Posts Tagged ‘Bill of Rights’

The meaning of the Second Amendment becomes clear and obvious when you become familiar with a little bit of grammatical history. At the time of the writing of the Bill of Rights, there was a rather common abuse of the use of the comma by people who were not strict followers of proper grammar. (I know, it sounds silly, but go look it up yourself)

Bill of RightsThe version of the Bill of Rights that was published for re-distribution included three commas in the text, splitting the amendment into four separate parts — and this version is the one that is often seen today:

“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.”

However, the author of the Bill of Rights, James Madison, was not such a person as to abuse grammar rules and, like his predecessors in Jefferson and Franklin, he was rather specific and exercised practiced intent in how he phrased his statements — especially for documents of such import.

The actual text that was was read and approved and signed into law by the House of Representatives and the Senate, only included a single comma:

“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.”

Mind you, at the time of it’s writing, the term militia meant any body of armed men so-assembled to fight on behalf of the state. This is important and the placement of the single comma in the original text is extremely important when you also understand the nature of how such statements of intent were assembled at that time.

American_militia_firing_at_the_British_infantry_from_behind_a_split_rail_fence_during_the_Battle_of_Guilford_Courthouse,_March_15,_1781The first part before the comma is what is referred to as a dependent clause. A dependent clause is a phrase which cannot stand on it’s own. As such, it is included as a qualifier to a second independent’ clause and is included as reason for said independent clause. A ‘preamble‘ clause such as this is utilized to give (at least one, deemed most relevant or important) cause for the existence of the second, independent clause. The second half (after the comma) is in fact such an independent clause — one which stands on it’s own even without the pre-amble. (these are also referred to as a ‘prefactory’ and an ‘operative’ clause)

When you understand the nature of the language used and the manner in which it was written in the official, signed-into-law version, the original intent of this amendment is very clear. “The right to keep and bear arms shall not be infringed.” Nothing more needs to be said. But, the supporting clause given as the most relevant and important reason for this being so recognized is that the existence or formation of a militia is necessary to the security of a free state.

This is not ambiguous when you properly understand the language.

Discussions leading up to the drafting of the Bill of Rights included discussions of things such as individual self-defense against other individuals, and hunting, and shooting sports — the same as they do today. But the reason that was decided upon as the most relevant and important imperative cause to recognize and protect the individual right to keep and bear arms was the fact that it was also necessary for the state to have access to armies.

The purpose of the second amendment was NOT placed there for the purpose of having able bodied men who owned guns in the event the government needed to assemble such a militia. The second amendment was placed there BECAUSE the state would ultimately and necessarily always have access to such military force.

James Madison

James Madison, author of The Bill of Rights

Read Full Post »

Public Act 165 of 2003, known as the Driver Responsibility Law, took effect October 1, 2003. This law was amended by Public Act 52 of 2004 and Public Act 460 of 2008.”
(mcl Section 257.732a)

So says the Michigan Government website dedicated to the Michigan Driver’s Responsibility Law under the heading ‘What is Driver Responsibility‘.  They go on to say:

Its purpose is to encourage traffic safety by deterring potentially dangerous driving behavior. Other states, including New Jersey and Texas, have implemented similar laws.

The reality is that the MDRL is a controversial law that has been subject of considerable debate since it’s enactment, including recent legislation aimed at eliminating many of the fees.  (most recently, Senate Bill 166 dubbed ‘repeal the “Bad Driver” Tax” put forward by Sen. Bruce Caswell (R) – it is currently stalled in committee)

The alleged purpose of the law is to act as a ‘deterrent’ to various forms of bad driving and other violations such as drunk driving or not having the proper insurance.  The alleged justification for the fees is to ‘cover the [additional] costs’ related to such violations and costs ‘to Society’ related to the offenses or the people committing them.

Many of the voices speaking out against this law point out that it targets the poor, seems to constitute a ‘double jeopardy‘ violation (in that the fees are only assessed after and in addition to the fines of a specific violations), and aren’t even meeting the original goal of revenue collection. (49% of the fees have not even been collected [1])  There are even questions as to whether or not people of low incomes facing bankruptcy may still be held responsible for payment of the fees.

Double Jeopardy and the Michigan Court of Appeals

The issue of ‘double jeopardy’ has already been addressed in the Michigan Court of Appeals in case Docket No. 264103, Todd Dawson v. Michigan Secretary of State and Department of Treasury.  In that case, the plaintiff argued against the statute on three grounds;  the first involving violation of the ‘double jeopardy’ clauses of both the United States and State of Michigan Constitutions, violations of ‘equal protection’ clause of the 14th amendment to the Bill of Rights, and on violation of the ‘uniformity of taxation‘ clause under Michigan law.

The court found that since the the fees were ‘civil’ in nature and since the defendant did not establish they were ‘invalid’ in nature that they did not constitute a violation of either State or Federal protections against double jeopardy — which applies to criminal prosecutions and punishments.  Further, since the fees were assessed allegedly to cover the additional ‘cost to society’ resulting from specific acts, they could not be deemed as violations of equal protection or uniformity of taxation.

Although it should be obvious by anyone reading their ruling that this almost seems ‘contrived’ and leaves a sour taste in your mouth, the ruling appears to be consistent with the law.  (What is distasteful is that it appears this may have been considered by the lawmakers who supported the law in the first place and thus constitutes an ‘end run’ around these very Constitutional protections)

The plaintiff attorneys in the Dawson case filed an appeal but the motion for appeal was denied.

Due Process

One of the issues that was not addressed by the Dawson case was the matter of ‘due process‘.   The fifth and fourteenth amendments to the US Constitution protect a citizen’s right to have their day in court, to face their accusers, and not be required to testify against themselves and to be able to address any charges levied against them in a fair and reasonable manner.  This right was not only addressed in the original 10 amendments but was clarified further in the 14th after these rights were denied to citizens such as slaves and Native Americans.

People assessed these Driver Responsibility Fee have no means of appeal.  The Michigan DRL website says as much in their list of Frequently Asked Questions:

Can I appeal the suspension?
No. In accordance with MCL 257.322 and 257.323, there is no hardship appeal of the Driver Responsibility fee or Driver Responsibility suspension.

(It lists no other comments on appeal for other ‘non-hardship’ related reasons.)

Furthermore, the Michigan law [mcl 257.907(4)] already addresses the ability of the district courts to assess both fines and additional fees for costs related to these offenses, stating:

“the judge or district court magistrate shall summarily tax and determine the costs of the action, which are not limited to the costs taxable in ordinary civil actions, and may include all expenses, direct and indirect, to which the plaintiff has been put in connection with the civil infraction, up to the entry of judgment*.”

*this section further limits such additional charges for costs to a maximum of $100.  (MDRL fees can be up to $1000 assessed for two years in a row for a total maximum of up to $2000, 20 times as much)

The end result is that the views of the Appeals Court that “the Legislature intended to impose a civil, and not a criminal, penalty” would seem to suggest that the ‘civil’ fee is being treated as separate and distinct from the legal action — except to the extent that the one is incurred as a result of the other.  Since this fee is assessed not through the criminal ruling of the court, and since there is no avenue to challenge or appeal it’s being levied then it would seem to be akin to a Bill of Attender (forbidden by Article I, section 9 of the US Constitution) and a clear violation of the principles of due process.

Why should I care?

Of course, if you don’t get stopped for traffic violations and keep your insurance coverage current, you will likely never experience one of these fees.  So why should you give a damn about having it repealed? Among other things, the same types of arguments in regards to ‘due process’ violations for flat fees are being addressed regarding other types of legislation.

Just some examples of these include the national healthcare reform  mandatory requirement under President Obama’s Comprehensive Health Reform package and things such as windfall profit taxes and retroactive penalties on corporate bonuses for executives.

[1] Huron Daily Tribune (michigansthumb.com) May 10, 2011
 Fees Exist Beyond what’s paid at the Court House
“According to Caswell’s office, roughly $1.2 billion has been assessed in driver responsibility fees, but only about $626 million has been collected, which is a return [of] about 51 percent. As of January, nearly 2.5 million people have had their license suspended.”

(I was going to post something else tonight, but moved it back a few days as this has become a more ‘pressing’ issue today – I’ll add a comment as to why below)

Read Full Post »