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Adam KokeshHere are some highlights from Joel Skousen’s May 10, 2013 World Affairs Brief on Adam Kokesh’s planned armed July 4th march on Washington, D.C. (emphasis mine):

There are smart ways to organize a demonstration at the nation’s capitol to gain public support against government tyranny and then there are moves that are really unwise. In my personal opinion, Adam Kokesh’s proposed armed march of several thousand volunteer protestors into Washington DC is not smart and potentially will get all future right wing demonstrations in favor of the Second Amendment banned as “prone to violence.”

I’ve never liked Adam Kokesh’s style—sitting before the mike in black tank top, shaved but bearded head, and always talking tough. It’s a militaristic style that attracts ex-military hot heads to the movement, and this latest gambit has that same uncareful style.

It’s not that simple. When you openly violate a law about weapons, the police have little choice but to intervene—and they will. To make it worse, in his interview with Alex Jones, Kokesh spoke dangerous language when he said, “This is an armed revolt against the American government.”

You just can’t go around saying things like that even if the right to revolution is guaranteed by the Declaration of Independence. It is a serious step not to be taken for “light or transient” reasons and must have wide public support backed by a long list of grievances. It’s easy enough for constitutional conservatives and libertarians to produce such a list of technical violations, but they are not easily visible or provable to the common person.

The government’s current and future plans for taking away liberty are carefully masked by a myriad of executive orders, and hidden memos—sealed under the cover of National Security—hardly the stuff needed to rally the world around us. Kokesh and his brash statements show he hasn’t thought this out very well and appears to be heading for trouble.

While I would agree that no jurisdiction should be able to ban open carry under the Second Amendment, hinting at an armed confrontation is not the way to go about getting those laws changed. My objection to this act of “civil disobedience” proposed by Kokesh is that it’s not going to help gain support for second amendment rights or motivate any official in DC to feel more comfortable about changing the law.

It may be empowering to the macho types who want to make a dramatic public statement, but most people will merely see it as a stupid violation of DC law and approve of police action to arrest them. Few will see this as standing up against something unjust, and it may assist government in further demonizing pro-gun people as extremists. It may even prompt more states to ban open carry.

For another prominent voice in the alternative media who has questioned Kokesh’s planned armed march, see my article, “He’s either on the other side or he’s not very bright:” Dr. Stan Monteith on Adam Kokesh and his planned armed July 4th March on Washington.

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U.S. Supreme Court

The U.S. Supreme Court decided in the case of Erie Railroad Co. v. Tompkins (1938) that:

There is no federal general common law.

Article III, Section 2 of the original Constitution stated:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States,

The distinction between “Law” and “the Laws of the United States” shows that the former is referring to common law, while the latter is referring to Acts of Congress. Therefore, the original Constitution recognized the pre-existence of common law, and that it was within the purview of U.S. courts to shape, including federal courts.

The phrase “common law” isn’t explicitly referenced in the original Constitution; It is mentioned in the Seventh Amendment, which states:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

The Seventh Amendment recognized a pre-existent “right” of trial by jury, which is part of the common law firmly established with the Magna Carta of 1215 — further demonstrating that common law was pre-existent to the U.S. Constitution, and the government it created.

Article I, Section 8, clause 17 grants Congress the power:

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States,

Lawful Acts of Congress can override certain common law provisions in the limited area of present-day Washington, D.C., but the power to exercise exclusive legislation in all cases whatsoever over that area didn’t mean that common law never applied there.

If common law never applied there, then why should common law have applied in any of the several States? We know that common law did apply in the several States, and, therefore, common law always did, and still does apply to Washington, D.C.

The First Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Despite the later incorporation of the First Amendment against the States with the Fourteenth Amendment, the First Amendment couldn’t be more clear that it was only intended to restrict Congress and not the courts or State legislatures.

If no federal general common law ever existed, then Washington, D.C. was lawless until the first Act of Congress was passed. Does it make sense that murder wasn’t unlawful in Washington, D.C. until Congress made it unlawful?

And does it make sense that the common law right of quiet enjoyment of real property has never applied there? The implication of that and the First Amendment is that D.C. residents don’t have the right of peaceful enjoyment of their property, since Congress is prohibited from restricting peaceful, but noisy assembly.

Article I, Section 9, clause 2 of the original Constitution states that:

The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

Are we to assume that the Framers of the Constitution had it in their minds that there would be no habeas corpus protection in Washington, D.C. unless Congress granted it by an Act of Congress?

Therefore, regardless of what the U.S. Supreme Court took 149 years to decide in their 6-2 split decision in 1938, general federal common law did exist, and still does exist.

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