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Want Your Testicles Batoned? If Not, Act Now
by Mary W Maxwell, PhD, LLB
Was I ever surprised today when watching a Next News Network video about National Guard training. It said that “civil unrest” could lead to soldiers whacking citizens with batons “below the waist.”
Unambiguous photography of this is available for your inspection in the Youtube item entitled “Breaking: Martial Law Declared in Baltimore.” Date: April 27, 2015. Watch it from the 1.02 minute mark to 1.30 and be amazed. Be discouraged. Be angry.
I am here to say this is illegal and must not be permitted -- and that it is up to any men with balls to put a stop to it.
So let’s have a little chat as to who is out there today in uniform with what weapons and what authorization. If you have come to believe that it’s “open season” now perhaps due to ‘terrorism,’ you have been duped bigtime.
Come on, get real and don’t be a sissy. We have marvelous law in this country but it does no good unless you use it.
First I invite you to watch my 7-minute performance at Sydney Harbor (I am an American Australian). This is a 'video letter' to Governor Charlie Baker of Massachusetts.
It was, I must admit, inspired by the fact that the FBI killed a “suspect” (Tamerlan Tsarnaev, regarding the Marathon.) I got a bit hot under the collar and have published many articles about it, at Rumor Mill and at Gumshoe News.com, plus in a chapter of my book, “Fraud Upon the Court.”
The FBI already had a track record before the Boston fiasco. They most likely did the bombing of the Murrah Bldg in Oklahoma City in 1995, and they definitely arranged the bombing of the basement of the World Trade Center in 1993, and the killing of Ibraghim Todashev in his home in 2013.
Old Fashioned and Proud of It
You think I’m old-fashioned? OK, I’m old fashioned. I take law seriously. I support the police and I support the death penalty. I would die for the Constitution. Why? Because it is our parent. It is our protector. Without it, anything could happen -- including having “the National Guard” beat your testicles with a baton. SERIOUSLY.
Wait a minute. Didn’t I say above that such behavior has already been “legalized”? The hell I did! The fact that some officials now speak approvingly of it does not legalize it.
It can never be legalized, unless the US population someday decides to amend the Constitution to alter the Bill of Rights. WITH the Bill of Rights, you are protected against such nonsense.
Permit me to do some sorting here. First, we’ll put aside any discussion of warfare. War is something that may go on between our nation and a foreign enemy.
Let us sort only the bits and pieces relevant to violence within the US, where there is no external enemy attacking us. Who is allowed to be armed, and what kind of restraint are those persons subject to?
The Federal Police Force
There is no federal police force. How do I know? Easy. Look at the United States Constitution. It tells you what we can have and can’t have.
For example: Can we have two senates? Can we have a Congress that meets less than once a year? Can the US Supreme Court impeach a president or a military officer? Can any state refuse voting rights to a nineteen-year-old?
The answer to all the above is No, and that’s that. There is no room for maneuver. A constitution is a very solid thing. Most other things are changeable at the drop of a hat or at the whim of fashion. But not the seven articles of the Con or its 27 amendments. (In Australia they call the constitution the Con, and I now do it, too. It saves ink.)
It is the states that have police power. Where will you find this in the Con? You will find it by default. Anything that was NOT granted to the federation, i.e., the US, in 1787, by the (very clever and very cautious) Framers of the Constitution, remains the prerogative of the states.
The rule is specifically stated, expressed, clarified, enunciated, in Article IV of the Constitution, and in Amendment 10 of the Bill of Rights. Don’t worry about it. It’s water-tight. (But go ahead and doubt me and look it up.)
It’s for the 50 states to deal with crime. Inspect any of the state constitutions to see what they say. Usually, the police power is controllable by the state’s leader. He or she has as much power as a king (unless the state legislature has curtailed it). Policing may be allocated to the counties in that state, hence the need for a sheriff of each county.
“Federal Crimes”
Ah, but aren’t there some federal crimes listed in the Con? Yes. Three come to mind, but they are very small beer. One is creating counterfeit money. This would have to be a 'federal' crime because the production of currency is one of the 18 federal powers enumerated in Article I, section 8.
I suppose if the US Treasurer detected that a lady in Oregon was minting coins, he could ask the state police of Oregon to capture her. But that is not the way we have gone about it. The treasury set up its own police, early on, known as a Guard of Engraving and Printing.
In fact, “protecting” of federal persons and property has led to something like a police force. There is the US Marshall Service that protects courthouses, and a Secret Service that protects the president. But these are not organizations that will be found on the streets of Baltimore during a riot.
Note: I said there were three crimes listed in the Constitution. The second one is piracy, but that is hardly a hot item anymore. The third one is treason. Good heavens, would I call that small beer? Well, I think it should be big beer and I’ve written a whole book as to how that crime should be prosecuted (“Prosecution for Treason,” 2011). But it is rarely invoked and we hardly need hire cops for it.
So What about the Many Armed Federal Agents?
Dozens of federal agencies issue firearms to their officers. For instance, the National Parks Department and the Internal Revenue Service. A federal agency usually comes into being by statute, that is, by Congressional legislation. The Social Security Administration, for example, is a “statutory body” arising out of the Social Security Act of 1933.
Again, though, none of these armed feds are on the streets to control the public, so we can put all that aside.
All right then, what about the FBI? What is its source of authority over criminals or suspects. I think the answer will surprise you. Are you sitting down? The FBI has no authority to arrest anyone or hold anyone in its grip.
What? How can this be? Haven’t we seen FBI officers arresting folks right, left, and centre? Sure but they were only making a citizen’s arrest. You can do that, too. If you are sure a crime has been committed – a felony, not a misdemeanor -- and the police aren’t available, you can perform a citizen’s arrest but you must hand your captive over to the police as soon as possible.
FBI As Investigator
The FBI was established by Congress in 1908 as a bureau of investigation. It can investigate to its heart’s content. What might the subject matter be? Anything stemming from the 18 grants of power in Article I section 8.
A ‘grant of power’ means the states, whose delegates drafted the Con, put the national government in charge. I already mentioned the printing of money. Another task is the supervision of interstate commerce. If State A was barring the import of goods from State B, the feds could crack down on State A.
Probably there is an agency in the Department of Commerce that could investigate that. One thinks of the FBI as investigating the more lascivious things like drugs, and prostitution.
The point I want to make is that THE FBI IS NOT, REPEAT NOT, A LAW ENFORCER. Maybe I should say it again, as it is counter-intuitive, thanks to all the self-promotion J Edgar Hoover went in for about “G-men.” The federal bureau of investigation has no police power. Indeed no part of the federal government has a general police power. Trust me. It belongs to the states.
The State Militias
In 1787, when the Framers created the basic law of the United States, the 13 states -- which had only recently been British colonies -- had some sort of militia. Maybe there was no uniform to be worn, or no street address for the militia. It could have been merely the “posse comitatus.” That is, “the men of the county,” who could be called into service at a moment’s notice, as in England.
You will want to know what has happened legally, in regard to the state militias, since those olden days. There are two places to look. One is our national constitution, and the other is the states’ constitutions. (But if a state allows changes to be made by state legislation then you would have to look there, too.)
In my Sydney Harbor talk, I concentrated on the Massachusetts governor’s prerogative for calling up the state militia. Such power was clearly given to him in Article 7 of the Massachusetts Con (not by the original drafter but later by amendment). It says the governor, as commander in chief of the state militia, may use his troops in cases of rebellion, invasion, or for law enforcement.
I did not check the Maryland constitution, but you can check it. I imagine it has a similar provision. Indeed in April 2015, following the death in police custody of 25-year-old Baltimore man Freddy Gray, the governor went on TV and announced that he was deploying 5,000 guardsmen to the streets of Baltimore, because of riots.
I take this to be perfectly legal. In Massachusetts it would definitely be legal as one of the three uses of the guard is for “law enforcement.” Guardsmen hitting below the waist with a baton is surely NOT legal anywhere in the US thanks to the Bill of Rights. Let us not confuse the legality of deployment with the legality of certain practices.
(To arrest someone you can use only such force as would prevent your quarry from escaping, or as is needed in self-defense by the cop. A cop carrying a taser, or having three buddies with him, cannot be in much need of doing any whacking of the arrestee. Common sense is the guide here.)
Is There a National Guard?
Ah, what a good question: is there a national guard? Well, yes, there is such a thing as a grouping together –- on certain occasions –- of the state militias: 13 in the old days or 50 state militias today. We find the necessary provision in Article I, section 8, Clause 15. It says that Congress can call up the militia when needed in cases if rebellion, invasion, or law enforcement.
Congress did not label this group “the national guard.” I am appalled that such a name ever came into being. It seems to imply that there is a guard at the ready to protect the nation. Well, call me picky but I say there are FIFTY guards ready to protect the nation, in the unusual event that Congress calls them.
When those events are not happening, there are guards at the ready to protect their state. We tend to think of them as helping out in natural disasters such as floods.
Can the Guard Be Merged with the Military?
Everyone knows that guardsmen got called up for the Iraq ‘war’ in 2003. Was this legal? I don’t think the events in Iraq (alleged threats by Saddam to use “weapons of mass destruction”) can be called an invasion of America – do you? Nor is it a way to deal with rebellion or law enforcement.
The party that should have objected was the 50 governors. I am not aware of what happened in that regard. Law professors, also, should have gone to town. Someday our grandchildren will ask why the legal profession was silent.
Let me say again. In 1787, when the US Constitution was written, the Framers envisioned a need to protect the nation. There was at that time no army or navy. The Framers provided for Congress to raise an army and navy in due course. Did they say that the militia (which really is the guard) could go overseas to a war? No. That would have been considered a foreign entanglement. The needed protection was only against invasion.
In the US Supreme Court case of Houston v Moore, in 1820, it was ruled that the president could call up the militia of any state and that also the governor could call up his troops.
Is There an “Army National Guard”?
Today when looking with horrified eyes at the batoning described earlier, I learned that guardsmen now go for training with the army! Worse, I learned that they are called “the Army National Guard.’ Believe me I am in shock and don’t know what to say.
Well, actually I do know what to say. I say this sort of violation of our precious Constitution must cease. You should take a case to court and get the problem fixed up.
The only use that the national government can make of the state’s militias is that which is stated in Article I, section 8, Clause 15. I am a graduate of law school but I, and my cohort, learned staes'rights in high school!
Why do I feel alone? Has everybody in America been brainwashed? We used to know these things inside out. God knows they are not complicated.
Justice for Freddy Gray’s City and Country
When the law is broken, somebody has broken it and needs to be punished. Find out who invented the entity called “the Army National Guard” and lock him or her up, please.
Now let us look at the matter that caused the militia to be sent to the streets of Baltimore. Reportedly it was a riot. The cause of the riot was the death-in-custody of Freddy Gray. I saw one of the signs being carried in a peaceful protest. It said ‘Justice for Freddy.’
A death in custody is a murder, pure and simple. The murderer(s) need to be arrested, tried, and convicted. That’s what I say every day about Ibraghim Todashev and Tamerlan Tsarnaev.
If we don’t insist that the law be enforced, then, as Soviet citizen Alexandr Solzhenitsyn once said, we deserve everything that follows.
Tom Paine said: “These are the times that try men’s souls.”
Or as I, very disgusted, now say: Shape up or ship out!
Mary W Maxwell, of Adelaide, eagerly awaits your visit to her website, ProsecutionForTreason.com, or her Youtube channel, Mary W Maxwell. If you are thinking of running for office in 2016, she wants to help you.
