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Judicial Notice of my Right to Travel
Free Born Right to Keep and Bear Arms
Judicial Notice of my Right to Travel
CAUSE NUMBERS 339574 and 339575
CITY OF GARLAND MUNICIPAL COURT OF RECORD PLEA Robert (Bob) Beasley Fiduciary officer for STATE OF TEXAS and officer J. D. Weston Take Judicial Notice of my Right to Travel.
John Doe
Ex parte,
Applicant, Aggrieved Party,
Holder in due Course.
_________________________________________
BRIEF IN SUPPORT OF NOTICE FOR DISMISSAL FOR LACK OF JURISDICTION
NOW, comes the Accused, me, living soul appearing specially and not generally or voluntarily, but under threat of arrest if he failed to do so, with this "BRIEF IN SUPPORT OF NOTICE FOR DISMISSAL FOR LACK OF JURISDICTION," stating as follows:
ARGUMENT
If ever a judge understood the public's right to use the public roads, it was Justice Tolman of the Supreme Court of the State of Washington. Justice Tolman stated:
"Complete freedom of the highways is so old and well established a blessing that we have forgotten the days of the Robber Barons and toll roads, and yet, under an act like this, arbitrarily administered, the highways may be completely monopolized, if, through lack of interest, the people submit, then they may look to see the most sacred of their liberties taken from them one by one, by more or less rapid encroachment."
Robertson vs. Department of Public Works, 180 Wash 133, 147.
The words of Justice Tolman ring most prophetically in the ears of Citizens throughout the country today as the use of the public roads has been monopolized by the very entity which has been empowered to stand guard over our freedoms, i.e., that of state government.
RIGHTS
The "most sacred of liberties" of which Justice Tolman spoke was personal liberty. The definition of personal liberty is:
"Personal liberty, or the Right to enjoyment of life and liberty, is one of the fundamental or natural Rights, which has been protected by its inclusion as a guarantee in the various constitutions, which is not derived from, or dependent on, the U.S. Constitution, which may not be submitted to a vote and may not depend on the outcome of an election. It is one of the most sacred and valuable Rights, as sacred as the Right to private property ... and is regarded as inalienable."
16 C.J.S., Constitutional Law, Sect.202, p.987
This concept is further amplified by the definition of personal liberty:
"Personal liberty largely consists of the Right of locomotion -- to go where and when one pleases -- only so far restrained as the Rights of others may make it necessary for the welfare of all other citizens. The Right of the Citizen to travel upon the public highways and to transport his property thereon, by horsedrawn carriage, wagon, or automobile, is not a mere privilege which may be permitted or prohibited at will, but the common Right which he has under his Right to life, liberty, and the pursuit of happiness. Under this Constitutional guarantee one may, therefore, under normal conditions, travel at his inclination along the public highways or in public places, and while conducting himself in an orderly and decent manner, neither interfering with nor disturbing another's Rights, he will be protected, not only in his person, but in his safe conduct."
II Am.Jur. (1st) Constitutional Law, Sect.329, p.1135
and further ...
"Personal liberty -- consists of the power of locomotion, of changing situations, of removing one's person to whatever place one's inclination may direct, without imprisonment or restraint unless by due process of law."
Bouvier's Law Dictionary, 1914 ed., Black's Law Dictionary, 5th ed.;
Blackstone's Commentary 134; Hare, Constitution__Pg. 777
Justice Tolman was concerned about the State prohibiting the Citizen from the "most sacred of his liberties," the Right of movement, the Right of moving one's self from place to place without threat of imprisonment, the Right to use the public roads in the ordinary course of life.
When the State allows the formation of a corporation it may control its creation by establishing guidelines (statutes) for its operation (charters). Corporations who use the roads in the course of business do not use the roads in the ordinary course of life. There is a difference between a corporation and an individual. The United States Supreme Court has stated:
"...We are of the opinion that there is a clear distinction in this particular between an individual and a corporation, and that the latter has no right to refuse to submit its books and papers for examination on the suit of the State. The individual may stand upon his Constitutional Rights as a Citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no duty to the State or to his neighbors to divulge his business, or to open his doors to investigation, so far as it may tend to incriminate him. He owes no such duty to the State, since he receives nothing therefrom, beyond the protection of his life, liberty, and property.
His Rights are such as the law of the land long antecedent to the organization of the state, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his Rights are the refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under warrant of law. He owes nothing to the public so long as he does not trespass upon their rights.
"Upon the other hand, the corporation is a creature of the state. It is presumed to be incorporated for the benefit of the public. It receives certain special privileges and franchises, and holds them subject to the laws of the state and the limitations of its charter. Its rights to act as a corporation are only preserved to it so long as it obeys the laws of its creation. There is a reserved right in the legislature to investigate its contracts and find out whether it has exceeded its powers. It would be a strange anomaly to hold that the State, having chartered a corporation to make use of certain franchises, could not in exercise of its sovereignty inquire how those franchises had been employed, and whether they had been abused, and demand the production of corporate books and papers for that purpose."
Hale vs. Hinkel, 201 US 43, 74-75
Corporations engaged in mercantile equity fall under the purview of the State's admiralty jurisdiction, and the public at large must be protected from their activities, as they (the corporations) are engaged in business for profit.
"...Based upon the fundamental ground that the sovereign state has the plenary control of the streets and highways in the exercise of its police power (see police power, infra.), may absolutely prohibit the use of the streets as a place for the prosecution of a private business for gain. They all recognize the fundamental distinction between the ordinary Right of the Citizen to use the streets in the usual way and the use of the streets as a place of business or a main instrumentality of business for private gain. The former is a common Right, the latter is an extraordinary use. As to the former, the legislative power is confined to regulation, as to the latter, it is plenary and extends even to absolute prohibition. Since the use of the streets by a common carrier in the prosecution of its business as such is not a right but a mere license of privilege."
Hadfield vs. Lundin, 98 Wash 516
It will not be necessary to review early cases and legal authority in order to reach a lawfully correct theory dealing with this Right or "privilege." We will attempt to reach a sound conclusion as to what is a "Right to use the road" and what is a "privilege to use the road". Once reaching this determination, we shall then apply those positions to modern case decision.
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them."
Miranda vs. Arizona, 384 US 436, 491
and ...
"The claim and exercise of a constitutional Right cannot be converted into a crime."
Miller vs. U.S., 230 F. 486, 489
and ...
"There can be no sanction or penalty imposed upon one because of this exercise
of constitutional Rights." Snerer vs. Cullen, 481 F. 946
Streets and highways are established and maintained for the purpose of travel and transportation by the public. Such travel may be for business or pleasure.
"The use of the highways for the purpose of travel and transportation is not a mere privilege, but a common and fundamental Right of which the public and the individual cannot be rightfully deprived."
Chicago Motor Coach vs. Chicago, 169 NE 22;
Ligare vs. Chicago, 28 NE 934;
Boon vs. Clark, 214 SSW 607;
25 Am.Jur. (1st) Highways Sect.163
and ...
"The Right of the Citizen to travel upon the public highways and to transport his property thereon, either by horse drawn carriage or by automobile, is not a mere privilege which a city can prohibit or permit at will, but a common Right which he has under the right to life, liberty, and the pursuit of happiness."
Thompson vs. Smith, 154 SE 579
So we can see that a Citizen has a Right to travel upon the public highways by automobile and the Citizen cannot be rightfully deprived of his Liberty. So where does the misconception that the use of the public road is always and only a privilege come from?
"... For while a Citizen has the Right to travel upon the public highways and to transport his property thereon, that Right does not extend to the use of the highways, either in whole or in part, as a place for private gain. For the latter purpose, no person has a vested right to use the highways of the state, but is a privilege or a license which the legislature may grant or withhold at
its discretion."
State vs. Johnson, 243 P. 1073;
Cummins vs. Homes, 155 P. 171;
Packard vs. Banton, 44 S.Ct. 256;
Hadfield vs. Lundin, 98 Wash 516
Here the court held that a Citizen has the Right to travel upon the public highways, but that he did not have the right to conduct business upon the highways. On this point of law all authorities are unanimous.
"Heretofore the court has held, and we think correctly, that while a Citizen has the Right to travel upon the public highways and to transport his property thereon, that Right does not extend to the use of the highways, either in whole or in part, as a place of business for private gain."
Willis vs. Buck, 263 P. l 982;
Barney vs. Board of Railroad Commissioners, 17 P.2d 82 and ...
"The right of the citizen to travel upon the highway and to transport his property thereon, in the ordinary course of life and business, differs radically and obviously from that of one who makes the highway his place of business for private gain in the running of a stagecoach or omnibus."
State vs. City of Spokane, 186 P. 864
What is this Right of the Citizen which differs so "radically and obviously" from one who uses the highway as a place of business? Who better to enlighten us than Justice Tolman of the Supreme Court of Washington State? In State vs. City of Spokane, supra, the Court also noted a very "radical and obvious" difference, but went on to explain just what the difference is:
"The former is the usual and ordinary right of the Citizen, a common right to all, while the latter is special, unusual, and extraordinary." and ...
"This distinction, elementary and fundamental in character, is recognized by all the authorities."
State vs. City of Spokane, supra.
This position does not hang precariously upon only a few cases, but has been proclaimed by an impressive array of cases ranging from the state courts to the federal courts.
"the right of the Citizen to travel upon the highway and to transport his property thereon in the ordinary course of life and business, differs radically and obviously from that of one who makes the highway his place of business and uses it for private gain in the running of a stagecoach or omnibus. The former is the usual and ordinary right of the Citizen, a right common to all, while the latter is special, unusual, and extraordinary."
Ex Parte Dickey, (Dickey vs. Davis), 85 SE 781 and ...
"The right of the Citizen to travel upon the public highways and to transport his property thereon, in the ordinary course of life and business, is a common right which he has under the right to enjoy life and liberty, to acquire and possess property, and to pursue happiness and safety. It includes the right, in so doing, to use the ordinary and usual conveyances of the day, and under the existing modes of travel, includes the right to drive a horse drawn carriage or wagon thereon or to operate an automobile thereon, for the usual and ordinary purpose of life and business."
Thompson vs. Smith, supra.;
Teche Lines vs. Danforth, Miss., 12 S.2d 784
There is no dissent among various authorities as to this position. (See Am.Jur. [1st] Const. Law, 329 and corresponding Am. Jur. [2nd].)
"Personal liberty -- or the right to enjoyment of life and liberty -- is one of the fundamental or natural rights, which has been protected by its inclusion as a guarantee in the various constitutions, which is not derived from nor dependent on the U.S. Constitution. ... It is one of the most sacred and valuable rights [remember the words of Justice Tolman, supra.] as sacred as the right to private property ... and is regarded as inalienable."
16 C.J.S. Const. Law, Sect.202, Pg. 987
As we can see, the distinction between a "Right" to use the public roads and a "privilege" to use the public roads is drawn upon the line of "using the road as a place of business" and the various state courts have held so. But what have the U.S. Courts held on this point?
"First, it is well established law that the highways of the state are public property, and their primary and preferred use is for private purposes, and that their use for purposes of gain is special and extraordinary which, generally at least, the legislature may prohibit or condition as it sees fit."
Stephenson vs. Rinford, 287 US 251;
Pachard vs Banton, 264 US 140, and cases cited;
Frost and F. Trucking Co. vs. Railroad Commission, 271 US 592;
Railroad commission vs. Inter-City Forwarding Co., 57 SW.2d 290;
Parlett Cooperative vs. Tidewater Lines, 164 A. 313
So what is a privilege to use the roads? By now it should be apparent even to the "learned" that an attempt to use the road as a place of business is a privilege. The distinction must be drawn between ... Travelling upon and transporting one's property upon the public roads, which is our Right; and ... Using the public roads as a place of business or a main instrumentality of
business, which is a privilege.
"[The roads] ... are constructed and maintained at public expense, and no person therefore, can insist that he has, or may acquire, a vested right to their use in carrying on a commercial business."
Ex Parte Sterling, 53 SW.2d 294;
Barney vs. Railroad Commissioners, 17 P.2d 82;
Stephenson vs. Binford, supra.
"When the public highways are made the place of business the state has a right to regulate their use in the interest of safety and convenience of the public as well as the preservation of the highways." Thompson vs. Smith, supra.
"[The state's] right to regulate such use is based upon the nature of the business and the use of the highways in connection therewith." Ibid.
"We know of no inherent right in one to use the highways for commercial purposes. The highways are primarily for the use of the public, and in the interest of the public, the state may prohibit or regulate ... the use of the highways for gain."
Robertson vs. Dept. of Public Works, supra.
There should be considerable authority on a subject as important a this deprivation of the liberty of the individual "using the roads in the ordinary course of life and business." However, it should be noted that extensive research has not turned up one case or authority acknowledging the state's power to convert the individual's right to travel upon the public roads into a "privilege."
Therefore, it is concluded that the Citizen does have a "Right" to travel and transport his property upon the public highways and roads and the exercise of this Right is not a "privilege."
DEFINITIONS
In order to understand the correct application of the statute in question, we must first define the terms used in connection with this point of law. As will be shown, many terms used today do not, in their legal context, mean what we assume they mean, thus resulting in the misapplication of statutes in the instant case.
AUTOMOBILE AND MOTOR VEHICLE
There is a clear distinction between an automobile and a motor vehicle. An automobile has been defined as:
"The word `automobile' connotes a pleasure vehicle designed for the transportation of persons on highways."
American Mutual Liability Ins. Co., vs. Chaput, 60 A.2d 118, 120; 95 NH 200
While the distinction is made clear between the two as the courts have stated:
"A motor vehicle or automobile for hire is a motor vehicle, other than an automobile stage, used for the transportation of persons for which remuneration is received."
International Motor Transit Co. vs. Seattle, 251 P. 120
The term `motor vehicle' is different and broader than the word `automobile.'"
City of Dayton vs. DeBrosse, 23 NE.2d 647, 650; 62 Ohio App. 232
The distinction is made very clear in Title 18 USC 31:
"Motor vehicle" means every description or other contrivance propelled or drawn by mechanical power and used for commercial purposes on the highways in the transportation of passengers, or passengers and property.
"Used for commercial purposes" means the carriage of persons or property for any fare, fee, rate, charge or other considerations, or directly or indirectly in connection with any business, or other undertaking intended for profit.
Clearly, an automobile is private property in use for private purposes, while a motor vehicle is a machine which may be used upon the highways for trade, commerce, or hire.
TRAVEL
The term "travel" is a significant term and is defined as:
"The term `travel' and `traveler' are usually construed in their broad and general sense ... so as to include all those who rightfully use the highways viatically (when being reimbursed for expenses) and who have occasion to pass over them for the purpose of business, convenience, or pleasure."
25 Am.Jur. (1st) Highways, Sect.427, Pg. 717
"Traveler -- One who passes from place to place, whether for pleasure,instruction, business, or health."
Locket vs. State, 47 Ala. 45;
Bovier's Law Dictionary, 1914 ed., Pg. 3309
"Travel -- To journey or to pass through or over; as a country district, road, etc. To go from one place to another, whether on foot, or horseback, or in any conveyance as a train, an automobile, carriage, ship, or aircraft; Make a journey."
Century Dictionary, Pg. 2034
Therefore, the term "travel" or "traveler" refers to one who uses a conveyance to go from one place to another, and included all those who use the highways as a matter of Right.
Notice that in all these definitions, the phrase "for hire" never occurs. This term "travel" or "traveler" implies, by definition, one who uses the road as a means to move from one place to another.
Therefore, one who uses the road in the ordinary course of life and business for the purpose of travel and transportation is a traveler.
DRIVER
The term "driver" in contradistinction to "traveler," is defined as:
"Driver -- One employed in conducting a coach, carriage, wagon, or other vehicle ..."
Bovier's Law Dictionary, 1914 ed., Pg. 940
Notice that this definition includes one who is "employed" in conducting a vehicle. It should be self-evident that this individual could not be "travelling" on a journey, but is using the road as a place of business.
OPERATOR
Today we assume that a "traveler" is a "driver," and a "driver" is an "operator." However, this is not the case.
"It will be observed from the language of the ordinance that a distinction is to be drawn between the terms `operator' and `driver'; the `operator' of the service car being the person who is licensed to have the car on the streets in the business of carrying passengers for hire; while the `driver' is the one who actually drives the car. However, in the actual prosecution of business, it was possible for the same person to be both `operator' and `driver.'"
Newbill vs. Union Indemnity Co., 60 SE.2d 658
To further clarify the definition of an "operator" the court observed that this was a vehicle "for hire" and that it was in the business of carrying passengers.
This definition would seem to describe a person who is using the road as a place of business, or in other words, a person engaged in the "privilege" of using the road for gain.
This definition, then, is a further clarification of the distinction mentioned earlier, and therefore:
Travelling upon and transporting one's property upon the public roads as a matter of Right meets the definition of a traveler.
Using the road as a place of business as a matter of privilege meets the definition of a driver or an operator or both.
TRAFFIC
Having defined the terms "automobile," "motor vehicle," "traveler," "driver," and "operator," the next term to define is "traffic":
"... Traffic thereon is to some extent destructive, therefore, the prevention of unnecessary duplication of auto transportation service will lengthen the life of the highways or reduce the cost of maintenance, the revenue derived by the state ... will also tend toward the public welfare by producing at the expense of those operating for private gain, some small part of the cost of repairing the wear ..." Northern Pacific R.R. Co. vs. Schoenfeldt, 213 P. 26
Note: In the above, Justice Tolman expounded upon the key of raising revenue by taxing the "privilege" to use the public roads "at the expense of those operating for gain."
In this case, the word "traffic" is used in conjunction with the unnecessary Auto Transportation Service, or in other words, "vehicles for hire." The word "traffic" is another word which is to be strictly construed to the conducting of business.
"Traffic -- Commerce, trade, sale or exchange of merchandise, bills, money, or the like. The passing of goods and commodities from one person to another for an equivalent in goods or money ..." Bovier's Law Dictionary, 1914 ed., Pg. 3307
Here again, notice that this definition refers to one "conducting business." No mention is made of one who is travelling in his automobile. This definition is of one who is engaged in the passing of a commodity or goods in exchange for money, i.e .., vehicles for hire.
Furthermore, the word "traffic" and "travel" must have different meanings which the courts recognize. The difference is recognized in Ex Parte Dickey, supra:
"...in addition to this, cabs, hackney coaches, omnibuses, taxicabs, and hacks, when unnecessarily numerous, interfere with the ordinary traffic and travel and obstruct them."
The court, by using both terms, signified its recognition of a distinction between the two. But, what was the distinction? We have already defined both terms, but to clear up any doubt:
"The word `traffic' is manifestly used here in secondary sense, and has reference to the business of transportation rather than to its primary meaning of interchange of commodities."
Allen vs. City of Bellingham, 163 P. 18
Here the Supreme Court of the State of Washington has defined the word "traffic" (in either its primary or secondary sense) in reference to business, and not to mere travel! So it is clear that the term "traffic" is business related and therefore, it is a "privilege." The net result being that "traffic" is brought under the (police) power of the legislature. The term has no application to one who is not using the roads as a place of business.
LICENSE
It seems only proper to define the word "license," as the definition of this word will be extremely important in understanding the statutes as they are properly applied:
"The permission, by competent authority to do an act which without permission, would be illegal, a trespass, or a tort." People vs. Henderson, 218 NW.2d 2, 4
"Leave to do a thing which licensor could prevent."
Western Electric Co. vs. Pacent Reproducer Corp., 42 F.2d 116, 118
In order for these two definitions to apply in this case, the state would have to take up the position that the exercise of a Constitutional Right to use the public roads in the ordinary course of life and business is illegal, a trespass, or a tort, which the state could then regulate or prevent.
This position, however, would raise magnitudinous Constitutional questions as this position would be diametrically opposed to fundamental Constitutional Law. (See "Conversion of a Right to a Crime," infra.) In the instant case, the proper definition of a "license" is:
"a permit, granted by an appropriate governmental body, generally for consideration, to a person, firm, or corporation, to pursue some occupation or to carry on some business which is subject to regulation under the police power." Rosenblatt vs. California State Board of Pharmacy, 158 P.2d 199, 203
This definition would fall more in line with the "privilege" of carrying on business on the streets.
Most people tend to think that "licensing" is imposed by the state for the purpose of raising revenue, yet there may well be more subtle reasons contemplated; for when one seeks permission from someone to do something he invokes the jurisdiction of the "licensor" which, in this case, is the state. In essence, the licensee may well be seeking to be regulated by the "licensor."
"A license fee is a charge made primarily for regulation, with the fee to cover costs and expenses of supervision or regulation." State vs. Jackson, 60 Wisc.2d 700; 211 NW.2d 480, 487
The fee is the price; the regulation or control of the licensee is the real aim of the legislation.
Are these licenses really used to fund legitimate government, or are they nothing more than a subtle introduction of police power into every facet of our lives? Have our "enforcement agencies" been diverted from crime prevention, perhaps through no fault of their own, instead now busying themselves as they "check" our papers to see that all are properly endorsed by
the state?
How much longer will it be before we are forced to get a license for our lawn mowers, or before our wives will need a license for her "blender" or "mixer?" They all have motors on them and the state can always use the revenue.
POLICE POWER
The confusion of the police power with the power of taxation usually arises in cases where the police power has affixed a penalty to a certain act, or where it requires licenses to be obtained and a certain sum be paid for certain occupations. The power used in the instant case cannot, however, be the power of taxation since an attempt to levy a tax upon a Right would be open to Constitutional objection. (See "taxing power," infra.)
Each law relating to the use of police power must ask three questions:
"1. Is there threatened danger?
"2. Does a regulation involve a Constitutional Right?
"3. Is this regulation reasonable?
People vs. Smith, 108 Am.St.Rep. 715;
Bovier's Law Dictionary, 1914 ed., under "Police Power"
When applying these three questions to the statute in question, some very important issues emerge.
First, "is there a threatened danger" in the individual using his automobile on the public highways, in the ordinary course of life and business? The answer is No! There is nothing inherently dangerous in the use of an automobile when it is carefully managed. Their guidance, speed, and noise are subject to a quick and easy control, under a competent and considerate manager, it is as harmless on the road as a horse and buggy.
It is the manner of managing the automobile, and that alone, which threatens the safety of the public. The ability to stop quickly and to respond quickly to guidance would seem to make the automobile one of the least dangerous conveyances. (See Yale Law Journal, December, 1905.)
"The automobile is not inherently dangerous."
Cohens vs. Meadow, 89 SE 876;
Blair vs. Broadmore, 93 SE 532
To deprive all persons of the Right to use the road in the ordinary course of life and business, because one might, in the future, become dangerous, would be a deprivation not only of the Right to travel, but also the Right to due process. (See "Due Process," infra.)
Next; does the regulation involve a Constitutional Right?
This question has already been addressed and answered in this brief, and need not be reinforced other than to remind this Court that this Citizen does have the Right to travel upon the public highway by automobile in the ordinary course of life and business. It can therefore be concluded that this regulation does involve a Constitutional Right.
The third question is the most important in this case. "Is this regulation reasonable?"
The answer is No! It will be shown later in "Regulation," infra., that this licensing statute is oppressive and could be effectively administered by less oppressive means.
Although the Fourteenth Amendment does not interfere with the proper exercise of the police power, in accordance with the general principle that the power must be exercised so as not to invade unreasonably the rights guaranteed by the United States Constitution, it is established beyond question that every state power, including the police power, is limited by the Fourteenth Amendment (and others) and by the inhibitions there imposed.
Moreover, the ultimate test of the propriety of police power regulations must be found in the Fourteenth Amendment, since it operates to limit the field of the police power to the extent of preventing the enforcement of statutes in denial of Rights that the Amendment protects. (See Parks vs. State, 64 NE 682.)
"With regard particularly to the U.S. Constitution, it is elementary that a Right secured or protected by that document cannot be overthrown or impaired by any state police authority."
Donnolly vs. Union Sewer Pipe Co., 184 US 540;
Lafarier vs. Grand Trunk R.R. Co., 24 A. 848;
O'Neil vs. Providence Amusement Co., 108 A. 887
"The police power of the state must be exercised in subordination to the provisions of the U.S. Constitution." Bacahanan vs. Wanley, 245 US 60;
Panhandle Eastern Pipeline Co. vs. State Highway Commission, 294 US 613
"It is well settled that the Constitutional Rights protected from invasion by the police power, include Rights safeguarded both by express and implied prohibitions in the Constitutions." Tiche vs. Osborne, 131 A. 60
"As a rule, fundamental limitations of regulations under the police power are found in the spirit of the Constitutions, not in the letter, although they are just as efficient as if expressed in the clearest language." Mehlos vs. Milwaukee, 146 NW 882
As it applies in the instant case, the language of the Fifth Amendment is clear:
"No person shall be ... deprived of Life, Liberty, or Property without due process of law."
As has been shown, the courts at all levels have firmly established an absolute Right to travel.
In the instant case, the state, by applying commercial statutes to all entities, natural and artificial persons alike, has deprived this free and natural person of the Right of Liberty, without cause and without due process of law.
DUE PROCESS
"The essential elements of due process of law are ... Notice and The Opportunity to defend."
Simon vs. Craft, 182 US 427
Yet, not one individual has been given notice of the loss of his/her Right, let alone before signing the license (contract). Nor was the Citizen given any opportunity to defend against the loss of his/her right to travel, by automobile, on the highways, in the ordinary course of life and business. This amounts to an arbitrary deprivation of Liberty.
"There should be no arbitrary deprivation of Life or Liberty ..."
Barbour vs. Connolly, 113 US 27, 31;
Yick Wo vs. Hopkins, 118 US 356 and ...
"The right to travel is part of the Liberty of which a citizen cannot deprived without due process of law under the Fifth Amendment. This Right was emerging as early as the Magna Carta."
Kent vs. Dulles, 357 US 116 (1958)
The focal point of this question of police power and due process must balance upon the point of making the public highways a safe place for the public to travel. If a man travels in a manner that creates actual damage, an action would lie (civilly) for recovery of damages. The state could then also proceed against the individual to deprive him of his Right to use the public highways, for cause. This process would fulfill the due process requirements of the Fifth Amendment while at the same time insuring that Rights guaranteed by the U.S. Constitution and the state constitutions would be protected.
But unless or until harm or damage (a crime) is committed, there is no cause for interference in the private affairs or actions of a Citizen. One of the most famous and perhaps the most quoted definitions of due process of law, is that of Daniel Webster in his Dartmouth College Case (4 Wheat 518), in which he declared that by due process is meant:
"a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial."
See also State vs. Strasburg, 110 P. 1020;
Dennis vs. Moses, 52 P. 333
Somewhat similar is the statement that is a rule as old as the law that:
"no one shall be personally bound (restricted) until he has had his day incourt,"
by which is meant, until he has been duly cited to appear and has been afforded an opportunity to be heard. Judgment without such citation and opportunity lacks all the attributes of a judicial determination; it is judicial usurpation and it is oppressive and can never be upheld where it is
fairly administered. (12 Am.Jur. [1st] Const. Law, Sect. 573, Pg. 269)
Note: This sounds like the process used to deprive one of the "privilege" of operating a motor vehicle "for hire." It should be kept in mind, however, that we are discussing the arbitrary deprivation of the Right to use the road that all citizens have "in common."
The futility of the state's position can be most easily observed in the 1959 Washington Attorney General's opinion on a similar issue:
"The distinction between the Right of the Citizen to use the public highways for private, rather than commercial purposes is recognized ..." and ...
"Under its power to regulate private uses of our highways, our legislature has required that motor vehicle operators be licensed (I.C. 49-307). Undoubtedly, the primary purpose of this requirement is to insure, as far as possible, that all motor vehicle operators will be competent and qualified, thereby reducing the potential hazard or risk of harm, to which other users of the highways might otherwise be subject. But once having complied with this regulatory provision, by obtaining the required license, a motorist enjoys the privilege of traveling freely upon the highways..."
Washington A.G.O. 59-60 No. 88, Pg. 11
This alarming opinion appears to be saying that every person using an automobile as a matter of Right, must give up the Right and convert the Right into a privilege. This is accomplished under the guise of regulation. This statement is indicative of the insensitivity, even the ignorance, of the government to the limits placed upon governments by and through the several constitutions.
This legal theory may have been able to stand in 1959; however, as of 1966, in the United States Supreme Court decision in Miranda, even this weak defense of the state's actions must fall.
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." Miranda vs. Arizona, 384 US 436, 491
Thus the legislature does not have the power to abrogate the Citizen's Right to travel upon the public roads, by passing legislation forcing the citizen to waive his Right and convert that Right into a privilege. Furthermore, we have previously established that this "privilege" has been defined as applying only to those who are "conducting business in the streets" or "operating for-hire
vehicles."
The legislature has attempted (by legislative fiat) to deprive the Citizen of his Right to use the roads in the ordinary course of life and business, without affording the Citizen the safeguard of "due process of law." This has been accomplished under supposed powers of regulation.
REGULATION
"In addition to the requirement that regulations governing the use of the highways must not be violative of constitutional guarantees, the prime essentials of such regulation are reasonableness, impartiality, and definiteness or certainty." 25 Am.Jur. (1st) Highways, Sect. 260 and ...
"Moreover, a distinction must be observed between the regulation of an activity which may be engaged in as a matter of right and one carried on by government sufferance of permission."
Davis vs. Massachusetts, 167 US 43;
Pachard vs. Banton, supra.
One can say for certain that these regulations are impartial since they are being applied to all, even though they are clearly beyond the limits of the legislative powers. However, we must consider whether such regulations are reasonable and non-violative of constitutional guarantees.
First, let us consider the reasonableness of this statute requiring all persons to be licensed (presuming that we are applying this statute to all persons using the public roads). In determining the reasonableness of the statute we need only ask two questions:
1. Does the statute accomplish its stated goal? The answer is No!
The attempted explanation for this regulation "to insure the safety of the public by insuring, as much as possible, that all are competent and qualified."
However, one can keep his license without retesting, from the time he/she is first licensed until the day he/she dies, without regard to the competency of the person, by merely renewing said license before it expires. It is therefore possible to completely skirt the goal of this attempted regulation, thus proving that this regulation does not accomplish its goal.
Furthermore, by testing and licensing, the state gives the appearance of underwriting the competence of the licensees, and could therefore be held liable for failures, accidents, etc. caused by licensees.
2. Is the statute reasonable? The answer is No!
This statute cannot be determined to be reasonable since it requires to the Citizen to give up his or her natural Right to travel unrestricted in order to accept the privilege. The purported goal of this statute could be met by much less oppressive regulations, i.e., competency tests and certificates of competency before using an automobile upon the public roads. (This is exactly the situation in the aviation sector.)
But isn't this what we have now? The answer is No!
The real purpose of this license is much more insidious. When one signs the license, he/she gives up his/her Constitutional Right to travel in order to accept and exercise a privilege. After signing the license, a quasi-contract, the Citizen has to give the state his/her consent to be prosecuted for constructive crimes and quasi-criminal actions where there is no harm done and no damaged property.
These prosecutions take place without affording the Citizen of their Constitutional Rights and guarantees such a the Right to a trial by jury of twelve persons and the Right to counsel, as well as the normal safeguards such as proof of intent and a corpus dilecti and a grand jury indictment. These unconstitutional prosecutions take place because the Citizen is exercising a privilege and has given his/her "implied consent" to legislative enactments designed to control interstate commerce, a regulatable enterprise under the police power of the state.
We must now conclude that the Citizen is forced to give up Constitutional guarantees of "Right" in order to exercise his state "privilege" to travel upon the public highways in the ordinary course of life and business.
SURRENDER OF RIGHTS
A Citizen cannot be forced to give up his/her Rights in the name of regulation.
"... the only limitations found restricting the right of the state to condition the use of the public highways as a means of vehicular transportation for compensation are (1) that the state must not exact of those it permits to use the highways for hauling for gain that they surrender any of their inherent U.S. Constitutional Rights as a condition precedent to obtaining permission for such use ..."
Riley vs. Laeson, 142 So. 619;
Stephenson vs. Binford, supra.
If one cannot be placed in a position of being forced to surrender Rights in order to exercise a privilege, how much more must this maxim of law, then, apply when one is simply exercising (putting into use) a Right? "To be that statute which would deprive a Citizen of the rights of person or property, without a regular trial, according to the course and usage of the common law, would not be the law of the land." Hoke vs. Henderson, 15 NC 15 and ...
"We find it intolerable that one Constitutional Right should have to be surrendered in order to assert another."
Simons vs. United States, 390 US 389
Since the state requires that one give up Rights in order to exercise the privilege of driving, the regulation cannot stand under the police power, due process, or regulation, but must be exposed as a statute which is oppressive and one which has been misapplied to deprive the Citizen of Rights guaranteed by the United States Constitution and the state constitutions.
TAXING POWER
"Any claim that this statute is a taxing statute would be immediately open to severe Constitutional objections. If it could be said that the state had the power to tax a Right, this would enable the state to destroy Rights guaranteed by the constitution through the use of oppressive taxation. The question herein, is one of the state taxing the Right to travel by the ordinary modes of the day, and whether this is a legislative object of the state taxation.
The views advanced herein are neither novel nor unsupported by authority. The question of taxing power of the states has been repeatedly considered by the Supreme Court. The Right of the state to impede or embarrass the Constitutional operation of the U.S. Government or the Rights which the Citizen holds under it, has been uniformly denied." McCulloch vs. Maryland, 4 Wheat 316
The power to tax is the power to destroy, and if the state is given the power to destroy Rights through taxation, the framers of the Constitution wrote that document in vain.
"... It may be said that a tax of one dollar for passing through the state cannot sensibly affect any function of government or deprive a Citizen of any valuable Right. But if a state can tax ... a passenger of one dollar, it can tax him a thousand dollars."
Crandall vs. Nevada, 6 Wall 35, 46 and ...
"If the Right of passing through a state by a Citizen of the United States is one guaranteed by the Constitution, it must be sacred from state taxation." Ibid., Pg. 47
Therefore, the Right of travel must be kept sacred from all forms of state taxation and if this argument is used by the state as a defense of the enforcement of this statute, then this argument also must fail.
CONVERSION OF A RIGHT TO A CRIME
As previously demonstrated, the Citizen has the Right to travel and to transport his property upon the public highways in the ordinary course of life and business. However, if one exercises this Right to travel (without first giving up the Right and converting that Right into a privilege) the Citizen is by statute, guilty of a crime. This amounts to converting the exercise of a Constitutional Right into a crime.
Recall the Miller vs. U.S. and Snerer vs. Cullen quotes from Pg. 5, and:
"The state cannot diminish Rights of the people." Hurtado vs. California, 110 US 516
and ...
"Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them." Miranda, supra.
Indeed, the very purpose for creating the state under the limitations of the constitution was to protect the rights of the people from intrusion, particularly by the forces of government.
So we can see that any attempt by the legislature to make the act of using the public highways as a matter of Right into a crime, is void upon its face.
Any person who claims his Right to travel upon the highways, and so exercises that Right, cannot be tried for a crime of doing so. And yet, this Freeman stands before this court today to answer charges for the "crime" of exercising his Right to Liberty.
As we have already shown, the term "drive" can only apply to those who are employed in the business of transportation for hire. It has been shown that freedom includes the Citnzen's Right to use the public highways in the ordinary course of life and business without license or regulation by the police powers of the state.
CONCLUSION
It is the duty of the court to recognize the substance of things and not the mere form.
"The courts are not bound by mere form, nor are they to be misled by mere pretenses. They are at liberty -- indeed they are under a solemn duty -- to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority. If, therefore, a statute purported to have been enacted to protect ... the public safety, has no real or substantial relation to those objects or is a palpable invasion of Rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution." Mulger vs. Kansas, 123 US 623, 661 and ...
"It is the duty of the courts to be watchful for the Constitutional rights of the citizen and against any stealthy encroachments thereon." Boyd vs. United States, 116 US 616
The courts are "duty bound" to recognize and stop the "stealthy encroachments" which have been made upon the Citizen's Right to travel and to use the roads to transport his property in the "ordinary course of life and business." (Hadfield, supra.)
Further, the court must recognize that the Right to travel is part of the Liberty of which a Citizen cannot be deprived without specific cause and without the "due process of law" guaranteed in the Fifth Amendment. (Kent, supra.)
The history of this "invasion" of the Citizen's Right to use the public highways shows clearly that the legislature simply found a heretofore untapped source of revenue, got greedy, and attempted to enforce a statute in an unconstitutional manner upon those free and natural individuals who have a Right to travel upon the highways. This was not attempted in an outright action, but in a slow, meticulous, calculated encroachment upon the Citizen's Right to travel.
This position must be accepted unless the prosecutor can show his authority for the position that the "use of the road in the ordinary course of life and business" is a privilege.
To rule in any other manner, without clear authority for an adverse ruling, will infringe upon fundamental and basic concepts of Constitutional law. This position, that a Right cannot be regulated under any guise, must be accepted without concern for the monetary loss of the state.
"Disobedience or evasion of a Constitutional Mandate cannot be tolerated, even though such disobedience may, at least temporarily, promote in some respects the best interests of the public."
Slote vs. Examination, 112 ALR 660 and ...
"Economic necessity cannot justify a disregard of Constitutional guarantee."
Riley vs. Carter, 79 ALR 1018;
16 Am.Jur. (2nd), Const. Law, Sect. 81 and ...
"Constitutional Rights cannot be denied simply because of hostility to their assertions and exercise; vindication of conceded Constitutional Rights cannot be made dependent upon any theory that it is less expensive to deny them than to afford them."
Watson vs. Memphis, 375 US 526
Therefore, the Court's decision in the instant case must be made without the issue of cost to the state being taken into consideration, as that issue is irrelevant. The state cannot lose money that it never had a right to demand from the "Sovereign People."
Finally, we come to the issue of "public policy." It could be argued that the "licensing scheme" of all persons is a matter of "public policy." However, if this argument is used, it too must fail, as:
"No public policy of a state can be allowed to override the positive guarantees of the U.S. Constitution." 16 Am.Jur. (2nd), Const. Law, Sect. 70
So even "public policy" cannot abrogate this Citizen's Right to travel and to use the public highways in the ordinary course of life and business.
Therefore, it must be concluded that:
"We have repeatedly held that the legislature may regulate the use of the highways for carrying on business for private gain and that such regulation is a valid exercise of the police power."
Northern Pacific R.R. Co., supra. and ...
"The act in question is a valid regulation, and as such is binding upon all who use the highway for the purpose of private gain." Ibid.
Any other construction of this statute would render it unconstitutional as applied to this Citizen or any Citizen. The Accused me, therefore moves this court to dismiss the charge against him, with prejudice and this cause be moved to the County Court of the county of Dallas Texas state to be heard by 12 true men for kidnapping and auto theft and Rights violations of me, .
Respectively submitted, this 2nd day of August 1999 by me
SIGN
post office of the States united
Garland, Texas state
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Free Born Right to Keep and Bear Arms
JUDICIAL NOTICE
John Doe CASE: MA93-35493-K
, Texas republic, U.S.A.
Non-resident alien to U.S. and Buck Act state
The State of Texas, vs. Dallas County Court #9
Frank Crowley Courts Building
John doe, 133 Industrial Blvd.
Dallas, Texas 75202
Judicial Notice Mandatory Rule 201 (d,e,f)
Affidavit in Support of the Free Born Right to Keep and Bear Arms
BE IT KNOWN TO ALL MEN, with Three Witnesses of Signing and This:
I.
(1) I, John Doe, Sui-Juris, and Sovereign Inhabitant of the Sovereign Republic of Texas, over the lawful age of twenty one (21) and of sound mind, am of the proper legal status and standing to make this affidavit. I am fully able to make this statement of facts as I have direct and personal knowledge to everything that I'm stating and that it's accurate and correct. I do Lawfully Affirm as follows this date:
WHEREFORE, I am a NATURAL BORN FREE adult inhabitant of the Texas republic by birth, thus American and am domiciled in the Texas republic; thankfully endowed by our Creator God with Unalienable Rights, some of which are enumerated in America's founding organic documents, which I have never with knowingly intelligent acts waived; and I freely choose to obey all American Law for the common good. I have reserved ALL my rights as a Common-Law Inhabitant as influenced greatly by the Law of God found in the Bible.
II.
1. The accused, having the belief that he may keep and bear arms, has studied court cases over the years that support such belief. Relying upon these court rulings, the accused claims he has an affirmative defense to the charge of unlawfully carrying a handgun on or about his person. VTCA Title 2 Sec. 8.03 says:
(6) It is an affirmative defense to prosecution that the actor reasonably believed the conduct charged did not constitute a crime and that he acted in reasonable reliance upon:
1. a written interpretation of the law contained in an opinion of a court of record or made by a public official charged by law with responsibility for interpreting the law in question.
2. One case that I have relied upon to form this belief reads:
The right of a citizen to bear arms, in the lawful defense of himself or the state, is absolute. He does not derive it from the state government, but directly from the sovereign convention of the people that framed the state government. It is one of the high powers delegated directly to the citizen, and is excepted out of the general powers of government. A law cannot be passed to infringe upon or impair it, because it is above the law, and independent of the lawmaking power. (Justice Oran M. Roberts in John Cockrun v. The State 24 Tex. 394 at 402, (1859).
3. The exemption of traveling (VTCA Title 10 Sec.46.03 (c)) has a broad interpretation and definition due the neglect of the Legislature in defining the act of traveling. The courts, by restricting the definition of traveling crossing county lines, changes the meaning and spirit of the law. The restriction also imposes unconstitutional restrictions upon the citizen due to unequal protection of the law and creates unequal application of the law. A person visiting Dallas County would be allowed more protection than a person who lived in that county. This restriction grants one man special privileges over another which outlaws the county inhabitant. Such interpretation would violate Article 1 Sec. 3 of the Texas Constitution which reads:
Sec 3. Equal Rights. All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.
4. Therefore, a prudent and reasonable person would conclude "traveling" must be broad in scope as the legislature intended. The accused relies upon White v. Beasley, 1 Barn. & Ald. 166, 171, the court ruled that ‘Traveling,' in a large sense, means going from one place or another." Another court ruled that To 'travel' is to pass or make journey from place to place, whether on foot, on horseback, or in any conveyance." Traveling" is "the act of making a journey; change of place; passage. Hendry v. Town of North Hampton, 56 A. 922, 924, 72 NJ 351, 64 L.R.A. 70, 101 Am. ST. Rep. 681. A prudent man reading the law, would conclude that he may carry weapon for protection of himself or the state walking in his driveway, down the street or from State to State.
5. Being that the Legislature failed to limit the definition of traveling, the following case must be applied this case: ‘Travel' has no precise or technical meaning, when used without limitation; but its primary and general import is to pass from one place to another, whether for pleasure, instruction, business, or health." L.B. Price Co. v. City of Atlanta , 31 S.E. 619, 623, 105 Ga. 358, citing Lockett v. State, 47 Ala. 42, 45.
6. As enumerated in Article I, Sec. 23 of the Texas Constitution, "Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State...." If the Citizen is not permitted to carry a weapon outside his home, then he would be denied the right to defend himself or the state for no one knows when or where criminals strike. Since the beginning of time, man had to leave his home to hunt for food to provide for his family. To stay at home would mean death to the family. Today, men must also leave the home to provide for their families. Having the right to defend himself in his home, it is only natural he has this same free born right as leaves his home. This right cannot be limited by where he goes, the route he takes, or even if he makes the same route each day. Why would one man who goes to and from work everyday be denied the right while one who goes different places be permitted to do so? Making such a demand would in effect outlaw the former man. This would be a violation of Article 1, Sec. 19 and Sec. 20 of the Texas Constitution.
7. If the legislature had defined traveling to exclude inter-county travelers, doing so would unconstitutionally deny the county bound citizen the right to bear arms for protection of himself or the state enumerated in Article 1, Sec.23 Texas Constitution, because the only limitation granted by the People to lawmakers to regulate the wearing of arms in the view of public safety. The crime rate has not diminished since the enactment of Sec.46.02, therefore negating and making void from inception of passing Sec.46.02 (see Marbury v. Madison 5 US Cranch) 137, 174, 176, (1803) and Norton v. Shelby County, 118 US 425 p.442).
8. The court or legislature cannot place restrictions on the place or time of bearing arms because the Citizen has to be prepared at all times. The court said:
To acquire this skill and this familiarity [in the use of arms], the words "bear arms" must include the right to load them and shoot them and use them as such things are ordinarily used, so that the "people" will be fitted for defending the state when its need demand;... Any restriction which interferes with this is void, whether it relates to the carrying them about the person, or to the place or time of bearing them. Hill v. State of Georgia, 53 Georgia 472, 480 (1874).
9. For the courts of Texas to restrict the definition of 'traveling' to the physical crossing of county lines would prohibit the free exercise of the right to bear arms to an entire population who move within their respective counties while giving a special privilege to those who move greater distances across county lines. As a matter fact, the Supreme Court of Arkansas wrote:
The question is, can the Legislature regulate the mode of carrying any arms which the citizens have the constitutional right to keep and bear for their common defense? We have decided that it may, to some extent, which means that it may, in a reasonable manner, so as, in effect, not to nullify the right, nor materially embarrass its exercise. Haile v State, 38 Ark. 564, 565-66 (1882).
10. The traveling restriction mentioned would not only destroy the right and render the arms of the citizens useless, but it would also interfere with the calling up of the militia for defense of the state. How would a Citizen in Dallas be able to protect Dallas County if he had to cross a county line first to carry his gun. Since arms must always be with him, the restriction of crossing county lines is clearly unconstitutional. This court said the following:
We do not desire to be understood as maintaining, that in regulating the manner of bearing arms, the authority of the Legislature has no other limit than its own discretion. A statute which, under the pretense of regulating, amounts to the destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defense, would be clearly unconstitutional. State v. Reid, 1 Ala. 612, 616-17 (1840). State v. Wilforth, 74 Mo. 528, 530 (1881). State v. Danson, 159 S.E.2d 1, 11 (1968).
43. The Legislature or courts of Texas cannot restrict the carrying of arms in a vehicle. The Colorado Supreme Court held an ordinance void that effectually "prohibited individuals from transporting guns to and from such places" as gun shops; and which made it "unlawful for a person to possess a firearm in a vehicle or in a place of business for the purpose of self-defense." City of Lakewood v. Pillow; 180 Colo. 20, 501 P.2d 744,745 (1972).
11. No law may completely prohibit any right held by the people. By redefining the meaning of "travel the crossing of county lines and thereby restricting the Citizen who does not travel across county lines from exercising their free born right to keep and bear arms would completely prohibit his right which is against the genius of a free government. An example of this situation was in which a New Mexico ordinance that prohibit carrying "deadly weapons, concealed or otherwise." The deadly weapons it listed were, all kinds of guns, pistols, knives, slings shots, metallic knuckles, concealed rocks, and other weapons." The Court of Appeals of New Mexico found this:
As applied to arms, other than those concealed, the ordinance under consideration purports to completely prohibit the right to bear arms."
It is our opinion that an ordinance may not deny the people the constitutionally guaranteed right to bear arms, and to that extent the ordinance under consideration is void. City of Las Vegas v. Moberg, 485 P.2d 737, 738; 82 N.M. 626 (1971).
III.
1. The early settlers brought to America with them the militia idea which required, according to Adam Smith, "all the citizens of the military age, or a certain number of them, to join in some measure, the trade of soldier to whatever other trade or profession they happen to carry on" Adam Smith, the Wealth of Nations, (N. -1937) p.660. The court ruled concerning the personal right to bear arms saying:
In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligations of all adult male inhabitants to possess arms,..to cooperate in the work of defense. United States v. Miller; 307 U.S. 174, 179-80 (1938).
The Supreme Court of Georgia had described the militia in a similar manner:
A well regulated militia may fairly mean-- the arms-bearing population of the state, organized under the law, in possession of weapons for defending the state, and accustomed to their use." Hill v. State, 53 Georgia 472, 475 (1874).
I am one who is a part of the arms-bearing population" and therefore must take on the duty of being constantly prepared to defend the state including my fellow citizen from the criminal who acts against the peace and dignity the state.
2. The keeping up of the militia in every state is still required as was during the period of the Articles of Confederation. These articles made the following provision regarding militias:
but every State shall always keep up a well regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use... and a proper quantity of arms, ammunition....
Therefore, I must do my duty to always keep well armed and prepared in the use of those arms in order to obey the natural law of the united Sovereign States.
3. The militia of each state is composed of all the able-bodied people of the arms bearing age. The Constitution of Virginia (1776) reads:
Sec. 13. That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free State.
One can see that the militia was and is still made up of the Citizens of each state, county, or community. I believe that I am one of those who must exercise the duty of reserve militia service.
4. If I am to be a free born and independent Citizen, such status would involve the right to bear arms. The court ruled in Bliss v. Commonwealth, 2 Little (12 Ky) 90, 92 (1822), that:
The right [of the citizens to bear arms] existed at the adoption of the constitution; it had then no limits short of the moral power of the citizens to exercise it, and it in fact consisted in nothing else but in the liberty of the citizen to bear arms.
5. I am a member of the ready/reserve militia of this state as the law states:
Art. 5765. The militia of this State shall be divided into two (2) classes, the active and reserve militia.... the reserve militia shall consist of all those liable to service in the militia, but not serving in the Texas National Guard or the Texas State Guard. Title 94 VTCA.
Since I am not a member of either of the two latter organizations, I must be one who is liable for service. Look to Article 5766 of the same title, it reads:
All able-bodied citizens, male and female... shall constitute the militia and be subject to military duty.
6. Since I am able-bodied," I am subject to duty in the Texas militia and must be ready with arms to assist law-enforcement, the governor, and sheriff in carrying out the laws of this state, resist rebellious activity, and protect the people of this state. It would be imprudent and foolish to travel back home to arm myself if called up to assist in these matters. Therefore, I must be armed at all times for one does not know when evil strikes. For example, one may remember the incident taking place at a Luby's restaurant in Kileen, Texas. One man, trained to protect himself, could have terminated the assailant before any innocent blood was shed. Since law-enforcement, Governor, legislature, and judges routinely punish the honest people from carrying arms, blood in Kileen, Texas must cover these public servants' hands. As a matter of fact, under Articles 2.14, 8.01, and 8.05 of the Code of Criminal Procedures, an officer is authorized to call upon Citizens of the county to help serve process or repel insurrections. I must be armed at all times in order to assist such peace officer in his duties lest I be found guilty of insurrection under Article 2.15 of the same code.
IV.
1. My forefathers enjoyed the God-given natural free born unalienable right to bear arms in their defense of their state being protected by the Constitution of the United States of America and by their respective constitutions. Unless there has been a national/state emergency which would suspend such natural right, then I have the same right to bear arms. If such right exists under the organic law of this land then it clearly cannot be abrogated or impaired by a legislative body nor the courts.
2. As a matter of fact, my forefathers in the colony of New Plymouth were required to keep and bear arms. It is enacted by the court that no servant coming out of his time, or other single person, be suffered to keep house or be for him or themselves till such time as he or they be competently provided for of arms and ammunition according to the order of the colonies. W.K. Kavenagh, ed., Foundations of Colonial America, Vol. 1 (N.Y. Chelsea House Pub., 1973), p. 405.
The 1640 militia law of New Plymouth provided:
That the inhabitants of every town within the government fit and able to bear arms be trained at least 6 times in the year. W. Brigham, The Compact... of New Plymouth, p. 31 (Boston, 1836)
3. The colonists were even required to bear arms on Sunday while at church. In 1706 an act was passed by the Massachusetts Colony which stated:
[Sect. 3] And that all male persons in the frontiers capable of bearing arms, shall carry their arms with them and be well provided for their defense when they go to public worship on the Lord's day, or other times, and also when they go abroad to work, on pain of forfeiting five shillings for each neglect, to be to the use of the town towards the procuring of arms or ammunition. The Acts and Resolves, of the Province of the Massachusetts Bay, Vol. I, p. 586
4. The events of the American Revolution influenced the right of the people to keep and bear arms. Sir William Blackstone, one of the most authoritative commentators on the common law, wrote:
The fifth and last auxiliary right of the subject, ... is that of having arms for their defense, suitable to their condition and degree... Which is also... of the natural right of resistance and self-preservation. Wm. Blackstone, Commentaries on the Law of England Vol. I, at 144.
If the subjects of the King had the right to keep and bear arms what more right would the principal potentates who formed this state and united States of America?
5. The People of this state have the express right to defend themselves as enumerated in Article I, Sec. 23 of the Texas Constitution just as the colonists enjoyed as declared in Declaration of the Causes and Necessity of Taking up Arms on July 6, 1775 which stated in part:
In our own native land, in the defense of the freedom that is our birthright, and which we ever enjoyed till the late violation of it-for the protection of our property, acquired solely by the honest industry of our fore-fathers and ourselves, against violence actually offered, we have taken up arms. We shall lay them down when hostilities shall cease on the part of the aggressors, and all danger of their being renewed shall be removed, and not before. Documents Illustrative of the Formation of the American States, 69th Congress, 1st Sess., House Doc. No. 398.
The colonists here were not only claiming a right to bear arms to protect their freedom and property, but a right to take up arms against the established government when it becomes destructive to these ends.
6. With the signing of the Declaration of Independence the colonies declared that they were Free Independent States." This declaration secured all of the "unalienable fights" that all free men possessed, and cannot be doubted that the right to keep and bear arms was among those rights. The spirit of this document was proclaimed by James Otis in 1764, who said:
And he that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind,... is not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country.
Therefore a prudent man who remembers history would be a fool to curtail his duty to protect himself or the state.
V.
1. As a follower of the one living God, Yahvahshua (Christ Jesus), I am instructed by Scripture and believe therefore must act upon the Word to show obedience to God in the act of self defense and protection of our fellow man as I am my brother's keeper. In Chapter 14 of the Book of Genesis, Lot was rescued from his captors. Abram armed himself and three hundred and eighteen (318) of his servants and pursued the captors into Dan at night and smote them. Some Christians are taught that they must turn the other cheek but as Abram returned and was met by Melchizedek, the priest of the most high God, who blessed Abram saying:
19... Blessed be Abram of the most high God, possessor of heaven and earth.
20 And blessed be the most high God, which has delivered thine enemies into thy hand.
2. These verses clearly show that God approved of Abram's actions. This would have been a perfect opportunity for God to rebuke Abram for taking up arms against these men instead of making a peace treaty with them; Rather God had approved of Abraham taking up arms against these men.
3. If I fail to defend myself, my family or the state I would sin against God. A criminal is acting in against God as well as against the peace and dignity of the State. As the men of the tribes of Gad and Reuben were shirking their national duty to take up arms and prepare to fight in war (Numbers 32:6-7), Moses warned, "...if ye will not do so, behold, ye have sinned against the Lord; and be sure your sin will find you out" (Verse 23).
4. Christ even told his followers to buy swords for their protection even if they had to sell their garment to afford one, he said:
Then said he unto them, But now, he that has a purse, let him take it, and likewise his scrip; and he that has no sword, let him sell his garment, and buy one. Luke 22:36.
5. In the eleventh chapter of Luke, Jesus gives an example of the importance of being armed in defense of one’s home:
When a strong man fully armed guards his own homestead, his possessions are undisturbed. Luke 11:21.
6. I must fight for my family as God commands in Nehemiah 4:14:
Be not ye afraid of them [our enemies]: remember the Lord, which is great and terrible, and fight for your brethren, your sons, and your daughters, your wives, and your houses.
7. From these verses the Lord has given to me, I must obey. In order to obey the Lord, I must carry a gun at all times, for no one knows where a criminal will strike. Usually a criminal avoids committing crimes in front of police officers. Since the percentage is high that a criminal does his deeds in the absence of the police, I must either always travel in the presence of a police officer or arm myself at all times.
VI.
1. During the time of the drafting of the Constitution for the united States of America, the people were concerned about the right of the people to bear arms in order to keep the tyranny of rulers in check. Judge Cooley has this to say:
It [the 2nd Amendment] was adopted, with some modifications and enlargement, from the English Bill of Rights of 1688, where it stood as a protest against arbitrary action of the late dynasty in disarming the people and as a pledge of the new rulers, that this tyrannical action should cease. The right declared was meant to be a strong moral check against the usurpation of arbitrary power by rulers, and as a necessary and efficient means of regaining rights temporarily overturned by usurpation...
It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by intent... If the right were limited to those enrolled, the purpose of the guarantee might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose. Thomas M. Cooley, Principles of Constitutional Law, p.270-71.
As one can see, no Citizen needs permission from his public servants in government to keep and bear arms.
VII.
1. The right of the Sovereign to protect his own property is as old as Biblical times and has been codified in today's Texas Penal Code stating:
Sec.9.42. Deadly Force to Protect Property. A person is justified in using deadly force against another to protect land or tangible, movable property:
(1) if he would be justified in using force against the other under Section 9.41 of this code; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.
2. In order for the Sovereign to protect his private property which includes but not limited to his time, automobile, family, friends, home, etc., he must be armed at all times. Any restriction by government servants would cause a neglect of the Sovereign's duty to protect such property.
VIII.
1. Since the State Constitutions protect the free born rights of the Sovereign, let us look at some original state constitutions concerning the right to bear arms:
State of New Hampshire
Ratification of June 21, 1788
Congress shall never disarm any citizen unless such as are or have been in Actual Rebellion.
State of Virginia
Ratification of June 27, 1788
Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed the body of the people trained to arms is the proper, natural and safe defence of a free State.
State of New York
Ratification of July 26, 1788
That the People have a right to keep and bear arms; that a well regulated Militia composed the body of the people trained to arms is the proper, natural and safe defense of a free state.
2. From these constitutions, one can see that the People make up the Militia just as Title 94 Section 5765 and 5766 of the Texas Statutes dictates. I am one who makes up the Texas ready Militia and therefore must be armed at all times to protect myself or the state.
3. Some courts have described arms as just about anything that can be used for offensive or defensive uses. The court ruled:
Again, the term arms, in its most comprehensive signification, probably includes every description of weapon or thing which may be used offensively or defensively, and in the most restricted sense, includes guns or firearms of every description, as well as powder, lead, and flints, and such other things as are necessarily used in loading and discharging them, so as to render them effective as instruments of offence or defense, and without which their efficiency for these purposes would be greatly diminished, if not destroyed. The State v. Buzzard, 4 Ark. Rep. 18 ,21-22 (1842).
Here we see that any gun which can be used for defense is lawful as an arm.
4. As a member of the Texas state ready militia, my free born right to bear arms is a political right while the free born right to keep arms is an individual right. This court had the following to say:
Bearing arms for the common defense may well be held to be political right, or for the protection and maintenance of such rights, intended to be guaranteed; but the right to keep them, with all that is implied fairly as an incident to this right, is a private individual right, guaranteed to the citizen, not the soldier. Andrews v. The State, 3 Heiskell (50 Tenn.) 165, 182 (1871).
5. It would appear that a primary reason that the right to keep and bear arms is for the Citizen’s common defense but the right also includes the Citizen's right for self-defense. This court said:
The protection of the Constitutions [to keep and bear arms] is not limited to militiamen, nor military purposes, in terms, but extends to "every person" to bear arms for the "defense of himself as well as of the state. People v. Brown, 235 N.W. 245, 246; 253 Mich. 537 (1931).
6. Remembering that Texans enjoy the rights of other State free born Citizens, the Florida Supreme Court ruled that the constitutional guarantee to bear arms was intended to secure to the people the right to carry weapons for their protection." Davis v. State, 146 So. 2d 892, 893-94 (1962). See also: Carlton v. State, 63 Fla. 1; 58 ???? 486, 488 (1912).
7. In Oregon, a right to possess certain arms for defense of person and property, was noted by its Supreme Court in two cases, State v. Kessler, 614 P. 2d 94, 100; State v. Blocker, 291 Ore. 255 (1981). It was held in Missouri that "Pistols are not contraband," and under the State Constitution "every citizen has the right to keep and bear arms in defense of his home, person, and property" Taylor v. McNeal, 523 S.W. 2d 148, 150 (1975). Therefore one can see that I have the right to carry a pistol for my defense and to defend the state.
IX.
1. Just as the Texas Constitution at Article 1 Sec. 23 gives the legislature the right to regulate the wearing of arms to prevent crime, so was the Tennessee legislature as enumerated in the State Constitution of Tennessee in 1870. The Supreme Court however, did not agree with the argument that the Legislature is totally free to prohibit all arms under all cases:
It is insisted by the Attorney General, as we understand the argument, that this clause confers power on the Legislature to prohibit absolutely the wearing of all and every kind of arms, under all circumstances. To this we can not give our assent. The power to regulate, does not fairly mean the power to prohibit; to the contrary, to regulate, necessarily involves the existence of the thing or act to be regulated. Andrews v. The State; 3 Heinkell (50 Tenn.) 165, 180-81 (1871).
In fact the Michigan State Supreme Court held that the Legislature has no power to constitute it a crime for a person, alien or citizen, to possess a revolver for the legitimate defense of himself and his property." People v. Zerillo, ??? 189 N.W. 927, 928; 219 Mich. 635 (1922).
2. As one can see, the ordinance entirely prohibited every gun. This definition of 'travel' mentioned above has the same result of denying the right to some Citizens to bear arms solely on where they travel. This 'travel’ restriction must be void.
3. The Texas Constitution gives the Legislature the right to regulate the wearing of arms in the view of public safety. The legislature has no right to regulate the right to such a point as to prohibit the exercise thereof. The Idaho State Supreme Court ruled:
Under these constitutional provisions, the legislature has no power to prohibit a citizen from bearing arms in any portion of the state of Idaho, whether within or without the corporate limits of cities, towns, and villages. The legislature may, as expressly provided in our state constitution, regulate the exercise of this right, but may not prohibit it. A statute prohibiting the carrying of concealed deadly weapons would be a proper exercise of the police power of the state. But the statute in question does not prohibit the carrying of weapons concealed,... but prohibits the carrying of them in any manner in cities, towns, and villages. We are compelled to hold this statute void. In re Brickey, 70 Pac. 609, 8 Idaho 597 (1902).
4. Being that the Texas Legislature has the power to regulate the wearing of arms, it does not have power to prohibit the wearing of arms as stated in the case of Andrews v. The State, supra, "the power to regulate does not fairly mean the power to prohibit." 3 Heiskell (50 Tenn.) 165, 181 (1871).
X.
1. Being the four county area coordinator (Dallas, Kaufman, Rockwall, and Henderson) for the Texas state ready militia, I have to train the men and women how to care for themselves in the case of any emergency. In Florida, after the Hurricanes hit, men strapped on guns to protect what property and life was left standing. Tornadoes are frequent in Texas, therefore the militia in these counties must be ready to assist law-enforcement in keeping law and order, rescue missions, clean-up, etc. If Dallas county was to erupt into a Los Angeles type riot, a prudent man knows the police would not be able to protect him or his family, for they cannot do so presently in time of peace. Ninety-five percent (95%) of the time the police officer is responding to the aftermath of a crisis. He/she cannot be at all places at all times. For example, on 20 April 1961, Josephine M. Keane, a teacher in the Chicago City public Schools was assaulted and killed on school premises by a student enrolled in the school. Keane's family sued the City of Chicago claiming that:
"the City was negligent in failing to assign police protection to the school, although it knew or should have known that failure to provide this protection would result in harm to persons lawfully on the premises (because) it knew or should have known of the dangerous condition then existing at the school."
2. The Appeals Court affirmed the judgement of the Circuit Court of Cook County. The Presiding Justice Burke of the Appeals Court held that, Failure on the part of a municipality to exercise a government function does not, without more, expose the municipality to liability. Justice Burke went on to say that:
To hold that under the circumstances alleged in the complaint the City owed a 'special duty' to Mrs. Keane for the safety and well-being of her person would impose an all but impossible burden upon the City, considering the numerous police, fire, housing and other laws, ordinances and regulation in force. Keane v. City of Chicago, 98 Ill. App 2d 460 (1968).
The North Carolina Court of Appeals went as far as to say:
Our law is that in the absence of a special relationship, such as exists when a victim is in custody or the police have promised to protect a particular person, law enforcement agencies and personnel have no duty to protect individuals from the criminal acts of others....Lynch v. N.C. Dept of Justice, 376 S.E. 2nd 247 (N.C. App. 1989)
3. The bottom line is my life is in my own hands. If I am to properly protect myself, family or the state, I must be armed at all times. The first thing a criminal will take notice is whether a policeman is present while 'sizing-up' the positive attributes of a possible crime act/scene. Most criminals are not stupid enough to commit a crime in the presence of an officer. Therefore, men must be able to deter crime by strapping on a gun since police are not omnipresent.
4. Since no one chooses to be in a dangerous position, and is usually attacked at the whim of the assailant, this case would protect such accused:
In order to authorize the carrying by one of a pistol on his person (Sec.46.03), the danger of an attack on him had to be so imminent and threatening as not to admit of the arrest upon legal process of the party about to attack him. O'Neal v. State, (1893) 32 Cr.R. 42, 22 S.W. 25; Thompson v. State (1905) 48 Cr.R. 146, 86 S.W. 1033.
5. If I am attacked in a threatening manner as to cause death or imminent bodily injury, would it be reasonable to travel back home to arm myself or even cross county lines? Such reasoning is ridiculous. Since it is lawful to protect yourself with arms if attacked, then would the time prior to the attack be an unlawful act of arming oneself? I believe not. If it were lawful to defend myself at the time of attack, it would be lawful to arm myself prior to attack. Therefore, to exercise my free born right of self-protection, I must be armed at all times.
XI.
1. The exception at Sec.46.03 (2) applies to me since I was on my own premises. The section reads:
(a) The provisions of Section 46.02 of this code do not apply to a person:
(2) on his own premises or premises under his control....
In the case Howe v. State, the court ruled that 'premises’ includes not only real property but an automobile. The court ruled saying:
We are of the opinion that it was not the intention of the Legislature, by the use of the word "premises", to limit the authority of officers to search for intoxicating liquor to real property but that it was the intention of the Legislature to authorize a search of any property... whether such property is a building, an automobile, or other personal property. 181 P.2d 571.
2. The word premises, not being defined in the Texas statutes must be construed to mean its most broad and liberal definition. This case does so saying:
The word premises" has a broad and varied meaning and may include two or more enclosures. State v. Myers, Mo., 147 S.W. 2d 444, 447
3. Therefore, if a handgun was stored anywhere in my automobile, it was properly and lawfully on premises and therefore must deny conviction due to the exception of Sec. 46.03(2) cited above.
From my earliest years, I have known that I may keep and bear arms m my lawful defense. I concluded this meant everywhere I went, for I knew I was not the one who chooses where or when I might be attacked. The natural free born right of self defense must include the use of arms. From these cases which have solidified my beliefs, I use them today in defense of the charges of unlawful carrying of a handgun on or about my person because I firmly believe that it is not a crime to do so. Again, I rely upon the spirit of the founding fathers and the cases cited above for justification of my alleged actions.
FURTHER AFFIANT SAITH NAUGHT.
Signed this ___ day of ___, 2001 _________________________
And witnessed this __ day of _____, 2001 by these three witnesses:
Witness Witness Witness
-- Following is the US Code Definition of Militia
CITE
10 USC Sec. 311
EXPCITE
TITLE 10
Subtitle A
PART I
CHAPTER 13
HEAD
Sec. 311. Militia: composition and classes
STATUTE
(a) The militia of the United States consists of all ablebodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are commissioned officers of the National Guard.
(b) The classes of the militia are
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia.
SOURCE
(Aug. 10, 1956, ch. 1041, 70A Stat. 14; Sept. 2, 1958, Pub. L.
85 861, Sec. 1(7), 72 Stat. 1439.)
MISC1
Historical and Revision Notes
1956 Act
Revised section Source (U.S. Code) Source (Statutes at
Large)
311(a) 32:1 (less last 19 words).
June 3, 1916, ch.134, Sec. 57, 39 Stat. 197; June 28, 1947, ch. 162, Sec. 7 (as applicable to Sec. 57 of the Act of June 3, 1916, ch. 134), 61 Stat. 192.
311(b) 32:1 (last 19 words).
In subsection (a), the words 'who have made a declaration of
intention' are substituted for the words 'who have or shall have
declared their intention'. The words 'at least 17 years of age and
* * * under 45 years of age' are substituted for the words 'who
shall be more than seventeen years of age and * * * not more than
fortyfive years of age'. The words 'except as provided in section
313 of title 32' are substituted for the words 'except as
hereinafter provided', to make explicit the exception as to maximum
age.
In subsection (b), the words 'The organized militia, which
consists of the National Guard and the Naval Militia' are
substituted for the words 'the National Guard, the Naval Militia',
since the National Guard and the Naval Militia constitute the
organized militia.
1958 Act
Revised section Source (U.S. Code) Source (Statutes at
Large)
311(a) 32 App.:1. July 30, 1956, ch.
789, Sec. 1, 70 Stat. 729.
The words 'appointed as . . . under section 4 of this title' are
omitted as surplusage.
AMENDMENTS
1958 Subsec. (a). Pub. L. 85861 included female citizens of
the United States who are commissioned officers of the National
Guard.
CROSS REFERENCES
Congressional power to provide for organization, equipment,
discipline, and government of Militia, see Const. Art. 1, Sec. 8,
cl. 16.
Declaration of intention to become a citizen of the United
States, see section 1445 of Title 8, Aliens and Nationality.
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