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Some Serious Talk on the Second Amendment

(I know this is a little long, but bear with me, I think it’s important. Many thanks to Professor Eugene Volokh, UCLA for his always engaging blogs. He made, unaware to him, many contributions to this post.)

In the increasing entrenchment of both sides of the current gun control debate, a little knowledge goes a long way. So I thought it incumbent upon those with some knowledge to try and clarify some of the issues, and provide some historical perspective. The Second Amendment is fairly clear, when viewed in the light of what the drafters of the Constitution meant.
“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 grammar, this would be broken down as follows:
“A well regulated Militia,” is a nominative absolute. It is modified by:
“being necessary to the security of a free State,” which is a participle phrase.
“the right of the people” is the subject of the sentence, followed by:
“to keep and bear arms” which is an infinitive phrase modifying “right.”
“shall not be infringed.” Which is the verb phrase that makes the whole thing a sentence. “Not” being, of course, an adverb that modifies “be infringed.”
Now, as we remember from our grade school lessons, a nominative absolute consists of a substantive (a noun or noun substitute) and a participle and has no grammatical connection with the rest of the sentence. It is the same as the Latin ablative, which the drafters were all familiar with. In other words, the part about “well regulated etc.” is hortatory, not prescriptive.
Put into modern colloquial English, it would read thus, more or less: “Because a functioning militia is necessary for the country’s safety, the people’s right to keep and bear arms shall not be infringed.”

What is a militia? The Dick Act of 1903 breaks it out into the organized, and the unorganized militias. The unorganized militias, according to the federal government, are every male between 17 and 45 who can bear arms. The organized militia is what is now known as the National Guard. And this leads us into the competing theories of what the right to keep and bear arms is about.

Professor Volokh explains thee four competing theories like this:

First, there is the States’ Right Theory. This theory posits that the Second Amendment guarantees the rights of the states to maintain their own militias, and prohibits the federal government from disarming the state militias. Under this theory, the right “belongs” to the states, in the sense that violating the right is an injury to the state, and that only a state can sue to vindicate this right.

Second, there is the National Guard Members’ Right Theory. This theory holds that the Second Amendment guarantees the rights of those people who belong to a state-established National Guard-type body, and prohibits the federal government from disarming these people to the extent that they are acting in their capacities as members of these bodies. Under this theory, the right belongs to individual citizens, but only those whom the state makes members of this body, and only to the extent that the state requires them to use arms within this body.

Then there is the Individual Right Aimed at Deterrence of Government Oppression Theory. This theory says that the Second Amendment guarantees the rights of pretty much all people (perhaps excluding felons, minors, and maybe noncitizens), and prevents the federal government from disarming them. The purpose of this right is to deter government oppression, on the theory that the government is less likely to oppress people who have the power to fight back. The right belongs to each person.

Then there is the fourth theory, the Individual Self-Defense Right Theory, that the Second Amendment guarantees the rights of all people, and prevents the federal government from disarming them. The purpose of this right is to enable people to defend themselves against criminals. The right belongs to each person.

There are other theories, of course. The most popular, at least in volume, is the “OMG, they’re so scary that only the government should have them.” theory, followed closely by the “the drafters of the Constitution only knew about muskets, so that’s all you should have” theory.

The real question is what did the Founders mean by the amendment? Let’s look at the history they knew, and being educated, knew well.

The Federalist No. 46 (James Madison):
“Let a regular army, fully equal to the resources of the country, be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. The highest number to which, according to the best computation, a standing army can be carried in any country, does not exceed one hundredth part of the whole number of souls; or one twenty-fifth part of the number able to bear arms. This proportion would not yield, in the United States, an army of more than twenty-five or thirty thousand men.
To these would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. Those who are best acquainted with the last successful resistance of this country against the British arms, will be most inclined to deny the possibility of it.
Besides the advantage of being armed, which the Americans possess over the people of almost every other nation… “

The Federalist No. 29, (Alexander Hamilton):
“Little more can reasonably be aimed at, with respect to the people at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.
“[I]f circumstances should at any time oblige the government to form an army of any magnitude that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens. This appears to me the only substitute that can be devised for a standing army, and the best possible security against it, if it should exist.”

Tucker St. George taught law at the University of William and Mary, and was a Virginia state judge. This is his view, from a book he wrote in 1803:
“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.
“The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms, is under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. “

U.S. Supreme Court Justice Joseph Story wrote Familiar Exposition of the Constitution of the United States (1840), a popularization and abridgement of his Commentaries on the Constitution.

“The next amendment is, “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.” One of the ordinary modes, by which tyrants accomplish their purposes without resistance, is, by disarming the people, and making it an offence to keep arms, and by substituting a regular army in the stead of a resort to the militia. The friends of a free government cannot be too watchful, to overcome the dangerous tendency of the public mind to sacrifice, for the sake of mere private convenience, this powerful check upon the designs of ambitious men.
“The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers; and will generally, even if these are successful in the first instance, enable the people to resist and triumph over them.”

Michigan Supreme Court Justice Thomas Cooley was the leading constitutional commentator of the late 1800s; he wrote A Treatise on Constitutional Limitations (1868). He wrote:

“Among the other defences to personal liberty should be mentioned the right of the people to keep and bear arms. A standing army is peculiarly obnoxious in any free government…The alternative to a standing army is “a well-regulated militia,” but this cannot exist unless the people are trained to bearing arms.
“The Second Amendment, like most other provisions in the Constitution, has a history. It was adopted with some modification and enlargement from the English Bill of Rights of 1688. The right declared was meant to be a strong moral check against the usurpation and arbitrary power of rulers, and as a necessary and efficient means of regaining rights when temporarily overturned by usurpation.
“The Right is General. — It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and they need no permission or regulation of law for the purpose.
“What Arms may be kept. — The arms intended by the Constitution are such as are suitable for the general defence of the community against invasion or oppression.”

And finally, let’s look at the State Constitutions around the time of the ratification of the Constitution:

Connecticut: Every citizen has a right to bear arms in defense of himself and the state (1818)
Kentucky: [T]he right of the citizens to bear arms in defense of themselves and the State shall not be questioned (1792)
Massachusetts: The people have a right to keep and to bear arms for the common defence (1780)
North Carolina: [T]he people have a right to bear arms, for the defence of the State; and, as standing armies, in time of peace, are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to, and governed by, the civil power (1776)
Pennsylvania: The right of the citizens to bear arms in defence of themselves and the State shall not be questioned (1790)
Rhode Island: The right of the people to keep and bear arms shall not be infringed (1842)
Tennessee: [T]he freemen of this State have a right to keep and bear arms for their common defence (1796)
Vermont: [T]he people have a right to bear arms for the defence of themselves and the State — and as standing armies in time of peace are dangerous to liberty, they ought not to be kept up; and that the military should be kept under strict subordination to and governed by the civil power (1777)

It all seems pretty clear to me.

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School Personnel Work for Us

There’s a video making the rounds in which a high school history teacher and Democratic city councilman in California made stupid remarks about those who enlist in the military, those who serve in the military, veterans, and the general military leadership. Now that’s nothing new. Nor is it new that he made his rant in the classroom, in front of students. Nor is it really new that he used a lot of vulgarities. In fact, there’s nothing really new in this story at all; democrats saying stupid things could be a reality show.
Here’s a sample of the councilman’s remarks:
“We’ve got a bunch of dumbs***s over there,” “Think about the people who you know who are over there — your freakin’ stupid uncle Louis or whatever, they’re dumbs***s. They’re not, like, high-level thinkers, they’re not academic people, they’re not intellectual people, they’re the freakin’ lowest of our low
“So, if you join the military, it’s ’cause you have no other options. Because you didn’t take care of business academically or your parents didn’t love you enough to push you, and then you didn’t love yourself enough to push yourself. …
So what’s new, right?
What intrigued me about the story, however, was the response to the story by El Rancho Unified School District Superintendent Karling Aguilera-Fort who said, “We cannot expose the disciplinary measures because it is a personnel matter, but there will be disciplinary measures taken.”
Why do we tolerate the idea that the personnel actions taken both by and against our employees are private? They work for us and we pay their salaries. More than anyone else, since we trust these people with our children, we need to know, and have a right to know the personnel history of any school employee.
Karling Aguilera-Fort is employed by the taxpayers. The school board that hired her is elected by the taxpayers. The teacher is paid by the taxpayers. The school board’s lawyer is paid by the taxpayers. The school’s electric bill is paid by the taxpayers. Ad infinitum; you get my drift. How dare our employee tells us what we can and cannot know about those who act in loco parentis.
As parents, it is our right and duty to raise our children as we see fit. Knowing who and what our teachers are is an essential part of whether we trust schools and school administrations to caretake our children on a daily basis.
It’s not as if the school board has national security implication, for God’s sake. And, by the way, this vulgarian councilman and teacher has run afoul of civilized behavior before. He has used racial epithets, and struck students. I think it’s clear that the parents of the school district, at least, have a vested interest in knowing what happens to this mope. And not just the locals, either. My tax dollars find their way into every public school in the nation. I have an interest in knowing what my employees do.
It’s time to reverse this trend of the government telling us we can’t know things. We elect and hire these barely-functional hirelings.

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On Climate Change

I think people are asking the wrong questions on climate change. And then, when they don’t get the answer they want, they devolve into ad hominems and insults.
The questions that should be asked are:
How fast is the climate changing? We all know climate changes. Charles Dickens lived through a little ice age. According to some scientists, we’re heading for a new Maunder minimum that might usher in another. Other scientists predict warming, yet others predict cataclysmic disruptive events. Climate changes. That’s not really the question, though.
The question that the climate doom-and-gloomers really want to ask is “Do you believe in anthropogenic global warming?” This is an entirely different question from the first, and I’m not convinced that we know, to a scientific certainty, the answer.
But suppose we agree, arguendo, that the answer to the above questions are it’s changing fast, and yes, it’s manmade. By itself, those answers tell us nothing. Nothing, that is, except that attitude of the questioner. Because the people that ask those questions aren’t looking for answers. They’re looking to judge your level of social justice awareness, while at the same time signaling their own virtue. The really serious questions come after those two.
Suppose, as I said, that we agree that climate change is happening, and we’re causing it. By itself, that’s a big nothing. We’ve been changing the climate ever since we discovered fire and started liberating all that sequestered carbon dioxide. The question is, has our changing of the climate, and pari passu, the physical environment in which we live, made things better or worse for mankind as a whole? I think any rational person would agree that mankind’s altering the environment has been a good thing. Bridges, canals, wells, penicillin, sanitation and medicine all alter the natural world for better. We haven’t always been perfect, and in some cases we’ve been downright horrible, but overall that changes have been good. I doubt anyone would trade their standard of living today for that of someone in the 6th century A.D.
Suppose that AGW (anthropogenic global warming) results in an increase in the available arable land worldwide, thereby alleviating world hunger issues? Would you agree or disagree that eliminating starvation is good? There may be other benefits that I am, as yet, unaware of. I am sure that the potential benefits are being explored; it would be unscientific and short-sighted not to.
Finally, the last question that goes unanswered is what can we seriously do about it, if, in fact, AGW is real? The Paris Accord that has the lunatics all kerfluffled promised to reduce the global average temperature one-tenth of one degree by the end of the century. At an astronomical cost to be paid for by the least polluting countries on earth. Under the Paris Accord, China has no obligation to reduce carbon emissions until 20 years from now. That would put the U.S. at an enormous disadvantage economically and militarily. How far shall we reduce our standard of living to allow China and India, Niger and Cameroon, to do as they please?
Until we can answer all these questions, to a scientific certainty, I think Trump did the right thing. The Paris Accord is less about the environment and more about taking from the have to give to the have-nots.
And finally, apropos of nothing I’ve written above, bring back DDT for God’s sake. There are children dying of malaria that could be saved by its use. And, by the way, Kathy Griffin is a whiny little idiot.

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The Coming Storm

I had a small chat with a friend of mine today, and it touched on the subject of what appeared to be an ever-increasing amount of violence in America. Specifically, in this conversation, the recent shooting in Fresno and the one in the Midwest that was broadcast live on Facebook. Our chat got me thinking.
The two acts of violence are not outliers or statistical anomalies. They are part and parcel of a process that has been going on for some time, but has recently devolved into publicly tolerated, if not accepted, political violence. In the Fresno shooting, we have the terrorist proclaiming his hate for white people and shouting “allahu ahkbar.” The press, specifically AP, whitewashed this by saying the terrorist shouted “’God is great’ in Arabic.”
The apparently motive-less shooting of an elderly black man by a younger black man demonstrates this lack of public opprobrium when the police spokesman says that he wishes we could have taken the killer alive, so we could get him help.
And while this was going on, out in Berkeley the “antifa” activists were inciting violence in their cause to prevent fascism. If one speaks out publicly against their position, they use violence to shut that speech down. The irony is lost upon them, although that is to be expected, given the state of public education.
At the same time, we have a public college professor advocating the assassination of the president of the US.
This is just in our little corner of the world. Europe fares no better. Wave after wave of “refugees” are swarming into Europe, demanding to be taken care of on the taxpayers dime, while refusing to assimilate and creating crime waves of epic proportions.
In the middle-east, it is a perilous proposition to be a Christian or even a secularist. The savages are destroying centuries of culture; art, history, civilization are all falling beneath the onslaught of their savagery. The US not only approves of these atrocities, we actively cooperate with the barbarians. We have a stated goal in Syria of removing the only leader who protected the civilized people.
It’s been exported to Africa. Boko Haram, al Shabab, and Al-Qaeda in the Maghreb and the Sahel, among others, have made Africa a bigger hell hole than even Winnie Mandela could have imagined.
The far east doesn’t escape. China, Thailand, and Burma have all had their problems with islamic terrorism and insurgency.
All of this points in one direction. There is an active, violent, and relentless attack on, for lack of a better term, western Christendom and democracy. The forces of savagery and barbarism are engaged in a struggle to bring about the destruction of the west. The antifa people are upfront about admitting it, as are the young socialists who wish to do away with capitalism and private property. The islamic movement is not only upfront about it, but they advertise their disdain for us every time they televise another of their savage killings.
The last great civilization, that of the Greeks and Romans, were destroyed by barbarians from without. As civic virtue and the desire to preserve their culture waned, the barbarians grew ever-more powerful, until it was too late. Now Athens and Rome are just notes in history books.
It seems we might be on the same path. Civic virtue is declining. It is becoming ever more difficult to suggest that there are virtues worth inculcating, and vice worth decrying. It is no longer possible to assert the superiority of one’s own culture without being branded a racist, or a sexist, or a homophobe, or whatever current slur passes for argument nowadays.
If we, as a nation, and a people, don’t decide that our culture, western Christendom, is worth defending, we may end up like Rome: merely a footnote, if there are any books left unburnt.

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Why Trump’s Tax Forms Are Irrelevant

The left is continuing it’s clamor for Trump to release his tax returns for various years. Some of them have gone back as far as the 1970’s to try and find some sort of dirt on him. But there are at least three reasons, two practical, one principled, that disclosing his tax records is a bad idea.
The first practical reason is that disclosing them would not benefit him at all. His detractors would complain about everything in them and his supporters would point out every good thing in them.
The second practical reason is that the vast majority of Americans would not understand them; I have seen estimates that Trump’s tax returns run about 1200 pages. He has accountants and lawyers that are experts in taxes doing his returns. I have taken classes at the doctoral level in federal taxation and I have serious doubts that I could follow taxes that are as complex as his must be.
So that leaves the average American in the position of listening to someone else tell them what is in his taxes. Rachel Maddow, assuming she is still on the air, would tell her listeners one thing, Eric Bolling would tell his supporters another. But neither of them would have read all the pages of Trump’s return, either. They would have employed experts to explain it to them, and then they would explain it to us. So any information you get from those returns would be third-hand, at best, and unlikely to sway anybody’s mind about Trump.
The IRS has undoubtedly audited Trump at least once or twice over the past decade. Yet there has been no accusation of chicanery in his returns, nor has there been any IRS enforcement action taken against him, that I am aware of. And, by the way, the tax code is so byzantine that even the IRS gives out erroneous information on a regular basis.
So, absent any smoking gun, or even lukewarm gun, and the lack of the average person to understand the returns, what’s the upside to disclosing his returns? None. Let’s be honest. If Trump tomorrow discovered a cure for cancer, the left would complain that he caused the unemployment of thousands of doctors and researchers.
And then there’s the principled reason. Unless someone can make a credible case that Trump’s tax returns contain information that make him unsuitable to be president, why shouldn’t the returns remain private? Have we reached a point where any aspiration to political office now demands a complete and absolute transparency into all private aspects of a candidate’s life?
And to those who will say that if he had nothing to hide he would release them, I would ask if any of them have drapes on their windows, or doors to their bedrooms. There is a difference between privacy and hiding.
The idea that these tax returns will shed any meaningful light on any meaningful topic is simply silly. The left’s insistence on their disclosure is counter-productive and trivial.

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Too Many Laws

“There is no one in the United States over the age of 18 who cannot be indicted for some federal crime,” retired Louisiana State University law professor John Baker told the Wall Street Journal in July 2011. “That is not an exaggeration.”
I have long maintained that there are too many laws and regulations in America. And while I applaud attempts by Trump to roll back the regulatory overload, more needs to be done.
There have been attempts at figuring out how many laws there are in this country, but none have been successful. Between the cities, counties, townships, states, and the federal government, getting an accurate number is virtually impossible.
In one try at it, in 1982 the Justice Department tried to determine the total number of criminal laws. In a project that lasted two years, the Department compiled a list of approximately 3,000 criminal offenses. And keep in mind this was 35 years ago. This effort was considered, at the time, the most exhaustive attempt to count the number of federal criminal laws. In a Wall Street Journal article about this project, “this effort came as part of a long and ultimately failed campaign to persuade Congress to revise the criminal code, which by the 1980s was scattered among 50 titles and 23,000 pages of federal law.”
Fast forward to 2015. The United States now has some 300,000 federal regulations, and this number gets bigger every year. In addition to the regulations, there are about 4,500 federal criminal statutes on the books carrying fines or prison terms for offenders. And this is only the Federal level, and doesn’t include any lower level laws.
But the problem isn’t just the number of laws, it’s their byzantine application in ways that were never intended by the drafters. For example, consider the case of Yates v. he United States, 135 S. Ct. 1074 (2015).
John Yates was a commercial fisherman in the Gulf of Mexico. A state conservation officer, who was also a deputized federal agent, boarded his vessel to inspect their catch of red grouper. After inspecting some 3,000 fish, the official identified 72 red grouper that did not meet the minimum 20-inch conservation standard and issued a citation from the state. He ordered Yates to bring the undersized catch when he returned to port. When Yates returned to port the next day, armed federal agents stood by while inspectors reexamined his catch, finding only 69 fish under the minimum standard. Federal officials accused Yates of destroying evidence. Three years later, the federal government charged him with the destruction of evidence to impede a federal investigation.
In August 2011, Yates was convicted and sentenced under a provision in the 2002 Sarbanes–Oxley law, passed in the wake of the Enron scandal. The law’s “anti-shredding” provision, meant to apply to the destruction of documents or files related to a federal financial-fraud investigation, has nothing to do with fish.
The Supreme Court threw out the conviction, relying more on common sense than any technical legal rationale.
But the crux of the problem is this. There are too many laws, and those laws are applied in too many unintended ways. No man is innocent in today’s America. The state, which already spies on us, has also made it impossible to obey the law. The Supreme Court has gone so far as to say that a policeman may stop you, search you, and use the results of that search against you, even if you had broken no law giving the cop reason to stop you, provided that the officer believed you had broken a law. In Heien v. North Carolina, the Supreme Court ruled that a violation of the 4th amendment is perfectly acceptable if the violation results from a “reasonable mistake about the law” on the part of police. Tacitly, the Supreme Court has admitted that even those hired to enforce the law can’t know the law.

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Everyone’s Missing the Point

This week, and probably next, the talking heads in the media have been all in a tizzy over Obamacare, its repeal, and its replacement. There has been the usual caterwauling from the unhinged-from-reality left about grandma and little Johnny being left to die while the rich republicans run over them with their Cadillacs. There has been the entirely ineffective table-thumping by various and sundry republicans who should know better than to advertise their impotence. Even the libertarians like Paul Rand have been on the bandwagon of public idiocy about “health care.”
The reason I put health care in quotes is because nobody ever maintained that Obamacare was about the provision of care. It was about the provision of insurance, either provided by the government or the private sector insurance companies. It was about who should be covered by insurance, by whom they should be covered, what procedures should be covered, and who should pay for it.
We had the fights, and the democratically controlled congress produced a bill of such brobdingnagian proportions that not one single congressmen, president, or judge can be said to have read every word, let alone all of the cross-references to other parts of the US Code. But, Obama signed it, and the Supreme Court allowed its mandate. And, mirabile dictu, the promises from the left about “heath care” were chimerical. Rates increased catastrophically, doctors abandoned patients, and plans disappeared, leaving many to depend on the exchanges, if there were any.
And, for years, the right tried to repeal this Titanic of laws. They were elected, again and again, on promises to repeal. But, until now, they have been unable. Now, the stars have aligned. A republican Senate. A republican House. A republican in the White House. And, looming on the horizon, a new Scalia for the Supreme Court. So with all these adventitious circumstances, what has the right done?
They have fallen to arguing amongst themselves about whether to replace with the same thing, the same thing with a different name, a slightly different thing, or a greatly different thing. Not one of them that I am aware of has asked the fundamental question that should have been asked of Harry Reid and Nancy Pelosi at the start of this rough beast. And that is, where is the constitutional justification for the government requiring, providing, and/or regulating health insurance?
I have read, reread, and scrutinized the Constitution, searching for a justification for Obamacare and can find none. I have likewise searched for the justification of a replacement by the republicans and can find none. Nowhere in the Constitution does the provision of health care by the Federal government appear. And yet, not one republican has voiced his opposition to either Obamacare or its replacement on the principal of governmental overreach.
I suppose that I should not be surprised. Every day, more and more people demand more and more from the government. And every day we lose more and more freedom.
Obamacare requires that we have insurance, or pay a fine. The republican repeal will likely contain a like mandate, due to actuarial necessity.
The young left burns schools and uses the heckler’s veto to shut down free speech, and demands that the government cooperate.
Free and open courts have disappeared with the Patriot Act and the FISA courts.
Social Security and Medicare/ Medicaid have become so sacrosanct that no politician will even discuss the programs other than to pledge their undying support, no matter the cost.
One can’t even grow one’s own wheat without running afoul of the ever-growing government.
At what point do we stand on principal, and stand up and say, “enough?” At what point do we realize that freedom is always to be preferred over the mother’s teat? Our forefathers did it over a crappy little tea tax. We, so far, can’t even be bothered to stop a 20 trillion dollar (and growing) debt, which is surely a crushing tax on us all.
At some point, the pledge of allegiance and the national anthem are going to become ironic

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