Is There Ever a Time for Civil Disobedience?

[Frank Ettin]

The issue isn't legal/illegal. The issue is interpretation of "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."...

I'm not sure what you're trying to say, but the interpretation of a provision of the Constitution, in the course of resolving litigation in which an issue of the application of the provision of the Constitution is raised, is a question of law decided by a court.

 

[divemedic]

Fiddletown:

COTUS did not say that the courts could decide what the COTUS itself meant. It was Marbury versus Madison that established the concept of judicial review, not the COTUS. I again challenge you to show me where the COTUS gave the court the power of judicial review. Saying that the "founders knew" is BS. Where does the COTUS grant the power to the court?

At the time Jefferson disagreed with Marshall's reasoning in Marbury, saying that if this view of judicial power became accepted, it would be "placing us under the despotism of an oligarchy."

and that is exactly what happened.

 

[AKElroy]

Quartering of soldiers in private homes was also a cost cutting effort. Having the subjects protected by the soldiers pay for the quartering seemed reasonable to the Crown. Modern day equivalent would be the National Guard armories that exist free from property tax and in a much broader sense the factories and businesses that are given sweetheart deals to locate in a certain area. The various football stadiums are a prime example. Again- in a very broad sense as in forcing the public to foot the bill of a work that benefits a certain segment of the people rather than the public as a whole.

Again, equating tif taxes or tax waivers with FORCED quartering of troops?? The notion that the colonists were being PROTECTED by these troops is ridiculous on its face. They were protected the same way east Berlinians were protected by the sentinals on the wall. As for public opinion, as if it was relevant, how can that be established when the polling would have been taken of an OCCUPIED POPULACE? Hardly an environment for cander.

Knowlege of history is useless without proper application of the lessons learned. Some see the Declaration as beautifully written propaganda, and our founders as tax-dodging traitors to the crown. Others see the crown as abusive of its power & tyrannical, and or founders as brave liberators of an oppressed people. We are not going to bridge this gap in this forum, but since these are mutually exclusive views, either one is true or both are false. Since I reject your version, I will stick with mine & move on. Enjoyed it---

 

[Frank Ettin]

...COTUS did not say that the courts could decide what the COTUS itself meant....

What do you think "judicial power" is? Isn't the exercise of judicial power the interpretation and application of laws to a matter in dispute before a court for the purpose of resolving that dispute? That's what courts do and have done for hundreds of years before the Constitution. And that's what the Founding Fathers understood judicial power was when they gave it in the Constitution to the federal courts.

Is the Constitution law? Well the Constitution says it is:

"This Constitution, and the laws of the United States ... shall be the supreme law of the land..." (Article VI).

So the Constitution itself says it's part of the law and therefore subject to interpretation and application in the normal exercise of judicial power.

In addition, the Constitutional also says that the judicial power of the federal courts extends, among other things, to all cases arising under the Constitution. How does a court exercise judicial power with regard to a case arising under the Constitution without interpreting and applying the Constitution?

And indeed, the foregoing was at the core of Mr. Chief Justice Marshall's ruling in Marbury v. Madison, which ruling indeed involved the interpretation and application of the Constitution to the dispute before the court for the purposes of reaching a resolution of that dispute.

I understand that Jefferson didn't like the ruling. Alexander Hamilton no doubt did. He had written previously: "....A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It, therefore, belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute,..." (Federalist, No. 78)

So we have here a disagreement between two of the Founders regarding the meaning of the Constitution. How are such disagreements regarding the meaning and application of the Constitution to be resolved.

You had previously quoted the Declaration of Independence for the proposition that such things are to be resolved by "the governed." But the Declaration of Independence is, essentially, an open letter to King George. It's not part of the Constitution.

So we seem to be back in the courts.

 

[Lou McGopher]

Today, one of my favorite blogs addressed the topic of civil disobedience... in particular Thoreau's act of civil disobedience.

The title of the essay is sometimes incorrectly published as "The Duty of Civil Disobedience" but Thoreau did not consider resisting the state to be a duty. Quite the opposite. He considered the business of living as deeply and honestly as possible to be the duty that every person owed to himself.

Thoreau's famous act of civil disobedience -- the refusal to pay a tax that supported war -- was not the act of a determined political dissident. His one night in jail came about only because the state literally knocked on his front door in the form of a tax collector. At that point, Thoreau had to make a choice; he believed the Mexican-American War was immoral, violating both decency and rights. As long as he was not forced to participate in the 'evil', however, Thoreau seemed content to go about the business of living. Participation, including financial support, in the oppression of others was where Thoreau drew his line. He felt no great urge to confront the State but neither could he become a partner in its wrong-doing; to do so would go against the business of living deeply and honestly.

When Thoreau was released from jail, he immediately went on a berry hunt with a swarm of young boys. No bitterness. No follow-up disobedience. (Or obedience, for that matter.) Just a return to living...

The rest can be read here.

So yes, there is a time to disobey. And the time to do that is when obedience is in opposition to the act of living a full, honest life. It doesn't necessarily have to be overt or confrontational. It doesn't have to be political. It may simply be incidental to a moral lifestyle.

 

[wyocarp]

But if you carry a handgun without a permit, in violation of the laws, you're not doing any of these things. All you're doing is surreptitiously breaking the law. Deluding yourself into believing that you're taking some kind of moral stand by doing so is plainly idiotic, and does nothing to further the cause of the RKBA. In fact, if you ever get busted, you're going to hurt the movement far more than help it.

I disagree. It won't affect the movement at all. I have gotten a ticket for carrying in a national park. Because I won't walk among the animals and people in Yellowstone without a firearm, does that make me a criminal? Some of you will say yes. That's too bad. Our government is willing to make anyone a "criminal" or a "felon".

It's too bad that someone doesn't have to actually do something wrong to become a criminal and we are allowing this to happen.

 

[mongo4567]

I obey the law. That said...if they tried to take away my firearms at my own home or business like they did in New Orleans...it would not likely end well...

 

[AKElroy]

When an individual must choose between personal safety & the law, then IMO the law is in the way & personal safety wins. I do not consider that a form of protest or civil disobedience, I consider it prudent risk, taken with the understanding that I might face legal consequences as a result.

Same is true of speeding & running lights to rush my pregnant wife to the ER; It was illegal, it was not a form of protest, and I was willing to pay the potential costs.

Open carry where illegal in order to challenge the law may get attention for a cause, but it can also get one shot. I will let the forum guess as to whether I carried concealed prior to getting my CCW 13-15 or so years ago.

 

[carlrodd]

First, I reject your implied contention that a law requiring a permit to carry a concealed gun is necessarily morally wrong.

Second, it's a value judgment. I find more honor in doing something illegal in order to materially benefit an innocent third party than in doing something illegal to materially benefit yourself. It's one thing to steal a bottle of whiskey so that you can get drunk, and quite another to steal a blanket to keep a sick child warm. They are both crimes of a similar magnitude, involving things worth similar amounts of money; and they both, if discovered, should be punished. But as far as I'm concerned, the second warrants substantially less punishment that the first. -fiddletown

Balderdash!

your attempt to equate carrying concealed without a permit with stealing whiskey to get drunk with is intellectually dishonest. most people that would carry illegally i would assume would do so in situations where obtaining a permit has been made senselessly complicated and expensive so as to discourage people from legally doing so. a person in such a position might very well carry at times when he determines that he must for his own safety. you would like to paint it as behaviour that is necessarily pointless, and never done with merit, reason, or great forethought. one might think you possess some sort of disguised agenda.

 

[divemedic]

So we seem to be back in the courts.

In blindly supporting the courts, you defer to them as your king, or as your betters. I refuse to do so. The court is fallible: at one point, they ruled that slavery and segregation were just dandy, and that women and minorities could not vote.

You had previously quoted the Declaration of Independence for the proposition that such things are to be resolved by "the governed." But the Declaration of Independence is, essentially, an open letter to King George. It's not part of the Constitution.

You also forget the next line:

But when a long train 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 new Guards for their future security. —

There is always secession.

 

[SalchaketJoe]

The US answered the secession question in the 1860s. Divemedic, i see your point with the law. Earlier I posted the link to an essay that directly relates to law and justice. How when the two become one and the same you have tyranny, as the state can then do no wrong. We all know they can as with your examples of slavery and sufrage.

Civil disobedience? Does that mean disobeying with civility?

 

[wyocarp]

I obey the law. That said...if they tried to take away my firearms at my own home or business like they did in New Orleans...it would not likely end well...

I read that a lot. But that just means that this person is willing to break the "law" but it just has to be the law they are willing to break.

 

[mongo4567]

I obey the law. That said...if they tried to take away my firearms at my own home or business like they did in New Orleans...it would not likely end well...

I read that a lot. But that just means that this person is willing to break the "law" but it just has to be the law they are willing to break.

No, it just means that this person refuses to allow anyone to trample my rights or put me in grave danger; even an over-zealous, law breaking police chief. I equate it to the military equivilent of an unlawful order.

Show me a law that says that they can confiscate personal property on a whim, or institute martial law on a city or county level.

 

[Frank Ettin]

In blindly supporting the courts, you defer to them as your king, or as your betters....

Who's doing that? The fact is that courts exist and they have their roles in organized society. They've been around doing what they do for over 500 years (if you include English Common Law, the precursor to our legal system). What they do affects the lives and property of people in real life.

I don't defer to the courts. I'm a lawyer. I deal (or have dealt, since I'm retired) with courts. My business is (or was) knowing what I can accomplish and how, and also knowing what I can't.

And our courts and legal system, as a way of resolving disputes, sure beats trial by combat or trial by ordeal.

...The court is fallible...

Of course it is. That's why we have appeals. That's why courts will from time to time revisit old questions.

But guess what. All human institutions are fallible. That's why we have checks and balances.

And here's another hot flash. Groups of people are fallible too. Look at the Brady Bunch. And even individuals are fallible. Some people actually give money to the Brady Bunch.

...There is always secession...

As you wish. Let us all know how it works out. Of course, you might want to consider that those with whom you might join in such endeavor may also be fallible. And in your secessionist state, will you have courts? If not, how will you resolve disputes?

Have a nice day.

 

[Officers'Wife]

The notion that the colonists were being PROTECTED by these troops is ridiculous on its face.

Here's a hint, in those days the indians did not run casinos and the French were not surrender monkeys. England was at war with the French and the French owned most of the area west of the colonies.

Knowlege of history is useless without proper application of the lessons learned.

And a half knowledge of history is dangerous as it teaches the wrong lesson. I would go into a long discourse over the causes and results of the French and Indian war and the climate it created in the colonies afterward but this is not the venue and quite frankly had I wanted to teach I wouldn't have studied engineering.

 

[Isher]

Well -

Not to confuse things even more, but I will anyway.

During WWII, a number of my Danish relatives were actively

Involved in running refugees across the North Sea,

In work and fishing boats, to safe haven.

There was no payoff involved.

The Nazis got hip to this, and started running dogs through

The boats to find the concealed human cargo.

My relatives, in turn, and one in particular who was a pharmacist,

Took to sprinkling the docks and the boats with pure pharmaceutical

Cocaine, which rendered the dog's noses useless.

Nonetheless, a number of my family were taken away, never to be seen again.

Mind you, technically, this was under Civil Rule of Law.

Denmark was not an Allied combatant in WWII, nor a German combatant.

It was, they were, an occupied country.

And the people being transported on the boats were not combatants.

So I'd guess you would have to call these acts Civil Disobedience.

My point is, my relatives were putting their own sense of

Civility and justice, and their lives, on the line against

The written "legal" word of the German government.

If you do that, you have to be prepared to take the consequences,

Perhaps unfair, but very much there nonetheless.

My ultimate point is that each of us has a personal code of conduct

Which may end up in considerable variance with the present civil codes.

The Constitution, more than any other document I know,

Is at at pains to address that.

isher

 

[AKElroy]

Here's a hint, in those days the indians did not run casinos and the French were not surrender monkeys.

And using the "savage" crisis provided ample justification for the quartered troops. They clearly had a dual purpose IMO. As for whether they were actually valuable in that role, well, they lost to lessor trained / poorly equipped colonists.

 

[Officers'Wife]

My ultimate point is that each of us has a personal code of conduct

Which may end up in considerable variance with the present civil codes.

The Constitution, more than any other document I know,

Is at at pains to address that.

Nothing I say can improve on that. Well said.