Free Speech and Assembly v. Conspiracy

The Bundy Affair If we find that the government is determined to circumvent the Constitution, in favor of increasing their power and influence, do we leave it to the courts to decide what the Founders intended?

Free Speech and Assembly v. Conspiracy

The Preamble to the Constitution begins with “We the People”. The reason for such an introduction is perhaps a bit more intricate than most understand it to be. There are two reasons for this introduction. The first being that the Articles of Confederation and the government created by it, were created by the states. It was a “perpetual union”, and could not dissolve itself. However, going to the ultimate source, the People, they had every right to reject that government for one created by themselves. The right is clearly spelled out in the Declaration of Independence, to wit:

That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed, that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

The People’s authority then is embodied in the document that had, just a decade earlier, justified separation from British rule. It was called into play, once again, since strife and turmoil were beginning to undermine the relationship between the states under the Articles of Confederation—a government created simply to unify the fight for Independence.

The second reason is based upon who was to approve the Constitution. Most of the states had created new governments, via their respective constitutions. However, the constitutions, in most states, were created and approved by the legislative body. Each had an amendment provision, though that provision allowed the successive legislatures to change the constitution through legislative enactment. This meant that the constitutions were an ineffective safeguard against usurpation. By the time of the Philadelphia Convention, most states had resorted back to the people for both ratification and amendment to their constitutions. This concept had permeated the legislative bodies, including that Convention—and the authority of the People, though through conventions, the sole source of authority. The government could not remove the constraints placed upon it by the Constitution.

About the time that the Philadelphia Convention was going on, a matter had come before the North Carolina Supreme Court. Their constitution did not allow the taking of land without compensation. However, a returning Tory had claimed his land, so the legislature enacted a law that prohibited the land being returned to him. This was in direct violation of the North Carolina Constitution, so the North Carolina Supreme Court demonstrated the relationship of the government to the very document that created it, when they decided the case, in Bayard v. Singleton, 1 N.C. 42 (1787):

“But that it was clear that no act they [the state legislature] could pass, could by any means repeal or alter the constitution, because if they could do this, they would at the same instant of time destroy their own existence as a legislature and dissolve the government thereby established.”


Now, understand the significance of what they said that if the government violated the Constitution that created them, it would, at the same time, void the Constitution and the government created by it.

Now, let’s look at two of the provisions of the First Amendment, though we must first understand that what became known as the Bill of Rights did have a Preamble that set out the purpose of the amendments:

THE PREAMBLE TO THE BILL OF RIGHTS
Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

Resolved by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States as amendments to the Constitution of the United States, all, or any of which articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

Articles in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.
Now that you understand why the Bill of Rights was adopted, we can look at the First Amendment:

Amendment I
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 [abridging] the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Perhaps we should consider just what led the Founders to include this Amendment. Two states, North Carolina and Rhode Island, refused to ratify the Constitution until a Bill of Rights was submitted to the states for ratification. As explained in the Preamble, they wanted to be assured that the federal government didn’t misconstrue or abuse its power.

From the Stamp Act, in 1765, to the events in Lexington and Concord, on April 19, 1775, the colonists demonstrated, occasionally violently, against the tax collectors, as well as other British officials, including judges, and they used muskets to do so. They saw such demonstrations as simply a louder voice, freedom of speech, when the ears that should have been listening refused to do so. The escalation in activity was consistent with the disregard by the government of the colonist’s legitimate concerns.

Did the colonists use these rights, of speech and assembly, to attempt to avoid conflict by forcing the government to abide by the British Constitution? Surely, this must be the case, as efforts were tried, for over a decade—to avoid the consequences of a government’s failure to abide by its agreement with the people. Were those same rights embodied in the Constitution so that redress could be had, so as to avoid a potentially serious conflict that evolved from the government’s failure to heed the will of the People?

Now, the government, today, wants to assign a stigma because those who stood up for the Bundys, both before and during the Unrustling of 2014, were doing so in an effort to avoid serious conflict. They never threatened anyone, though a response was threatened by those who chose to provide protection, should the government decide to fire on those in the wash under Interstate 15.

However, those in the wash did not brandish weapons. They did speak, and they were peaceably assembled. However, unlike 200 years ago, they are being prosecuted for asserting those two very fundamental rights of a free people. Those rights are embodied in the Constitution, including the right to bear arms in defense, which was their only purpose. So, does this call into play the consequence of the failure of the government to abide by the Constitution, as expressed in Bayard v. Singleton?

Now, there is another side to the story. That side is the government’s side. They had placed snipers above the ranch and were most often seen in battle gear and armed. There can be little doubt that the government snipers would aim their rifles at some of the supporters, and probably joke about being able to take some of them out.

When you consider that they did this while conducting one of the most heinous crimes conceivable in cattle country, Rustling (rounding up and stealing cattle, horses, or sheep). Now, the government argues that they had a court order allowing them to do so. However, we must consider whether a court can order an illegal act.

The ‘authority” which motivated the BLM to seize the Bundy cattle was a Summary Judgment signed by United States District Judge Lloyd D. George, on July 9, 2013. It reads:

IT IS FURTHER ORDERED that Bundy shall remove his livestock from the New Trespass Lands within 45 days of the date hereof, and that the United States is entitled to seize and remove to impound any of Bundy’s cattle that remain in trespass after 45 days of the date hereof.
It makes no mention of any authority to skirt existing state laws regarding branding inspection as health certificates, nor could they could transport the cattle across state lines. It contained no order that branding inspectors or health inspectors had to ignore the existing laws and allow the BLM to just walk over any law that was an obstruction to their intention to seize, transport across state lines, and violate the mentioned requirements.

The order by the Judge was, on its face, illegal and unlawful. However, it stands as justification for the BLM to point their guns at innocent people simply asserting their rights to speech, assembly, and personal protection, all protected by the First and Second Amendments to the Constitution. Whether the judge chose to violate the laws, or did the BLM, on its own policy, chose to violate these laws, I believe it is safe to say that the federal government chose to violate these laws.

Perhaps looking at the approach that the government took to seize the cattle might give insight into the possibility that they were treading in an area that might not be considered the proper role of the government. Instead of simply pursuing a civil solution to the problem, they prepared for war. As was discussed in a previous article, “Gold Butte Impound”, they had committed at least 242 people to seize the cattle. Their entire 20 page “Gold Butte Impound - Incident Action Plan” identifies and describes the intended implementation, and, perhaps, a conspiracy. This Plan includes office, contract, and field personnel. It also includes teams, just to name a few, such as:


Command Team, headed by Dan Love, who is currently in charge of security and intelligence for the BLM (sort of a BLM SWAT)
LP/OP Team (Listening Post and Observation Post) - whose initial duty was to “Find high ground and establish LP/OP”)
Interdiction Team - intercept and prohibit
First Amendment Team - who established two “Free Speech” areas, apparently trying to both recognize and restrict such deplorable activity.
MS/RP Team - Duties, Reactionary Force
MRT/FOB Team - Duties, Reactionary Force
Demolition Team
Media Escort Team - the propaganda arm
Night Operations Team - just wondering what night operations might be necessary
They came prepared for “Free Speech” by providing a location for the invitees to peaceably assemble and speak freely. However, since the patriots chose a different location that that designated, the invitation has become conspiracy. And, they have indicted those who came, if they asserted their Second Amendment right.

Now, does this sound like a government of the People? Or, is it a government committed to subduing the people? However, the government wants to assign any criminal act on the supporters, not the true criminal acts of the government. Such a massive force would surely convince the American public of the necessity.

Now, we need to look at the chicanery perpetrated by the government in the 63 page Superseding Criminal Indictment, filed nearly two years after the alleged crime (Did it take two years to figure out how to make the innocent appear guilty and the guilty to appear innocent?). Count One (page 37) reads:



Conspiracy to Commit an Offense Against the United States
(Title 18, United States Code, Section 371)

Now, for the record, let’s also look at 18 U.S.C. ¬ß 371: Conspiracy to commit offense or to defraud United States:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.

If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor
So, the question arises as to the ambiguity of the phrase “offense against the United States”. If the United States, or “any agency thereof”, is committing a criminal act in the eyes of the People, is it a crime to attempt to keep that act from being committed? Surely, in their arrogance, the United States, or any agency thereof, would feel offended, which I suppose to them constitutes an “offense”? However, even in this age of anybody being offended by nearly everything, I doubt that the subjective interpretation of offense is the intention of the statute.

Now, let’s look at the allegation of a conspiracy. My first reaction is that “two or more persons” sat down, behind closed doors, and planned this extravaganza to steal cattle back from the government, which cattle had been stolen by the government. Well, I think that it is more likely an effort to assure that if he cattle were stolen, there would be “just compensation” (See Fifth Amendment).

Continuing with the conspiracy aspect, it was not behind closed doors. Heck, it was all over the Internet. Granted, many came for different reasons. However, all of those reasons had to do with an overarching government, circumventing the Constitution and laws. Each participant decided that they would partake of the rights protected by the First Amendment, and some chose to protect themselves, and others, by virtue of that right protected by the Second Amendment. Here is how Black’s Law Dictionary (5th Edition) defines conspiracy:

A combination or confederation between two or more persons formed for the purpose of committing, by their joint efforts, some unlawful or criminal act, or some act which is lawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means for the commission of an act not in itself unlawful.
So, do we consider that if a group of people wants to demonstrate their dissatisfaction with the government, and to do so with the full weight of the Founders and the Constitution, that the act of coordinating, or participating in such protected activity has now become a criminal conspiracy?

If we find that the government is determined to circumvent the Constitution, in favor of increasing their power and influence, do we leave it to the courts to decide what the Founders intended? When the Founders determined the necessity to state that “in order to prevent misconstruction or abuse of its powers”, was that intended for us, or the courts, to determine just what our rights were?

If the latter, then the Constitution is nothing but a memory. However, if the former, then it is time for us to assure that justice, not the law, prevails in defense of those rights.