New Second Amendment Case as a Human Rights Case

Discussion in 'The Constitutional & RKBA Forum' started by donhamrick, Nov 3, 2008.

  1. donhamrick

    donhamrick New Member

    Nov 3, 2008


    I am the first person to use Heller as evidence in a human rights case at the Inter-American Commission on Human Rights in defense of the Second Amendment as a human right at the international level.


    TASK (1): Review my 600-page lawsuit at [[DOT]pdf]

    TASK (2): Generate grassroots discussions on numerous an this and other online firearms and gun rights discussion forums promoting the merits of my case. Encourage readers to call the NRA to take up my Second Amendment case. I need publicity and help anywhere I can get it.

    TASK (3): Call, write, email, and/or fax the NRA and ask them to help me with my Second Amendment cases listed below.
    CASE (1): Don Hamrick v. President Bush, U.S. District Court for DC, No. 08-1698-EGS, filed October 6, 2008. Second Amendment case for the right to openly keep and bear arms in intrastate, interstate, and maritime travel, in the form of a "National Open Carry Handgun" on my Merchant Mariner's Document (ID card) from a U.S. merchant seaman's point of view. See pages 1 - 4 (after the Table of Contents) for the link to my human rights petition at the Inter-American Commission on Human Rights.

    CASE (2): Don Hamrick v. United States [download257.mediafire[DOT]com/mydpdvgysmdg/jkr3mqi4jho/PETITION_IACHR[DOT]pdf], Inter-American Commission on Human Rights, Petition No. 1142-06 (international human rights complaint is still active pending admissibility determination. For more information contact Kevin Alan Baumert, Assist Legal Advisor for Human Rights and Refugee Affairs (L/HRR) 3422 HST; Office of the Legal Advisor (L); U.S. Department of State; 2201 C Street NW; Washington, DC 20520; Telephone No. (202) 647-2773.

    My human rights petition impacts Jessica Lenahan (formerly Gonzales) human rights complaint Jessica Gonzales v. United States, Petition No. 1490-05 [3w[DOT]iachr[DOT]org/annualrep/2007eng/USA1490.05eng[DOT]htm] in the matter of Town of Castle Rock, Colorado v. Gonzales, individually and a next best friend of her deceased minor children, Gonzales et al. 545 U.S. 748 (June 27, 2005). [caselaw.lp.findlaw[DOT]com/scripts/] See also Cornell University Law School. [3w[DOT][DOT]html]

    My blog: American Common Defence Review

    Excerpt from my letter to the
    Inter-American Commission on Human Rights re: HELLER:


    U.S. Supreme Court Ruling on the Second Amendment as Being an Individual Right has Become "jus cogens" For A New Peremptory Norm of General International Law
    Petition No. 1142-06

    DATED: July 4, 2008 [INDEPENDENCE DAY]

    Paolo G. Carozza
    Inter-American Commission on Human Rights
    1889 F Street, N.W.
    Washington, D.C., 20006

    Dear Mr. Carozza,

    Please let the attached U.S. Supreme Court's District of Columbia, et al v. Heller opinion be entered into the record as evidence vindicating my human rights complaint against the United States in Petition No. 1142-06. The Heller opinion also affects Jessica Gonzales (now Lenahan) human rights complaint against the United States, Petition No. 1490-05.

    Citing the VIENNA CONVENTION ON THE LAW OF TREATIES 1969 and the VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS 1986 it is my claim that the U.S. Supreme Court's Heller opinion on the Second Amendment includes and protects the right of armed self-defense as part of the "right to life" provision in international human rights treaties and presents a "fundamental change of circumstances" (Article 62 of both Vienna Conventions) for the "emergence of a new peremptory norm of general international law" ("jus cogens"), (Article 64 of both Vienna Conventions) for the "right to life" provisions in international human rights treaties through the treaty clause in Article II, Section 2 of the CONSTITUTION OF THE UNITED STATES.

    The Heller opinion also impacts the AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN under Articles I, II, IV, V, VI, VII, VIII, IX, gun culture under Articles XIII, XV, XVII, XVIII, XXI, XXII, XXIII, XXIV, XXV, XXVI, and duties to society under Article XXIX to which the INTER-AMERICAN COMMISSION ON HUMAN RIGHTS and the INTER-AMERICAN COURT ON HUMAN RIGHTS have jurisdiction.

    The Heller opinion has two quotable points:

    Page 9:

    "Keep arms" was simply a common way of referring to possessing arms, for militiamen and "everyone else." [Footnote 7: . . . J. Ayliffe, A NEW PANDECT OF ROMAN CIVIL LAW 195 (1734) ("Yet a Person might keep Arms in his House, or on his Estate, on the Account of Hunting, Navigation, Travelling, and on the Score of Selling them in the way of Trade or Commerce, or such Arms as accrued to him by way of Inheritance"); . . .]

    Page 46:

    "As the Constitution of the United States, and the constitutions of several of the states, in terms more or less comprehensive, declare the right of the people to keep and bear arms, it has been a subject of grave discussion, in some of the state courts, whether a statute prohibiting persons, when not on a journey, or as travellers, from wearing or carrying concealed weapons, be constitutional. There has been a great difference of opinion on the question." 2 J. Kent, Commentaries on American Law *340, n. 2 (O. Holmes ed., 12th ed. 1873).

    In the Page 9 quotation I construe the term "everyone else" to include merchant seamen in interstate and maritime travel as supported by the terms "Navigation" and "Traveling" in Scalia's Footnote 7.

    Scalia's Page 46 quotation implies that "open carry in interstate and maritime travel" is an "absolute or near-absolute right" not subject to any regulation at all. This inference needs clarification by judicial challenge.

    The federal statute, 18 U.S.C. § 926A - INTERSTATE TRANSPORTATION OF FIREARMS, (nearly identical in effect to the strickened DC gun control law), is now ready for such a judicial challenge.​

    NOTE: April 19, 2002 [Patriots Day] Letter from the U.S. Coast Guard stating: [download257.mediafire[DOT]com/atwnpzyn4ndg/jnu9egz43d4/CG_LETTER_APR_19_02[DOT]pdf]

    "As you have noted, the laws and regulations do not provide for such an endorsement nor do they prohibit it. Instead, the matter is left to my judgment. My decision, after considering all the material you have submitted, is that it would not be in the best interest of marine safety or security to initiate the endorsement you have applied for."

    When there are no federal laws or regulations concerning the Second Amendment rights of U.S. merchant seamen in intrastate, interstate or maritime travel as admitted by the U.S. Coast Guard is the Coast Guard obligated by the Oath of Office to support and defend the Constitution of the United States also obligated to support and defend the Second Amendment rights of U.S. merchant seaman? Did the U.S. Coast Guard have the discretion to use personal judgment (i.e., political bias?) to deny my Second Amendment application when there were no federal laws or regulations to base the denial upon or was the Coast Guard required to grant my application as a ministerial duty under the Oath of Office's obligation to support and defend the Second Amendment when there were no federal laws or regulations to rely upon?

    NOTE: October 2, 2002 Letter from NRA Attorney Robert Dowlut stating: [download257.mediafire[DOT]com/djyynytcqgig/jryuhznyjbo/NRA_ROBERT_DOWLUT_2002_REFUSAL_LETTER[DOT]pdf]

    "We decline your invitation to become involved in your pro se litigation."
    That was then, this is now!


    In my original lawsuit, Hamrick v. President Bush, U.S. District Court for DC, No. 02-1435, Judge Ellen Segal Huvelle dismissed my case with prejudice:

    On July 18, 2002, petitioner filed a pro se Petition for A Writ of Mandamus, requesting this Court, inter alia, to compel the President of the United States to protect the constitutional rights of sailors in the U.S. Merchant Marine to carry handguns while ashore in the United States, to strike various federal statutes and regulations restricting individuals' right to transport firearms across state lines on the grounds that they violate the Second, Ninth, and Thirteenth Amendments of the U.S. Constitution, and to compel the U.S. Coast Guard to approve petitioner's application for "National Open Carry Handgun" endorsement on his Merchant Marine document. Petitioner has not served a complaint and summons on any of the parties he has named as respondents, seeking instead to use a petition-show cause order approach for the resolution of his grievances. Regardless of whether such an approach is appropriate in light of Rule 81(b) of the Federal Rules of Civil Procedure, it is clear that petitioner cannot satisfy the stringent standards for mandamus relief and therefore that his petition must be dismissed.

    The remedy of mandamus is an extraordinary one, and is reserved for extraordinary situations. See Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 289 (1988). Under well-established Circuit law, mandamus relief is available only if three conditions are met: (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to the plaintiff. Power v. Barnhart, 292 F.3d 781, 784 (D.C. Cir. 2002); see also In re Bluewater Network, 234 F.3d 1305, 1315 (D.C. Cir. 2000) (mandamus issued "only for the most transparent violations of a clear duty to act"). The present petition falls far short of satisfying these stringent requirements.

    The asserted legal bases for the relief sought by petitioner are the Second, Ninth, and Thirteenth Amendments of the Constitution, which, he claims, guarantee the right to carry firearms openly and without a license in interstate and intrastate travel. Petitioner argues that the Second Amendment's "right of the people to keep and bear arms" renders invalid any federal or state law restricting what he calls "National Open Carry Handgun" and requires the President and the Coast Guard to take the actions he has demanded. Moreover, according to petitioner, federal and state gun control laws create a form of "legislated slavery" in violation of the Thirteenth Amendment.

    Taking the latter claim first, no court has ever so much as suggested that the Thirteenth Amendment confers any right to bear arms, and it is entirely fanciful to suggest that its prohibition of involuntary servitude somehow unambiguously requires the overturning of a whole variety of gun control legislation. As for the Second Amendment, while it is true that the precise meaning of this provision continues to be in dispute in both judicial and academic circles, c.f. United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), the very existence and intensity of that controversy make mandamus relief a decidedly inappropriate vehicle for fulfilling petitioner's demands. Mandamus is reserved for circumstances in which the claimant's entitlement to relief and the defendant's obligation to provide such relief are unambiguous and undebatable. The Second Amendment simply offers no such clarity.

    Moreover, the established law on this subject hardly supports petitioner's cause. In United States v. Miller, 307 U.S. 174, 178 (1939), the Supreme Court found that "absent some reasonable relationship to the preservation or efficiency of a well regulated militia," the possession of a weapon (a short-barreled shotgun) could be proscribed without running afoul of the Second Amendment. Miller remains the most authoritative modern pronouncement on the amendment's meaning and its conclusion that the right to bear arms is limited by the needs of an organized militia has subsequently been echoed by the Supreme Court and followed in this and other circuits. See United States v. Lewis, 445 U.S. 55, 65 n.8 (1980); Fraternal Order of Police v. United States, 173 F.3d 898, 905-06 (D.C. Cir. 1999); accord United States v. Haney, 264 F.3d 1161, 1165 (10th Cir. 2001) (holding that "a federal criminal gun control law does not violate the Second Amendment unless it impairs the state's ability to maintain a well-regulated militia"). Under this interpretation, petitioner's claims appear largely without merit.

    In sum, given the breadth of petitioner's demands and the narrowness of the constitutional provision that he relies on to justify those demands – more specifically, the lack of apparent connection between his right to keep and bear an unlicenced firearm and the needs of any organized militia – petitioner can establish neither that he has a clear right to relief nor that any of the named respondents has a clear duty to act. However the Second Amendment may ultimately come to be interpreted, the current understanding of that text certainly provides no obvious basis either for the wholesale negation of federal and state gun laws or for the open carry endorsement that petitioner seeks.

    Since mandamus is clearly unavailable here, the Court must dismiss the petition with prejudice. Therefore, the Court need not address petitioner's claims for declaratory judgment or for injunctive relief. But if petitioner wishes pursue these claims, he is required to use the ordinary procedures of complaint and summons described in Rules 3 and 4 of the Federal Rules of Civil Procedure. See Flatow v. Islamic Republic of Iran, 2002 WL 31245261, at *2 (D.C. Cir. Oct. 8, 2002) ("The Federal Rules of Civil Procedure provide that there shall be one form of action to be known as 'civil action' and such an action shall be commenced by filing a complaint with the court, with related service, answer, and motions obligations thereafter.") (internal quotation marks omitted).

    United States District Judge
    DATE: October 9, 2002

    IN REBUTTAL TO JUDGE ELLEN SEGAL HUVELLE'S ". . . no court has ever so much as suggested that the Thirteenth Amendment confers any right to bear arms, and it is entirely fanciful to suggest that its prohibition of involuntary servitude somehow unambiguously requires the overturning of a whole variety of gun control legislation."

    Mark Tushnet, Two Essays on District of Columbia v. Heller, Harvard Public Law Working Paper No. 08-17 (forthcoming in the Ohio State Law Journal)

    The first of these companion essays, "Heller and the New Originalism," forthcoming in the Ohio State Law Journal, argues that the new originalism, as exemplified in Heller, does not avoid the general kinds of difficulties associated with the old originalism, at least to the extent that the new originalism is defended as providing, in Justice Scalia's terms, a solid, rock-hard Constitution. It describes several difficulties with the new originalism as displayed in Heller, including the assumption that meanings are stable over long periods of time, the possibility that meanings of constitutional terms are contested at the time the terms are inserted into the Constitution, and the difficulty that meanings are necessarily indexed to the conditions under which words are used.

    The second essay, "Heller and the Perils of Compromise," forthcoming in the Lewis & Clark Law Review, describes the ways in which the absolutist rhetoric about the appropriate method of constitutional interpretation that predominates in Justice Scalia's majority opinion in Heller is in tension with the asserted presumptive constitutionality of numerous gun regulations, and argues that "interest-balancing" of the sort Justice Scalia criticizes is inevitable in constitutional interpretation, even within Justice Scalia's assertedly non-balancing approach. It speculates that the compromises embedded in Heller make it likely that the decision will unravel, leading either to quite robust restrictions on gun regulation or, more likely, a quite weak Second Amendment. I suggest that the Heller decision may be for the Second Amendment what early decisions were for the so-called Federalism and Takings Revolutions: decisions that promised real change in prevailing constitutional doctrine, but that failed to deliver on the promise


    Note the last sentence in Mark Tushnet's, Heller and the Perils of Compromise:

    "Culture wars produce repeated battles in the courts and symbolic victories and defeats there, but permanent victory comes from developments elsewhere, which then yield real rather than symbolic decisions by the courts."​

    A Regulatory War

    What about a "Regulatory War" from a U.S. Merchant Seaman's point of view?

    What about applying the Second Amendment to regulations for the supression of piracy such as 33 U.S.C. § 383. Resistance of Pirates by Merchant Vessels and 33 C.F.R. § 104.220 Company or Vessel Personnel with Security Duties and 33 C.F.R. § 104.230 Drill and exercise requirements.?

    There is an argument that the U.S. Government regulations requiring seamen to perform security duties under Homeland Security directives yet denying seamen their Second Amendment rights to personal security and armed self-defense presents questions of government liability for personal injuries or deaths resulting from the performance of security duties. There is also an argument that such mandatory duties without proper recognition of Second Amendment or Ninth Amendment rights may stand as violations of the "involuntary servitude" clause of the Thirteenth Amendment prohibition of slavery.

    Dred Scott v. Sandford, 60 U.S. 393, 417, 450-451 (1857):

    "The legislation of the States therefore shows, in a manner not to be mistaken, the inferior and subject condition of that race at the time the Constitution was adopted, and long afterwards, throughout the thirteen States by which that instrument was framed; and it is hardly consistent with the respect due to these States, to suppose that they regarded at that time, as fellow-citizens and members of the sovereignty, a class of beings whom they had thus stigmatized; whom, as we are bound, out of respect to the State sovereignties, to assume they had deemed it just and necessary thus to stigmatize, and upon whom they had impressed such deep and enduring marks of inferiority and degradation; or, that when they met in convention to form the Constitution, they looked upon them as a portion of their constituents, or designed to include them in the provisions so carefully inserted for the security and protection of the liberties and rights of their citizens. It cannot be supposed that they intended to secure to them rights, and privileges, and rank, in the new political body throughout the Union, which every one of them denied within the limits of its own dominion. More especially, it cannot be believed that the large slaveholding States regarded them as included in the word citizens, or would have consented to a Constitution which might compel them to receive them in that character from another State. For if they were so received, and entitled to the privileges and immunities of citizens, it would exempt them from the operation of the special laws and from the police [60 U.S. 393, 417] regulations which they considered to be necessary for their own safety. It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went. And all of this would be done in the face of the subject race of the same color, both free and slaves, and inevitably producing discontent and insubordination among them, and endangering the peace and safety of the State."​
    The Dred Scott case is the origin of the Thirteenth and Fourteenth Amendments. That in itself would imply a Second Amendment right to "openly" keep and bear arms in intrastate, interstate, and maritime travel for the U.S. merchant seaman (civilian sailor)!

    Abraham Lincoln's Emancipation Proclamation of January 1, 1863 states, in part:

    "That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free; and the Executive Government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.
    DECLARATION: National Open Carry Handgun under the Second Amendment and the Ninth Amendment is "Actual Freedom!"

    The U.S. Coast Guard is a "naval authority."

    On April 19, 2002, Partiots Day, the U.S. Coast Guard denied my application for a "non-existent" endorsement on my Merchant Mariner's Document to read "National Open Carry Handgun" resulting from federally required "small arms" training as an "Able Seaman" as a prerequisite for employment aboard U.S. Government vessels under 46 U.S.C. § 7306(a)(3).

    Under the Collective Right of the State interpretation Judge Huvelle said of my case: "petitioner's claims appear largely without merit."

    Under the Heller interpretation [3w.supremecourtus[DOT]gov/opinions/07pdf/07-290[DOT]pdf] my case does, in fact and law, has merit to proceed to a civil jury trial under the Seventh Amendment right to a civil jury trial under the Common Law.



    PAGE 9-10. FOOTNOTE 7: ". . . W.Duer, Outlines of the Constitutional Jurisprudence of the United States 31–32 (1833) (with reference to colonists' English rights: "The right of every individual to keep arms for his defence, suitable to his condition and degree; which was the public allowance, under due restrictions of the natural right of resistance and self-preservation")

    PAGE 12: ". . . Justice James Wilson interpreted the Pennsylvania Constitution's arms-bearing right, for example, as a recognition of the natural right of defense "of one's person or house"—what he called the law of "self preservation." 2 Collected Works of James Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing Pa. Const., Art. IX, §21 (1790)); see also T. Walker, Introduction to American Law 198 (1837) ("Thus the right of self-defence [is] guaranteed by the [Ohio] constitution"); see also id., at 157 (equating Second Amendment with that provision of the Ohio Constitution). That was also the interpretation of those state constitutional provisions adopted by pre-Civil War state courts.[FOOTNOTE 9] These provisions demonstrate—again, in the most analogous linguistic context—that "bear arms" was not limited to the carrying of arms in a militia.

    PAGE 20: "By the time of the founding, the right to have arms had become fundamental for English subjects. See Malcolm 122–134. Blackstone, whose works, we have said, "constituted the preeminent authority on English law for the founding generation," Alden v. Maine, 527 U. S. 706, 715 (1999), cited the arms provision of the Bill of Rights as one of the fundamental rights of Englishmen. See 1 Black-stone 136, 139–140 (1765). His description of it cannot possibly be thought to tie it to militia or military service. It was, he said, "the natural right of resistance and self-preservation," id., at 139, and "the right of having and using arms for self-preservation and defence," id., at 140; . . ."

    PAGE 21: "In the tumultuous decades of the 1760's and 1770's, the Crown began to disarm the inhabitants of the most rebellious areas. That provoked polemical reactions by Americans invoking their rights as Englishmen to keep arms. A New York article of April 1769 said that "t is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence." A Journal of the Times: Mar. 17, New York Journal, Supp. 1, Apr. 13, 1769, in Boston Under Military Rule 79 (O. Dickerson ed. 1936); see also, e.g., Shippen, Boston Gazette, Jan. 30, 1769, in 1 The Writingsof Samuel Adams 299 (H. Cushing ed. 1968). They understood the right to enable individuals to defend themselves."

    PAGE 24: "b. "Security of a Free State." The phrase "[B]security of a free state[/B]" meant "[B]security of a free polity[/B]," not security of each of the several States as the dissent below argued,see 478 F. 3d, at 405, and n. 10. Joseph Story wrote in his treatise on the Constitution that "the word 'state' is used in various senses [and in] its most enlarged sense, it means the people composing a particular nation or community." 1 Story §208; see also 3 id., §1890 (in referenceto the Second Amendment's prefatory clause: "The militia is the natural defence of a free country").

    PAGE 39: "In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the "natural right of self-defence" and therefore struck down a ban on carrying pistols openly.

    PAGE 56: As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right.

    Scalia's use of the terms "natural right" and "inherent right" by definition is the same as "human right." Because of these facts I cited the VIENNA CONVENTION ON THE LAW OF TREATIES 1969 and the VIENNA CONVENTION ON THE LAW OF TREATIES BETWEEN STATES AND INTERNATIONAL ORGANIZATIONS OR BETWEEN INTERNATIONAL ORGANIZATIONS 1986 to claim that Heller is a "fundamental change of circumstances" (Article 62 of both Vienna Conventions) for the "emergence of a new peremptory norm of general international law" ("jus cogens"), (Article 64 of both Vienna Conventions) for the "right to life" provisions in international human rights treaties through the treaty clause in Article II, Section 2 of the CONSTITUTION OF THE UNITED STATES that the Second Amendment right to keep and bear arms is a human right under the AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN in my letter to the Inter-American Commission on Human Rights in support of my human rights complaint against the United States.

    This is the basis for both my Second Amendment case at the U.S. District Court for DC and my human rights complaint against the United States at the Inter-American Commission on Human Rights.

    Now! I need your grassroots support by promoting the merits of my case to the NRA, the SAF, Gun Owners of America, JPFO, Second Amendment Sisters, and every other Second Amendment advocacy group.


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