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Right to Bear Arms: Using the 7th Amendment

My thoughts on a Bartow Tea Party query concerning Second Amendment advocates' proposal to stop the liberals from infringing on the rights of citizens to keep and bear arms.

Open letter to The Bartow County Tea Party

Dear Mrs. Engelhardt,

I apologize for taking so long, but I have been a bit busy of late.  Here are my thoughts on your email query concerning the proposed method for 2nd Amendment advocates to stop the liberals from attempting to infringe the right of citizens to keep and bear arms via the 7th Amendment.  In the well-known custom and usage of our Forefathers, the use of the word “infringe” meant, in that context, to make the right of nature’s law for any person to keep and use a weapon when necessary a nullity, or any act that nullified or even so much as frustrated a person in the lawful use of a weapon for self-defense, to acquire food or the materials for clothing for self and family, or as an instrument to enforce personal, or the public’s, safety and welfare.

The objective of the proposal, as I understand it, is to so overburden the opposition, i.e., bury them in paperwork, in our court system and involve thousands of trial jurors (7th Amendment), that they throw up their hands and leave the 2nd Amendment and its advocates alone.

The problems with this tactic, however, are numerous.

First, as can be seen from an analysis of the Rule (below) is that such an attempt may be thwarted by just one judge issuing a Sua Sponte Order of Class Action Status.  Every case in every district court would be brought to just one District Court with no assurance of the judge’s detachment or impartiality, or, for that matter, his constitutional understanding.

Now, there are those who may argue that before a judge orders a Class Action Status, there must be a petition or motion requesting such status.  Under this Federal Rule that is not necessarily the case.  Under the subsections, (c) (1) Certification Order.(A) Time to Issue, there are 3 criteria for determining the issuance of an Order of Class Action, two of which are specifically mentioned:

(1) a person who sues claiming, or moving to claim, class representation;

(2) is sued and claims, or moves to claim, class representation, and the one not mentioned which permits a Sua Sponte Order of Class Certification; and

(3) Judicial Economy coupled with his authority to exercise that power necessary to protect his jurisdiction and effectuate his orders. 

Plus, let’s not forget to consider, also, (d)(1)(A). 

For the sake of discussion, even if a judge does not issue a sua sponte order, or believes that he/she has no such authority for a sua sponte order, rest assured that the opposition would move for one of the numerous plaintiffs to be made a class representative in the interest of judicial economy and in the interest of Justice, and they would prevail based upon those issues of law.

Second, though many plaintiffs might be able to successfully file for an “In Forma Pauperis” status, the vast majority would not.  Ergo, the financial hardship of filing in the first place; then would come the cost of Discovery and the delays which that would cause, and on and on.

So, in my humble estimation, this would not be the way to go, even for 500,000, or even 50,000 or 5,000 plaintiffs.

HOWEVER, a view of, and a keen understanding eye upon, 18 USC 4, 18 USC 241 and 18 USC 242, and an understanding the elements of federal criminal statutes, plus understanding how to bring a criminal complaint in a United States Magistrate Court through the use of 1st and 14th Amendment rights of speech, petitioning, and the “right to be heard” (and by whom to be heard being in the discretion of the petitioner), coupled with the awesome power of a Federal Grand Jury, does have immense implications for the long-term, enlightened, best self-interest of the current administration, its myrmidons, and its minions.  Now there is where just 25 to 50,000 voices shall be heard in defense of liberty!  And with those numbers, not even corrupt judges would dare get in the way and risk impeachment!

It only takes one determined and knowledgeable grand jury!

Here, permit me to make an observation about oaths of office of every public official including the President of these United States.  There is nothing criminal in seeking an amendment to our Constitution.  There is, however, a prohibition to the use of implementing a statute which purports to nullify or frustrate a fundamental right. 

In Georgia, such an act would be “unlawful” in that it would be a direct violation of a sworn oath and would subject anyone doing so, and as a technical matter of Georgia Law, even a sitting President, to criminal prosecution for felony theft at the very least.  And if a state legislator managed to get a majority of his colleagues to pass such a law, all of them would be subject to a grand jury presentment on that charge in addition to a charge of willful and intentional refusal to comply with their official oath of office. 

Of course, that would be one way for them to obtain long-term service at the taxpayers’ expense…in a state facility…ABOUT 20 YEARS WROTH OF SERVING TIME!

I hope this helps you understand that when politicians, and yes, even judges, subvert the law and turn it to an instrument of plunder, they commit criminal acts for which they may forfeit their liberty.

The right to, in a civil manner, petition a grand jury, either local or federal, and be heard in one’s testimony and evidence, is greater than the 2nd Amendment. (Assuming, of course, the grand jurors fully understand the breadth, the depth, the sheer magnitude of the power they possess to keep us free from the domestic enemies of liberty!)

I hope this observation and the citations of the Federal Rules of Civil Procedure below are helpful.

Thanks,

Paul Nally
The Pine Log Puddin’ Stick

FRCP, Rule 23. Class Actions(my thoughts in italics)

(a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if:

(1) the class is so numerous that joinder of all members is impracticable;

   They would be.

(2) there are questions of law or fact common to the class;

   There are.

(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and

   They would be.

(4) the representative parties will fairly and adequately protect the interests of the class.

   Ditto.

(b) Types of Class Actions. A class action may be maintained if Rule 23(a) is satisfied and if:

(1) prosecuting separate actions by or against individual class members would create a risk of:

(A) inconsistent or varying adjudications with respect to individual class members that would establish incompatible standards of conduct for the party opposing the class; or

          That would be the case.

(B) adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests;

          That would be the case.

(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole; or

   They have.

(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy. The matters pertinent to these findings include:

   It does.

(A)       the class members’ interests in individually controlling the prosecution or defense of separate actions;

 They do.

 (B)       the extent and nature of any litigation concerning the controversy already begun by or against class members;

 They will be consistent.

 (C)       the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and

 It would be desirable (especially if the majority of courts were liberal or questionable as to constitutional support)

 (D)      the likely difficulties in managing a class action.

 The magnitude of difficulties would be enormous. (Cost would be one such difficulty.)

(c) Certification Order; Notice to Class Members; Judgment; Issues Classes; Subclasses.

(1) Certification Order

(A) Time to Issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.

(B) Defining the Class; Appointing Class Counsel. ….

(C) Altering or Amending the Order. ...

(2) Notice.

(A) For (b)(1) or (b)(2) Classes. ...

(B) For (b)(3) Classes. ..:

 (3) Judgment. …:

(A) …; and

(B) ….

(4) Particular Issues. ….

(5) Subclasses. ….

(d) Conducting the Action.

(1) In General. In conducting an action under this rule, the court may issue orders that:

 (A) determine the course of proceedings or prescribe measures to prevent undue repetition or complication in presenting evidence or argument;

   This, too, gives a court the additional sua sponte authority to issue an order of Class Action forcing ALL claimants into one case, into one court, somewhere in the United States!!

(2) Combining and Amending Orders. ….

(e) Settlement, Voluntary Dismissal, or Compromise. …:

 (f) Appeals. ….

 (g) Class Counsel.

 (h) Attorney's Fees and Nontaxable Costs. ….

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

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