Law 14: The People in Arms

The People in Arms

(Completes the section Second Amendment of Law 13.)

When one reads in the Second Amendment that militias are necessary to a free state, these are strong words and one cannot read it as “a standing army is necessary to a free state,” especially because the Constitution also has measures about the army (Article I, Section 8, clause 12) and the amendment does not mention the army but militias.

In fact one should read the Amendment thus: “Militias are necessary to a free state, even more so when there is a standing army in the state.”

In other words, in “A well regulated militia, being necessary to the security of a free state” (letter of the amendment) the emphasis is on “necessary to a free state” rather than on “necessary to the security,” because if the emphasis were on the latter, then yes the army and the state-controlled police forces may be enough and there would be no need of militias, but the Framers intended to emphasize the role of militias as against a standing army, because standing armies were the arm of absolutism in Europe and they wanted to make a free country.

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As the second amendment talks about militias and not the army, I do not understand it when a statute (Dick Act, National Defense Act…) calls the military reserve a militia, because the military reserve is the army and obviously the second amendment isn’t about the army (which is named elsewhere in the Constitution but not in the second amendment). This is a statutory misnomer with huge consequences because lots of people look askance at citizen militias, which are the true second amendment militias contrary to the national guard or any other military reserve corps, which are the army_period.

An army may be “necessary” to the “security” of a “state” but according to the second amendment it is not “necessary to the security of a free state,” that is to say, again, the emphasis is on “free.” Without militias a free state would lack something necessary. And as it would not lack security if a standing army can provide it, it must be that said state would lack first and foremost being a free state.

And it should be clear by now that the militias of the amendment are not and cannot be the army nor any reserve corps of the army, however muddled the situation is made by the statutes.

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The idea of a “collective right within the context of a militia,” which was cogently discarded by the Supreme Court, is, I believe, partaken by many of those who also look askance at citizen militias. Not only can they not accept an individual right to bear arms but also and perhaps even less can they accept a militia except in the muddled sense of a military reserve.

In fact they read the Second Amendment in light of the militia statutes (rather than the statutes in light of the amendment) and thus read it as meaning “an army being necessary to the security etc.”

But this is completely nuts on two grounds (beside all the already said).

1/ If the amendment were about the army, it would literaly name the annex (the reserve) rather than the main body as “necessary to the security” of the state. It would stress the necessity of the annex without even mentioning that of the main body, which is absurd.

2/ If the amendment were about the army, the amendment would be a big non sequitur: “An army being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” The Framers would have found it necessary to secure a right to bear arms because the state needs an army, but such a reasoning would be a puzzle to everybody, and indeed as about all countries in the world, even sh*thole countries, have standing armies and yet most of them deny their citizens the right to bear arms, the idea that a standing army necessitates a citizens’ right to bear arms is something unheard of, and it would have been great had the Framers explained their idea a little bit. Obviously it’s absurd and the Framers of the second amendment are just not talking of the army.

One simply cannot read the amendment in light of the statutes, and this makes the statutes’ constitutionality dubious.

I also object to the organized vs unorganized typology because not only does it derive from said statutes (“organized” militias are organized by legislative acts) but also because the amendment talks of “well regulated” militias and the typology gives the impression that “unorganized” militias must be outside the scope of “well regulated” militias, which is probably what most if not all half-informed Americans (those among Americans who are half-informed) think.

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Oddly, if you read the opinions of the Justices of the Supreme Court (or their summaries), you’ll find that my viewpoint is closer to that of dissenting Justice Stevens than to the majority opinion by Justice Scalia. Although I had read the summary before, I wasn’t conscious of this while writing the previous lines. Here is J. Stevens’s dissenting opinion in J.R. Vile’s words:

“The primary purpose of the Second Amendment was to underscore the Founders’s fear of standing armies. The amendment makes no mention of hunting or self-defense. … J. Stevens argues that the Second Amendment was designed to prevent Congress from disarming state militias: ‘When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia.’ The term bear arms was an idiom designed to refer to those who served in militias; to keep arms further described ‘the requirement that militia members store their arms at their homes, ready to be used for service when necessary.’”

While I entirely agree with most of this, the only conclusion I find to suit it is that the Court was right to decide as it did and I hardly understand how this opinion can be a dissent.

The Founders’ fear of standing armies is the crux, what does Justice Stevens make of it? The U.S. has a standing army now, so what then? Is everything LOST and we should abide by a reality contrary to the will of the Founders while everything we keep saying in the legal domain is informed by the Constitution they framed? What absurdity is this? Clearly the Founders’ vision was that of a people in arms rather than standing armies, the arm of absolutism in Europe and of Empires elsewhere. They knew their history books and the stories of great nations plagued by praetorian intrigues. Yet, probably out of pragmatism, they also made room for an army, but if the nation were to create such an army, then the Constitution documents that it is a necessary evil–not unlike the government itself, in fact, and in the same way that that necessary evil that is the government is made as innocuous as possible by checks and balances, so must a standing army be dealt with, and the checks and balances here are the people in arms, the militias.

This was the starting point for all I wrote, which, to sum it up, is that an individual right to bear arms is enclosed in the prefatory clause about militias as the premise whence the right follows by necessity (provided one does not limit one’s understanding of militias to that of later, likely unconstitutional statutes).

To rephrase it, in my opinion you can’t have a collective right without an individual right. I believe in grassroots militias, bottom-up, so individuals must be armed if they want to form or join a militia. It’s not the governor or the Pentagon calls them and arm them, which is probably Stevens’s idea of militia, but I think he’s right that the amendment underscores the Founders’ fear of standing armies, due to which fear–a fear not at all irrational!–they wanted the people armed. The people must be armed and that means individuals must be armed.

Now when Scalia says (in the commentator’s words) “The Second Amendment was developed in reaction to fears that the government would disarm the people, and was patterned on state provisions that were designed to protect individual rights,” this is right also and I don’t see any contradiction between the two quotes because obviously if the government intended to disarm the people it would be because in the government’s idea a standing army would empty out a right to bear arms. A standing army makes militias useless (except as an annex or as local battalions of the army) so it makes the right to bear arms useless. But the Framers said–this is the very letter of the Constitution–that militias independent from the army are necessary even if the Union were to create a standing, permanent, professional army.

Then, when one reads (majority decision) “The Amendment is divided into a prefatory clause and an operative clause. There must be a link between the two, but ‘apart from that clarifying function, a prefatory clause does not limit or expand the scope of the operative clause’,” it smacks of taking liberties with the letter, which I disagree with in constitutional analysis (and Scalia has often blamed others for taking liberties). In my eyes there was no need to resort to such intricacies: the prefatory clause is the premise, the operative clause is the consequence, and the consequence is an individual right.

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I wouldn’t insist too much on the English heritage, as today “In the United Kingdom, access by the general public to firearms is subject to some of the strictest control measures in the world” (first sentence of Wikipedia page Firearms Regulation in the U.K.), which means the U.S. would be more faithful to the heritage than the Britons themselves, and this after breaking with them. There is no justification to this: Why would or should the Americans be more faithful to the English heritage than the English?

Then Scalia goes on talking about the “pre-existing right,” which he calls a “‘natural right’ that encompassed that of protecting oneself against ‘both public and private violence’.” The majority in McDonald v. Chicago (2010) said Heller “recognized self-defense to be a basic right that applied to handguns.” To the best of my knowledge there is no country in the world where the laws say you must accept that someone kills you without trying to defend yourself, namely, a country that does not acknowledge exculpatory circumstances for homicide. This being said, the U.S. is rather unique with its constitutional right to bear arms. As a matter of fact, in other countries too you’ve got the right to use a gun in self-defense, only it turns out you don’t have a gun, because you had to ask for a license, justify your demand etc, so arguably, yes, these countries make fun of the basic right that is self-defense.

If the letter of the second amendment stresses, as I claim, defense against “public violence” rather than against “private violence,” (these are Scalia’s words) this is only out of conciseness: there was no need to expatiate on an individual right to self-defense because it is, if you like, a “natural right” (Scalia again) and it goes without saying that, when, a militia being necessary, the right to keep and bear arms shall not be infringed, individuals may use in self-defense the weapons they have the right to keep and bear.

The reference by Scalia to “public (vs private) violence” is interesting. What is it he has in mind? Is it not the possible use of the standing army against the citizenry? If this is so, then obviously the making of militias a something inside the army, dependent on the same organs, is an obstacle to the militias playing any role against public violence. So possibly Scalia has the same conception as that laid down here by me, but on the other hand I also have doubts about it: I wonder whether, like others, he might not think that this talking about militias in the Constitution is antiquated and irrelevant in the times we’re living.

That there be antiquated clauses in the Constitution is perhaps admissible, but that there be antiquated clauses in crucial matters is strictly impossible.

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Immunity For Botch

South v. Maryland (1855) and the public duty doctrine say “there is no tort liability to an injured party resulting from the non-malicious failure of a law enforcement officer to enforce the law,” but also “It is a public duty for neglect of which an officer is amenable to the public, and punishable by indictment only.” Thus the absence of tort liability does not rule out all form of responsibility or I’m missing something.

You can charge an officer for failure to protect if you are feeling foolish, but the case will almost certainly get rejected by the judge, and even if it isn’t the appeal will side with the officer.I don’t think threats of a frivolous indictment by an overzealous prosecutor can be interpreted as a duty for an officer to endanger their life. It is just legal politics and rhetoric designed to win the court of public opinion (the mob). (MrM)

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For the sake of learning, I quote the definitions:

Public duty rule: a doctrine in tort law: a government entity (as a state or municipality) cannot be held liable for the injuries of an individual resulting from a public officer’s or employee’s breach of a duty owed to the public as a whole as distinguished from a duty owed to the particular individual called also public duty rule. See also special duty doctrine.

Special duty doctrine: an exception to the public duty doctrine that imposes liability for injury on a government entity when there is a special duty owed to the plaintiff but not to the public at large called also special duty exception. NOTE: The special duty doctrine applies when the duty owed to the plaintiff arises by statute or when the plaintiff has justifiably come to rely on the government’s assumption of that duty.” (findlaw)

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Town of Castle Rock v. Gonzalez (2005) is a confirmation of DeShaney v. Winnebago County Department of Social Services (1989). It may be worth stressing that both involve children being victims of their father’s violence, so these rulings may be found to run into the parens patriae doctrine, actually.

Parens patriae “refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian, or informal caretaker, and to act as the parent of any child, individual or animal who is in need of protection. For example, some children, incapacitated individuals, and disabled individuals lack parents who are able and willing to render adequate care, thus requiring state intervention.”

You’ll note the phrasing “requiring state intervention.” The conclusion “We are all responsible for our own personal safety, whether we like it or not” (Barnes Law) sounds odd when applied to the situation of a little child vis-à-vis his father, especially when the state knows the child’s helplessness, so much so that it adopted a parens patriae doctrine.

So I can’t agree with DeShaney v. Winnebago Social Services.

The mother was let down by the social services. In the books I find “this clause [the due process clause] was designed ‘to protect the people from the State, not to ensure that the State protected them from each other.’” This is not true as far as the parens patriae doctrine and the situation of a helpless child is concerned, but I fear to understand that it is no constitutional guarantee and instead a castle in the air. People demanded foster homes, same as they demanded a 911 line for help, and states provided the services, as it was not found unconstitutional, but only for the people to be told then that whether the services are provided in a satisfactory or botched fashion is none of the courts’ business. In other words, the Supreme Court is telling people they rely on the state at their own risk, and in reality they cannot rely on it at all.

“The fact that the state at times took temporary custody of Joshua [DeShaney] did not make the state his personal guardian after it released him.” No but the fact that it released him to an abusive father several times shows a clear misunderstanding of the situation, all the while the mother was thinking the child was in good, prudent hands.

“If the state has a financial obligation to Joshua, it must be democratically ascertained through protection of state tort (personal injury) law rather than through the due process clause.” Not true with regard to the public duty doctrine. Thus, while South v. Maryland barred a tort suit leaving indictment open, DeShaney v. Winnebago Social Services bars a due process clause suit claiming to leave open a tort suit that is not open. Of course in both cases the courts felt the need to leave some recourse open, as otherwise the notion arises of duty without responsibility, which is, to say the least, hard to chew.

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“Justice Sonia Sotomayor has noted a “disturbing trend” of siding with police officers using excessive force with qualified immunity, describing it as “sanctioning a ‘shoot first, think later’ approach to policing.” She stated: “We have not hesitated to summarily reverse courts for wrongly denying officers the protection of qualified immunity in cases involving the use of force…But we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.”” (Wikipedia page Qualified Immunity)

This is the topic of qualified immunity, with which I wish I were more familiar because I guess that’s part of what is knowing one’s rights…

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THE NASA Psychic

How many Americans know Apollo was a psychic program?

“Jonsson is most notable for his long-distance telepathy experiment during the Apollo 14 mission in 1971. Four psychics on earth were chosen to receive telepathic signals from astronaut Edgar Mitchell in space.” (Wikipedia page Olof Jonsson)

Are we supposed then, according to NASA, a federal agency, to believe in extrasensory perception (ESP)? Obviously yes because one does not fund a “long-distance telepathy experiment” if one does not believe in short-distance telepathy. Think of it: a federal agency funding a long-distance telepathy experiment between space and the earth while it was not convinced that telepathy occurs here on earth. Does it make any sense?

Likewise, the fact that the experiment was, as the Wikipedia page adds, a “complete failure” cannot by itself disprove ESP but only, if anything, “long-distance” ESP. Therefore, without an express statement to the contrary by NASA, it must be said to endorse ESP.

NASA picture of Apollo 14 manned moon landing, with the same kind of lunar breeze effect flag as in 1969 (see Law 12).

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Canada: Conservatives’ attempts to protect platform users’ speech online is blocked. A bad result for free speech in Canada.

Let’s face it: Canada never was a free-speech country. U.S. envoys never pressed it to become one and how would they when their bosses at home had rather have the same anti-free speech policy at home too? I told you already, for that it takes independent judges tenured for life. Among politicians it’s always the opposition that defends free speech, but when it gets to governement there’s no more of that bullsh*t, it’s censorship bills one after the other, all of them. Prove me wrong.

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Given the basic fact that Twitter and Facebook censor all opponents of the Democratic Party, this censorship is state action in all states and localities governed by Democrats, and the platforms are amenable to courts for abridgment of First Amendment rights by the inhabitants of these states and localities. The ideological nexus is obvious. The U.S. federal government being currently under a president of the Democratic Party, these platforms’ censorship is now state action in all the territory of the Union.

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The Botched Law of Racially Restrictive Covenants

In what is perhaps an unprecedented instance in the history of American legislation, a statute, the Fair Housing Act of 1968, was needed twenty years after the Supreme Court intended the same as the Act, in its notorious decision Shelley v. Kraemer of 1948 which eviscerated the enforcement by courts of private restrictive covenants barring blacks from buying real estate.

In the 6-0 decision Chief Justice Vinson explained that “restrictive covenants drawn up by private individuals do not in themselves violate the Fourteenth Amendment. As long as they are completely private and voluntary, they are within the law. Here, however, there was more. Through their courts, the states aided in the enforcement of the covenants. Indeed, if it were not for the courts, the purpose of the agreements would not be fulfilled.” (Vile, 2018)

Thus we were to learn, en creux, from the Supreme Court that covenants whose purpose would not be fulfilled by courts are a legal object–a legal UFO to this very day. Commentator Vile adds, for those who could not believe what they had just been reading: “Shelley dit not invalidate private restrictive covenants but only state enforcement.” State enforcement rings a bell to those familiar with constitutional law: one reads state action. That judicial action is state action is perhaps not to be denied but then, as courts, one or the other, are competent about everything, the decision means that state action is everywhere (and everybody could be sued for “discrimination”: you could be sued for failing to invite blacks at your wedding, for instance)–and at the same time whites who refused to sell estate to blacks through restrictive covenants would maintain the practice undisturbed, as long, that is, as blacks did not trick them and acquired the estate anyway, or perhaps as long as black squatters did not occupy the premises, and if a black (or, for that matter, any) squatter occupied a house belonging to a white owner to which house a restrictive covenant was attached, perhaps the owner had no legal recourse against the squatter?

Such niceties and others resulting from the unanimous decision were so strange that eventually the legislator, twenty years later, passed the Fair Housing Act that prohibits racially restrictive covenants.

To this day no court dared link state action to the possibility of judicial litigation again, Shelley was dead on arrival, and discriminatory private ventures that are not specifically covered by antidiscrimination legislative acts are permissible. A restaurant can (absent a state or local statute to the contrary) cater to whites only, for instance, in the United States of America, that is, since other countries have bogus notions of freedom.

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But restrictive covenants run with the land: “Just because these old covenants are now unenforceable, they never simply disappeared. Many continue to be passed on from owner to owner through property deeds to this day, and though real estate professionals and lawmakers alike have made efforts toward having them removed, bureaucratic red tape and legal expenses often hinder progress. Some argue that it would be too cost-prohibitive to remove the racist language from every real estate deed in the country today.” (Homelight, Sep 14, 2020)

To have made covenants which pre-existed the Fair Housing Act unenforceable was ex post facto lawmaking: “An ex post facto law is a law that retroactively changes the legal consequences (or status) of actions that were committed, or relationships that existed, before the enactment of the law.”

Ex post facto laws are prohibited by the American Constitution (clause 3 of Article I, Section 9). In its purity the principle holds in criminal law only but such a construction may be argued to be unconstitutional: “Thomas Jefferson described them [ex post facto laws] as ‘equally unjust in civil as in criminal cases.’ Over the years, however, when deciding ex post facto cases, the United States Supreme Court has referred repeatedly to its ruling in Calder v. Bull, in which Justice Samuel Chase held that the prohibition applied only to criminal matters, not civil matters.” (Wikipedia) Like Jefferson I see no reason why the principle should be limited to criminal law, because 1/ the letter of the Constitution makes no such distinction as that introduced by Justice Chase (the clause reads: “No bill of attainder or ex post facto law shall be passed” and 2/ even if ignoring the principle must be particularly dramatic in criminal law such neglect is not benign either in the other legal domains.

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Anti-BDS Laws

Georgia anti-BDS law is unconstitutional: “A federal court ruled in favor of journalist Abby Martin, who was barred from speaking at Georgia Southern University after she refused to pledge she would not boycott Israel.” (shadowproof, May 24, 2021)

It’s only the fifth or sixth anti-BDS law that is declared unconstitutional by a U.S. federal court, there remain a dozen ones in other states. Apparently none of the humiliated states dare appeal the evisceration of their shameful bills to the Supreme Court?

There is that politician, Rubio, I don’t know what he’s saying about all this but he wanted a federal anti-BDS bill, the same as those. And how did he “sell” it? By exposing his total, complete and irremediable lack of constitutional knowledge. He said: What? (¿Cómo?) BDS supporters could boycott Israel but the government couldn’t boycott BDS supporters? I believe he was convinced, while tweeting this, he had found the ultimate ironclad argument to the opponents of his bill. He’s got no clue, he doesn’t know that a state boycott (by any government, federal, state or local) is state action against which boycott is protected as free speech, whereas BDS is a grassroots boycott protected by the First Amendment. Even if both were called boycotts, one infringes on free speech and the other is free speech. That’s basic constitutional law.

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Political Police

I’m reading “the FBI just put X and Y (movements) on the same threat level as ISIS.” Is this leaked information? Is it a leak (1) or is it state intimidation against legally constituted associations (2)? If (2), how, besides, is this not libelous? There can be no governmental immunity when a police bureau slanders and libels law-abiding citizens.

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Neoconservatism: Jacobinism or Napoleonism?

According to Claes G. Ryn (America the Virtuous: The Crisis of Democracy and the Quest for Empire, 2003), the “neoconservative” influence on the American right is turning it into a new form of Jacobinism (doctrine of the French Revolution), and I’m not sure whether one should not call it Napoleonism instead, but both, blended in the doctrine of the current French state, are based on centralization, bureaucracy, flawed separation of powers (the judicial is controled by the executive), militarism (military parade on National Day: Trump wanted the same for July 4!), police state, no free speech…

Law 13: Is the Church of Denmark a religious organization?

Please interpret this.

1/ “As of 1 January 2020, 74.3% of the population of Denmark are members [of the Church of Denmark], though membership is voluntary.” (Wikipedia: Church of Denmark, May 26, 2021)

2/ “Percentage of population who are nonreligious. Denmark: 61%.” (Wikipedia: Irreligion, May 26, 2021)

Is it safe to say that the Church of Denmark is not a religious organization?

ii

According to the above figures, 39% of Danes have faith while 74.3% of them are voluntary members in the Church of Denmark (Folkekirken). Given that among the 25.7% who are not members of the Church, there are religious persons too (earnest Catholics, Calvinists, Muslims…), the percentage of religious Danes who belong to the Church of Denmark is obviously below half the number of Church of Denmark members (below 37.15% of population), that is, more than half of Folkekirken members do not have faith and probably never had.

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New open letter asks Trudeau to stop plans to harm the internet.

This is the person who claimed that derogatory speech is the same as shouting fire in a crowded theater, the classic SCOTUS (Supreme Court of the United States) example of what derogatory speech is not and can never be. How dare Canadians allow their politicians to talk such humbug when they have had the world’s beacon of liberty as their sole neighbor for more than 250 years? Are they all eyes for Greenland? Yes, it must be that: for the last 250 years Canada has had eyes for Greenland only and now derogatory speech is like shouting fire in a crowded theater in Canada.

ii

Canada Justice Minister pushes for censorship bill and limited freedoms. David Lametti said freedoms are not “absolute.”

250 years with the world’s beacon of liberty for sole neighbor and Canadian politicians know no better than telling Canadians freedoms are not absolute – in order to pass censorship bills. How is it possible? How can American First Amendment law exist and spread not like fire over the world? – Because of politicians.

Since the US failed to export its unique free speech spirit abroad, now the country is at risk of losing it at home. The US failed to export it because it has not been a politician’s job to begin with: American free speech law is entirely judge-made.

It takes independent judges tenured for life to defend free speech, to prevent elected, corrupt policitians from making it an empty shell.

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“French trial opens over anti-Asian Covid tweets.” (RFI in English, March 25, 2021)

“Protesters gathered in front of the Paris court, with one man carrying a placard which read ‘In Atlanta or in Paris, no to anti-Asian racism,’ in reference to last week’s mass shooting in the US that killed six Asian women.”

“‘My mother has been attacked, my aunt too. Because we are Asian, people think that we have money,’ Darith, a 30-year-old of Chinese-Cambodian descent, told French news agency AFP at the protest in Paris.”

Note the rhetoric. “Protesters” gather against defendants who are facing prison. It’s a lynch mob. (That the defendants are “most likely facing damages if convicted rather than prison” is only due to the fact that none of them has a criminal record, otherwise the likelihood would be quite the reverse.)

The journalist then quotes one protester, an Asian woman, who talks of relatives having been physically attacked. Why is this woman not protesting in front of the court that judges the attackers instead of protesting in front of a court that judges people for speech? Because there is no trial? Most likely because there is no trial and there will never be a trial. It is easy to prosecute people for speech, child’s play, but it makes no difference on people’s safety and only allows governments to conceal facts.

The rhetoric consists in slipping in the assumption that prosecuting speech is an efficient way to guarantee people’s safety.

I wish the US exported more of its free speech spirit and less of its mass culture. In fact, as they have not exported the former at all, the risk is now quite serious that they lose this unique spirit.

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L’argument des défenseurs du violeur présumé Roman Polanski, que la victime ou l’une des victimes a retiré sa plainte, est, contrairement à ce qu’ils semblent penser, accablant pour lui : le procureur américain insiste parce qu’il a la preuve de la culpabilité du violeur présumé. Et ces défenseurs ont encore à apprendre qu’une action pénale ne se résout pas par un accord entre parties mais par une condamnation réparatrice du corps social lésé ou par un innocentement en bonne et due forme, un acquittement.

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I shut down my Twitter account in protest against their censorship policy. I then opened a … account and found some are posting the “news” I already read from “white nationalists” twenty years ago: the same black on white crimes. Have they done nothing except posting these couple of crime stories again and again these last twenty years? I can see no future for such people.

My other feeling about … is that half posters are cops in their free time and the other half are cops on duty.

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White Plakkers in South Africa: A Libertarian Issue

We all have heard of the phenomenon of white slum dwellers (aka squatters or, in Afrikaans, ‘plakkers’) since the end of apartheid in South Africa.

These new white poors are obviously from two categories of people: 1/ private sector employees who were dismissed because of affirmative action policies and 2/ public sector employees, dismissed for the same reason.

Considering (a) the apartheid economy as bureaucratic and (b) any government’s room for affirmative action to be larger in the public sector, a majority of current white plakkers must be the result of dismissals from the public sector, as the new South African economy remains bureaucratic but with new colored staff. It’s not farmers who became plakkers (they have trouble of their own with targeted killings meant as intimidation to have them leave the land and make room for land reform) nor entrepreneurs nor highly qualified employees (for a time shielded by their qualifications). Low-qualification jobs in the public sector that were the preserve of white (and preferentially, in the context of Afrikaner nationalism, Afrikaans-speaking) South Africans shifted to blacks.

Expelled from protected niches where their productivity was not, in fact, an issue, these white functionaries had no qualification whatsoever to market. They were like those people in European countries doing menial jobs in administrations like bringing sparkling water to the director or taking the coat of the minister on his arrival, and in poorer countries opening doors or saluting militarily anybody walking down the corridors. They were trapped while thinking they had made it in life.

Even if their position made sense, like cops, when the figures are in excess because of the bureaucratic, subsidized nature of the sector, they cannot all convert to the private security sector, and yesterday’s cop is today’s squatter.

From this I expect racism to be highest, in every country, among low-qualification protected jobs, not because of a lack of education (in fact culture is likely to make one’s racism more articulate if anything) but because of the at the same time coveted and exposed nature of said positions, at the government’s discretion. Governments are pressed to make societies that are more diverse also more equal, which basically requires that more jobs at the government’s hand be reserved for minorities. This is the statistics you need to know in order to assess government’s racism: Are the people working for government as diverse as the society? A government can tell you anything about how to fight racism and how it fights it (with hate speech laws etc), as long as it keeps its jobs disproportionately white, it is racist, make no mistake about it.

(The reader understands I do not know the particulars about plakkers’ past – and perhaps such a survey has not even been carried out – but I laid down my assumptions and I believe they are plausible, perhaps with some tilting towards the public sector. Another phenomenon to take into account is the massive white qualified workers’ flight from South Africa at the end of apartheid, called chicken run by some, which no doubt caused a slump.)

Kinders van die plakkerskamp. Flaxen blond, shoeless, hygieneless kids of South African white slum. Picture: safprsa.org (South Africa Family Relief Project)

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I want to make a confession: I burnt books… Well, as I don’t have a fireplace I dropped them in the trash can anyway. I needed to make room.

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If the government has the right to want to discourage drugs consumption, then it has the right to want to discourage homosexual conduct, and the discourse vindicating equal rights for homosexuals is an attempt to silence those who hold the view that homosexuality is a choice except for a miniscule minority and that equal rights would therefore cause a risk of homosexualization of the society (like pagan societies of old) – same as the prohibition of drugs which intends to prevent a generalization of drugs consumption, whether this generalization would take place or not. Remember that pornography was first legalized in Denmark in 1969, with the Danish national church (Church of Denmark) approving on the ground that pornography owed its attraction to the prohibition – yet people have not turned their back on pornography in spite of its legalization, quite the contrary.

When the discourse of equal rights is adopted by the government, then it is a state-sponsored ideology acting with the aim of prevailing against other ideologies, a breach of state neutrality.

The previous paragraph is a reply to the claim that granting equal rights would put an end to a current breach of state neutrality (in the US). It would not, as it would be a breach of neutrality. (This is not to say the state must remain neutral on the issue, as my thought is that it cannot.)

When the government adopts the equal rights discourse it is buying one ideology, namely that people engaging in homosexual conduct are not free agents making a choice, as if homosexuality, therefore, were like one’s race. Thus the government dismisses and actually opposes another ideology according to which those engaging in homosexual conduct thereby make a choice and it is at best a small part of them, resulting from genetic drift, who simply cannot have intercourse with a person of the other sex as a result of their genetic makeup. As we find such conclusions in medical books I guess it could be possible for medical authorities to issue permits for these, let’s call them genetic-drift homosexuals, so that they would not be discriminated against. But as far as the others are concerned, who are in reality bisexuals, the government deals not with something like race but with a practice which it has the right to want to discourage.

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Second Amendment: A ‘Collective Right’?

The Second Amendment reads: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

In District of Columbia v. Heller (2008) (which was followed by McDonald v. City of Chicago, 2010, about state and local governments), the Supreme Court ruled that the Amendment protects an individual right against federal encroachments.

Some people had argued that the right was only a “collective right within the context of a militia.” To no one’s surprise the same people call Heller a “very controversial decision.” In fact there is no possibility that the Amendment be interpreted as they do, even though their opinion would be held by all liberal scholars in the US. There is nothing controversial with Heller and on the contrary these people’s contrived interpretation of the Amendment is outrageous.

What is a militia? A militia is a group of armed persons who get together in order to perform duties that need guns. First you have armed individuals, then, when they get together, a militia. You cannot place the Second Amendment’s right to bear arms inside a militia instead of individuals, that is, in a militia that would not exist before individuals associate and which then would provide them with guns, because then it would not be the militia that provides the guns but the government, which has nothing to do here according to the notion of a militia.

Of two things it would be either one or the other: either the militia would be a mere paper formality for individuals to buy guns (namely, they would have to attest militia membership and as freedom of association is guaranteed it would be a mere formality without substance) or you intend the membership condition to restrict access to guns and that is not possible if you do not curtail freedom of association at the same time, namely if you do not insist on the government controling militia duties, and then not only you make the right to bear arms dependent on the government but also you suppress militias qua militias (said groups would be something like the standing army or its reserve), but they are “necessary to a free state.”

Opponents to an individual right are opponents to the Amendment plain and simple.

Besides, if the right to bear arms were collective (“collective right within the context of a militia”) instead of individual, the individuals who would form a militia would be unfamiliar with the use of guns and their association would be a very ineffectual militia. Likewise, a new member joining a militia would be an ineffectual member. In fact it is hard to imagine how people with no individual right to bear arms would ever think of forming or joining militias; a collective vs individual right would be nothing but an obstacle to forming militias, which, again, are “necessary to a free state.”

Arguably this is what is meant by the words “well regulated” of the Amendment: a well regulated militia needs members who know how to use guns, otherwise it is not a militia, it’s a shooting club.

(The reader understands I am not talking about militia in the sense of the military reserve but about citizen militias, which result both from freedom of association and one’s responsibility to defend oneself. It is even more sinister when one thinks the advocates of a Second Amendment “collective right,” who made up this contrivance in order to void the Amendment as they know they cannot repeal it, fancied the right could be limited to a military reserve.)

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Kantian Philosophy

Kant: A Very Short Introduction (2001) by Roger Scruton is a deluge of scepticism. It saddens me that they had a sceptic write a very short introduction on Kant, as if they could not find someone more receptive to Kantian thought to share it with the public.

i

There is no “crucial ambiguity” (p. 55) in Kant’s philosophy about the thing-in-itself. That the thing-in-itself cannot “cause, or stand in any other relation to, an appearance” (56) is true and yet the thing-in-itself is the same thing as the apperances, the trial they make (Scruton following) is absurd. Appearances can have no causal or other relation to the thing-in-itself because these categories are only applicable to our experience (appearances), this is precisely what Scruton explained in the previous chapter. So a lack of category relation is a necessary conclusion.

Kant simply says our experience is what our intellect makes of the thing-in-itself. No ambiguity.

ii

Kant’s philosophy is not dependent on Newton’s works, as if one could discard it because “we know” Newton has been surpassed by later physicists. In fact, Kant explained why physics like all empirical science will always advance while metaphysics can achieve its goal. Philosophers who keep dogging the advances of physics to get the fundamentals of their thinking from it are not philosophers, and my Apologie de l’épistémologie kantienne (PDF available in this blog’s table of contents) is the denunciation of philosophical scientism (which makes philosophy ancillary to empirical results), exploding the so-called philosophies that have been built on such theories as relativity and quantum mechanics, their inconsistent juggling, their “revolutionary” bombast.

iii

“It is fair to say that the transcendental deduction has never been considered to provide a satisfactory argument.” (46)

I don’t know if it is fair, although I rather understand Kant’s epistemology has got the universal credit it deserves, but I for sure find it satisfactory and the proof being in the pudding it remains, I find, an extraordinarily convenient tool for demolishing everything that has since been trying its feeble teeth at the calf of the giant (as Schopenhauer would say).

iv

Scruton is a case of Jekyll and Hyde: on practical reason he shows much more patience and understanding. I guess it is because he had no clue about what to think of the transcendental deduction and had to rely on more “proficient” than himself. But as he writes that in the final analysis Kantian practical reason is “common-sense morality,” is it because it is trite that he is patient and comfortable with it?

And the comical touch at the end of the chapter: “Even in our most private and intimate encounters, reason covertly abstracts from the immediate circumstances and reminds us of the moral law.” (94) Reason in the most private and intimate moments abstracts…

First, this clandestine homage to Mrs Scruton or whomever it might be, is comical. Second, it reminds one, by contrast, of Kierkegaard’s words. It is in a moment of anguish, because man is furthest away from his mind, that man is conceived. Then birth is another moment of unfathomable anguish for the woman and thus a new babe is thrown into this vale of tears.

Kierkegaard adds that only by primitive people is anguish absent at birth. The babe slips out and it’s done. The baby doesn’t even cry (and elsewhere on this blog I have commented Kant’s remark that the babe of man is the only born crying!) I saw it in a documentary film, Africa ama (1971) by Angelo and Alfredo Castiglioni: only after the mother blows in the babe’s nose, evacuating mucus or something, does the baby start crying.