Posted on 04/04/2006 4:30:44 AM PDT by Merchant Seaman
Plaintiff’s Motion for Negotiated Rulemaking under Special Procedures of Rule 16(c)(9) Fed.R.Civ.P. with the Defendants, the BATFE and the U.S. Congress (See 5 U.S.C. § 560 and 33 C.F.R. § 1.05–60) To Enact Federal Preemption of State Gun Control Laws and the Repeal/Revision of Seclected Federal Gun Control Lawsal and Regulations for the National Open Carry Handgun Endorsement on Plaintiff’s Merchant Mariner’s Document and for the People as One Condition for Settlement Case Remanded on Second Amendment Grounds
Plaintiff’s Motion for Negotiated Rulemaking under Special Procedures of Rule 16(c)(9) Fed.R.Civ.P. with the Defendants, the BATFE and the U.S. Congress (See 5 U.S.C. § 560 and 33 C.F.R. § 1.05–60) To Enact Federal Preemption of State Gun Control Laws and the Repeal/Revision of Seclected Federal Gun Control Lawsal and Regulations for the National Open Carry Handgun Endorsement on Plaintiff’s Merchant Mariner’s Document and for the People as One Condition for Settlement Case Remanded on Second Amendment Grounds
While Plaintiff’s Motion for Rehearing and Rehearing En Banc refuting the DC Circuit’s affirmation of the U.S. District Court/DC’s dismissal with prejudice of his RICO Act claims the Plaintiff construes the DC Circuit’s order remanding his case for further proceedings on Second Amendment grounds as presently binding on the U.S. District Court/DC to proceed.
There is nothing preventing the Court (Judge Reggie B. Walton) from granting this Motion but for his ideological predilection against the Second Amendment as an individual right.
On that basis the Plaintiff files this Motion for Negotiated Rulemaking in defiance of the U.S. District Court/DC’s demonstrated hostile bias against the Second Amendment
“Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court.” Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 620-21 (1857) (Curtis, J., dissenting).
The Plaintiff cites the law review by Keith E. Whittington, The Road Not Taken: Dred Scott, Judicial Authority, and Political Questions, The Journal of Politics, Vol. 63, No. 2, May 2001, Pp. 365–391; Princeton University, as background for this Motion for Negotiated Rulemaking.
In Plaintiff’s original case, U.S. District Court/DC, No. 02-1435, Judge Ellen Segal Huvelle misconstrued the law and facts in her Memorandum dismissing the Plaintiff’s case with prejudice when she stated:
“. . . 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.”
Judge Huvelle’s statement above reveals either a criminally willful misrepresentation of the law and facts based on her political ideology over the Rule of Law or an incompetence in applying case law or the law itself to the facts of Plaintiff’s case. Either way it is evidence of misconduct. The Dred Scott case not only pre-dates the Thirteenth and Fourteenth Amendment but it was also the caustic origin for the Thirteenth and Fourteenth Amendments. Citing from the Dred Scott opinion:
“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 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.”
Dred Scott v. Sanford,60 U.S. (19 How.) 393, 417 (1857) (Chief Justice Taney).
As to Judge Huvelle’s remark “. . . unambiguously requires the overturning of a whole variety of gun control legislation.”she ignores the face that federal preemption of State laws is found in the U.S. Constitution, Article VI, Clause 2:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” and delegatedly in the Rulemaking Process of federal agencies and of the U.S. Coast Guard.
Citing from J. Norman Heath, Exposing the Second Amendment: Federal Preemption of State Militia Legislation, 79 U. Det. Mercy L. Rev.39 (2001):
“Professor Laurence H. Tribe identifies in Supreme Court jurisprudence three modes of federal preemption exercisable by Congress against the states:
(1) “express preemption,” where Congress has in so many words declared its intention to preclude state legislation of a described sort in a given area;
(2) “implied preemption,” where Congress, through the structure or objectives of its enactments has by implication precluded a certain kind of state regulation in an area; and
(3) “conflict preemption,” where Congress did not necessarily focus on preemption of state regulation at all, but where the particular state law conflicts directly with federal law, or otherwise (p.44) stands as an obstacle to the accomplishment of federal statutory objectives.
In addition, Professor Tribe recognizes:
Because congressional purposes can be either substantive or jurisdictional, a state action may be struck down as an invalid interference with the federal design either because it is in substantive conflict with the operation of a federal regulation or program or because, whatever its substantive impact, it intrudes jurisdictionally upon a field that Congress has validly reserved for exclusively federal regulation. It is this latter phenomenon that some describe as field (or "occupying the field") preemption - which, it is worth stressing, may fall into any of the three categories set forth above.”
Excerpt from the Conclusion of J. Norman Heath’s law review endorses Plaintiff’s allegation that the U.S. District Court/DC possesses a hostile bias against the Second Amendment:
“The suspicious obstinance of the lower federal courts in clinging to the "states' right" interpretation presents a serious obstruction to the proper adjudication of the nature and scope of the Second Amendment right, and thus serves only to exacerbate and prolong the current public-policy impasse regarding gun ownership. The American public deserves a more considered, consistent, and constitutional approach to the delineation of the Second Amendment right. The decisions of the lower federal courts in Second Amendment cases cannot ultimately withstand high court scrutiny; a consistent body of Supreme Court jurisprudence spanning 180 years places federal preemption of state militia powers among the most well-settled propositions in American constitutional law.”
The Plaintiff alleging that there is ample evidence proving that state and federal gun control laws and federal regulations since the National Firearms Act of 1933, in their accumulative effect, have served to defeat the common defence against violent crimes in society hereby takes action to promote the common defence with this Motion for Negotiated Rulemaking.
U.S. Senate Document No. 103-6; 103d Congress, 1st Session The Constitution of the United States of America Analysis and Interpretation:
Annotations of Cases Decided By the Supreme Court of the United States to June 29, 1992
PURPOSE AND EFFECT OF THE PREAMBLE
Although the preamble is not a source of power for any department of the Federal Government, 1 the Supreme Court has often referred to it as evidence of the origin, scope, and purpose of the Constitution. “Its true office,” wrote Joseph Story in his COMMENTARIES, “is to expound the nature and extent and application of the powers actually conferred by the Constitution, and not substantively to create them. For example, the preamble declares one object to be, ‘to provide for the common defense.’ No one can doubt that this does not enlarge the powers of Congress to pass any measures which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?”
Special Procedures under Rule 16(c)(9)
The Commandant of the U.S. Coast Guard has the authority under 14 U.S.C. § 2; 93(a); § 141; § 631; § 632; § 633; and 33 C.F.R. § 1.05–1; § 1.05–5; § 1.05–10; § 1.05–60; to not only issue the Merchant Mariner’s Document with the “National Open Carry Hand/Small Arms and Light Weapons” endorsement but to initiate Negotiated Rulemaking, under the authority of 5 U.S.C. § 569, and 33 C.F.R. § 1.05-60 with the Plaintiff and with representatives from the:
■ Office of the President ■ U.S. Senate’s Legislative Counsel (2 U.S.C. 271), ■ U.S. House of Representatives’ Legislative Counsel (2 U.S.C. § 281), ■ U.S. House of Representatives’ Office of the Law Revision Counsel (2 U.S.C. § 285). ■ U.S. House Subcommittee on the Coast Guard and Maritime Transportation ■ U.S. Department of Homeland Security ■ U.S. Department of Justice ■ U.S. Coast Guard Marine Safety and Security Council ■ (National Governors Association), ■ (National Association of County Officials), ■ National Rifle Association ■ Jews for the Preservation of Firearms Ownership ■ Second Amendment Sisters ■ Second Amendment Foundation ■ Gunowers of America ■ Seafarers International Union and other seafaring labor unions.
Negotiated Rulemaking With the U.S. Government
5 U.S.C. § 569. Encouraging Negotiated Rulemaking
(a) The President shall designate an agency or designate or establish an interagency committee to facilitate and encourage agency use of negotiated rulemaking. An agency that is considering, planning, or conducting a negotiated rulemaking may consult with such agency or committee for information and assistance.
5 U.S.C. § 566. Conduct of Committee Activity
(a) Duties of Committee. - Each negotiated rulemaking committee established under this subchapter shall consider the matter proposed by the agency for consideration and shall attempt to reach a consensus concerning a proposed rule with respect to such matter and any other matter the committee determines is relevant to the proposed rule.
(b) Representatives of Agency on Committee. - The person or persons representing the agency on a negotiated rulemaking committee shall participate in the deliberations and activities of the committee with the same rights and responsibilities as other members of the committee, and shall be authorized to fully represent the agency in the discussions and negotiations of the committee.
(c) Selecting Facilitator. - Notwithstanding section 10(e) of the Federal Advisory Committee Act, an agency may nominate either a person from the Federal Government or a person from outside the Federal Government to serve as a facilitator for the negotiations of the committee, subject to the approval of the committee by consensus. If the committee does not approve the nominee of the agency for facilitator, the agency shall submit a substitute nomination. If a committee does not approve any nominee of the agency for facilitator, the committee shall select by consensus a person to serve as facilitator. A person designated to represent the agency in substantive issues may not serve as facilitator or otherwise chair the committee.
(d) Duties of Facilitator.
A facilitator approved or selected by a negotiated rulemaking committee shall -
(1) chair the meetings of the committee in an impartial manner;
(2) impartially assist the members of the committee in conducting discussions and negotiations; and
(3) manage the keeping of minutes and records as required under section 10(b) and (c) of the Federal Advisory Committee Act, except that any personal notes and materials of the facilitator or of the members of a committee shall not be subject to section 552 of this title.
(e) Committee Procedures.
A negotiated rulemaking committee established under this subchapter may adopt procedures for the operation of the committee. No provision of section 553 of this title shall apply to the procedures of a negotiated rulemaking committee.
(f) Report of Committee.
If a committee reaches a consensus on a proposed rule, at the conclusion of negotiations the committee shall transmit to the agency that established the committee a report containing the proposed rule. If the committee does not reach a consensus on a proposed rule, the committee may transmit to the agency a report specifying any areas in which the committee reached a consensus. The committee may include in a report any other information, recommendations, or materials that the committee considers appropriate. Any committee member may include as an addendum to the report additional information, recommendations, or materials.
(g) Records of Committee.
In addition to the report required by subsection (f), a committee shall submit to the agency the records required under section 10(b) and (c) of the Federal Advisory Committee Act.
Federal Advisory Committee Act
5 U.S.C. Appendix - Federal Advisory Committee Act § 2. Findings and Purpose
(a) The Congress finds that there are numerous committees, boards, commissions, councils, and similar groups which have been established to advise officers and agencies in the executive branch of the Federal Government and that they are frequently a useful and beneficial means of furnishing expert advice, ideas, and diverse opinions to the Federal Government.
(b) The Congress further finds and declares that -
(1) the need for many existing advisory committees has not been adequately reviewed;
(2) new advisory committees should be established only when they are determined to be essential and their number should be kept to the minimum necessary;
(3) advisory committees should be terminated when they are no longer carrying out the purposes for which they were established;
(4) standards and uniform procedures should govern the establishment, operation, administration, and duration of advisory committees;
(5) the Congress and the public should be kept informed with respect to the number, purpose, membership, activities, and cost of advisory committees; and
(6) the function of advisory committees should be advisory only, and that all matters under their consideration should be determined, in accordance with law, by the official, agency, or officer involved.
Coast Guard Regulations for Negotiated Rulemaking
33 C.F.R. § 1.05–60 Negotiated Rulemaking
(a) The Coast Guard may establish a negotiated rulemaking committee under the Negotiated Rulemaking Act of 1990 and the Federal Advisory Committee Act (FACA) (5 U.S.C. App. 2) when it is in the public interest.
(b) Generally, the Coast Guard will consider negotiated rulemaking when:
(1). There is a need for a rule;
MY COMMENT: The need exists because the U.S. Congress in their legislative responsibilities, the Department of Homeland Security, the U.S. Cost Guard, and the BATFE failed to acknowledge, legislate or regulate the Second Amendment rights of U.S. seafarers in intrastate and interstate travel.
(2). There are a limited number of representatives for identifiable parties affected by the rule;
MY COMMENT: The Negotiated Rulemaking will be between the Plaintiff and the Defendants. Representatives from the Seafarers International Union may elect to be a party to the Negotiated Rulemaking on the Plaintiff’s behalf. Representatives from other seafaring unions my elect to be present.
(3). There is a reasonable chance that balanced representation can be reached in the negotiated rulemaking committee and that the committee members will negotiate in good faith;
MY COMMENT: The Plaintiff suggests that representatives from theOffice of the President; U.S. Senate’s Legislative Counsel (2 U.S.C. 271); U.S. House of Representatives’ Legislative Counsel (2 U.S.C. § 281); U.S. House of Representatives’ Office of the Law Revision Counsel (2 U.S.C. § 285); U.S. House Subcommittee on the Coast Guard and Maritime Transportation; U.S. Department of Homeland Security; U.S. Department of Justice; U.S. Coast Guard Marine Safety and Security Council; (National Governors Association); (National Association of County Officials); National Rifle Association; Jews for the Preservation of Firearms Ownership; Second Amendment Sisters; Second Amendment Foundation; Gunowers of America; and the Seafarers International Union and other seafaring labor unions.
(4). There is a likelihood of a committee consensus in a fixed time period;
MY COMMENT: The Plaintiff concurs that their will be a consensus in a fixed time period.
(5). The negotiated rulemaking process will not unreasonably delay the rule;
MY COMMENT: The Plaintiff concurs that there will be no unreasonable delay of the rule (or rules).
(6). The Coast Guard has resources to do negotiated rulemaking; and
MY COMMENT: The Plaintiff concurs that the Coast Guard has resources to do negotiated rulemaking.
(7). The Coast Guard can use the consensus of the committee in formulating the NPRM and final rule.
MY COMMENT: The Plaintiff concurs that the Coast Guard can use the consensus of the committee in formulating the NPRM and final rule.
Citing from the U.S. Constitution, Article VI, Clause 3:
"The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."
Therefore, it is Plaintiff’s understanding that since his Motion for Negotiated Rulemaking has origins in the U.S. Constitution and the Bill of Rights the Court (Judge Reggie B. Walton) is bound by Oath and/or Affirmation to support the Constitution, the Bill of Rights by granting Plaintiff’s Motion for Negotiated Rulemaking. Denying Plaintiff’s Motion will mean another act of judicial misconduct will have been committed.
I guess I get to be the first to show my ignorance here. Can I have this in plain language, please?
Apparently, there has been some previous action regarding this issue and now you are asking for some favorable future action, right?
Ping.
placemark bump
Bump!
?
Nationalized carry legislation, or national preemption, really worries me. Besides the issue of state's rights, non-favorable firearms legislation will be forced down everyones' throats just as favorable firearms legislation will be.
National open carry is a dangerous carrot to dangle in front of us. Give them the ability to grant CCW, they can also take it away.
What's a Lawsal?
But, but . . . but . . . I was under the impression that the 'whole variety of gun control legislation' applied only to pre-13th Amendment slaves, not free men. Are they saying that we are now ALL slaves? I suppose we are, as long as we are in voluntary servitude to the feral gummint. Still a slave after all. Heh.
And back in scrool they taught me that Dred Scot was a terrible Court Decision. Well this is a pretty good synopsis of the rights of free men to carry arms and an explanation of why the Liberals want to restrict this right.
Thanks for catching that. I saw it earlier and forgot to correct it. It is a typo.
Should read "Federal Gun Control Laws"
YES. This litigation has been going on for 4 years now. I got my first "win" with the DC Circuit on February 26, 2006 when they remanded my case back to the U.S. District Court/DC for further procedings on Second Amendment grounds.
However, I filed a Motion for Rehearing and Rehearing En Banc refuting the dismissal of my RICO claims amounting to $9 million in damages.
WILL SOMEONE PLEASE RELAY THIS TO THE NRA FOR ME?
The "Negotiated Rulemaking" and "Federal Preemption" of state laws via my Second Amendment case is EXACTLY why the NRA ought to be backing my Second Amendment case.
As far as I am conerned the fact that they are not backing my case is prima facie evidence of political stupidity and self-centered foolishness on the part of the NRA.
Well at least you didn't type Federal Gun Control Slaws.
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