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By Dr. Edwin Vieira, Jr., Ph.D., J.D.
March 7, 2017

NewsWithViews.com

4. The White House’s post assures its readers that “[s]upporting law enforcement means supporting our citizens’ ability to protect themselves”. On the one hand, this statement is a mere truism—because, as America’s Founders well knew, “[s]elf-defence * * * , as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society”. William Blackstone, Commentaries on the Laws of England (Philadelphia, Pennsylvania: Robert Bell, American Edition, 4 Volumes & Appendix, 1771-1773), Volume 3, at 4. Whether performed by the individual or by the community, self-defense is the most important, being in the final analysis the indispensable, form of “law enforcement”. On the other hand, unfortunately, the post’s statement sets legal and political priorities in reverse, even perverse, order—because actually enabling citizens to protect themselves individually and collectively must always come before “[s]upporting law enforcement” in the form of modern-day professional police forces. After all, self-defense presupposes the absence of timely and effective assistance from even honest and competent law-enforcement agencies; whereas, in all too many instances today, through their execution of constitutionally questionable “gun-control” laws rogue law-enforcement personnel across this country hinder or entirely frustrate ordinary citizens’ ability to execute “the primary law of nature” for their own individual and societal protection.

Self-evidently, “the security of a free State” depends upon the ability of its constituent citizens to defend both themselves as individuals and their “free State” as a collective—and the Second Amendment declares that, for these purposes, “[a] well regulated Militia” is “necessary”, not subordinate to various law-enforcement establishments not only less inclusive than such a Militia but also lacking a Militia’s constitutional credentials. Thus, the only way in which the statement “[s]upporting law enforcement means supporting our citizens’ ability to protect themselves” can be read in a fully constitutional manner is for the Militia to become the primary institutions of “law enforcement” at every level of the federal system. This is plainly possible even at the level of the General Government, because the Constitution empowers Congress “[t]o provide for calling forth the Militia to execute the Laws of the Union”, without exception. U.S. Const. art. I, § 8, cl. 15. And because “the Militia of the several States” are the States’ own governmental institutions, the States can assign to them whatever “law-enforcement” responsibilities may be “necessary to the security of a free State” in those jurisdictions, when the Militia are not “called into the actual Service of the United States”. Compare U.S. Const. art. II, § 2, cl. 1 and art. I, § 8, cl. 16 with amends. II and X.

To be sure, the White House’s post goes on to promise that “[w]e [i.e., the Trump Administration] will uphold Americans’ Second Amendment rights at every level of our judicial system”.The apparent exclusive concern with “our judicial system” is perplexing, however. Does President Trump believe that “our judicial system” wields exclusive authority under the false doctrine of “judicial supremacy” to determine with finality what “Americans’ Second Amendment rights” are? Or is that the province of the Constitution, which the Legislative and Executive Branches of the General Government, the States, and ultimately WE THE PEOPLE must interpret and apply for themselves when “our judicial system” neglects, fails, or refuses to protect those rights?

Even those Americans who are satisfied with the decisions of the Supreme Court in the Heller and McDonald cases, and who assume that President Trump will succeed in appointing to the Court new Justices who will scrupulously adhere to those precedents, must realize that, because of the practical vicissitudes of litigation, many if not most rulings of consequence to be rendered by the inferior courts of the United States and the States’ courts with respect to the Second Amendment will never be reviewed by the Supreme Court. Inasmuch as these lower courts are now overpopulated with opponents of the Second Amendment, reliance on “our judicial system” will result in numerous judicial screeds as much at odds with “the right of the people to keep and bear Arms” as Circuit Judge James A. Wynn, Jr.’s grotesquely unconstitutional concurring opinion in United States v. Robinson, No. 14-4902 (4th Cir., 23 January 2017). Under these circumstances, can President Trump—or the American people—trust “our judicial system” to guarantee “the security of a free State” as the Second Amendment understands it? Or should President Trump work to empower Americans to exercise “the right of the people to keep and bear Arms” in “well regulated Militia”, impervious to modern-day “gun control”? These questions answer themselves, the first in the negative, the second in the affirmative.

5. The White House’s post describes President Trump as “dedicated to enforcing our border laws, ending sanctuary cities, and stemming the tide of lawlessness associated with illegal immigration”. These ends are admirable; but the means by which the President and his advisors believe that he can actually accomplish them remain as opaque as they are conjectural. I need not repeat here what I have written about these matters in my NewsWithViews commentaries “How the President Can Secure the Borders” (18 August 2015), “A Trumped-up Controversy” (20 February 2016), and “No Sanctuaries in ‘Sanctuary Cities’” (3 December 2016). What does deserve renewed emphasis, though, is the indispensable constitutional rôle which the Militia can and must play in the fulfillment of these tasks, under President Trump’s assertion of leadership as “Commander in Chief * * * of the Militia of the several States, when called into the actual Service of the United States”, in order to fulfill his duty to “take Care that the Laws [pertaining to immigration] be faithfully executed”. See U.S. Const. art. II, § 2, cl. 1 and art. II, § 3.

Not just the present tidal wave of patently illegal immigration, but also since the late 1960s the excessive extent of ostensibly legal immigration by aliens unwilling or unable to assimilate themselves within an uniquely American culture, amount to actual hostile invasions of this country. I do not employ the term “invasions” in a loosely metaphorical sense, either. For these incursions are not simply historical accidents, akin to the serial “barbarian invasions” that first splintered, then helped to shatter entirely, the Roman Empire. Rather, they are part and parcel of modern neo-Bolshevism’s long-operative strategy to deny Americans the right vouchsafed to them by the Declaration of Independence to retain “among the powers of the earth, the separate and equal status to which the Laws of Nature and of Nature’s God entitle them”; to demolish the United States as a functioning polity; and to drag “the good People” of this country into a “new world order” administered by supra-national mega-banks and -corporations serving the selfish interests of a globalist kleptocracy composed of multi-billionaires. This amounts to a new twist on Leninism/Trotskyism—because “the revolution’s” contemporary financiers are so sure of themselves that they no longer feel the need to operate largely behind the scenes (in the manner of, say, Alexander Helphand), but instead brazenly flaunt their rôles as “the revolution’s” mentors and even directors out in the open, in the person of such as George Soros.

The neo-Bolsheviks’ tactics emphasize enlarging the fissures already in existence throughout American society, and engendering as many new ones as possible, so as to be able to employ “identify politics” in service of a divide-and-conquer approach of multifaceted “class warfare”. The old Leninist/Trotskyist dichotomy of “classes” has been expanded from the original purely economic Marxist categories of “the proletariat” and “the bourgeoisie” to embrace divisions delineated by race, religion, sex (or even worse, “gender”), economic status, political allegiances to such deceptive conceptions as “left” and “right”, rural versus urban attitudes and lifestyles, and so on—until American society now finds itself on the verge of being permanently Balkanized into a chaotic jumble of squabbling sects unified only by their joint participation in an orgy of mutual antagonisms and recriminations. Already, “mainstream” political discourse accepts without demur this country’s bifurcation into “blue States” and “red States” (although, to conform to the relevant historical antecedent, the colors should be reversed; and, better yet, “white” substituted for “blue”). Plainly enough, this situation by itself is incompatible—indeed, at war—with attainment of the Preamble’s goals “to form a more perfect Union” and “insure domestic Tranquility”.

The contemporary agitation from various quarters for “open borders” attempts to hornswoggle gullible Americans into condemning as “xenophobic”, “racist”, or otherwise contemptibly “discriminatory” the laws of the Union which control immigration, so as to make it politically impossible for this country to repel the invasions of aliens now assaulting it. “Hornswoggle” is the properly descriptive verb, too, because no such thing as “open borders” can exist under the Declaration of Independence. For if other nations can systematically dump their unwanted populations into the United States, or if individual foreigners in unlimited numbers can impose themselves on this country, then Americans will no longer “assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them”. Neither can “open borders” exist under the Constitution. For, as the Preamble attests, WE THE PEOPLE “ordain[ed] and establish[ed] th[e] Constitution” in order to “secure the Blessings of Liberty to ourselves and our Posterity”—not to aliens whom THE PEOPLE refuse to accept into their community in the first place, or to some future posterity of those undesired aliens who succeed in insinuating themselves into the United States.

More than a century ago, the Supreme Court rejected the argument for “open borders” pressed upon it by radical attorney Clarence Darrow, that “[n]o power is delegated by the Constitution to the general government over alien friends with reference to their admission into the United States”, with the rejoinder that “[r]epeated decisions of this court have determined that Congress has the power to exclude aliens from the United States; to prescribe the terms and conditions on which they may come in; to establish regulations for sending out of the country such aliens as have entered in violation of law, and to commit the enforcement of such conditions and regulations to executive officers; that the deportation of an alien who is found to be here in violation of law is not a deprivation of liberty without due process of law, and that the provisions of the Constitution securing the right of trial by jury have no application.” United States ex rel. Turner v. Williams, 194 U.S. 279, 287 (argument of counsel), 289-290 (opinion of the Court) (1904). And inasmuch as the Constitution recognizes no alleged “right” of “alien friends” to immigrate into the United States, it surely denies any such “right” to “alien enemies”, whether openly declared as such, or clandestine in their purposes, or merely potentially dangerous because of their beliefs or associations.

The Bill of Rights provides no exceptions to this rule. At issue in Kleindienst v. Mandel, 408 U.S. 753 (1972), was a statute which declared ineligible to obtain admission into the United States aliens who advocated the “doctrines of world communism or the establishment in the United States of a totalitarian dictatorship”. Mandel, a self-described “revolutionary Marxist” who openly espoused “the economic, governmental, and international doctrines of world communism”, was denied a visa to participate in lectures and conferences sponsored by various American universities and think-tanks. Joined by several American “university professors * * * who [had] invited [him] to speak”, Mandel brought suit on the grounds that denial of his visa violated the complainants’ rights under the First Amendment, denied them the equal protection of the laws, and deprived them of procedural due process. Id. at 754-760. The Supreme Court overruled these contentions:

It is clear that Mandel personally, as an unadmitted and nonresident alien, had no constitutional right of entry to this country as a nonimmigrant or otherwise. United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904). * * *
* * * * *

This case, therefore, comes down to the narrow issue whether the First Amendment confers upon the * * * professors, because they wish to hear, speak, and debate with Mandel in person, the ability to determine that Mandel should be permitted to enter the country, or, in other words, to compel * * * Mandel’s admission.
* * * * *

Recognition that First Amendment rights are implicated, however, is not dispositive of our inquiry here. * * * The Court without exception has sustained Congress’ “plenary power to make rules for the admission of aliens and to exclude those who possess those characteristics which Congress has forbidden.” * * * “[O]ver no conceivable subject is the legislative power of Congress more complete than it is over” the admission of aliens.
* * * * *

We are not inclined in the present context to reconsider this line of cases. Indeed, the [complainants] * * * recognize the force of these many precedents. * * * [T]hey concede that Congress could enact a blanket prohibition against all aliens falling into the class defined by [the statute], and that First Amendment rights could not override that decision. * * * But they contend that by providing a waiver procedure, Congress clearly intended that persons ineligible under the broad provision of the [statute] would be temporarily admitted * * * . They argue that the Executive’s implementation of this congressional mandate * * * must be limited by the First Amendment rights of persons like [the complainants]. * * *

[The complainants’] First Amendment argument would prove too much. In almost every instance of an alien excludable under [the statute], there are probably those who would wish to meet and speak with him. * * * Were we to endorse the proposition that governmental power to withhold a waiver must yield whenever a bona fide claim is made that American citizens wish to meet and talk with an alien excludable under [the statute], one of two unsatisfactory results would necessarily ensue. Either every claim would prevail, in which case the plenary discretionary authority Congress granted to the Executive becomes a nullity, or courts in each case would be required to weigh the strength of the audience’s interest against that of the Government in refusing a waiver * * * , according to some as yet undetermined standard. * * * Indeed, it is precisely for this reason that the waiver decision has, properly, been placed in the hands of the Executive.
* * * * *
In summary, plenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under [the statute], Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant.

Id. at 762, 765-766, and 767-770.

It should be obvious that, if this reasoning is valid with respect to “the freedom of speech” guaranteed by the First Amendment, then it applies with equal force to all of the other rights that Amendment covers—such that exclusion of aliens on the basis of their religion, or of the predominant religion of their countries of origin, or of the observation that many of them misbehave under color of their religion in countries which incautiously admit them as immigrants, is no less valid. As the Court observed in United States ex rel. Turner v. Williams, 194 U.S. 279, 292 (1904),

[i]t is, of course, true that if an alien is not permitted to enter this country, or, having entered contrary to law, is expelled, he is in fact cut off from worshiping or speaking or publishing or petitioning in the country, but that is merely because of his exclusion therefrom. He does not become one of the people to whom these things are secured by our Constitution by an attempt to enter forbidden by law. To appeal to the Constitution is to concede that this is a land governed by that supreme law, and as under it the power to exclude has been determined to exist, those who are excluded cannot assert the rights in general obtaining in a land to which they do not belong as citizens or otherwise.

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Therefore, “[t]he Bill of Rights is a futile authority for the alien seeking admission for the first time to these shores”. Kwong Hai Chew v. Colding, 344 U.S. 590, 596 note 5 (1953). As the Court explained in United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990),

[t]he Preamble [to the Constitution] declares that the Constitution is ordained and established by “the people of the United States.” The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained and reserved to “the people.” * * * While this textual exegesis is by no means conclusive, it suggests that “the people” * * * refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of the community.

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[1]. Some supporters of President Trump have floated the alternative explanation that Flynn’s resignation was actually part of the normal course of events within the Administration. See “Dr. Steve Pieczenik Says Michael Flynn Was Purposefully Removed, The Left Are Intellectual Frustrated Children”, iBankCoin (16 February 2017). This thesis is exceedingly difficult to credit, however. For it would have been both unnecessary and highly counterproductive for the Administration to subscribe to a narrative based on Flynn’s telephonic indiscretion and later dishonesty in describing his behavior, together with allegations of “leaks” by person or persons unknown inside but hostile to the Administration, when a simple press-release stating that Flynn had resigned to make way for a better-qualified replacement would have sufficed—without providing the big “mainstream media” with additional ammunition for their on-going barrage that President Trump is a crony, a stooge, a dupe, or otherwise an “asset” of Russian President Vladimir Putin.