws. It was the English Common Law that was the foundation of jurisprudence for the Founders.

This foundation is evidenced even in current statutes, such as Florida Statutes (2015), where we find:

2.01 Common law and certain statutes declared in force.—The common and statute laws of England which are of a general and not a local nature, with the exception hereinafter mentioned, down to the 4th day of July, 1776, are declared to be of force in this state; provided, the said statutes and common law be not inconsistent with the Constitution and laws of the United States and the acts of the Legislature of this state.

We can also look to the Maryland Constitution (2008), which provides, in its Declaration of Rights:

Art. 5. (a)
(1) That the Inhabitants of Maryland are entitled to the Common Law of England, and the trial by Jury, according to the course of that Law, and to the benefit of such of the English statutes as existed on the Fourth day of July, seventeen hundred and seventy-six; and which, by experience, have been found applicable to their local and other circumstances, and have been introduced, used and practiced by the Courts of Law or Equity…

In the same Declaration of Rights, we also find:

Art. 23. In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction.

Now, the Maryland Constitution predates the United States Constitution, as it was first ratified by the People on November 11, 1776 – over a decade before the Constitution. Clearly, the understanding (original intent) of the Maryland Constitution and the United States Constitution were predicated upon those laws that then existed, and definition, or intent, of the words used, were as they were understood at the time. Absent a lawful change of definition, those definitions and intentions are still the body of the law and should be recognized as such.

Also true of the Common Law, at that time, and remember, the intention is still the same, is that a jury determines law and fact. However, there is one more aspect that comes into play. The jury also imposed the sentence, as they were the judge of facts, those which determined the severity of the crime; the law, what was intended and the extent applicable to the case at hand; and, by combining the two, would determine the sentence to be imposed, if the accused were found to be guilty.

. Continue reading ‘Burns Chronicles No 23 – Terrorism Enhanced Penalties v. Due Process’ »

Liberty or Laws?
The First Line of Defense

Gary Hunt
Outpost of Freedom
June 17, 2016

As much as many disagree with the Founder’s intent of the Second Amendment, there is little doubt that there were two primary purposes.  The first, of course, was be able to respond if, should the need arise, as had then recently occurred, the government had begun taking their rights.  It was to assure that the People would have an adequate means of defending against those encroachments and complying with the duty set out in the Declaration of Independence:

“But when long trains of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide for new guards for their future security.”

There was a second intent that is, in this day, perhaps a bit more obscure.  However, there was a constant threat, especially in the fringes of the American civilization, of attack by Indians, and on occasion, by foreigners such as the French.  Though most often, fighting such battles was conducted by militia units, armed and equipped by the local government, those who of necessity, to protect life and property, were operating within the capacity of the intent when they acted, as individuals or small groups without the organized structure, were no less militia than the units, or even the standing military force.  There was never a consideration that individuals must rely on the government to afford them and their property protection.

Even during the expansion of the country, especially after the Civil War, military forts were few and far between.  The first line of defense had to be the armed citizenry.  It could be days, weeks, or there might never be a response by the military when there were attacks made on the People.

As the West was settled, the need for the militia and the armed citizenry was diminished.  Since that time, that historical necessity had all but gone away.  By 1903, with the passage of an Act “To promote the efficiency of the militia“, also known as the “Dick Act”, the militias was redefined as the National Guard and the Reserve Militia.  Within that Act, only the National Guard could be called to national service.

That Act did not deny the existence of any right secured by the Second Amendment.  However, it did mandate (shall) that:

“That the militia shall consist of every able-bodied male citizen of the respective States, Territories, and the District of Columbia, and every able-bodied male of foreign birth who has declared his intention to become a citizen, who is more than eighteen and less than forty-five years of age, and shall be divided into two classes—the organized militia, to be known as the National Guard of the State, Territory, or, District of Columbia, or by such other designations as may be given them by the laws of the respective States or Territories, and the remainder to be known as the Reserve Militia.”

There you have it: every able-bodied male citizen, is either exempt, in the National Guard, or the Reserve Militia.  The only exclusions were certain government employees and those excluded by the respective state laws.  There is no subsequent mention of the “Reserve Militia”, therefore, it includes those described and only excludes those so described. Continue reading ‘Liberty or Laws? – The First Line of Defense’ »

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”’ »

Burns Chronicles N^o 21
The Public’s Right to Know

Gary Hunt
Outpost of Freedom
May 16, 2016

We all know that when there is an alleged violation of one’s rights, the freedom of the accused, while somewhat curtailed, is usually respected, and this is known as part of due process. Absent due process, judicial behavior often falls into arbitrary decision-making, biased juries, and the rail-roading of political undesirables, straight into prison. Lack of judicial transparency is usually a clear sign that whatever vestiges of a republican form of government may still be there is waning, and quickly; should the public’s right to know not be reinvigorated, then posterity will likely never know true freedom.

A Person accused of a crime, according to the Sixth Amendment, has a right “to be informed of the nature and cause of the accusation” against him, “to be confronted with the witnesses against him“, and, “to have compulsory process for obtaining Witnesses in his favor“.

The government, of course, has the right to search with a warrant, and the subpoena power to compel witnesses. Clearly, they have a right to know.

The accused has the power of the subpoena, to compel witnesses on his behalf. He also has a right to discovery, to see what the plaintiff has, in the form of proof, and to introduce evidence on his behalf.

Historically, trials were public. Often crime scenes were photographed by news reporters/cameramen, often with victims still in place. Reporters were given all but the most critical investigative results, and all of this was to assure the public that there really was a crime in their community. Witnesses told what they saw, to investigators (public and private), other people, and the press. Those charged and arrested were able to talk to anybody and often did press interviews from jail. If they were released from custody, they could speak as freely as any other person. Thus, the public was always aware of the accused’s explanation of events.

When the matter went to trial the courtroom was open, so long as the observers behaved, and the press had every opportunity to report on all aspects of the case, including evidence and testimony. For the most part, all of the facts were laid out to the public, by one means or another, even before the trial began.

When the trial was over, regardless of the outcome, the community was fully aware of what had occurred, what the government did to bring justice, and whether the person that had been accused was vindicated of the charges, or convicted.

So, let’s look at what a trial really is. The first element is comprised of the facts of the matter. This includes evidence, recordings, writings, photographs, and the testimony of witnesses. However, that is just the beginning. Continue reading ‘Burns Chronicles No 21 – The Public’s Right to Know’ »

The Bundy Affair – #11

“Violence Begets Non-Violence”

Gary Hunt
Outpost of Freedom
May 3, 2016

It was on April 12, 2014, when mostly unarmed supporters gathered at the Toequap (Toquop) Wash, about 80 miles northeast of Las Vegas, between Exits 112 and 120 on Interstate Highway 15, stood down the federal government with regard to cattle been “impounded”, readied for transport, or killed.  However, since the government has brought the matter up, again, we may want to revisit some of the incidents and circumstances that led to the Unrustling of cattle by these supporters of the original American Way of Life.

It was April 6, 2014, at about 1:30 in the afternoon, when Dave Bundy had stopped to take pictures of the 20, or so, vehicles coming off a road from Gold Butte Mountain.  It was rather odd to see so many vehicles in that location, so Dave had decided to record the event.

Other Bundy relatives were present and reported seeing four snipers, one of them about 30 feet away from Arden Bundy.

The men in the vehicle convoy stopped, exited, donned tactical gear (pictured above) and told those present to “disperse immediately”.  The other Bundys began to disperse, or remained in the vehicles to watch what was transpiring, however, Dave continued taking pictures.  Understand that Dave, and the others, were on a public road, simply wondering about, and recording, what was going on.

1. As Dave continued, some armed men approached Dave, grabbing him and throwing him to the ground, then rubbed his face in the gravel as they handcuffed him.  He was then placed in one of the vehicles and they headed toward Henderson, Nevada.  One of the government players, Lisa Wilson (Load/Hold Team, one of the Rustler’s teams, (775) 229-2722, see Government Agents at the Bundy Ranch) began to question/ interrogate Dave, who refused to provide any meaningful answers, as he had done nothing more than take pictures from a public road.

Continue reading ‘The Bundy Affair – #11 – “Violence Begets Non-Violence”’ »

Burns Chronicles N^o 20
Who Owns Your Video? Who Owns Your Voice?

Gary Hunt
Outpost of Freedom
April 28, 2016

In light of the many complaints filed against the Arnold Law Firm, attorneys for Ammon Bundy, over their method of raising funds to pay for a legal defense against a government back by hundreds of attorneys and millions of dollars, perhaps there is another side to this story that needs to be looked at.

Shawna Cox had the wherewithal to begin recording the events, from the first stop to the murder of LaVoy Finicum.  In so doing, she recorded a moment of history that cannot be duplicated.

We all know that if you are in a position to have exclusive footage of an event of such magnitude, there is some value, to some news agencies, for exclusive use of such footage.  How often have you seen “Exclusive to XYZ News”, or something similar?  Well, it would not be “exclusive” if it were freely put out in the public domain, for the use of all. Continue reading ‘Burns Chronicles No 20 – Who Owns Your Video? Who Owns Your Voice?’ »

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’ »